Election Petition No.5 of 2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938 El.Pet..No. 5 of 2016 () ------------------------- PETITIONER: ------------------------ ADV. T.K.RASHEEDALI, THONIKKARA HOUSE, ANGADIPPURAM.P.O, MALAPPURAM DISTRICT-670 321. BY ADVS.SRI.ASOK M.CHERIAN SRI.V.K.PRASAD SRI.K.SASIKUMAR RESPONDENT: ------------------------- T.A.AHAMMED KABEER, THAZNI MANZIL,PATHADIPPALAM, CHANGAMPUZHA NAGAR.P.O, KOCHI-682 033. BY ADVS. SRI.P.CHANDRASEKHAR SRI.P.A.MOHAMMED SHAH SRI.SOORAJ T.ELENJICKAL SMT.V.A.HARITHA SMT.SANDHYA R.NAIR SMT.P.M.MAZNA MANSOOR THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON 03-11-2016 DELIVERED THE FOLLOWING: ELECTION PETITION NO.5/2016 ## APPENDIX PETITIONER's ANNEXURES: ANNEXURE I. A COPY OF THE ELECTION BULLETIN 'VAARTHA' DATED 14 SATURDAY, 2016 ANNEXURE IA. ENGLISH TRANSLATION OF THE RELEVANT PORTIONS OF ANNEXURE I ANNEXURE II. A TRUE COPY OF THE KERALA KAUMUDI ANGADIPURAM GRAMA PANCHAYAT ELECTION SUPPLEMENT DATED 24-10-2010 ANNEXURE IIA. ENGLISH TRANSLATION OF THE RELEVANT PORTIONS OF ANNEXURE II RESPONDENT'S ANNEXURES: NIL //TRUE COPY// ## **“C.R.”** ## **A.HARIPRASAD, J.** ## **-------------------------------------Election Petition No.5 of 2016 & I.A.No.1 of 2016 -------------------------------------Dated this the 3[rd] day of November, 2016** ## **JUDGMENT** This original petition is filed calling in question the election of the respondent to LA 039 Mankada Legislative Assembly Constituency in the general elections held to the 14[th] Kerala Legislative Assembly on 16.05.2016. The petitioner contested as a candidate of the Communist Party of India (Marxist) and the respondent contested the election as a candidate of the Indian Union Muslim League (IUML), which is a constituent of the United Democratic Front (UDF). The petitioner lost the election to the respondent by a margin of 1508 votes. The Returning Officer declared the respondent elected after counting votes on 19.05.2016. 2. The petitioner contended that success of the respondent in the election is on account of wide and extensive corrupt practices perpetrated by him, his election agent and other agents. Apart from them, organizers and workers of his election campaign have also committed extensive corrupt practices. They printed, published and circulated an election bulletin, which contained statement of facts, which they knew to be false. Election Petition No.5 of 2016 & I.A.No.1 of 2016 2 And such items were published with an intention to malign the character and reputation of the petitioner. They also appealed to the voters not to vote for the petitioner on some false grounds. According to the petitioner, this has not only vitiated the election, but also materially affected the result of the election. The respondent, his election agent and other agents have committed corrupt practices covered by Section 123(4) of the Representation of the People Act, 1951(in short, “the Act”). Petitioner has made the following allegations about corrupt practices. Firstly, the UDF election committee, Mankada mandalam has published an election bulletin on Saturday, 14.05.2016 under the name and style “Vaartha”. Annexure-I is the copy of the election bulletin. English translation of Annexure-I is produced as Annexure-IA. He contended that a mere look at Annexure-I will show that it was published with the consent of the respondent. Annexure-I contains a number of news items, most of which were intended to highlight the achievements of the respondent, who represented the constituency in the 13[th] Assembly. But, some of the news items in Annexure-I were clearly meant to malign the petitioner as they contained certain allegations and derogatory remarks against him. A false news item titled “Angadippuram Panchayat: Irregularities to the tune of `69 lakhs” also appeared in Annexure-I. The content in the box news in Annexure-I would Election Petition No.5 of 2016 & I.A.No.1 of 2016 3 reveal that the said printed matter was a news item published in the marketing page of “Kerala Kaumudi Daily” dated 24.10.2010. The content in the box news would show that the report was about the irregularity of `69 lakhs detected by the Audit Wing pertaining to the illegal financial transactions, procedural irregularities and misappropriation of public funds allegedly committed by the petitioner during the periods of 2005-2006, 2006-2007, 2007-2008 and 2008-2009 while he was serving as the President of the Angadippuram Grama Panchayat. A true copy of the Kerala Kaumudi Angadippuram Grama Panchayat Election Supplement dated 24.10.2010 is marked as Annexure-II. English translation of Annexure-II is produced as Annexure-IIA. The petitioner contended that the audit reports of Angadippuram Grama Panchayat for the financial years referred to above were finalised and submitted to the Panchayat as per the relevant rules. None of the reports mentioned in Annexure-I spoke about any illegal financial transaction, procedural irregularity or misappropriation of funds committed by the petitioner. None of the said reports held the petitioner personally responsible or liable for any illegal financial transaction or misappropriation of funds. All the said reports were routine reports and contained only observations about conduct of the affairs of the Panchayat. Petitioner submitted that his tenure as President, Election Petition No.5 of 2016 & I.A.No.1 of 2016 4 Angadippuram Grama Panchayat ended in October, 2010. The Panchayat was run by the representatives of IUML, a constituent of UDF during the period from 2010 to 2015. Petitioner's successor in office did not act upon the audit reports simply for the reason that there was nothing against the petitioner in the reports. The news item was published with an oblique motive to falsely implicate the petitioner in an allegation of corruption. The facts, such as the respondent was the candidate of the UDF in Mankada Constituency, that the bulletin contained statements, interviews and photographs of the respondent and also that cost of the bulletin was included in the election expenses declared to the Election Commissioner, will go to show that the respondent and his election agent were aware of the publication of election bulletin. It also shows that the same was published with his consent and knowledge. The false news items appeared in Annexure-I were clearly intended to question the personal character and conduct of the petitioner. Copies of Annexure-I were circulated with a view to prejudice the election prospects of the petitioner. Hence it is contended that the respondent has committed the corrupt practice of publishing statement of fact, which is not only false, but also believed to be false, in relation to the personal character and conduct of the petitioner. The slender margin secured by the respondent also indicate the fact that the Election Petition No.5 of 2016 & I.A.No.1 of 2016 5 corrupt practices have influenced the voters. 3. Secondly, it is submitted that at page 3 of Annexure-I bulletin a copy of the letter issued by the Deputy Director of Malappuram District Local Fund Audit to the Secretary of the Angadippuram Grama Panchayat was also published. It contains a direction to recover certain amounts mentioned in the local fund audit report through administrative actions. It warned the Secretary that he would be held personally liable for any delay in taking timely action to recover the loss. The report would show that the respondent, his election agent and other agents and also the campaigners knew well that the petitioner was not personally liable for any loss that had been pointed out in the audit report. Therefore, it fortifies the contention of the petitioner that the respondent and others did not believe in the allegation they themselves have made in Annexure-I as true. Annexure-I bulletin was printed by the UDF election committee, Mankada mandalam and it was extensively circulated in the Mankada constituency on 14.05.2016 and 15.05.2016. It was the agents and campaigners of the respondent, who distributed the bulletin among the electorate. The petitioner has referred to certain persons who happened to receive copies of Annexure-I and on reading the same, they became hostile to the petitioner on account of bad influence of the false news. With these Election Petition No.5 of 2016 & I.A.No.1 of 2016 6 contentions, the petitioner sought to declare that the election of the respondent from Mankada Legislative Assembly Constituency to the 14[th] Kerala Legislative Assembly is void. 4. The respondent filed a written statement opposing each and every allegation raised in the petition. Along with the written statement, I.A.No.1 of 2016 is also filed for dismissing the election petition as legally not maintainable. Contentions raised in the written statement and the application are the same. 5. The respondent asserted that he has not committed any corrupt practice as alleged in the petition. Likewise, his election agent or other agents or organizers and workers of UDF have not committed any corrupt practice as alleged. No election bulletin had been printed, published and circulated by them which contained any statement of facts with the object and intention to malign the character and reputation of the petitioner. Neither the respondent, nor anyone on his behalf did appeal to the voters not to vote for the petitioner on the grounds alleged in the election petition. The election is not vitiated nor the election has been materially affected or the result of the election has been affected on account of any corrupt practice by the respondent or anyone on his behalf. 