Election Petition No. 5 of 2009, In the High Court of Kerala at Ernakulam

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 El.Pet..No. 5 of 2009() ----------------------- ## PETITIONER: DR.P.POOKUNHI KOYA, AGED 60 YEARS, S/O.CHERIYA KOYA HAJI, PALLICHAPURA HOUSE, AMINI, UNION TERRITORY OF LAKSHADWEEP. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.C.S.ABDUL SAMMAD SRI.ALAN PAPALI SRI.P.K.VIJAYAMOHANAN SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. ## RESPONDENT(S): 1. MUHAMMED HAMDULLAH SAYED, MEMBER OF PARLIAMENT, S/O.LATE P.MOHAMMED SAYEED, ALIYATHAMMADA BEETHATHABIYYAPURA, ANDROTH, UNION TERRITORY OF LAKSHADWEEP, ## 2. LUKMANUL HAKEEM, S/O.SAYEED MOHAMED, MELEKUNNADOM, KAVARATHI, UNION TERRITORY OF LAKSHADWEEP, ## 3. DR.K.P.MUTHU KOYA, S/O.ABOOBACKER KUNJI, KATTAMPALLY, KAVARATHI, UNION TERRITORY OF LAKSHADWEEP. ADV. SRI.P.CHANDRASEKHAR FOR R1 SRI.P.S.SREEDHARAN PILLAI FOR R3 SMT.C.G.PREETHA FOR R3 SRI.P.M.MOHAMMED SHIRAZ FOR R1 THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON 17/05/2010 DELIVERED THE FOLLOWING: ## APPENDIX ## E.P.NO.5 OF 2009 ## PETITIONER'S EXHIBITS - ANNEXURE I : TRUE COPY OF THE GAZETTE NOTIFICATION REGARDING THE AMENDMENT BROUGHT TO THE CONSTITUTION (SCHEDULE TRIBES) (UNION TERRITORIES) ORDER (AMENDMENT) ACT,2008 PUBLISHED IN THE LAKSHADWEEP GAZETTE DATED 31.01.2009. - ANNEXURE II : TRUE COPY OF THE ORDER NO.7/1/1998-80/ADM (VOL.II) DATED 3.02.2009 ISSUED BY THE ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP, KAVARATHI. - ANNEXURE III : TRUE COPY OF THE CERTIFICATE OF BIRTH OF THE 1ST RESPONDENT ISSUED BY THE GOVERNMENT OF KARNATAKA DATED 18.01.1996. - ANNEXURE IV : TRUE COPY OF THE CASTE CERTIFICATE ISSUED IN RESPECT OF THE 1ST RESPONDENT NO.15/3/2008 SDO (AND)416 DATED 03.02.2009. - ANNEXURE V : TRUE COPY OF THE REPORT APPEARED IN THE MAIL TODAY DATED 26.12.2008. - ANNEXURE VI : TRUE COPY OF THE PHOTOGRAPH SHOWING THE HON'BLE MINISTER DISPLAYING THE CERTIFICATE IN THE BACKGROUND OF THE PROJECTION OF THE PHOTOGRAPH OF LATE P.M.SAYEED. - ANNEXURE VII : TUE COPY OF THE OFFICE ORDER NO.2/04/2007 SERVICES ISSUED BY THE DIRECTOR (SERVICES) ADMINISTRATION OF LAKSHADWEEP DATED 1.02.2009. - ANNEXURE VIII : TRUE COPY OF THE SCHEDULE SHOWING THE NAMES AND ADDRESS OF THE OFFICIALS WHO ATTENDED THE MEETING OF THE LAKSHADWEEP PARISHATH CONGRESS AND THE PERSONS WHO WITNESSED THE SAME. - ANNEXURE IX : TRUE COPY OF THE LETTER GIVEN BY THE PRESIDENT N.C.P. LAKSHADWEEP STATE UNIT TO THE HON'BLE MINISTER OF HOME AFFAIRS, NEW ## DELHI DATED 09.02.2009. - ANNEXURE X : TRUE COPY OF THE SCHEDULE SHOWING THE NAME AND ADDRESS OF GOVERNMENT OFFICIALS WHO HAVE CONSPIRED FOR CANVASSING VOTES FOR THE FIRST RESPONDENT. - ANNEXURE XI : TRUE COPY OF THE LETTER ADDRESSED BY THE GENERAL SECRETARY OF THE NCP TO THE ELECTORAL OFFICER DATED 10.02.2009. ## ANNEXURE XII - : TRUE COPY OF THE LAKSHADWEEP TIMES DATED 13.02.2009 REPORTING THE NEWS REGARDING THE FUNCTION ORGANISED BY THE LAKSHADWEEP EMPLOYEES PARISHATH. ## ANNEXURE XIII - : PHOTOGRAPH OF THE EFFIGY OF THE PETITIONER EXHIBITED AT AGATTI. - ANNEXURE XIV : TRUE COPY OF THE PETITION DEED 05.04.2009 SUBMITTED BY SRI.ABOOBACKER KONDINODA BEFORE THE POLICE OFFICIALS. - ANNEXURE XIV(A) : TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE XIV. - ANNEXURE XV : SCHEDULE SHOWING THE PLACES WHERE THE EFFIGY OF THE PETITIONER WAS EXHIBITED IN THE ISLANDS AND THE NAME AND ADDRESSES OF THE PERSONS DISPLAYED THE SAME AND WHO HAVE WITNESSED THE SAME. - ANNEXURE XVI : COPY of the PHOTOGRAPH OF SRI.LATE P.M.SAYEED THE FATHER OF THE 1ST RESPONDENT WITH THE BACKGROUND OF THE MOSQUE IN MECCA. - ANNEXURE XVII : TRUE COPY OF THE SCHEDULE SHOWING THE PLACE, DATE AND TIME OF EXHIBITING AND DISTRIBUTION OF COPIES OF ANNEXURE XVI. - ANNEXURE XVIII : TRUE COPY OF THE ANONYMOUS NOTICE PUBLISHED AT THE INSTANCE OF THE 1ST RESPONDENT. ANNEXURE XVIII(A): TRUE ENGLISH TRANSLATION OF ANNEXURE XVIII - ANNEXURE XIX : TRUE COPY OF THE SCHEDULE SHOWING ## THE PLACE, DATE AND TIME OF THE DISTRIBUTION OF ANNEXURE XVIII AND NAME AND ADDRESS OF THE PERSONS DISTRIBUTED AND WITNESSED. - ANNEXURE XX : TRUE COPY OF THE COMPLAINT GIVEN BY K.P.ALI ON 16.04.2009 TO THE CHIEF ELECTORAL OFFICER. - ANNEXURE XXI : COPY OF THE PHOTOGRAPH SHOWING THE PAYMENT OF MONEY BY A CONSTABLE MUHAMMED UBAIDULLA OUTSIDE THE HOUSE OWNED BY MUTHUKOYA HAJI TO A VOTER. - ANNEXURE XXI(a) : TRUE COPY OF THE CD SHOWING THE TRANSACTIONS ON PAYMENT OF MONEY TO THE VOTERS. - ANNEXURE XXII : TRUE COPY OF THE LETTER GIVEN TO THE CHIEF ELECTORAL OFFICER BY T.P.ABDUL RAZACK UNIT SECRETARY OF THE NCP KAVARATHI DATED 21.03.2009. - ANNEXURE XXIII : TRUE COPY OF THE LETTER GIVEN BY T.P.ABDUL RAZACK TO THE CHIEF ELECTORAL OFFICER KAVARATHI DATED 23.03.2009. - ANNEXURE XXIV : TRUE COPY OF THE LETTER GIVEN BY T.P.ABDUL RAZACK TO THE CHIEF ELECTORAL OFFICER, KAVARATHI DATED 25.03.2009. - ANNEXURE XXV : TRUE COPY OF THE COMMUNICATION NO.16/41/2009-ELC DATED 10.4.2009 OF THE ELECTORAL REGISTRATION OFFICER TO THE SHO KAVARATHI. - ANNEXURE XXVI : TRUE COPY OF THE LIST OF NOMINATIONS DATED 27.03.2009 PUBLISHED BY THE RETURNING OFFICER. - ANNEXURE XXVII : TRUE COPY OF THE LIST OF CONTESTING CANDIDATES DATED 02.04.2009 PUBLISHED BY THE RETURNING OFFICER. ## V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Election Petition No. 5 of 2009 * * * * * * * * * * * * * * * * * * Dated: 17[th] day of May, 2010 ## JUDGMENT In this petition filed under Secs. 80, 100, 101, 123 and 127 A of the Representation of the People Act, 1951 (hereinafter referred to as “the R.P. Act” for short) , the petitioner (Dr. Pookkunhi Koya) challenges the election of the Ist respondent herein (Muhammed Hamdullah Sayeed) from the U 06 Lakshadweep Parliamentary Constituency (reserved for Scheduled Tribe ) in the Parliamentary election held on 16-42009 and the result of which was declared on 16-5-2009. The petitioner was a candidate and nominee of the political party called National Congress Party. The first respondent returned candidate contested the election as a candidate of the Indian National Congress. The other two contestants were respondents 2 and 3 (Lukmanual Hakeem and Dr. K.P. Muthu Koya). The 2[nd] respondent was the candidate and nominee of the Communist Party of India (Marxist Party) [“the C.P.I.(M)” for short] and the 3[rd] respondent was the nominee of the -:2:- Election Petition No. 5 of 2009 ## Bharathiya Janatha Party [“the B.J.P.“ for short]. 2. The dates which are relevant for the purpose of this ## election petition are the following:- |**1**|Date of Election Notification|23-03-2009| |---|---|---| |2|Last date for filing nomination|30-03-2009| |3|Date of scrutiny|31-03-2009| |4|Last Date for withdrawal of Nomination|02/04/2009| |5|Date of publication of final list of candidates|02/04/2009| |6|Date of election|16-04-2009| |7|Number of candidates contested|4| |8|Date of declaration of election results|16-05-2009| |9|Last date for filing E.P. U/s. 81(1) of the R.P.Act|30-06-2009| |10|E.P. filed on|30-06-2009| |11|Summons issued to the respondents on|17-07-2009| |12|R1 entered appearance on|07/09/2009| ## 3. The number of votes secured by the petitioner and ## respondents 1 to 3 are as follows:- |**Sl.No.