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.
133 1 c of the companystitution challenging the companyrectness of that part of the judgment of the high companyrt pronumbernced on numberember 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.
191 1 a of the companystitution and accordingly declared the election of the respondent to the legislative assembly of the state of bombay from companystituency number 129 mazagaon void.
on april 10 1957 the appellant filed an election petition number 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 number under art.
for the election to the bombay legislative assembly from the electoral companystituency number 129 of mazagaon in greater bombay held on march 11 1957 there were originally four candidates for the unreserved seat.
that appeal number 737 of 1957 was heard by a division bench by the judgment and order pronumbernced on numberember 14 1957 the high companyrt while companyfirming 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.
this companyclusion of the tribunal was thus expressed besides as there was numberother candidate companytesting the said legislative assembly seat except the petitioner who polled 14885 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 companystituency in place of the respondent under section 101 of the representation of the people act 1951.
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.
this appeal has been filed on a certificate granted by the high companyrt of bombay on january 14 1958 under act.
191 of the companystitution of india eligible for election.
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 companyrupt 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.
the election tribunal was companystituted on june 28 1957.
the high companyrt however granted to the appellant on january 14 1958 a certificate under art.
the result of the election was declared on march 12 1957.
133 1 c of the companystitution that the case was a fit one for appeal to this companyrt.
as already stated the tribunal was of the opinion that the respondents 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 duly elected.
the respondent having received 22914 votes as against 14885 votes secured by the appellant the respondent was declared duly elected.
the tribunal further held that the appellant was duly elected to the state legislative assembly from the said companystituency.
the respondent has number filed an appeal against the judgment and order of the high companyrt in so far as it companyfirmed the order of the tribunal setting aside his 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 companystituency.
the only point for our determination is whether the election tribunal was in error in declaring the present appellant to have been duly elected.
being aggrieved by the order of the tribunal the respondent appealed to the high companyrt of bombay.
so the order for unseating the respondent has become final.
number has the respondent entered appearance to this appeal and it accordingly has been heard ex parte.
out of them two had withdrawn before the polling leaving the appellant and the respondent as the two companytesting candidates.
hence the present appeal.
the answer to this question depends upon a true companystruction of s. 101 of the representation of the people act 1951 hereinafter called the act which reads as follows section 101.
