RASHEEDALI Vs. AHAMMED KABEER

JUDGEMENT

(1.) This original petition is filed calling in question the election of the respondent to LA 039 Mankada Legislative Assembly Constituency in the general elections held to the 14th Kerala Legislative Assembly on 16.05.2016. The petitioner contested as a candidate of the Communist Party of India (Marxist) and the respondent contested the election as a candidate of the Indian Union Muslim League (IUML), which is a constituent of the United Democratic Front (UDF). The petitioner lost the election to the respondent by a margin of 1508 votes. The Returning Officer declared the respondent elected after counting votes on 19.05.2016.

(2.) The petitioner contended that success of the respondent in the election is on account of wide and extensive corrupt practices perpetrated by him, his election agent and other agents. Apart from them, organizers and workers of his election campaign have also committed extensive corrupt practices. They printed, published and circulated an election bulletin, which contained statement of facts, which they knew to be false. And such items were published with an intention to malign the character and reputation of the petitioner. They also appealed to the voters not to vote for the petitioner on some false grounds. According to the petitioner, this has not only vitiated the election, but also materially affected the result of the election. The respondent, his election agent and other agents have committed corrupt practices covered by Section 123(4) of the Representation of the People Act, 1951(in short, "the Act"). Petitioner has made the following allegations about corrupt practices. Firstly, the UDF election committee, Mankada mandalam has published an election bulletin on Saturday, 14.05.2016 under the name and style "Vaartha". Annexure-I is the copy of the election bulletin. English translation of Annexure-I is produced as Annexure-IA. He contended that a mere look at Annexure-I will show that it was published with the consent of the respondent. Annexure-I contains a number of news items, most of which were intended to highlight the achievements of the respondent, who represented the constituency in the 13th Assembly. But, some of the news items in Annexure-I were clearly meant to malign the petitioner as they contained certain allegations and derogatory remarks against him. A false news item titled "Angadippuram Panchayat: Irregularities to the tune of Rs. 69 lakhs" also appeared in Annexure-I. The content in the box news in Annexure-I would reveal that the said printed matter was a news item published in the marketing page of "Kerala Kaumudi Daily" dated 24.10.2010. The content in the box news would show that the report was about the irregularity of Rs. 69 lakhs detected by the Audit Wing pertaining to the illegal financial transactions, procedural irregularities and misappropriation of public funds allegedly committed by the petitioner during the periods of 2005-2006, 2006-2007, 2007-2008 and 2008-2009 while he was serving as the President of the Angadippuram Grama Panchayat. A true copy of the Kerala Kaumudi Angadippuram Grama Panchayat Election Supplement dated 24.10.2010 is marked as Annexure-II. English translation of Annexure-II is produced as Annexure-IIA. The petitioner contended that the audit reports of Angadippuram Grama Panchayat for the financial years referred to above were finalised and submitted to the Panchayat as per the relevant rules. None of the reports mentioned in Annexure-I spoke about any illegal financial transaction, procedural irregularity or misappropriation of funds committed by the petitioner. None of the said reports held the petitioner personally responsible or liable for any illegal financial transaction or misappropriation of funds. All the said reports were routine reports and contained only observations about conduct of the affairs of the Panchayat. Petitioner submitted that his tenure as President, Angadippuram Grama Panchayat ended in October, 2010. The Panchayat was run by the representatives of IUML, a constituent of UDF during the period from 2010 to 2015. Petitioner's successor in office did not act upon the audit reports simply for the reason that there was nothing against the petitioner in the reports. The news item was published with an oblique motive to falsely implicate the petitioner in an allegation of corruption. The facts, such as the respondent was the candidate of the UDF in Mankada Constituency, that the bulletin contained statements, interviews and photographs of the respondent and also that cost of the bulletin was included in the election expenses declared to the Election Commissioner, will go to show that the respondent and his election agent were aware of the publication of election bulletin. It also shows that the same was published with his consent and knowledge. The false news items appeared in Annexure-I were clearly intended to question the personal character and conduct of the petitioner. Copies of Annexure-I were circulated with a view to prejudice the election prospects of the petitioner. Hence it is contended that the respondent has committed the corrupt practise of publishing statement of fact, which is not only false, but also believed to be false, in relation to the personal character and conduct of the petitioner. The slender margin secured by the respondent also indicate the fact that the corrupt practices have influenced the voters.

(3.) Secondly, it is submitted that at page 3 of Annexure-I bulletin a copy of the letter issued by the Deputy Director of Malappuram District Local Fund Audit to the Secretary of the Angadippuram Grama Panchayat was also published. It contains a direction to recover certain amounts mentioned in the local fund audit report through administrative actions. It warned the Secretary that he would be held personally liable for any delay in taking timely action to recover the loss. The report would show that the respondent, his election agent and other agents and also the campaigners knew well that the petitioner was not personally liable for any loss that had been pointed out in the audit report. Therefore, it fortifies the contention of the petitioner that the respondent and others did not believe in the allegation they themselves have made in Annexure-I as true. Annexure-I bulletin was printed by the UDF election committee, Mankada mandalam and it was extensively circulated in the Mankada constituency on 14.05.2016 and 15.05.2016. It was the agents and campaigners of the respondent, who distributed the bulletin among the electorate. The petitioner has referred to certain persons who happened to receive copies of Annexure-I and on reading the same, they became hostile to the petitioner on account of bad influence of the false news. With these contentions, the petitioner sought to declare that the election of the respondent from Mankada Legislative Assembly Constituency to the 14th Kerala Legislative Assembly is void.