Arshad, P.P. vs Nellancheri Musthaffa and Another

K. Padmanabhan Nair, J.—The First Appeal from Orders is filed by the Respondent in O.P. (Election) No. 109/2005 on the file of the District Court, Manjeri. C.R.P. 997/2006 is filed by the Petitioner in the above said original petition. The F.A.O. is filed by the returned candidate challenging the judgment of the court below declaring his election from Ward No. 14 (Paravanna Division) of Tirur Block Panchayath as void. The C.R.P. is filed by the Petitioner against that part of the order of the court below by which it held that debt due to Kerala State Financial Enterprise is not a debt due to Government within the meaning of Section 34(1)(j) of the Kerala Panchayath Raj Act (Act for short) and hence a candidate who is in arrears to K.S.F.E. and fails to discharge the debt even after the expiry of the period specified in a bill or notice served on him is not disqualified for being chosen as and for being a member of Panchayath.

The parties are referred to as arrayed in the Original Petition. The Petitioner and Respondents were candidates for the election to local bodies held on 26-9-2005. They contested from ward No. 14 (Paravanna Division) of Tirur Block Panchayath. The 1st Respondent was declared elected. The Petitioner filed O.P. (Election) 109/2005 for a declaration that the election of the 1st Respondent was void. It was averred that the 1st Respondent was disqualified for being chosen as and for being member of the Panchayath. In paragraph 2 of the original petition it was averred that the 1st Respondent was a subscriber to a chitty conducted by the Kerala State Financial Enterprises (K.S.F.E. for short). He bid the chitty and received Rs. 1,34,322. It was further averred that he committed default in payment of the future subscription from 15-8-1998 and K.S.F.E. had issued a demand notice claiming arrears with 12% interest from 15-8-1998 to the 1st Respondent. He did not repay the amount within the time-limit despite the receipt of the demand notice, and hence disqualified to contest for election. It was further averred that the 1st Respondent filed nomination paper suppressing those facts and contested for the election held on 26-9-2005. This fact came to the notice of the Petitioner only a few days prior to the filing of the petition. It was averred that 1st Respondent suppressed material facts and hence his election to Block Panchayath is to be declared void.

Along with the original petition the Petitioner filed an affidavit. In the affidavit also it was averred that 1st Respondent suppressed the fact that he was a defaulter to the K.S.F.E. and he filed nomination paper suppressing that fact.

The 1st Respondent filed a counter contending that the election petition is not maintainable. It was contended that necessary parties for the election petition were not made parties. The returning officer was not made a party. Affidavit filed along with the petition was defective. It was contended that the affidavit filed along with O.P. by the Petitioner was an incomplete one and as such the 1st Respondent was not in a position to file his objections. The contention that the 1st Respondent suppressed the fact that he was a defaulter to K.S.F.E. was denied. It was specifically contended that there was no specific allegation as to how the 1st Respondent was disqualified to contest election. It was contended that a reading of the Original Petition gives an impression that the Petitioner intends to raise a ground that 1st Respondent was disqualified u/s 34(i)(j) of the Act. It was contended that K.S.F.E. is a separate entity of Government of Kerala Undertaking, but it is not a limb of Government. It was contended that even accepting the contention that the amounts were due to K.S.F.E., the same was not a disqualification to contest for election. It was contended that the Petitioner was fully aware of the fact that the 1st Respondent was a qualified candidate. Hence he prayed for the dismissal of the original petition.

Petitioner gave oral evidence as P.W. 1 Ext. X-1 to X-3 were proved and marked. First Respondent did not adduce any evidence. The learned District Judge found that arrears due to K.S.F.E. is not an amount due to Government or Panchayath and a defaulter to K.S.F.E. is not disqualified for being chosen as and for being a member of a Panchayath u/s 34(i)(j) of the Act. It was found that 1st Respondent did not disclose the fact that amounts were due from him to the K.S.F.E. in the details to be furnished in Form No. 2A prescribed under Rule 6(2a) of the Kerala Panchayath Raj (Conduct of Election) Rules, 1995 (Rules for short) filed along with the nomination paper and hence he cannot be deemed to be qualified to be elected to fill the post of member of Block Panchayath as provided u/s 52(1A) of the Act. It was further held that the details furnished by the 1st Respondent were fake. His election was declared void u/s 102(1)(ca) of the Act. The 1st Respondent has filed First Appeal from Orders challenging that part of the order by which his election was declared void. Challenging the finding of the Court below that 1st Respondent was not disqualified for being chosen and for being a member of Panchayath as provided u/s 34(1)(j) of the Act the Petitioner in the election petition has filed the Civil Revision Petition.

