Sarjoo Prasad, J.:— These two applications in revision are directed against an order dated the 8th August 1949, of Mr. P.K Nag, as an Additional Election Commissioner of Muzaffarpur.

The order in question arises out of an election petition presented by three unsuccessful candidates against three returned candidates, namely the applicant in Civil Revision no. 679 of 1949. Jamuna Prasad Tripathi. Ramdhaxi Prasad (since dead), and Jagat Prasad Singh, the respondent opposite party in Civil Revision no. 773 of 1949, in connection with the last District Board election held in May and June, 1947 in respect of police-station Muzaffarpur-Kamfaul-Kanti constituency. The respondent Ramdhari Prasad, having died subsequent to the presentation of the election, petition, a fresh bye-election was held in respect of the vacancy so caused and his name was expunged from the election petition. The election petition, therefore, is now concerned only with the election of the returned candidates Jamuna Prasad Tripathi and Jagat Prasad Singh, the surviving respondents named in that petition.

The election petition raised various grounds of objection to the return of the candidates concerned. It would be unnecessary to refer to all the other grounds except those on which the election petition succeeded before the Election Commissioner.

The first objection against the respondent Jamuna Prasad Tripathi who is the petitioner in Civil Revision no. 679 of 1949 was that the respondent was a member of a joint family which used to be contractors under the District Board during election, and, as such, the said respondent Jamuna Prasad Tripathi was not eligible for election to the District Board. Jamuna Prasad Tripathi contested on the ground, firstly, that he was separate from the other members of his family, namely his father and brothers, and, secondly, that in any case the members of his family were not contractors under the District Board, and, consequently no objection could be raised as to his eligibility to the election as a member of the said Board. The Election Commissioner after a consideration of the evidence came to a definite finding that the respondent Jamuna Prasad. Tripathi was a member of the joint family consisting of himself, his father and his brothers, and that his plea of separation was false. He also found that there was evidence to show that leases had been obtained of the District Board road-side lands by the father and the brothers of the respondent, and although these leases expired, the lessees thereunder had been holding over, and the District Board had not taken possession of the lands in question after dispossessing the said lessees. He accordingly held that “contractual relationship existed between the father and brothers of respondent no. 1 and the District Board at the time when the nomination paper was filed by the respondent no. 1” and respondent no. 1 being a member of the joint family with his father and brothers, he was directly interested in such contracts, and, as such, he was not eligible for election under rule 3(b) of the District Board Electoral Rules, 1937.

The learned Counsel appearing for the applicant before us contends that this finding of the Election Commissioner that the father of the respondent or his brothers were lessees in respect of the road-side lands belonging to the District Board did not in any manner bring him within the mischief of the said rule. In order to appreciate the point, it would be useful to quote the rule in question. It provides:

“No person shall be eligible for election if he is in the employment or pay of the district board or of any local board or union committee or union board subordinate to that district board or who has directly or indirectly any share or interest in any contract with or under the district or local board or union committee or union board”.

The relevant provision with which we are concerned in this case is whether the respondent had

“directly or indirectly any share or interest in any contract with or under the district board”

Mr. Lalnarain Sinha appearing for the respondent-petitioner before this Court urges that the word “contract” used in the rule cannot refer to leases which are really transfers of property. He says that the Election Commissioner found that it could not be proved by the petitioners who filed the election petition that any member of the family of respondent no. 1 was a contractor in the District Board so far as constructions of roads, etc., were concerned, and that the meaning of the word “contract” given in the rule must be confined to such class of contracts relating to construction of roads, etc. referred to above. It is true the Election Commissioner has held that the petitioners in the election petition were unable to prove such contracts, but it appears to, me that the view taken by the Election Commissioner as to the interpretation of the rule is on the whole correct. The language of the rule is sufficiently wide to cover a case of contractual relationship arising out of leases as well, or for the matter of that out of any other kind of contract. The comprehensive intention of the rule seems to be particularly emphasised by the expression:

“No person shall be eligible for election if he has directly or indirectly any share or interest in any contract”.

After all, transfer of property also is in the nature of a contract between the parties, and there seems to be no justification for holding that the application of the rule should be restricted by the narrow interpretation which is sought to be put upon it by the learned Counsel appearing for the applicant.

Even assuming that the interpretation of the rule given by the Election Commissioner was erroneous, it could be only an error of law not affecting his jurisdiction to decide the matter.

Of course, it is now well settled that it is open to this Court to interfere in revision with the order of an Election Commissioner appointed under the District Board Rules. I may refer in this connection to a Full Bench decision of this Court, in Musammat Dirji v. Srimati Goalin. In that case a question arose whether a Commissioner appointed under the Workmen's Compensation Act of 1923 was a Court, and whether his order could be revised under section 115, of the Code of Civil Procedure. It was held that the Commissioner under the Act is constituted an independent tribunal, and his function is to judge and decide and not merely to enquire and advise, and in judging and deciding the matters before him, he has to proceed judicially and not arbitrarily, and that he satisfied all the main tests which one has to apply for determining whether the tribunal is a Court or not. That being so, it was held that any final order passed by him was open to revision by this Court under section 115 of the Code of Civil Procedure. The question, however, relating to an Election Commissioner directly arose for consideration in another subsequent case reported in Abdul Razak v. Kuldip Narain*. In this case there was a difference of opinion between Meredith, J. as he then was, and Chatterji, J. and the case was then referred for decision to another learned Judge, Manohar Lall, J. It appears that all the learned Judges who dealt with the case at different stages were unanimously of the view that the Election Commissioner referred to in the Bihar District Board Electoral Rules, 1937, is a Court and a Court subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure. That being so, there can be no question that it was open to us to revise this order of the Election Commissioner if there were any scope for interference under section 115 of the Code. It, is contended by Mr. Lalnarain Sinha, the learned Government Pleader, that this error of law resulting in an erroneous construction of rule 3 of the District Board Electoral Rules affected the jurisdiction of the Election Commissioner. In my opinion, this is, as I have said, not a tenable contention. It was open to the Election Commissioner to construe the rule in question and it was a matter entirely within his jurisdiction to decide about it. Therefore, even if he had decided the matter wrongly, it could not be said that he had no jurisdiction to decide it in that manner. I have already pointed out that as at present advised I see no reason to differ from him in the view which he has taken as to the construction of rule 3 and I hold that his decision is correct and is not open to interference.

The next ground of attack in the election petition was that there were various irregularities committed by the officer in charge of the election and it also enumerated various corrupt practices resorted to by the returned candidates in securing their election. In dealing with these objections in issue no. 4 the learned Commissioner has sought to classify them under two groups.

Within the first group he deals with the irregularities committed by the officers in charge of the election which were alleged to have materially affected the result of the election. He examined the evidence regarding the allegations made in respect of such irregularities, and he came to the conclusion that there were some irregularities due to carelessness and lack of discretion on the part of the officers in charge of the election; but such irregularities or carelessness did not affect the result of the election as contemplated in rule 69 of the Bihar District Board Electoral Rules, 1937, and the election, therefore, could not be held to be invalid on any of the grounds mentioned in group one aforesaid.

In the second group he deals with corrupt practices resorted to by the returned candidates and their agents which could come under Part I of the Schedule to the Bihar District Board Election Petitions Rules, 1939. This appears to be the most serious part of the objection taken against the election of the candidates returned. In that group the main grounds of attack, inter alia, were that (1) a large number of women were hired to personate the absentee women voters and to vote for the latter in favour of the respondents, and (2) a number of persons were engaged by the respondents to personate as absentee voters and dead voters and to vote for such persons in favour of the respondents. These were serious charges constituting corrupt practices, on the part of the returned candidates or their agents.

The learned. Government Pleader appearing for the respondent, Jamuna Prasad Tripathi, contended that the election petition did not set forth full particulars of the corrupt practices alleged, by the petitioners in their election petition as against each, of the respondents or their agents. I have examined the election petition, and I find on the whole that they do contain the particulars required. But even if there was any vagueness in those particulars, it was open to the respondents to ask for further particulars, if any. It does not appear that they took any serious objection on that ground and there has been obviously no prejudice to the applicant. I therefore see no force in this contention advanced on his behalf in this Court.

