El.Pet..No. 5 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 13TH DAY OF AUGUST 2012/22ND SRAVANA 1934** **El.Pet..No. 5 of 2011 ( )** **-------------------------** ## **PETITIONER(S):** **E.JAYAN,S/O.GOVINDAN, 41 YEARS, EDAPPAYIL, K. PURAM, TANALUR, MALAPPURAM DISTRICT.** **BY ADVS.SRI.SANTHEEP ANKARATH SRI.K.P.SUDHEER SRI.SUMODH MADHAVAN NAIR** ## **RESPONDENT(S):** **1. ABDURAHIMAN, S/O.MOHAMED HAJI, VAKKEN HOUSE, THOZHANNUR, VARIATH, RANDATHANI P.O., PIN - 696 510.** **2. RAVI, S/O.SANKUNNI NAIR, THELATH HOUSE, NIRAMARUTHUR P.O., MALAPPURAM DISTRICT PIN 676 109. 3. MAJEED KUMILKANDI, S/O.ALI, RAHMATH MANZIL, MADATHIL ROAD, TANUR, MALAPPURAM DISTRICT PIN 676 302.** - **BY ADV. SRI.ANEESH JAMES BY ADV. SRI.S.SREEKUMAR (SR.) BY ADV. SRI.P.MARTIN JOSE BY ADV. SRI.N.M.MOHAMMED AYUB** **THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 27-03-2012, THE COURT ON 13-08-2012 DELIVERED THE FOLLOWING:** **El.Pet..No. 5 of 2011 :: ::** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**ANNEXURE-A:**|**TRUE COPY OF THE RELEVANT PORTION OF**| |---|---| ||**MALAYALA MANORAMA DAILY DATED 03.03.2011.**| |**ANNEXURE-A:**|**TRUE COPY OF THE ENGLISH TRANSLATION OF**| ||**ANNEXURE A.**| |**ANNEXURE-B:**|**TRUE COPY OF THE RELEVANT PORTION OF**| ||**MANGALAM DAILY DATED 12.03.2011.**| |**ANNEXURE-B1:**|**TRUE ENGLISH TRANSLATION OF ANNEXURE B**| |**ANNEXURE-C:**|**TRUE COPY OF THE PETITION PREFERRED BY THE**| ||**PETITIONER BEFORE THE CHIEF ELECTION**| ||**COMMISSIONER DATED 09-03-2011.**| |**ANNEXURE-C1:**|**TRUE ENGLISH TRANSLATION OF ANNEXURE C.**| |**ANNEXURE-D:**|**TRUE COPY OF THE BIT NOTICE DATED NIL.**| |**ANNEXURE-D1:**|**TRUE ENGLISH TRANSLATION OF ANNEXURE D.**| |**ANNEXURE-E:**|**TRUE COPY OF THE RELEVANT PORTION OF**| ||**JANASABDHAM DATED 12.04.2011.**| |**ANNEXURE-E1:**|**TRUE ENGLISH TRANSLATION OF ANNEXURE E.**| |**ANNEXURE-F:**|**TRUE COPY OF THE CHALAN RECEIPT NO.86 DATED**| ||**25.06.2011 OF THE ADDITIONAL SUB TREASURY,**| ||**ERNAKULAM.**| |**EXT.P1:**|**ORIGINAL OF MALAYALA MANORAMA DAILY**| ||**DATED 03.03.2011.**| |**EXT.P2:**|**ORIGINAL OF MANGALAM DAILY DATED 12.03.2011.**| |**EXT.P3:**|**PETITION PREFERRED BY THE PETITIONER BEFORE**| ||**THE CHIEF ELECTION COMMISSIONER DATED**| ||**09.03.2011.**| |**EXT.P4:**|**ORIGINAL OF BIT NOTICE.**| |**EXT.P5:**|**JANASHABDAM DAILY DATED 12.04.2011.**| |**EXT.P5(A):**|**PAGE NO.III OF EXT.P5**| **El.Pet..No. 5 of 2011 :: :: EXT.P6: COPY OF FIR NO.118 DATED 10.3.2011 OF TANUR POLICE STATION. EXT.R1: TRUE COPY OF COMPLAINAT DATED 02.02.2010. EXT.R2: COPY OF ORDER DATED 4.2.10 ISSUED BY ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR. EXT.R3: CERTIFIED COPY OF LETTER DATED 17.2.11 ISSUED BY DISTRICT POLICE SUPERINTENDENT. EXT.R4: TRUE COPY OF CRIME NO.83/11 REGISTERED BY TANUR POLICE DATED 21.2.11 OBTAINED UNDER RTI ACT. EXT.R5: CERTIFIED COPY OF REPORTS IN THE COURSE OF & Ext.R6 : INVESTIGATION OF CRIME NO.83/11 FILED BEFORE JFCM PARAPPANANGADI. EXT.R7: CERTIFIED COPY OF REPORT DATED 27.4.2011 FILED BY DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU BEFORE COURT OF ENQUIRY COMMISSIONER AND SPL. JUDGE, THRISSUR. EXT.R8: ORDER DATED 25.5.2011 OF SECRETARY, THANALLOOR GRAMA PANCHAYAT. EXT.R9: LETTER BY DATED 25.7.2011 BY DIRECTOR OF PANCHAYAT TO SECRETARY, THANALLOOR GRAMA PANCHAYAT. EXT.R10: COPY OF RESOLUTION NO.12 DATED 03.08.2011 OF THANALLOOR GRAMA PANCHAYAT OBTAINED UNDER RTI ACT.** **RESPONDENTS' EXHIBITS: NIL** ## **//true copy//** **P.S. To Judge** **sk/-** ## **S.S.SATHEESACHANDRAN, J.** **----------------------------------------** ## **E.P.No.5 of 2011** **---------------------------------------Dated this the 13[th] day of August, 2012** ## **JUDGMENT** The above election petition has been filed challenging the election of the 1[st] respondent, the returned candidate of Thanoor Assembly Constituency in the General Elections held in April, 2011, under Section 100(1)(a) of the Representation of the People Act, 1951 {hereinafter referred to as “the Act”} read with Sections 81, 82 and 84 of the Act. 2. Petitioner is one among the candidates,who contested the election from Thanoor Assembly Constituency from which the 1[st] respondent was declared elected as the returned candidate. Respondents 2 and 3 are two other candidates who too had contested, and lost the election. Notice issued on the election petition, the 1[st] respondent, the returned candidate alone responded and resisted the petition, and the other two respondents, after service, remained ## **E.P.No.5 of 2011** ## **:: 2 ::** absent. Petitioner contested the election as a candidate of the Communist Party (Marxist) and the first respondent as the candidate of the Indian Union Muslim League. 1[St] respondent had won the election by a margin of 9433 votes, over and above the votes polled by the petitioner, the next nearest rival candidate. Petitioner seeks a declaration of the election of the 1[st] respondent/returned candidate as void alleging that the above respondent, his election agent and other agents of him, with his consent and knowledge, committed corrupt practices under Section 123 of the Act. 3. Corrupt practice imputed against the 1[st] respondent, to challenge his election as void, as narrated in his election petition, can be summed up thus: Petitioner was previously the President of the Thanaloor Grama Panchayat. He was also ## **E.P.No.5 of 2011** ## **:: 3 ::** the Area Secretary of the Communist Party of India (Marxist) of Thanoor. He was the most probable candidate of the above party as a contestant of Thanoor Assembly Constituency was known much before the nominations were called for and, in fact, news items also appeared in the papers that he would be the candidate for his party. Similarly, it