The court held that a mere passive receipt of assistance without the consent or will of the candidate concerned cannot be said to fall under Section 123(7) of the Representation of the People Act, 1951.

( 1 ) THIS is an appeal under Section 116-A of the Representation of the People Act of 1951 (hereinafter called the Act) against the judgment of an Election Tribunal dismissing the election petition filed by the appellant.

( 2 ) THE appellant Sri Moti Lal is an elector in the double member of U. P. Legislative Assembly constituency No. 179 known ay Meja Constituency, in the district of Allahabad. One seat in the constituency was reserved for a member of the scheduled caste and the other seat was a general one. The respondent No. 1 Sri Mangla Prasad was a candidate for the general seat and was set up by the Congress party and respondent No. 3 Sri Salig Bam Jaiswal was also a candidate for the seat and was set up by the Praja Socialist party. The two Scheduled caste candidates were respondent No. 2 Sri Jokhai Ram on behalf of the congress party, and respondent No. 4 Sri Bansrup on behalf of the Praja Socialist Party. The poll was held on the 25th February, 1957, but it subsequently transpired that at the polling centre babhni-Hather ballot papers had been wrongly issued. The Returning Officer brought this fact to the notice of the Election Commission, and the Election Commission ordered a repoll in babhni-Hather. Counting of votes for all the centres, excepting Babhni-Hather, took place on the 1st and 2nd march 1957 in the presence of all the candidates and their counting agents, and it was known to these persons that both the Congress candidates had secured more votes than the candidates set up by the Praja Socialist Party. The repoll at Babhni-Hather took place on the 7th March, 1957. Counting of votes for this centre was held on the 8th March, 1957. Sri Mangla Prasad, respondent No. 1, secured 41653 total votes and Jokhai Ram 45846 votes. The two candidates set up by the Praja Socialist Party, namely, Sri Salig Ram Jaiswal and Sri bansrup received 36590 and 40053 votes respectively. The respondents Nos. 1 and 2 were accordingly declared to have been elected to the U. P. Legislative Assembly from this constituency.

( 3 ) THE appellant, as an elector, preferred an election petition and sent it to the Election commission within time allowed by law. The Election Commission appointed Sri P. K. Kaul, a retired Judge of this Court, as the Election Tribunal and referred the election petition for trial to sri P. K. Kaul. The main prayers contained in the election petition are that the election of the respondents Nos. 1 and 2 be declared to be void and that it further be declared that the respondent No. 4 Sri Bansrup is the duly elected member of the U. P. Legislative Assembly from this constituency. Numerous grounds for setting aside the election were mentioned in the election petition and they were all denied by the respondents Nos. 1 and 2, who alone contested the election petition. The pleadings gave rise to as many as 21 issues. Many of these issues were overlapping and the Election Tribunal has considered such issues together. It has decided all the issues against the appellant.

( 4 ) AT the hearing before us the learned counsel for the appellant urged four points. They are as follows :-1. The first point urged by him is that the respondent No. 1 has been proved to be guilty of the corrupt practice mentioned in Sub-section (7) of Section 123 of the Act, inasmuch as he obtained or procured assistance for the furtherance of the prospects of his election, from Sri Behari Lal, sub-Inspector of Police, Sri Sukhdeo Ram Yadava, Consolidator employed in the department of consolidation of Holdings, and Sri Rashid Ahmad, a lekhpal.

2. The second point urged by him is that the counting of votes obtained by the candidates at polling stations other than Babhni-Hather, before the repoll at Babhni-Hather had taken place, was a breach of the provisions of the Representation of the People Act, according to which the counting of votes should have been done only after polling had taken place at all the polling stations in the c