The Kerala Thandan Maha Sabha v. Binu G. Dharan & K. Mohankoyikal

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 22ND DAY OF AUGUST 2014/ 31ST SRAVANA, 1936** **RSA.No. 459 of 2014 ()** **----------------------AS 91/2013 of ADDL.DISTRICT COURT-II, MAVELIKKARA OS 330/2011 of MUNSIFF COURT, HARIPAD -----------------APPELLANT/RESPONDENTS 3 & 4/DEFENDANTS 3 & 4 :-** **-------------------------------------------------** **1. BINU.G. DHARAN (ERRONEOUSLY SHOWN AS BINU G DHASAN IN THE JUDGMENT), AGED 59 YEARS, VAZHASSERITHEKKATHIL PUTHUPPALLY SOUTH MURIM PUTHUPPALLY VILLAGE.** **2. K.MOHANKOYIKKAL, AGED 57 YEARS,** - **KOYIKKAL VEEDU, VERUVALLI BHAGAM, KAYAMKULAM.** **BY ADVS.SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP** **SRI.MANU SEBASTIAN** **RESPONDENTS/APPELLANT & RESPONDENTS 1,2,5 & 6/PLAINTIFF AND DEFENDANTS 1,2,5 & 6 :-** **------------------------------------------------------------** **1. V. DIVAKARAN, AGED 59 YEARS, S/O.LATE VELAYUDHAN, DIVYA BHAVANAM, PALACE WARD, KAYAMKULAM 690 502** **2. KERALA THANDAN MAHA SABHA REPRESENTED BY GENERAL SECRETARY KERALA THANDAN MAHA SABHA, OACHIRA P.O KOLLAM DISTRICT 690 526** **3. RETURNING OFFICER, KTMS TALUK, UNION ELECTION, K.N SASI SMITHA BHAVANAM, MULLAKKERI, PANMANA P.O KARUNAGAPPALLY 691 583** **4. UNION COUNCILLOR IN CHARGE NO 12, VERUVALLIBHAGAM SAKHA, V.DIVAKARAN, CHERIYELIKIZHAKKATHIL, ERUVA EAST KAREELAKULANGARA 690 572** **5. SECRETARY, KTMS SAKHA 41, N.K VIJAYAN MANNISSERIKIZHAKKATHIL PUTHUPPALLY NORTH PUTHUPPALLY VILLAGE 690 527** **R1 BY ADV. SRI.M.V.THAMBAN SRI.R.REJI** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2014, ALONG WITH RSA. 460/2014 & RSA. 482/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.BHAVADASAN, J. ----------------------------R.S.A. Nos.459, 460 & 482 of 2014 -----------------------------------------------Dated this the 22[nd] day of August 2014** ## **J U D G M E N T** The Kerala Thandan Maha Sabha is a registered organisation of members of Thandan community of Kerala State and it was registered under the Companies Act with register No.46/1950. For the purpose of administrative convenience Sabha has a three tier administrative hierarchy. The organisation at the root level is Sakha, in the taluk level taluk union and the State Sabha. 2. These proceedings are concerned with the election for the period of 2011-2014 in the Taluk Union as well as Sabha. 3. RSA No.459/2014 arises out of O.S.No.330/2011 and RSA No.460/2014 arises out of O.S.No.337/2011. The ## R.S.A. Nos.459, 460 & 482 of 2014 -: 2 :- two suits were jointly tried and disposed of by common judgment. The appellants in these two appeals contested for both the Director Board of the Karthikapally Taluk Union and governing body of Sabha. They were successful in getting elected to the respective posts. 4. RSA No.482/2014 arises out of from O.S.No.331/2011, which was independently tried and disposed of by the trial court, which relates to the post of Union President at the Taluk level to which the appellant contested and successful in the election for the period 20112014. 5. The facts necessary for the disposal of these appeals are as follows :- The claim of the plaintiffs in all these suits was that the respective persons contesting for the various posts did not have the necessary qualifications to hold that posts and their nominations were wrongfully accepted. It is R.S.A. Nos.459, 460 & 482 of 2014 -: 3 :- averred in the plaint that in order to contest to the governing body of the Taluk Union and so also to the Sabha, it is necessary that apart from the person concerned being a permanent member, he should have worked as an administrative member of Sakha or Union Council atleast for a period of three years as the case may be. The plaintiffs in all these three cases allege that the persons who had elected to the various posts did not have basic qualification ie; the administrative experience and therefore, they were disqualified to be elected and that the election may be set aside. 6. In all these three cases, the defence taken is that the respective persons were fully qualified and submitted required certificates to the Returning Officer and they had the necessary administrative experience. There were also a contention that the conduct of election was strictly in compliance with the Election Rules. The appellants also R.S.A. Nos.459, 460 & 482 of 2014 -: 4 :- contended that they were duly elected as per the Rules. 7. The evidence in O.S.Nos.330 and 337 of 2011 were jointly tried though issues were raised in each of these cases. The plaintiff was examined as PW1 and the documents were marked as Exts.A1 to A3 from the side of the plaintiff. DWs.1 and 2 were examined and documents Exts.B1 to B4 were marked from the side of the defendants. 8. In O.S.No.331/2011 also issues were raised and parties were went to trial. The evidence consists of testimony of PW1 and document marked as Ext.A1 from the side of the plaintiff and the contesting defendant was examined as DW1 and Ext.B1 document was marked. 