- (1.) THIS is a petition under Article 226 of the Constitution by one Mahipat challenging the validity of a decision of Munsif Bhadra acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 setting aside his election to the office of Sarpanch.
(2.) SHAMLAL, Mahipat, Aduram and Chandanmal stood as candidates at an election for the office of Sarpanch of Ghewu Panchayat held on 5. 12. 60. Chandanmal withdrew his candidature. The election was contested by SHAMLAL, Mahipat and Aduram. Mahipat was declared duly elected as he polled the highest number of votes. The election was challenged by SHAMLAL and Rajaram inter alia on the ground that Mahipat secured the withdrawal of the candidature of Chandanmal by offering to get him elected to the Nyaya Panchayat. This allegation was found to have been true by the Tribunal which was of the opinion that the corrupt practice of bribery as defined in rule 77 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 was made out. Having heard the learned counsel for the parties I am unable to accept that an arrangement of this nature amounts to "bribery" which is defined as follows under rule 77 : - "bribery, that is to say, any gift, offeror promise by a candidate or by any other person of any gratification to any person whomsoever with the object, directly or indirectly, of inducing - (a) a person to stand or not to stand as, or to withdraw from being, a candidate or to retire from contest at an election; or (b) an elector to vote or refrain from voting at an election; or as a reward to - (i) a person for having so stood or not stood, or for having withdrawn his cadidature, or (ii) an elector for having voted or refrained from voting. Explanation - For the purposes of this clause the term "gratification" is not restricted to pecuniary gratification or gratification estimable in money, and it includes all forms of entertainment, and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of any election. " An essential ingredient of the corrupt practice of bribery according to the above definition is gift, offer, or promise of any gratification. The promise of a seat on the Nyaya Panchayat cannot be regarded either as a gift or offer or promise of any gratification as it was not within the power of Mahipat to get Chandanmal elected as a member of the Nyaya Panchayat. In this connection a reference may be made to the decision of a Division Bench of the Orissa High Court in Gokulananda Vs. Jogesh Chandra (l ). There an old member of the Congress who was not given a Congress ticket, stood as an independent candidate but later on withdrew his candidature in order to avoid a triangular fight and to uphold the prestige of the Congress, after getting a letter from the Congress candidate and some prominent Congressmen containing a request to him to withdraw and giving him an assurance that they will support him as a Congress candidate in the next elections and will appeal to the Congress authorities to select him for the same. It was held that the letter did not contain any offer or promise of gratification for withdrawal of candidature and the Congress candidate was not guilty of bribery. The promise of a seat in the next election is more a pious wish than a promise of a gratification. I accordingly allow the writ petition and set aside the decision of the Tribunal. In the circumstances of the case, I direct that parties shall bear their own costs of this writ petition. .;