Kerala High Court
C.V.John vs Mani C.Kappen on 5 November, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024/14TH KARTHIKA, 1946
EL.PET.NO.9 OF 2021
PETITIONER:
C.V.JOHN, AGED 58 YEARS, S/O.VARKEY,
CHERUTHANICKAL HOUSE, PALAKKADU,
MEENACHIL P.O.-686577, KOTTAYAM DISTRICT
PARTY IN PERSON)
BY ADV.SUNIL CYRIAC
RESPONDENTS:
1 MANI C.KAPPEN, KAPPIL HOUSE, MUNDAKAL P.O.,
PALA - 686 574, KOTTAYAM DISTRICT.
2 JOSE K.MANI, KARINGOZHACKAL HOUSE, VELLAPPADU,
PALA P.O., PIN-686 575, KOTTAYAM DISTRICT.
3 DR.PRAMEELA DEVI.J, APARNA, ANAKKALLU P.O.,
KANJIRAPPALLY, PIN-686 508, KOTTAYAM DISTRICT.
4 JOY THOMAS VAZHAKMATTAM,
VAZHAKMATTAM HOUSE, ELIKKULAM P.O.,
KOTTAYAM DISTRICT, PIN-686 577.
5 ALBIN MATHEW, MURINGAYIL HOUSE, EDAPPADY P.O.,
BHARANANGANAM, PIN-686 578, KOTTAYAM DISTRICT.
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2
*6 THOMAS J.NIDIRY, EDAPPALLIL HOUSE, S.H.MOUNT P.O.,
KOTTAYAM DISTRICT, PIN-686 575. [DIED]
*THE DEATH OF R6 IS RECORDED AS PER ORDER DATED
23.09.2024 IN MEMO DATED 23.09.2024.
7 MANI.C.KURIAKOSE, CHAKKAPPALLIL HOUSE, VALIYAPARA,
KUTHUKUZHY P.O., KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN-686 691.
8 SREEJITH V.S., VALIYAVEETTIL HOUSE,
KIZHATHIRI P.O., KOTTAYAM DISTRICT, PIN-686 576.
9 SANTHOSH PULICKAL, PULICKAL HOUSE, KAROOR P.O.,
PALA, PIN-686 574, KOTTAYAM DISTRICT.
10 SUNIL ALANCHERIL, ALANCHERIL HOUSE,
MEENACHIL P.O., PIN-686 577, KOTTAYAM DISTRICT.
11 ELECTION COMMISSION OF INDIA
(THIRD PARTY)
BY ADVS.
DEEPU THANKAN
TOM JOSE (PADINJAREKARA)
SEBASTIAN JOSEPH
P.C.HARIDAS
DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA
LAKSHMI SREEDHAR
UMMUL FIDA
ELIZEBATH GEORGE
EMMANUEL CYRIAC
THAREEQ ANVER K.(K/000942/2018)
T.KRISHNANUNNI (SR.)(K/280/1973)
P.FAZIL, ADVOCATE COMMISSIONER
THIS ELECTION PETITION HAVING COME UP FOR ADMISSION ON
04.11.2024, THE COURT ON 05.11.2024, DELIVERED THE
FOLLOWING:
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'C.R'
JUDGMENT
Dated, this the 5th day of November, 2024
"At the bottom of all tributes paid to democracy is the little man,
walking into a little booth, with a little pencil, making a little cross on
a little bit of paper--no amount of rhetoric or voluminous discussion
can possibly diminish the overwhelming importance of that point."
― Winston Churchill [House of Commons, 31.10.1944].
The mandate of the little men from Pala constituency (093) in the
election of the Legislative Assembly held on 06.04.2021 is under
challenge in this Election Petition. The specific ground canvassed is
contravention of Section 77, propounded as a deemed corrupt practice
under Section 123(6) of the Representation of the People Act, 1951 ('the
R.P. Act', for short). Are the charges of corrupt practice to be
equated to criminal charges, warranting proof - not by the yardstick of
preponderance of probability - but beyond doubt? Does the principles of
equity has any relevance in adjudging an Election Petition? Is the court
bound to make a finding in favour of the election petitioner, invoking
Order VIII, Rule 5, for non-traverse of the allegations, in the written
statement? Is contravention of Section 77(1) and (2) a corrupt practice
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as prescribed by Section 123(6)? Interesting will it be to unfurl the
answers to these questions which arise in this Election Petition.
2. Petitioner was a contestant from Pala constituency in the
Legislative Assembly Election of 2021. The 1 st respondent is the
returned candidate, who won by a margin of 15,378 votes over
respondent no.2, who secured the 2nd position, as per the election
results declared on 02.05.2021. Other respondents were also
contestants in the said election.
3. The pleadings:
Before addressing the pleadings, it requires to be pointed out that this
Election Petition was initially preferred by the petitioner as party-in-
person. Later, Adv.Sunil Cyriac was appointed as the counsel for the
petitioner by the Honourable Supreme Court in a proceeding carried
from an Order passed by this Court. Thereupon, an amendment was
sought for to the Election Petition, which was allowed. This Court will
therefore refer to the pleadings in the amended Election Petition here
below:
As per the hand book issued by the Election Commission of India for
candidates, the maximum amount that a contesting candidate can
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spend in the assembly elections is Rs.30,80,000/-. A common man
cannot afford this amount and he cannot contest in a fair election. As
per the hand book afore referred, every candidate is required to keep
by himself or his election agent a separate and correct account of all
expenditure incurred or authorised by him or his election agent, from
the date on which the candidate is nominated till the date of
declaration of result, both days inclusive. As per Section 77(3) of the
R.P. Act, the total of the said expenditure shall not exceed such amount
prescribed. Incurring or authorising of expenditure in excess of the limit
prescribed, is a corrupt practice under Section 123 of the R.P. Act. The
District Election Officer issued election proceedings dated 10.03.2021
stipulating that the total expenditure shall not exceed Rs.30,80,000/-. It
also provides for a rate chart for monitoring the election expenditure in
the Legislative Assembly election of the year 2021. As per the hand
book for candidates, each candidate is required to maintain the day-to-
day accounts of the election expenditure in a register, with supporting
documents, which register shall be made available for inspection on
three occasions at least, to the returning officer/expenditure observer
appointed by the Commission. The 1st respondent had not maintained
the account properly and he failed to make available the register for
inspection as provided. As many as three notices were issued to the
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1st respondent by the expenditure observer, but no reply even was
given by the 1st respondent. As per the expenditure statement
submitted by the 1st respondent, which the petitioner obtained under
the Right to Information Act, the total expenditure incurred is
Rs.23,39,388.30/-. However, in page no.3 of the register, the total
expenditure is Rs.23,32,397.30/-. Thus, the statement made by the
1st respondent in the register is incorrect. Further, the total expenditure
incurred by the 1st respondent, as per the register maintained by the
expenditure observer, is Rs.30,40,911/-. A sum of Rs.3,34,400/-, which
was given for booth expenditure is not included in the statement
prepared by the expenditure observer, which amount is, however,
reflected in the register maintained by the 1 st respondent. If that
amount is also calculated, the election expenses incurred by the
1st respondent will cross the limit fixed. Thus, the 1 st respondent has
committed corrupt practice by contravening Section 77(3) of the R.P.
Act. Moreover, the 1st respondent had not raised any objection to the
statement prepared by the expenditure observer as regards his election
expenditure. Candidates sponsored by the leading alliances of Kerala
has been spending around ten fold of the maximum amount fixed and
submitting fake accounts. There are 71,091 residential buildings in the
Grama Panchayats and Municipality in the Pala Assembly constituency.
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According to the 1st respondent, he had printed only 5,000 pamphlets
for distribution, which is apparently a false statement, since pamphlets
will be given to every house in the constituency. Therefore, the
expenditure incurred for printing pamphlets shown as Rs.5,368/- is
wrong and the same will be more than 20 times the expenditure shown.
