N. D. V. BHATT, J. ( 1 ) THIS petition is filed under Section 81 of the Representation of People Act, 1951 (hereinafter referred to as 'the act') by the unsuccessful candidate Dr. S. b. amarkhed praying for declaring the election of respondent 1 to the 23-manvi assembly constituency as void under the Provisions of Section 100 (1) (a), (b) and (d) of the Act, on the count that respondent 1 was disqualified to be a member of the state legislative assembly under article 191 (1) (a) of the Constitution of india; as also on the count that corrupt practices such as, rigging and booth capturing have been practised at the election by respondent 1 and his supporters and also on the count that the result of the election in so far as it concerned respondent 1 has been materially affected. The petitioner has also prayed for declaring him as having been duly elected from the said constituency. ( 2 ) GENERAL election to 23-manvi assembly constituency was held on 24-11-1989. The last date for filing nomination to the said election was on 30-10-1989. Petitioner and respondents-1 to 6 had filed their nominations. The scrutiny of the nomination papers took place on 2-11-1989. The last date for withdrawing one's candidature was fixed on 4-11-1989. The nominations of all the candidates were approved by the returning officer, with the result, in all 7 candidates were in the fray for the said election. The election took place on 24-11-1989. It is seen that in view of the complalnts filed by the polling officers in relation to the two booths viz. , polling booth nos. 6 and 7, re-poll was ordered and the re-poll took place on 26-11-1989. After the re-poll was held, counting took place and respondent 1-basangouda who polled 23,500 votes was declared as having been elected in the said election. Pctitioncr-dr. S. r. amarkhed polled the second highest number of votes viz. , 17,928. The symbol of respondent 1 at the election was 'bicycle' and the symbol of the petitioner was 'hand'. The other candidates viz. , respondents 3 to 6 polled lesser number of votes. Pctitioncr-dr. S. r. amarkhed polled the second highest number of votes viz. , 17,928. The symbol of respondent 1 at the election was 'bicycle' and the symbol of the petitioner was 'hand'. The other candidates viz. , respondents 3 to 6 polled lesser number of votes. ( 3 ) IT is the case of the petitioner that respondent 1-basangouda was the pradhana of bagalwad mandal panchayat in manvi taluk at the time of filing his nomination and he continued to hold the said office till 6-12-1989 on which date according to the petitioner, respondent 1 tendered his resignation. Petitioner has alleged that the post of pradhana of mandal panchayat is an office of profit as the pradhana is paid a salary of Rs. 300/- p. m. under the Karnataka zilla parishads, taluk panchayat samithis, mandal panchayats and nyaya panchayats Act, 1983 (hereinafter referred to as the zilla parishads act), petitioner has, therefore, contended that respondent 1 incurred disqualification under article 191 (1) (a) of the Constitution oflndia. ( 4 ) PETITIONER has also alleged in his petition that respondent 1 indulged incorrupt practices such as, booth capturing and rigging of booths. According to him, such instances of booth capturing took place in polling booth nos. 5, 6,7,68,76,74,89,91,92,93,94,95,96,100,102 and 103. It is asserted that respondent 1 and his supporters snatched the ballot papers from the presiding officers and after putting the 'x' mark against the bicycle they put them into the ballot boxes. It is stated that on account of the complalnt filed in respect of booth nos. 6 and 7 re-polling took place in relation to those booths on 26-11-1989. It is the version of the petitioner that in several instances after entering the polling booths, respondent 1 and his supporters have prevented the voters from exercising the franchise and sent them away threatening them and thereafter seizing the ballot papers from the officials and after putting the 'x' mark seal against the symbol of bicycle they put them in the ballot boxes. It is stated that by doing so, respondent 1 and his supporters put their thumb impression or forged signatures on the counter-folls of the ballot papers and on some counter-folls no signatures were affixed. It is the case of the petitioner that complalnts were not filed in respect of the other polling booths referred to hereinabove (other than polling booth nos. It is the case of the petitioner that complalnts were not filed in respect of the other polling booths referred to hereinabove (other than polling booth nos. 6 and 7), either on account of the fact that the said officials were afraid of respondent 1 and his henchmen or that they were colluding with respondent 1 and his men. The petitioner has alleged that on account of the sins of commission on the part of respondent 1 and his henchmen, polling percentage in the aforesaid polling booths proved to be abnormally high and respondent 1-basangouda polled in the said polling booths in the range of 80% to 99% of the votes polled. Petitioner has also alleged that even the votes of the dead persons and persons who were out of station on the date of election were also got cast in the process of rigging the votes in those particular booths. ( 5 ) PETITIONER has, therefore, asserted that the election of respondent 1 is rendered void on the aforesaid grounds and that therefore, the same is liable to be declared as such and that he is entitled to be declared as having been elected in the said election. ( 6 ) RESPONDENT 1 by his written statement has denied the variousallegations of sins of commission attributed to him. He has contended in his written statement that he was not the pradhana of bagalwad mandal panchayat on the date of filing the nomination papers. It is his version that he has tendered his resignation much earlier. He has also contended that the office of pradhana of mandal panchayat is not an office of profit. Respondent 1 has stated that the salary of pradhana is not paid out of the state exchequer. ( 7 ) RESPONDENT 1 has stoutly denied the allegations of corrupt practicessuch as, booth capturing