6. The respondent denied the case that he or anyone on his Election Petition No.5 of 2016 & I.A.No.1 of 2016 7 behalf has committed any corrupt practice covered by Section 123(4) of the Act. It is also denied that the news items in Annexure-I bulletin were clearly meant to malign the petitioner and it contained allegations and derogatory remarks against him. The averments in this respect are too vague and uncertain. The petitioner has not stated which of the allegations were derogatory against the petitioner. 7. Annexure-II, published by Kerala Kaumudi Daily on 24.10.2010 in connection with local body election, has no relevance to the election to the Kerala Legislative Assembly held on 16.05.2016. Annexures-I and II are therefore highly scandalous and unnecessary documents. 8. The respondent has not admitted that the reports referred to in Annexure-I did not hold the petitioner personally liable for any financial transaction, procedural irregularities or misappropriation of funds. Neither the respondent nor anyone under his instruction or for his benefit has published any false news item against the petitioner. The averments in the election petition are insufficient to establish any corrupt practice. The election petition is devoid of material facts and particulars. There is no cause of action for the election petition. The cause of action alleged is incomplete and the petition is liable to be dismissed as not maintainable. The election petition does not contain material fact, constituting a cause of Election Petition No.5 of 2016 & I.A.No.1 of 2016 8 action under Section 123(4) of the Act. With these contentions, the respondent sought for dismissal of the election petition. 9. As mentioned above, the allegation regarding maintainability of the petition was elaborately heard by this Court. Shri P.Chandrasekhar, learned counsel appearing for the respondent opposed the application strongly by contending that it is not maintainable. Shri V.K.Prasad supported the election petition for and on behalf of the petitioner. 10. Shri P.Chandrasekhar, the learned counsel for the respondent contended that the entire allegations in the election petition, if taken together, will not show that the petitioner has any cause of action against the respondent. It is also the contention of the respondent that the pleadings, if put together, will not indicate any reason to apply the law in Section 123(4) of the Act in favour of the petitioner. 11. Before dealing with the pleadings and material aspects in the election petition, I shall extract the relevant provision of law. It is an admitted case that the petitioner relies only on Section 123(4) of the Act for getting a relief of declaration that the election of the respondent to Mankada Legislative Assembly Constituency is void. The provision reads as follows: _“_ _**123. Corrupt practices** .- The following shall_ Election Petition No.5 of 2016 & I.A.No.1 of 2016 9 _be deemed to be corrupt practices for the purposes of this Act:-_ _xxxxxxxxxxxxx_ _(4) The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election._ _xxxxxxxxxx”_ 12. On a reading of the above provision, following things are discernible. In order to attract this provision, it must be shown that a candidate or his agent or any other person with the consent of the candidate or his election agent has published any statement of fact. Next, it must be established that such statement is false and which, the candidate or any other person referred to above, either believes to be false or does not believe to be true. Another aspect to be established is that the false statement so published must be in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal Election Petition No.5 of 2016 & I.A.No.1 of 2016 10 of any candidate. Further more, the statement should reasonably be calculated to prejudice the prospect of the candidate's election. Shri Chandrasekhar would contend that none of the elements has been established in this case to attract the ground under Section 123(4) of the Act to declare the election void. It is the case of the respondent that he has no connection with the publication of Annexure-I election bulletin. It is the further case that Annexure-I bulletin does not contain any false news and it contains only true statements. Further more, the respondent contended that there is no statement touching the personal character or conduct of the petitioner in order to attract the above said provision. 