K.ABRAHAM MATHEW,J. - (1.)Election to the 14th Kerala Legislative Assembly was held on 16.5.2016. The respondents contested the election from Koduvally Constituency. The first respondent was an independent candidate supported by the Left Democratic Front (LDF) and the second respondent was the candidate of the Indian Union Muslim League, a constituent of the United Democratic Front (UDF). The first respondent was declared elected by a margin of 573 votes. While he polled 61,033 votes, the second respondent polled 60,460 votes. The petitioners were two voters of the constituency. They challenge the election of the first respondent on the ground of corruption as defined in sub-section of Section 123 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act').
(2.)With the assistance of one N.K. Suresh, who was the counting agent of the first respondent and area committee member of the CPM, a constituent of the Left Democratic Front (LDF), the first respondent prepared a script containing false and baseless allegations against the second respondent on the basis of which he wanted to make a video programme to be exhibited at various places in the constituency. The first respondent and N.K. Suresh entrusted the script to one Mohammed Sinan. Accordingly, he made a video programme at Honey Bee Studio at Koduvally owned by one Shabeel. In the video programme a telephonic interview is shown to have been given by one Muhammed Easa. The subject matter of the interview was the character and conduct of the second respondent. The video programme consists of the speech of one Sulfikkar Elettil. The speech contains an allegation that there was a proposal to felicitate Muhammed Easa, who used to do many charity works in the constituency and the second respondent thwarted the attempt to organize the programme. This is false. In 1997-98 the local Panchayat extended financial help to the tune of Rs. 35,000/- to one Puliyullathil Muhammed for construction of a house. Initially, he was paid only Rs. 15,000/-. On the basis of the allegation that two employees of the Panchayat misappropriated the balance amount of Rs. 20,000/- a case, C.C. No. 29 of 2000, was filed in the court of the Judicial Magistrate of First Class-I, Thamarassery. Puliyullathil Muhammed, who was examined as PW1, testified that he had received the whole amount and he had no complaint against anyone. Accordingly, the two accused were acquitted on 31.8.2011. The second respondent was the Panchayat Member from the locality in which Puliyullathil Muhammed was residing. In the video programme referred to above allegation was raised that the second respondent was guilty of misappropriation of the amount of Rs. 20,000/-, which was payable to Puliyullathil Muhammed as the second instalment of the amount sanctioned to him. This is absolutely false. This video programme was screened on a television set installed in a vehicle at various centres in the constituency. It was at the instance and with the consent and knowledge of the first respondent the video programme was created and screened. The false allegations raised against the second respondent adversely affected his reputation, which resulted in his losing many votes. It is this corrupt practice that caused his defeat in the election. On these allegations the petitioners pray for setting aside the election of the first respondent and for declaration that the second respondent is the duly elected candidate.
(3.)The contentions in the written statement: The petitioners were not entitled to vote in the election held to the Koduvally constituency. They have no locus standi to file this petition. The requirements of Section 81, 82 and 117 of the Act have not been satisfied. There were defects in the petition at the time of its institution. The registry returned it to cure the defects. It was re-presented after the period prescribed for filing the Petition. So it is barred by Law of Limitation. Materials required to attract Section 100(1) and Section 101 of the Act are not pleaded. Full particulars of the allegations are not given in the petition. So Section 123 of the Act is not attracted. The affidavit filed along with the Petition is not proper. There is no proper verification of the Petition. The allegation that along with some others the first respondent prepared a script containing false and baseless allegations against the second respondent and on the basis of it a video was prepared and it was screened at various places in the constituency is false. There is no truth in the allegation that the first respondent had given consent to screen the alleged video at public places.