The Election Commissioner after examining very carefully the evidence adduced, in proof of the alleged corrupt practices came to the conclusion that several hired women other than the real voters had been allowed to vote for the actual voters in favour of the Congress candidates meaning the two respondents in the election petition. He also found that there was definite proof that several votes cast in the name of dead persons were cast in favour of the respondent, Jamuna, Prasad Tripathi, and only two in favour of the other respondent, Jagat Prasad Singh. In course of his discussion of the evidence on the point he observed that the packages containing the votes polled in two of the booths could not be traced, and there was no guarantee that the corrupt practices, referred to above, were the only corrupt practices committed in the interest of the candidates returned. In summing up his findings under issue no. 4 the Election Commissioner found these facts against both the returned candidates. He, therefore, held that these corrupt practices committed in the interest of the returned candidates came within rule 16(1)(b) of the District Board Election Petitions Rules, 1939, and accordingly the election of the returned candidates had to be declared void. He also found that the corrupt practices in question were not of a trivial nature and could not be brushed aside.

In regard to the respondent-applicant, Jainana Prasad Tripathi, he held that he was personally responsible for the corrupt practices in question which were to his knowledge and at his connivance; but, in so far as Jagat Prasad Singh is concerned, he held that the corrupt practices were resorted to without his knowledge and connivance, and his case came within rule 16(2) of the Rules. He accordingly found that the election of this respondent was not void. I shall have to refer to the case of the respondent, Jagat Prasad. Singh, when I come to deal with Civil Revision no. 773 of 1949 which is directed against this part of the order of the Election. Commissioner.

It is contended by the learned Government Pleader appearing for the respondent, Jamuna Prasad Tripathi that there was nothing definite to connect this respondent with the corrupt practices in question. He argued that the mere fact that some votes cast in the name of deceased voters were found in his ballot box or that some women happened to personate for certain other women voters did not necessarily imply that the petitioner was directly concerned in the matter, and that there was no definite material on which the Election Commissioner could hold that the petitioner, Jamuna Prasad, could be directly connected with the corrupt practices in question. I am afraid in view of the findings of the Election Commissioner. I cannot accept this contention. To quote his own words, the Election Commissioner found as follows:

“As regards Babu Jamuna, Tripathi I am unable to accept, such a view. He did not rest satisfied with what might have been done by the Congress party whose nominee he was to secure his election. He was acting and supervising the election and was visiting each polling booth on every day. The corrupt practices have been resorted to in Kamtaul and Sirsia polling booths in which locality this particular candidate resides. When he was in close touch with the election it cannot be assumed that the hiring of men to vote for dead persons and women to vote for absentee women voters could have been, done without his knowledge. There could be hardly any direct evidence of the fact that he had Knowledge of these corrupt practices and the same must be inferred from the facts and surrounding circumstances.……From the evidence and circumstances of the case and active interest that was taken by this returned candidate I find that all these corrupt practices found to have been resorted to were certainly within the knowledge of Babu Jamuna Tripatni and were done with his connivance in he himself was not the originator of the plan.”

In view of this finding which certainly, cannot be challenged before us in revision, it seems difficult to uphold the contention of the learned Government Pleader that the election of the respondent, Jamuna Prasad Tripathi, did not come directly within the mischief of rule 16(1).

Mr. Lalnarain Sinha also suggested, though faintly, that the corrupt practices involved did not materially affect the result of the election because the respondents, Jamuna Prasad was returned by an overwhelming majority of votes. This argument does not arise in construing rule 16(1)(b) of the Election Petitions Rules. All that is required under that rule is that the corrupt practice in question must have been committed in the interest of the returned candidate in which case his election must be held to be void.

I am, therefore, of opinion that there is no substance in the application filed on behalf of the applicant, Jamuna Prasad Tripathi, in Civil Revision no. 679 of 1949 which accordingly fails and must be dismissed with costs; hearing fee three gold mohurs.

Civil Revision no. 773 of 1949.

I shall now turn to Civil Revision no. 773 of 1949 which, as I have said, is directed against that part of the order of the Election Commissioner in which he found that the election of Jagat Prasad Singh was not void in view of sub-rule (2) of rule 16. It is unnecessary to recapitulate the facts. The petitioner in this case is one of the persons who filed the election petition challenging the election of Jagat Prasad Singh. Mr. P.R Das who appears for the petitioner contends that the order of the Election Commissioner is clearly wrong and without jurisdiction. He relies upon the findings of the Election Commissioner where he held that the corrupt practices under Part I of the Schedule to the District Board Election Petitions Rules, 1939, had been committed in the interest of both the returned candidates. He also relies upon the finding that the corrupt practices complained of could not be brushed aside as of a, trivial nature, and then he contends that having regard to these findings the Election Commissioner had no jurisdiction to act under sub-rule (2) of rule 16.

