M.V. NIKESH KUMAR Vs. K.M. SHAJI

JUDGEMENT

(1.) The petitioner who is the defeated candidate from the (10) Azheekode Assembly Constituency of the Kerala Legislative Assembly in the election held on 16.05.2016, challenges the election of the respondent alleging commission of corrupt practice of undue influence under Sec. 123(2)(a)(ii), and other corrupt practices under Sec. 123(3) and 123(4) of the Representation of People Act 1951 (hereinafter referred to as 'R.P. Act 1951'). Respondents 1 to 9 were the other candidates who contested the election, however, the main contest was between the petitioner and the 1st respondent. Petitioner was the official candidate of Communist Party of India Marxist (CPIM), the main constituent of Left Democratic Front (for short LDF) and the first respondent was the official candidate of Indian Union Muslim League (IUML), one of the coalition party of the United Democratic Front (for short UDF). Petitioner was allotted the symbol "hammer, sickle and star" and the first respondent was allotted the symbol "ladder", according to Election Symbols (Reservation and Allotment) Order 1968. Petitioner got 60,795 votes and the first respondent secured 63,082 votes and first respondent was declared elected with a margin of 2287 votes from the Azheekode Assembly Constituency.

(2.) The petitioner's case is that the first respondent, being a Muslim candidate, his agents and other persons, with the consent of the candidate or his election agent, appealed to the voters belonging to Muslim community, to vote for him on the ground of religion. They printed, published and circulated Ext.P2 pamphlet among the voters belonging to Muslim community and appealed to voters who belonged to Muslim community to refrain from voting for the petitioner on the ground that he is not a member of Muslim community and warned them not to vote for a candidate, who is not a believer in Islamic faith and quoted a passage from holy Quran, Part 26 Chapter 49 (AL Hujurath). The contents of the pamphlet conveyed an impression among the Muslim voters in the Constituency not only to cast vote in favour of first respondent, but also demanded to refrain from voting for the petitioner. The first respondent or his agents or other persons, with the consent of the first respondent or his election agent printed, published and circulated Ext.P3, P4 and P5 pamphlets among the voters of the constituency and the contents of the pamphlets are in relation to the personal character and conduct of the petitioner. Ext.P3 pamphlet is published with the caption in malayalam "veedu nokkathavanu naadu nannakkan kazhiyumo", and also contained the photograph of the petitioner with Saritha Nair, a lady involved in Solar Scam and another photograph of petitioner with his wife and children. It also contains a statement to the effect that petitioner is having wayward life with Saritha S Nair. It creates an impression that petitioner is a cheat and his wife is about to file a petition for divorce. The above statements are in relation to the personal character and conduct of the petitioner. Ext.P4 pamphlet contains a statement with a caption "nikesh kumar 20 laksham vangiyennu Rajkumar Unni". The said Rajkumar Unni is the owner of a Bar Hotel and the President of Bar Hotel Owners Association. Ext.P5 pamphlet was published with caption "Nikesh Kumar chettakkudilil ninnu maalikayil ethiya kodeeswaran". It also contains a statement quoting Mathrubhoomi Malayalam daily that the petitioner has got assets worth 4.5 Crores and he owns a house having an area of 5579 Sq.feet in Ernakulam and that there is a public demand that an enquiry should be conducted how Nikesh Kumar, who was a Journalist acquired so much assets. In the bottom of Exts.P2 to P5, it was mentioned that "printing and publishing President Indian Overseas Congress, Kannur Jilla Committee" to make it appear that it was not printed and published by first respondent or his agents. The statement of facts mentioned in the pamphlets are false, and not believing it to be true which was published with the object of lowering reputation of the petitioner among the electorate and it was circulated to prejudice his prospects in the election. The above pamphlets were seized by the police and Special Squad for detection of the violation of Model Code of Conduct (for short MCC) for election. The petitioner would have obtained more votes than the first respondent and won the election, if the first respondent had not committed the above corrupt practice. Hence the election of the first respondent is liable to be declared as void under Sections 100(1)(b)and 100(1)d(ii) of the R P Act 1951 and to declare that the petitioner has been duly elected from (10) Azheekode Assembly Constituency.

(3.) In the written statement, the first respondent contended that he or his election agent or other persons never committed any corrupt practice. The alleged corrupt practices are the imagination of the petitioner who concocted created it with his agents and supporters. The first respondent, his agent or others never appealed to the voters of the Muslim community to vote for him on the ground of religion, and never requested the Muslim community to refrain from voting for the petitioner on the ground that he is not a member of Muslim community or believer in Islamic faith. This allegation is made with sinister motive to tarnish the image and reputation of first respondent among the public and especially among the voters of Azheekode Assembly Constituency. He admits that the allegations in the pamphlet are related to the personal character of the petitioner and first respondent has no knowledge about petitioner's personal life. It is believed that petitioner himself had got printed Exts.P2 to P5 to make out a cause of action for preferring an election petition and the first respondent happened to see such pamphlets for the first time when he received it along with the election petition. The polling agents of the first respondent had distributed the pamphlets is absolutely false. The contents of pamphlet relate to the petitioner's personal life, his assets and liabilities, therefore the petitioner is the best person to speak about the contents of it and nothing was done by the first respondent to prejudice the prospects of the election of the petitioner. The above pamphlets were published by President, Indian Overseas Congress, Kannur Jilla Committee, to the knowledge of the first respondent, there is no organization viz, Indian Overseas Congress and neither Indian National Congress nor any other political parties has any sister concern in that name. The pamphlets were seized by the police and Special Squad appointed for the detection of violation of MCC for elections is absolutely false and no such pamphlets were distributed or circulated by the first respondent or his agents. Smt.N.P.Manorama kept several bundles of pamphlets in her house is false and she along with workers of Indian National Congress, IUML had not distributed any pamphlets. Moreover, C.V.Santhosh, Sujith and Pradeepan had never campaigned for the first respondent in the election. On 14.5.2016, ten persons including Fazir K V, Shakir V.P, Favaz, Nisham and Rehman had not conducted house to house campaign for the first respondent at Thangal Vayal or any other places. The allegation that on 15.5.2016, Ext.P2 to Ext.P5 pamphlets were given by Narayanan, Rajeevan and Padmanabhan to Sri B Ummer and Sri Mohammed Sheriff while they were conducting house to house campaign is false. The story that on 15.5.2016, while distributing the above pamphlets among the voters, they were arrested by the police is false. Even if any person had committed any corrupt practice, that was without the consent of the first respondent, his election agent or any other person which is contrary to the instructions issued by the first respondent and his election agent. Petitioner has not pleaded material facts as to the details of printing and publication of the above pamphlets. The election petition does not disclose any material facts to constitute any corrupt practice under Sec. 123 of the Representation of People Act, 1951. The affidavit filed along with the petition is not in compliance with Rule 94A of the Conduct of Election Rules as provided in Form No.25 of the Conduct of Election Rules. The election petition does not disclose any cause of action and the affidavit does not conform to the legal requirement and the election petition is liable to be dismissed for want of cause of action.