13. Per contra, Shri Prasad contended that a cursory reading of Annexures-I and II will show that the petitioner's personal character and conduct as President of Angadippuram Grama Panchayat were questioned and he was depicted as a corrupt person and all these were done without any valid reason. It is the case of the petitioner that the contents in Annexures-I and II are false. The respondent and his agents were fully aware of the falsity of those news items. Therefore, it is the case of the petitioner that the provision in Section 123(4) of the Act is squarely attracted in this case. 14. The relevant pleadings can be seen mainly in paragraphs 4, 5 Election Petition No.5 of 2016 & I.A.No.1 of 2016 11 and 9 of the petition. It is the definite case of the petitioner that Annexure-I election bulletin was published under the aegis of the UDF election committee, Mankada mandalam and it was published on 14.05.2016, ie., on the eve of the election. In Annexure-I, he has specifically marked the objectionable news item, which was published as a box news. In paragraphs 4, 5 and 9 of the election petition, the petitioner has stated that the news item published in the election bulletin for and on behalf of the respondent contained false and defamatory statements about the petitioner. In this context, the learned counsel for the respondent would contend that any document produced along with the election petition shall be treated as part of the petition. To see whether the ingredients of Section 123(4) of the Act are satisfied or not in a given case, it has to be ascertained with reference to the annexures produced along with the election petition. In otherwords, the petitioner's interpretation about the annexures produced along with the petition cannot be considered, because the annexures form an integral part of the election petition. In order to buttress this argument, Shri Chandrasekhar placed reliance on certain decisions. The Supreme Court in **U.S.Sasidharan v. K.Karunakaran (AIR 1990 SC 924)** held as follows: _“The material facts or particulars relating to_ Election Petition No.5 of 2016 & I.A.No.1 of 2016 12 _any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. ............”_ In the above case, it was decided that when a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with the copy of election petition, the copy of election petition will not be a true copy within the meaning of Section 81(3) of the Act and as such the court has to dismiss the election petition under Section 86(1) of the Act for non-compliance of Section 81(3) of the Act. However, that question does not arise in this case. But, fact that the annexures relied on by the petitioner form an integral part of the election petition cannot be challenged. The above said principle is reiterated by the Supreme Court in **Mohan Rawale v. Damodar Tatyaba alias Dadasaheb and others ((1994) 2 SCC 392)** . Therefore it is clear that we have to consider Election Petition No.5 of 2016 & I.A.No.1 of 2016 13 maintainability of the application not by looking at the averments in the election petition, but taking into consideration the contents of the annexures produced along with the election petition. 15. Turning to the annexures, the following aspects are evident. In the front page of Annexure-I election bulletin, a box news appeared with a caption “Angadippuram Panchayat: Irregularities to the tune of `69 lakhs”. It is also mentioned that the Chief Minister had ordered enquiry into the allegations and the Deputy Director of Panchayats had started investigation. This box news contained a copy of Annexure-II. That is a publication by Kerala Kaumudi with a caption “UDF Election Bulletin, Angadippuram Grama Panchayat”. That news item is dated 24.10.2010. In the box news in Annexure-I, a photo of Annexure-II is published. On a reading of the disputed news item in Annexure-I, it can be seen that the petitioner was the President of Angadippuram Grama Panchayat during 2005-2006, 2006-2007, 2007-2008 and 2008-2009. Nowhere in the news item, it is alleged that the petitioner has misappropriated or defalcated public money. It is true that the financial irregularities occurred during his presidentship as mentioned in the news item. Whether such a news item will fall within the mischief of Section 123(4) of the Act is the question to be decided. Election Petition No.5 of 2016 & I.A.No.1 of 2016 14 16. Learned counsel for the respondent placing reliance on **Mohan Rawale** 's case contended that the allegations of corrupt practices relating to a period anterior to the date of candidate's nomination would not constitute allegations of corrupt practices under Section 123(4) of the Act. It is therefore such allegations, if any, will have to be excluded from consideration. It is also the case of the respondent, without admitting any connection with Annexures-I and II, that the petitioner cannot maintain the petition on the basis of the allegations levelled, as well as on the Annexures relied on by him. In **Mohan Rawale** 's case, factually it was evident that the allegations referred to in the election petition were pertaining to matters long anterior to