Since the election expenditure made by respondents 1 to 3 was huge,
well beyond the prescribed limit, the petitioner's candidature did not
get the required public notice. He gave a complaint to the Chief
Electoral Officer for curbing huge money spent by the opponent
candidates, but the authorities refused to take action. The violation in
this regard was done by respondents 1 to 3 during the period from
22.03.2021 to 06.04.2021. 1st respondent had placed so many boards,
banners and posters as part of the election campaign and the
expenditure in this regard shown is Rs.7,70,796/-. These boards,
banners and posters were placed against the rules amounting to
corrupt practice and violation of Section 127-A of the R.P. Act. On such
premise, the petitioner sought for a declaration that election of the
1st respondent from Pala Assembly constituency (093) in the Kerala
Legislative Assembly election, 2021 be declared void and inoperative
and also, to set aside the same. The petitioner also prayed for costs of
the proceedings.
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4. This Court may incorporate a caveat here, that each and every
pleading in the Election Petition has not been narrated above, inasmuch
as several pleadings are completely irrelevant, in the context of
declaring an election void and setting aside the same.
5. The 1st respondent filed a written statement. Before addressing
the contents thereof, it is noticed that the written statement only
answers the allegations and averments contained in the original
Election Petition. It does not refer to any of the averments amended
and incorporated to the Election Petition, though the written statement
was filed after such amendment. The contentions in the 1 st respondent
written statement are summarised thus:
The Election Petition is not maintainable in law or facts and it lacks
material facts to constitute a valid cause of action, rendering the
petition liable to be dismissed in limine. The maximum expenditure
fixed in the subject election is admitted as Rs.30,80,000/-. Though it is
alleged that the 1st respondent, along with the respondents 2 to 3, have
committed corrupt practices in the Pala constituency, the details
regarding the same are not given. The allegation that candidates have
been spending around ten fold of the amount fixed and submit fake
accounts before the Election Commission, is specifically denied as not
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true. As regards the allegation of the number of pamphlets shown as
5,000, as against more than 70,000 houses, it is contended that the
same is wrong, cryptic and merely a guess work of the petitioner. It was
specifically contended that violation, if any, of Section 127-A amounts
only to an electoral offence, which will not come within the ambit of a
corrupt practice. It was contended that it was not specifically pleaded
that the respondent had printed pamphlets over and above the
prescribed limits; nor was any pamphlet produced along with the
Election Petition. The allegations are just an imagination of the
petitioner, who should be put to strict proof of the same. The Election
Petition is alleged to be devoid of the material facts constituting the
alleged corrupt practices. The Election Petition does not satisfy the
requirements of Section 83(1)(a) of the R.P. Act. The allegations are
vague, general, frivolous, vexatious and indefinite and were hence
denied. The further allegation in paragraph no.5 about a complaint
preferred by the petitioner to the Electoral Officer regarding the huge
expenditure of the candidates were all denied, as matters to be proved
by the petitioner. Neither the details of the complaint, nor the fate of
the same, was pleaded. In paragraph no.11 of the written statement,
the specific allegation of the expenditure having exceeded the
prescribed limit is dealt with and denied. It was pleaded that the
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expenditure incurred by the 1st respondent never contravened
Section 77 of the R.P. Act. No material facts or particulars have been
pleaded in the Election Petition to attract Section 123(6) of the R.P. Act.
No case was registered against the 1 st respondent by the returning
officer alleging violation of the expenditure limit. The election expenses
submitted by the 1st respondent has been accepted by the Election
Commission and allegations to the contrary are to be rejected. An
Election Petition on the alleged violation of Section 77 is therefore not
maintainable. The affidavit accompanying the Election Petition does not
contain the details of the corrupt practices alleged, thus, failing to
satisfy the requirements of Section 83 of the Act. The election is not
liable to be interfered with on any of the grounds under Section 100 of
the R.P. Act. The petitioner is not entitled to the reliefs sought for.
Accordingly, the 1st respondent sought for dismissal of the Election
Petition.
6. The 2nd respondent, though supported the election petitioner, has
not chosen to file any written statement.
7. Other respondents, except R9, also have not filed any written
statement. The 9th respondent, in his written statement, had opposed
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the Election Petition and had supported the 1 st respondent/returned
candidate. The contentions canvassed by the 1st respondent as regards
absence of material facts, specific allegations of corrupt practice,
cause of action and absence of particulars in the affidavit
accompanying in the Election Petition etc. were also canvassed by the
9th respondent. The allegations pertaining to pamphlets, as also, the
alleged violation of Section 127-A of the R.P. Act, were all denied, being
not specific, but only wild. The 9th respondent also wants to put the
Election Petitioner to adduce strict proof of his allegations. It was
contended that violation, if any, of Section 127-A is not a corrupt
practice, as contemplated by Section 123 of the R.P. Act for invalidating
an election. The 9th respondent also thus prayed for dismissal of the
Election Petition.
8. The election petitioner filed a reply affidavit dated 26.11.2021
denying the contentions in the written statement and reiterating his
claim in the Election Petition. The pleadings in the ground (F) of the
Election Petition that the election expenses exceeded the prescribed
limits, rendering the election liable to be set aside under Section 100(1)
(b), d(ii) and d(iv) of the R.P. Act, was specifically pointed out in the
reply affidavit.
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9. Before referring to the issues framed, it is relevant to refer to the
Common Order passed by this Court on 08.03.2021 in I.A. Nos.3/2021,
1/2022, 3/2022, 1/2023 and 2/2023. The first interlocutory application,
I.A.No.3/2021, preferred by the 1st respondent/returned candidate was
under order VII, Rule 11 of the Code of Civil Procedure, seeking
rejection of the Election Petition, alleging want of cause of action.
I.A.No.1/2022 was preferred by the election petitioner under Order VI,
Rule 17 of the C.P.C. for amendment of the Election Petition.
I.A.No.3/2022 was also one preferred by the 1st respondent/returned
candidate seeking I.A.No.3/2021 to be heard first. I.A.No.1/2023 is
preferred by the election petitioner seeking acceptance of the
additional documents filed. I.A.No.2/2023 is filed after completion of
hearing the above I.As., but only for incorporating certain cosmetic
changes to the amendment petition, I.A.No.1/2022 referred above.
After hearing the parties, I.A. No.3/2021 for rejection of the Election
Petition was dismissed and other interlocutory applications were
allowed, by virtue of the Common Order afore referred. Although the
above Common Order was challenged before the Honourable Supreme
court vide S.L.P.Nos.6697-6698/2023, the Leave Petitions were
dismissed.
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10. Based on the above pleadings, this Court framed the following
issues:
(i) Whether the expenditure in connection with the election
to the Kerala Legislative Assembly from 093 Pala
Constituency held during the year 2021 incurred/authorised
by the 1st respondent/returned candidate has exceeded the
prescribed limit of Rs.30,80,000/-? If yes, whether the same
amounts to a corrupt practice under Section 123(6) of the
Representation of the People Act, 1951?
(ii) Whether the 1st respondent/returned candidate failed to
keep separate and correct accounts of all the expenditure in
connection with the election to the Kerala Legislative
Assembly from 093 Pala Constituency held during the year
2021 incurred/authorised by him or his election agent in
terms of Section 77 of the Representation of the People Act,
1951? If yes, whether the same has materially affected the
result of the election as envisaged in Section 100(1)(d)(iv)
[erroneously stated as Section 100(1)(b)(iv) in the order
framing issues] of the Representation of the People Act,
1951?
(iii) Whether the allegations of corrupt practice alleged by
the petitioner answer the requirements of Section 83(1)(b)
of the Representation of the People Act, 1951?
(iv) Whether the allegations in the petition are so vague,
imprecise and ambiguous, dis-entitling the petitioner from
the reliefs sought for?
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(v) Whether the allegations in the petition disclose a proper
cause of action enabling the petitioner the reliefs claimed
for?
(vi) Whether the election of the 1 st respondent/returned
candidate to the Kerala Legislative Assembly from 093 Pala
Constituency is liable to be declared as void?
(vii) Whether the election petitioner is entitled for the costs
of the proceedings from the 1st respondent/returned
candidate?
