J.M. Panchal, J. - (1.) This appeal, filed under Section 116A of the Representation of People Act, 1951 (Rs. the Act for short), is directed against judgment dated August 8, 2005, rendered by the learned Single Judge of the High Court of Kerala at Ernakulam in Election Petition No. 6 of 2001 by which the election of the Appellant as Member of Kerala Legislative Assembly from No. 106, Kallooppara Constituency is declared void on the ground that he was guilty of the corrupt practice within the meaning of Section 123(4) of the Act as he extensively distributed directly and through UDF workers, who did so with his consent, the copies of Ext. X4, which contained statements of fact, which were false and which he believed to be false or did not believe to be true in relation to the personal character and conduct of the Respondent No. 1.
(2.) The facts, emerging from the record of the case, are as under: The election to the Kerala Legislative Assembly was held on May 10, 2001. From the Constituency, i.e., No. 106 Kallooppara Constituency, the Appellant, i.e., Joseph M. Puthussery, the Respondent No. 1, i.e., Advocate T.S. John, Prof. P.K. Rajasekharan Nair, i.e., the Respondent No. 2 and Mathew Pinakkulath Padinjaremannil, i.e., the Respondent No. 3, contested the election. The result of the election was declared on May 13, 2001 and the Appellant was declared elected with 42,238 votes cast in his favour. As far as the Respondent No. 1 is concerned, he was able to poll 31,013 votes. Thus, the Appellant defeated the Respondent No. 1 by a margin of 11,225 votes. The Respondent Nos. 2 and 3 received 4,432 and 361 votes respectively. On June 27, 2001, the Respondent No. 1 filed Election Petition No. 6 of 2001 in the High Court of Kerala at Ernakulam, under Section 100(1)(b) of the Act assailing the election of the Appellant. According to the Respondent No. 1, the election of the Appellant was vitiated by corrupt practice defined under Section 123(4) of the Act for the reason that copies of Ext. X4, which allegedly contained false statements of fact in relation to the personal character and conduct of the Respondent No. 1 having tendency to prejudice the prospects of the election of the Respondent No. 1, were distributed by the Appellant, his election agent and workers of the United Democratic Front, i.e., the party to which the Appellant owe allegiance, with his consent as well as with the consent of his election agent on May 8, 2001 and May 9, 2001 ignoring the stipulation that electoral campaign must come to an end. The precise statements in Ext. X4, which, according to the Respondent No. 1, allegedly amounted to the corrupt practice within the meaning of Section 123(4) of the Act, are extracted below: - Adv. T.S. John Is He A Servant of the People or Hero of Corruption When tens of thousands of Homeless wander on streets, this MLA, the peoples servant acquires mansion after in his name. Let us start journey from Anathapuri to take an account of the number of flats owned by this esteemed personality. Even in the District of Trivandrum a flat was allotted during 1980, when Gopi was the Chairman of the Housing Board while he was MLA. During 1984, when P.J. Joseph of flats near the Chairmans Quarters were acquired by this MLA in the name of daughter of his elder brother. At that time, the Chairman of the Housing Board was Oommen Mathew. By leasing out all the acquired flats on rent, he was fetching, Rs. 1000 to 2000 per month. Nearly Rs. 30,000/- was being received as profit from this alone. T.S. John, who was allotted a plot earlier, got the flat in exchange by paying the price in monthly installments. This flat cost Rs. 12 lakhs. Even the third flat of the Housing Board came of T.S. John. In order to hoodwink the people of Kallooppara, he still continues to live in a small house. His car shed is even better. It would have been nice for T.S. John to live in the car shed with concrete roof. Thengana Kadanthod Thankchan, who is running "Mariya Store" on the Changanacherry-Karukachal road near the Thengana Waiting Shed, had prized the lottery ticket. Now the only question that arises, is how much profit Thankchan got in this transaction. Though a lot of such incidents had happened in the State, in the history of Kerala this is the first time that an MLA had indulged in this type of deceit. Poor Simpleton of a Little Hut Or Many..... Many..... Corruption Stories. These repulsive stories of corruption are a disgrace to the country. It should not be forgotten that by this ridiculed are the people of this place. Corruption Hero T.S. John M.L.A. T.S. John M.L.A. the peoples representative who lives in his small house as a puritan poor folk, has built up flats and properties under benami worth crores of rupees through out the Kerala State. Even the Ambassador Car No. KL 3/E7 this M.L.A. owns is, it is the name of Manjeri Bhaskaran Nair. Role of P.J. Joseph, Minister and T.S. John M.L.A. Embezzlement of crores of rupees behind Palemaad Vivekanada School There is a school in the name of Palemaad Vivekanada village near Manjeri in Malappuram District, which is populous with settlors, but is an undeveloped area under the shield of this school, which started functioning during 1963, a family is leading princely life at the expense of the Government, embezzling crores of rupees. Those who liaise for them and receive lakhs of rupees as their share are two important persons. Education Minister P.J. Joseph and the formal Minister and the Assembly Speaker T.S. John. It is now years since P.J. Joseph and T.S. John begun this business in the education with Bhaskara Pillai. Bhaskara Pillai, who was removed from N.S.S. for indulge in financial irregularities, has seen the green pasture in his life through the education business with P.J. Joseph - T.S. John. The Appellant filed written statement resisting the election petition. In the written statement, distribution of Ext. X4 in the Constituency on May 8, 2001 and May 9, 2001 was not specifically denied meaning thereby ignorance was pleaded so far as distribution of the pamphlets was concerned. However, the Appellant took a specific stand that neither he nor his election agent or any one with his and/or their consent had distributed Ext. X4. What was stated by the Appellant in the written statement was that the distribution was done by the Youth Wing of the party to which the Respondent No. 1 belongs and that the distribution of Ext. X4 does not amount to any publication. It was also averred that, at any rate, the statement was not calculated to prejudice the prospects of the Respondent No. 1 in the election held on May 10, 2001 and, therefore, the Election Petition was liable to be dismissed.
(3.) Having regard to the pleadings of the parties, the learned Single Judge framed as many as eight issues for determination. On behalf of the Respondent No. 1, who was the original Petitioner, as many as 90 witnesses were examined and documents Ext. P-1 to P-22 were produced in support of his case that the election of the Appellant was liable to be voided. So far as the Appellant is concerned, he had examined 53 witnesses and produced documents at Ext. R-1 to R-20 in support of his case that his election was not liable to be set aside on the ground of alleged corrupt practice. Further, Ext. C-1 to C-3(b) were marked as Court Exhibits whereas X-1 to X-24 documents were marked as proved by witnesses and Ext. N-1(a) and N-1(b) were marked by the persons to whom the court had issued notice under Section 99 of the Act.;