and rigging attributed to him. The various allegations made by the petitioner in support of his assertion that respondent 1 indulged in booth capturing and rigging were all denied by respondent 1. According to respondent 1, petitioner was a stranger to the constituency in question and that therefore, he was not at all popular in the said constituency. He has also denied the other allegations made in the petition. According to respondent 1, petitioner was a stranger to the constituency in question and that therefore, he was not at all popular in the said constituency. He has also denied the other allegations made in the petition. ( 8 ) RESPONDENTS 2 to 5 have not filed any written statement, respondent6-raja sanjeev naik has, in his written statement submitted that the allegations made by the petitioner in the course of his petition are substantially true. He has also stated that respondent 1 taking advantage of his position as the pradhana of bagalwad mandal panchayat resorted to large scale rigging in polling booth nos. 92 to 97 coming directly within the jurisdiction of bagalwad mandal panchayat. It is further stated that in addition to the large scale rigging in these polling booths, respondent 1, his election agent and other agents with his knowledge and consent did resort to rigging in other polling stations also. It is the version of respondent 6 that respondent 1 had hired lorries, jeeps and tempos and he was taking goondas armed with sticks, axes and country pistols who stormed into the polling stations and took possession of the ballot papers and stamped the ballot papers in favour of the returned candidate. It is stated that a jeep belonging to one gavigatta naganna gouda was used for transporting the goonda elements who indulged in rigging in the aforesaid polling stations. It is his version that after coming to know of the large scale rigging, he directed his worker-vinayak patil to book a trunk call to the chief electoral officer, Bangalore and convey the message of the large scale rigging resorted to by the 1st respondent, his election agent and other agents with his knowledge and consent, but according to him, the said attempt proved futile for the reasons stated in para 6. He has also made other allegations in para 7 of his written statement which are identical to the allegations reflected in certain paras in the petition filed by the petitioner and alluded to earlier. He has prayed for setting aside the election of respondent 1 and for ordering re-poll. ( 9 ) RESPONDENT 7-the returning officer has in his written statement contended that he is not a necessary party and that he ought not to have been made a party in the light of the decision referred to in his written statement. He has prayed for setting aside the election of respondent 1 and for ordering re-poll. ( 9 ) RESPONDENT 7-the returning officer has in his written statement contended that he is not a necessary party and that he ought not to have been made a party in the light of the decision referred to in his written statement. He denied the allegations that there was any improper acceptance of nominations. He has stated that scrutiny of nominations took place on 2-11-1989 at 11-00 a. m. ; but neither the petitioner nor any other person raised any objection regarding the nomination of the 1st respondent. He has also taken a contention that the office of pradhana of mandal panchayat is not an office of profit either under the government of India or the state government. He has denied the allegation that booth capturing had taken place in the polling booths referred to by the petitioner (other than polling booth nos. 6 and 7 ). However, he has stated that the presiding officers of polling station nos. 6 and 7 reported regarding rigging and capturing of booths in the polling station nos. 6 and 7 respectively and that he contacted the district election officer, raichur over phone and kept the connected papers and boxes separately and on 25th morning he went to raichur along with those two presiding officers and the district election officer had talked with the chief electoral officer, Bangalore. He has also stated that the chief electoral officer, Bangalore issued directions over phone that the election commission of India has given clearance order for conduct of re-poll in respect of both assembly and parliamentary elections on 26-11-1989 pertaining to the polling station nos. 6 and 7 of 23-manvi assembly constituency. He has further stated that he pursuant to such a direction after giving wide publicity regarding the time and the place of re-poll, conducted the re-poll on 26-11-1989 in respect of polling station nos. 6 and 7 between 8-00 a. m. and 5-00 p. m. he has asserted that except polling station nos. 6 and 7, he has not received any complalnt from any presiding officer or from any persons regarding either rigging or booth capturing. He has also asserted that neither the petitioner nor any other persons has brought to his notice any irregularity or illegality in respect of polling. 6 and 7, he has not received any complalnt from any presiding officer or from any persons regarding either rigging or booth capturing. He has also asserted that neither the petitioner nor any other persons has brought to his notice any irregularity or illegality in respect of polling. In so far as the allegations reflected in the petition in relation to the electoral roll are concerned, he has stated that the electoral roll was amended in the year 1989 and certain names were deleted from the electoral roll and that the contesting candidates were informed by a letter of the returning officer dated 11-11-1989 to prepare a list regarding the dead and bogus voters in the taluka, but none of the contesting candidates has furnished the list. He has also stated that the returning officer is not aware of any votes cast on behalf of the dead persons. He has prayed for the dismissal of the election petition. ( 10 ) ON the basis of the above pleadings, the following issues were raisedby my predecessor:1. Does the petitioner prove that the election of respondent 1 is vitiated because he was, on the date of the poll holding an office of profit as alleged in the petition? 2. Does the petitioner prove the factum of capturing the poll booth nos. 5,6,7,68,73,74,88,91,92,93,94,95,96,100,102 and 103 on the date of the poll and in consequence of the same the result of the election has been over whelmingly affected? 3. Does the first respondent prove that the election petition is not maintainable for the reasons mentioned in the written statement? 4. What order? ( 11 ) THE petitioner in support of his case examined 14 witnesses including himself. Ex. P. 1 to ex. P. 17 were marked for the petitioner, respondent 1 has examined himself and has also examined 20 witnesses. Ex. R. 1 and ex. R. 2 were marked for respondent 1. ( 12 ) RESPONDENTS 2 to 6 have neither cross-examined the witnessesexamined on either side nor have they examined themselves or any witnesses, respondent 7, in fact, is examinedby the petitioner, respondents 2 to 7 have not addressed arguments. ( 13 ) I have heard the arguments of Sri r. j, desai, learned counsel for the petitioner and Smt. M. n. pramtla, learned counsel for respondent 1. ( 14 ) ISSUE No. 1. ( 13 ) I have heard the arguments of Sri r. j, desai, learned counsel for the petitioner and Smt. M. n. pramtla, learned counsel for respondent 1. ( 14 ) ISSUE No. 1. under this issue, it is required tobe seen as to whether respondent 1 was holding an office of profit under the government of India or the government of state at the relevant point of time and thereby incurred any disqualification for being chosen as and for being a member of the legislative assembly. I am point out here that though the issue in question is not exactly worded in the way and manner as it ought to have been worded, the same, however, has not rendered any prejudice to either side since both the contesting parties have proceeded to the trial, bearing in mind what exactly is the crux of the question reflected by this issue. ( 15 ) IT is not in dispute that respondent 1 was the pradhana of bagalwadmandal panchayat. According to the petitioner, respondent 1 resigned the office of pradhana by tendering his resignation to the deputy commissioner on 6-12-1989. He has also produced ex. P. 2, a copy of the letter purported to have been addressed by respondent 1-basangouda to the deputy commissioner, raichur. Respondent 1 has, in the course of his written statement, denied that he continued to be the pradhan till 6-12-1989. However, in the written statement it is not made clear as regards as to on what date he tendered his resignation; but in the course of his evidence at para 7 of his deposition, he has stated that he tendered his resignation for the office of the pradhana on 30-10-1989. He has also stated that he did not receive any remuneration whatsoever towards the remuneration payable under the law after 30-10-1989. It is also his version therein that the resignation was sent to the chief secretary, zilla parishat on 30-10-1989 itself. However, he has not produced any document to show as to when exactly he tendered his resignation. At this juncture, it is relevant to refer to the Provisions of Section46 of the Zilla Parishad Act. It reads as under: "resignation of pradhana or upa-pradhana (1) the pradhana may resign his office by writing under his hand addressed to the deputy commissioner. At this juncture, it is relevant to refer to the Provisions of Section46 of the Zilla Parishad Act. It reads as under: "resignation of pradhana or upa-pradhana (1) the pradhana may resign his office by writing under his hand addressed to the deputy commissioner. (2) the upa-pradhana may resign his office by writing under his hand addressed to the pradhana and in the absence of the pradhana to the deputy commissioner. (3) every resignation under sub-section (1) or sub-section (2) shall take effect on the expiry of ten days from the date of its receipt by the deputy commissioner or the pradhana, as the case may be, unless within the period of ten days he withdraws such resignation by writing under his hand addressed to the deputy commissioner or the pradhana, as the case may be. "a perusal of the said Provisions would clearly go to show as regards as to how the resignation is required to be tendered if at all by the pradhana and as to when such resignation takes effect. The resignation is required to be sent to the deputy commissioner. Further it will have to be in writing. Further it will take effect after the expiry of ten days from the date of its receipt by the deputy commissioner. It is therefore clear that any amount of resignation sent to the chief secretary or someone else will be wholly irrelevant and the question as to when respondent 1 ceased to be the pradhana will have to be answered only in the context of the Provisions reflected in Section 46 of the Zilla Parishad Act culled out hereinabove. As pointed out earlier, the petitioner has produced a copy of the letter at ex. P. 2. Further he has also got produced the original letter at ex. P. 2. Respondent 1 also has not, in the course of his evidence or for that matter in the course of his written statement, come out with any definite version as regards as to when he had actually sent the letter of resignation to the deputy commissioner. Under these circumstances, I have no hesitation whatsoever in taking a view that respondent 1 did not cease to be a pradhana till the expiration of ten days next after ex. P. 2 which is dated 6-12-1989 was actually communicated to the deputy commissioner, raichur. Under these circumstances, I have no hesitation whatsoever in taking a view that respondent 1 did not cease to be a pradhana till the expiration of ten days next after ex. P. 2 which is dated 6-12-1989 was actually communicated to the deputy commissioner, raichur. It is therefore clear that respondent 1 was a pradhana of bagalwad mandal panchayat both on the date of nomination as also on the date of election to the legislative assembly. ( 16 ) IF that be so, the next question that is required to be considered is as to whether the office of pradhana is an office of profit and if so, whether the same is an office of profit under the central or the state government. It is necessary