11. The evidence in this case consists of oral evidence of PW1 to
PW6, through whom, Exts.X1 to X8(a) were marked, on the part of the
election petitioner. Ext.X1 is the register of day-to-day accounts of the
election expenditure maintained by the 1st respondent/returned
candidate. Ext.X2 is the affidavit sworn to by the 1 st respondent and his
statement of election expenditure, wherein, the total expenditure is
stated to be Rs.23,39,388/-. Ext.X3 is the shadow observation register
maintained by the accounting team as regards the day-to-day election
expenditure of the 1st respondent/returned candidate, as per which, the
total expenditure of the 1st respondent/returned candidate is
Rs.30,40,911/- (see page no.89). Ext.X4 is the objection preferred by
the 1st respondent against his election expenditure as found in Ext.X3
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shadow observation register. Ext.X5 is the proceedings of the District
Expenditure Monitoring Committee dated 31.05.2021, rejecting the
objection of the 1st respondent/returned candidate and confirming the
expenditure of Rs.30,40,911/-, as found by the accounting team, vide
Ext.X3. Ext.X6 is the document evidencing appointment of Sri.Aji Jose
as the election agent of the 1 st respondent/returned candidate, which
also contains the specimen signatures of the candidate and the election
agent. Ext.X7 is the declaration made by the returning officer under
Section 66 of the R.P. Act declaring the 1st respondent as the successful
candidate. Ext.X8 is the photocopy of the order appointing PW3 as
Election Expenditure Observer for 093 Pala Assembly constituency.
Ext.X8(a) is a list indicating the deployment of Expenditure Observers,
serial no.25 of which indicates the appointment of Shaikh Aminkhan
Yasinkhan, as the Expenditure Observer for the Pala constituency (093).
PW1 is the District Election Officer, who produced Ext.X1 register,
Ext.X2 affidavit under Part-IV, Ext.X3 shadow observation register,
Ext,X4 objection and Ext.X5 proceedings of the District Expenditure
Monitoring Committee dated 31.05.2021. PW2 was the returning
officer, through whom, Ext.X6 document appointing the election agent
of the 1st respondent was produced and marked. Ext.X7 declaration of
results was also marked through PW2. PW3 was the expenditure
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observer appointed vide Ext.X8. Ext.X8(a) was also marked through
him. PW4 was the District Election Officer in the subject election. She
was the custodian of the various documents produced and marked
through other witnesses. She specifically spoke about Ext.X5, which
rejected Ext.X4 objection of the 1st respondent/returned candidate and
confirming the election expenditure vide Ext.X3. PW5 was the Assistant
Election Expenditure Observer of the Pala constituency. He is the one,
who prepared Ext.X3. PW6 is the election petitioner.
12. On behalf of the 1st respondent/returned candidate, DW1 was
examined. DW1 is the person, who prepared Ext.X1 expenditure
register of the 1st respondent/returned candidate. It was he, who
explained the 'booth expenses', a pivotal item of expenditure, based
upon which, the allegation of the expenditure exceeding the prescribed
limit was made. No documentary evidence was adduced by the
1st respondent. No evidence, oral or documentary, was adduced by
other respondents.
13. Before answering the above issues, this Court will first refer to the
nature and special status of an Election Petition, which is by and large
civil in nature. Section 87(1) of the R.P. Act stipulates that the trial in an
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Election Petition may be as nearly as in accordance with the procedure
applicable under the Code of Civil Procedure. However, insofar as the
special onus of an election petitioner is concerned, it has certain
trappings of a quasi criminal proceeding, if it may be said so, as
enunciated by the Honourable Supreme Court in various decisions,
which are referred to here below:
14. A three Judges bench of the Honourable Supreme Court in
Surinder Singh v. Hardial Singh and others [(1985) 1 SCC 91] -
after referring to a catena of decisions including Guruji Shrihar
Baliram Jivatode v. Vithalrao and others [1969 SCR (2) 766];
Mahant Shreo Nath v. Choudhry Ranbir Singh [1970 (3) SCC 647],
Abdul Hussain Mir v. Shamsul Huda and another [(1975) 3 SCR
106]; Ch. Razik Ram v. Ch. Jaswant Singh Chouhan and Others
[AIR 1975 SC 667] - concludes thus in paragraph no.23:
"23. It is thus clear beyond any doubt that for over 20
years the position has been uniformly accepted that
charges of corrupt practice are to be equated with criminal
charges and proof thereof would be not preponderance of
probabilities as in civil action but proof beyond reasonable
doubt as in criminal trials. We are bound by the decision of
the larger Bench in Mohan Singh's case (supra) as also by
decisions of coordinate benches and do not feel inclined to
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take a different view....."
15. The next aspect to be noted is that equity and equitable
principles have no role, whatsoever, insofar as election proceedings are
concerned. They are strict statutory proceedings; and the result of an
election is not liable to be interfered with lightly, as held by a five
Judges bench of the Honourable Supreme Court in Jagannath v.
Jaswant Singh and others [(1954) 1 SCC 57]. The relevant findings
are extracted here below:
"7......It is also well settled that it is a sound principle of
natural justice that the success of a candidate who has won
at an election should not be lightly interfered with and any
petition seeking such interference must strictly conform to
the requirements of the law....."
16. On application of the principle of equity, the Supreme Court held
in Harcharan Singh v. S.Mohinder Singh and others [AIR 1968 SC
1500] thus:
"8. The statutory requirements of election law must be
strictly observed. An election dispute is a statutory
proceeding unknown to the common law; it is not an action
at law or in equity."
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17. With this prelude, this Court will now address the issues framed.
The first issue framed is the foremost one, which is essentially
canvassed in the Election Petition, and pressed before this Court by the
learned counsel for the petitioner. The issue pertains to the question
whether the election expenditure of the 1st respondent/returned
candidate has exceeded the prescribed limit of Rs.30,80,000/-, thus
amounting to a corrupt practice under Section 123(6) of the R.P Act.
18. The relevant pleadings in the amended Election Petition,
contained in paragraph no.2 are extracted here below:
"It is further submitted that the election expenditure of
the 1st respondent was calculated by the expenditure
observer of the Pala Constituency as per Annexure B11 of
the Rules. The petitioner obtained a copy of the Annexure
B11 submitted by the expenditure observer of Pala
constituency as per Right to Information Act. As per
Annexure B11 submitted by the expenditure observer, the
total expenditure incurred by the 1 respondent is
Rs.30,40,911-00. It is submitted that an amount of
Rs.3,34,400-00, which was given for booth expenditure is
not included in the Annexure B11 submitted by the
expenditure observer, but the said amount is reflected in
the register maintained by the 1" respondent. If that
amount is also calculated, the expenses incurred by the
1st respondent will cross the limit fixed by the
proceedings of the District Election Officer and District
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Collector of Kottayam bearing No.DCKTM/1482/2021/F2
dated 10-03-2021. So1 respondent has committed corrupt
practice as per Section 77 (3) of the Representation of
Peoples Act, 1951. ....."
19. To the same effect is the evidence adduced by the election
petitioner (examined as PW6), as could be seen from page no.4 of the
proof affidavit, the relevant portion of which is also extracted here
below:
"As per expenditure register pertaining to the 1 st
respondent prepared and submitted by the expenditure
observer, the total expenditure incurred by the 1 st
respondent is Rs.30,40,911-00. An amount of Rs.3,34,400-
00, which was given by the 1 st respondent for booth
expenditure is not included in the expenditure account
pertaining to the 1st respondent submitted by the
expenditure observer. But the said amount is reflected in
the register of expenditure maintained by the 1 st
respondent. When that amount is also added to the total
expenditure as fixed by the expenditure observer, the
expenses incurred by the 1 st respondent will exceed the
limit fixed in terms of Section 77(3) of the Representation
of Peoples Act, 1951 read with Rule 90 of the Conduct of
Election Rules, 1961. So the 1 st respondent has committed
corrupt practice under section 123(6) of the
Representation of Peoples Act, 1951."