The following points arising for consideration in these proceedings.

(i) whether the finding of the trial Court that a person who is a defaulter to the Kerala State Financial Enterprises is not disqualified to contest election as arrears due to K.S.F.E. is not arrears due to Government or Panchayath within the mischief of Section 34(1)(j) of the Panchayath Raj Act is correct?

(ii) Whether the finding of the court below that the details furnished by 1st Respondent along with the nomination were fake and hence his election is to be declared as void is correct?

Point No. 1 in the Civil Revision Petition

Ext. X-1 is the File No. 542/1999 of K.S.F.E., Thrissur which contains 137 pages. The Petitioner had produced a demand notice issued by the K.S.F.E. to the 1st Respondent demanding an amount of Rs. 1,47,125. Ext. X-1 reveals the following facts. The 1st Respondent was a subscriber to a chitty conducted by K.S.F.E. He bid the chitty and received the amount executing a bond. First Respondent had agreed to repay the amount, in instalments. He committed default in payment of the instalments from 15-8-1998. Since he refused to repay the amount in spite of repeated requests proceedings under Revenue Recovery Act was initiated against the 1st Respondent. The Special Thasildar (Revenue Recovery) issued a demand notice u/s 7 of the Revenue Recovery Act asking him to pay an amount of Rs. 1,47,125 with 12% interest from 15-9-1998. The 1st Respondent received the demand notice on 25-9-1999. In spite of receipt of the demand notice on 25-9-1999, the 1st Respondent did not pay the amount. Hence the Respondent was in arrears to the tune of Rs. 1,47,125 to K.S.F.E. The 1 st Respondent filed W.P.(C) 5365/2004 before this Court challenging the demand notice. This Court disposed of the writ petition holding that in case the 1st Respondent remits a sum of Rs. 30,000 within one month and makes an application for some instalment facility before the Branch Manager of K.S.F.E. within two weeks, further proceedings pursuant to attachment notice issued to him will be deferred till a decision taken and communicated to him. First Respondent neither deposited Rs. 30,000 nor filed any application. The amount due to K.S.F.E. as on 25-3-2004 was Rs. 2,01,008. First Respondent had not paid any amount thereafter. It is also trite law that what is incurred by a prized subscriber when he is allowed to draw the kuri amount is a debt in present See C.J. John v. Oriental Kuries Ltd. 1994 (2) KLT 353. For the reasons best known to the Tahsildar (Revenue Recovery) and the officials of K.S.F.E. no further action to recover the arrears was taken. Hence he was a defaulter to K.S.F.E. as on the date of filing of nomination, on the date of scrutiny and on the date of election.

But that alone is not sufficient to hold that he was disqualified u/s 34(i)(j) of the Act for being chosen as and for being a member of Panchayath. Section 34(1)(j) of the Act reads as follows.

Disqualification of candidates.- (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat at any level if he-

(a) ....

(b) ....

(c) ....

(d) ....

(e) ....

(f) ....

(g) ....

(h) ....

(i) ....

(j) is in arrears of any kind due by him to the Government or the Panchayat concerned (otherwise than in a fiduciary capacity) up to and inclusive of the previous year in respect of which a bill or notice has been duly served upon him and the time, if any, specified therein for payment has expired; or

(k) ....

(kk) ....

(l) ....

(m) ....

(n) ....

(o) ....

(p) ....

(2) ....

