Dr. P. Pookunhi Koya vs Muhammed Hamdullah Sayed and Others

V. Ramkumar, J.—In this petition filed under Sections 80, 100, 101, 123 and 127A of the Representation of the People Act, 1951 (hereinafter referred to as "the R.P. Act" for short), the Petitioner (Dr. Pookkunhi Koya) challenges the election of the 1st Respondent herein (Muhammed Hamdullah Sayeed) from the U 06 Lakshadweep Parliamentary Constituency (reserved for Scheduled Tribe) in the Parliamentary election held on 16-4-2009 and the result of which was declared on 16-5-2009. The Petitioner was a candidate and nominee of the political party called National Congress Party. The first Respondent returned candidate contested the election as a candidate of the Indian National Congress. The other two contestants were Respondents 2 and 3 (Lukmanual Hakeem and Dr. K.P. Muthu Koya). The 2nd Respondent was the candidate and nominee of the Communist Party of India (Marxist Party) ["the C.P.I.(M)" for short] and the 3rd Respondent was the nominee of the Bharathiya Janatha Party ("the B.J.P." for short).

The dates which are relevant for the purpose of this election petition are flie following:

Date of Election Notification 23-3-2009 2. Last date for filing nomination 30-3-2009 3. Date of scrutiny 31-3-2009 4. Last Date for withdrawal of Nomination 2-4-2009 5. Date of publication of final list of candidates 2-4-2009 6. Date of election 16-4-2009 7. Number of candidates contested 4 8. Date of declaration of election results 16-5-2009

Last date for filing E.P. u/s 81(1) of the R.P. Act 30-6-2009 10. E.P. filed on 30-6-2009 11. Summons issued to the Respondents on 17-7-2009 12. R-1 entered appearance on 7-9-2009

The number of votes secured by the Petitioner and Respondents 1 to 3 are as follows:

Sl. Candidate''s Name Candidates Rank Votes No. in the E.P. secured

Dr. P. Pookunhikoya Petitioner 18294 2. Muhammed Hamdullah Sayed 1st Respondent 20492 3. Lukmanual Hakeem 2nd Respondent 467 4 Dr. K.P. MuthuKoya 3rd Respondent 245

According to the Petitioner the election of the first Respondent is vitiated by the following grounds:

(1) On the date of election the first Respondent was not qualified to be chosen to fill the seat thereby attracting Section 100(1)(a) of the R.P. Act

(2) The first Respondent has won the election on account of the following "corrupt practices" committed by him, his election agent and other persons with the consent of the first Respondent and falling u/s 100(1)(b) of the R.P. Act:

(a) By offering gratification to the electors amounting to "bribery" u/s 123(1).

(b) By directly or indirectly interfering with the free exercise of their electoral right by the voters amounting to "undue influence" u/s 123(2);

(c) By appealing to the voters on the ground of religion and using religious symbols falling u/s 123(3).

(d) By publishing false statements in relation to the personal character and conduct of the Petitioner concerning his candidature and calculated to prejudice the prospects of the Petitioner in the election falling u/s 123(4).

(e) By procuring the services of Government servants for the furtherance of the election prospects of the first Respondent falling u/s 123(7).

(3) Non-compliance of the provisions of the Constitution of India, R.P. Act and rules and orders issued under the R.P. Act constituting a ground u/s 100(1)(b)(iv).

Adv. M/s P. Chandrasekhar and P.M. Mohammed Shiraz the learned Counsel appearing for the first Respondent argued that the election petition was liable to be dismissed for want of specific pleading in terms of the legal provisions relied on by the Petitioner and that election petition does not make out a complete cause of action so as to maintain the election petition. Sr. Advocate Sri M.K. Damodaran appearing for the Petitioner, on the other hand, submitted that the election petition has pleaded the "material facts" as well as the "full particulars" with regard to each and every allegation and that the arguments advanced on behalf of the first Respondent are unsustainable.

The point for consideration is as to whether the Election Petition is liable to be rejected/dismissed as not maintainable at the threshold for want of necessary pleadings and a complete cause of action.

The point: After hearing both sides and after carefully perusing the averments in the Election Petition and after considering the case law on the point I am inclined to accept the contentions urged on behalf of the first Respondent.

The legal principles given below are now well-settled and they do not admit of any doubt or controversy:

A. An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the court possesses no common law power. Jagan Nath v. Jaswanth Singh and Ors. AIR 1954 S.C. 2010; Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad, .

B. Success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. [Vide Jagan Nath''s case (supra)].

C. The purity of the election process has to be safeguarded. The setting aside of an election involves serious consequences not only for the returned candidate and the constituency but also for the public at large in as much as a re-election involves enormous load on the public funds and the administration. Shivajirao B. Patil Kawekar Vs. Vilasrao D. Deshmukh, .

