Jaswant Singh, J. - (1.) These appeals No. 41 and 42 of 1977 by special leave are directed against the common judgment and order dated December 16, 1975 made by the Commissioner, Pune Division Poona, in Election Petitions Nos. COP/81 (43) and COP/81 (42) presented under S. 144-T of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "the Act") read with R. 74 of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 setting aside the election of the appellants to the Board of Directors of the Shetkari Sahakari Sangh Ltd., Kolhapur (hereinafter referred to as "The Sangh") on the ground that they were guilty of corrupt practice as envisaged by S. 144-I (3) of the Act in that special buses were procured on payment from the Kolhapur Municipal Transport with the appellants" knowledge and consent and used for the whole day on November 20, 1973 i.e. the day of poll for the free transport of the voters from the Sangh"s Head Office in Bhawani Mandap to the polling station in Market Yard and back.
(2.) The facts and circumstances giving rise to these appeals which lie in a short compass are:The Sangh which is specified Co-operative Society as defined in S. 144-A read with S. 73-G of the Act and was registered in or about the year 1939 and as such is now deemed to be a registered society under the Act with the entire Kolhapur District as its area of operation has voting members of two types viz. (1) individual members and (2) Co-operative Societies. Being a Society belonging to one of the categories specified in S. 73-G of the Act, election of the members of its Board of Directors was held in the manner laid down in Chapter XI-A of the Act and the rules made thereunder in the second half of the year, 1973. In the said election two groups - one headed by Jagtap Guruji as representing the respondents 1 and 2 who were the petitioners in the aforesaid election petitions and the other headed by Baba Nesarikar, who was the Managing Director of the Sangh prior to the election entered the fray. In the said Election, all the three appellants in Appeal No. 41 and all the six appellants in the sister Appeal No. 42 were declared elected from the constituency of individual members numbering 25000 and the constituency of the Co-operative Societies affiliated to the Sangh numbering 650 respectively. Baba Nesarikar was himself returned unopposed from the combined constituency of individual members and Co-operative Societies. Thus the Nesarikar group captured all the seats contested by it. Aggrieved by the result of the election in so far as it related to the aforesaid two constituencies of individual members and the Co-operative Societies, respondents 1 and 2 filed two separate election petitions Nos. COP/81 (43) and COP/81 (42) under S. 144-T of the Act read with R. 74 of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 challenging the validity of the aforesaid elections to the Board of Directors of the Sangh. The said election petitions though challenged on a number of grounds were allowed by the Commissioner by his aforesaid judgment and order on the sole ground that the appellants were guilty of corrupt practice as envisaged by S. 144-1 (3) of the Act in that special vehicles were hired with the knowledge and consent of the appellants for the free conveyance of voters from Bhawani Mandap to the polling station and back and used as such on the day of the poll. Section 144-I (3) of the Act under which the election of the appellants has been declared void runs as follows:- "144-I ........................ (3) The hiring or procuring whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station: Provided that, the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any polling station shall not be deemed to be a corrupt practice under this clause: Provided further that, the use of any public transport vehicle or vessel or railway carriage by any elector at his own cost for the purpose of going to or coming from any polling station shall not be deemed to be a corrupt practice. Explanation:- In this clause and in the next succeeding clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise."
(3.) Appearing on behalf of the appellants, Mr. Tarkunde has vehemently urged that on the evidence on the record, it could not be justifiably held that the appellants committed the corrupt practice imputed to them; that the Commissioner, misdirected himself in setting aside the election of the appellants ignoring the basic principles that in the trial of an election petition, the burden lies heavily upon the person who challenges the result of the election to establish the commission by the returned candidate or his agent of acts which be regards as corrupt and the responsibility therefor of the successful candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability but by cogent and reliable evidence beyond any reasonable doubt.;