was also widely known that the 1[st] respondent would be the candidate of the Muslim League, a constituent of the United Democratic Front from the above constituency. According to the petitioner, the 1[st] respondent and his men had resorted to malicious attempt to malign and defame the petitioner raising false allegations against him and members of the Thanaloor Grama Panchayat, who were backed by the Marxist Party since they foresaw the defeat of the candidate of the Muslim League by the 1[st] respondent. A petition was filed before the ## **E.P.No.5 of 2011** ## **:: 4 ::** Vigilance Court raising false allegations of amassing of wealth by the petitioner and his allies by issuing false residency certificates. Though the Vigilance Court had directed an enquiry to consider whether any prima facie case has been made out to proceed against the accused persons named on the complaint, later allegations raised in the complaint had been found to be incorrect and a refer report was filed by the investigating agency. To malign the petitioner, the 1[st] respondent resorted to other grave and unscrupulous methods of causing publication of defamatory statements against him in newspapers that hundreds of fabricated residency certificates were issued during his tenure as the President of the Panchayat Committee. Such a news item was published in Mangalam Daily immediately preceding the submission of the nomination by the petitioner. ## **E.P.No.5 of 2011** ## **:: 5 ::** At the instance of the 1[st] respondent, bit notices were also affixed all through the Thanoor Constituency demanding the immediate arrest of the petitioner and the Ex-Vice President of the panchayat alleging that they have amassed lakhs of rupees issuing false certificates. Publication of bit notices stating that the area committee of the Muslim League had called for a police station march on 12.3.2011 for the arrest of the petitioner, was published to defame him knowing fully well that there is no truth in the allegation raised. Petitioner getting knowledge of the publication of the bit notices containing defamatory statements immediately filed a petition before the Election Commissioner of the State for taking action against the 1[st] respondent and his agent. After the election was declared, the 1[st] respondent continued the activities for maligning the ## **E.P.No.5 of 2011** ## **:: 6 ::** reputation of the petitioner and, in fact, he centralised the campaign raising false allegations against the petitioner which was schemed and prepared even before the nominations were submitted. The defamatory publication and propaganda against the petitioner continued even after the filing of the nominations. Popularity of the petitioner worried the 1[st] respondent and therefore, to hamper the chances of his success methods for defaming him raising false allegations were adopted by the 1[st] respondent. In speeches made during the election campaign the petitioner was targeted personally by the 1[st] respondent raising unfounded and baseless allegations knowing them to be false and unfounded that he was personally involved in issuing fake residency certificates and that the Vigilance Court had issued a notice to him. Bit notices containing statement that ## **E.P.No.5 of 2011** ## **:: 7 ::** the Muslim League is conducting a march to the police station on 12.3.2011 was affixed throughout the constituency, after acceptance of the nomination of the candidature of the petitioner by the 1[st] respondent through his agents and workers on 25.3.2011, 27.3.2011, 28.3.2011 and 10.4.2011. Agents and workers of 1[st] respondent, who included Haneefa, Palatt House, Kunungal, K.Puram and Madampatt Hamza, Madampatt House, K.Puram, Thanoor, were involved in such activities. Such affixing of bit notices was done to mislead the voters and also to make out that the notices were published much before the final candidature was decided. A news item was also published in an election journal published by the Muslim League daily, Chandrika, through its Election Bulletin 'Janasabdam' dated 12.4.2011 under the caption ## **E.P.No.5 of 2011** ## **:: 8 ::** “To jail after election” {ത�രഞ�െ�ഞട�പ� കഴ�ഞ�ല ജയ�ല�േ�ലയ��”}. Allegations of corruption were published in that news item defaming the petitioner imputing that false residency certificates had been issued by him along with the Vice President of the Panchayat, as part of corrupt activities done, and that both of them are facing Vigilance Enquiry and Police Investigation, and, after election, both will be arrested and marched to jail. Such news item was published in a daily which was widely read in the constituency one day preceding the election knowing that the statements made are absolutely false, at the instance of the 1[st] respondent, and by the election agent of the 1[st] respondent Sri.P.T.K.Kutty, who was then the Mandalam Secretary of the Muslim League. It was on account of the corrupt practices adopted by the 1[st] respondent, his election agent and also his workers with his ## **E.P.No.5 of 2011** ## **:: 9 ::** knowledge and consent in publishing the defamatory and false allegations and publications, the petitioner lost the election by a margin of 9433 votes, and if there had been a free and fair election he would have won the election from the constituency, is the case of the petitioner to declare that the election of the 1[st] respondent from the Thanoor Assembly Constituency is null and void and inoperative, and, setting aside the election of the 1[st] respondent, to declare him the elected candidate from that constituency. 4. The 1[st] respondent has filed a written statement in which refuting the allegations of corrupt practices imputed against him in the election petition, he has challenged the very maintainability of the petition as well. He was the candidate of UDF from Thanoor Constituency. Whereas he got 51549 votes, his nearest rival, the ## **E.P.No.5 of 2011** ## **:: 10 ::** petitioner, got only 42116 votes, and thus having obtained majority of 9433 votes than the nearest candidate he was declared the returned candidate. Pointing out that the election to the legislative assembly was declared by the Election Commission only on 1.3.2011 the respondent has disputed the case of the petitioner that much before the date fixed for filing of the nomination papers he was declared as the official candidate of the Marxist Party. Petitioner was declared as the candidate by his party only on 18.3.2011 and the 1[st] respondent by his party, the day before 17.3.2011, is his case contending that till such official declarations came, there was no idea who would be the candidate contesting from the respective party from the constituency. He was the sitting MLA from the constituency during the period 2006-11 and, therefore, everyone knew that if he ## **E.P.No.5 of 2011** ## **:: 11 ::** contested the election as a candidate again he would surely win. He had not indulged in any activity, nor instructed anybody much less the members of the Muslim League in making or publishing any allegations against any member of the Thanaloor Grama Panchayat. Allegations imputed in the election petition to the contrary that such activities were carried at his instance and behest even before the date fixed for calling nomination papers are totally unworthy and devoid of any merit. A complaint was then pending before the Vigilance Court against the petitioner and five others for offences under the Indian Penal Code and Prevention of Corruption Act, was a fact known to everybody. After the filing of the election petition, he had obtained a copy of such complaint, and further enquiries made by him revealed that a report had been filed after a preliminary enquiry that the ## **E.P.No.5 of 2011** ## **:: 12 ::** allegations made in the complaint are true, but, the involvement of the petitioners and others in the issue of fake ownership certificates from the panchayat could not be established during such enquiry. Police has also registered another crime case over the issue of such certificates, according to this respondent. He has not resorted to any unethical method to tarnish the name of the petitioner and no publication was made in any newspaper at his instance about the alleged issue of fabricated residency certificates, according to the 1[st] respondent. So far as the bit notices and publications made, copies of which are produced with the election petition, the respondent contends that he has nothing to do with them, and he is not liable or responsible for such publications. He has not made any publication to defame the petitioner, and the election expenditure statements filed by ## **E.P.No.5 of 2011** ## **:: 13 ::** him would also indicate that no such publication was published by him. Allegation imputed that during the election campaign in the election speeches he had targeted the petitioner raising defamatory statements against him to damnify his reputation is also refuted contending that he never made any such speech as alleged. He also contended that Haneefa and Madampatt Haneefa who are stated to be his election agents were not so, and, they were not even his workers in the election. Affixing of bit notices in different parts of the constituency against the petitioner through his agents and workers is denied by the respondent as wholly false, contending that he had not resorted to any corrupt practice as alleged. He has also disputed his liability and responsibility for the publication alleged to have been caused in Janasabdam daily. That publication has no circulation in the Thanoor ## **E.P.No.5 of 2011** ## **:: 14 ::** Constituency. It was not published at the instance of his authorised election agent or any of his workers or supporters. The election was free and fair and on account of his popularity he secured the majority of votes and was elected as the representative of the people of the constituency, and his election is not liable to be declared as void for any or all the grounds canvassed by the petitioner, which are totally unfounded, baseless and devoid of any merit, is the case of the 1[st] respondent. 5. Subsequently, by way of amendment, which was permitted by order in I.A.No.14/11, the 1[st] respondent had raised challenges over the maintainability of the election petition, which had been canvassed earlier as well, furnishing more particulars to do so, setting forth a contention that the election petition has not been filed complying with the mandatory ## **E.P.No.5 of 2011** ## **:: 15 ::** requirements under Section 83(1) of the Act, and also the rules covered by the Conduct of Election Rules inasmuch as the petitioner has not stated in his affidavit specifically the source of information over the corrupt practices imputed against the 1[st] respondent to impeach his election as the returned candidate as void. 6. The election petition challenging his election, in short, is liable to be dismissed with costs, is the case of the 1[st] respondent. 7. On the pleadings of the parties, the following issues were raised for trial: 1. Is the election petition not maintainable for absence of particulars of corrupt practices alleged to impeach the election of the returned candidate - 1[st] respondent ? 