Judgement

FAZAL ALI J:- This election appeal is directed against the order of the High Court of Kearla dated 19th Dec., 1977 by which the election of the appellant Haji C. H. Mohammad Koya has been set aside and he has been disqualified from taking part in the elections for a period of six years under the provisions of the Representation of the People Act, 1951 (hereinafter called the Act).

2. For the purpose of brevity we shall refer to the respondent-petitioner as the petitioner and Haji C. H. Mohammad Koya as the appellant.

3. In the general election held to the Legislative Assembly of Kerala on 20th March, 1977 the petitioner and the appellant were the contesting candidates from No. 34 Malappuram Constituency. The counting of votes took place on the 20th March, 1977 and the appellant was declared elected on the same date. The total votes polled were 56,276. The appellant secured 39,362 votes and thus defeated the petitioner by a margin of 20,000 votes. Aggrieved by the election results, the petitioner filed an election petition in the High Court alleging that the appellant had committed various corrupt practices falling within the ambit of S. 123 (3), (3A) and (4) of the Act. It was mainly alleged that before the elections, the appellant was the Chief Editor of a Malayalam daily paper called Chandrika which was the official organ of the Muslim League. It is further alleged by the petitioner that the appellant held shares worth Rs. 3 lakhs in the Printing and Publishing Company which published Chandrika. This paper, according to the petitioner, contains several articles, extracts of speeches and cartoons which tended to ask the Muslims to vote for the appellant on religiout and communal grounds and also promoted ill-will and hatred between two classes of citizens, namely, the Janasangh and the Muslim League. It appears, however, that at the hearing the petitioner confined his case only to the corrupt practices alleged by him under S. 123 (3A) of the Act. In this connection, the learned Judge of the High Court observed as follows:-

"Though in the petition sub-secs. (3), (3A) and (4) of S. 123 of the Act are specifically referred to, from the evidence tendered in the case it would appear that applicability of sub-sec. (3A) of S. 123 alone falls for decision."

4. The petition was contested by the appellant who filed a counter-affidavit denying the assertions and averments made by the petitioner and took the stand that he made no speech which offended S. 123 (3A) of the Act nor was he aware of any of the offending articles or cartoons published in Chandrika prior to the elections. He also denied that he was an Editor of Chandrika, but admitted that he was the Chief Editor and that too only in name. Being an important and an influential person he was able to collect lot of money for Chandrika from the Gulf States and that is why he was assigned an important role in Chandrika as Chief Editor for the purpose of deciding the larger policies of the paper. The appellant further denied that he had anything to do with the editorial work of Chandrika or the publication of the speeches or articles etc. It may be pertinent to note here that even the petitioner in his petition has not at all alleged or described the nature of the duties which the appellant performed as Chief Editor nor has he stated that as Chief Editor he was controlling the materials published in the paper so as to ascribe constructive knowledge to him of the articles published in Chandrika. All that the petitioner pleaded in his petition on this subject may be extracted thus:-

"The respondent is the Chief Editor of Chandrika, a daily newspaper published from Calicut. It is published by the Muslim Printing and Publishing Company Limited. The major shares of this campany is owned by the Muslim League Party and the respondent holds share worth of Rs. 3 lakhs in the above company. The daily Chandrika is the official organ of the Muslim League Party. It is submitted that in the da