P J ANTONY Vs. K M MANI

JUDGEMENT

(1.) THIS is a petition filed by an elector in the 94 Palai assembly Constituency challenging the election of the 1st respondent to the kerala State Legislative Assembly in the election held on 19 - 3 -1977. After counting of votes the results were declared on 20 - 3 - 77 declaring the 1st respondent as duly elected as member of the Assembly. According to the petitioner the election of the 1st respondent is void being violative of Ss. 123 (1), (2), (3), (4) and 7 of the Representation of the People Act, 1951 (for brevity the Act ). The 1st respondent, who is a member of the Catholic community, was during the relevant time a leader of the Kerala Congress and he was the Minister for Finance in the Government of Kerala. On 12 - 3 -1977 a meeting of the priests of the various Parishes of the Catholic Church within the aforesaid constituency and certain other leaders of the Catholic community was convened at the Hishop's House, Palai, at 8 p. m. In the? meeting the hishop called upon the priests and other leaders of the community to work for the success of the 1st respondent in the interest of the Church and of the catholic community They were also persuaded by the Hishop to use their influence among the voters for tendering votes in favour of the 1st respondent. The appeal by the Hishop was made with the consent and knowledge of the 1st respondent and his agents. The aforesaid step prejudicially affected the prospects of election of the 2nd respondent. In the same meeting one Sri Joseph thomas, City Police Commissioner, Trivandrum , also spoke and called upon the priests and other leaders to work for the success of the 1st respondent. The aforesaid Joseph Thomas went to Palai at the instance of the 1st respondent and with his consent and knowledge for convening the meeting. The aforesaid Police Officer is known for his antipathy towards the opposition parties. By procuring his services for the furtherance of the prospects of the 1st respondent's election, a corrupt practice falling within the ambit of S. 123 (7) of the Act has been committed. A Malayalam Daily called "deepika" and published from Kottayam is a newspaper to protect the interests of the Catholic community. When the 1st respondent became the Finance minister, Rev. Fr. Kolambian, the Managing Editor of Deepika placed an application for Rs. 25,00,000.00from the Kerala Financial Corporation. On the eve of the election the aforesaid loan was sanctioned with undue baste and without properly ascertaining the solvency of the applicant and obtaining proper security with reduced stamp duty. The newspaper 'deepika' is widely read by Catholic community and that paper actually helped for the success of the 1st respondent. There was, thus violation of S. 123 (1) and S. 123 (2) of the Act. The petitioner prays for a declaration that the election of the 1st respondent is void and for a declaration that the 2nd respondent, who obtained the next highest number of votes polled, is duly elected from the concerned Assembly constituency.

(2.) IN answer to the summons of the court only respondents 1 and 3 entered appearance. The 2nd respondent was therefore declared ex parte. The 1st respondent filed a written statement. His contentions may be briefly set out. Since the petitioner had alleged corrupt practices as a ground in the election petition this court has no jurisdiction to try the petition In view of article 192 of the Constitution as it stands after the Constitution (Forty second) Amendment Act the authority to decide the questions relating to disqualification on the basis of corrupt practice vests exclusively with the president. Ss. 98 to 100 of the Act must be deemed to have been repealed by the constitution (Forty-second) Amendment Act. Again, the petition is not maintainable because it was not presented by the petitioner in person as enjoined by S. 81 of the Act. The averment in paragraph 3 of the petition is denied. The 1st respondent denies all the allegations in paragraph 4 of the petition in respect of the meeting alleged to have taken place at the Hishop's house, palai. No such meeting was convened at the instance of the 1st respondent or his agent or with the consent or knowledge of the 1st respondent or his agents. The averments in paragraph 4 of the petition are insufficient is law and tacts to attract S. 123 (2) and (3) of the Act. The 1st respondent does not know whether Sri Joseph Thomas attended or addressed the meeting as alleged in paragraph 5 of the election petition. The 1st respondent denies that Sri Joseph thomas went to Palai at the instance of the 1st respondent. The 1st respondent has not obtained or procured the service of Sri Joseph Thomas for the furtherance of the prospects of the 1st respondent's election. No corrupt practice within the meaning of S. 123 (7) of the Act was committed. The averments in paragraph 6 of the petition are denied. Deepika" is printed and published by Deepika Printers at St. Francis Press, Kottayam. The averment that an application for loan was made when the 1st respondent became the Finance minister is misleading, and the 1st respondent had nothing to do with the loan application filed by the Managing Editor of Deepika. The averments in the petition regarding grant of loan are denied. The Government and the Finance minister had nothing to do with the application for sanction of bans presented before the Finance Corporation. 'deepika' did not actively campaign for the 1st respondent. As was done by all leading newspapers in the State during the last elections, articles were being published by Deepika also assessing the respective merits of the contesting candidates in various constituencies in the state including Palai constituency. "deepika' is read by members of all communities. The article do not attract S. 123 (1) and (2) of the Act. The affidavit filed along with the petition is not in conformity with the requirements of law. It is not affirmed by the deponent that any of the statements in paragraphs 3 to 6 are true to his knowledge. The affidavit cannot be acted upon and the petition is liable to be dismissed on that short ground. The petitioner is not entitled to any relief.

(3.) AFTER discussing with both sides the following issues were raised: 1. Whether the petition is maintainable? 2. Whether the election of the 1st respondent is vitiated by all or any of the corrupt practices as alleged in the petition? 3. Regarding costs and reliefs.