2. Has the 1[st] respondent - the returned candidate from No.44 of Tanur Constituency to the Kerala Legislative Assembly, made, published, indulged or circulated, directly, and through his ## **E.P.No.5 of 2011** ## **:: 16 ::** agents and workers, defamatory publications harming the reputation of the petitioner, knowing them to be false, to advance his election prospects and, thereby, committed corrupt practices as alleged, vitiating his election as the returned candidate from the constituency ? 3. - Is the election of the 1[st] respondent as the returned candidate from No.44 of Tanur Constituency to the Kerala Legislative Assembly liable to be declared as null and void and inoperative, and to be set aside ? 4. Is the petitioner entitled to a declaration that he is the duly elected candidate from No.44 of Tanur Constituency to the Kerala Legislative Assembly ? 5. Further reliefs and costs. 8. On the side of the petitioner, Pws.1 to 6 were examined and Exts.P1 to P5 series were exhibited. The 1[st] respondent examined five witnesses as Rws.1 to 5 and got exhibited ## **E.P.No.5 of 2011** ## **:: 17 ::** Exts.R1 to R7. Exts.X1 and X2 summoned through court were also exhibited in evidence. 9. PW.1 is the petitioner. He gave evidence in support of his petition as pleaded for. PW.2, an elector in the Thanoor Assembly constituency, supported the case of the petitioner that his election prospects have been damaged to a considerable extent by the publication of damnifying statements against him in newspapers and affixture of posters. He would also state that he had seen the news item published, but, after the election, captioned as “after the election the way is to jail”, and also two boys affixing posters in the presence of Palatt Haneefa. His further version is that he had seen bit notices affixed as early on 12.3.2011 and also towards the end of March, 2011, and on one occasion, on the night of 28.3.2011, he had also seen the affixing of such posters while he ## **E.P.No.5 of 2011** ## **:: 18 ::** was returning home. PW.3 is another voter from the constituency, who has a stationery shop close to the panchayat office. He also claimed of witnessing the affixing of posters containing damnifying statements against the petitioner on the outer wall of a building situate close to the panchayat office during the last week of March, 2011. Among the persons present, at the time of affixing such posters, according to this witness, Palat Haneefa, a local leader of the Muslim League, was also there. Publication of the news item containing damnifying statements against the petitioner caused his defeat, and, otherwise he would have won by a margin of 5000 votes is his evidence. PW.4 is another voter of the constituency, who also gave evidence that the publications made damnifying the reputation of the petitioner had caused damage to his election prospects. He is conducting a bakery. He ## **E.P.No.5 of 2011** ## **:: 19 ::** claimed of witnessing the affixing of posters beside his shop, and, according to him, one among those who were seen affixing the posters was P.T.K.Kutty, an active participant of the Muslim League. PW.5 is another elector from the constituency. He also gave evidence that the defeat of the petitioner in the election was on account of the widespread false allegations damnifying his reputation. Allegations against the petitioner damnifying his reputation were published through posters that he had amassed wealth issuing bogus residency certificates, and just before the day of the election a news paper containing a news item captioned “after election to jail” imputing false allegations against the petitioner was circulated in the constituency, is the evidence of this witness. He would also claim of witnessing the affixing of a poster by Muslim League Workers, who included Palatt ## **E.P.No.5 of 2011** ## **:: 20 ::** Hamza. During the election campaign, speeches were made imputing false allegations against the petitioner, and he heard some such speeches by Palat Haneefa, P.T.K.Kutty and the 1[st] respondent in a meeting held near his shop, is his further evidence. Allegations imputed against the petitioner over the issue of bogus residency certificates, according to him, are totally false. PW.6 was examined to show that he had caused publication of a news paper 'Janasabdam' containing a captioned news item “after election to jail” imputing false allegations of corruption against the petitioner damnifying his reputation, just before the election, and that was done under the instructions of the 1[st] respondent. Disputing and denying such allegation, the witness stated that he is an agent of Chandrika newspaper. He would state that he had printed 3000 copies of the paper, containing ## **E.P.No.5 of 2011** ## **:: 21 ::** the aforesaid news item, but, according to him, it was not circulated. Over the printing and publishing of such paper, neither the 1[st] respondent nor his election agent or anyone connected with the Muslim League had any role, is his evidence. He denied emphatically the suggestions made that Ext.P5(a) news item was published to damnify the reputation of the petitioner to affect his election prospects knowing that the allegations are false and untrue, and, that it was done at the instance of the 1[st] respondent and his election agent. 10. On the side of the 1[st] respondent, he was examined as RW.1, and four other witnesses were examined as Rws.2 to 5. Refuting the allegations of corrupt practice imputed against him of having made publications through posters, newspapers and speeches damnifying the reputation of the petitioner during the election ## **E.P.No.5 of 2011** ## **:: 22 ::** campaign materially affecting the election prospects of the petitioner he asserted that neither he nor his election agent or any of his agents with his consent and knowledge, had done any such corrupt practice against the petitioner. 