D. The trial of an election petition where "corrupt practice" is alleged is of a quasi criminal nature. A heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge. This is because the charge that a person has committed a corrupt practice has the serious consequence of disqualifying him from being chosen as, or from being a member of any House of the Parliament or of the Legislative Assembly or Council of a State for a period up to 6 years. See Manohar Joshi Vs. Damodar Tatyaba alias Dadasaheb Rupwate and Others, ; State of Orissa Vs. S. Mohanty and Others, ; Ananga Uday Singh Deo Vs. Ranga Nath Mishra and Others, ; Jeet Mohinder Singh Vs. Harminder Singh Jassi, .

E. The provisions of Section 87 of the R.P. Act specifically enjoin that every Election Petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the CPC for the trial of suits. Merely because Section 83 does not find a place in Section 86(1) which enables the High Court to dismiss an Election Petition for non-compliance with the provisions of Sections 81, 82 or 117, it does not mean that the powers under the CPC cannot be exercised to dismiss or reject the Election Petition. Under the CPC the Court has the power to act at the threshold and the said power must be exercised in appropriate cases. In regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy should be set at rest at the earliest, if the facts of the case and the law so warrant. In a case where the election petition is lacking in any essential "material fact", the petition can be dismissed summarily. Vide Azhar Hussain Vs. Rajiv Gandhi, . If the election petition does not disclose a cause of action, even though non-compliance of Section 83 of the R.P. Act is not a ground mentioned in Section 86, the High Court can fall back upon the provisions of the CPC and reject the petition under Order VII, Rule 11 CPC See Lalit Kishore Chaturvedi Vs. Jagdish Prasad Thada and others, ; Virender Nath Gautam Vs. Satpal Singh and Others, . The Court can under Order VI, Rule 15 CPC strike out the pleadings in an election petition which does not disclose any cause of action. If after striking out the pleadings no triable issue remains to be considered, the Court can reject the petition under Order VII, Rule 11 CPC Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, ; Surinder Singh Vs. Hardial Singh and Others, .

F. The distinction between "material facts" and "full particulars" should not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the party in support of the case set up by him either to prove his cause of action or his defence. "Particulars" on the other hand are details in support of "material facts" pleaded by the party. They amplify, refine and embellish "material facts" by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clearandmore informative See Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu and Others, . All facts which are essential to clodie the Petitioner with a complete cause of action are material facts See paragraph 15 of V.S. Achuthanandan Vs. P.J. Francis and Another, . Material facts and particulars together constitute the facts to be proved or "facta probanda". It is different from the evidence by which those facts are to be proved viz., "facta probantia". Para 38 of M. Chinnasamy Vs. K.C. Palanisamy and Others, ; Virender Nath Gautam Vs. Satpal Singh and Others, . While failure to plead material facts is fatal to the Election Petition and no amendment of the pleadings can be allowed to introduce such "material facts" after the expiry of the time-limit prescribed for filing the Election Petition. The absence of "full particulars" can be cured at a later stage by introducing the same through appropriate amendment L.R. Shivaramagowda, Etc. Vs. T.M. Chandrashekar Etc., ; F.A. Sapa Etc., Etc., Vs. Singora and others, ; Gajanan Krishnaji Bapat and another Vs. Dattaji Raghobaji Meghe and others, .

G. Concise and specific pleadings setting out all the relevant material facts is indispensable in an election petition since, the election petition if allowed, nullifies the success of a candidate and is, therefore, a serious remedy. An election petition must therefore precisely allege all material facts on which the Petitioner relies on in support of a plea that the result of the election has been materially affected on account of the conduct of the opposite party. Para 15 of Santosh Yadav Vs. Narender Singh, . Concise statement of material facts means the entire bundle of facts which would constitute a complete cause of action. Para 77 of Har Kirat Singh v. Amarinder Singh (2005) 13 S.C.C. 551.

H. Pleadings which are vague are liable to be struck off under Order VI, Rule 16 CPC R.P. Act is a complete and self contained Code. The election Petitioner should not be permitted to have a fishing expedition or a roving enquiry without the requisite pleadings. Madhava Kurup v. Muraleedharan 1990 (2) KLT 112; Azhar Hussain Vs. Rajiv Gandhi, .

I. Order VIII, Rule 5 CPC is not applicable to an Election Petition Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, . But Order VIII, Rules 1, 8 and 9 as judicially interpreted are applicable to election trials Kailash Vs. Nanhku and Others, .