9. In all these suits, the trial court on evaluation of the evidence came to the conclusion that since the case of the plaintiffs was that, the certificates produced at the time of filing of nomination papers showing that each of them had sufficient administrative experience was fabricated, ## R.S.A. Nos.459, 460 & 482 of 2014 -: 5 :- forged and concocted and as those documents were not before the court it is not possible so as to come to the conclusion whether the allegations are false or true. If that be so, it is not possible in the absence of those documents to rely them as fabricated or concocted. Consequently all three suits were dismissed. 10. The plaintiffs in all these suits carried the matter in appeal. The lower appellate court holding that since the plaintiffs had filed application calling upon the Secretaries of respective Sakhas to produce the documents to show that these candidates had the requisite administrative experience in relation to the certificate issued and as those documents were not produced, adverse inference had to be drawn against the contesting persons and holding so, the lower appellate court interfered with the judgment and decree of the trial court and the suits were decreed as prayed for. Therefore, the candidates who are affected are ## R.S.A. Nos.459, 460 & 482 of 2014 ## -: 6 :- before this Court. ## 11. The following substantial questions of law are ## raised in these appeals :- - (i) Was the lower appellate court justified in law in drawing adverse inference against appellants for the non-production of the records relating to the certificates produced by them before the Returning Officer by the Secretary of the respective Branches of the Sabha ? - (ii) Was the lower appellate court justified in casting the burden of proof on the defendants when in the election matter it is well settled that it is for the petitioners to establish the ground for invalidating the election ? 12. Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellants in all these cases contended that, even assuming that Rules 8 and 9 of the Election Rules have to read together the plaintiffs cannot succeed in the suit so long as they had not called for the nomination papers filed by these persons which were found to be valid by the Returning Officer on the basis of which they were elected. Even though, the learned counsel ## R.S.A. Nos.459, 460 & 482 of 2014 -: 7 :- went on to contend on the basis of Rule 8 of the Election Rules, namely; Ext.A1, which according to him, will have to read independently that it is only necessary to be a permanent member of Sakha to contest for the governing body and Rule 8 does not speak of administrative experience in the governing body, the learned counsel more serious about the qualification prescribed under Sec.9 of the Election Rules. The learned counsel relying on the decision reported in **Union of India** v. **Ibrahim Uddin and Another** [2012 KHC 4379 (Vol.3 SN 19) (SC)] contended that the act of the lower appellate court in drawing adverse inference against the appellants for the non-production of so called documents by the Secretary of the Sabha was without legal sanction. Even assuming that the Secretary concerned had failed to produce the documents, that could not have been a ground to draw adverse inference as against the appellants herein as they R.S.A. Nos.459, 460 & 482 of 2014 -: 8 :- were not asked to produce the documents. 13. Learned counsel went on to contend that as rightly noticed by the trial court that the nomination papers along with certificates were not called and produced before the court. The certificates alleged to have been produced by the appellants concerned alleging them to be concocted or fabricated could not presumed to be so merely based on the presumption that since the Secretary of the Sabha or the Taluk Unions had failed to produce the documents, based on which the certificates had been issued, the election could not have been set aside. The learned counsel also contended that the summons to produce the documents was taken out in the personal name and the records show that, that person was not the Secretary and custodian of documents at the relevant time. 14. According to the learned counsel, being a dispute regarding election, the entire burden is on the plaintiffs to R.S.A. Nos.459, 460 & 482 of 2014 -: 9 :- show that the concerned candidates were not qualified. The issue cannot be decided on the basis of preponderance of probabilities as in a civil case. It is contended on behalf of the appellants that the evidence in an election case is also like a criminal case, that it must convincing and cogent so as to set aside the election. The cardinal principle of election law has been given a go by by the appellate court and the finding is based on solely the adverse inference drawn, which according to the learned counsel, is impermissible in law. 15. Learned counsel for the respondents with vehemence contended that from the very beginning, even at the time of filing of nomination papers a specific objection was made to the acceptance of the nominations of these persons that they were not qualified to be elected to the respective posts as they did not have requisite administrative experience as envisaged under Rule 9 of the R.S.A. Nos.459, 460 & 482 of 2014 -: 10 :- Election Rules. It is for the candidates to prove that they had the necessary experience. Relying on I.A.No.870/2012 in O.S.No.330/2011 where the plaintiff called upon the then Secretary of the respective Sakha to produce relevant minutes book relating to the appellants in RSA Nos.459 and 460 of 2014 in proof of their administrative experience, those documents were neither produced nor was any affidavit filed. According to the learned counsel, the person who was directed by the court as per the above I.A. was the current office bearer and assuming that he was not the Secretary, he is not excused from filing an affidavit to that effect and his silence called for adverse inference. Further it is contended that there was obligation on the part of the candidates also to show that they were duly qualified and they should have taken steps to produce relevant documents to prove their qualifications. Relying on the decision reported in **Ismail Pillai M. Haneefa** v. R.S.A. Nos.459, 460 & 482 of 2014 -: 11 :- **Mohammedali Vaidyan** [2007 (3) KLT 503], the learned counsel for the respondents contended that the lower appellate court was justified in drawing adverse inference and decreeing the suit as prayed for. According to the learned counsel, there are no grounds to interfere with the finding of the lower appellate court. 16. It may be borne in mind that the case relates to an election dispute. May be that the election is to the Taluk Union or Sabha as the case may be. The principles regarding the election law are well settled. The burden is on the person who alleges that the election is vitiated to establish that fact. If the petitioner has a case that the persons elected to the posts are not qualified for the respective posts, it is for him to establish that fact. The issue cannot be decided on the basis of preponderance of probabilities as it requires proof of much higher degree. 17. On going through the materials available on ## R.S.A. Nos.459, 460 & 482 of 2014 -: 12 :- record and in the light of the law referred to above, it appears that all the contentions raised by the appellants involve serious consideration. The essential question that arises for consideration is whether the plaintiffs have been able to establish that the appellants in these cases were not qualified as per clause (9) of the Election Rules, which is marked as Ext.A1 in O.S.No.330 and 331 of 2011. 18. In order to have a proper understanding of the dispute it may be necessary to extract clauses 8 and 9 of the said Rules. They read as follows :- “(8)Íøø¿ÈÏßW ØíÅßøÞ¢·Äb¢ ©{{ ¦VAᢠæÄøæE¿áMßW ÎÄíØøßAáÕÞÈá{{ ¥ÕµÞÖ¢ ©ZæM¿áJßÏßGáæICßÜᢠRÍøÃèÈÉáÃc¢QådÉÇÞÈ Õß×ÏÎÞÏßAIí ØÍ _åÄÞÜâAí ÄÜ æÄøæE¿áMáµ {ßW ØíÅßøÞ¢·Äb¢ ÜÍcÎÞÏß 3 ÕV×¢ µÝßEÄßÈáçÖ×¢ ÎÞdÄçÎ ØÍÞ_ÄÞÜâAí ÄÜ çÈÄãÄbØíÅÞÈB{ßçÜAí ÎÄíØøßAÞÈá{{ ¥ÕµÞÖ¢ ©IÞÏßøßAáµÏá{{â. (9)ØÍÞ_ÄÞÜâAí ÄÜ çÈÄãÄb ØíÅÞÈB{ßçÜAí ÎÄíØøßAáK ØíÅÞÈÞVjßµZ ¥¿ßØíÅÞÈ ¸¿µÎÞÏ ÖÞ¶Þ ÄÜB{ßçÜÞ ©ÉøßµNßxßµ{ÞÏ ÄÞÜâAí_ØÍÞÄÜ µNßxßµ{ßæÜ ÍøÃØÎßÄßµ{ßçÜÞ ¥¢·ÎÞÏß ÎâKá ÕV×AÞÜæÎCßÜᢠdÉÕVJߺîßøßAâ.” ## R.S.A. Nos.459, 460 & 482 of 2014 -: 13 :- A reading of the two provisions leave one in no doubt that in order to be elected to the governing body of a Taluk Union or Sabha as the case may be, the person concerned must not only be a permanent member of Sakha but also that he must have three years administrative experience in one Sakha, the Taluk or Sabha level. The person elected to the governing body of the Sakha has to acquire prescribed maturity within six months from the date of election to the governing body. 19. The question is whether the appellants satisfy the above conditions. 20. Ext.B1 is the proceedings of the Returning Officer, who conducted election for the Kerala Thandan Maha Sabha, Karthikapally Taluk Union on 11.12.2011. In his proceedings he has stated that objections regarding acceptance of nominations of these persons were raised at the relevant time. All these persons had produced ## R.S.A. Nos.459, 460 & 482 of 2014 **==> picture [37 x 10] intentionally omitted <==** certificates to show that they had the necessary administrative experience. The persons who preferred objections were unable to counter the said certificate and they could not produce any material to show that the certificates were false and therefore, the nominations were accepted. It is also not in dispute that all the persons were elected to the respective posts. 21. The burden is certainly on the plaintiffs to show that acceptance of nominations was bad in law. For the said purpose, the minimum that had to be done by the plaintiffs was to call for the nomination papers along with the certificates produced by the candidates, who have been elected and who claimed to have requisite administrative experience. It is significant to notice that the definite case of the plaintiffs was that the documents produced were concocted and fabricated and these candidates do not have the requisite administrative experience. It is also ## R.S.A. Nos.459, 460 & 482 of 2014 -: 15 :- significant to notice that no documents whatsoever was produced from the side of the plaintiffs to prove that the certificates produced along with the nomination papers are fabricated and concocted. The trial court was, therefore, fully justified in coming to the conclusion that it is necessary to call upon the certificates and nomination papers to have their genuity and validity, that was not done and so, the plaintiffs have to be non-suited. 