**|**_Candidate's Name_**|**_Candidate's Rank_**<br>**_in the E.P._**|**_Votes_**<br>**_secured_**| |---|---|---|---| |1|Dr. P. Pookunhikoya|Petitioner|18294| |2|Muhammed Hamdullah Sayed|Ist respondent|20492| |3|Lukmanual Hakeem|2ndrespondent|467| |4|Dr.K.P. Muthu Koya|3rdrespondent|245| 4. According to the petitioner the election of the first ## respondent is vitiated by the following grounds:- 1) On the date of election the first respondent was not qualified to be chosen to fill the seat thereby attracting Section 100 (1) (a) of the R.P. Act -:3:- Election Petition No. 5 of 2009 2) The first respondent has won the election on account of the following “corrupt practices “ committed by him, his election agent and other persons with the consent of the first respondent and falling under Sec. 100 (1) (b) of the R.P.Act:- - a) By offering gratification to the electors amounting to “bribery” under Section 123 (1) A - b) By directly or indirectly interfering with the free exercise of their electoral right by the voters amounting to “undue influence” under Section 123 (2) . - c) By appealing to the voters on the ground of religion and using religious symbols falling under Section 123 (3) - d) By publishing false statements in relation to the personal character and conduct of the petitioner concerning his candidature and calculated to prejudice the prospects of the petitioner in the election falling under Sec. 123 (4). - e) By procuring the services of Government servants for the furtherance of the election prospects of the first respondent falling under Sec. 123 (7) . - 3) Non-compliance of the provisions of the Constitution of -:4:- Election Petition No. 5 of 2009 India, R.P. Act and rules and orders issued under the R.P. Act constituting a ground under Sec. 100 (1) (b) (iv). 5. Adv. M/s. P. Chandrasekhar and P.M. Mohammed Shiraz the learned counsel appearing for the first respondent argued that the election petition was liable to be dismissed for want of specific pleading in terms of the legal provisions relied on by the petitioner and that election petition does not make out a complete cause of action so as to maintain the election petition. Sr. Advocate Sri. M.K. Damodaran appearing for the petitioner, on the other hand, submitted that the election petition has pleaded the “material facts “ as well as the “full particulars” with regard to each and every allegation and that the arguments advanced on behalf of the first respondent are unsustainable. 6. The point for consideration is as to whether the Election Petition is liable to be rejected/dismissed as not maintainable at the threshold for want of necessary pleadings and a complete cause of action: **7. The point:** After hearing both sides and after carefully perusing the averments in the Election Petition and after considering the case law on the point I am inclined to accept the contentions urged on behalf of the first respondent. -:5:- Election Petition No. 5 of 2009 8. The legal principles given below are now well settled and they do not admit of any doubt or controversy :- A. An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the court possesses no common law power. (Jagan Nath v. Jaswanth Singh and Others - AIR 1954 SC 2010 ; Ch. Subbarao v. Member, Election Tribunal - AIR 1964 SC 1027). ) . B. 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. [Vide Jagan Nath's case (supra)]. C. The purity of the election process has to be safeguarded . The setting aside of an election involves serious consequences not only for the returned candidate and the constituency but also for the public at large in as much as a re-election involves enormous load on the public funds and the administration. (Shivajirao B Patil Kawekar v. Vilasarao D Deshmukh - 2000 (1) SCC 398). D) The trial of an election petition where “corrupt practice” is alleged is of a quasi criminal nature . A heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge. This is because the charge that a person has committed a corrupt practice has the serious consequence of disqualifying -:6:- Election Petition No. 5 of 2009 him from being chosen as, or from being a member of any House of the Parliament or of the Legislative Assembly or Council of a State for a period up to 6 years. (See Manohar Joshy v. Damodar Tatyaba - (1991) 2 SCC 342, 351; Nand Singh v. Ajit Inder Singh - JT (2000)10 SC 531 ; Anang Uday Singh Deo v. Rangnath Mishra and Others JT (2001) 8 SC 574. ; Jeet Mohinder Singh v,. Paraminder Singh Jassi - (1999) 9 SCC 386. E. The provisions of Sec. 87 of the R.P. Act specifically enjoin that every Election Petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the C.P.C. for the trial of suits. Merely because Section 83 does not find a place in Sec. 86 (1) which enables the High Court to dismiss an Election Petition for non-compliance with the provisions of Section 81, 82 or 117, it does not mean that the powers under the C.P.C. cannot be exercised to dismiss or reject the Election Petition. Under the C.P.C. the Court has the power to act at the threshold and the said power must be exercised in appropriate cases. In regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy should be set at rest at the earliest, if the facts of the case and the law so warrant. In a case where the election petition is lacking in any essential “material fact”, the petition can be dismissed summarily. (Vide Azhar Hussain v. Rajiv Gandhi - AIR 1986 SC 1253). If the election petition does not disclose a cause of action, eventhough noncompliance of Section 83 of the R.P. Act is not a ground -:7:- Election Petition No. 5 of 2009 mentioned in Section 86, the High Court can fall back upon the provisions of the C.P.C. and reject the petition under Order VII Rule 11 C.PC. (See Lalit Kishore Chaturvedi v. Jagdish Prasad Thada - 1990 (Supp) SCC 248; Virender Nath Gautam v. Satpal Singh - (2007) 3 SCC 617. The Court can under Order VI Rule 15 C.P.C. strike out the pleadings in an election petition which does not disclose any cause of action. If after striking out the pleadings no triable issue remains to be considered , the Court can reject the petition under Order VII Rule 11 C.P.C. (Dhartipukar Madan Lal Agarwal v. Shri Rajiv Gandhi - AIR 1987 SC 1577; Surinder Singh v. Mardial Singh - 1985 (1) SCC 91). F. The distinction between “material facts” and “ full particulars” should not be overlooked. “Material facts” are primary or basic facts which must be pleaded by the party in support of the case set up by him either to prove his cause of action or his defence. “Particulars” on the other hand are details in support of “material facts” pleaded by the party. They amplify, refine and embellish “material facts” by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative (See Mahadeorao Sukaji v. Ramaratan Bapsu - (2004) 7 SCC 181. All facts which are essential to clothe the petitioner with a complete cause of action are material facts (See paragraph 15 of V.S. Achuthanandan v. Francis - (1999) 3 SCC 737). Material facts and particulars together constitute the facts to be proved or “facta probanda”. It is different from the evidence by which those facts are to be -:8:- Election Petition No. 5 of 2009 proved viz., “facta probantia” . (Para 38 of Chinna Swamy v. Palani Swamy - (2004) 6 SCC 341); Virender nath Gautam v. Satpal Singh and Others (2007) 3 SCC 617. While failure to plead material facts is fatal to the Election Petition and no amendment of the pleadings can be allowed to introduce such “material facts” after the expiry of the time limit prescribed for filing the Election Petition. The absence of “full particulars” can be cured at a later stage by introducing the same through appropriate amendment ( L.R. Shivaramagowda v. T.M. Chandrasekhar - (1999) 1 SCC 666; A Sapna v. Singora (1991) 3 SCC 375 ; Gajanan Krishnaji Bapat v.Dattaji Raghobaji Meghe - (1995) 5 SCC 347) G. Concise and specific pleadings setting out all the relevant material facts is indispensable in an election petition since, the election petition if allowed, nullifies the success of a candidate and is, therefore, a serious remedy. An election petition must therefore precisely allege all material facts on which the petitioner relies on in support of a plea that the result of the election has been materially affected on account of the conduct of the opposite party. [Para 15 of Santhosh Yadav v. Narender Singh - (2002) 1 SCC 160.] Concise statement of material facts means the entire bundle of facts which would constitute a complete cause of action. (Para 77 of Har Kirat Singh v. Amarinder Singh - (2005) 13 SCC 551). H. Pleadings which are vague are liable to be struck off under Order VI Rule 16 C.P.C. R.P. Act is a complete and -:9:- Election Petition No. 5 of 2009 self contained Code . The election petitioner should not be permitted to have a fishing expedition or a roving enquiry without the requisite pleadings. (Madhava Kurup v. Muraleedharan - 1990 (2) KLT 112; Azhar Hussain v. Rajiv Gandhi - AIR 1986 SC 1253). I. Order VIII Rule 5 C.P.C. is not applicable to an election petition (Dr. Jagjit Singh v. G.K. Singh - AIR 1966 SC 773). But Order VIII Rules 1, 8 and 9 as judicially interpreted are applicable to election trials (Kailash v. Nanhku - (2005) 4 SCC 480. J. Where the Court finds that neither the material facts nor the full particulars are stated in the election petition , the petition can be dismissed for not disclosing the cause of action. (Para 21 of Subash Desai v. Sarad Rao - AIR 1994 SC 2277). An election petition can be dismissed summarily if it does not disclose any cause of action (Abraham Kriakose v. P.T. Thomas - 1991 (2) KLT 650). Election Petition alleging corrupt practice is liable to be dismissed if there is omission to state material facts or give full particulars. (Subash Desai v. Sharad J. Rao - AIR 1994 SC 2277). K . Omission of a single material fact leads to incomplete cause of action and the statement of claims becomes bad. (Vide S.N. Balakrishna v. George Fernandez - AIR 1969 SC 1201). Failure to plead a single material fact is fatal (Azhar Hussain v. Rajiv Gandhi - AIR 1986 SC 1253). L. To enable the Court to reject an election petition for -:10:- Election Petition No. 5 of 2009 non disclosure of cause of action , the election petition alone should be looked into and it is the duty of the Court to do so without a written statement by the opposite party. (Para 24 of Hari Shankar Jain v. Sonia Gandhi - (2001) 8 SCC 233). M. In stating the “material facts”, merely quoting the words of the Section is not sufficient. The facts which constitute the corrupt practice must be stated and the facts must be co-related to one of the heads of corrupt practice. (S.N. Balakrishna's case - supra). N. Section 100 of the R.P. Act enumerates the grounds for declaring an election to be void by the High Court. “Corrupt practice” which is elaborately defined under Sec. 123 of the R.P. Act is a ground under Sec. 100 of the R.P. Act. Clause (1) (b) of Section 100 constitutes the ground for declaring an election to be void on the ground of “corrupt practice” if such corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. O. The entirety of averments that the publication was made by the returned candidate or his election agent or by any other person with the consent of the candidate or his election agent of any statement of fact which is false, which he either believes to be false or does not believe to be true in relation to the personal character or conduct of the candidate, would constitute “material facts”. (Ravinder Singh v. Jarmeja Singh - AIR 2000 SC 3026). -:11:- Election Petition No. 5 of 2009 Mere proof of corrupt practice by an agent other than the returned candidate's election agent is not sufficient. It should further be shown that such corrupt practice has materially affected the result of the election in so far as it concerns the returned candidate. [Section 100 (1) (d)]. Where the above aspect is not pleaded the election petitioner cannot be permitted to adduce evidence to that effect. [Shivaramagowda's case (supra)]. P. A “statement of fact” for the purpose of Section 123 (4) can only be a past event capable of being proved to be false and cannot be a hypothetical future apprehension or the conjecture of a likelihood in future . (Gadak's case - AIR 1994 SC 678). Q. If a false statement is made in regard to a public or political character of the candidate, it would not constitute corrupt practice under Sec. 123 (4) of the R.P.Act. (Lalit Kishore Chaturvedi v. Jadish Prasad - (1990) Supp. SCC 248; K. Yaswant Rao v. Vikhe Patil - AIR 1994 SC 678). R. Consent is the life line to link up the candidate with the action of the other person. Without such consent it may not amount to corrupt practice. Hence, such consent should be specifically pleaded and proved. (Para 20 of Azhar Hussain's case) (supra). S. It is the candidate's belief which matters under Section 123 (4) of the R.P. Act (Paras 42 and 43 of S.N. Balakrishna's case (supra). -:12:- Election Petition No. 5 of 2009 T. Failure to prove that the impugned statement of fact is not only false but also that the respondent returned candidate and his agents publishing the impugned statement s either believed the statement to be false or did not believe them to be true, is fatal and the impugned statement will not fall within the mischief of Sec. 123 (4) of the R.P. Act (Mangilal v. Krishnaji Rao - AIR 1971 SC 1943). Thus, the belief of the candidate that the statement is false or is not true is a “material fact “ which has to be pleaded and proved and omission to plead the above material fact is fatal to the election petition. (See Sheonath Singh v. Ram Pratap- AIR 1965 SC 677, paragraph 17 of Kumara Nand v. Brijmohan Lal Sharma - AIR 1967 SC 808, paragraphs 20 and 21 of Raghunath Singh v. Krishna Chandra Sharma - AIR 1971 SC 1839, paragraph 19 of Dr. Jagjit Singh v. Giani Kartar Singh and Others - AIR 1966 SC 773 and paragraph 7 of Ravinder Singh v. Janmeja Singh and Others - AIR 2000 SC 3026). U. For non - disclosure of cause of action the Court has the power to reject the petition at any stage and starting of trial or settlement of issues is no bar to the exercise of the above power. (K.K. Somanathan v. K.K. Ramachandran Master - AIR 1988 Kerala 259). V. For a person to be considered as an agent of a particular candidate, such person should have been employed by the candidate in connection with the election. -:13:- Election Petition No. 5 of 2009 Employment is essential for his being treated as an agent. The mere fact that some persons assist a candidate or that they support him does not by itself make them his agents. (Gervasis v. Augustine - 1971 KLT (SN) 51 and Suresh Babu v. Baby John - 1983 KLT (SN) 6. W. The word “appeal” to constitute a corrupt practice under Section 123 (3) and (3A) should be an appeal to the religion of the returned candidate . The necessary ingredient is the presence of religious hatred dividing two or more religious communities using the religion of the returned candidate. [Para 12 of Zaiudheen Bukhari v. Brij Mohan Ramdas - (1976) 2 SCC 17.] X. Mere appeal to religion is no corrupt practice. It becomes a corrupt practice only if there is appeal on the ground of the religion of the candidate . (Paras 11, 13 and 16 of Dr. Yashwant Prabhu v. P.K. Kunte - AIR 1986 SC 1113). y. An appeal on the ground of religion must be by the candidate or his election agent . If it is by any other person consent must be specifically alleged with full details. A bald and omnibus statement of consent of the candidate or his election agent will not serve the purpose of law. On a bald statement regarding consent the petitioner cannot be allowed to shape his plea and let in evidence at the time of trial. (Paras 14 to 16 of Balan v. Manoharan Master - 1988 (1) KLT 717. -:14:- Election Petition No. 5 of 2009 Z. Necessary averment of facts constituting an appeal on the ground of “his religion” to vote or to refrain from voting is a material fact - (Para 14 of H.S. Pradhan v. R.S. Talwandi - AIR 2005 SC 2371) . AA. Acts done prior to nomination cannot fall under “corrupt practice”. In a case alleging “corrupt practice” the petitioner cannot succeed by throwing suspicion here and there. (Thamarakshan v. Ramesh Chennithala - 1988 (2) KLT (SN) 3. AB. Electoral role is conclusive evidence of the fact that the candidate is an ordinary resident of the constituency . Entry in the electoral role is beyond challenge in a election petition unless there is an allegation of disqualification under Section 16 of the Representation of the People Act, 1950. (Paras 9 to 15 of Babu Rao v. Manick Rao - AIR 1999 SC 2028). AC. In order to become a Scheduled Caste candidate of the relevant district it is not necessary that he should have been born in that District. (Beny Prasad v. Narbada Prasad - (1997) 9 SCC 631). AD. Allegation of corrupt practice relating to the period anterior to the date of nomination of the candidate would not constitute allegation of corrupt practice and, therefore, must be excluded from consideration. ( Mohan Rawale v. Damodar Tatyaba - -:15:- Election Petition No. 5 of 2009 (1994) 2 SCC 392). 9. Bearing in mind the above legal principles judicially settled, I now proceed to consider whether there are sufficient pleadings in the election petition to make out all or any of the grounds put forward by the petitioner . The relevant pleadings made in the Election Petition in support of the grounds are considered in the following tabular statement:- |**Sl.No.**|**Material Facts as stated in the**<br>**Election Petition**|**Paragraph**<br>**No. in the**<br>**Election**<br>**Petition**|**Reasons as to why no cause**<br>**of action is made out**| |---|---|---|---| |**1**|_Officials of Lakshadweep_<br>_administration exerted undue_<br>_influence , canvassed votes in_<br>_favour of 1st respondent with the_<br>_active involvement and connivance_<br>_of the 1st respondent, his agents and_<br>_workers to see that the Ist_<br>_Respondent became the candidate of_<br>_the Indian National Congress to the_<br>_election to the Lok Sabha from U06_<br>_Lakshadweep_<br>_Parliamentary_<br>_constituency _<br>_to be held on_<br>_16.4.2009 and also got elected_|**_Para 4_**|_These averments do not_<br>_constitute material facts._<br>_These avements do not fall_<br>_under any of the grounds in_<br>_Section 100 of the R.P.Act._| -:16:- Election Petition No. 5 of 2009 |**2**|_The 1st respondent was never born_<br>_and brought up in the Union_<br>_Territory of Lakshadweep. The_<br>_Society_<br>_and_<br>_residents_<br>_of_<br>_Lakshadweep never accepted the 1st_<br>_respondent as a member of_<br>_Lakshadweep Scheduled Tribe._|**_Para 4_**|_For a candidate to become_<br>_a member of Lakshadweep_<br>_Scheduled Tribe, it is not_<br>_necessary that he should be_<br>_born in Lakshadweep. It_<br>_is also not necessary for a_<br>_candidate to be accepted by_<br>_the society and residents of_<br>_the Lakshadweep as a_<br>_member of Lakshadweep_<br>_Scheduled Tribe. These_<br>_averments therefore do not_<br>_constitute material facts or_<br>_a cause of action for the_<br>_election petition._| |---|---|---|---| |**3**|_There was a concerted effort on_<br>_the part of the officials with the_<br>_connivance of the 1st respondent, his_<br>_agents and workers to make the 1st_<br>_respondent a Schedule Tribe so as_<br>_to become eligible to contest the_<br>_election from the Lakshadweep_<br>_Constituency reserved for Scheduled_<br>_Tribe._|**_Para 4_**|_These averments do not_<br>_constitute material facts as_<br>_they do not relate to any of_<br>_the grounds in Section 100 of_<br>_the R.P.Act These averments_<br>_also do not give rise to any_<br>_cause of action as the_<br>_averments are vague and_<br>_incomplete (See Para 18 of_<br>**_AIR 1986 SC 1253)._**| |**4**|_The corrupt practices originated_<br>_from conspiracy hatched out_<br>_between the 1st respondent and_<br>_certain officials of the Lakshadweep_<br>_Administration to manipulate the_<br>_voters list and facilitate the 1st_<br>_respondent (who otherwise was not_<br>_qualified to contest the election) to_<br>_contest the election, and to secure_<br>_success in the election._|**_Para 5_**|_These averments do not_<br>_constitute material facts and_<br>_do not give rise to any cause_<br>_of action. These averments do_<br>_not fall under any of the_<br>_grounds in Section 100 of the_<br>_R.P.Act ._| -:17:- Election Petition No. 5 of 2009 - **5** _The 1[st] respondent was never born_ _**Para 5** These averments do not and brought up in the Lakshadweep constitute material facts and island as a member of the local do not give rise to any cause of Scheduled