A reading of Section 34(1)(j) makes it clear that all types of arrears will not come under the mischief of Section 34(1)(j) of the Act. It must be shown that the arrears are due either to Government or Panchayath. The Petitioner had no case that any amount was due from the 1st Respondent to the Panchayath. The question arising for consideration is whether the 1st Respondent who was in arrears to K.S.F.E. for which he had received a demand but failed to pay the sum within the time specified in that demand notice can be treated as a defaulter u/s 34(i)(j) of the Act and disqualified to contest for the election to Panchayath. It is not disputed that the K.S.F.E. is a Government undertaking. But that does not mean that arrears due to a Government Undertaking is a debt due to Government. It is true that the amounts due to K.S.F.E. can be recovered by initiating recovery proceedings under the provisions of the Revenue Recovery Act. The mode of recovery is not the decisive factor. The provisions of R.R. Act are made applicable for recovery of debt due to various Government owned companies and undertakings. K.S.F.E. may be an instrumentality of State under Article 12 of the Constitution of India but it is not a Government within the meaning of Section 34(1)(j) of the Act.

The concepts of ''State'' and ''Government'' may not signify much difference to a layman. But there is a vital and clear difference between Government and State. See Padmanabhan Nair v. K.S.E. Board 1987 (1) KLT 895.

In Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others, it was held as follows:

A state implies the existence of a community or group of people occupying a geographical area or territory in which they permanently reside possessing internal sovereignty and independence of foreign control and a political organisation or agency through which the collective will of the people is expressed and enforced. The last of the elements of a State referred to above is generally called as a Government.

In view of the legal position stated above the position is clear that 1st Respondent was a defaulter to K.S.F.E. But K.S.F.E. is not Government so as to attract the mischief of Section 34(1)(j) of the Act.

The learned Counsel appearing for the Petitioner has relied on the decision reported in Ramachandran v. Omanakuttan 2002 (3) KLT 603 wherein it was held that the amount due to the Agricultural Rural Development Bank is arrears due to the Government. Principles laid down in that decision can have no application to the facts of the case at hand. So the 1st Respondent was not disqualified to contest the election as a member of Panchayath. I confirm the finding of the District Court on that point. So the Civil Revision is liable to be dismissed.

Point No. (ii)

The learned District Judge found that the 1st Respondent suppressed material facts in the details furnished in Form No. 2A filed along with nomination paper and hence the details were fake. In view of that finding his election was declared void. Originally a candidate contesting for election to the Panchayath at any level need only to file the nomination paper. The Kerala Panchayath Raj (Fourth Amendment) Act 2005, Act 30 of 2005 was passed amending Sections 52 and 102 of the Act with effect from 28-8-2005. Section 52(1A) was introduced in the parent Act. It reads as follows:

Presentation of nomination paper and requirements for a valid nomination.-

(1) .... (1A) Every candidate submitting nomination under Sub-section (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along with such nomination, the details regarding this educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his families, liabilities including arrears due from him to any public sector undertaking or government or local self government institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 in the form and manner as may be prescribed)

So every candidate who files nomination paper is bound to give the details enumerated u/s 52(1A). He shall not be deemed to be qualified to contest the election unless he furnish true and correct details. He shall not conceal material facts or give any false statement. Clause (ca) was introduced to Sub-section (1) of Section 102 of the Act. It reads as follows:

Section 102. Grounds for declaring election to be void.-

(1) Subject to the provisions of Sub-section (2) if the Court is of opinion-

(a) ....

(b) ....

(c) ....

(ca) that the details furnished by the elected candidate under Sub-section (1A) of Section 52 were fake or)

(d) ....

(i)

(ii) ....

(iii) ....

(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) ....

Consequent to the amendment of Sections 52 and 102 of the Act, Rules framed under the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 were also amended. Rule 6 was amended and Sub-rule 6(2a) was incorporated. It reads as follows:

Nomination of Candidates.-

(1) ....

(2) ....

(2a) Every candidate shall submit before the Returning Officer, the details in Form No. 2A along with the nomination paper.

Existing Rule 9 was renumbered as Sub-rule 1 and Sub-rule (2) as introduced. It reads as follows:

Publication of list of nomination.-

(1) ....

(2) Copy of the details submitted by the candidate under Sub-rule (2a) of Rule 6 shall be published along with the list of nomination papers published under Sub-rule (1) and the copies thereof shall be issued to other candidates and media free of cost.

After Form No. 2, Form No. 2A was added.

The following are the material portions of Form No. 2A

Form 2A

Election to the.... *Village Panchayat/Block Panchayat/District Panchayat from.... Constituency No. ....