J. Where the Court finds that neither the material facts nor the full particulars are stated in the election petition, the petition can be dismissed for not disclosing the cause of action. Para 21 of Subhash Desai Vs. Sharad J. Rao and Others, . An election petition can be dismissed summarily if it does not disclose any cause of action Abraham Kriakose v. P.T. Thomas 1991 (2) KLT 650. Election Petition alleging corrupt practice is liable to be dismissed if there is omission to state material facts or give full particulars. Subhash Desai Vs. Sharad J. Rao and Others, .

K. Omission of a single material fact leads to incomplete cause of action and the statement of claims becomes bad. Vide Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, . Failure to plead a single material fact is Azhar Hussain Vs. Rajiv Gandhi, .

L. To enable the Court to reject an election petition for non disclosure of cause of action, the election petition alone should be looked into and it is the duty of the Court to do so without a written statement by the opposite party. Para 24 of Hari Shankar Jain Vs. Sonia Gandhi, .

M. In stating the "material facts", merely quoting the words of the Section is not sufficient. The facts which constitute the corrupt practice must be stated and the facts must be co-related to one of the heads of corrupt practice. S.N. Balakrishna''s case (supra).

N. Section 100 of the R.P. Act enumerates the grounds for declaring an election to be void by the High Court. "Corrupt practice" which is elaborately defined u/s 123 of the R.R Act is a ground u/s 100 of the R.P. Act. Clause (1)(b) of Section 100 constitutes the ground for declaring an election to be void on the ground of "corrupt practice" if such corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent.

O. The entirety of averments that the publication was made by the returned candidate or his election agent or by any other person with the consent of the candidate or his election agent of any statement of fact which is false, which he either believes to be false or does not believe to be true in relation to the personal character or conduct of the candidate, would constitute "material facts". Ravinder Singh Vs. Janmeja Singh and Others, . Mere proof of corrupt practice by an agent other than the returned candidate''s election agent is not sufficient. It should further be shown that such corrupt practice has materially affected the result of the election in so far as it concerns the returned candidate. Section 100(1)(d). Where the above aspect is not pleaded the election Petitioner cannot be permitted to adduce evidence to that effect. Shivaramagowda''s case (supra).

P. A "statement of fact" for the purpose of Section 123(4) can only be a past event capable of being proved to be false and cannot be a hypothetical future apprehension or the conjecture of a likelihood in future. Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and Others, .

Q. If a false statement is made in regard to a public or political character of the candidate, it would not constitute corrupt practice u/s 123(4) of the R.P. Act. Lalit Kishore Chaturvedi Vs. Jagdish Prasad Thada and others, ; Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and Others, .

R. Consent is the life line to link up the candidate with the action of the other person. Without such consent it may not amount to corrupt practice. Hence, such consent should be specifically pleaded and proved. [Para 20 of Azhar Hussain''s case (supra)].

S. It is the candidate''s belief which matters u/s 123(4) of the R.R Act [Paras 42 and43 of S.N. Balakrishna''s case (supra)].

T. Failure to prove that the impugned statement of fact is not only false but also that the Respondent returned candidate and his agents publishing the impugned statements either believed the statement to be false or did not believe them to be true, is fatal and the impugned statement will not fall within the mischief of Section 123(4) of the R.P. Act Mangi Lal Vs. K.R. Pawar and Another, .Thus, the belief of the candidate that the statement is false or is not true is a "material fact" which has to be pleaded and proved and omission to plead the above material fact is fatal to the election petition. See Sheopat Singh Vs. Ram Pratap, , paragraph 17 of Kumara Nand Vs. Brijmohan Lal Sharma, , paragraphs 20 and 21 of Raghu Nath Singh Vs. Krishna Chandra Sharma, , paragraph 19 of Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, and paragraph 7 of Ravinder Singh Vs. Janmeja Singh and Others, .

U. For non-disclosure of cause of action the Court has the power to reject the petition at any stage and starting of trial or settlement of issues is no bar to the exercise of the above power. K.K. Somanathan Vs. K.K. Ramachandran Master and Others, .

V. For a person to be considered as an agent of a particular candidate, such person should have been employed by the candidate in connection with the election. Employment is essential for his being treated as an agent. The mere fact that some persons assist a candidate or that they support him does not by itself make them his agents. Gervasis v. Augustine 1971 KLT 51 and Suresh Babu v. Baby John 1983 KLT 6.

W. The word "appeal" to constitute a corrupt practice u/s 123(3) and (3A) should be an appeal to the religion of the returned candidate. The necessary ingredient is the presence of religious hatred dividing two or more religious communities using the religion of the returned candidate. Para 12 of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and Others, .

X. Mere appeal to religion is no corrupt practice. It becomes a corrupt practice only if there is appeal on the ground of the religion of the candidate. Paras 11, 13 and 16 of Dr. Yashwant Prabhu v. P.K. Kunte AIR 1986 S.C. 1113.

Y. An appeal on the ground of religion must be by the candidate or his election agent. If it is by any other person consent must be specifically alleged with full details. A bald and omnibus statement of consent of the candidate or his election agent will not serve the purpose of law. On a bald statement regarding consent the Petitioner cannot be allowed to shape his plea and let in evidence at the time of trial. Paras 14 to 16 of Balan v. Manoharan Master 1988 (1) KLT 717.

Z. Necessary averment of facts constituting an appeal on the ground of "his religion" to vote or to refrain from voting is a material fact--Para 14 of H.S. Pradhan v. R.S. Talwandi AIR 2005 S.C. 2371.

AA. Acts done prior to nomination cannot fall under "corrupt practice". In a case alleging "corrupt practice" the Petitioner cannot succeed by throwing suspicion here and there. Thamarakshan v. Ramesh Chennithala 1988 (2) KLT 3.

AB. Electoral role is conclusive evidence of the fact that the candidate is an ordinary resident of the constituency. Entry in the electoral role is beyond challenge in an election petition unless mere is an allegation of disqualification u/s 16 of the Representation of the People Act, 1950. Paras 9 to 15 of Baburao Vs. Manikrao and Another, .

AC. In order to become a Scheduled Caste candidate of the relevant district it is not necessary that he should have been both in that District. Beni Prasad and Anr. v. Narbada Prasad, (1997) 9 SCC 631 .

AD. Allegation of corrupt practice relating to the period anterior to the date of nomination of the candidate would not constitute allegation of corrupt practice and, therefore, must be excluded from consideration. Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and Others, .

Bearing in mind the above legal principles judicially settled, I now proceed to consider whether there are sufficient pleadings in the election petition to make out all or any of the grounds put forward by the Petitioner. The relevant pleadings made in the Election Petition in support of the grounds are considered in the following tabular statement:

Sl. Material Facts as stated in the Paragraph Reasons as to why no cause No. Election Petition No. in the of action is made out Election Petition

Officials of Lakshadweep Para 4 These averments do not Administration exerted undue constitute material facts. These influence, canvassed votes in favour averments do not fall under of 1st Respondent with the active any of the grounds in Section involvement and connivance of the 100 of the R.P. Act. 1st Respondent, his agents and workers to see that the 1st Respondent became the candidate of the Indian National Congress to the election to the Lok Sabha from U06 Lakshadweep Parliamentary Constituency to be held on 16-4-2009 and also got elected. 2. The 1st Respondent was never bora Para 4 For a candidate to become a and brought up in the Union Territory member of Lakshadweep of Lakshadweep. The Society and Scheduled Tribe, it is not residents of Lakshadweep never necessary that he should be accepted the 1st Respondent as a both in Lakshadweep. It is also member of Lakshadweep Scheduled not necessary for a candidate Tribe. to be accepted by the society and residents of the Lakshadweep as a member of Lakshadweep Scheduled Tribe. These averments therefore do not constitute material facts or a cause of action for the election petition.

There was a concerted effort on the Para 4 These averments do not part of the officials with the constitute material facts as they connivance of the 1st Respondent, his do not relate to any of the agents and workers to make the 1st grounds in Section 100 of the Respondent a Scheduled Tribe so as R.P. Act. These averments also to become eligible to contest the do not give rise to any cause election from the Lakshadweep of action as the averments are Constituency reserved for Scheduled vague and incomplete (See Tribe. Para 18 of AIR 1986 SC 1253.

The corrupt practices originated from Para 5 These averments do not conspiracy hatched out between the constitute material facts and do 1st Respondent and certain officials not give rise to any cause of of the Lakshadweep Administration to action. These averments do not manipulate the voters list and fall under any of the grounds facilitate the 1st Respondent (who in Section 100 of the R.P. Act. otherwise was not qualified to contest the election) to contest the election, and to secure success in the election.