Tribe. Going by the action. As per the Constitution provisions of the Constitution (Schedule Tribes) (Union (Scheduled Tribes) (Union Territories) Order, 1951 Territories) Order, 1951, only the relating to Lakshadweep, children who are born to the children born to inhabitants of inhabitants of Lakshadweep in the Lakshadweep are members of territory of the Lakshadweep alone Scheduled Tribe of were entitled to have the status of Lakshadweep. As per Sec. 2 Scheduled Tribe. It was by an of the Constitution (Scheduled amendment to the Constitution Tribes) (Union Territories) (Schedule Tribes) (Union Order (Amendment) Act, 2008, Territories) Order 1951 by the the Constitution (Scheduled Amendment Act, 2008 published in Tribes) (Union Territories) the Lakshadweep Gazette dated Order, 1951 was amended by 31.1.2009 by way of proviso to the incorporating a proviso and order it was laid down that the an Explanation to the children who are born to inhabitants Schedule of the 1951 Order of Lakshadweep in any other place by providing that children in the Mainland of Indiashall be who are born to inhabitants of deemed to be inhabitants born in the Lakshadweep in any other Island if such children settle place in the mainland of India permanently in the islands. The 1[st] shall be deemed to be respondent was born at Mysore and inhabitants born in the island was brought up at Mumbai and if such children settle Delhi and never settled in the permanently in the islands. territories of the island. However, it As per the Explanation was by abuse of the process and inserted it was provided that authority , the 1[st] respondent was the term “settle permanently” issued with a Scheduled Tribe will have the same meaning as Certificate certifying to be a defined under Clause 3(1) (d) member of the Schedule Tribe and of the Lakshadweep he was allowed to submit Panchayaths Regulation, nomination. 1994. Clause 3 (1)(d) of the aforesaid Panchayaths Regulation explains by a deeming provision the expression “ordinarily resident” to mean_ -:18:- Election Petition No. 5 of 2009 a person who has been ordinarily residing in such island or is in possession of a dwelling house therein ready for occupation. There is no averment in the petition that the 1[st] respondent is not in possession of any dwelling house in Lakshadweep ready for occupation or that he is not born to inhabitants of Lakshadweep. Although they are Muslims, professing Islam, the people of Lakshadweep belong to the Scheduled Tribe . In Para 6 of the E.P. it is admitted that R1 is the son of late P.M. Sayeed who had been representing Lakshadweep in the Parliament and was a Minister in the Centre. A child in India is presumed to have his father's religion and corresponding civil and social status. (See para 23 of Commissioner of **Wealth Tax v. Sridharan - ( 1976 ) 4** **SCC 489; Sobha Hymavathi Devi v. Setti Gangadhara Swami - AIR 2005 SC 800).** For that reason also the caste certificate of the Ist respondent is beyond challenge. - **6** _It was by abuse of process of the authority that the 1[st] respondent was favoured with a Schedule Tribe Certificate certifying him to be a member of the Schedule Tribe and he was allowed to submit nomination._ - _**Para 5** These averments are totally vague and do not constitute a cause of action. These averments do not fall under any of the grounds in Section 100 of the R.P.Act._ -:19:- Election Petition No. 5 of 2009 |**7**|_It is out of conspiracy by the 1st_<br>_respondent with the officials of the_<br>_Lakshadweep Administration with_<br>_the active connivance of the Union_<br>_Government, the amendment order_<br>_was issued enabling the 1st_<br>_respondent to obtain a Schedule_<br>_Tribe Caste Certificate. The_<br>_participants in the conspiracy to_<br>_enable the 1st respondent to obtain_<br>_the Cast Certificate and facilitate_<br>_his contest in the election were_<br>_Sri.T. Kassim and Sri.I.C.Pookoya,_<br>_Sub Divisional Officers and the_<br>_Settlement Officer Sri.Lal Singh. Sri._<br>_Lal Singh was the Returning Officer_<br>_and Sri. T. Kasim and I.C. Pookoya_<br>_were the Assistant Election_<br>_Registration Officers for Kavarati_<br>_and Androth respectively. The_<br>_agents of the Ist respondent who_<br>_have organized the election of the_<br>_Ist respondent as a programme of_<br>_the Union Government and the_<br>_administration by involving the_<br>_Government Officials in all the_<br>_stages of the election programme_<br>_were Sri.U Cheriyakoya Thangal,_<br>_Chairman of the Vakaf Board, who_<br>_was formerly the Chief Executive_<br>_Councilor of the District Panchayat_<br>_and Shri .Ahmed Haji, Vice_<br>_President of Lakshadweep Congress_<br>_Committee and Chairman of Village_<br>_Dweep Panchayat Kavaratti._|**_Para 6_**|_The averments do not_<br>_constitute any cause of action._<br>_These are not material facts_<br>_relating to any of the grounds_<br>_in Section 100 of the_<br>_R.P.Act.The _<br>_Constitution_<br>_(Scheduled Tribes) (Union_<br>_Territories)_<br>_Order_<br>_(Amendment) Act, 2008 is an_<br>_Act of Parliament after_<br>_receiving the assent of the_<br>_President. The said Act is an_<br>_amendment to the Presidential_<br>_Order of 1951. It is a piece of_<br>_legislation. Mala fides or_<br>_extraneous motive cannot be_<br>_attributed to the legislature._<br>_Even transferred malice is_<br>_unknown in the field of_<br>_legislation. _**_(K. Nagaraj v._**<br>**_State of A.P. - AIR 1985 SC_**<br>**_551 ; Para 12 of G.C._**<br>**_Kanungo v. State of Orissa_**<br>**_AIR 1995 SC 1655 &.Para_**<br>**_40 of State of Kerala and_**<br>**_Another v. People's Union for_**<br>**_Civil Liberties Kerala State_**<br>**_Union and Others - (2009) 8_**<br>**_SCC 46)._**| |---|---|---|---| - **7** _It is out of conspiracy by the 1[st] respondent with the officials of the Lakshadweep Administration with the active connivance of the Union Government, the amendment order was issued enabling the 1[st] respondent to obtain a Schedule Tribe Caste Certificate. The_ -:20:- Election Petition No. 5 of 2009 |**8**|_The 1st respondent is son of Late_<br>_P.M.Sayeed, who had been_<br>_representing the Lakshadweep in the_<br>_Parliament and was a Minister in_<br>_the Centre. It was to facilitate the_<br>_1st respondent to succeed his father_<br>_a conspiracy was held at the_<br>_instance of the 1st respondent and_<br>_official of the Union of India at_<br>_Ministry of Law and Justice to_<br>_amend the Constitution Order in_<br>_respect of Lakshadweep conferring_<br>_Schedule Tribe Status to the_<br>_children who are born in main_<br>_landof India as well. By a_<br>_Presidential order no fresh caste_<br>_status can be conferred on a citizen._<br>_Otherwise, the 1st respondent could_<br>_not have got the eligibility to contest_<br>_in the election. In the caste_<br>_certificate issued to the 1st_<br>_respondent also, it is not mentioned_<br>_he is permanently settled in the_<br>_Island but only recites that his_<br>_family