M.R. Hariharan Nair, J.

1. Heard for admission and on the aspect of maintainability.

2. The petitioner who was voter No. 518 in Polling Station No. 71 in Ballussery Assembly Constituency (Constituency No.22) challenges the election of the 1st respondent - A.C. Shanmughadas as a Member of the Kerala Legislative Assembly in the election that took place on 10.5.2001, the result of which was declared on 13.5.2001. It is alleged that the 1st respondent who had been a Member representing the very same Constituency for more than 25 years exerted undue influence resulting in corrupt practice in the matter of election.

3. The allegations in the petition can be summarised as follows: After the Notification for elections to the Kerala Legislative Assembly was published by the Election Commission of India on 28.3.2001 and after the decision was taken by the 1st respondent to contest the elections from the Ballussery Assembly Constituency as a candidate of the Nationalist Congress Party which was a constituent of the Left Democratic Front- the first respondent realised that the failure to complete the Ballussery Kurumpoil - Vayalada - Thalayada road would adversely affect his prospects of success in the election. He noticed that the Pourasamithi (citizens forum constituted in the Constituency) was displeased by the noncompletion of the aforesaid road and had decided to boycott the election unless the road was opened for vehicular traffic.

4. The decision of the Forum to the above effect taken in the third week of March, 2001 appeared in the newspapers, one of which is produced as Annexure-A. Another news item to this effect which appeared in the Deepika Daily is produced as Annexure B. The boycott would have resulted in about 4000 votes being not polled. The area concerned was Vayalad within the Panangad Grama Panchayat which was believed to be a strong hold of the L.D.F. The 1st respondent therefore made frantic efforts to ensure that the construction of the said road which came within the 'MLA Road Scheme' was somehow completed, and decided to exert undue influence on the voters by ensuring the construction of the road. Misusing his privileged position as M.L.A. of the Constituency the 1st respondent and his Chief Election Agent - one Unnikrishnan exerted pressure on the Superintending Engineer, PWD, North Circle, Kozhikode by name Sureshan Koyilerian and compelled him to transfer the work relating to the said road to the Roads Sub Division, Kozhikode with immediate effect.

5. Previously, the work was under the control of the Assistant Executive Engineer, PWD, Roads Sub Division, Koyilandi which post at the time was held by one T.V. Vasumithran. In consequence of personal pressure exerted by the 1st respondent and his Chief Election Agent the work was transferred to the Roads Sub Division, Kozhikode, as per an order produced as Annexure-C on 6.4.2001. The said order was passed after the 1st respondent had declared his candidature to the Constituency. The transfer of the work which had commenced as early as 1982 through Annexure-C order was unprecedented, illegal and against the normal procedure. The work of the road was handed over on 18.4.2001 and it commenced all of a sudden, i.e., on 19.4.2001 itself.

6. At the instance of the 1st respondent, the Pourasamithy met again on 30.4.2001 and decided to lift the boycott announced earlier. After the declaration of the results, the work was stopped. The performance of the work in the meantime was deliberately intended to exert undue influence directly or indirectly on the voters or at any rate it was an attempt to interfere with the free exercise of the electoral right. In consequence of the commencement of the work in an illegal manner those who had earlier decided not to vote not only decided to end the boycott, but also appear to have voted in favour of the 1st respondent.

7. On 7.5.2001 i.e., three days before the polling, the 1st respondent and the activists of the L.D.F. conducted a