ORDER
Thottathil B. Radhakrishnan, J.
1. The petitioner, a candidate in the election held on 22-4-2006 to the Kerala Legislative Assembly from No. 94 Pala Assembly constituency challenges the election of the respondent, the successful candidate.
2. The allegation against the respondent is that he filed a false affidavit along with his nomination paper suppressing material facts and omitting to mention the dues he allegedly owes to the Tourism Department. It is alleged that the affidavit filed by the respondent is not in conformity with the directions of the Election Commission of India contained in its Order No:3/ER/2993/JS-II dated 27-3-2003 ('EC Order', for short). Hence, it is contended that there is non-compliance of Sections 33, 33A and 125A of the Representation of the People Act, 1951 ('Act', for short) and Rule 4A of the Conduct of Election Rules, 1961 ('CE Rules', for short) and therefore, the election of the respondent is liable to be declared void under Sub-sections (1)(d)(i) and (1)(d)(iv) of Section 100 of the Act.
3. The respondent filed written statement, a statement of preliminary objections and I.A. 10/2006 seeking, that the question of maintainability of the election petition be decided as a preliminary issue. Certain documents are also produced along with that interlocutory application with a request to receive them.
4. The election petitioner has filed objections to I.A. No. 10/2006 contending that the said petition filed invoking Section 151 of the Code of Civil Procedure is only to be rejected because no evidence could be admitted or considered before the commencement of trial and in the matter of considering a preliminary issue, nothing stated in defence on merits could be acted upon.
5. In paragraphs 2 and 3 of the written statement, the respondenthas pleaded, among other things, that the aforesaid EC Order wasissued following the decision of the Apex Court in People's Union forCivil Liberties v. Union of India See : [2003]2SCR1136 and that in the light of the said decision, the election petition is not maintainable and that the question of maintainability may be decided as a preliminary issue.
6. The Apex Court laid down in V. Narayanaswamy v. C.P. Thirunavukkarasu : [2000]1SCR292 that an election petition is based on rights which are purely the creature of a statute and in R.P. Moidutty v. P.T. Kunju Mohammad : AIR2000SC388 , that a heavy onus lies on the election petitioner, seeking to set aside the election of a successful candidate, to make out a clear case for such relief both in pleadings and at trial.
7. In Harkirat Singh v. Amarinder Singh : AIR2006SC713 , it was laid down by the Supreme Court that evidence and merits of the case are not to be appreciated while considering preliminary objections. The pleadings in the election petition have to be taken as a whole and by-treating them as prima facie true, if it discloses a triable cause of action, the election petition would deserve to be tried. The entitlement of a person to urge for a preliminary hearing on the maintainability of the election petition, including on the question that it does not give rise to a triable cause of action does not depend upon whether he has made a written request to the Court to hear such issue. It was laid down by the Supreme Court in Hari Shanker Jain v. Sonia Gandhi : AIR2001SC3689 that the respondent in an election petition is entitled to such hearing and the Court is bound to consider such question before proceeding to try the case. It was held in that case as follows:
It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else.
8. As already noticed, the only allegation against the respondent is that he had not disclosed, the liabilities allegedly due to the Department of Tourism, in the affidavit furnished by him before the Returning Officer.
9. Section 33 of the Act provides for presentation of nomination paper and requirements of a valid nomination. The nomination paper is to be in the prescribed form. Applying Clause (g) of Section 2, the interpretation clause in the Act, 'prescribed' means prescribed by rules made under the Act. Rule 4 of the CE Rules prescribed under the Act provides that every nomination paper shall be in such one of the Forms 2A to 2E, as may be appropriate.
10. Section 33A, recognizing the right to information of the voters, enjoins in Sub-section (2) thereof that an affidavit by the candidate in a prescribed form verifying the information specified in Section 33A(1) shall also be delivered to the Returning Officer along with the nomination paper. Section 33A(1) enjoins disclosure of information as to whether the candidate is an accused in a case as stated in Clause (i) thereof or has been convicted as stated in Clause (ii) thereof. Sub-section (2) of Section 33A requires the filing of an affidavit as regards information which the candidate is obliged to disclose in terms of Section 33A(1). Rule 4A was incorporated in the CE Rules with effect from 3-9-2002 following the introduction of Section 33A in the Act. The said Rule provides that an affidavit in Form 26 of those Rules shall also be delivered to the Returning Officer along with the nomination paper. Rule 4A of the CE Rules which prescribes the mode of affidavit can also be only for insisting the disclosure of information in terms of Section 33A(1). This is the reason why Form 26 is formulated in the manner in which it is, requiring disclosure of the particulars referable to matters contained in Clauses (i) and (ii) of Section 33A(1) of the Act. So much so, an affidavit in Form 26 of the CE Rules is not required to contain any disclosure by the candidate regarding debts or any matter in excess of what is required of him to be disclosed in terms of Section 33A(1).
11. Section 36(2) enumerates the grounds for rejection of nomination and Section 36(4) interdicts the Returning Officer from rejecting any nomination paper on the ground of any defect which is not of a substantial character. Section 36(2)(b) provides for rejection of nomination on the ground that there has been failure to comply with any of the provisions of Section 33 or Section 34 of the Act, but does not provide the non-furnishing of all details in the affidavit filed in terms of the EC Order as a ground for rejection of the nomination.
12. The election petitioner does not have a case that the respondent has not furnished the information which the respondent was bound to disclose in terms of Section 33A(1) of the Act. He has no case that the affidavit furnished by the respondent in Form 26, before the Returning Officer along with nomination paper, was incomplete. So much so, the nomination paper in the form prescribed by Rule 4 accompanied by the affidavit under Rule 4A of the CE Rules was indisputably delivered to the Returning Officer. Hence, the acceptance of the respondent's nomination cannot be treated as improper, to set aside his election under Section 100(1)(d)(i) of the Act.
13. The learned Counsel for the election petitioner, however, contended that it is the prerogative of the Election Commission to issue orders under Article 324 of the Constitution and that such orders have binding force. Relying on the decision of the Apex Court in Shaligram Shrivastava v. Naresh Singh Patel : [2002]SUPP5SCR585 and in Mohinder Singh v. Chief Election Commissioner : [1978]2SCR272 , as also the decision of the Apex Court in Durga Shankar v. Raghuraj Singh : [1955]1SCR267 , it was urged that the binding nature of the directions contained in the EC Order requires to be upheld and any affidavit filed otherwise in conformity with the said EC Order is to be treated as a false affidavit, the tendering of which should lead to the rejection of the nomination paper.
14. In PUCL (supra), Section 33B of the Act, inserted by Act 72/2002, was held as unconstitutional. Dilating on the question of disclosure of assets and liabilities, it was held that Direction No. 4 of Paragraph No. 14 of the EC Order dated 28th June, 2002, in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing of wrong information or suppressing material information, should not be enforced. Accordingly, Annexure-A revised EC Order dated 27-3-2003 was issued clarifying that the earlier direction of the Election Commission in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing of wrong information or suppressing material information is not enforceable as per the decision of the Apex Court in PUCL (supra). Even going by the EC Order, even if the affidavit filed by the respondent following the EC Order did not disclose the dues allegedly outstanding from him to the Tourism Department, the same could not have led to the rejection of the nomination paper.
15. It is further urged on behalf of the election petitioner that the non-compliance of the directions of the Election Commission is to be treated as a situation where the election becomes liable to be set aside on the ground of non-compliance with the provisions of the Constitution, falling within Section 100(1)(d)(iv) of the Act. While Article 324 is a provision of the Constitution of India, the orders issued by the Election Commission under that provision cannot be treated as provisions of the Constitution. Therefore, any non-compliance of the EC Order cannot be treated as non-compliance with the provisions of the Constitution, to set aside an election under Sub-section (1)(d)(iv) of Section 100 of the Act.
16. For the aforesaid reasons, the plea of the election petitioner that the respondent had not disclosed in his affidavit, the debt he allegedly owes to the Tourism Department, is no ground to set aside the election and the election petition does not, therefore, disclose any cause of action to be tried.
17. In the result, the Election Petition is rejected.
18. The substance of this decision shall be communicated to the Election Commission and to the Speaker of the Kerala Legislative Assembly as required by Section 103 of the Act. An authentic copy of this order shall also be sent to the Election Commission as prescribed.