ordinarily resides in_<br>_Lakshadweep._|**_Para 6_**|_These averments do not_<br>_constitute any cause of action_<br>_nor do they constitute_<br>_material facts. They are not_<br>_related to any specific ground_<br>_under section 100 of the_<br>_R.P.Act. Merely because the_<br>_first respondent could take_<br>_advantage of the 2008_<br>_Amendment_<br>_to_<br>_the_<br>_Presidential Order, it cannot_<br>_be said that the said_<br>_amendment was brought_<br>_forth in pursuance of a_<br>_conspiracy involving the_<br>_officials of the Union of India_<br>_and the Ministry of Law and_<br>_Justice. As already stated,_<br>_by virtue of the Explanation_<br>_added to _<br>_the 2008_<br>_Amendment_<br>_of_<br>_the_<br>_Presidential Order of 1951,_<br>_the expression_<br>_“settle permanently” will_<br>_have to be understood as_<br>_“ordinarily resident” as_<br>_explained by clause 3 (1) (d)_<br>_of_<br>_the_<br>_Lakshadweep_<br>_Panchayaths_<br>_Regulation,_<br>_1994. A person can be said_<br>_to be ordinarily residing in_<br>_the Island if he is in_<br>_possession of a dwelling_<br>_house therein ready for_<br>_occupation. The petitioner_<br>_has no case that the first_<br>_respondent has no dwelling_<br>_house ready for occupation in_<br>_the island._| |---|---|---|---| -:21:- Election Petition No. 5 of 2009 |**9**|_The 1st respondent submitted an_<br>_application for caste certificate_<br>_which was processed against the_<br>_directions in the Order issued by the_<br>_Administrator to be followed in_<br>_issuing Scheduled Caste Certificate._<br>_The issuance of the Certificate was_<br>_in a public function held at Androth._<br>_In fact, this was an official function_<br>_by the Administration organised to_<br>_announce the entrance of the 1st_<br>_respondent to the Parliamentary_<br>_election. The abuse of the official_<br>_machinery started with the_<br>_manipulation of the electoral rolls_<br>_by inducting even minors and_<br>_beyond the time limit stipulated for_<br>_finalisation of the electoral rolls._|**_Para 7_**|_These averments do not_<br>_constitute material facts or_<br>_cause of action. They do not_<br>_fall under any of the_<br>_grounds under Section 100 of_<br>_the R.P.Act._| |---|---|---|---| |**10**|_In fulfilment of the conspiracy an_<br>_Act was brought into force to amend_<br>_the Schedule Tribes Union_<br>_Territories _<br>_Order 1951 by_<br>_Amendment Act 2008 which_<br>_received assent of President on_<br>_07.1.2009. It was published in_<br>_Official Gazette of Lakshadweep_<br>_dated 31.1.2009._|**_Para 8_**|_These averments do not_<br>_constitute any material facts_<br>_and do not fall under any of_<br>_the grounds under Section_<br>_100 of R.P. Act so as to_<br>_constitute a cause of action._| |**11**|_As the Amendment Act 2008 which_<br>_received assent of the President on_<br>_7.1.2009 will have only prospective_<br>_effect and the 1st respondent having_<br>_born on 11.4.1982 will not get_<br>_benefit of the amendment . The_<br>_acceptance of his nomination is_<br>_therefore illegal._|**_Para 9_**|_The Presidential assent was_<br>_given on 7-1-2009. The_<br>_Amendment Act came into_<br>_force on 9-1-2009, long_<br>_before the date of election_<br>_notification. _<br>_The first_<br>_respondent submitted his_<br>_nomination on 27-3-2009._<br>_Hence, there is no question_<br>_of retrospective operation of_<br>_the Amendment Act. An Act_<br>_is not retrospective merely_<br>_because certain incidents are_<br>_drawn _<br>_from a _<br>_date_<br>_antecedent to the coming into_<br>_force of the Act._| -:22:- Election Petition No. 5 of 2009 ||||_(Vide_**_Sree Bank Limited v._**<br>**_Sarkar Dutt Roy - AIR 1966_**<br>**_SC 1953 and D.S. Nakkara_**<br>**_v. Union of India - AIR 1983_**<br>**_SC 130_**_). As per the_<br>_Amending Act of 2008 the_<br>_first_<br>_respondent_<br>_was_<br>_qualified to submit his_<br>_nomination and entitled to_<br>_contest the election as a_<br>_Scheduled Tribe candidate._| |---|---|---|---| |**12**|_As per the Amendment Act to the_<br>_Constitution children who are born_<br>_to inhabitants of the Lakshadweep in_<br>_any other place in the main land of_<br>_India shall be deemed to be_<br>_inhabitants born in the islands if_<br>_such children settled permanently in_<br>_the island. The children born after_<br>_coming into effect of Annexure 1_<br>_notification will only get the benefit_<br>_and the 1st respondent was not_<br>_qualified to be included as Schedule_<br>_Tribe of Union Territory of_<br>_Lakshadweep._|**_Para 10_**|_There is no question of_<br>_retrospective operation of the_<br>_Amendment Act. The fact that_<br>_certain pre-requisites for_<br>_application for the Act were_<br>_drawn from _<br>_a time_<br>_antecedent to the passing of_<br>_the Act will not make the Act_<br>_retrospective in operation_<br>_(_**_AIR1966 SC 1953 & AIR_**<br>**_1983 SC 130)_**| |**13**|_The first respondent filed an_<br>_application dated 27-1-2009 with a_<br>_certificate of Birth of the Ist_<br>_respondent issued by Government of_<br>_Karnataka stating that the Ist_<br>_Respondent was born in Sankalpa_<br>_Hospital, Mysore on 11-4-1982_<br>_wherein the permanent address of_<br>_the father and mother was shown as_<br>_No. 53, Hudco, Bannimantap,_<br>_Mysore._|**_Para 11_**|_This is a statement of_<br>_evidence and not a statement_<br>_of fact. These averments do_<br>_not give rise to any cause of_<br>_action and do not constitute_<br>_cause of action for the_<br>_election petition._| -:23:- Election Petition No. 5 of 2009 |**14**|_No documents were produced to_<br>_show that the Ist Respondents'_<br>_parents were inhabitants of the_<br>_Lakshadweep and that the Ist_<br>_respondent has permanently settled_<br>_in the Lakshadweep Islands and_<br>_without conducting any verification_<br>_or enquiry, I.C. Pookoya, Sub_<br>_Divisional Officer, Androth who was_<br>_appointed as the Assistant Electoral_<br>_Officer, issued the Caste Certificate_<br>_on 3-2-2009 on the same day when_<br>_Annexure – II order was passed by_<br>_Administrator of the Union_<br>_Territory of Lakshadweep. This was_<br>_done without conducting any_<br>_enquiry and without verifying_<br>_records._|**_Para 12_**|_Apart from the fact that the_<br>_caste certificate issued to the_<br>_Ist respondent was _<br>_in_<br>_conformity with _<br>_the_<br>_amendment_<br>_of_<br>_the_<br>_Presidential Order, in the_<br>_absence of any plea by the_<br>_petitioner that the Ist_<br>_respondent has no dwelling_<br>_house ready for occupation_<br>_in the Island, performance of_<br>_official acts _<br>_can be_<br>_presumed. Moreover, acts_<br>_done prior to the first_<br>_respondent becoming a_<br>_candidate i.e. prior to 27-3-_<br>_2009 cannot be the subject_<br>_matter of corrupt practice._<br>_(See_**_Thamarakshan v._**<br>**_Ramesh Chennithala - 1988_**<br>**_(2) KLT (SN) 3._**| |---|---|---|---| |**15**|_Amending Act was brought into_<br>_force with oblique purpose for_<br>_conferring Schedule Tribe