A YOUNUS KUNJU Vs. R S UNNI

JUDGEMENT

(1.) This appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') is directed against the decision of the Kerala High Court dismissing the election petition of the appellant whereby he challenged the election of respondent No. 1 as a member of the Kerala Legislative Assembly from Constituency No. 125 Eravipuram in the Quilon district of that State. Election was held on 19-5-82 and the result was declared on the following day. There were eight candidates in all but the main contest was between the appellant and the respondent No. 1. The appellant polled 37,073 while respondent No. 1 polled 37,862. There was, therefore, an excess of 789 votes. All the remaining candidates together polled about 2,000 votes.

(2.) Challenge to the election was laid on two grounds:- namely, commission of corrupt practices within the meaning of sub-sections (2), (4) and 7 of See. 123 of the Act and several irregularities in the course of counting leading to wrong conclusion regarding the result. The returned candidate joined issue and denied these allegations. The learned Election Judge in the High Court came to hold that the appellant had failed to bring home the charges of corrupt practices. He also did not accept the plea of irregularities in counting of ballot-papers. A request made to him for recount was rejected and on these conclusions he held that the election petition was liable to be dismissed.

(3.) Appellant's counsel conceded that the allegations of corrupt practices covered by sub-section (2) of Section 123 of the Act would not be pressed. He also fairly accepted the position that the evidence relating to obtaining or procuring of assistance for the furtherance of the prospects of respondent No. 1's election from government servants was inadequate as found by the High Court. Two grounds were, therefore, pressed in support of the appeal, namely, the allegations of corrupt practice within the Section 123(4) of the Act and the allegations of irregularities in the matter of counting of ballot-papers. Section 123 (4) provides: