M.R. Hariharan Nair, J.

Heard both sides on the aspect of maintainability of this Election Petition based on preliminary objections raised by the first respondent.

2. The petitioner and the respondents contested the election from No. 125 Eravipuram Legislative Assembly Constituency, the polling with regard to which took place on 10.5.2001. The petitioner was a Muslim League candidate and the first respondent represented the Revolutionary Socialist Party. When the results of the election was declared on 13.5.2001, the first respondent was declared elected with a margin of 21 votes. While the petitioner got 55617 votes, the first respondent got 55638 votes. The details of votes secured by other candidates (respondents 2 to 4) are not relevant for deciding the present controversy and hence not mentioned here.

3. The challenge made by the petitioner with regard to the declaration of result is under several heads. He contends that the 4 persons named in Annexure A voted twice, the result of which is that both votes cast by them would be void. The next allegation is that the 9 persons mentioned in Annexure B, though they were voters included in the electoral roll, were actually deceased as on the date of election and that in their place some other impersonators voted. As regards the 13 voters mentioned in Annexure C, the allegation is that they were actually abroad and that there was impersonation in their place. Likewise, as regards the 17 voters mentioned in Annexure D, the allegation is that they were actually out of station on the date of poll and that there was impersonation resulting in undue benefit to the first respondent. As regards the five persons mentioned in Annexure E, the allegation is that by the time they reached the polling booth somebody else had already cast their votes and that they could not give tender votes which were not counted. The petitioner contends that the votes given in their name by impersonators went in favour of the first respondent and those votes were also taken into account while declaring the result.

4. Based on Annexure F, which is a copy of a letter addressed to the District Collector, Kollam, the contention is that large number of voters whose names were in the final electoral roll were not permitted to vote by the Presiding Officer on the ground that their names did not appear in the marked voters list handed over to him and actually three pages of the voters list containing SI. Nos. 1249 to 1330 were missing in the voters list supplied to the Presiding Officer of Booth No. 185 of the Constituency and that even after complaint was made as per Annexure F, two of the three missing pages were delivered to the Presiding Officer at about 2.30 p.m. and the remaining one page was delivered only at 3.30 pm with the result that 48 persons coming within the said group had to return without voting. The contention is that refusal to receive these 48 votes has materially affected the result of the election. The details of these voters are in Annexure G.

5. As regards the six voters mentioned in Annexure H, the contention is that they were denied postal ballot papers though they were entitled therefor and their votes were in fact cast by impersonation which were also taken into account while declaring the result. Annexure I is one of the complaints filed in the above matter. Annexure J gives the names of 34 voters, who exercised their franchise through postal ballot. The allegation is that there was no due attestation by any Gazetted Officer as contemplated by law and that in the absence of such attestation their postal votes should not have been taken into account as done by the Returning Officer. Annexure K is a copy of complaint preferred by the Chief Election Agent of the petitioner on 13.5.2001 alleging that many of the postal ballots were found tampered with and that many of those ballot papers contained markings which appears to have been made by one and the same person.

6. Annexure L gives