The contention of Mr. Das rests upon a construction of rule 16 and therefore if would be useful to quote the rule in full:—

“(1) Subject to the provisions of this rule if in the opinion of the Election Commissioner—

(a) the action of returned candidate has been procured or induced, or the result of the election has been materially affected, by any corrupt practice, or

(b) any corrupt practice specified in Part I of the Schedule to these rules has been committed in the interests of a returned candidate; or

(c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by reason of the fact that any person nominated was not qualified or was disqualified for election or by the improper reception or refusal of a vote or by the reception of any vote which is invalid or by any non-compliance with the provisions of the Act or of the rules framed under the Act in respect of the election or by any mistake in the use of any prescribed form: or.

(d) the election has not been a free election by reason of the large number of cases in which bribery or undue influence has been committed:

the election of the returned candidate shall be void.

(2) If the Election Commissioner finds that the returned candidate has been guilty by an agent of any corrupt practice specified in Part I of the Schedule to these rules but further finds that the candidate has satisfied him that—

(a) no corrupt practice was committed at the election by the candidate and the corrupt practices found by the Election Officer to have been committed were committed contrary to the orders, and without the sanction or connivance, of the candidate;

(b) that the candidate took all reasonable means for preventing the commission of corrupt practices at the election;

(c) the corrupt practices found by the Election Commissioner to have been committed were of a trivial and limited character or took the form of customary hospitality which did not affect the result of the election; and

(d) in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents,

then the Election Commissioner may find that the election of the returned candidate is not void.”

It is quite clear from the above that whereas in sub-rule (1) of rule 16 the word “or” has been used in respect of each of various clauses, it is to be noted that the word “or” is significantly absent in the various clauses of sub-rule (2) of rule 16 Mr. Das accordingly submits that the various clauses in sub-rule (2) must be taken in conjunction with each other. The learned Commissioner, having definitely found that the corrupt practices complained of were not

“of a trivial and limited character or took the form of customary hospitality which did not affect the result of the election”

as required by rule 16(2)(c), he contends that all the elements necessary to give the candidate the benefit of sub-rule (2) and in order to take him out of the mischief of sub-rule (1) did not exist. Therefore, the first finding of the Election Commissioner that the election was void must stand. Mr. Das further submits that this is not a mere error of law but an error of law which affects the ambit of his jurisdiction, and, therefore, open to revision by this Court. He relies upon a decision reported in Raja Bahadur Harihar Prasad Narain Singh v. Maharaj Kumar Gopal Saran Narain Singh where it has been held that if the High Court should find that the lower Court has made a mistake as to the extent of its jurisdiction, it may then interfere, and this is particularly so when the lower Court in determining the ambit of its own jurisdiction considers legislative enactments. Having once found that the election of the respondent, Jagat Prasad Singh, also came under rule 16(1)(b) of the rules, the learned Election Commissioner had to declare that the election was void of this candidate as well unless the candidate could invoke to his aid sub-rule (2) of that rule which as discussed above he could not. If all the various clauses of sub-rule (2) are taken conjunctively it is quite clear that one of the conditions contemplated by clause (c) of that rule has been definitely found to be against the candidate returned, and that being so sub-rule (2) could not come into, operation. Consequently the Election Commissioner could not be deemed to act within his jurisdiction in coming to a finding that the election of Jagat Prasad Singh was not void, and this was matter which really affected the ambit of his jurisdiction. There is apparently much substance in this contention of Mr. Das.

The question, therefore, arises whether these various clauses of sub-rule (2) of rule 16 of the Election Petitions Rules have to he read conjunctively as contended for by Mr. Das. Mr. Mahabir Prasad appearing for the respondent-opposite party after some discussion conceded that the construction put upon the rule that the various clauses of sub-rule (2) had to he read conjunctively was a correct construction. He also conceded that the misconstruction of the rule made by the Election Commissioner in spite of his own findings did affect his jurisdiction in pronouncing upon the validity of the election. He, however, contended that there was no definite finding that the corrupt practices complained of were with the knowledge of or at the connivance of the candidate or his agent.