11. RW.2 gave evidence that he had filed a report over the complaint relating to the issue of bogus residency certificates from the Thanaloor panchayat, on the enquiry ordered on a complaint by the Vigilance Court. He would state that a preliminary enquiry alone in the matter was conducted and that did not reveal any involvement of the petitioner in the issuing of bogus residency certificates. RW.3, Sub Inspector of Police, Thanoor Police Station, gave evidence that a complaint was received over the issue of bogus residency certificates from the panchayat and a crime registered thereof, is now ## **E.P.No.5 of 2011** ## **:: 23 ::** pending investigation. He also gave evidence that during the election campaign on a complaint received a crime was registered over the affixing of posters containing damnifying statements against one of the candidates, who contested the last General Elections from the Thanoor Assembly Constituency. RW.4 is the present District Collector of Malappuram District, within which the Thanoor Assembly Constituency is situate. Statements filed by the 1[st] respondent pertaining to the day to day expenditure during his election campaign and abstract of the election expenses incurred were exhibited through this witness as Exts.X1 and X2. He would state that verification of the statements filed is done by the election officer and not by him, and the statements have been forwarded by him to the Election Commission. RW.5 is presently the Secretary of **:: 24 ::** ## **E.P.No.5 of 2011** the Thanaloor Grama Panchayat. He gave evidence that over the issue of bogus residency certificates from the panchayat police has registered a case. On the basis of the fake residency certificates some persons got electric connection to buildings unauthorisedly put up. Subsequent thereto, steps have been taken by the panchayat, according to the witness, for demolishing such unauthorised constructions. Since he took over charge as the secretary of the panchayat only from the first week of January, 2012, he has no direct knowledge over the issue of the fake residency certificates from the panchayat is his further evidence. ## Issue Nos.(1) and (2): 12. These two issues in the given facts of the petition and evidence let in require to be considered together. ## **E.P.No.5 of 2011** ## **:: 25 ::** 13. In the election petition corrupt practice falling under sub-section (4) of Section 123 of the Act, that alone, is imputed to set aside the election of the returned candidate, the 1[st] respondent, and to declare the petitioner as the duly elected candidate from the Thanoor Assembly Constituency. Sub-section (4) of Section 123 of the Act reads thus: “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 or 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.” 14. The learned counsel for the petitioner has urged before me that the challenge raised in the election petition on the ## **E.P.No.5 of 2011** ## **:: 26 ::** aforesaid ground to declare the election of the returned candidate as void is canvassed strictly under Section 100(1)(b) of the Act that the corrupt practices imputed have been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. The petitioner has no case, it is conceded, to impeach the election on the corrupt practice imputed as one falling under Section 100(1)(d)(ii) of the Act, which as distinct from Section 100(1)(b) of the Act referred to above for its acceptance demand establishing by convincing evidence that the corrupt practice committed in the interests of the returned candidate by an agent, other than his election agent has materially affected the result of the election insofar as it concerns ## **E.P.No.5 of 2011** ## **:: 27 ::** the returned candidate. At the outset, before going into the materials tendered in the case, I have adverted to the above aspects to state that the adjudication of the two issues under consideration has to be done taking note of the assertion of the learned counsel for the petitioner that challenge against the election of the returned candidate is based on corrupt practice committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent as falling under Section 101 (b) of the Act to declare his election as void. That being so, the question that emerges for consideration on the pleadings and materials placed is whether the petitioner has succeeded in establishing by legal evidence that the returned candidate or his election agent or any ## **E.P.No.5 of 2011** ## **:: 28 ::** other person with the consent of the returned candidate or his election agent has committed corrupt practice covered under Section 123(4) of the Act by causing publication of any statement of fact, which is false or believes to be false or does not believe to be true, in relation to the personal character or conduct of the petitioner with calculation to prejudice his election prospects. 15. In the election petition, petitioner imputes of corrupt practice of publication of false statements damnifying his reputation before and after the notification issued calling for the nomination papers to contest the election. Paragraphs 4 and 5 impute of allegations of such corrupt practice before the notification calling for nominations and paragraphs 7 to 9 impute of allegations of such ## **E.P.No.5 of 2011** ## **:: 29 ::** corrupt practice after such notification was issued. So far as a challenge against the election of a returned candidate corrupt practice imputed must be one which was committed only after the notification calling for nominations and not before {See Mohan Rawale v. Damodar Tatyaba alias Dadasaheb and others [1994 KHC 1132}. So much so, the imputations made by the petitioner over the damnifying statements allegedly made against him before the