22. It may be borne in mind at this juncture that the Election Rules says that the person concerned should have three years administrative experience but it does not say that it has to be for a continuous period of three years or which may be a broken period. In order to understand or to know the period during which the appellants claimed to have acted in the administrative capacity at any of the levels of hierarchy, it was absolutely necessary for the plaintiffs to have the documents produced before the court. ## R.S.A. Nos.459, 460 & 482 of 2014 -: 16 :- Thereafter it should have to be ascertained whether the contents of those certificates are correct. Without knowing the contents of the documents it will not possible nor is to proper and just to decide upon its genuineness. They should have called upon the Returning Officer who issued Ext.B1 proceedings to produce in court the nomination papers along with the certificates produced by the respective defendants. 23. It is not necessary as already noticed that the administrative experience should be continuous for a three years experience. The candidates might have functioned in the administrative capacity during various periods. As per the Election Rules, they should have three years administrative experience. 24. Learned counsel for the respondents drew attention of this Court to I.A.No.870/2012, that was a petition filed by the plaintiff in O.S.No.330/2011 calling ## R.S.A. Nos.459, 460 & 482 of 2014 -: 17 :- upon the Secretary of the concerned Sakha to produce relevant minutes book relating to defendants 3 and 4 in RSA Nos.459 and 460 of 2014 respectively on the basis of which the certificates have been issued. There were no response from the person to whom notice was issued. It is therefore, contended relying on the decision reported in **Ismail Pillai M. Haneefa** v. **Mohammedali Vaidyan** [2007 (3) KLT 503] that the lower appellate court was fully justified in drawing adverse inference against the appellants herein. 25. The above decision relied upon by the learned counsel for the respondents, it was a case in which one of the parties to the suit itself was directed to produce the documents and he had not produced the same. The trial court struck off the defendants and decreed the suit and which was confirmed in appeal. Apex Court was of the opinion that the striking off the defendants was not in ## R.S.A. Nos.459, 460 & 482 of 2014 -: 18 :- accordance with law and drawing of adverse inference against the persons is also bad in law. It is observed that it must always be noticed that the adverse inference must draw against whom a direction has been issued to produce documents. 26. The question of drawing adverse inference depends on the facts of each case. It is not obligatory on the part of the court to draw adverse inference against the parties. In the case on hand, it is not the appellants, who have been directed to produce the documents but the Secretaries of Taluk level. 27. Learned counsel appearing for the respondents pointed out that the 6[th] defendant in the suit, O.S.No.330/2011 was the Secretary. However, the evidence would show that the person, who was asked to produce the documents before the court was not the Secretary. It is also significant to notice that the above petition was not filed R.S.A. Nos.459, 460 & 482 of 2014 -: 19 :- directing the Secretary in his official capacity to produce the documents. 28. It is true that, the direction of the court was not complied with. But, it is too difficult to accept the act of drawing of adverse inference as against the appellants for the non-production of the documents by the person who was directed to do so. As already noticed necessarily in the light of the allegation made in the complaint, the nomination papers as well as the certificates produced by the candidates ought to have been called for by the plaintiffs. It is not discernible from the plaint as of now except for saying that they are not qualified, nothing else was stated in the petition. 29. But those documents are not before court. The basic requirement has not been complied with. The finding of the lower appellate court is mainly based on adverse inference drawn on the basis that the 6[th] defendant did not R.S.A. Nos.459, 460 & 482 of 2014 -: 20 :- produce the documents cannot get support of law. Had the nomination papers been called for it would have disclosed the claim regarding the administrative experience put forward by the candidates and that ought to have been verified. The Secretary of the respective Sabha, Sakha, Taluk was summoned to produce the relevant documents and give evidence in that regard. For the above reasons, these appeals are allowed. The impugned decree and judgment of the lower appellate court are set aside and that of the trial court are restored. No order as to costs. **Sd/-** ## **P.BHAVADASAN, JUDGE.** //True Copy// P.A. To Judge Jvt