K R SARASWATHI AMMA Vs. S THANKAPPAN PILLAY

JUDGEMENT

(1.) In the general elections held on 19-3-1977 to the Legislative Assembly of the Kerala State, the petitioner and respondents 1 to 3 contested from No. 108 Chengannur Assembly Constituency. Poll was taken on 19-3-1977 and counting took place on 20-3-1977. On the same day the Returning Officer declared that the first respondent was duly elected to the Legislative Assembly from the concerned constituency. The petitioner, one of the defeated candidates, challenges the election essentially on the ground that the first respondent is guilty of corrupt practices. The first respondent, on acceptance of summons, entered appearance and filed a written statement traversing the allegations contained in the petition. Thereafter the first respondent filed C.M.P No. 9642 of 1977 raising a fresh ground to the effect that the election petition is liable to be dismissed summarily for non compliance with S.82(b) of the Representation of the People Act, 1951 (briefly the 'Act'). To that petition a reply affidavit has been filed by the petitioner alleging that the petition is properly constituted and it does not suffer the vice pointed out by the 1st respondent in CMP. No. 9642 of 1977.

(2.) The short case put forward by the 1st respondent is that in view of the allegations contained in Para.7 of the petition there is non compliance with S.82(b) of the Act and that the court is bound to dismiss the petition before further trial in view of the mandatory provision contained in S.86(1) of the Act. To appreciate the respective cases of the contesting parties it is necessary to read Para.7 of the petition:

(3.) The learned counsel for the petitioner vehemently argued that the averments in Para.7 of the petition are practically the same as the averments considered by the Supreme Court in the decision reported in Mohan Singh v. Bhanwarlal ( AIR 1964 SC 1366 ). The real proposition laid down in that decision has been considered by the Supreme Court in Krishan Chander v. Ram Lal ( AIR 1973 SC 2513 ) No doubt, in Krishan Chander's case the illegal gratification for withdrawal was payment of money. When Mohan Singh v. Bhanwarlal was cited the Supreme Court observed as follows:-