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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SOPHY THOMAS, J.
Shri Thomas J.Unniyadan, S/o.Joseph – Appellant
Versus
Smt.R.Bindu, W/o.Vijayaraghavan.A – Respondent
Election Petition No.6 of 2021
Decided on : 12-04-2023
Constitution of India, 1950 - Article 329(b) - Representation of People Act, 1951 - Sections 80, A, 81, 83, 100(1)(b), (1)(d)(iv), 101, 103, 106, 123(2), (4) and 127-A - Conduct of Election Rules, 1961 - Rule 8(2), 94 A – Code of Civil Procedure, 1908 - Order VII Rule 11 - Election - Liable to be declared as void - Indulged in corrupt practices - Election of 1st respondent is liable to be declared as void, since she and other persons with her consent, indulged in various corrupt practices – Decision by University to designate retired and relieved teachers, as Professors has nothing to do with this election petition - Para 69.
Finding of the Court :
Material facts, material particulars and source of information regarding corrupt practices alleged against 1st respondent are not pleaded with exactitude, to formulate an issue sufficient to be tried before this Court - Moreover, pleadings are not sufficient to disclose a cause of action for election petitioner - So election petition is liable to be rejected under Order VII Rule 11 of CPC - Subsequent events, which have no connection with disputed election, need not be incorporated by way of amendment as it has nothing to do with election petition - Material facts, particulars, source of information etc. which ought to have been pleaded in election petition to prove alleged corrupt practices cannot be introduced for first time in election petition by way of an amendment.
Result: Petition dismissed.
JUDGMENT :
Elections are fundamental and pre-requisite for a democracy. In a democracy, the authority of the Government derives, solely from the consent of the governed. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections.
2. As observed by the Hon’ble Supreme Court in Lok Prahari through its General Secretary S.N.Shukla v. Union of India and Others [(2018) 4 SCC 699], the framers of the Constitution were aware of the fact that no election process can be infallible nor can any election be absolutely pure. Therefore, disputes are bound to occur in elections. Hence, Article 329(b) of the Constitution, stipulates:-
(a) xxx
(b) no election to either house of parliament or to the house or either house of the legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature”.
3. In the year 1951, the Parliament enacted the Representation of People Act, 1951 (hereinafter referred as ‘the RP Act’) to provide for the conduct of elections, to the House of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices, and other offences, at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
4. Here is an election petition filed under Sections 80, 80A, 81, 83, 100(1)(b), 100(1)(d)(iv), 101 read with Sections 123(2), 123(4) and 127-A of the RP Act, 1951, in connection with the 15th General Election held on 06.04.2021 to the Kerala Legislative Assembly.
5. The election petitioner and respondents 1 to 6 contested the general election held on 06.04.2021 from 070 Irinjalakuda Assembly Constituency. The counting of votes was held on 02.05.2021 and the result was notified on 03.05.2021. The 1st respondent was declared as the returned candidate with a margin of 5949 votes. The election petitioner contested the election as a candidate of Kerala Congress and the 1st respondent was a candidate of Communist Party of India (Marxist). According to the election petitioner, the election of the 1st respondent is liable to be declared as void, since she and other persons with her consent, indulged in various corrupt practices.
6. The 1st respondent was a College Teacher, who took voluntary retirement. She proclaimed herself as a Professor, and requested the Returning Officer of 070 Irinjalakuda Assembly Constituency, to show her name as ‘Prof.R.Bindu’, though she was not a designated Professor. She conducted election campaigns throughout Irinjalakuda Assembly Constituency, describing her as ‘Prof.R.Bindu’. She printed, published, circulated and distributed Annexures-E to G notices and pamphlets, describing her as ‘Prof.R.Bindu’. She persuaded the electors to vote for her, saying that only a Professor like her, can alleviate the grievances of the electors of 070 Irinjalakuda Assembly Constituency, which she claimed to be an educational hub with many educational institutions. Persuading the electors as a Professor and Academician, she canvassed votes and that amounts to undue influence as envisaged under Section 123(2) of the RP Act, as it was a deliberate attempt on her part to interfere with the free exercise of the electoral right of the electors of 070 Irinjalakuda Assembly Constituency.
7. Mr.K.R.Jojo, who is a member and ardent worker of CPI(M), actively participated in the election campaign of the 1st respondent from 16.03.2021 till 06.04.2021. He inaugurated several election conventions, and election campaign meetings of the 1st respondent, and was an orator in her election campaign. On 04.04.2021, during the course of the election campaign of the 1st respondent, in
RP Act is a complete and self contained code, within which, any rights claimed in relation to an election or an election dispute must be found.
Clause (4) of Section 123 of Act shows that publication is required to be reasonably calculated by a candidate or his agent.
Election petitions must contain concise statements of material facts; omission of a single material fact leads to dismissal for lack of cause of action.
Election petitions must contain precise and material facts, especially concerning alleged corrupt practices, as mandated by Section 83 of the Representation of People Act, 1951.
An election petition must contain concise material facts and particulars as per the Representation of Peoples Act, 1951; failure to do so results in dismissal.
Allegations of corrupt practice in an election petition must be supported by specific material facts and full particulars as required by Section 83 of the RP Act of 1951. Failure to plead such materi....
An election petition without material facts relating to a corrupt practice is not valid, and once the charge of corrupt practice fails, the election petition is rendered infructuous due to the end of....
Without proper verification and without requisite affidavits cause of action remains incomplete.
An election petition may be dismissed summons under CPC if it fails to disclose a triable cause of action; non-disclosure of material liabilities can render an election void under the Representation ....
The Election Petition must contain a concise statement of material facts and full particulars of any alleged corrupt practice, and demonstrate how the result of the election was materially affected b....
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