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20. It could thus be seen that the specific pleading, and proof sought
to be adduced, by the election petitioner is that the booth expenditure
of Rs.3,34,400/-, which was included in Ext.X1 (the register of
expenditure prepared by the candidate and filed before the District
Election Officer) does not find a place in Ext.X3 shadow observation
register, maintained by the Expenditure Observer. According to the
petitioner, if the said amount of Rs.3,34,400/- is clubbed with the total
expenditure of Rs.30,40,911/-, as reflected in Ext.X3, the election
expenditure of the 1st respondent/returned candidate will exceed the
prescribed limit of Rs.30,80,000/-. It could thus be seen that the
sustainability/maintainability of the above case of the election
petitioner is the fulcrum of the issue to be resolved in this Election
Petition.
21. In answer to the above plea, learned Senior Counsel appearing for
the 1st respondent would submit that the said amounts are not liable to
be clubbed. According to the learned Senior, Rs.3,34,400/- is the sum
total of the amounts given by the 1st respondent towards booth
expenses on 01.04.2021, which was expended from the said date, up to
the election date, i.e., 06.04.2021. This amount will be spent for various
purposes by the persons to whom the amounts have been entrusted;
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and the same is not liable to be reflected as such in Ext.X3 register
maintained by the Election Observer. Instead, only the expenditure
made, by utilising the said money, may be reflected in Ext.X3 register,
provided the same is visible and comes to the notice of the Election
Observer. As regards the booth expenses of Rs.52,800/- on 06.04.2021,
the date of election, which finds a place in Ext.X3, the explanation
offered by the learned Senior Counsel is that the same are expenses
incurred for making arrangements in the election booths, altogether
176 in number, on the date of voting, including erection of shelters,
kiosks etc. Since such kiosks etc. being visible, the expenditure thereof
was straight away reckoned by the Expenditure Observer and hence
the same finds a place in Ext.X3 register maintained by the Observer,
as against the date 06.04.2021, the date of voting.
22. In answer to the above contention, learned counsel for the
election petitioner argued that no pleadings are there in the written
statement of the 1st respondent, in respect of the above explanation. It
was pointed out that no additional written statement was filed,
pursuant to the amendment of the election petition. Nor was the issue
dealt with in the original written statement. Therefore, the evidence
adduced by DW1 in the form of an explanation, both in respect of the
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booth expenses incurred on 01.04.2021, as also, on 06.04.2021 cannot
be taken stock of, is the submission made. Learned counsel would rely
on the settled position that any extent of evidence, in the absence of
necessary pleadings, cannot be of any avail.
23. To the above submission of the learned counsel for the election
petitioner, learned Senior Counsel would submit that written statement
was filed after amendment, but at a time when this Court had fixed an
outer limit for filing the same, wherefore the pleadings in the amended
election petition could not be specifically and separately dealt with
However, the same would not loom large because of the peculiar
nature of the burden of proof in an election petition. The special
burden, which the election petitioner has to discharge, is not proof in
accordance with the preponderance of probability; but proof beyond
reasonable doubt, as expatiated by the Honourable Supreme Court in a
catena of decisions. According to the learned Senior Counsel, even if
the respondent maintains silence to the allegations leveled, the same
cannot automatically amount to an admission, enabling the election
petitioner to the reliefs sought for. Even then, the election petitioner is
duty bound to prove the allegations, inasmuch as a challenge to an
election is, in fact, a challenge to the mandate of the people, as
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reflected from the results of the election. In support of this proposition,
learned counsel relied upon a three judges bench of the Hon'ble
Supreme Court in Dr.Jagjit Singh v. Giani Kartar Singh and others
[AIR 1966 SC 773].
24. In addressing this point, this Court will straight away refer to the
written statement preferred by the first respondent. At the outset, it
has to be noticed that the first respondent has pleaded that the
election petition lacks material facts constituting a valid cause of action
and hence, liable to be dismissed. In paragraph no.7 of the written
statement, the first respondent would allege that the details regarding
the corrupt practices are not given. The averments and allegations in
paragraph no.3 of the election petition are seen denied as frivolous and
vexatious. In paragraph no.10, it is allegedly stated that the averment
of the first respondent's expenditure exceeding prescribed limit is a
matter to be proved by the petitioner. More importantly, the issue is
seen dealt with in paragraph no.11 of the written statement, which is
extracted here below:
"11. The expenditure incurred by this respondent
never contravened Section 77 of the R.P. Act. There
are no material facts or material particulars or
relevant facts pleaded in Election Petition to attract
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Section 123(6) of the R.P. Act. The Returning Officer
has not registered any case against this respondent
on the alleged violation of the maximum limit of
expenditure. However, it is submitted that the
election expenses submitted by this respondent has
been accepted by the Election Commission. Thereby,
all the averments contra to the same have to be
rejected. In such case, the election petition on an
allegation of violation of the section 77 is not
maintainable. "
25. In this regard, it is relevant to note that the written statement
does not address anything on the basis of the amended election
petition. The denial contained in the written statement is to the
averments contained in the original election petition. However, the
specific ground raised, as to the election expenditure of the first
respondent exceeding the prescribed limit, is seen denied in paragraph
no.11 extracted above. Therefore, it cannot be said that the case
pleaded in the election petition - as regards expenditure exceeding the
limit - is liable to be treated as admitted, for not traversing the same in
the written statement.
26. Coupled with the above, this Court will also refer to the judgment
of the Honourable Supreme Court relied upon by the learned Senior
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Counsel for the first respondent in Dr.Jagjit Singh (supra). In that
case, a contention was raised that the specific allegations in the
election petition were not traversed by the respondent. It was argued
that, unless the material allegations are specifically controverted, the
Tribunal should not have allowed the respondent to lead evidence in
rebuttal and should have ignored such evidence adduced. The
argument was one based on the provisions of Order 8, Rule 5 of the
Code of Civil Procedure. The said argument is seen repelled by the
Honourable Supreme Court in paragraph no.25 in the following words:
"25. We are not impressed by this argument. In
considering the question as to whether the strict
rule of pleadings prescribed by Order 8, Rule 5
applies to election proceedings with all its rigour, we
must bear in mind the fact that the charge like the
present is in the nature of a criminal charge and the
proceedings in respect of its trial partake of the
character of quasi-criminal proceedings. It is true
that Section 90 of the Act provides that subject to
the provisions of this Act and of any rules made
thereunder, every election petition shall be tried by
the Tribunal, as nearly as may be, in accordance
with the procedure applicable under the Code of
Civil Procedure, 1908, to the trial of suits. This
provision itself emphasises the fact that the whole
of the Code of Civil Procedure is not fully applicable.
What the section provides is that the proceedings
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should be tried "as nearly as may be" according to
the Code of Civil Procedure. If the contention raised
by Mr. Garg is accepted at its face value, it may
logically lead to this consequence that if a returned
candidate does not controvert the allegations made
by the petitioner in his election petition alleging the
commission of a corrupt practice by the returned
candidate, a finding would have to be made in
favour of the petitioner without any evidence at all.
In other words, the question is: can a corrupt
practice prescribed by Section 123(4) of the Act be
held to be proved merely on the ground that no
specific denial has been made by the returned
candidate in his written statement in that behalf? In
considering this point, we cannot overlook the fact
that the onus to prove the essential ingredients of
Section 123(4) is on the petitioner, and so, it would
be for him to prove that the statement is false, and
that the other requirements of the section are
satisfied. Having regard to the nature of the corrupt
practice which is prescribed by Section 123(4), we
are not prepared to hold that the strict rule of
pleadings prescribed by Order 8, Rule 5 of the Code
can be blindly invoked in election proceedings of
this type."
(underlined by me, for emphasis)
27. It could therefore safely be concluded that the corrupt practice
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alleged is not liable to be treated as admitted and proved only for
reason of its non-traverse, dehors and independent of the fact that the
allegations are denied by the 1st respondent in his written statement.
This Court is therefore justified in looking at the evidence adduced by
DW1, inasmuch as the allegations are seen denied in the written
statement and explained in the evidence adduced by DW1. DW1 is the
person who claims to have handled the expenditure of the first
respondent/returned candidate. He retired as Branch Manager of a Co-
operative Bank. He would state that there were 176 polling booths in
Pala Constituency and there are 34 entries of Rs.9,500/- each, at pages
17, 18, 19 and 20 of Ext.X1. These amounts were disbursed to 34
persons on the basis of five booths per person, at the rate of Rs.1,900/-
per booth. The amounts were disbursed to the said 34 persons based
on vouchers. Besides, there are two entries at page no.20 of Ext.X1,
showing payment of Rs.5,700/- each, which amount was given for 3
booths, at the rate of Rs.1,900/- each. Similarly, Rs.1,900/- each was
given for 176 booths on 01.04.2021. According to DW1, he cannot say
as to what all expenses have been incurred by utilising the said
amounts. In cross examination, DW1 would state that he is not aware
as to how the accounts in Ext.X3 was prepared by the shadow observer
team. He has been cross examined to depose that he had not even
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seen Ext.X3.
28. As a matter of fact, this evidence does not have much
significance, in the context of the issue which is required to be resolved
by this Court. According to the election petitioner, the amount of
Rs.3,34,400/- is liable to be clubbed with the total amount shown in
Ext.X3, that is to say, Rs.30,40,911. If it is so done, the election
expenditure will exceed the upper limit of Rs.30,80,000/- as prescribed
by the Election Commission in accordance with the Rules.
29. It is significant to note that the two amounts above referred are
reflected in two expenditure registers maintained by two different
persons. Ext.X1 is the expenditure register maintained by a candidate,
which includes the expenditure made by him in cash and through
banks. Per contra, Ext.X3 is the shadow observer's register of
expenditure of the first respondent/returned candidate. Ext.X3 was
prepared by PW5, the Assistant Expenditure Observer, Pala
Constituency. This will be cross checked by PW3, who was the
expenditure observer. PW5 would state that the details of the
expenditure of each candidate will be taken note of and entered into in
the register on the basis of video footages, marked by the video
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viewing team. As against the items of expenditure identified so, the
rates fixed based on the approved rate chart will be applied. In cross, it
was stated that the expenditure which stems from the media
certification monitoring committee will also be reckoned and entered.
30. It could thus be seen that each and every expenditure made by a
candidate is not expected to be reflected in Ext.X3 register. Ext.X3 will
reflect only those expenditures, which are visible and which comes to
the notice of the observation team, through video footages or
otherwise. Standard rates are fixed by the consent of all the candidates
prior to the election, which rates will be applied to each expenditure
item. Suffice to say that, the expenditures reflected in Ext.X3 will not
be and cannot be precise and accurate; whereas, the expenditures
shown in Ext.X1, maintained by the candidate, is expected to be more
precise and accurate. It should contain expenditure, both by way of
cash and through bank. The above matters are referred only to point
out that an item of expenditure which is reflected in Ext.X1, but which
is not so reflected in Ext.X3, is not liable to be clubbed, as such. This is
so for other reasons as well, as dealt with here below:
31. The election petitioner has no case that any specific item of
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expenditure, which has been incurred by the first respondent/returned
candidate, was not included in Ext.X1. Instead, his case is that, an item
which is included in Ext.X1 register is liable to be clubbed with the total
figure arrived at by the Observer in Ext.X3, which proposition appears
to be fallacious. As rightly pointed out by the learned Senior Counsel,
amounts entrusted by the candidate to his allies for the purpose of
expenditure may not come to the notice of the Observer. Nor is he
expected to have any knowledge about such amounts entrusted.
Therefore, it will not be reflected in Ext.X3. Instead, the expenditure
incurred by such allies of the candidate on various items by utilising
such funds entrusted, if visible and which comes to the notice of the
observer, alone will be reflected in Ext.X3. In other words, those items
on which the amounts were spent are liable to be reflected in Ext.X3;
and not the amounts entrusted to the allies by the candidate
concerned. Though not strictly, the sum of Rs.3,34,400/- entrusted for
expenditure as seen from Ext.X1, is more or less in the nature of an
'income/source for expenditure' at the hands of the allies of the
candidate; whereas the amounts which are reflected in Ext.X3 register
is in the nature of 'expenditure', as such, which comes to the notice of
the Observer. In short, an entry which partakes the character of more
or less an 'income' reflected in Ext.X1, cannot be clubbed with the total
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figure of 'expenditure' as referred in Ext.X3. The proposition made in
the Election Petition is theoretically and impregnably wrong, rendering
it impossible to be recognised in law.
32. But for the above claim for clubbing, no specific contention is
seen urged either in the election petition, or in the evidence adduced,
as regards the expenditure exceeding the limit. True that the election
petitioner had spoken about various expenditure of the first
respondent/returned candidate in his proof affidavit. However, he
himself would admit that they were not pleaded in the election petition.
Having regard to the standard of proof required in election petitions,
such ipse dixit of the election petitioner, when examined as PW6,
cannot be taken stock of. The situation is equally precarious for the
petitioner as regards his contention regarding expenditure for the
pamphlets printed for the election. Here, what lacks is evidence. Apart
from taking a contention that there are more than 70,000 houses in the
constituency, wherefore, the 1st respondent's claim that only 5,000
pamphlet were printed and the expense of Rs.5,368/- shown is false, no
endeavour has been taken and no evidence, whatsoever, was adduced
by the petitioner to prove the above allegation. Therefore, the said
contention, though pleaded, will stand repelled.
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33. Before parting with the point, learned counsel for the election
petitioner would invite the attention of this Court to an aspect, which
was spoken to by PW5 in the chief examination, as also, in the cross
examination. In chief, PW5, the Assistant Expenditure Observer, who
prepared Ext.X3 had answered that the disputed entries in Ext.X1
should have been entered into by the expenditure observer team in
Ext.X3 also. He would reiterate that the expenditure incurred by the
returned candidate, as recorded in Ext.X1, ought to have been included
in Ext.X3. Based on this, it is the contention of the learned counsel for
the election petitioner that the entries revealing booth expenses is
liable to be clubbed with the total expenditure reflected in Ext.X3.
34. This Court cannot accept the above proposition put forward by
the learned counsel. It is important to note that none other than PW5
deposed in chief examination that the source of information of the
election observer team is based on the video footages. In cross
examination, he would also add the source of information from the
media certification monitoring committee. If these are the sources
spoken to by PW5, coupled with such other sources which are visible in
the constituency for the purpose of expenditure, how can it be
conceived in law that certain amounts entrusted by the candidate, to
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his allies, for the purpose of expenditure, would automatically come to
the notice of the observation team and hence, liable to be clubbed with
the total amount found in Ext.X3? Assume a situation where the
amounts entrusted by the first respondent/returned candidate to the
extent of Rs.3,34,400/- has been expended by his followers/allies, and
if some items of expenditure have already come to the notice of the
election observation team. Accordingly, if such expenses are reckoned
in Ext.X3, will it not be a duplication to contend that amounts entrusted
by the candidate should also be reflected as an expenditure item in
Ext.X3? At the cost of repetition, this Court may iterate that what is
liable to be reflected in Ext.X3 are the visible expenditure, which comes
to the notice of the election observation team in any manner; and not
something in the nature of an income which has been entrusted by the
candidate to his allies for the purpose of expenditure. The contention,
therefore, stands rejected.
35. One another point argued by the learned counsel for the
petitioner is that the booth expenses of Rs.3,34,400/-, reflected in
Ext.X1, is liable to be clubbed with the total expenditure found in
Ext.X3, inasmuch as a sum of Rs.52,800/- had already been reckoned in
Ext.X3 as booth expenses. The argument advanced is that the
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difference between these two amounts, both being admittedly booth
expenses, has to be clubbed with the total figure in Ext.X3. This
argument also will not hold the ground. It is significant to note that
Rs.52,800/- reckoned in Ext.X3 is the booth expenses incurred on the
date of election, i.e., 06.04.2021. An explanation has already been
offered in this regard that the said expense was for erecting shelters,
kiosks near to the polling booth, which are quite visible to the observer.
Au contraire, the booth expenses of Rs.3,34,400/- reflected in Ext.X1 is
as against the date 01.04.2021. The explanation offered by DW1, who
prepared Ext.X1, is that the said amount was disbursed to 34 persons
on the basis of five booths per person, at the rate of Rs.1,900/- per
booth. Therefore, clubbing of the 'booth expenses' as reflected in
Exts.X1 and X3 cannot be sought for, only for the reason that an
expenditure under the head booth expenses is reflected in Ext.X3 as
well. The contention will therefore stand rejected. In the circumstances,
issue no.1 is found against the election petitioner.
