G BASU Vs. SANKARI PROSAD GHOSAL

JUDGEMENT

(1.) THIS is an election appeal under sec. 116a of the Representation of the People Act, 1951 (Act 43 of 1951 ). It seeks reversal of the order of the Election tribunal below, setting aside the appellant's election to the House of the People from Constituency no. 34 (Burdwan Parliamentary Constituency), a single member constituency for the lower House of Parliament. The election was held in February 1982, the dates of polling being the 19th, 20th and 22nd of that month. There were two candidates including the appellant. The appellant was declared elected on march 1, 1962, he having secured 1,55,485 votes as against his rival Subiman Ghosh, respondent No. 3 herein, who obtained 1,23,015 votes. The election was challenged and the instant proceeding was started on April 10, 1962, upon an application, filed by two voters of the above Constituency, who are now the first two respondents before us. The rival candidate Subiman Ghosh is the remaining respondent No. 3 in this appeal.

(2.) THE challenge to the appellant's election was founded, broadly, on two grounds, namely, (i) that he was, at the relevant date, the holder of office of profit under the Government, both central and State, which disqualified him from standing in the election in question under Art. 102 (1) (a) of the constitution and (ii) that he (the appellant)was guilty of corrupt practices, which vitiated his election and made it liable to be set aside. The relevant and necessary details under the first head will be presently stated in brief. Of the second ground, further details are unnecessary, as this ground was not pressed before the lower Tribunal and, apparently, abandoned, the applicants (respondents Nos. 1 and 2)choosing to rest their case solely on the first ground aforementioned and confining their challenge to the appellant's election to and within the limits of Art. 102 (1) (a) of the Constitution.

(3.) THE appellant entered contest and, while admitting the broad basic details or allegations of fact, as given in the first two respondents application, controverted their allegation that he was the holder of any office of profit under the Government, either State or Central, so as to be unfit for standing in the election under Art. 102 (1) (a) of the constitution. The contest, so raised, was thus, primarily, one on a point of law, though, as we shall notice hereinafter, it involved also a small question of fact, necessary for a comprehensive treatment of the said point of law.