T.V.BALAN Vs. K.M.SHAJI

JUDGEMENT

(1.) This election petition is filed under Section 123(2)(a)(ii), 123(3) and 123(4) and 127(A) of the Representation of People Act 1951 by one of the voters of (10) Azheekode Assembly Constituency against the alleged corrupt practice committed by the respondent in the election held on 16.05.2016 to the Kerala Legislative Assembly and to declare the election of the respondent to be void under Sections 100(1)(b) and 100(1)(d) of the Representation of People Act 1951 (hereinafter referred to as 'R.P. Act 1951'). Petitioner is the member of Communist Party of India Marxist (for short CPIM), Kannur area committee. The respondent was the candidate of Indian Union Muslim League (IUML), one of the coalition parties of the United Democratic Front (for short UDF). M.V.Nikesh Kumar was the candidate of Left Democratic Front (for short LDF) who got 60,795 votes and the respondent got 63,082 votes, who is declared as the returned candidate from the 10 Azheekode Assembly Constituency.

(2.) The challenge in this petition is that the respondent, his election agent, and his other agents, the organisers and workers with the consent of the respondent or his election agent distributed and circulated Annexure I notice among the muslim voters of the Constituency. They appealed to the voters of the muslim community to vote for the respondent on the ground of his religion and not to vote for M.V.Nikesh Kumar who belongs to Hindu religion. An appeal by the respondent to the voters belonging to the muslim community to refrain from voting for Nikesh Kumar on the ground that he is not a member of the muslim community is a corrupt practice. Almost 30% of the voters of the Azheekode Assembly Constituency belong to muslim community and the distribution of Annexure I had materially affected the result of the election of the respondent. In Annexure I, a passage from Holy Quran is quoted which conveyed a message to the members of the muslim community that they will be rendered to an object of divine displeasure or spiritual censures, if they vote for M.V.Nikesh Kumar. The photograph of the respondent and a request to elect him with his symbol 'ladder' was published in Annexure I. The respondent, his agents and other persons with the consent of the respondent and his election agent had printed and published Annexure II pamphlet in the Constituency. The contents of Annexure II are in relation to the personal character and conduct of Sri M.V.Nikesh Kumar, which contains his photograph with Saritha, who is an accused in Solar Scam case. It is stated that Nikesh Kumar is joining with Saritha and having wayward relationship with her and on knowing this, his wife is taking steps for filing a divorce case in the Family Court. The respondent published Annexure II notice believing it to be false and not believing it to be true. At the bottom of the pamphlet, it bears, 'printing and publishing President, Indian Overseas Congress, Kannur District Committee' to make it appear that it was not printed by the respondent or his agents. On 15.05.2016, respondent's workers were engaged in house to house campaign with Annexure I and II and distributed it among the muslim voters at Thangal Vayal. Smt N.P.Manorama, the President of Valapattanam Grama Panchayat participated in the public meetings and in house to house campaign along with the respondent within the area of Valapattanam Grama Panchayat. On 11.05.2016 at 6.30 am, she conducted house to house campaign with Abdul Rasheed, V.P.Noushad and other workers of Indian National Congress and Indian Union Muslim League (for short IUML) and distributed Annexure I and II pamphlets in the presence of the respondent at Valapattanam area. They distributed Annexure I notice secretly to the members of muslim community. On 11.05.2016 and 12.05.2016 Smt N.P.Manorama, Abdul Rasheed and V.P.Noushad conducted election campaign with Annexure I and II and Abdul Rasheed and V.P.Noushad propogated the matters stated in Annexure I secretly in selected muslim houses. On 13.05.2016 C.V.Santhosh, Sujith, Pradeepan and Prem Prakash distributed the above pamphlets at Chettipeedika in their house to house campaign. On 15.05.2016, Mayyil police seized the above pamphlets from Narayanan, Rajeevan, Padmanabhan, Majeed and Noufal at Talkies Road, Kannadiparamba. The respondent suppressed material facts in his affidavit filed before the Returning Officer. Hence the respondent committed corrupt practice under Section 123(2)(a)(ii), 123(3) and 123(4) and 127(A) of the R P 1951 and his election is liable to be set aside under Sections 100(1)(b) and 100(1)(d)(iv) of the R P Act 1951.

(3.) In the written statement respondent contended that he and his election agent and other persons or workers never committed any corrupt practice as alleged by the petitioner. The averment that the above notices were printed, published and circulated by the respondent, his election agent, and other agents with the consent, direction and connivance of the respondent and his election agent, is false. The respondent happened to see Annexure I and II for the first time when he received the election petition and there is no violation of Section 127(A) of the R P Act 1951. The respondent, his election agent and others never appealed to the voters of the muslim community not to vote for a candidate who is not a believer in islamic faith. He never conveyed any message to the muslim community that they will be rendered to an object of divine displeasure or spiritual censures, if they vote for M.V.Nikesh Kumar. It is shown that annexure I and II pamphlets were printed and published in the name of 'President, Indian Overseas Congress, Kannur District Committee'. The muslim voters in the Azheekode Assembly Constituency is less than 20% of the total population. Respondent or his agent or others with his consent or with the consent of his election agent never printed, published or distributed Annexure II as alleged. Annexure I and II were printed and published by petitioner and M.V.Nikesh Kumar only to make out a cause of action for filing an election petition. M.V.Nikesh Kumar is the best person to speak about the contents of Annexure II since it relates to his personal life and his assets and liabilities. On 14.05.2016, a group of workers of the respondent were engaged in the house to house campaign and they distributed copies of Annexure I among the muslim voters at Thangal Vayal is false. The statement that Smt.N.P.Manorama played an active role in the election campaign is false. As a member of coalition party, she might have participated in the election campaign for the respondent. On 11.05.2016 & 12.05.2016 at 6.30 am, she distributed Annexure I and II pamphlets with other workers is absolutely false. The allegation that several bundles of pamphlets kept in her house were seized by K.V.Shaju is false. On 13.05.2016, C. V.Santhosh, Sujith and Pradeepan distributed pamphlets is false. Rajeevan, Narayanan and others conducted house to house campaign and distributed Annexure I and II and other materials and they were arrested by Mayyil police with the above pamphlets are absolutely false. The petition does not disclose material facts to constitute corrupt practice under Section 123 of R P Act 1951. Hence he prays to dismiss the petition for want of cause of action with cost and compensatory cost.