The 1st Respondent was never born and Para 5 These averments do not brought up in the Lakshadweep island constitute material facts and do as a member of the local Scheduled not give rise to any cause of Tribe. Going by the provisions of the action. As per the Constitution Constitution (Scheduled Tribes) (Scheduled Tribes) (Union (Union Territories) Order, 1951, only Territories) Order, 1951 relating the children who are born to the to Lakshadweep, children born inhabitants of Lakshadweep in the to inhabitants of Lakshadweep territory of the Lakshadweep alone are members of Scheduled were entitled to have the status of Tribe of Lakshadweep. As per Scheduled Tribe. It was by an Section 2 of the Constitution amendment to the Constitution (Scheduled Tribes) (Union (Scheduled Tribes) (Union Territories) Territories) Order (Amendment) Order, 1951 by the Amendment Act, Act, 2008, the Constitution 2008 published in the Lakshadweep (Scheduled Tribes) (Union Gazette dated Territories) Order, 1951 was 31-1-2009 by way of proviso to the amended by incorporating a order it was laid down that the children proviso and an Expl anation to who are born to inhabitants of the Schedule of the 1951 Order Lakshadweep in any other place in the by providing that children who Mainland of India shall be deemed to are born to inhabitants of be inhabitants born in the Island if Lakshadweep in any other such children settle permanently in the place in the mainland of India islands. The 1st Respondent was born shall be deemed to be at Mysore and was brought up at inhabitants born in the island Mumbai and Delhi and never settled if such children settle in the territories of the island. permanently in the islands. As However, it was by abuse of the per the Explanation inserted it process and authority, the 1st was provided that the term Respondent was issued with a "settle permanently" will have Scheduled Tribe Certificate certifying the same meaning as defined to be a member of the Scheduled Tribe under Clause 3(1)(d) of the and he was allowed to submit Lakshadweep Panchayaths nomination. Regulation, 1994. Clause 3(1)(d) of the aforesaid Panchayaths Regulation explains by a deeming provision the expression "ordinarily resident" to mean a p''erson who has been ordinarily residing in such island or is in possession of a dwelling house therein ready for occupation. There is no averment in the petition that the 1st Respondent is not in possession of any dwelling house in Lakshadweep ready for occupation or that he is not born to inhabitants of Lakshadweep. Although they are Muslims, professing Islam, the people of Lakshadweep belong to the Scheduled Tribe. In Para 6 of the E.P. it is admitted that R-1 is the son of late P.M. Sayeed who had been representing Lakshadweep in the Parliament and was a Minister in the Centre. A child in India is presumed to have his father''s religion and corresponding civil and social status. See para 23 of Commissioner of Wealth Tax v. Sridharan (1976) 4 SCC 489; Sobha Hymavathi Devi v. Setti Gangadhara Swami AIR 2005 SC 800. For that reason also the Caste certificate of the 1st Respondent is beyond challenge.

It was by abuse of process of the Para 5 These averments are totally authority that the 1st Respondent was vague and do not constitute a favoured with a Scheduled Tribe cause of action. These Certificate certifying him to be a averments do not fall under member of the Scheduled Tribe and any of the grounds in Section he was allowed to submit nomination. 100 of the R.P. Act.

It is out of conspiracy by the 1st Para 6 The averments do not Respondent with the officials of the constitute any cause of action. Lakshadweep Administration with These are not material facts the active connivance of the Union relating to any of the grounds Government, the amendment order in Section 100 of was issued enabling the 1st the R.P. Act. The Constitution Respondent to obtain a Scheduled (Scheduled Tribes) Tribe Caste Certificate. The (Union Territories) Order participants in the conspiracy to (Amendment) Act, 2008 is an enable the 1st Respondent to obtain Act of Parliament after the Caste Certificate and facilitate his receiving the assent of the contest in the election were Sri T. President. The said Act is an Kassim and Sri I.C. Pookoya, Sub amendment to the Presidential Divisional Officers and the Settlement Order of 1951. It is a piece of Officer Sri Lal Singh. Sri Lal Singh was legislation. Mala fides or the Returning Officer and Sri T. Kasim extraneous motive cannot be and I.C. Pookoya were the Assistant attributed to the legislature. Election Registration Officers for Even transferred malice is Kavarati and Androth respectively. unknown in the field of The agents of the 1st Respondent who legislation. K. Nagaraj v. State have organized the election of the 1st of A.P. AIR 1985 SC 551 ; Para Respondent as a programme of the 12 of G.C. Kanungo v. State of Union Government and the Orissa AIR 1995 SC 1655 administration by involving the & Para 40 of State of Kerala Government Officials in all the stages and Anr. v. People''s Union of the election programme were Sri U. for Civil Liberties Kerala Cheriyakoya Thangal, Chairman of State Union and Ors. (2009) 8 SCC 46 the Vakaf Board, who was formerly the Chief Executive Councilor of the District Panchayat and Shri Ahmed Haji, Vice President of Lakshadweep Congress Committee and Chairman of Village Dweep Panchayat Kavaratti.

