N. M. MIABHOY, N. K. VAKIL, J.

( 1 ) THIS appeal is filed under sec. 116a of the Representation of the People Act 1951 (Act 43 of 1951) (hereinafter referred to as the Act) by Lalsing Keshrising Rehvar whose election to a seat in the Gujarat Legislative Assembly has been declared under sec. 100 (1) (b) read with sec. 123 sub-sec. (2) and (3) to be void by Mr. A. A. Dave the sole member of an Election Tribunal appointed under sec. 86 of the Act by his order dated 29th December 1962 in an election petition filed by Vallabhdas Shankerlal Thekdi respondent No. 1 herein. Sabarkantha District has been allotted one Parliamentary seat. This district consists of a number of talukas. These talukas were allotted between them six seats in the Gujarat State Legislative Assembly. In the elections held in 1962 one Pashabhai Patel was one of the candidates for the Parliamentary seat. He was fighting the election on the ticket of the swatantra party. We are not directly concerned with the election to the Parliamentary seat. We are also not directly concerned with the elections to the assembly seats except a seat allotted to a constituency consisting of Malpur and Bayad talukas of Sabarkantha District. In the latter constituency there were three candidates at the above election. :- (1) Lalsing the appellant (2) Madhuben K. Shah respondent No. 2 and (3) Madhukarrao Fanse respondent No. 3. Lalsing was contesting the election on swatantra party ticket Madhuben on Congress party ticket and Madhukar on P. S. P. ticket. The polling for the parliamentary and the assembly seats in the above constituency was held on 21st February 1962 and the result of the assembly seat was announced on 26th February 1962. Lalsing was declared elected to the assembly seat. On 11th April 1962 Thekdi respondent No. 1 a voter in the constituency filed an election petition before the Election Commission challenging the election of Lalsing to the above seat. This petition was referred to the Tribunal consisting of the sole membership of Mr. A. A. Dave. The election of Lalsing was challenged by Thekdi on a number of grounds all of which do not now survive. Thekdi contended inter alia that corrupt practices described in sub-secs. (2) and (3) of sec. 123 were committed during the course of the aforesaid election and that therefore the election was liable to be declared void under sec. 100 subsec. (1) clause (b) of the Act and that the result of the election had been materially affected by reason of the above corrupt practices which were committed by Lalsing`s agents and therefore also the election was liable to be declared as void under sec. 100 (1) (d) (ii) of the Act. Broadly speaking there were two sets of corrupt practices which were set up by Thekdi. The first set arose out of the publication of a printed pamphlet Ex. 70 bearing the signature of one Goswami Dixitji Maharaj and a message of the same person published in the issue dated 19th February 1962 of a paper entitled Lok Sevak edited by witness Malvi a copy of which is at Ex. 72. The copies of these two documents were distributed amongst the voters of the Constituency on the 18th and 19th February 1962 Thekdi alleged that a passage in Ex. 70 and the message Ex. 72 amounted to undue influences and were direct interference with the free exercise of electoral rights and that in particular the impugned passage and message induced or attempted to induce electors to believe that they would become or would be rendered objects of divine displeasure or spiritual censure. He also alleged that the aforesaid two publications amounted to an appeal by Lalsing or his agents to vote for Lalsing and to refrain from voting for the other two candidates on the ground of religion and thus amounted to a corrupt practice under sec. 123 sub-sec. (3 ). According to Thekdi the aforesaid two documents were prepared printed published and distributed by agents of Lalsing with his consent and therefore directly fell within the purview of sec. 100 s

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