T.K. Mohanan v. V.D. Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934** ## **CRP.No. 733 of 2008 ( )** **----------------------{IN CMA.74/2007 OF THE ADDL. DIST. COURT (ADHOC)-II, KALPETTA IN OP(ELE)NO.8/2005 OF THE MUNSIFF MAGISTRATE, SULTHAN BATHERI}** **REVISION PETITIONER(S)/RESPONDENT/PETITIONER:** **-----------------------------------------------------------------------------** **T.K.MOHANAN, AGED 46 YEARS, S/O.KUNJU, THONIKUZHI HOUSE, MANALVAYAL POST, IRULAM SULTHAN BATHERY TALUK, WAYANAD DISTRICT.** **BY ADV. SRI.RAJESH NAIR** **RESPONDENT(S)/APPELLANT/RESPONDENT::** **----------------------------------------------------------------** **V.D.JOSEPH, S/O.DEVASSIA, "VAZHAYIL HOUSE", MANALVAYAL POST, IRULAM SULTHAN BATHERY TALUK, WAYANAD DISTRICT.** ## **BY ADV. SRI.TPM.IBRAHIM KHAN** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sk/-** **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------C.R.P.NO.733 OF 2008 ----------------------------------Dated this the 5[th] day of February, 2013** ## **O R D E R** Challenge in the revision is against the judgment of the learned District Judge, Wayanad in appeal reversing the Order of the learned Munsiff, Sulthan Bathery, who set aside the election of the respondent. 2. The respondent was elected as member from Ward No.7 in Poothadi Grama Panchayat in the General Election held on 26.09.2005. His election was challenged by petitioner, one among the contesting candidates from that Ward who came next to the returned candidate with a margin of seven votes less. Having secured the majority of votes, respondent was elected the returned candidate from that Ward. Petitioner assailed the election of respondent contending that in Form 2A application furnished with his nomination paper, all his assets and that of his wife were not disclosed. Though he listed several items as not included in the assets of respondent and his wife, in Form 2A, **C.R.P.No.733/2008** **2** after trial, the learned Munsiff found non-furnishing of three items alone among those listed can be accepted. Non-furnishing of information over those three items would render Form 2A furnished by the returned candidate a fake was the view formed by the learned Munsiff to set aside his election. However, in the appeal preferred by the respondent, learned District Judge after re-appreciating the pleadings and also the evidence came to the conclusion that non-supply of information over the three items pointed out by petitioner in his original petition which found approval with the learned Munsiff would not have materially affected the result of the election, and as such, conclusion formed by the Munsiff that Form 2A application of the respondent was a fake to set aside his election, cannot be sustained. In that view of the matter, the decision rendered by the learned Munsiff was reversed and the election petition was dismissed. Against the judgment so rendered by the appellate court, petitioner has come up with this revision. 3. Learned counsel for petitioner argued that in appreciating a challenge for setting aside election on the ground **C.R.P.No.733/2008** **3** that Form 2A furnished with the nomination paper by the returned candidate was fake, whether that had materially affected the result of the election has no bearing as the only question is Form 2A furnished by returned candidate was fake or not. Section 102 (1) (ca) of the Kerala Panchayat Raj Act, for short, the 'Act', deal with the grounds for declaring an election of returned candidate to be void, and, where the details furnished by the elected candidate under Section 52 (1A) of the Act were fake, there is no requirement to establish further that such a fake document has materially affected the result of the election, according to the counsel. Only in respect of grounds covered by Section 102 (1) (d) of the Act, it has to be shown over and above establishing any of the ground thereunder, according to the counsel, that it has resulted in materially affecting the result of the election. Upsetting of the decision of the learned Munsiff setting aside the election of the returned candidate by the learned District Judge in appeal holding that petitioner over and above showing that Form 2A furnished by the returned candidate was a fake had to establish that such fake Form furnished materially affected the result of the election is **C.R.P.No.733/2008** **4** erroneous and unsustainable, submits the counsel. So much so, the decision rendered by the learned Munsiff has to be restored setting aside the judgment of the learned District Judge, is the submission of the counsel. No ground has been made out for exercise of revisional jurisdiction to upset the decision of the learned District Judge which has been rendered after reappreciation of the entire materials in the case, is the submission of the counsel for respondent. He also contended that even if the view taken by the learned District Judge over the ground falling under Section 102 (1) (ca) of the Act is erroneous, on the facts and circumstances established in the case and materials produced it cannot be stated that Form 2A furnished with the nomination by the returned candidate is a fake, to render his election void. 4. I do find some force in the submission made by learned counsel for petitioner that the view taken by the learned District Judge that over and above establishing that Form 2A furnished by the returned candidate was fake how the result of the election was materially affected thereby is also to be established, to **C.R.P.No.733/2008** **5** declare the election of the returned candidate as void, is erroneous and unacceptable. As rightly pointed out by the learned counsel only in respect of the four grounds covered by Section 102 (1) (d) of the Act over and above establishing the ground thereunder it has to be shown further that the result of the election has been materially affected by the ground so proved to declare the election of the returned candidate void. The grounds on which election of a returned candidate can be declared as void is covered by Section 102 of the Act, which reads thus: **102. Grounds for declaring election to be void:--** (1) Subject to the provisions of sub-section (2) if the Court is of opinion-- - (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act; or - (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or - (c) that any nomination has been improperly rejected; or - 1[(ca) that the details furnished by the elected candidate under sub-section (1A) of