The 1st Respondent is son of Late Para 6 These averments do not P.M. Sayeed, who had been constitute any cause of action representing the Lakshadweep in the nor do they constitute material Parliament and was a Minister in the facts. They are not related to Centre. It was to facilitate the 1st any specific ground under Respondent to succeed his father a Section 100 of the R.P. Act. conspiracy was held at the instance Merely because the first of the 1st Respondent and official of Respondent could take the Union of India at Ministry of Law advantage ofthe 2008 Amendment and Justice to amend the Constitution to the Presidential Order, Order in respect of Lakshadweep it cannot be said that the said conferring Scheduled Tribe Status to amendment was brought forth the children who are born in main in pursuance of a conspiracy land of India as well. By a Presidential involving the officials of the order no fresh caste status can be Union of India and the Ministry conferred on a citizen. Otherwise, the of Law and Justice. As already 1st Respondent could not have got stated, by virtue of the the eligibility to contest in the Explanation added to the 2008 election. In the Caste Certificate Amendment of the Presidential issued to the 1st Respondent also, it Order of 1951, the expression is not mentioned he is permanently "settle permanently" will have settled in the Island but only recites to be understood as ordinarily that his family ordinarily resides in resident" as explained by Lakshadweep. Clause 3(1)(d) of the Lakshadweep Panchayaths Regulation, 1994. A person can be said to be ordinarily residing in the Island if he is in possession of a dwelling house therein ready for occupation. The Petitioner has no case that the first Respondent has no dwelling house ready for occupation in the Island. 9. The 1st Respondent submitted an Para 7 These averments do not application for caste certificate which constitute material facts or was processed against the directions cause of action. They do not in the Order issued by the fall under any of the grounds Administrator to be followed in u/s 100 of the issuing Scheduled Caste Certificate. R.P. Act. The issuance of the Certificate was in a public function held at Androth. In fact, this was an official function by the administration organised to announce the entrance of the 1st Respondent to the Parliamentary election. The abuse of the official machinery started with the manipulation of the electoral rolls by inducting even minors and beyond the time-limit stipulated for finalisation of the electoral rolls.

In fulfilment of the conspiracy an Act Para 8 These averments do not was brought into force to amend the constitute any material facts Scheduled Tribes Union Territories- and do not fall under any of the Order, 1951 by Amendment Act, 2008 grounds u/s 100 of which received assent of President R.P. Act so as to constitute a on 7-1-2009. It was published in cause of action. Official Gazette of Lakshadweep dated 31-1-2009.

As the Amendment Act, 2008 which Para 9 The Presidential assent was received assent of the President on given on 7-1-2009. The 7-1-2009 will have only prospective Amendment Act came into effect and the 1st Respondent force on 9-1-2009, long before having born on 11-4-1982 will not the date of election get benefit of the amendment. The notification. The first acceptance of his nomination is Respondent submitted his therefore illegal. nomination on 27-3-2009. Hence, there is no question of retrospective operation of the Amendment Act. An Act is not retrospective merely because certain incidents are drawn from a date antecedent to the coming into force of the Act. Vide Sree Bank Limited v. Sarkar Dutt Roy AIR 1966 SC 1953 and D.S. Nakkara v. Union of India AIR 1983 SC 130. As per the Amending Act of 2008 the first Respondent was qualified to submit his nomination and entitled to contest the election as a Scheduled Tribe candidate.

As per the Amendment Act to the Para 10 There is no question of Constitution children who are born retrospective operation of the to inhabitants of the Lakshadweep Amendment Act. The fact that in any other place in the main land certain pre-requisites for of India shall be deemed to be application for the Act were inhabitants born in the islands if drawn from a time antecedent such children settled permanently to the passing of the Act will in the island. The children born after not make the Act retrospective coming into effect of Annexure 1 in operation AIR 1966 SC 1953 notification will only get the benefit & AIR 1983 SC 130. and the 1st Respondent was not qualified to be included as Scheduled Tribe of Union Territory of Lakshadweep.

The first Respondent filed an Para 11 This is a statement of evidence application dated 27-1-2009 with a and not a statement of fact. Certificate of Birth of the 1st These averments do not give Respondent issued by Government rise to any cause of action and of Karnataka stating that the 1st do not constitute cause of Respondent was born in Sankalpa action for the election petition. Hospital, Mysore on 11-4-1982 wherein the permanent address of the father and mother was shown as No. 53, Hudco, Bannimantap, Mysore.

No documents were produced to Para 12 Apart from the fact that the show that the 1st Respondents'' Caste Certificate issued to the parents were inhabitants of the 1st Respondent was in Lakshadweep and that the 1st conformity with the amendment Respondent has permanently settled of the Presidential Order, in the in the Lakshadweep Islands and absence of any plea by the without conducting any verification Petitioner that the 1st or enquiry, I.C. Pookoya, Sub Respondent has no dwelling Divisional Officer, Androth who was house ready for occupation in appointed as the Assistant Electoral the Island, performance of Officer, issued the Caste Certificate official acts can be presumed. on 3-2-2009 on the same day when Moreover, acts done prior to Annexure II order was passed by the first Respondent becoming Administrator of the Union Territory a candidate i.e. prior to 27-3-2009 of Lakshadweep. This was done cannot be the subject-matter of without conducting any enquiry and corrupt practice. See without verifying records. Thamarakshan v. Ramesh Chennithala 1988 (2) KLT 3.