to bear in mind that a candidate merely by holding an office of profit will not render him disqualified for being chosen as a member of either house of parliament or of the legislative assembly. However, if he holds an office of profit either under the government of India or the government of state, he will render himself disqualified to be so chosen. (emphasis supplied) I may point out here that the petitioner has, nowhere in the course of his petition, stated that respondent I was holding an office of profit under the government of India or the state government though the petitioner has indeed asserted more than once in the course of his petition that respondent 1 is holding an office of profit. However, on this count alone I am not inclined to throw over board the point pressed into service by the petitioner under this issue. I hasten to add here that both the counsels representing the petitioner and respondent 1 have addressed arguments on the question as to whether the office of pradhana is an office of profit under the state government. Under these circumstances, it is necessary to see as to whether the office of pradhana is an office of profit and also to see as to whether it is an office of profit under the state government. At this juncture, it is necessary to refer to some of the Provisions of the Zilla Parishad Act (for short) relevant in the context of the point under consideration. At this juncture, it is necessary to refer to some of the Provisions of the Zilla Parishad Act (for short) relevant in the context of the point under consideration. Section 44 of the z. p. act relates to the term of office and conditions of service of pradhana or upa-pradhana of the mandal panchayat. Section 44 (3) of the z. p. act reads as under:"term of office and conditions of service of pradhana or upa-pradhana (1)xx xx xx. (2) xx xx xx. (3) there shall be paid a monthly salary of three hundred rupees to the pradhana and one hundred and fifty rupees to the upa-pradhana. Their other conditions of service shall be as prescribed. "from what is stated hereinabove, it is clear that the pradhana is paid a salary of Rs. 300/- p. m. at this juncture, it is also necessary to see as to what exactly is the function of the pradhana as prescribed under the Act, Section 61 of the z. p. act prescribed the functions and powers of the pradhana. It reads as under:"functions and powers of the pradhana (1) the pradhana shall, in addition to the functions and powers exercisable under any other provision of this act or rules made thereunder,---; (a)convene meetings of the mandal panchayat; (b)have access to the records of the mandal panchayat; and (c) exercise supervision and control over the acts of the officers and employees of the mandal panchayat. (2) the pradhana may, if in his opinion the immediate execution of any work or the doing of any act which requires the sanction of a committee or of the mandal panchayat, is necessary in public interest convene a meeting for the purpose with a notice of 24 hours. (3) the upa-pradhana shall exercise the powers and perform the function of the pradhana when the pradhana is absent on leave or is incapacitated from functioning or is continuously absent for more than fifteen days. "a perusal of the above Provisions would indeed go to show that the office of a pradhana of a mandal panchayat is not just an ornamental office, but is an office to which certain important duties are attached or assigned. Further the nature of the duties or the functions would indeed go to show that the job of a pradhana is almost a whole time job. The question of payment of salary of Rs. Further the nature of the duties or the functions would indeed go to show that the job of a pradhana is almost a whole time job. The question of payment of salary of Rs. 300/- will have to be considered also in the context of the duties assigned to the job of a pradhana. Further it is significant to notice that the legislature in its wisdom has employed the word 'salary' with reference to the amount of Rs. 300/- payable to the pradhana from month to month and has not chosen to use the word 'honorarium' or for that matter any other word like 'allowances'etc. If it was the intention of the legislature that what was being given to the pradhana from month to month was only a honorarium or allowance, nothing prevented the legislature to say so. When the legislature has not chosen to use those expressions but has chosen to use the expression 'salary', the same would indeed assume some significance. However, i hasten to add here that the distinction or difference between salary and honorarium is very thin and sometime difficult to demarcate. At the same time, it appears to me that having regard to the functions prescribed for the pradhana in Section 61 of the z. p. act and the same appears to be a whole time job, the office of pradhana is an office of profit. In this connection, the decision in moti singh v bhaiyyalal, 29 elr 215 deserves to be noted. In the said case, the Bombay high court while considering the question as to whether the office of the vice-president of the zilla parishat is an office of profit has, among other things, held as under:"in view of all the aforesaid definitions and the facts of the present case which showed that the respondent was employed for doing a full time job of the vice-president and chairman of the subjects committees, the payment which was sanctioned for him would necessarily be as his fee or remuneration for the work done by him. The euphemistic use of the word 'honorarium' would not change the fact that he is getting a regular, and monthly salary or remuneration. The euphemistic use of the word 'honorarium' would not change the fact that he is getting a regular, and monthly salary or remuneration. In view of receipt of salary or remuneration, coupled with the perquisites of a free accommodation and a free conveyance that the respondent was getting, I have no manner of doubt that be is holding an office of profit. I find accordingly. "in the same way in the decision in rama lal v vishveshwar nath, 29 elr 307 the High Court of Rajasthan has pointed out that a pramukh of the zilla parishad who was entitled to a honorarium of Rs. 300/- month is holding an office of profit. ( 17 ) IN the instant case, as pointed out earlier, the pradhan is entitled to asalary of Rs. 300/- p. m. it is true that an amount of Rs. 300/- is a small one. However that would not be a distinguishing feature to hold that the office of pradhana is not an office of profit. ( 18 ) FROM what is stated hereinabove, I have no hesitation whatsoever in holding that the office of pradhana is an office of profit. ( 19 ) IF that be so, it will have to be next seen as to whether the office of profit held by the pradhana is an office of profit under the government of the state. At this juncture, it would be indeed necessary to refer to the Provisions of article 191 (1) (a) of the Constitution of india. Article 191 (1) (a) of the Constitution of India reads as under:"disqualification for membership. (1) a person shall be disqualified for being chosen as, and for being, a member of the legislative assembly or legislative council of a state (a) if he holds any office of profit under the government of India or the government of any state specified in the first schedule, other than an office declared by the legislature of the state by law not to disqualify its holder; (b)xx xx xx. (c)xx xx xx. (d)xx xx xx. (e)xx xx xx. " ( 20 ) SRI r. j. desai, learned counsel for the petitioner contended that the office held by the pradhana of a mandal panchayat is an office of profit under the state government, in that, the state government exercises numerous control over the mandal panchayat. (c)xx xx xx. (d)xx xx xx. (e)xx xx xx. " ( 20 ) SRI r. j. desai, learned counsel for the petitioner contended that the office held by the pradhana of a mandal panchayat is an office of profit under the state government, in that, the state government exercises numerous control over the mandal panchayat. In this connection, the learned counsel invited the attention of this court to the Provisions of Section 8 of the Zilla Parishad Act and Section 113 of the said act as also the Provisions of sections 190 and 191 of the said act. The learned counsel submitted that as the mandal panchayat exercises government functions is in the nature of a 'mini government'. Reliance is placed on certain observations made by this court in the decision in bommegowda v state of Karnataka, 1992 (4) kar. L. j. 156 : ILR 1992 kar. 3148. Dilating on this aspect, the learned counsel submitted that there are certain important tests by the touch stone of which the question as to whether an office of profit is one under the government can be resolved. In this connection, the learned counsel has placed reliance on the decision of the Supreme Court, in biharilal v roshanlal, AIR 1984 SC 385 and the decision in satrucharla chandrasekhar raju v vyricherla pradip kumar dev and another, AIR 1992 SC 1959 . With reference to the decision in satrucharla chandrasekhar's case, the learned counsel pointed out that one of the very important tests which is required to be seen is as to whether holding an office of pradhana comes in any manner into conflict with his duties as a legislator and with his obligation with the government because of the office he holds. The learned counsel argued that if a pradhana is elected as a legislator, the latter position would not enable him to do his duties as a pradhana independently and without prejudice or predilection. Making his submissions on these lines, the learned counsel contended that the office of pradhana is an office of profit under the government of state which would render him disqualified to be chosen as a member of the legislative assembly. Making his submissions on these lines, the learned counsel contended that the office of pradhana is an office of profit under the government of state which would render him disqualified to be chosen as a member of the legislative assembly. The learned counsel, Sri desai also contended that the Karnataka legislature (prevention of disqualification) (Amendment) Act, 1991 which was enacted with a view to remove the disqualification also is not of any consequence since the Provisions of the said act having regard to the language employed therein would not serve the purpose for which the act was enacted. The learned counsel has placed reliance on certain decisions of the Supreme Court in this behalf to contend that the said act is of no avail to the respondent. ( 21 ) ON the other hand, Smt. Pramila, learned counsel for respondent 1 contended that the office of pradhana is an elected office and that he can be removed only by a no confidence motion. In other words, the learned counsel argued that pradhana is neither appointed by the government nor can he be removed by the government. In this connection, the learned counsel has invited the attention of this court to the Provisions of Section 43 of the Zilla Parishad Act as also to the Provisions of sections 46 and 47 of the said act. The learned counsel, Smt. Pramila also pointed out that the mandal panchayat is a body corporate incorporated under Section 6 of the said act and that therefore, it is an independent entity. A reference is also made to Section 61 of the Zilla Parishad Act relating to the functions and powers of the pradhana. Attention of the court is also drawn to the Provisions of Section 114 of the said act which provides for the 'mandal panchayat fund'. Reference is also made to the Provisions of Section 123 relating to the appointment of employees. Attention of the court is also drawn to the Provisions of Section 114 of the said act which provides for the 'mandal panchayat fund'. Reference is also made to the Provisions of Section 123 relating to the appointment of employees. The learned counsel also took the court through the Provisions relating to the dissolution of mandal panchayat including the powers of the government to dissolve as provided for under Section 311 of the Zilla Parishad Act, the learned counsel for respondent 1 contended that the various Provisions referred to by her and alluded to hereinabove would unmistakably go to show that the mandal panchayat is an independent body, notwithstanding