Judgment

RAGHUBAR DAYAL, J. : Badri Narain Singh, the appellant, and four other persons including Kam Deo Prasad, respondents, were candidates to the Bihar Legislative Assembly during the last general election held in 1957. Two of those candidates withdrew before the relevant date. The appellant secured the largest number of votes and was declared elected on March 14, 1957. Respondent No. 2 secured larger number of votes than Kam Deo Prasad, respondent No. 1, who filed an election petition under Ss. 80 and 81 of the Representation of the People Act, 1951 (Act XLIII of 1951), challenging the election of the appellant on the ground that the nomination of the appellant and respondent No. 2, who, as Ghatwals, held an office of profit, was against the provisions of S. 7 of the Act and that the appellant had also committed corrupt practices. Kam Deo Prasad, by his election petition, not only prayed for the declaration that the election of the appellant was void, but also for the declaration that he himself was duly elected. The appellant denied the allegations against him. The Election Tribunal held that Badri Narain Singh, the appellant, was guilty of corrupt practices and that a Chatwal was not a holder of an office of profit under the State of Bihar. It therefore set aside the election of the appellant, but did not grant the declaration that Kam Deo Prasad was a duly elected candidate.

2. The appellant filed Election Appeal No. 7 of 1958 in the High Court of Judicature at Patna, against the order of the Election Tribunal setting aside his election, and prayed that the order of the Election Tribunal be set aside and that it be held that he had been duly elected. Kam Deo Prasad also filed Election Appeal No. 8 against the order of tile Election Tribunal not declaring him to be the duly elected candidate an prayed for a declaration that he had been duly elected. The grounds of appeal, questioned the correctness of the finding of the Election Tribunal that Badri Narain Singh and respondent No. 2, as Ghatwals, were not the holders of offices of profit and that Kam Deo Prasad could not be declared duly elected.

3. Both these appeals were disposed of by the High Court by one judgment. It did not accept, the finding of the Election Tribunal that Badri Narain Singh had committed any corrupt practice and accepted the contention for respondent No. 1 that Badri Narain Singh and respondent No. 2 held offices of profit under the Bihar Government as they were Ghatwals. It was in this view of the matter that it confirmed the order of the Election Tribunal setting aside the election of the appellant and, allowing the appeal of respondent No. 1, declared him duly elected.

4. The concluding portion of the judgment of the High Court may be usefully quoted here :

"To conclude, the election of the returned candidate is not valid, and the order of the Tribunal is, therefore, right, though on different grounds. Further, there was only one seat, and three persons contested it, namely, the petitioner and the two respondents. The two respondents were disqualified for being chosen as, and for being, mem-bers of Legislative Assembly or Legislative Council of the State, and, therefore, their nomination papers were not validly accepted. If their nomination papers are rejected, and it cannot but be rejected, the only person left in the field was the petitioner Kamdeo Prasad Singh, and, therefore, he must be declared to be duly elected.

In the result. Election Appeal No. 7 of 1958 is dismissed, and Election Appeal No. 8 of 1958 is allowed, and Kamdeo Prasad Singh is declared to be duly, elected to Bihar Legislative Assembly from the Sarnath State Assembly Constituency in the district of Santal Parganas",

5. As a result of this order, separate decrees ,were prepared in the two appeals. Decree in Election Appeal No. 7 said, It is ordered and decreed that this appeal be and the same is hereby dismissed. The decree in Appeal No. 8 said, It is ordered and decree that thi