Amending Act was brought into Para 13 For the reasons already stated force with oblique purpose for no oblique motive can be conferring Scheduled Tribe Status attributed to the legislative act on 1st Respondent. of bringing forth an amendment to the existing statute. Moreover, the averments relate to a date prior to the filing of the nomination.

Annexure IV Caste Certificate was Para 14 Averments in paragraph 14 issued to 1st Respondent in a relates to alleged incidents function organized by Lakshadweep which took place prior to Employees Parishad Congress 27-3-2009 that is the date of which is an organization associated nomination and they do not with the Indian National Congress constitute corrupt practice and where 1st Respondent is the legal are beyond the scope of adviser. election petition. Vide AIR 1994 SC 2277 and AIR 1996 SC 826.

1st Respondent, his agents and with Para 15 These averments do not their consent the followers and constitute material facts under workers of the 1st Respondent have Section 123(4) of the made effigy of the Petitioner R.P. Act. There is no allegation depicting the Petitioner as a that there was publication of drunkard and kaffir in the eyes of any statement of fact. Effigy is the voters and exhibited at different not a statement of fact. There parts of the island. The effigy of the is no allegation that there was Petitioner is made with King Fisher any publication of any Bottle hanging from his neck and statement of fact which the 1st drinking from the beer bottle. The Respondent either believed to 1st Respondent, his agents and other be false or does not believe to agents have the knowledge that the be true. There is also no Petitioner does not take liquor. By averment that the statement of making and exhibiting such effigies fact was reasonably calculated of the Petitioner with the beer bottle to prejudice the prospects of has prejudiced the prospects of the the Petitioner''s election. Petitioner''s election. The election Consent of the Agents of the prospects of the Petitioner was very 1st Respondent not sufficient. much affected by publication of the Who are the agents is not effigy, which was exhibited by the mentioned. The factum of 1st Respondent, his agents and consent is also not mentioned. workers and followers of his party As to how and in what manner with consent, knowledge and consent is given is a material connivance of the 1st Respondent. fact which has to be pleaded. No cause of action is therefore made out. Azhar Hussain v. Rajiv Gandhi AIR 1986 SC 1253.

1st Respondent, his agents and other Para 16 No averment that there is persons with the consent and publication of statement of fact knowledge of the 1st Respondent which is a necessary ingredient and his agents exhibited effigy and of Section 123(4) of R.P. Act. its photograph picturising the Mere statement is not enough. Petitioner as not a real Muslim and Effigy and its photograph are there is publication of false not statements of facts. statement in relation to personal character of the Petitioner reasonably calculated to prejudice election prospects of the Petitioner.

The voters of the constituency are Para 16 Effigy and its photographs Muslims alone. The 1st Respondent would not constitute an appeal and his agents and other persons on the ground of religion. Since who have acted for the 1st the electorate of Lakshadweep Respondent in his election agent Constitute Muslims alone and have appealed to the electorate to all the candidates are also vote for the 1st Respondent who is a Muslims, there is no question pious follower of the Prophet. The of creating hatred among propaganda that the Petitioner is not different religious communities a follower in the spirit and principles and there is no such averment of Islam has created and evoked a also. See (1976) 2 SCC 17 and hatred among the electorate against AIR 1986 SC 1113. Appeal is a the Petitioner. The appeal on the request. Since Effigy and its ground of religion is a corrupt photographs do not constitute practice u/s 123(3) of the an appeal, the ingredient of R.P. Act. "appeal on the ground of religion" is not made out. Moreover, there is no allega- tion that there was any appeal on the ground of his own religion of the 1st Respondent and therefore material facts are not made out to constitute cause of action under Section 123(3) of the R.P. Act.

The 1st Respondent has won the Para 17 There is no allegation that there election mainly on account of the was any appeal on the ground appeal made by the Petitioner, his of his own religion of the 1st agents and other persons with the Respondent. Photograph is not consent of the 1st Respondent on an appeal. Appeal on the the ground of religion and use of ground of religion ofthe father religious symbol to prejudice the of the 1st Respondent is not a election of the Petitioner. A corrupt practice. The averments photograph of Sri Late P.M. Syeed therefore lack material facts. father of the 1st Respondent with the background of Mecca Mosque were exhibited on flex boards, published and distributed among the people ofLakshadweep.