notification for nomination was issued, by itself would not be a corrupt practice to impeach the election of the returned candidate. But, it may have relevance or significance if it is shown that they have some nexus or connection with the corrupt practices over the publication of damnifying statements at a later stage after the ## **E.P.No.5 of 2011** ## **:: 30 ::** notification calling for nomination was issued, which alone could be a ground to impeach the election of the returned candidate under Section 123(4) of the Act. 16. After finalisation of the candidates, the contestants of the elections, once the process of acceptance and rejection of the nomination papers submitted by the candidates was over, the 1[st] respondent centralised his campaign maligning the petitioner using false allegations to thwart his election from the constituency, is the case of the petitioner. 1[St] respondent resorted to corrupt practice making defamatory publications and propaganda that the petitioner was personally involved in issuing of fake residency certificates since he was worried of the popularity of the petitioner, is ## **E.P.No.5 of 2011** ## **:: 31 ::** his further case. In his speeches, the 1[st] respondent specifically imputed that the petitioner is an accused in a vigilance case and that he is facing allegations over the issuance of false certificates. Bit notices putting a date prior to the election, of a march taken by the Muslim League against the issue of fake residency certificates and for arrest of those involved was affixed all through the constituency subsequent to the acceptance of the nomination papers. That was so done to mislead the voters and also make it appear that it was published before the final candidature was decided. A news item was also published in an election journal published by the Muslim League daily publication Chandrika in its election bulletin named Janasabdam dated 12.4.2011, with a caption “To jail after ## **E.P.No.5 of 2011** ## **:: 32 ::** election”. Allegations to defame the petitioner were included in the news item imputing corruption by him and also the Vice President of the panchayat over the issue of fake residency certificates stating that they are facing Vigilance enquiry and police investigation and that they will be marching to jail after the election. Though the said paper was pre-dated wide circulation of that paper was done just on the previous day before the date fixed for election, calculated with the intend to defame the petitioner and affect his election prospects raising false allegations knowing them to be false. That was done at the instance of the 1[st] respondent and also by the election agent of the 1[st] respondent and P.T.K.Kutty, who is the Secretary of the Muslim League, is the case of the petitioner. Solely on ## **E.P.No.5 of 2011** ## **:: 33 ::** account of the aforementioned defamatory and false allegations he lost the election by a margin of 9433 votes, and if there was a free and fair election, he would have been elected to the assembly from that constituency, is his case to declare the election of the 1[st] respondent as void and his election from that assembly constituency. 17. The pivotal question emerging for consideration on the allegations set out in the election petition and also the evidence let in, is whether the petitioner has succeeded in establishing his case that the 1[st] respondent or his election agent either directly or with the consent or knowledge of any of the agents or workers of the 1[st] respondent, has indulged in corrupt practice of causing publication of statements damnifying the reputation of the ## **E.P.No.5 of 2011** ## **:: 34 ::** petitioner assailing his personal conduct and character, knowing that such statements are false or having reason to believe that they are false with intend to affect the prospects of his election as a candidate from the constituency. In the context, it is to be taken note of that, as per the allegations set out in the petition, the corrupt practice as aforesaid is imputed against the 1[st] respondent, on three grounds: - (i) Publishing bit notices containing false statements that the petitioner had amassed wealth by issuing fake residency certificates while he was the President of the Thanaloor Grama Panchayat and such notices were affixed throughout the constituency during the course of the election campaign to reduce his esteem and reputation before the electors. - (ii) The first respondent, his election agent and also other leaders of the Muslim League, in their speeches, during the election campaign held at ## **E.P.No.5 of 2011** ## **:: 35 ::** various meetings in different places in the constituency, made false allegations imputing the personal conduct and character of the petitioner castigating him of having issued fake residency certificates and amassing wealth, knowing them to be false, with the mala fide intend to reduce his esteem, and thereby affect his chances of winning the election. - (iii) At the instance of the 1[st] respondent, and his chief election agent, viz., Sri.P.T.K.Kutty, a publication of a news item was made in a paper Janasabdam, which was printed at the Chandrika Press, from where the newspaper of the Muslim League was published, containing false allegations that the petitioner has indulged in corruption, captioning such news item that “After election, he will be marched to jail”. 