36. Issue no 2:
This issue pertains to the question whether the candidate failed to keep
separate and correct accounts of all expenditure in connection with the
election in terms of Section 77 of the R.P. Act; and if the answer is in
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the affirmative whether the same has materially affected the result of
the election as envisaged in Section 100(1)(d)(iv) of the R.P.Act.
37. Before commencing the discussion on this issue, it is necessary
to deal with a line of argument sought to be canvassed by the election
petitioner. According to the election petitioner, violation of Section 77
(1) and (2) also will amount to a corrupt practice, hit by Section 123(6)
of the R.P. Act. In this regard, learned counsel would give emphasis to
the expression 'in contravention of Section 77' as employed in Section
123(6). According to the learned counsel for the petitioner, incurring or
authorising of expenditure in contravention of Section 77 would take
within its sweep the violation of Section 77(1) and (2) as well. In order
to substantiate violation of Section 77(1), learned counsel would point
out that the total expenditure incurred by the first respondent/returned
candidate as shown in Ext.X1, Part-A, at page no.3 is Rs.23,32,397/-.
However, the total expenditure as shown in page no.22 of Ext.X1 is
Rs.23,39,388/-. Thus, there is a difference of Rs.6,991/-, which would
clearly indicate that the accounts tendered by the first respondent were
not correct. Thereafter, the learned counsel would point out that the
total amount in column no.8, page no.113 of Part B, which deals with
the expenditure in cash, is Rs.4,41,166/- and the total amount
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expended through bank, reflected in Part-C, at page no.196, is
Rs.23,64,604/- (In this regard, it is to be noticed that the total of the
various figures in column no.8 is not stated in page no.196 of Part-C.
The above amount of Rs.23,64,604/- is the total, as calculated by the
learned counsel for the election petitioner). The sum total of the
amounts reflected in Part B and C is Rs.28,05,770/-. Theoretically, this
should tally with the total amount in Part-A. However, there is
substantial difference between the total amount of Rs.23,39,388/- as
shown in part-A and the total of the amounts shown in part -B, which is
calculated to be Rs.28,05,770/-. Again, the figure shown in Ext.X2, the
statement filed by the returned candidate under Section 78 of R.P. Act,
is Rs.23,39,388/-, a figure different from the two amounts above
referred.
38. Based on the above input, learned counsel would submit that the
first respondent/returned candidate failed to keep a correct account of
all the expenditures in connection with the election, incurred or
authorised by him or his election agent, thus violating the mandate of
Section 77(1). Learned counsel would point out that Section 77(1)
employs the term 'shall'. Learned counsel would also canvass that
there is violation of Section 77(2) as well, inasmuch as the accounts
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submitted are not containing the prescribed particulars as contained in
Rule 86 of Conduct of Election Rules, 1961. Thus, violation of Section
77(1) and (2) would attract a corrupt practice, as stipulated in
Section 123(6), is the argument advanced.
39. The above argument is squarely in the teeth of a three judges
bench judgment in L.R.Shivaramagowda and others v.
T.M.Chandrasekhar and others [AIR 1999 SC 252]. The relevant
findings are contained in paragraph no.18 to 22, which is extracted
here below:
"18. We shall now proceed to the second limb of the
argument of the appellant's counsel. The High Court
has held that the appellant had not maintained true
and correct account of expenditure incurred or
authorised and the same amounted to corrupt
practice. 'Corrupt practices' have been set out in
Section 123 of the Act. According to the first
respondent, the appellant is guilty of a corrupt
practice described in sub-section (6) of Section 123.
Under that sub-section the incurring or authorising
of expenditure in contravention of Section 77 of the
Act is a corrupt practice. Section 77 provides that
every candidate at an election shall keep a separate
and correct account of all expenditure in connection
with the election incurred or authorised by him or by
his election agent and that the accounts shall
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contain such particulars as may be prescribed. Rule
86 of the Conduct of Election Rules, 1961 sets out
the particulars to be contained in the account of
election expenses. Sub-sections (1) & (2) of Section
77 deal only with the maintenance of account. Sub-
section (3) of Section 77 provides that the total of
the election expenses referred to in sub-section (1)
shall not exceed such amount as may be prescribed.
Rule 90 of the Conduct of Election Rules prescribes
the maximum limit for any Assembly Constituency:
In order to declare an election to be void, the
grounds were set out in Secion 100 of the Act. Sub-
Section (l)(b) of Section 100 relates to any corrupt
practice committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his election
agent. In order to bring a matter within the scope of
sub-'section (l)(b), the corrupt practice has to be one
defined in Section 123. What is referred to in sub-
section (6) of Section 123 as corrupt practice is only
the incurring or authorising of expenditure in
contravention of Section 77. Sub-section (6) of
Section 123 does not take into its fold, the failure to
maintain true and correct accounts. The language of
sub-section (6) is so clear that the corrupt practice
defined therein can relate only to sub-section3 of
Section 77 i:e. the incurring or authorising of
expenditure in excess of the amount prescribed. It
cannot by any stretch of imagination be said that
non-compliance with Section 77 (1 )&(2) would also
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fall within the scope of Section 123 (6).
Consequently, it cannot fall under Section 100 (1)
(b). The attempt here by the first respondent is to
bring it within Section 100(l)(d) (iv). The essential
requirement under that sub-section is that the result
of the election insofar as it concerns that returned
candidate has been materially affected. It is
needless to point out that failure on the part of the
returned candidate to maintain accounts as required
by Section 77 (1) & (2) will in no case affect, and
much less materially, the result of the election.
19. This view has been expressed by this Court in
Dalchand Jain v. Narayan Shankar Trivedi and Anr.,
[1969] 3 SCC 685. A Bench of three Judges held that
it is only sub-section 3 of Section 77 which can be
invoked for a corrupt practice under Section 123 (6)
and the contravention of Section 77 sub-section (1)
& (2) or the failure to maintain correct accounts
with the prescribed particulars does not fall under
Section 123 (6). The Bench has referred to several
earlier decisions of the High Court and the decision
of this court in CA. No.1321 of 1967 dated
22.3.1968."
40. Though the issue can be set at rest based by the above
authoritative pronouncement of the Honourable Supreme Court,
commendable efforts have been taken by the learned Senior Counsel to
convince this Court, as to why Section 123(6) has to be interpreted
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confining it to the 'incurring or authorising of expenditure' alone.
Learned Senior Counsel would invite the attention of this Court to the
Representation of the People Act, 1951 prior to its amendment in the
year 1956. There, the maximum cap of election expenditure is
contemplated in Section 77. Section 100 deals with the ground for
declaring the election to be void. Section 124 deals with minor corrupt
practice. Section 124(4) provides that the making of any return of
election expenditure which is false in any material particular or the
making of declaration verifying any such return amounts to a minor
corrupt practice. There also, contravention of Section 124(4) was not
treated as an act, which would vitiate the election per se, but would do
so, only if it materially affects the election.
41. In the amendment which took place in the year 1956, the whole
of Section 124 was done away with. Noticing this aspect, the law in this
point was succinctly stated on by a Division Bench of the Madras High
Court in C.R. Narasimhan v. M.G. Natesa Chettiar [AIR 1959 (MAD)
514]. The issue is seen dealt with by the Division Bench thus:
"8. In this view it is not necessary to deal with the
question of law, namely, whether a mere omission to
enter an item of expenditure in the expenses account
would amount to a corrupt practice mentioned in
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Section 123(6) of the Act but as the matter was argued
before us by the learned Advocate General and there
is a possibility of an appeal to the highest court we
shall deal with it. The corrupt practice in question is
the incurring or authorising of expenditure in
contravention of Section 77. The gravamen of the
offence is, therefore, the expenditure, that is, the act
of spending in contravention of Section 77. Section 77
which we have extracted above consists of three sub-
sections. Sub-sections (1) and (2) relate to the keeping
of an account of all expenditure in connection with the
election. Sub-section (1) enjoins on the candidate the
duty of keeping a separate and correct account and
Sub-section (2) lays down that such account shall
contain such particulars as may be prescribed, Neither
of these sub-sections relates to "expenditure", that is,
spending money as such. An account obviously
relates to a period after the incurring of the
expenditure and it contains entries of expenditure
already incurred or authorised to be incurred by the
candidate. On the plain language of these two sub-
sections we find it impossible to hold that any failure
on the part of a candidate to keen a correct account or
to enter the necessary particulars in the account would
amount to incurring or authorising an expenditure.