Section 52 were fake; or] - (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-- - (i) by the improper acceptance of any **C.R.P.No.733/2008** **6** nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent; or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Court shall declare that the election of the returned candidate to be void. (2) ...................................... (the rest not required and hence omitted) In respect of a ground covered by Section 102 (1) (ca), the person who challenges the election of the returned candidate need only show that the details furnished by the elected candidate under Section 52 (1A) of the Act were fake. That alone, is the requirement necessary to get a declaration that the election of the returned candidate is void. 5. In the present case the larger question remains whether on the allegations raised and materials placed has the petitioner established his case that Form 2A furnished with the nomination paper by the returned candidate/respondent was fake, to render **C.R.P.No.733/2008** **7** his election void ? His case on the above ground setting forth particulars of several items of assets not furnished in Form 2A by the respondent was accepted only with respect to three of them by the learned Munsiff to declare the election of the returned candidate as void. Perusing the election petition, it is seen, the petitioner has only alleged that the details furnished in Form 2A with respect to the assets of the respondent and also his wife with his nomination paper was incomplete. He has no case that there was material suppression of any assets willfully and intentionally by the respondent/returned candidate. What are the three items of assets which are stated to have been not furnished which found acceptance by the Munsiff to treat Form 2A fake also require to be taken note of. The respondent in Form 2A furnished details of the buildings possessed by him but he has not stated the plinth area of those buildings was one of the reasons to contend that his Form was incomplete. The second one was he and his wife possessed some shares in a bank but the details thereof were not furnished. Lastly, he was a member of an unregistered association and though he resigned he still had some assets in that association and it was **C.R.P.No.733/2008** **8** not furnished in Form 2A submitted by him. So far as the non-furnishing of particulars of the plinth area of building or buildings, where no specific statutory requirements compel him to do so, the details furnished over ownership of the building showing the extent of the property in which it is situate would be sufficient. With respect to non-mentioning of the share certificates in the Form he explained that those share certificates had been handed over to a broker much earlier to filing of the nomination paper for effecting sale. He believed that sale might have taken place at the time of filing nomination. Having regard to the nature of assets that too kept by him in paper form and assignable through a broker it cannot be stated that there was suppression over such assets in Form 2A. Retaining some assets in a non-registered association and non-mentioning that in Form 2A, it has come out in evidence that the respondent had resigned his membership from that association much earlier and that association was involved in some philanthropic activities. It was in fact a co-operative venture by a group of persons styled as a “ ”. After looking into the records of that association, a non-registered one, **C.R.P.No.733/2008** **9** which were summoned and produced before the court, and noticing that some members who had resigned from the association had collected some amount as their share value, the learned Munsiff formed a conclusion that the respondent even after his resignation, still, retained some assets towards share value in that unregistered association. Such an inference is impermissible when challenge is against the election of a returned candidate who has secured majority of the votes. Result of an election of a returned candidate cannot be upset on mere surmises and conjectures, but, only on a strict proof of the ground covered by the Statute. 6. I have already pointed out that petitioner even in the election petition has no case that the returned candidate materially suppressed any of his assets but only that Form 2A furnished by him with his nomination paper was incomplete. Does it render his Form 2A a fake is the question to be looked into. This Court in **Somasekharan Nair v. Divakaran Pillai (2010 (2) KLT 1022)** has held thus: **C.R.P.No.733/2008** **10** “Without imputing that Form 2A filed by the revision petitioner is fake for the reason that there was material suppression of fact, what is stated is that there is violation of Section 102(1)(ca) and 52 (1A) of the Panchayat Raj Act in not furnishing the liabilities under the loan in the affidavit. The Act does not provide that if the details furnished in Form 2A of the returned candidate are not correct, his nomination paper should have been rejected or his election is liable to be set aside. Election of a returned candidate could be set aside under cl.(ca) of sub-section (1) of Section 102 of the Panchayat Raj Act only if the details furnished by the elected candidate in Form 2A were 'fake'. Unless the petitioner in the election petition impute the material facts, in what way the Form 2A furnished with the nomination paper of the returned candidate is fake and then lead evidence to prove such allegations that it is fake no finding is called upon that question.” In **Gopalakrishnan v. Sarasi (2009 (2) KLT 882)** , it has been pointed out that on omission of details it could be stated that details furnished are not accurate or complete, but, it cannot be stated the details furnished are false or fake. Non-furnishing of the plinth area of the buildings stated in Form 2A or of some assets, shares obtained in the name of the returned candidate and his wife, and also, share value in an unregistered association while furnishing Form 2A, at best, can be considered only as **C.R.P.No.733/2008** **11** omissions, which, at the most, would render the information supplied as incomplete but not render that Form a fake. So, I do not find any ground to interfere with the decision of the learned District Judge reversing the order passed by the learned Munsiff declaring the election of the returned candidate void. Revision lacks merit, and it is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp