ABDUL MAJEED Vs. SHAMSUDDIN

JUDGEMENT

(1.) THIS appeal is against the order by the Election tribunal, Quilon, whereby the Election Petition, No. 8/60, has been dismissed. The appellant was one of the three persons who had contested at the 1960 february Election the General seat to the State Legislature from the Varkala constituency, the other three having fought for the reserved seat from the same constituency. The appellant had polled 49, 862 votes & had lost, because first respondent to the Election Petition had secured, 50, 231 votes. The third contestant for the general seat, who is the 2nd respondent to the petition, had obtained only 400 votes. The order in which the six persons had contested is given below and the list further shows their numbers as the respondents to the petition before the lower Tribunal. At this stage we may state that they represented three parties, one candidate from each party contesting for his party each seat from the aforesaid double member constituency. Thus the appellant and Balakrishnan (Respondent No. 5) were seeking election on behalf of the Communist Party. Neelakandan (Ummini), Respondent No. 2 and Neelakandan (Velu), Respondent No. 3, were fighting on behalf of the Kerala Socialist Party Shamsuddin the 1st, and Kunjan the 4th respondents were put forward by the United Front. The candidates on behalf of the Kerala Socialist Party had polled very small number of votes; and have not attempted to further challenge the election results. Of the remaining four a contestant from each of the remaining two parties has succeeded in winning a seat for his party. As already mentioned Respondent No. 1 has won the seat for the United Front, having been put forward by the Congress part); whereas, Kunjan (Respondent No. 4) lost the reserve seat to Respondent no. 5, who has won on behalf of the Communist Party.

(2.) IT is admitted that the Returning Officer worked at counting the votes from 8 A. M. on February 2,1960 to 10-30 A. M. on February 3,1960, when the results were announced and this continuous work, with a break of only an hour for dinner on the night following February 2,1960, has been made a ground of attack in the election petition as the reason for the recount of the votes being directed by the Tribunal. In the election petition the appellant has further taken other grounds for avoiding the election of the 1st respondent as well as for the declaration of his being properly elected. These other grounds can be grouped into three groups. The first consists of averments of corrupt practices under S. 123, sub-sections (1), (3), (4) and (5) of the representation of the People Act, 1951, hereafter referred to as the Act, which are alleged to have been committed either by the 1st respondent or his recognised agents The next head is the improper acceptance of the nomination paper of the 2nd respondent, which is claimed to have caused the appellant the loss of 400 votes cast in favour of the aforesaid respondent, which the appellant swears he would have secured for himself. The third is the charge of impersonation of voters and of election expenses having been exceeded. Of the aforesaid grounds the last on which issue Nos. 23 and 22 had been framed, were not pressed before the Election Tribunal. So also the complaints' of corrupt practice under S. 123 (1) and (4) of the Act were given up. Therefore two sub-heads of the complaints of corrupt practice i. e. of the successful candidate having obtained votes by bribery, or hired vehicles to convey voters, on which issue Nos. 13 and IT were framed by the Tribunal, need no longer bo considered.

(3.) BEFORE deciding how far such a case been proved it would be of advantage to extract S. 123 (2) and (3) of the Act of 1951, which reads as follows: "123. The following shall be deemed to be corrupt practices for the purposes of this Act: [2] Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right: provided that: [a] Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who [i] threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or [ii] induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; [b] a declaration of public policy, or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. [3] The systematic appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent, to vole or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the rational emblem, for the furtherance of the prospects of that candidate's election.