JUDGMENT
Sahai, J.
1. This appeal relates to election to the Bihar State Legislative Assembly from the Jehanabad double-member constituency. Fida Hussain, respondent No. 1 has been declared elected to the general seat, and Mahabir Chaudhari, respondent No. 2, has been declared elected to the seat reserved for scheduled castes. Karu Lall, petitioner No. 1, is an elector, and Shakti Kumar, petitioner No. 2, was one of the candidates for election. Mr. A. K. Saran, the only member of the Election Tribunal at Gaya, has, by his order dated the 15th January, 1958, dismissed the two petitioners’ election petition for declaring the election of the returned candidates to be void, and hence they have preferred this appeal.
2. Out of the sixteen candidates, nine sought election to the general seat and seven to the reserved, seat. I need not mention all their names but I give below the names of some of the candidates with the party to which they belonged, the seat for which they were candidate and the number of votes which they secured.
Name.
Party.
Seat.
Number of votes secured.
Fida Hussain (Respondent No. 1)
Congress
General
13,772
Ramanand Sharma
Janata
General
9,108
Sheobhajan Singh (sitting member)
Praja Socialist
General
7,371
Mahanand Singh
Independent
General
2,371
Ram Chandra Sharma
Independent
General
5,220
Mahabir Chaudhari (Respondent No. 2)
Congress
Reserved
11,559
Shakti Kumar (Petitioner No. 2)
Independent
Reserved
3,031
3. The petitioners’ case is that the nomination papers of Ramanand Sharma, Mahanand Singh and Fida Hussain were all improperly accepted because they were disqualified for one reason or another, and that the result of the election has been materially affected by such improper acceptance. It is also their case that the returned candidates have, by themselves pr through their agents, been guilty of corrupt practices Respondents Nos. 1 and 2 have, oil the other hand, denied these allegations.
4. The tribunal has held that Ramanand Sharma was disqualified under Section 7(d) of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act) from being elected as a member of the Bihar State Legislative Assembly because, at all material times, he was a partner in the contract for construction of the Ghosi National Extension Service Block buildings, which was an undertaking of the State Government. It has also held that Mahanand Singh was disqualified under the same provision for election to the Assembly because he had taken a contract under the Agriculture Department of the Government of Bihar, and the contract was subsisting at all material times. It has, however, held that the result of the election has not been materially affected owing to the acceptance of their improper nomination papers.
5. Admittedly, Fida Hussain, respondent No. 1, was one of a large number of persons who were appointed to be honorary Inspectors of minor irrigation works under the emergency irrigation drive of the Revenue Department of the Government of Bihar. Though he was not to get any salary or remuneration, he was entitled to draw travelling allowance admissible to Government servants of the second grade. The petitioners asserted that he held an office of profit within the meaning of Article 191 of the Constitution and was, therefore, disqualified. The Tribunal has held that Fida Hussain held an office; but it was not an office of profit. The Tribunal has also refused to accept any of the allegations of corrupt practice made by the petitioners.
6. Mr. K. P. Varma, appearing on behalf of the petitioners appellants, has not challenged the finding that Ramanand Sharma and Mohanand Singh were disqualified from being elected to the Assembly because those findings are in their favour. He has, however, challenged the finding that the result of the election has not been materially affected by reason of acceptance of their nomination papers. On the other hand, Mr. K. D. Chatterji who has appeared on behalf of the respondents, has submitted that he does not accept the findings relating to the disqualification of Ramanand and Mahanand, but it is unnecessary for him to invite this Court to consider and give its decision on those findings because the Tribunal’s finding that the result has not been materially affected is perfectly correct, and must stand. He has, therefore, argued on the assumption that the findings relating to disqualification of Ramanand and Mahanand are correct. The first point which I have to consider, therefore, is whether, on the assumption that Ramanand and Mahanand were disqualified from standing for election, the result of the election has been materially affected due to the acceptance of their nomination papers.
7. Mr. Varma has contended that the office which Fida Hussain held was an office of profit and Mr. Chatterji has controverted this argument. This is, therefore, the second question which has to be considered in this appeal.
8. Mr. Verma has pressed only two of the allegations relating to corrupt practice, and has abandoned the rest. The first such allegation is that Fida Hussain committed a corrupt practice as contemplated in Section 123(1) (b) (ii) of the Act by purchasing the ballot papers of several voters at Gobindpur booth on the 26th February, 1957, through his worker Rajdeo Singh of village Gazipur, and that he also purchased some ballot papers from Hazari Ram (P. W. 13) and others of village Banchhilli. The second allegation is that Fida Hussain and his workers carried a, number of voters to booth No. 16 at Jehanabad on rickshaws hired by Fida Hussain, and, therefore, committed a corrupt practice of the kind referred to in Section 123(5) of the Act. It is, therefore, necessary to consider whether these allegations of corrupt practice have been established.
9. I now take up the first point. I have al
ready given the number of votes secured by Fida
Hussain, Ramanand Sharma, Sheobhajan Singh and
Mahanand Singh. The petitioners’ case is that all
the votes secured by Ramanand and Mahanand
would have gone to Sheobhajan Singh, if they had
not been in the field. They have examined fourteen
witnesses in support of this allegation. They are
Triloki Sharma (P.W. 14), Narsingh Lal (P.W. 15),
Sarju Sharma (P.W. 16), Sheonandan Prasad (P.W.
17), Bhagwan Das (P.W. 25), Mahanand himself
(P.W. 26), Ganauri Singh (P.W. 31), Dwarika Prasad Singh (P.W. 35), Ramasis Singh (P. W. 37),
Chandradeo Sharma (P.W. 38), Dhanushdhari
Sharma (P. W. 43), Sheobhajan Singh (P. W. 47),
Gyandutt Sharma (P. W. 51) and Ramanand himself
(P.W. 54). All these witnesses are interested. Ra
manand, Sheobhajan and Mahanand are three of
the defeated candidates, and they must necessarily
be held to be interested in ousting the candidate,
Fida Hussain, returned to the general seat P. Ws,
14, 15, 16, 31, 35, 37, 38 and 43 are all workers,
voters or partners of Ramanand (P. W. 54). P. Ws.
17, 25 and 51 are, workers of Sheobhajan.
10. Another point which has to be noticed is that there is no allegation in the election petition that the votes secured by Ramanand and Mahanand would have gone to Sheobhajan, it they had not stood for election.
11. I may also mention that, as Ramanand Sharma was a Janata party candidate, a brother of Raja Kamakhya Narayan Singh, leader of the Janata Party, as well as one Shri Gopal Sharan Singh, commonly known as the Maharaja of Tekari, who was popular among the masses, canvassed for him. If he had not been chosen by the Janata, Party, somebody else would have stood on behalf of that party. It is, therefore, not possible to accept that all, or even a majority of, the votes polled, by Ramanand would have gone to Sheobhajan, if he had not been a candidate.
12. Jagdeo Singh (R. W. 9) Rajkishore Narayan Singh (R.W. 12) and Fida Hussain (R.W. 20) have stated that, if Ramanand had not been a candidate, the votes would have been distributed between Fida Hussain and Ram Chandra Sharma Having gone through the evidence of all the witnesses for the petitioners and the respondents on this point, I do not see any good reason to differ from the Tribunal, and I hold that the witnesses, for the petitioners have given unreliable evidence.
13. I may now refer to a decision of the Supreme Court in Vashist Narain Sharma v. Dev , Chandra, AIR 1954 SC 513 Ghulam Hasan, J., who has delivered the judgment of the Court, has observed:
”But we are not prepared to hold that the mere, Fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.”
Again, he has stated :
“While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of that duty imposed upon him by Section 100(1) (c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result, would be that the Tribunal would not interfere in his favour and would allow the election to stand.”
His Lordship has further said:
“It is impossible to accept the ‘ipse dixit’ of witnesses coming from one side or the other to, say that all or some of the votes would have gona to one or the other on some supposed or imaginary ground.”
14. In view of the observations which I have quoted, there can be no doubt that the onus upon the petitioners was to prove affirmatively that the result of the election was materially affected The Ipse dixit of the witnesses examined on their behalf could not be accepted, and, in any case, I have already shown that they are unreliable. Various factors influence voters in casting their votes.
Some may, go by caste of the candidate, others by
the party to which lie belongs, and still other’s by
his personal calibre. It is, therefore, impossible to
speculate how many of the votes polled by Ramanand and Mahanand would have gone to Fida
Hussain, how many to Sheobhajan and how many
to other candidates. In these circumstances, there
is no escape from the conclusion reached by the
Tribunal that the petitioners have failed to prove
that the result of the election has been materially
affected due to the acceptance of the nomination
papers of Ramanand and Mahanand. I hold accord
ingly.
15. The next question is whether Fida Hussain himself was disqualified. Article 191 of the Constitution provides for a person being disqualified for election to the Legislative Assembly or Council of a State if he holds an office of profit under the Government of India or the Government of any State. It appears from a letter (exhibit 19) issued by the Revenue Department of the Government of Bihar on the 4th March, 1953; that a number of persons, including Fida Hussain, were appointed as honorary Inspectors of minor irrigation works. As I have said no salary or remuneration was to be paid to these Inspectors; but they were given the power to draw travelling allowance admissible to Government servants of the second grade.
Exhibit E is an intimation from the District Magistrate to Fida Hussain of his appointment as Inspector. Entries in the Travelling Allowance Bill Register (exhibits 20 series) show that Fida Hussain drew travelling allowance on various dates during 1955 and 1956 and also on the 8th February 1957, In view of the fact that, under the instructions contained in exhibit 19, the Inspectors had the duty to make local inspection of completed minor irrigation projects in accordance with instructions issued by Government, there can be no doubt that, as Inspector, Fida Hussain held an office. The question which requires more serious consideration, however, is whether the office was one of profit.
It could only be an office of profit if he was to get some return or consideration for the work done by him. Travelling allowance or haltage is given to Government servants not as a source of profit but for the purpose of making good to them their out of pocket expenses while doing work connected with their office. Had it been intended that the travelling allowance drawn by the Inspector should enable them to make any profit, the question as to whether the profit was big or small could not arise. It is manifest that the Government had no such intention in providing that they were entitled to draw allowance on the low scale admissible to second class officers.
16. In the matter of Vindhya Pradesh Legislative Assembly Members, 4 ELR 422, the President referred to the Election Commission, the question as to whether members of the Vindhya Pradesh Legislative Assembly had become disqualified to be members by being appointed members of District Advisory Councils of their own districts. The Chief Election Commissioner held:
“Reimbursement of mere out-of pocket expenses should not be treated as ‘profit’ ….where a member of a council, committee, or board is merely entitled to a bona fide travelling allowance.
or daily allowance which purports to cover and
presumably covers his actual out-of-pocket expenses, the Commission is not prepared to hold that
there has been any ‘profit'”.
A similar question arose later before the Supreme
Court in Ravanna Subanna v. G. S. Kaggerappa
AIR 1954 SC 653. That case related to election
to the Town Municipal Councillorship of Gubbi;
town in the State of Mysore; but the words “office
of profit” had to be interpreted. The successful
candidate in that case was, at the time of acceptance of his nomination paper, the Chairman of Gubbi Taluk Development Committee, and,
in that capacity, he was entitled to draw a fee
of Rs. 6/- per sitting of the Committee. It was
argued that he was disqualified because he held
an office of profit. The Taluk Development committee was constituted as a part of the scheme of reorganisation of rural development, and it,
consisted of ten members with a non-official Chairman. Referring to “officey of profit”, their Lord-
ships observed:
‘The plain meaning of the expression seems
to be that an office must be held under Government to which any pay, salary, emoluments or
allowance is attached. The word ‘profit connotes
the idea of pecuniary gain. If there is really a
gain, its quantum or amount would not be ma
terial; but the amount of money receivable by a
person in connection with, the office he holds
may be material in deciding whether the office
really carried any profit.”
Applying this principle, their Lordships proceeded
to hold:–
“From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 9 which the non-official Chairman is entitled to draw for each sitting of the committee, he attends, is not meant to be a payment by way of remuneration or profit, but it is given to him as a consolidated fee for the out of pocket expenses which he has to incur for attending the meeting of the committee. We do not think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by non-officials, that the office of the Chairman or of the members should carry any profit or remuneration.”
17. In my judgment, respondent Fida Hussain has also not incurred any disqualification because the travelling allowance admissible to him was merely for the purpose of reimbursing his out of pocket expenses and not for the purpose of enabling him to make any profit as remuneration for the work to be done by him. I therefore, agree with the finding of the Tribunal on this point.
18. I have how to consider whether Fida. Hussain is guilty of a corrupt practice by purchasing ballot papers as alleged. The petitioners’ allegation in paragraph 20 of the election petition is that the returned candidates purchased several ballot papers with the help of their worker Shri Rajdeo Singh of village Gazipur under Ghosi Police station at Govindpur booth as well as Golakpur booth on the 26th February, 1957. The respondents denied these allegations as being unfounded and imaginary, and stated that no ballot papers, were, purchased with the help of “the alleged workers”. It appears that an argument was advanced before the Tribunal that there was no specific denial by the respondents of the fact that Rajdeo Singh of Gazipur wag their worker; but the Tribunal took the view that the denial was sufficiently comprehensive to include denial of the allegation that Rajdeo was their worker. That argument has not been pressed before us.
19-20. “(His Lordship considered the evidence).
21. For the reasons which I have given above I hold that the petitioners have failed to prove that Fida Hussain was guilty of a corrupt practice by purchasing a ballot paper. No evidence to the effect that Mahabir Chaudhari respondent No. 2 purchased any ballot paper has been brought to our notice,
22. The last question for consideration is whether respondent No. 1 has been guilty of a corrupt practice by hiring rickshaw to carry voters. (His Lordship after considering the evidence held that the allegation was not proved).
23. After a consideration of all the facts and circumstances and the evidence on record, I hold that the petitioners have failed to substantiate their allegation relating to the commission of corrupt practices by Fida Hussain.
24. No other point has been raised. It is manifest from what I have said above that there is no merit in this appeal, and it is, therefore, dismissed with costs: hearing fee Rs. 250/-.
Untwalia, J.
25.I agree.