Judgment

SHAH, J.-At the last general elections held on February 20, 1967, the appellant and ten others contested for a seat in the Madhya Pradesh Legislative Assembly from the Lahar Constituency No. 13. The first respondent secured 8, 904 votes ; the appellant secured 6,109 votes, and respondent No. 2 Heeralal Bahadur secured 4, 227 votes. (No argument was advanced before us which necessitate reference to the votes secured by the other candidates). Respondent No. 1, Sarjoo Prasad Tiwari who secured the highest number of votes was declared elected. The appellant Kamta Prasad Upadhyaya who secured the next largest number of votes, applied to the High Court of Madhya Pradesh under the Representation of the People Act 43 of 1951, for setting aside the election of respondant No. 1 on diverse grounds. It is necessary to refer to only one ground on which the appeal is argued before us.

2. Respondent No. 2, Heeralal Bahadur was, it was the case of the appellant, disqualified to stand as a candidate for election under Article 19 (1) (a) of the Constitution in that he held an office of profit under the Government of Madhya Pradesh other than an office described by the Legislature of the State by law as not disqualifying its holder, and since his nomination was erroneously accepted by the Returning Officer, the election of the returned candidate was liable to be set aside. Five issues were raised in respect of this contention. They were-

"2(a) Whether respondent No. 2 was in the service of the Government as a teacher in Primary School at Magroda, District Guna either on the date of the filing of the nomination papers or on the date of the scrutiny as alleged by the petitioner ?

(b) Whether respondent No. 2 already submitted his resignation from Government service and was accepted on 7-1-1967 as alleged by respondent No. 1?

(c) Whether respondent No. 2 held an office of profit under the Government of Madhya Pradesh and, therefore, was not qualified to contest the election to fill seat in question ?

(d) Whether there has been improper acceptance of nomination paper of respondent No. 1 on this account, as alleged?

(e) Whether the result of the election in so far as it concerns the returned candidate respondent No. 1 has been materially affected by such improper acceptance as alleged by the petitioner?"

The High Court on a consideration of the evidence bearing on the issues recorded answers in the affirmative on Issues No. 2(a), (c) and (d), and on issue No. 2(b) the High Court recorded an answer "Accepted on April 1, 1967". The High Court recorded on Issue No. 2(e) the answer "Not proved", and rejected the petition filed by the appellant.

3. Counsel for the appellant contends that after deciding Issue Nos. 2(a), (b), (c) and (d) in favour of the appellant ; the High Court erred in deciding Issue No. 2(e) against the appellant. The first respondent polled 2, 795 votes more than the appellant. Respondent No. 2 Heeralal Bahadur had polled 4, 227 votes and since Heeralal Bahadur was disqualified from standing as a candidate those votes were "thrown away". Counsel for the appellant contends that if the Returning Officer had rejected the nomination of Heeralal Bahadur, a large majority of the voters who voted for Heeralal Bahadur would have voted for the appellant. Counsel says that there were 6,000 votes belonging to the Kachhi community in the constituency and the sympathy of the Kachhi community had always voted for the candidate sponsored by the political party which had supported his candidature, but since the members of the community of Kachhi had resolved to vote solidly in favour of Heeralal Bahadur respondent No. 2 who was a Kachhi, they did not vote for him. Counsel submits that if, Heeralal Bahadur s nomination had not been accepted those votes would have gone to the appellant, and in that event the total votes polled by the appellant would have exceeded the votes polled by Respondent No. 1. Counsel contends that by reason of the improper acce