P. Bhavadasan, J.

1. Election to the 075 Angamaly Assembly constituency was held on 13.4.2011. The petitioner was a candidate sponsored by the UDF and the respondent was a candidate sponsored by the LDF. Counting took place on 13.5.2011. Respondent secured 61500 votes, whereas the petitioner could poll only 54330. Hence, the respondent, who obtained the largest number of votes, was declared duly elected.

2. In this petition, the petitioner challenges the election of the respondent mainly on three grounds. They are (i) the respondent was holding an office of profit under the State Government and therefore he was disqualified under Article 191 of the Constitution of India from contesting the election, (ii) there is gross violation of S.38 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') and the Conduct of Election Rules in preparing the list of candidates and (iii) in the election campaign the respondent used a poster showing him standing before the newly put up KSRTC bus stand at Angamaly and thereby took undue advantage of the same.

3.The allegations in brief are that at the time of filing of nomination the respondent was functioning as a Notary appointed by the State Government and therefore he held an office of profit. Even at the time when he filed the nomination, his name continued in the Register of Notaries maintained by the State. He is an advocate and was appointed as Notary by the orders of the State Government. He is to have an office of his own. He shall have and use a seal in the prescribed form and design. According to the petitioner, there can be no doubt that the respondent was holding an office of profit.

4.The second ground alleged is that there is violation of S.38 of the Act. That Section stipulates the manner in which the candidates are to be ranked in the ballot paper. Initially a list was published, which is produced as Annexure C. According to the petitioner, without any authority and without any reason thereafter the list was revised and Annexure D was published. The change of the list is unauthorised and constitutes violation of the provisions of the Act and the Rules providing a ground for setting aside the election.

5.The respondent has made use of a poster, wherein he is shown as standing before the KSRTC Bus stand at Angamaly which was put up recently. It is alleged that by doing so he has misused his office and made use of a public building for his campaign thereby violating the election code.

6. The grounds on which the election is assailed are under S. 100(1)(a) and 100(1)(d)(iv) of the Act. Accordingly, it is alleged that the election of the respondent is liable to be set aside. However, there is no prayer seeking a consequent declaration that the petitioner is duly elected.

7. The respondent filed preliminary objections and wanted to have the maintainability of the petition heard. In the objection so filed, it is contended that Notary is not an office of profit either under the Central Government or under the State Government and therefore does not fall within the prohibition envisaged under Article 191 of the Constitution of India. As regards the other two grounds, it is contended that even assuming them to be true, they do not provide grounds for setting aside the election and therefore, the petition has to fail. Regarding the latter two contentions, it is also pointed out that there is absolute want of pleadings or in other words, the material facts are not stated which constitute grounds for setting aside the election. It is pointed out that in order to attract S.100(1)(d)(iv), it will have to be specifically pleaded that by virtue of the violation of the provisions of the Act and the Rules, the election of the respondent has been materially affected. There is no such pleading and therefore, the petition has to fail at the threshold itself. It is also pointed out that there is no triable issue as could be gathered from the pleadings in the case.

8. Part