the date of submission of nomination papers by the election petitioner. The Supreme Court considered the scope of Section 79(b) of the Act where the word “candidate” has been defined. As per the definition, a candidate means a person who has been or claims to have been duly nominated as a candidate at any election. The phraseology employed in Section 123(4) of the Act will show that the publication of any statement of fact which is false, etc. should be by a candidate or his election agent or by any other person with the consent of a candidate or his election agent. The Supreme Court in paragraphs 6 and 8 considered this question and held as follows: Election Petition No.5 of 2016 & I.A.No.1 of 2016 15 _“All sub-sections of Section 123 of the Act refer to the acts of a 'candidate' or his election agent or any other person with the consent of the candidate or his election agent. The substituted definition of the expression 'candidate' in Section 79(b) completely excludes the acts by a candidate up to the date he is nominated as a candidate. Therefore, the allegations relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice proprio vigore. But on the question whether they are relevant and admissible for other purposes, no opinion need be expressed.”_ A learned Single Judge of this Court in **Dr.P.Pookunhi Koya v. Muhammed Hamdullah Sayed and others (2010 (2) ILR (Kerala) 680)** has followed the principle in **Mohan Rawale** 's case and held that an act done by an individual before he became a candidate cannot be construed as corrupt practice and it is beyond the scope of election petition. 17. In another decision reported in **Mohammed Riyas P.A. v. M.K.Raghavan and others (2010 (2) KHC 539)** a learned Single Judge of this Court, interpreting Section 123(4) of the Act, held thus: _“All the above ingredients should be specifically pleaded and proved for bringing home_ Election Petition No.5 of 2016 & I.A.No.1 of 2016 16 _the charge of 'corrupt practice' in order to set aside an election. In a case where the publication is made by another person, the candidate can be held responsible for such publication only if the publication was made by that other person with the consent of the candidate or his election agent. It must further be pleaded that the statement of fact published is not only false but also that the candidate believes it to be false or does not believe it to be true. In paragraphs 9 and 10 of the election petition pertaining to Annexure-A newsletter 'Jagratha' except stating that the allegations in Annexure-A newsletter are false, there is no plea that the first respondent believed those allegations to be false or to be not true. Thus, the belief of the candidate that the statement is false or is not true is a 'material fact' which has not been pleaded and the omission in this regard is fatal to the election petition. ..................”_ This decision was taken up before the Supreme Court and the Apex Court confirmed the views of the learned Single Judge [see **Mohammed Riyas v.** ## **M.K.Raghavan (2012 (2) KLT 567** )]. 18. The learned counsel for the respondent relying on the above decision contended that there is no material pleading in the petition to show Election Petition No.5 of 2016 & I.A.No.1 of 2016 17 that Annexure-I news item was published either by the candidate or his agent or by any other person with the consent of the candidate or his election agent. Therefore, the principle in **Mohammed Riyas P.A.** 's case will squarely apply. It is also the submission of the learned counsel for the respondent that the term “by any other person” occurring in Section 123(4) of the Act has a significance. The expression “person” has been defined in Section 2(g) of the Representation of the People Act, 1950. It reads as follows: ## “”person” does not include a body of persons” Going by the allegations in the election petition, especially in paragraphs 4, 5 and 9, it can be seen that what is alleged is that the UDF election committee, Mankada mandalam had published Annexure-I election bulletin. Apart from some bland statements that the respondent was aware of the publication, there is no specific averment in the election petition that Annexure-I was published either by the respondent or by any agent of the respondent or with the knowledge and consent of the respondent. Hence this contention is forceful. 