Judgment

E.S. VENKATARAMIAH, J.

(1) THIS .appeal is filed under S. 116-A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) by the appellant against the judgment Sated 17/01/1986 of the High court of Allahabad in Election Petition No. 34 of 1985 dismissing the election petition.

(2) THE election to the Uttar Pradesh State Legislative Assembly from Constituency No. 41-Gunnaur, village Mirzapur, District Baduan took place in early March 1985. Sixteen candidates contested at the said election. Respondent 1-Smt. Pushpa Devi was declared elected having secured 23,006 votes. The next highest number of votes was secured by Shri Naurangi Singh. He secured 20,735 votes. The difference between the votes secured by respondent 1 and the votes secured by respondent 2 was in the order of 2271 votes. Respondent 8, who was working as a teacher in the Babu Ram Singh Intermediate College, Baburala, Baduan was also one of the candidates in the election. He secured 3606 votes, which were more than the difference between the votes secured by respondent 1 and by respondent 2. The appellant, who was an elector at the said election, filed the election petition, out of which this appeal arises, contending that respondent 8, who was working as a teacher in the Babu Ram Singh Intermediate College, Baburala, Baduan, was holding an office of profit under the State government and, therefore, the acceptance of his nomination by the Returning Officer was illegal. Since respondent 8 secured 3606 votes, which were higher than the difference between the votes secured by respondent 1 and the votes secured by respondent 2, the election of respondent 1 should be considered as having been materially affected by the wrongful acceptance of the nomination paper of respondent 8 and the. election of respondent 1 was liable to be set aside. The election petition was contested by respondent 1. It was pleaded by respondent 1 that the acceptance of the nomination paper of respondent 8 was not illegal since respondent 8 was not holding an office of profit under the State government and secondly even if the acceptance of the nomination paper of respondent 8 was illegal, the election could not be set aside since the result of the election was not materially affected thereby. The High court held that the acceptance of the nomination paper of respondent 8 was not illegal as respondent 8 was not holding an office of profit under the State government and it further held that even if the acceptance of the nomination paper of respondent 8 was illegal, the appellant had not established that the result of the election of respondent 1 had been materially affected on the facts and in the circumstances of the case. The High court accordingly dismissed the petition. Aggrieved by the judgment of the High court the appellant has filed this appeal.

(3) SINCE it is possible to dispose of this appeal on the second ground we do not propose to express any opinion in this case on the question whether respondent 8 was, in fact, holding an office of profit under the State government or not on the date on which the nomination paper was filed or on the date of the election. We leave the said question open.

(4) IN order to decide the second question it is necessary to set out the relevant part of S. 100 of the Act which reads thus :

100. Grounds for declaring election to be mid.-(1 Subject to the provisions of Ss. (2 if the High court is of opinion-

(C) that any nomination has been improperly rejected ; or

(D) that the result of the election, insofar as it concerns a returned candidate, has been materially affected-

(I) by the improper acceptance of any nomination, or....

(5) S. 100 of the Act makes a distinction between the effect of improper rejection of any nomination and the effect of the improper acceptance of any nomination on the election. If a nomination of any person at an election has been improperly rejected the