Judgment

GHULAM HASAN, J. : This appeal preferred under Article 136 of the Constitution against the order dated; May 4, 1951, of the Election Tribunal, Allahabad, setting aside the election of Sri Vashist Narain Sharma, to the U. P. Legislative Assembly raises two questions for consideration. The first question is whether the nomination of one of the rival candidates, Dudh Nath was improperly accepted by the Returning Officer and the second, whether the result of the election was thereby materially affected.

2. Eight candidates filed nominations to the U. P. State Legislative Assembly from Ghazipur (South East) Constituency No. 345, three withdrew their candidature and the contest was confined to the remaining five. The votes secured by these candidates were as follows :

1. Vashist Narain Sharma .. 12868

2. Vireshwar Nath Rai .. 10996

3. Mahadeo .. 3950

4. Dudhnath .. 1983

5. Gulab Chand .. 1768

They were arrayed in the election petition as respondents 1 to 5 respectively. The first respondent having secured the highest number of votes was declared duly elected. Three electors filed a petition under Section 81 of the Representation of the People Act (Act 43 of 1951) praying that the section of the returned candidate be declared void and that respondent 2 be declared to have been duly elected; in the alternative, that the election be declared wholly void. The election was sought to be set aside on the grounds, inter alia , that the nomination of respondent 4 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected.

The Tribunal found that respondent 4, whose name was entered on the electoral roll of Gahmar Constituency Ghazipur (South East) personated (meaning passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Officer had improperly accepted his nomination, and that the result of the election was thereby materially affected. Allegations of major and minor corrupt practices and non-compliance with certain statutory rules were made but the Tribunal found in favour of the returned candidate on those points.

3. Dudh Nath respondent 4 is Rajput by caste. His permanent or ancestral home is Gahmar but since 1943 he had been employed as a teacher in the Hindu Higher Secondary School at Zamania --- a town 10 or 12 miles away --- and he had been actually residing at village Baruin which is quite close to Zamania. The person for whom Dudh Nath personated is Dudh Nath Kahar whose permanent house is at Jamunan, but his father lives at Baruin. Dudh Nath Kahar used to visit Baruin off and on put he was employed at Calcutta. The nomination paper filed by Dudh Nath gave his parentage and age which more properly applied to Dudh Nath Kahar.

He gave his father s name as Shiv Deni alias Ram Krit. Ram Krit is the name of Dudh Nath Kahar s father. The electoral roll (Exhibit K) of Gahmar gives Dudh Nath s father s name as Shio Deni with no alias and his age as 39, while the electoral roll of Pargana Zamania Mouza Beruin (Exhibit C) gives Dudh Nath s father s name as Ramkrit and his age as 31. In the electoral roll of Jamuan Dudh Nath s age is entered as 34 but in the supplementary list it is mentioned as 30.

When the nomination paper was filed on November 24, 1951, at 2-20 P. M. it was challenged by Vireshwar Nath Rai on the ground that Dudh Nath s father s name was Shivadeni and not Ramkrit but no proof was given in support of the objection and it was overruled on November 27. This order was passed at 1 P. M. One of the candidates, who later withdrew, filed an application at 3-25 P. M. before the Returning Officer offering to substantiate the objection which the objector had not pressed. This application was rejected on the ground that the nomination had already been declared as valid.

In point of fact no evidence was adduced. This acceptance of the nomination on the part of the Returning Officer is challenged as being improper under Section 36 (6) of th