the fact that it may exercise some of the powers which would otherwise have been exercised by the state government. The learned counsel submitted that none of the decisions pressed into service by the learned counsel for the petitioner would apply to the facts of the instant case. The learned counsel argued that the decision in satrucharla chandrasekhar's case, AIR 1992 SC 1959 is not at all of any assistance to the petitioner, but on the other hand, the same would fortify the submission made on behalf of respondent 1. The learned counsel further submitted that the act No. 20 of 1991 that is to say, the Karnataka legislature (prevention of disqualification) (Amendment) Act, 1991 would having regard to its language remove the disqualification if any, incurred by respondent 1. ( 22 ) I have given my anxious consideration to the submissions made by the learned counsels on either side. The question as to whether the office of prof it held by the pradhana is one under the government is required to be considered, bearing in mind the various factors relevant for consideration and in the light of the guidelines lald down in the decided cases. At the very outset it is necessary to remember that the office of fradhana is an office created by a legislative enactment viz. , Zilla Parishad Act. The Zilla Parishad Act is enacted with an avowed objective. At the very outset it is necessary to remember that the office of fradhana is an office created by a legislative enactment viz. , Zilla Parishad Act. The Zilla Parishad Act is enacted with an avowed objective. The preamble of the Zilla Parishad Act reads as under:"whereas it is expedient to provide for the establishment in rural areas, of zilla parishads, taluk pancbayat samithis, mandal panchayats and nyaya panchayats to assign to them local government and judicial functions and to entrust the execution of certain works and development schemes of the state five year plans to the zilla parishads, taluk panchayat samithis, mandal panchayats and to provide for the decentralisation of powers and functions under certain enactments to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said plans and in local and overnmental affairs and for purposes connected with an incidental thereto; be it enacted by the Karnataka state legislature in the thirty-fourth year of the republic of India as follows:"the preamble of the Zilla Parishad Act culled out hereinabove is self-explanatory and it is not necessary to dilate on the same at this juncture. All that can be observed at this stage is that the Zilla Parishad Act was enacted with the objects reflected in the preamble. It is also clear that the purpose behind the act among other things is to entrust to the bodies referred to their certain governmental functions as also to provide to the people a sort of local government. This aspect can be appropriately referred to in greater detail a little later. ( 23 ) AT this juncture, it is pertinent to note that under Section 6 of the saidact, the mandal panchayat is made a body corporate having perpetual succession and a common seal. It is vested with the capacity of suing or being sued in its corporate name. In otherwords, it is made a separate legal entity distinct and different from the state government. Further under Section 2 (17) of the Zilla Parishad Act, the mandal panchayat is catagorised among others as a local authority. The mandal panchayat is established under Section 4 of the Zilla Parishad Act. Section 5 of the said act goes to show that it shall consist of elected members. Further under Section 2 (17) of the Zilla Parishad Act, the mandal panchayat is catagorised among others as a local authority. The mandal panchayat is established under Section 4 of the Zilla Parishad Act. Section 5 of the said act goes to show that it shall consist of elected members. Section 43 of the said act goes to show that the pradhana is an elective post. Section 47 of the Zilla Parishad Act provides for no-confidence motion against the pradhana. He ceases to be a pradhana on the motion of no-confidence being carried with the support of not less than two-thirds of the total number of members of the mandal panchayat. Further Section 114 of the said act provides for the creation of mandal panchayat fund of which following shall form part" (a) the amount which may be allotted to the mandal panchayat fund by the government orby the zilla parishad under the Provisions of this or any other act; (b) the proceeds of any tax imposed by the mandal panchayat; (c) all sums ordered by a court to be placed to the credit of the mandal panchayat fund; (d) the sale proceeds, except in so far as any person is entitled to the whole or a portion thereof, of all dust, dirt, dung or refuse (including the dead bodies of animals) collected by the employees of the mandal panchayat; (e) sums contributed to the mandal panchayat fund by the government or zilla parishad; (f)all sums received by way of loans or contributions from the government or any other authority or person or by way of gift; (g) sums received by way of grants, subsidy or loans from the khadi and village industries commission or the Karnataka khadi and village industries board or any other authority or institution; (h) the income from or proceeds of any property vesting in the mandal panchayat; and (i) sums raised by way of loans by the mandal panchayat with the previous sanction of the government. "it is necessary to point out here that though the state government does contribute to the fund, the same is not the sole source. Further Section 115 of the Zilla Parishad Act provides for the manner of application of the said fund. "it is necessary to point out here that though the state government does contribute to the fund, the same is not the sole source. Further Section 115 of the Zilla Parishad Act provides for the manner of application of the said fund. I may also point out here that the various Provisions of the Zilla Parishad Act would go to show that the government has got certain control over the mandal panchayat. It is also necessary to notice that under Section 311 of the said act the government has power to