19. Shri Chandrasekhar placed reliance on a decision of the Supreme Court in **Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253)** to contend a proposition that mere allegation of distribution of pamphlet Election Petition No.5 of 2016 & I.A.No.1 of 2016 18 casting aspersions on personal character of a candidate will not constitute a cause of action when particulars as to who had printed, published or circulated pamphlets, when, where and how it was circulated are not disclosed. It is true that there are certain pleadings in the petition to show that the objectionable pamphlets were circulated in the presence of the candidate. But, the law laid down by the Supreme Court in the above decision shows the requirement of proof on a higher degree. The principle in the decision reads as follows: _“.......... In view of the doctrine laid down 'in Nihal Singh's case (1970 (3) SCC 239) as early as in 1970, the High Court was perfectly justified in taking the view that no cause of action was made out. For, in the absence of material particulars as to who had printed, published or circulated the pamphlet, when, where and how it was circulated and which facts went to indicate the respondent's consent to such distribution, the pleading would not disclose a cause of action. There would be nothing for the respondent to answer and the matter would fall within the doctrine laid down in Nihal Singh's case (supra). .............”_ In the light of the above observations, I am of the view that this contention of the respondent deserves to be upheld. Election Petition No.5 of 2016 & I.A.No.1 of 2016 19 20. Learned counsel for the respondent contended that the expression “statement of fact” in Section 123(4) of the Act cannot be equated to a news item. This is all the more clear for the reason that the Section shows that any statement of fact, which is false or which the maker either believes to be false or does not believe to be true, should be in relation to the personal character or conduct of any candidate or in relation to the candidature, etc. According to the learned counsel for the respondent, if at all the statement in Annexure-I are considered to be statement of facts, they do not challenge the personal character or conduct of the petitioner. It is therefore contended that by no stretch of reasoning the challenged news item would provide a cause of action for the petitioner. 21. Controverting these arguments, learned counsel for the petitioner contended that the provisions in Section 123(4) of the Act do not confine to personal character alone. It is also his case that in paragraph 14 of the election petition, it is specifically pleaded that in the presence of the candidate, some persons distributed Annexure-I containing false allegations against the petitioner. It is the further contention of the petitioner that a false charge made prior to 2010 was raked up during the election campaign. So Section 123(4) of the Act is squarely attracted. I am afraid, I cannot accept the contention that a charge made prior to 2010, Election Petition No.5 of 2016 & I.A.No.1 of 2016 20 raked up during the election, could provide a cause of action in view of the decision in **Mohan Rawale** 's case. 22. The argument advanced by the learned counsel for the petitioner that the phraseology employed in Section 123(4) of the Act does not make any distinction between the political character and personal character is also fallacious. The Supreme Court in **Bansilal Kohistani v. Rishi Kumar Kaushal (1971 KHC 505)** has laid down the following principles: _“From a review of the decisions referred to above, it follows that in order to constitute corrupt practice under S.123(4), the false statement should have been in relation to the personal character of the candidate. If a false statement is made with regard to the public or political character of the candidate, it would not constitute a corrupt practice even if it is likely to prejudice the prospects of that candidate's election. Circulation of false statement about the private or personal character of the candidate during the period preceding the election is likely to work against the freedom of election itself in as much the effect created by false statement cannot be met by denial in proper time and so the Constituency has to be protected against the circulation of such false_ Election Petition No.5 of 2016 & I.A.No.1 of 2016 21 _statements which are likely to affect the voting of the electors. If a statement of fact affects the man beneath the politicians, it touches the private character and if it affects the politicians it does not touch his private character. Some allowance will have to be made in respect of statements made in election meetings as the atmosphere is usually surcharged by partisan feelings and emotions. Allegations of depravity or immorality or affecting the moral or mental qualities of a person are statements relating to the personal character or conduct of a person. ......................”