T S JOHN Vs. JOSEPH M PUTHUSSERY

JUDGEMENT

(1.) The prayer in this petition is to set aside the election of the first respondent (Joseph M. Puthussery) from No. 106 Kallooppara Assembly Constituency in the election held on 10th May 2001. The petitioner - T. S. John belongs to the Kerala Congress which was one of the constituents of the Left Democratic Front (LDF), whereas the 1st respondent who belongs to the Kerala Congress (Mani Group) represented United Democratic Front (UDF). The 1st respondent was declared elected with a margin of 11225 votes over the petitioner.

(2.) The election is sought to be set aside on the ground of 'corrupt practice' under S.123(4) of the Representation of the People Act, 1951. (for short 'the ROP Act') and the declaration regarding invalidation is sought under S.100(1)(d) of the ROP Act. The substance of the allegation is that on the eve of the election i.e., on 8th May 2001 and 9th May 2001 the 1st respondent, in accordance with the pre - hatched plan, widely distributed copies of highly defamatory pamphlets, a specimen of which is produced as Ext. X - 4 through out the Constituency. It is alleged that besides distribution of the same through the workers of the 1st respondent, there was also direct distribution at certain places by the petitioner himself and by his election agent K. Jayavarma at some other places. Following issues were raised in the case:

(3.) The collection of evidence in the case is complete by now. Elaborate evidence was adduced by both sides. The evidence available for consideration consists of the depositions of PWs 1 to 90, D.Ws. 1. to 53 and Exts. P - 1 to P - 17, X - 1 to X - 25 series and R - 1 to R - 20. There is difficulty for the disposal of the case on a consideration of the aforesaid evidence in view of the mandate in S.98 and 99 of the ROP Act. Even though S.98 of the ROP Act provides that at the conclusion of the trial the Court could declare the election of the returned candidate to be void or declare that the petitioner or any other candidate has been duly elected, S.99 operates as a proviso thereto. It is useful to quote S.99 here: