GOPALA KURUP Vs. SAMUEL ARULAPPAN PAUL

JUDGEMENT

(1.) This appeal is against the decision by the Election Tribunal, Quilon, in Election Petition No. 11 of 1960. Four persons had contested the double member constituency of Mavelikara in the elections to the State Legislature held on February 1, 1960. Two out of the four contestants were on behalf of the Communist Party, and the remaining for the United Front. The result showed each contestant to have secured the following number of votes : 1. Gopala Kurup ..... 54,340 Kujanchan ..... 84,042 Chellappan Pillai ..... 50,662 Ramachandra Das ..... 50,170

(2.) As the first two, who had contested for the Communist Party, had obtained the majority of the votes, both were declared elected. But on March 12, 1960, one Samuel Arulappan Paul filed the petition in which this appeal arises, seeking declaration of the aforesaid elections being void, and praying the two contestants on behalf of the United Front to be declared elected. One of the grounds taken in the petition for the aforesaid declarations is that Gopala Kurup was disqualified under Article 191 of the Constitution from standing for the election, because of his being a teacher in an institution covered by the definition of 'aided School' in the Kerala Education Act, VI of 1959, and therefore holding an office of profit under the Government. The next is that both the successful persons were guilty of corrupt practice under Section 123 (5) of the Representation of the People Act, 1951, having brought voters to polling booths in a car and in jeep, more particularly described in the schedule to the election petition. The third ground is that the Returning Officer of the District, where the constituency was situated, as well as other persons en trusted with supervising the election, had committed irregularities due to the District Officer being favourably disposed towards the Communist Party, because of his relationship to the Secretary of the Communist Party, These allegations were denied, and an objection was raised that the prayers for the two declarations of avoiding elections of those successful, and securing the election of those un successful, could not be joined having regard to Section 84 of the Representation of the People Act, 1951.

(3.) At the trial, evidence was led to show that Gopala Kurup had brought three voters on two occasions in a car bearing number KLK 1365 to booth No. 73 at a place called Vettiyar. The car used for the conveyance of the voters was however, described in the schedule to the election petition as bearing No. KLR. 1365, and the petition for amending the aforesaid misdescription, was not filed before the Tribunal till August 27, 1960, when the trial had reached the concluding stages. In the affidavit accompanying the petition for the amendment, it was averred that the mistake in the schedule was due to the typist, and in support a draft prepared by the junior counsel showing the car's number to be KLK. 1365, was produced. Objections to the amendment being then allowed were taken, and the Tribunal allowed the amendment petition when giving the main judgment in the case. One of the conclusions in the final decision is that Gopala Kurup brought Pws. 4, 5 and 6 in the car KLK. 1365 to the polling booth, and other evidence supports these persons being carried, with the result that he was guilty of the corrupt practice of conveying the aforesaid voters to the polling booth, which act was covered by the definition of 'corrupt practice' under Section 123 (5) of the Representation of the People Act, 1951, and on that ground his election was void under Section 98 (b) read with Section 100 (1) (b) of the 1951 Act. The Tribunal did not accept the objection of Gopala Kurup being disqualified due to being a teacher under Article 191 from seeking election to the State Legislature, and held the election of the other successful candidate not to be void, as no satisfactory evidence of his being guilty of corrupt practice having been adduced. The Tribunal further disallowed the declaration regarding unsuccessful persons being validly elected.