_ 23. In Annexure-I news item, there is no mention that the petitioner committed any irregularity or misappropriation of funds. At the most, the news item would reveal that there were financial irregularities in Angadippuram Grama Panchayat during the period in which the petitioner was functioning as its President. Annexure-II was an election supplement published on 24.10.2010, much prior to the election in question. Even in Annexure-II, there is no direct implication of the petitioner in the financial irregularities. Therefore, the contention of the petitioner that Annexures-I and II would show personal allegations against the petitioner cannot be accepted. Election Petition No.5 of 2016 & I.A.No.1 of 2016 22 24. Another contention raised by Shri Chandrasekhar is that the election petition is defective for want of proper verification. It is the specific contention raised that the provision in Order VI Rule 15 of the Code of Civil Procedure (in short, “Code”) has not been complied with and for that reason alone, the petition is liable to be dismissed. Shri Prakash appearing for the election petitioner, per contra, contended that there is no defect in verification and if at all there is any defect, it will not vitiate the proceedings. Order VI Rule 15 of the Code reads as follows: _“_ _**15. Verification of pleading** .- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case._ _(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true._ _(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed._ _(4) The persons verifying the pleading shall_ Election Petition No.5 of 2016 & I.A.No.1 of 2016 23 ## _also furnish an affidavit in support of his pleadings.”_ Shri Chandrasekhar contended that the affidavit filed along with the election petition is not in accordance with Order VI Rule 15 of the Code and is highly insufficient and therefore it does not constitute a proper verification. Relying on the decision of the Supreme Court in **Mohammed Riyas** 's case (Supra), Shri Chandrasekhar contended that in this case also a single affidavit would not satisfy the requirements of Section 83(1) of the Act and Order VI Rule 15 of the Code. 25. It is seen that in **Mohammed Riyas** 's case, a preliminary objection was raised by the returned candidate that the election petition was incomplete since no affidavit in Form 25 as required under the proviso to Section 83(1) of the Act read with Rule 94A of the Conduct of Election Rules, 1961 was filed and thus the election petition did not disclose a cause of action and the petition therefore was liable to be dismissed. Per contra, the election petitioner therein contended that the election petition could not be dismissed _in limine_ under Section 86(1) of the Act for noncompliance of the provisions under Section 83(1) of the Act. The election petitioner contended that it was not necessary to file two affidavits, one under Order VI Rule 15(4) of the Code and the other in Form 25 as required under the proviso to Section 83(1) of the Act read with Rule 94A of Election Petition No.5 of 2016 & I.A.No.1 of 2016 24 the Conduct of Election Rules, 1961. These contentions of the election petitioner were not accepted by the Division Bench of the Supreme Court. 26. This matter came up before the Supreme Court in **G.M.Siddeshwar v. Prasanna Kumar ((2013) 4 SCC 799)** . Two learned Judges found that the view expressed in **Mohammed Riyas** 's case (supra) is in conflict with **G.Mallikarjunappa v. Shamanur Shivashakarappa** **((2001) 4 SCC 428)** , a decision rendered by a three Judges Bench. Hence, the ratio in Mohammed Riyas' case was referred to a Larger Bench. **G.M.Siddeshwar** 's case was considered by a three Judges Bench in **G.M.Siddeshwar v. Prasanna Kumar ((2013) 4 SCC 776)** . It was held by the Larger Bench that if there is already one affidavit (composite or otherwise), which accompanies election petition and supports the allegation of corrupt practice, there is no need for a second or additional affidavit in terms of Order VI Rule 15 of the Code. A composite affidavit, which supports the pleadings in the election petition and the allegation of corrupt practice will satisfy the requirements of the Act. In the light of these principles, the contention raised by the respondent that there is no proper verification cannot be accepted. In conclusion of the discussion, I find that the election Election Petition No.5 of 2016 & I.A.No.1 of 2016 25 petitioner has failed to establish that he has a complete cause of action against the respondent. The ingredients in Section 123(4) of the Act has not been established for the aforementioned reasons. The election petitioner has failed to set forth full particulars of corrupt practice under Section 123(4) of the Act and the allegations in the petition do not constitute corrupt practices envisaged under the Section to enable this Court to proceed to the trial of the election petition. Therefore, I allow I.A.No.1 of 2016 and dismiss the election petition as not maintainable. ## **A. HARIPRASAD, JUDGE.** **cks**