Status on_<br>_Ist respondent_|**_Para 13_**|_For the reasons already_<br>_stated no oblique motive_<br>_can be attributed to the_<br>_legislative act of bringing_<br>_forth an amendment to the_<br>_existing statute. Moreover,_<br>_the averments relate to a_<br>_date prior to the filing of the_<br>_nomination._| |**16**|_Annexure IV Caste certificate_<br>_was issued to Ist Respondent in_<br>_a function organized by_<br>_Lakshadweep_<br>_Employees_<br>_Parishad Congress which is an_<br>_organization associated with the_<br>_Indian National Congress where_<br>_Ist respondent is the legal_<br>_adviser._|**_Para 14_**|_Averments in paragraph 14_<br>_relates to alleged incidents_<br>_which took place prior to 27-_<br>_3-2009 that is the date of_<br>_nomination and they do not_<br>_constitute corrupt practice_<br>_and are beyond the scope of_<br>_election petition. (Vide_**_AIR_**<br>**_1994 SC 2277 & AIR 1996_**<br>**_SC 826_**_)._| -:24:- Election Petition No. 5 of 2009 |**17**|_Ist respondent, his agents and_<br>_with their consent the followers_<br>_and workers of the Ist_<br>_Respondent have made effigy of_<br>_the petitioner depicting the_<br>_petitioner as a drunkard and_<br>_kaffir in the eyes of the voters_<br>_and exhibited at different parts_<br>_of the island. The effigy of the_<br>_petitioner is made with King_<br>_Fisher Bottle hanging from his_<br>_neck and drinking from the beer_<br>_bottle. The Ist respondent, his_<br>_agents and other agents have the_<br>_knowledge that the petitioner_<br>_does not take liquor. By making_<br>_and exhibiting such effigies of_<br>_the petitioner with the beer bottle_<br>_has prejudiced the prospects of_<br>_the petitioner's election. The_<br>_election prospects of the_<br>_petitioner was very much_<br>_affected by publication of the_<br>_effigy, which was exhibited by_<br>_the Ist respondent, his agents_<br>_and workers and followers of his_<br>_party with consent, knowledge_<br>_and connivance of the Ist_<br>_respondent._|**_Para 15_**|_These averments do not_<br>_constitute material facts_<br>_under Section 123 (4) of the_<br>_R.P.Act.,_<br>_There is no allegation_<br>_that there was publication of_<br>_any statement of fact., Effigy_<br>_is not a statement of fact._<br>_There is no allegation that_<br>_there was any publication of_<br>_any statement of fact which_<br>_the Ist Respondent either_<br>_believed to be false or does_<br>_not believe to be true. There_<br>_is also no averment that the_<br>_statement of fact was_<br>_reasonably calculated to_<br>_prejudice the prospects of the_<br>_petitioner's election. Consent_<br>_of the Agents of the Ist_<br>_respondent not sufficient._<br>_Who are the agents is not_<br>_mentioned. The factum of_<br>_consent _<br>_is also not_<br>_mentioned. As to how and in_<br>_what manner consent is given_<br>_is a material fact which has_<br>_to be pleaded. No cause of_<br>_action is therefore made out._<br>**_(Azhar Hussain v. Rajiv_**<br>**_Gandhi : AIR 1986 SC_**<br>**_1253)._**| |---|---|---|---| |**18**|_Ist Respondent, his agents and_<br>_other persons with the consent_<br>_and knowledge of the Ist_<br>_Respondent and his agents_<br>_exhibited effigy and its_<br>_photograph picturising _<br>_the_<br>_petitioner as not a real Muslim_<br>_and there is publication of false_<br>_statement in relation to personal_<br>_character of the petitioner_<br>_reasonably_<br>_calculated_<br>_to_<br>_prejudice election prospects of_<br>_the petitioner._|**_Para 16_**|_No averment that there is_<br>_publication of statement of_<br>_fact which is a necessary_<br>_ingredient of Section 123 (4)_<br>_of R.P. Act. Mere statement_<br>_is not enough. Effigy and its_<br>_photograph_<br>_are_<br>_not_<br>_statements of facts._| -:25:- Election Petition No. 5 of 2009 - **19** _The voters of the constituency_ _**Para 16** Effigy and its photographs are Muslims alone. The Ist would not constitute an respondent and his agents and appeal on the ground of other persons who have acted for religion. Since the electorate the Ist respondent in his election of Lakshadweep constitute agent have appealed to the Muslims alone and all the electorate to vote for the Ist candidates are also Muslims, respondent who is a pious there is no question of follower of the prophet. The creating hatred among propaganda that the petitioner different religious is not a follower in the spirit communities and there is no and principles of Islam has such averment also. (See created and evoked a hatred_ _**(1976) 2 SCC 17 and AIR** among the electorate against the_ _**1986 SC 1113).** Appeal is a petitioner. The appeal on the request. Since Effigy and its ground of religion is a corrupt photographs do not constitute practice under Section 123 (3) of an appeal, the ingredient of “ the R.P. Act. appeal on the ground of religion” is not made out. Moreover, there is no allegation that there was any appeal on the ground of his own religion of the Ist Respondent and therefore material facts are not made out to constitute cause of action under Section 123 (3) of the R.P.Act._ - **20** _The Ist Respondent has won the_ _**Para 17** There is no allegation that election mainly on account of there was any appeal on the the appeal made by the ground of his own religion of petitioner, his agents and other the Ist Respondent. persons with the consent of the Photograph is not an appeal. Ist Respondent on the ground of Appeal on the ground of religion and use of religious religion of the father of the symbol to prejudice the election Ist respondent is not a of the petitioner. A photograph corrupt practice. The of Sri. Late P.M. Syeed father of averments therefore lack the Ist respondent with the material facts. background of Mecca Mosque were exhibited on flex boards, published and distributed among the people of Lakshadweep._ -:26:- Election Petition No. 5 of 2009 |**21**|_The Ist respondent, his agents_<br>_and his election workers have_<br>_with the direction, consent and_<br>_connivance of the Ist Respondent_<br>_have committed corrupt practice_<br>_under Section 123 (3) of the_<br>_R.P.Act by printing, publishing_<br>_and distributing Annexure XVIII_<br>_notice. It is stated therein that_<br>_Sri. P.M. Sayeed is a renowned_<br>_person, who has performed Haj_<br>_and Umra every year and the Ist_<br>_respondent is following the foot_<br>_steps of his father. The religious_<br>_persons who are believing in_<br>_Allah and Holy Prophet Mustafa_<br>_should vote for the Ist_<br>_Respondent. As the petitioner is_<br>_not the true follower of Allah_<br>_and Holy Prophet Mustafa, the_<br>_voters should think in the name_<br>_of Islam before casting their_<br>_votes._|**_Para 18_**|_There is no allegation that_<br>_there was any appeal on the_<br>_ground of his own religion of_<br>_the Ist Respondent. Appeal_<br>_on the ground of father's_<br>_religion is not a ground for_<br>_challenging election. The_<br>_averments do not disclose any_<br>_appeal on the ground of_<br>_religion also as contemplated_<br>_under Section 123 (3) of_<br>_R.P.Act. _<br>_No material_<br>_facts/cause of action have_<br>_therefore been made out._| |---|---|---|---| -:27:- Election Petition No. 5 of 2009 - **22** _There is personal attack on the_ _**Para 19** There is no allegation that petitioner that he is not following there was any publication of commandments of Islam, without the alleged statement of fact beard and moustache and does by the Ist respondent or any not perform five times prayer in other person with his consent. a day. The petitioner is also There is no allegation that the depicted as a person who has statement of fact is false or supported the closure of that the Ist Respondent either Madrassas and that he is a believes it to be false or does drunkard and kaffir and could not believe it to be true. The not be recognized as Muslim. allegation regarding closure The statement in Annexure XVIII of Madrassa is not a are false and the Ist Respondent, statement of fact relating to his agents and workers believing personal character or the contents of the notice as personal conduct but relating untrue and it related to the to a political character or personal character and conduct political conduct. The of the petitioner which was allegation that the petitioner distributed among the voters is a Kaffir (Non believer) and calculated to prejudice the is a drunkard is a statement petitioner's election. All those of opinion and is not a believing in Allah and Holy statement regarding any past Prophet Muhammed Musthafa event to constitute statement should vote for the Ist of fact as contemplated under respondent. As the petitioner is Section 123 (4) of the not a true follower of Allah the R.P.Act. No cause of voters should think in the name action/material facts are of Islam before casting their therefore made out. votes. The voters in Lakshadweep Parliamentary Constituency are Muslims professing Islam._ -:28:- Election Petition No. 5 of 2009 |**23**|_The Ist respondent, his agents_<br>_and other persons with the_<br>_consent of the petitioner and_<br>_his agents offered gratification_<br>_by means of payment of cash_<br>_with the object of inducing_<br>_the voters to vote in favour of_<br>_the Ist respondent and thereby_<br>_committed corrupt practice_<br>_under Section 123 (1) (A) of_<br>_the R.P. Act , 1951._<br>_With the consent of the Ist_<br>_respondent and his agents_<br>_money_<br>_was_<br>_distributed_<br>_through constables of India_<br>_Reserve Battalion to voters of_<br>_different_<br>_islands_<br>_of_<br>_Lakshadweep Parliamentary_<br>_Constituency._|**_Para 20_**|_There is no pleading that Ist_<br>_respondent_<br>_offered_<br>_gratification to any voter_<br>_with the intention of_<br>_inducing the voter to vote_<br>_for him. There is no_<br>_averment that any person_<br>_with the consent of the Ist_<br>_respondent or his Election_<br>_Agent _<br>_offered any_<br>_gratification with the_<br>_intention of inducing any_<br>_voter to vote for him. There_<br>_are no averments that those_<br>_who received payment were_<br>_voters and that they were_<br>_paid money either by the Ist_<br>_respondent or by any person_<br>_with the consent of the Ist_<br>_respondent or his election_<br>_agent with the intention of_<br>_inducing those who received_<br>_money to vote for the Ist_<br>_respondent. There is no_<br>_averment as to _<br>_who_<br>_distributed the money_<br>_through constables of India_<br>_Reserve_<br>_Battalion._<br>_Distribution of money by_<br>_itself is not a corrupt_<br>_practice, without _<br>_any_<br>_allegation that it was by_<br>_way of gratification with the_<br>_intention of inducing the_<br>_voters to vote for the Ist_<br>_respondent. No charge of_<br>_corrupt practice is made_<br>_out. Material facts are_<br>_therefore lacking. The_<br>_averments are vague and_<br>_unbelievable also._| |---|---|---|---| > **23** _The Ist respondent, his agents and other persons with the consent of the petitioner and his agents offered gratification by means of payment of cash with the object of inducing the voters to vote in favour of the Ist respondent and thereby committed corrupt practice under Section 123 (1) (A) of the R.P. Act , 1951._ -:29:- Election Petition No. 5 of 2009 |**24**|_The_<br>_officials_<br>_of_<br>_the_<br>_Administration connected with_<br>_the conduct of the election_<br>_illegally facilitated the Ist_<br>_respondent to have his name_<br>_enlisted first in the order in the_<br>_list of contesting candidates and_<br>_thereby in electronic voting_<br>_Machine._|**_Paras 23 to_**<br>**_28_**|_Who assisted the Ist_<br>_Respondent , what is the_<br>_manner and mode _<br>_of_<br>_assistance are all material_<br>_facts to be alleged and_<br>_proved. These facts are_<br>_lacking in the pleading._<br>_Cause of action under Section_<br>_123 (7) of the R.P.Act is_<br>_therefore not made out. The_<br>_enlistment _<br>_in list of_<br>_contesting_<br>_candidate/Electronic Voting_<br>_machine is based on the_<br>_priorities having regard to_<br>_the nature of the political_<br>_parties such as National_<br>_Parties, registered parties etc._<br>_Which are the national_<br>_parties, which are the_<br>_registered parties and_<br>_which are the local parties_<br>_are not mentioned in the_<br>_petition_<br>_and_<br>_therefore_<br>_material facts are lacking._<br>_Even if the name of R1 could_<br>_only be enlisted as second,_<br>_the petitioner's name could_<br>_only be enlisted next to R1's_<br>_name. Moreover how the_<br>_election of the petitioner is_<br>_materially affected thereby is_<br>_also not mentioned._| |---|---|---|---| |**25**|_There is non compliance of_<br>_guidelines_<br>_of_<br>_Election_<br>_Commission in the hand book of_<br>_candidates._|**_Para 28_**|_This is not a ground for_<br>_challenging the election_<br>_under Section 100 of R.P.Act._<br>_Handbook is not statutory_<br>_rule or notification under the_<br>_R.P.Act, 1951._| Since what is wanting in the pleadings are “material facts” and not “full particulars”, the decision in **Balwan Singh v. Lakshmi Narain - AIR 1960 SC 770** cited by Sri. M.K. Election Petition No. 5 of 2009 -:30:- Damodaran is of no avail to the petitioner. After an anxious consideration of the pleadings and the allegations in the election petition, I have no hesitation to conclude that the Election Petition does not make out the ingredients of the ground put forward that the first respondent was not qualified to be a candidate. The election petition also does not make out the ingredients of any of the corrupt practices falling under Sec. 123 of the R.P. Act. Since there is no complete cause of action or material facts in support of the election petition so as to enable this Court to proceed to the trial of the Election Petition, this Election Petition is dismissed/rejected as not maintainable. Dated this the 17[th] day of May, 2010. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ## P.S. to Judge ani.