On a perusal of sub-rule (1) of rule 16 it appears that where the election of a returned candidate has been procured or induced by any corrupt practice, the election is void. Such a corrupt practice may beef either variety mentioned in Part I or Part II of the Schedule to the rules. On the findings we are concerned with clause (b) of sub-rule (1) of rule 16 which provides that where any corrupt practice specified in Part I of the Schedule to these rules has been committed in the interests of a returned candidate, the election of the returned candidate shall be void. Therefore clause (b) of sub-rule (1) refers to corrupt practices of Part I variety. Now, in Part I of the Schedule we find various kinds of corrupt practices specified but in each one of these instances it is to be noticed that it must be either by the candidate or his agent or by any other person

“with the connivance of the candidate or his agent”.

So far as Jagat Prasad Singh is concerned, there is a definite finding by the Commissioner in his favour to the effect that the Election Comissioner was satisfied that these corrupt practices were resorted to without his knowledge and connivance. The question then arises whether he can even then take advantage of an election in which corrupt practices have been committed in his interest provided it was committed with the knowledge or connivance of his agent which, as I have said, is an essential factor in all the various instances specified in Part I of the Schedule to the rules. On that point there does not appear to be any definite finding arrived at by the Election Commissioner. Our attention has been drawn to a, part of the judgment wherein the Election Commissioner held as follows:

“Ext. 6 shows that the Secretary of the District Congress Commit tee who was acting as poling agent for the respondents filed a petition before one of the Presiding Officers of Sirsia polling station and the agent Kailash Behari of the petitioners was given last warning that he would be turned out if he would challenge the women voters any further.”

In this Ext, 6 it appears that the Secretary of the District Congress Committee described himself as a polling agent only of one of the respondents, namely, Jamuna Prasad Tripathi and not of the respondent Jagat Prasad Singh as well. Therefore, the value of this finding is greatly shaken by this error of record which has crept in the judgment of the Election Commissioner. We were also referred to another portion of the judgment wherein it is pointed out that Jagat Prasad Singh took no active part but that he was all along in Bochaha booth, and that the Congress party was doing the work for him. So he did not even come to Muzaffarpur, Sirsia and Kamtaul polling booths where these corrupt practices were resorted to. It is argued that the Congress party was really conducting the election on behalf of both the respondents who had been set up by the party, and therefore, it must be held that the Secretary of the Congress party was the agent of both the candidates. It is no doubt true that the law of agency in election cases goes much further than the ordinary law of principal and agent. There may be no direct proof of an actual appointment of an agent. A man may be proved to be an agent of a candidate on the various facts and circumstances leading to such an inference in a particular case, but the trouble in this case is that there is no definite finding that the corrupt practices in question were resorted to with the knowledge or connivance of any agent of Jagat Prasad Singh. At one stage I was inclined to think that the case should he remitted to the Election Commissioner for disposal after a finding on the point whether the corrupt practices of Part I variety referred to in clause (b) of rule 16(1) were with the knowledge of Jagat Prasad's agent, if any but it seems to me that no useful purpose will be served now by sending the case back on remand at such a late stage, the election in question having taken place in May and June, 1947.