dissolve the mandal panchayat under the circumstances mentioned there. ( 24 ) FROM what is stated hereinabove, it is clear that the pradhana is not appointed by the government. Further it appears that his salary is also not payable from the state exchequer as such. It is also evident that the mandal panchayat is distinct and different from the state government, being a separate legal entity. Further, the act itself provides for the apparatus to remove the pradhana by moving a motion of no-confidence. It does not appear that the government has got any disciplinary control as such over the pradhana. Further the functions of the pradhana are specified in the act itself. At the same time, it cannot also be gainsaid that the government has some certain control over mandal panchayat. It is also clear that the powers exercised by the mandal panchayat are akin to the functions exercisable by the government. ( 25 ) IT is in the context of the aforesaid circumstances, the question as to whether the office of profit held by the pradhana is one under the government is required to be considered. While it is necessary to remember that each one of the aforesaid aspects may be relevant for consideration, none of the aforesaid aspects by itself is decisive on the question under consideration. Before adverting to the guidelines reflected in the decision cited at the bar on either side with reference to this aspect, i think it would be indeed in fitness of things to refer to some other decisions also since, the said decisions, in my opinion, would render great assistance to reach a conclusion on the question in controversy. Before adverting to the guidelines reflected in the decision cited at the bar on either side with reference to this aspect, i think it would be indeed in fitness of things to refer to some other decisions also since, the said decisions, in my opinion, would render great assistance to reach a conclusion on the question in controversy. The Bombay high court in motl singh v bhaiyyalal, 29 elr 215 had occasion to consider the question as to whether the office of profit held by the vice-president of a zilla parishad can be said to be one under government. After referring to the various decisions reflected therein the High Court of Bombay has reached a conclusion that the said office of profit is not one under the government. It is pointed out by the Bombay high court that the Provisions of Maharashtra zilla parishads and panchayat samithis Act, 1961 would only show that the vice-president was subordinate to an office bearer of the ziila parishad. It is pointed out that even if the contention of the petitioner (in the said case) that zilla parishads are subject to some control by the government is accepted, the respondent (vice-president of zilla parishad) would come under clause 2 of article 58 of the Constitution and holding an office of profit "under a local authority subject to the control of the state government. " it is further pointed out that the same, however, does not and cannot make the vice-president the holder of an office of profit under the state government within the meaning of article 191 (1) (a) of the constitution. (emphasis supplied) in the decision in ramlal v vishveshwar nath, 29 elr 306, the High Court of Rajasthan had occasion to consider the question as to whether the office held by the pramukh of zilla parishad is an office of profit under the government. In fact, both the High Court of Bombay and High Court of Rajasthan in the respective decisions referred to immediately hereinabove had taken the view that the office of vice-president of zilla parishad (in the case dealt with by the Bombay high court) and the office held by the pramukh of zilla parishad (in the case dealt with by the High Court of rajasthan) are offices of profit. However, both the high courts have ruled that neither is an office of profit under the government, the emphasis being "under the government". I have already referred to the reasons given by the Bombay high court briefly to reach a conclusion as to why the vice-president of zilla parishad though he was drawing a salary (though he was drawing a remuneration of Rs. 300/-) is not an office of profit under the government. The High Court of Rajasthan in ram lal's case, after referring to the various decisions alluded to therein has, among other things, observed that merely because, the zilla parishat performs governmental functions and the state government exercise control over it, it cannot be held that it is merely a department of the state. It is further pointed out that within the four corners of the Rajasthan panchayat samiti and zilla parishads Act, 1959 the zilla parishad has full power to act independently and that there is no provision in the act or the Rule framed thereunder under which the state government can dictate to it in which manner it should discharge a particular duty or perform a particular function. It is also pointed out that the power of the state government to extend the term of appointments indirectly by extending the term of the zilla parishad and the power to terminate the appointments indirectly by superceding the zilla parishad cannot be regarded as power of appointment and removal. It is further pointed out that a pramukh, no doubt, holds an office of profit under the zilla parishad which is a local authority, subject to the control of the state government and as such, he is disqualified for the office of president of the union under article 58 (2) of the Constitution of india, but he is not disqualified for being chosen as a member of the legislative assembly. In my opinion, the observations made in the aforesaid decisions have relevance in the context of the facts of this particular case. In my opinion, the observations made in the aforesaid decisions have relevance in the context of the facts of this particular case. I hasten to add here that act No. 5 of 1968 was also since passed by Rajasthan legislature declaring that the office of pradhan or pramukh, among others, as defined in Rajasthan panchayat samithis and zilla parishads Act, 1959 in so far as it is an office of profit under the state government