Judgment

DAS GUPTA, J.: The appellant Brij Mohan Singh and the respondent Priya Brat Narain Sinha were among the candidates who contested the Aurangabad Constituency seat for the Bihar Legislative Assembly at the General Election held in 1962. The polling took place on February 21, 1962. The appellant received a majority of votes and was declared elected. The respondent Priya Brat Babu who was the sitting member was defeated on April 9, 1962, he filed a petition challenging the validity of the appellant s election: He prayed for a declaration that the election of the appellant Brij Mohan Singh be declared void and that he (Priya Brat Narain Sinha) be declared to have been duly elected to the Bihar Legislative Assembly from the Aurangabad Constituency. Among the grounds on which the appellant s election was challenged were these three :

(1) That the appellant was born on October 15, 1937 and was thus under 25 years of age on the date of filing the nomination papers and therefore disqualified under Art. 137 of the Constitution from being a member of the Bihar Legislative Assembly;

(2) That he held subsisting contracts under the Bihar Government in his individual and personal capacity and was thus disqualified under Section 7(d) of the Representation of People Act;

(3) That the appellant, and with his consent, his party men Rameshwar Prasad Singh and others (whose names are mentioned) were directly responsible for publication and distribution of copies of leaflets containing direct insinuations and aspersions against the respondent s personal character, these being false to the knowledge of the appellant.

2. The Election Tribunal held on a consideration of the oral and documentary evidence produced before it that none of these or the other grounds on which the validity of the election was challenged had been established. Accordingly, the Tribunal dismissed the petition.

3. On appeal, the High Court of Judicature at Patna set aside the judgment and order of the Election Tribunal and made an order setting aside the election of the appellant Brij Mohan Singh to the Bihar Legislative Assembly. The High Court however refused the respondent s prayer to be declared duly elected.

4. Against this order of the High Court the present appeal has been preferred on a certificate granted by the High Court under Art. 133(1)(b) of the Constitution.

5. The only grounds that appear to have been pressed before the High Court were the three which we have mentioned above. The High Court agreed with the Election Tribunal that the allegation that the appellant held a contract under the Government in his personal capacity had not been established. As regards the other two grounds the High Court disagreed with the Election Tribunal. The High Court held that the appellant was below the age of 25 years on the date of filing the nomination and was therefore not qualified to be a candidate for the Bihar Legislative Assembly. The High Court also held that the appellant had published a leaflet Ex.10 containing attacks upon the personal character of the respondent and was thus guilty of a corrupt practice within the meaning of S. 123(4) of the Representation of the People Act. As already stated, the High Court set aside the election of the appellant.

6. The findings of the High Court on the question of age and also on the question of publication of the document Ex. 10 have been challenged before us. It was also urged that in any case the pamphlet Ex. 10 did not amount to an attack on the personal character of the respondent.

7. Both the parties adduced oral and documentary evidence on the question of age. While the respondent (the petitioner in the Election Petition) tried to prove that the appellant Brij Mohan Singh was born on October 15, 1937 the appellant s attempt was to prove that he was born on October 15, 1935. The oral testimony on either side is equally useless and unreliable. The three persons who gave evidence on behalf of the respondent to show that Brij M