The 1st Respondent, his agents and Para 18 There is no allegation that his election workers have with the there was any appeal on the direction, consent and connivance ground of his own religion of of the 1st Respondent have the 1st Respondent. Appeal committed corrupt practice under on the ground of father''s Section 123(3) of the R.P. Act by religion is not a ground printing, publishing and distributing for challenging election. The Annexure XVIII notice. It is stated averments do not disclose any therein that Sri P.M. Sayeed is a appeal on the ground of renowned person, who has religion also as contemplated performed Haj and Umra every year u/s 123(3) of and the 1st Respondent is following R.P. Act. No material facts/ the foot steps of his father. The cause of action have therefore religious persons who are believing been made out. in Allah and Holy Prophet Mustafa should vote for the 1st Respondent. As the Petitioner is not the true follower of Allah and Holy Prophet Mustafa, the voters should think in the name of Islam before casting their votes.

There is personal attack on the Para 19 There is no allegation that there Petitioner that he is not following was any publication of the commandments of Islam, without alleged statement of fact by the beard and moustache and does not 1st Respondent or any other perform five times prayer in a day. person with his consent. There The Petitioner is also depicted as a is no allegation that the person who has supported the statement of fact is false or that closure of Madrassas and that he is the 1st Respondent either a drunkard and kaffir and could not believes it to be false or does be recognized as Muslim. The not believe it to be true. The statement in Annexure XVIII are allegation regarding closure of false and the 1st Respondent, his Madrassa is not a statement of agents and workers believing the fact relating to personal contents of the notice as untrue and character or personal conduct it related to the personal character but relating to a political and conduct of the Petitioner which character or political conduct. was distributed among the voters The allegation that the calculated to prejudice the Petitioner is a Kaffir (Non Petitioner''s election. All those believer) and is a drunkard is a believing in Allah and"Holy Prophet statement of opinion and is not Muhammed Musthafa should vote a statement regarding any past for the 1st Respondent. As the event to constitute statement Petitioner is not a true follower of of fact as contemplated under Allah the voters should think in the Section 123(4) of the R.P. Act. name of Islam before casting their No cause of action/material votes. The voters in Lakshadweep facts are therefore made out. Parliamentary Constituency are Muslims professing Islam.

The 1st Respondent, his agents and Para 20 There is no pleading that 1st other persons with the consent of Respondent offered gratification the Petitioner and his agents offered to any voter with the intention gratification by means of payment of inducing the voter to vote of cash with the object of inducing for him. There is no averment the voters to vote in favour that any person with the of the 1st Respondent and thereby consent of the 1st Respondent committed corrupt practice under or his Election Agent offered Section 123(1)(A) of the any gratification with the R.P. Act, 1951. intention of inducing any voter With the consent of the 1st to vote for him. There are no Respondent and his agents money averments that those who was distributed through constables received payment were voters of India Reserve Battalion to and that they were paid money voters of different Islands of either by the 1st Respondent or Lakshadweep Parliamentary by any person with the consent Constituency. of the 1st Respondent or his election agent with the intention of inducing those who received money to vote for the 1st Respondent. There is no averment as to who distributed the money through constables of India Reserve Battalion. Distribution of money by itself is not a corrupt practice, without any allegation that it was by way of gratification with the intention of inducing the voters to vote for the 1st Respondent. No charge of corrupt practice is made out. Material facts are therefore lacking. The averments are vague and unbelievable also.

The officials of the Administration Para 21 to 28 Who assisted the 1st connected with the conduct of the Respondent, what is the manner election illegally facilitated the and mode of assistance are all 1st Respondent to have his name material facts to be alleged and enlisted first in the order in the proved. These facts are lacking list of contesting candidates and in the pleading. Cause of action thereby in Electronic Voting u/s 123(7) of the R.P. Machine. Act is therefore not made out. The enlistment in list of contesting candidate/ Electronic Voting Machine is based on the priorities having regard to the nature of the political parties such as national parties, registered parties etc. Which are the national parties, which are the registered parties and which are the local parties are not mentioned in the petition and therefore material facts are lacking. Even if the name of R-1 could only be enlisted as second, the Petitioner''s name could only be enlisted next to R-1''s name. Moreover how the election of the Petitioner is materially affected thereby is also not mentioned.

There is non-compliance of Para 28 This is not a ground for challenging guidelines of Election Commission the election u/s 100 of in the hand-book of candidates. R.P. Act. Handbook is not statutory rule or notification under the R.P. Act, 1951.

Since what is wanting in the pleadings are "material facts" and not "full particulars", the decision in Balwan Singh Vs. Lakshmi Narain and Others, cited by Sri M.K. Damodaran is of no avail to the Petitioner. After an anxious consideration of the pleadings and the allegations in the Election Petition, I have no hesitation to conclude that the Election Petition does not make out the ingredients of the ground put forward that the first Respondent was not qualified to be a candidate. The Election Petition also does not make out the ingredients of any of the corrupt practices falling u/s 123 of the R.P. Act. Since there is no complete cause of action or material facts in support of the Election Petition so as to enable this Court to proceed to the trial of the Election Petition, this Election Petition is dismissed/rejected as not maintainable.