Sub-section (3), however, clearly relates to
expenditure as such because it says that the total of
the expenditure shall not exceed the prescribed
amount. If more than the prescribed amount is
expended then such expenditure would be in
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contravention of that provision and therefore in
contravention of Section 77. But any contravention of
the provisions of Sub-section (1) and Sub-section (2) of
Section 77 would be not a corrupt practice which
would fall within Section 123(6) of the Representation
of the People Act, because such contravention would
not involve any incurring or authorising of
expenditure."
42. The issue fell for consideration of the Honourable Supreme Court
in Shri Kishen v. Sat Narain and others [37 ELR 13]. It was held by
the Honourable Supreme Court that, Section 123(6) could be intended
only to refer to sub-Section (3) of Section 77 (see paragraph no.5).
43. The issue was again considered by the Honourable Supreme
Court in Dalchand Jain v. Narayan Shankar Trivedi and another
[(1969) 3 SCC 685]. The Supreme Court refused to accept the
contention that failure to keep correct account under Section 77(1) will
amount to a corrupt practice under Section 123(6). In paragraph no.14
the Honourable Supreme Court held that every contravention of
Section 77 does not fall within Section 123(6) and that the 'incurring or
authorizing of expenditure in contravention of Section 77' alone is a
corrupt practice. The further discussion as contained in paragraph Nos.
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14 and 15 are relevant and extracted herein:
"14. ....................................Section 77 Sub-section
(1) requires the candidate to keep a separate and
correct account of all election expenses incurred or
authorised by him within certain dates. Section 77
Sub-section 2 provides that the account shall contain
such particulars as may be prescribed. Section 77
Sub-section (3) requires that the total of the said
expenditure shall not exceed the prescribed amount.
Section 123(6) is related to Section 77(3). If the
candidate incurs or authorises expenditure in excess
of the prescribed amount in contravention of Section
77(3) he commits corrupt practice Under Section
123(6). The contravention of Section 77 Sub-sections
(1) and (2) or the failure to maintain correct accounts
with the prescribed particulars does not fall within
Section 123(6), see Shri Krishna v. Sat Narain. The
same opinion has been expressed in several
decisions of the High Courts, see Savitri Devi v.
Prabhawati Misra; N.L. Varma v. Muni Lal;
Narasimhan v. Natesa, and the cases referred to
therein.
15. Section 124(4) as it stood before its amendment
by Act XXVII of 1956 provided that the making of any
return which was false in material particulars was a
minor corrupt practice. That provision has now been
deleted and the submission of an Incorrect return of
expenses is no longer a corrupt practice."
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44. It is thereafter that the three Judges Bench of the Hon'ble
Supreme Court held in L.R. Shivaramagowda (supra) held that the
vice in Section 123(6) is traceable only to the violation of Section 77(3);
and not Section 77(1) or Section 77(2). Therefore, the contention that
the so called violation in not keeping correct and true accounts as
against the mandate of Section 77(1) will amount to a corrupt practice
within the contours of Section 123(6) is liable to be rejected. It is so
done.
45. The next point urged by the learned counsel for the petitioner is
that, even if the violation of Section 77(1) is not a corrupt practice
under Section 123(6), still the same would afford adequate ground for
declaring the election void under Section 100(1)(d)(iv), which deals
with non-compliance with the provisions of the Constitution, or of the
Representation of the People Act, or of the Rules or orders made under
the said Act. Learned counsel would submit that the 1 st respondent
failed to keep a correct account of all expenditure, thereby violating
Section 77(1) blatantly, for which reason, the election is liable to be
declared void.
46. Here, this Court notice that, unlike in the case of any
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disqualification of the candidate dealt with in Section 100(1)(a), or in
the case of a corrupt practice dealt with in Section 100(1)(b), or in a
case of improper rejection of nomination dealt under Section 100(1)(c),
for grounds under Section 100(1)(d), the election is not liable to be
declared void, unless the violation thereof has materially affected the
result of the election, insofar as the returned candidate is concerned. In
the instant case, no proof, whatsoever, has been adduced by the
petitioner in that direction. There is no pleading as well to the effect
that non-compliance of Section 77(1) had materially affected the result
of the election, leading to the success of the first respondent/returned
candidate. Going by the yardstick of proof beyond doubt, which is
expected to be adduced by an election petitioner, this Court cannot,
but find that the election petitioner has miserably failed to make
necessary pleadings, as also, to adduce evidence in this regard. In the
circumstances, the ground canvased under Section 100(1)(d)(iv) would
also crumble to the ground.
47. On the top of the above failure on the part of the election
petitioner in making necessary pleadings and adducing evidence, the
Honourable Supreme Court held in L.R. Shivaramagowda (supra) that
the failure on the part of the returned candidate to maintain accounts,
2024:KER:81633
as required in Section 77(1) and (2) will, in no case, affect, much less,
materially, the result of the election. In the circumstances, issue no.2 is
also found against the election petitioner.
48. Issue no.3
This issue pertains to the question whether the requirements of Section
83(1)(b) of the R.P Act has been satisfied in the Election Petition
preferred by the petitioner. Section 83(1)(b) mandates that an Election
Petition shall set forth full particulars of the corrupt practice alleged,
including a statement as possible of the names of the parties alleged to
have committed such corrupt practice and the date and place of
commission of each such practice.
49. This issue was urged before this Court at the preliminary stage of
the proceedings, seeking rejection of Election Petition for violation of
Section 83(1)(b). This Court passed a detailed Common Order dated
08.03.2023, wherein, other interim applications were also considered
and answered. In paragraph nos.12 to 19 of the said order, this issue
regarding violation of Section 83(1)(a) and (b) were considered, to hold
that an Election Petition is not liable to be dismissed, especially when
Section 86(1) mandating dismissal of Election Petition does not
2024:KER:81633
contemplate non-compliance of Section 83, whereas, non-compliance
of Sections 81, 82 and Section 117 have been specifically reckoned for
dismissal of the Election Petition.
50. As already referred above, the challenge carried from the Order
dated 08.03.2023 before the Honourable Supreme Court by the 1 st
respondent/returned candidate, vide Special Leave to Appeal nos.6697-
6698 of 2023 were dismissed, by Order dated 17.04.2023.
51. Although it was argued by the learned Senior Counsel for the 1st
respondent that the principles of res judicata will not bind this Court in
taking a view, different from one taken during the course of the
interlocutory proceeding, this Court is not inclined to reconsider the
issues, which have been concluded by virtue of its Order dated
08.03.2023. A few decisions have been pressed into service by the
learned counsel for the election petitioner, as also, by the learned
counsel for the 2nd respondent as regards the applicability of the
principles of res judicata as between the proceedings in two different
stages of the suit. Nonetheless, this Court is of the opinion that the
resolution of the same is not required, inasmuch as, it has already been
concluded that reconsideration of the issue is not warranted, especially
2024:KER:81633
in view of the conclusions arrived at by this Court on issue nos.1 and 2.
Issue no.3 is therefore found in favour of the election petitioner and
against the 1st respondent.
52. Issue nos.4 and 5
Issue no.4 relates to the question whether the Election Petition is so
vague, imprecise and ambiguous dis-entitling the petitioner from the
reliefs sought for. Issue no.5 pertains to the question whether a proper
cause of action has been revealed in the Election Petition, so as to
claim reliefs.
53. Both these issues can be answered together by stating that going
by the amended Election Petition, the above requirements are satisfied.
It cannot be said that the amended Election Petition is vague, imprecise
or ambiguous. Nor could be it said that the amended Election Petition
does not disclose a proper cause of action. Issues are found in favour of
the petitioner and against the 1st respondent.
54. Issue no.6
In the light of the above discussion, the election of the 1 st
respondent/returned candidate to the Kerala Legislation Assembly from
2024:KER:81633
093 Pala Constituency is not liable to be declared void.
Resultantly, this Election Petition is dismissed. The parties shall bear
their respective costs. In the peculiar facts, the cost deposited by the
election petitioner will be returned to him.
Sd/-
C.JAYACHANDRAN, JUDGE
ww/SKP
2024:KER:81633
PETITIONER'S ANNEXURES:
ANNEXURE A TRUE COPY OF CHALAN RECEIPT
NO.09/06/2021 DATED 16.06.2021 REMITTING
SECURITY AMOUNT.
ANNEXURE A1 THE TRUE COPY OF JUDGMENT IN W.P.(C)
NO.5218 OF 2012 DATED 14.01.2021
CONNECTED CASE.
ANNEXURE A2 POLICY ON ROAD SIDE ADVERTISEMENTS BY
THE INDIAN ROADS CONGRESS.
ANNEXURE A3 RELEVANT PAGES OF HANDBOOK FOR CANDIDATE
BY ELECTION COMMISSION OF INDIA.
ANNEXURE A4 REPLY DATED 14.06.2021 FROM RETURNING
OFFICER AND ENGLISH TRANSLATION.
ANNEXURE A5 REPLY DATED 07.07.2021 FROM BINDHU ALEX,
PUBLIC INFORMATION OFFICER AND JUNIOR
SUPERINTENDENT OF SECTION, COLLECTORATE,
KOTTAYAM AND ENGLISH TRANSLATION.
ANNEXURE A6 THE TRUE PHOTOSTAT COPY OF THE HAND BOOK
FOR CANDIDATES ISSUED BY THE ELECTION
COMMISSION OF INDIA PAGE NO.230-250.
ANNEXURE A7 THE TRUE PHOTOSTAT COPY OF THE
PROCEEDINGS OF THE DISTRICT ELECTION
OFFICER AND DISTRICT COLLECTOR, KOTTAYAM
DATED 10.03.2021.
2024:KER:81633
ANNEXURE A8 THE TRUE PHOTOSTAT COPY OF THE ELECTION
EXPENDITURE SUBMITTED BY THE 1ST
RESPONDENT.
ANNEXURE A9 THE TRUE PHOTOSTAT COPY OF THE ELECTION
EXPENDITURE OF THE 1ST RESPONDENT
SUBMITTED BY THE ELECTION EXPENDITURE
OBSERVER.
ANNEXURE A10 THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE RAMAPURAM GRAMA
PANCHAYATH ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 25-08-2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(a) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE KADANAD GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 07-09-2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(b) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE MELUKAVU GRAMA
PANCHAYAT ABOUT RESIDENTIAL BUILDINGS IN
EACH WARD DATED 20-09.2021 OBTAINED BY
THE PETITIONER UNDER RIGHT TO
INFORMATION ACT.
ANNEXURE A10(c) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE MOONNILAVU GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 01.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
2024:KER:81633
ANNEXURE A10(d) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE THALANADU GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 03.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(e) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE THALAPPALAM GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER
OF RESIDENTIAL BUILDINGS IN EACH WARD
DATED 22.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(f) THE TURE PHOTOSTAT COPY OF THE
INFORMATION FROM THE BHARANANGANAM GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 09.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(g) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE KAROOR GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 14.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(h) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE MUTHOLY GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 14.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
2024:KER:81633
ANNEXURE A10(i) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE PALA MUNICIPALITY
ABOUT THE NUMBER OF WARDS AND NUMBER OF
RESIDENTIAL BUILDINGS IN EACH WARD DATED
03.09.2021 OBTAINED BY THE PETITIONER
UNDER RIGHT TO INFORMATION ACT.
ANNEXURE A10(j) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE KOZHUVANAL GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 15.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(k) THE TRUE PHOTSTAT COPY OF THE
INFORMATION FROM THE ELIKKULAM GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 20.09.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ANNEXURE A10(l) THE TRUE PHOTOSTAT COPY OF THE
INFORMATION FROM THE MEENACHIL GRAMA
PANCHAYAT ABOUT THE NUMBER OF WARDS AND
NUMBER OF RESIDENTIAL BUILDINGS IN EACH
WARD DATED 24.08.2021 OBTAINED BY THE
PETITIONER UNDER RIGHT TO INFORMATION
ACT.
ADDITIONAL LIST ADDITIONAL LIST OF WITNESSES AND
ADDITIONAL LIST OF DOCUMENTS
TRANSLATION OF ENGLISH TRANSLATION OF EXHIBIT X4 AS
EXHIBIT X4 DIRECTED BY THIS HONOURABLE COURT BY
ORDER DATED 23.09.2024
2024:KER:81633
RESPONDENTS' ANNEXURES:
ANNEXURE 1 THE TRUE COPY OF THE REQUEST LETTER
DATED 19.08.2023 SUBMITTED TO THE
ADVOCATE COMMISSIONER BY SRI.M.H HANIL
KUMAR, SPECIAL GOVERNMENT PLEADER
(REVENUE), HIGH COURT OF KERALA.
ANNEXURE 2 THE TRUE COPY OF THE RECEIPT DATED
19.08.2023 ISSUED BY THE ADVOCATE
COMMISSIONER TO SMT. GEETHA KUMARI.K,
DEPUTY COLLECTOR(RR), KOTTAYAM.
ANNEXURE 3 THE TRUE COPY OF THE RECEIPT DATED
19.08.2023 ISSUED BY SRI. ROBIN M
SCARIA, HIGH COURT ASSISTANT, ELECTION
PETITION/LAA SECTION TO THE ADVOCATE
COMMISSIONER.
ANNEXURE 4 THE TRUE COPY OF THE PROCEEDINGS OF THE
ADVOCATE COMMISSIONER DATED 19.08.2023
IN THE ABOVE ELECTION PETITION.
ANNEXURE 5 DEPOSITION OF PW1.
ANNEXURE 6 DEPOSITION OF PW2.
ANNEXURE 6(A) ENGLISH TRANSLATION OF DEPOSITION OF
PW2.
ANNEXURE 7 PROCEEDINGS OF ADVOCATE COMMISIONER
DATED 23-09-2023.
ANNEXURE 8 DEPOSITION OF PW3.
2024:KER:81633
ANNEXURE 9 PROCEEDINGS OF ADVOCATE COMMISSIONER
DATED 07-10-2023.
ANNEXURE 10 DEPOSITION OF PW4.
ANNEXURE 11 THE TRUE COPY OF THE PROCEEDINGS OF THE
ADVOCATE COMMISSIONER DATED 29.04.2024
IN THE ABOVE ELECTION PETITION.
ANNEXURE 12 DEPOSITION OF PW5.
ANNEXURE 13 THE TRUE COPY OF THE PROCEEDINGS OF THE
ADVOCATE COMMISSIONER DATED 24.08.2024
IN THE ABOVE ELECTION PETITION.
ANNEXURE 14 TRUE COPY OF THE PROCEEDINGS OF THE
ADVOCATE COMMISSIONER DATED 02.09.2024
IN ELECTION PETITION NO.9 OF 2021.
ANNEXURE 15 COPY OF THE PROOF AFFIDAVIT AND
DEPOSITION OF PW6.
ANNEXURE 15(a) THE ENGLISH TRANSLATION OF DEPOSITION OF
PW6 IN ANNEXURE 15.
ANNEXURE 16 TRUE COPY OF THE PROCEEDINGS OF THE
ADVOCATE COMMISSIONER DATED 06.09.2024
IN ELECTION PETITION NO.9 OF 2021.
ANNEXURE 17 DEPOSITION OF DW1.
ANNEXURE 17 (A) THE ENGLISH TRANSLATION OF THE
DEPOSITION OF DW1.
ANNEXURE 18 TRUE COPY OF THE PROCEEDINGS OF THE
ADVOCATE COMMISSIONER DATED 20.09.2024.