18. Though at the stage of evidence the petitioner has tried to bring in material through the witnesses more particulars over the publication alleged to have been made ## **E.P.No.5 of 2011** ## **:: 36 ::** damnifying his reputation at the instance of the 1[st] respondent, his election agent and workers, perusal of the election petition spells out that over the imputations made, which are referred to above, details or particulars which are necessary to make out a case of corrupt practice by such publication, are not given. As already indicated, paragraphs 7 to 9 of the election petition deal with the corrupt practices alleged to have been committed by the 1[st] respondent, the returned candidate, in the publication of bit notices, posters and also making of speeches damnifying the reputation of the petitioner with false allegations and thereby affecting his election prospects. In paragraph 7 of the petition, other than stating that the popularity of the petitioner worried the 1[st] respondent and the ## **E.P.No.5 of 2011** ## **:: 37 ::** other constituents of the UDF and, therefore, they have pre-planned a smearing campaign against the petitioner even before the election process started, nothing more is available. In paragraph 8, the petitioner refers to the making of speeches, and publication of bit notices and affixing them throughout the constituency after acceptance of the nomination papers and finalisation of the candidates to contest the election. The bit notices contained a statement that the Muslim League planned a march to the police station on an earlier date. So far as the speeches purported to have been made by the 1[st] respondent damnifying the reputation of the petitioner raising false allegation that he is an accused in a vigilance case involving corruption over the issue of bogus residency ## **E.P.No.5 of 2011** ## **:: 38 ::** certificates from the panchayat, no particulars are given, at what place, on what date and time those speeches have been made and who were present in such meetings. Other than a bald allegation that 1[st] respondent made such speeches the petition does not contain even a whisper at what place and under what circumstance during the election campaign he is stated to have made the speeches imputed of. If that was the case with respect to the speeches, so far as the publication of the bit notices over the protest march of the Muslim League volunteers which was pre-dated, but published and affixed after finalisation of the candidates of the constituency, here also other than stating that such bit notices were affixed in various parts of the constituency on different dates, nothing more at what places ## **E.P.No.5 of 2011** ## **:: 39 ::** such affixtures were made, who had witnessed them and who were involved in such affixture and what was the reason to hold, if at all there was such an affixture in the constituency, it was done at the instance of the 1[st] respondent or his election agent or with their consent or knowledge of any other worker is furnished. Production of a copy of a bit notice with the election petition or leading oral evidence that such bit notices were published in different parts of the constituency without furnishing any particulars thereof in the election petition is hardly sufficient to sustain the allegation of corrupt practice in relation to such publication against the 1[st] respondent. 19. Paragraph 9 of the petition deals with the corrupt practice imputed in the publication of a news item captioned as “To jail ## **E.P.No.5 of 2011** ## **:: 40 ::** after election” in a local election bulletin named Janasabdam dated 12.3.2011. Other than stating that, that election bulletin was published by the Muslim League in the press publishing “Chandrika” daily and it contained specific allegations defaming the petitioner to the effect that false certificates were issued as part of corruption by the petitioner and Vice President of the panchayat and they are facing vigilance enquiry and police investigation and after election, they will be marched to jail, there is nothing even to indicate who had published that election bulletin, at what point of time it was published, where it was circulated and in what way it affected the election prospects of the petitioner. Petitioner would allege that the news came in the election bulletin one day ## **E.P.No.5 of 2011** ## **:: 41 ::** preceding the election and that it was widely read in the constituency, and that it was due to the aforementioned defamatory and false allegation that the petitioner lost the election by a margin of 9433 votes. It is also stated in paragraph 9 of the petition that such publication was at the instance of the 1[st] respondent,by the election agent of the 1[st] respondent viz., Sri.P.T.K.Kutty, who is the Mandalam Secretary of the Muslim League. However, when evidence was let in the petitioner canvassed a case that it was published by one Palatt Hamza, an active Muslim League worker and such publication was made by him at the instance of the 1[st] respondent and his election agent. That Palatt Hamza examined as PW.6, admitting its publication refuted the allegation that it was ## **E.P.No.5 of 2011** ## **:: 42 ::** at the instance of the 1[st] respondent or his election agent. He also contended that the paper was not circulated, though he had printed 3000 copies thereof. That publication was printed at Chandrika Press where Chandrika Daily, which is stated to be an official publication of the Muslim League, which sponsored the 1[st] respondent as its candidate, was attempted to be projected as a circumstance to connect the 1[st] respondent with the publication. At which press that publication of election bulletin was made, without anything more, does not in any way show that the 1[st] respondent or his election agent was in any way connected with such publication, even if it contained any defamatory statement against the petitioner. So, as a whole, on the allegations set out in the ## **E.P.No.5 of 2011** ## **:: 43 ::** election petition, covered in paragraphs 7 to 9, essential features to disclose even the commission of corrupt practice by the returned candidate under sub-section (4) of Section 123 of the Act have not been made out by the petitioner. In the incomplete data of such allegations raised in the petition over the corrupt practices imputed, which lacked material particulars to sustain such a case for assailing the election of the returned candidate, it is needless to point out that the evidence produced to prove the case set up, the edifice of which is found to be shaky, cannot unsettle the election of the 1[st] respondent, a returned candidate. 