I...son/daughter/wife of...aged...residing at...house, a candidate at the above election, do hereby solemnly affirm and state on oath as under.

A. Details of movable assets

(In the case of properties in joint ownership the extent of right of each one shall be indicated)

....

....

B. Details of immovable assets

(In the case of properties in joint ownership the extent of right of each one shall be indicated)

....

....

(3) I give herein below the details of my liabilities/arrears due to Public Sector Undertaking or Government or Local Self Government Institutions:

....

....

(4) My educational qualifications are as under:

(Give details of School, University Education)

(Name of School, University and the year in which the course was completed should be given)

....

....

(5) If disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, the details thereof

VERIFICATION

I, the deponent named...do hereby verify and declare that the contents herein are true and correct to the best of my knowledge and belief; No part of it is false and nothing material has been concealed therefrom

Dated this the...day of....

Place....

....

Signature of the candidate

Clause 3(a)(ii) specifically deals with loans from Public Sector Undertaking. K.S.F.E. is a Public Sector Undertaking. As such the 1st Respondent was legally bound to give details of arrears to K.S.F.E. under Clause 3(a)(ii) of the Act in Form No. 2A.

In Clause 3(a)(ii) the 1st Respondent had written NIL. That was deliberate suppression of a liability to a Public Sector Undertaking.

Section 52(1A) enjoins that every candidate who contest for election to any level of Panchayath is bound to furnish true and correct details regarding the 5 matters enumerated in Form No. 2A along with the nomination paper. Those details should be published along with nomination papers. The other candidates as well as media are also entitled to get copies of the details furnished in Form No. 2A free of cost.

The Act was amended with a laudable object. It is intended to maintain purity of election and to bring transparency to the process of election. Transparency of process of election includes transparency of candidate who seeks election also.

Section 33B was introduced in the Representation of People Act, 1951 with effect from 2-5-2002 in compliance with the directions of Supreme Court in Union of India v. Association for Democratic Reforms and Anr. AIR 2002 S.C. 2186 it was held as follows:

In a democratic form of Government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy, voters are required to be educated and well-informed about the contesting candidates. Such information would include assets held by the candidate.

It was also held that voter (little man citizen) has got fundamental right to know the antecedents of a candidate including criminal past of the candidate.

In Peoples Union of Civil Liberties (PUCL) v. Union of India AIR 2003 S.C. 2353 it was held as follows:

Right of a voter to know bio data of a candidate is the foundation of democracy. The old dictum-let the people have the truth and the freedom to discuss it and all will go well with the Government-should prevail.

The provisions in Section 52(1A) of the Act is in pari meteria with the provisions of Section 33 of the Representation of Peoples Act.

The details in Form No. 2A is to be filed in the form of an affidavit. The candidate has to affirm that no part of the same is false and nothing material has been concealed.

If any candidate fails to furnish any one of the details or furnish a detail which is false to his knowledge he is not qualified for chosen to fill a seat in a Panchayath in any level. It is only furnishing a false detail. That makes the declaration a fake one. Omission to furnish any one of the details also will have the same effect. Ext. X-2 is the nomination paper filed by the 1st Respondent Ext. X-3 is the details furnished by him in Form No. 2A along with the nomination paper. The Respondent suppressed the details of liability due from him to the K.S.F.E. and hence a fake one. So he cannot be deemed to be qualified to contest the election, as enjoined u/s 52(1A) of the Act.

Even though there is evidence to prove that the declaration filed by the 1st Respondent along with the nomination was fake one that alone is not sufficient to grant relief to the Petitioner in the Original Petition. The Petitioner has got another hurdle to cross. I had already discussed about the averments in the original petition. A reading of the election petition shows that the one and only ground raised in the election petition is that the 1 st Respondent was disqualified u/s 34(i)(j) of the Act to contest the election. The omission to furnish the details u/s 52(1A) is not a disqualification though such a person shall not be qualified to fill the post. There is clear distinction though very subtle, between disqualifications u/s 34 and not being qualified u/s 52(1A) of the Act. There is total absence of averments to attract violation of Section 52(1A) of the Act in the Original Petition. In the affidavit filed along with the Original Petition also, there is no averment to the effect that the 1st Respondent concealed any material fact in Form No. 2A and hence the details furnished by him u/s 52(1A) were fake. The Petitioner gave oral evidence. He filed affidavit in lieu of the chief examination. There was no statement in the affidavit filed in lieu of the chief examination to the effect that 1st Respondent concealed any material facts in the details in Ext. X-3. He was again orally examined in chief. Exts. X-1 to X-3 were marked. Even at that time the Petitioner did not depose that the 1st Respondent concealed any material fact in the details in Ext. X-3. So there is absolute lack of pleadings on this point though there is evidence to prove that fact.

It is trite law that the right to contest an election is not a common law right, but it was confined to the provisions of the Act and the Rules made thereunder.

In Jyoti Basu and Others Vs. Debi Ghosal and Others, the supreme Court while considering similar provision in the Representation of Peoples Act, held as follows:

Right to elect, to be elected or to dispute election are neither fundamental rights nor common law rights but are confined to the provisions of the Representation of the People Act and Rules made thereunder. Being statutory rights the remedies are limited to those provided by relevant statutory provisions.

In Rama Kant Pandey Vs. Union of India, it was held that "right to vote or to stand as a candidate and contest election are not fundamental civil right, but purely statutory right and, therefore, subject to statutory limitations". In Jaipal Singh Vs. Smt. Sumitra Mahajan and Another, the candidate was the member of an Indian Administrative Service having 40 years of service to his credit. He sought voluntary retirement to contest the Rajyasabha election. His nomination was rejected. He challenged the rejection in an election petition. That petition was dismissed. The Apex Court held that even though he had made every averments he failed to state in the election petition that on the date of scrutiny he was not holding an office of profit. It was also held that, that was a material fact which the Petitioner should have pleaded so that the returned candidate would not be taken by surprise.

In Ajay Kumar Poeia Vs. Shyam and Others, the returned candidate contested as a member of a Scheduled Caste though he was not a member of Scheduled Caste. In the original petition it was averred that the returned candidate contested fraudulently in a seat which was reserved for Scheduled Caste, it was also averred that he filed nomination paper describing him as a Scheduled Caste. He adduced evidence also on that aspect. But he failed to raise a plea that the returned candidate was not a member of Scheduled Caste but all other averments to show that the returned candidate was not a member of the Scheduled Caste were made. The Apex Court held that though the averments in the paragraphs containing grounds regarding improper acceptance of nomination papers filed by 1st Respondent on the ground that he was not member of Scheduled Caste the same cannot be treated to be a statement containing requisite material facts, which, if proved, would entitle Petitioner reliefs sought for and dismissed the election petition.

In Shushil Kumar v. Rakesh Kumar 2003 S.C.C. 673 the Apex Court held that pleadings in an election petition must be construed strictly. It was held as follows:

The pleadings in an election petition must likewise be construed strictly. The provisions of the CPC apply to an election petition. The election petition is not an action at law or a suit in equity. It is a special proceedings and even withdrawal of an election petition may not be permitted.

The principles discussed above applies to an election petition filed under the Kerala Panchayath Raj Act also.

In this case there is no averments in the original petition or in the affidavit that 1st Respondent concealed any material fact in Form No. 2A filed along with the nomination paper. Oral evidence was not adduced. So the Petitioner is not entitled to get a relief of declaration u/s 102(1)(ca). The judgment of the Court below is liable to be set aside. The F.A.O. is to be allowed.

In the result the F.A.O. and C.R.P. are disposed of in the following manner.

F.A.O.219/2006 filed by the returned candidate is allowed. The judgment passed by the District Court declaring election of 1st Respondent/Appellant as void is hereby set aside. The election petition is dismissed.

The C.R.P. No. 997/2006 is dismissed. Parties are directed to suffer their cost throughout.

Communicate a copy of this judgment to the Election Commissioner as well as to the President of the Panchayath for necessary action.

The office shall re-transmit the records forthwith, with a direction to the court below to return the file produced by Special Tahsildar (Revenue Recovery) to him after keeping certified true photocopies of the necessary documents if any, so as to enable the K.S.F.E. to continue with the recovery proceedings. Forward a copy of this judgment to K.S.F.E. with a direction to take back the file forthwith as the same is essential for proceeding against the 1st Respondent.