- (1.) This appeal has been filed, on a certificate granted by the High Court of Bombay on January 14, 1958, under Art. 133 (1)(c) of the Constitution, challenging the correctness of that part of the judgment of the High Court, pronounced on November 14, 1957, which set aside the order of the Election Tribunal declaring the appellant to have been duly elected a member of the Legislative Assembly of the State of Bombay.
(2.) For the election to the Bombay Legislative Assembly from the Electoral Constituency No. 129 of Mazagaon in Greater Bombay held on March 11, 1957, there was originally four candidates for the unreserved seat. Out of them two had withdrawn before the polling, leaving the appellant and the respondent as the two contesting candidates. The result of the election was declared on March 12, 1957. The respondent having received 22,914 votes as against 14,885 votes secured by the appellant, the respondent was declared duly elected. On April 10, 1957, the appellant filed an Election Petition (No. 190 of 1957) alleging that as the respondent was, at all material times, an Insurance Medical Practitioner, Bombay under the Employees' State Insurance Act, 1948, he was holding an office of profit under the Government of Bombay and as such was not, under Art. 191 of the Constitution of India, eligible for election. The appellant prayed for the setting aside of the election of the respondent, and also prayed that he, the appellant, be declared to have been duly elected to the Legislative Assembly from the said constituency. The Election Tribunal was constituted on June 28, 1957. The Tribunal by its order dated September 17, 1957, held that the respondent was holding an office of profit under the Government of Bombay and as such was disqualified under Art. 191(1)(a) of the Constitution and accordingly declared the election of the respondent to the Legislative Assembly of the State of Bombay from Constituency No. 129 Mazagaon void. The Tribunal further held that the appellant was duly elected to the State Legislative Assembly from the said Constituency. This conclusion of the Tribunal was thus expressed : "Besides, as there was no other candidate contesting the said legislative Assembly seat, except the Petitioner who polled 14,885 votes at the said election, he alone remains and he is thus entitled to be declared as duly elected for the said seat of the Assembly of the State of Bombay from the Constituency in place of the Respondent, under S. 101 of the Representation of the People Act, 1951." Being aggrieved by the order of theTtribunal, the respondent appealed to the High Court of Bombay. That appeal (No. 737 of 1957) was heard by a Division Bench and by the judgement and order pronounced on November 14, 1957, the High Court, while confirming the order of the Tribunal in so far as it set aside the election of the respondent, set aside the remaining part of the order of the Tribunal which declared the appellant to have been duly elected a member of the State Legislative Assembly. The High Court, however, granted to the appellant, on January 14, 1958, a certificate under Art. 133(1)(c) of the Constitution that the case was a fit one for appeal to this Court. Hence the present appeal. The respondent has not filed an appeal against the judgment and order of the High Court in so far as it confirmed the order of the Tribunal setting aside his election. So the order for unseating the respondent has become final. Nor has the respondent entered appearance to this appeal and it accordingly has been heard ex parte.
(3.) The only point for our determination is whether the Election Tribunal was in error in declaring the present appellant to have been duly elected. The answer to this question depends upon a true construction of S. 101 of the Representation of the People Act, 1951 (hereinafter called the Act), which reads as follows : "Section 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected : If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion - (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected." In this case the appellant in his Election Petition had, in addition to calling in question the election of the respondent, asked for a declaration that he himself had been duly elected. As already stated, the Tribunal was of the opinion, that the respondent's election having been set aside the appellant alone was left in the field and must be regarded as having received a majority of the valid votes and on that basis declared the appellant as duty elected. The High Court has taken a different view. The question is whether the High Court was right.;