BALAN Vs. MANOHARAN MASTER

JUDGEMENT

(1.) In the general election to the Kerala Assembly for which poll was taken en 23-3-1987 the petitioner and respondents 1 to 5 were the contesting candidates for the seat from No. 4 Hosdurg Constituency. Real fight was between the petitioner who was the candidate of the C. P. I., an ally of the L.D. F. and first respondent, sponsored by the Congress (I), an ally of the U.D.F. First respondent won by a majority of 59 votes, having polled 46,677 valid votes in his favour while the valid votes polled in favour of the petitioner was only 46,618. Petitioner seeks to declare the election of the first respondent void and to declare him elected.

(2.) Reasons alleged could be broadly categorised under two heads, namely (1) rejection of valid votes in his favour, reception of invalid votes in favour of the first respondent and acceptance of votes cast by impersonation coming under S.100(1) (d) (iii) of the Representation of the People Act, 1951 and (2) Corrupt practices under S.123 (2) and (3) coming within the purview of S.100(1)(b).

(3.) Allegations coming under the first count are (1) persons designated in the list as counting staff were partisans of the U. D. F. who were biased against the petitioner and in spite of the protest made by the petitioner on 16-3-1987 no action was taken by the District Collector to remove them (2) there was insufficiency of space in the counting hall and sorting and counting were in a hurry. Conscious and unconscious incorrect sortings were resorted to especially in table Nos. 1, 4, 13 and 14 and the objections raised by the polling agents of the petitioner were not considered. In bundling also there were irregularities (3) returning officer rejected several valid votes as invalid overruling the protest of the petitioner that they were valid votes in his favour (4) several votes in favour of the first respondent were cast by impersonation and (5) request for recount was improperly rejected. Under the second head the allegations are (1) undue influence by the I.U.M.L. leaders and Muslim religious leaders characterising the election as 'jehad', a fight for religious survival, by making inflammatory speeches warning the Muslim voters about danger to religion and appeals by them to the voters to exercise their franchise in favour of the first respondent and against the petitioner in the name of religion. Five specific instances of such speeches were pointed out stating that all of them were in mosques. The first three instances were said to be in the presence of the first respondent and the other two in the presence of his election agent Shri. Kottara Vasudev. The general allegation is that these speeches were at the instance of and with the consent of the first resplendent or his election agent for furthering prospects of his election. Threat of excommunication was also alleged.