As at present advised I am inclined to agree with the contention of Mr. Das that the various clauses in sub-rule (2) of rule 16 have to be read conjunctively, and that all the conditions enumerated in those clauses must be found to exist before a returned candidate can take advantage of sub-rule (2). This distinction is clearly brought out by the fact that in sub-rule (1) the various clauses are made disjunctive by the use of the word “or” which is absent in sub-rule (2) where all the clauses are connected one after the other by a semi-colon and finally with the conjunction “and” linking up the last clause (d) of that sub-rule. sub-rule (2) is obviously an exception to sub-rule ft) and this exception must be rigorously found before a returned candidate can take any advantage of it. This exception in sub-rule (2) can have no application at all where the returned candidate is himself found guilty of the corrupt practices of Part I variety referred to in rule 16(1)(b) and rule 16(2) of the rules. It can only come into play where the Candidate himself is innocent but his agent is guilty or has knowledge of or connived at the corrupt practices in question. It is in that case alone, if all the conditions mentioned in the various clauses of the sub-rule are found to exist that the successful candidate can be exonerated and his election-upheld otherwise he cannot take advantage of the election vitiated by those practices. Such an interpretation is in consonance with public policy and the real, intention of the rules to keep inviolate the purity of these elections. I agree with the view, of the Election Commissioner in so far as he held that the rules, however, as framed do not seem to tolerate any moral turpitude on the part of the returned candidate in obtaining his election. The rules do not seem to like that the local bodies be filled with persons of questionable and doubtful honesty and integrity that is why rule 16 appears to be so strict in the matter of corrupt practices resorted to in the interest of a returned candidate to his knowledge and with his connivance by his workers”. But, I do not agree with him in his application of sub-rule (2) of rule 16 to the case of Jagat Prasad Singh. I, however, think, as I have said, that the case does not at this stage call for any interference in revision on our part specially when there is no clear finding against Jagat Prasad, the respondent opposite party, that the corrupt practices in question were brought about with the knowledge or connivance of his agent. The Secretary of the Congress Committee may or may not have been his agent, but at any rate Ext. 6 does not show that he was the polling agent of Jagat Prasad Singh as wrongly appears to have been assumed, by the learned Election Commissioner. That being so, I would dismiss this application also but in the circumstances without costs.

In the result both the applications fail, and the order passed by the Election Commissioner stands.

Das, J.:— I agree to the orders proposed to be passed by my learned brother, and would state, very briefly, my opinion on the questions raised and the reasons therefor.

Civil Revision 679 of 1949: Jamuna Prasad Tripathi.

I do not think that it is necessary to decide in this case the question of the meaning of the word ‘Contract’ occurring in rule 3(b) of the District Board Electoral Rules, 1937, and I wish to guard myself against expressing any final or concluded view, that the word ‘contract’ in the rule means something more than an agreement enforceable by law and includes a transfer of property or any interest in property, e.g, a lease or a sale. It may be doubted if a person is disqualified for election merely because he has taken a lease of or purchased some property from the District Board. If the decision of the Election Commissioner had rested only on the interpretation put upon rule 3(b) aforesaid, and it was found with some force that the interpretation was wrong, it might, I think, be said that the error of law related to the extent of the jurisdiction of the Election Commissioner to declare the election void.

But there is the clear finding of the Election Commissioner that Jamuna Prasad Tripathi knew and had connived at corrupt practices of the kind specified in item no. 3 of Part I of the Schedule to the District Board Election Petition Rules, 1939. His election was thus void under rule 16(1)(b). As long as that finding stands—and nothing has been stated before us which would entitle us to go behind that finding—there can be no interference with the order of the Election Commissioner.

Civil Revision 773 of 1949: Jagat Prasad Singh.

I agree with my learned brother, that the four clauses (a) to (d) in rule 16(2) of the District Board Election Petitions Rules should be read conjunctively, and the learned Election Commissioner made an error of law in thinking otherwise. I also agree that such an error would attract the operation of section 115. Civil Procedure Code as it related to the extent of jurisdiction of the Election Commissioner.

I am not satisfied, however, that the finding of the learned Election Commissioner, so far as Jagat Prasad Singh is concerned, is a finding that corrupt practices of the kind specified in Part I of the Schedule were committed, so as to make his election void under rule 16(1)(b). Though the learned Election. Commissioner considered and put the case of both the returned candidates together while giving his finding about the corrupt practices resorted to at the election, he clearly found that Jagat Prasad neither knew nor connived at those corrupt practices. Therefore, to make the election of Jagat Prasad void within the meaning of rule 16(1)(b), it would be necessary to find that the corrupt practices were resorted to at least by or with the connivance of the agent; for by the definition of item no. 3 of Part I of the Schedule (with which item we are concerned) such connivance is essential—to distinguish corrupt practice of Part I variety from those of Part II variety. Such a finding is absent, or at least, not clearly expressed; and in view of the error of record regarding Ex. 6, to which my learned brother has referred, it is not possible to spell out such a finding against Jagat Prasad from what the learned Election Commissioner has said on the point of corrupt practices.

Thus, the Election Commissioner has substantially come to a correct conclusion about the election of Jagat Prasad, though he was in error about rule 16(2).

G.N.P

Order accordingly.