20. The learned counsel for the petitioner adverting to the evidence of PW.6 contended that he is a Muslim League follower ## **E.P.No.5 of 2011** ## **:: 44 ::** and the acts done by him in publishing a newspaper containing false statements just prior to the election and its wide circulation among the voters of the constituency would clearly spell out that such acts had been intended to advance the election prospects of the 1[st] respondent. It is the further submission of the counsel that Ext.P5 paper Janasabdam in which such false imputations against the petitioner were made was published in Chandrika Press, the official daily of the political party Muslim League whose candidate was the 1[st] respondent. Reliance is placed by the counsel in Pratap Singh v. Hardwari Lal {AIR 1970 SC 1500} to contend that when the statements published are shown to be false and could not be believed to have been true and such statements affected the personal ## **E.P.No.5 of 2011** ## **:: 45 ::** character and conduct of the candidate contested the election, it could be treated that it has marred the election process of the candidate. Such publication of false statements causing prejudice to the prospects of the petitioner in the election at the instance of the party workers and followers of the respondents definitely would constitute corrupt practice under Section 123(4) of the Act, and as such the election of the 1[st] respondent is liable to be set aside as vitiated by corrupt practices carried out by him, is the submission of the counsel. I do not find any merit in the submissions made by the counsel. 21. Mere publication of some defamatory statements against one or other candidate contesting the election by itself cannot be a ground to impeach the election of ## **E.P.No.5 of 2011** ## **:: 46 ::** the winning candidate on the premise that some corrupt practice was carried out in the election. The Supreme Court in Joseph M. Puthussery v. T. S. John {2011(1) SCC 503} has held in unequivocal terms that “to fasten vicarious liability on the returned candidate for any corrupt practice done in connection with the election, there must be concrete proof as to his involvement or by his election agent in commission of such corrupt practices”. In the above decision it has been held thus: “To prove the corrupt practice of a third party who is attributed of doing corrupt practice under Section 123(4) of the RP Act, it must be shown that the candidate consented to the commission of such act.”. 22. Not only that there is no specific pleading in the election petition in what manner the respondent/the returned candidate or his election agent committed or even ## **E.P.No.5 of 2011** ## **:: 47 ::** consented to the commission of any corrupt practice, even the allegations raised as to any other third party carrying out the corrupt practices in relation to the election to advance the prospects of the returned candidate are too vague and totally unworthy of acceptance. PW.6 has published a newspaper containing some defamatory statements forming the election prospects of the petitioner and it was widely circulated among the voters and affixed certain posters raising false imputations against him by themselves are hardly sufficient without anything more to impeach the election of the 1[st] respondent as the returned candidate where no specific case with necessary foundation has been set up that he or his election agent or any other agent with the consent of such candidate or agent has ## **E.P.No.5 of 2011** ## **:: 48 ::** committed any corrupt practice to improve the prospects of his election and such activities by them has affected the result of the election. 23. In the light of the discussion made above, it has to be concluded that the election petition is not maintainable since it lacked even material facts to sustain the challenge to assail the election of the returned candidate/ 1[st] respondent, and that there is no iota of evidence to show that the 1[st] respondent committed any corrupt practice to harm the election prospects of the petitioner, a contesting candidate in the election. Issue Nos.1 and 2 are found against the petitioner. Issue Nos.3 and 4: 24. In the light of the findings entered on issue Nos.1 and 2 as above, no further dilation on these issues are called for. Suffice to state ## **E.P.No.5 of 2011** ## **:: 49 ::** that the election of the returned candidate/1[st] respondent is not liable to be interfered on any ground whatsoever. 25. There is no merit in the challenge raised against the election of the 1[st] respondent from Thanur Legislative Assembly Constituency. In the result, the election petition is dismissed with costs of the 1[st] respondent, quantified at Rs.5,000/-. Registry shall communicate the substance of the decision on the election petition to the Election Commission and the Speaker of the State Legislative Assembly forthwith, and, forward a copy of the judgment to the Election Commission as and when it is ready, in terms of Section 103 of the said Act. Sd/(S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//