MANI C. KAPPAN Vs. K.M. MANI & ORS.

JUDGEMENT

(1.) The petition was filed by the petitioner who is a defeated candidate in the election conducted to Kerala Legislate Assembly on 16.05.2016 challenging election of 1st respondent from Pala constituency. It is alleged in the petition that petitioner contested the election from No.3 Pala Assembly Constituency to Kerala Legislative Assembly in the general election held on 16.05.2016. There were 8 candidates contested in the election who were shown as the respondents herein. 1st respondent herein was declared elected from the constituency with a majority of 4,703 votes. The 1st respondent had contested in the election as a United Democratic Front Candidate while the petitioner contested as a candidate of left democratic front. 1st respondent had failed to comply with the provisions regarding the submission of nomination paper prescribed under Representation of Peoples Act 1951 and orders made therein by the election commission. The nomination of 1st respondent was improperly accepted by the returning officer as the nomination was incomplete and defective of substantial nature as provided under Sec. 36 of the Representation of Peoples Act. As per Sec. 32 of Representation of Peoples Act any person may be nominated as a candidate for the election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the constitution and the Act. The persons contesting the elections has to present a nomination paper along with the required documents to make that nomination as valid. It must be presented in Form II B as per Rule 4 of the conduct of election rules, an additional affidavit to be filed in Form 26 as per Rule 4A of the said Rules. On presentation of the nomination paper, the returning officer has to satisfy himself that the nomination is proper and inconformity with the provisions of the Representation of Peoples Act and Rules. As per Sec. 33 A of the Act, a candidate shall apart from any information which is required to furnish under the Act and Rules made under his nomination paper delivered under Sub Sec. (1) of Sec. 33, also furnish information as whether his involvement in a criminal case, conviction etc. As per the directions of the Delhi High Court in W.P. (C)No. 4912 of 1998 Kishak Bharath Vs. Union of India and Others, the election commission had issued Annexure A order dated 03.20.2016 necessitating the candidate to submit no demand certificate from agencies providing electricity, water and telephone along with a nomination paper and c also to file an additional affidavit in the format attached as Annexure to the said order. As per the order issued by the Election Commission, certificate must show that there is no demand issued from the above agencies and no amount is due for the last 10 years from that person for occupying the official Government accommodation provided. It is also provided therein that failure to provide a certificate as provided therein will result in rejection of nomination paper as provided under Sec. 36 of the Act. 1st respondent submitted Annexure B nomination paper along with affidavit and documents, which did contain the necessary no demand certificate from the authorities which are supplying electricity, water and telephone as provided under the circular. The 1st respondent was in occupation of official residence of Minister, Prasanth Vazhuthakkad, Thiruvananthapuram and also at M.L.A. Quarters. Electricity, water and telephone were provided by the respective departments, but he had not produced the necessary documents. So the acceptance of nomination of 1st respondent is not valid and the returning officer ought to have rejected the same and it was improperly accepted, which has materially affected the result of the j election. He had also contended that 1st respondent was contesting from Pala Constituency for the last 50 years and he had acquaintance with all the people in the locality and his presence alone will be sufficient for getting more votes. The votes were obtained by 1st respondent on account of his personal acquaintance with the voters in the constituency irrespective of the fact that he is a leader of a known political party which is a part of United Democrat Front. In spite of the fact that there were allegations of corruption against him, he succeeded in the election only on account of his personal acquaintance with the people in the locality. Another candidate from Thripunithura who was a minister against whom corruption charges were made though contested in the election lost the election from that constituency. Had the nomination paper of the 1st respondent been rejected, the votes polled to him would have been diverted and most of the votes would have been polled to the petitioner and thereby he would have been elected from the constituency in the absence of the 1st respondent. The 2nd respondent had acquired only 1/3 votes secured by the petitioner. If the 1st respondent was not there, he would have won the election. So he filed an election petition for declaring the election of the 1st respondent as not valid for improper acceptance of his nomination paper and also declare him as elected candidate from that constituency. Hence this petition.

(2.) 1st respondent filed written statement contending as follows:-

(3.) Others remained absent.