JUDGMENT

J.M. PANCHAL, J. — This appeal, filed under Section 116A of the Representation of People Act, 1951 (‘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 people’s 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 Chairman’s 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 instalments. 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