shall not disqualify or deemed to have disqualified the holder thereof for being chosen as or for being a member of the Rajasthan legislative assembly. It is also necessary to point out here that the judgment of the Rajasthan high court to reach a conclusion that the office of pramukh of the zilla parishad is not an office of profit under the state government was given even before act No. 5 of 1968 was passed by the state of legislature or for that matter ordinance No. 3 of 1968 which preceded act No. 5 of 1968 was passed by the governor of rajasthan. The ordinance came into being on 24-12-1968 and the judgment of the Rajasthan high court was delivered on 1-8-1967. It is under these circumstances, I have chosen to refer to the reasoning reflected in the judgment of the Rajasthan high court with reference to the aspect under consideration. Further, it is also necessary to notice here that the Supreme Court also had occasion to consider the scope and ambit of article 191 (1) (a) vis-a-vis article 58 of the constitution. In the decision in d. r, gurushanthappa v abdul khuddus anwar and others, AIR 1969 SC 744 , the Supreme Court, among other things, in the said judgment has held as under in para 11 therein:"in this connection, a comparison between articles 58 (2) and 66 (4) and articles 102 (1) and 191 (1) (a) of the Constitution is of significant help. In articles 58 (2) and 66 (4) dealing with eligibility for election as president or vice-president of india, the Constitution lays down that a person shall not be eligible for election if he holds any office of profit under the government of India or the government of any state or under any local or other authority subject to the control of any of the said governments. In articles 102 (1) (a) and 191 (1) (a) dealing with membership of either house of parliament or state legislature, the disqualification arises only if the person holds any office of profit under the government of India or the government of any state other than an office declared by parliament or state legislature by law not to disqualify its holder. Thus, in the case of election as president or vice-president, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the central government or the state government, whereas, in the case of a candidate for election as a member of any of the legislatures, no such disqualification is lald down by the Constitution if the office of profit is held under a local or any other authority under the control of the governments and not directly under any of the governments. This clearly indicates that in the case of eligibility for election as a member of a legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the government. The mere control of the government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the legislature in the manner in which such disqualification comes into existence for being elected as the president or the vice-president. The company in the present case, no doubt, did come under the control of the government and respondent 1 was holding an office of profit under the company; but, in view of the distinction indicated above, it is clear that the disqualification lald down under articles 191 (1) (a) of the Constitution was not intended to apply to the holder of such an office of profit. " (emphasis supplied) it is also necessary to point out here that while delivering this judgment, the Supreme Court has relied on its earlier decision in abdul shakur v rikhab chand and another, AIR 1958 SC 52 . ( 26 ) SRI desai, learned counsel for the petitioner, however, has placed strong reliance on the decision in biharilal dobray v roshan lal dobray, AIR 1984 SC 385 . ( 26 ) SRI desai, learned counsel for the petitioner, however, has placed strong reliance on the decision in biharilal dobray v roshan lal dobray, AIR 1984 SC 385 . That was a case where the elected candidate was originally employed as an assistant teacher in basic primary school run by zilla parishad of U. P. on coming into force of the U. P. Basic Education Act, 1972, he became an employee of the board of basic education under Section 9 (1) of the said act. While holding the post of the assistant teacher, he filed his nomination. He was elected and his election was questioned by the unsuccessful candidate. The high court dismissed the election petition and in appeal before the Supreme Court, it was contended that the elected candidate at the time of filing his nomination was holding an office of profit. The rules framed under the act had lald down that the appellate authority, in case of disciplinary proceeding, are the state government or the offices of the government, depending upon the nature of the court. The Supreme Court after referring to the Provisions of the said act and the Rule, held, among other things, as under:"it is seen that all officers mentioned in column 3 and column 4 of the above schedule are either the state government or officers appointed by the state government. The said officers are all officers of the government department who hold the posts in the board ex-officio, that is, by virtue of the corresponding post held by them under the government. The rules provide for the procedure to be followed in disciplinary proceedings and the punishments that may be imposed when an employee is found guilty of any act of misconduct. Rule 5 of the said rules provides for an appeal against any order imposing punishment to the prescribed authority. The procedure lald down in civil services (classification, control and appeal), rules as applicable to servants of the Uttar Pradesh government is required to be followed as far as possible in the case of the employees of the U. P. board of basic education. The funds of the board mainly come from the contribution made by the state government. The school in question is not a privately sponsored institution which is recognised by the board. The funds of the board mainly come from the contribution made by the state government. The school in question is not a privately sponsored institution which is recognised by the board. The statement of objects and reasons attached to the bill which was passed as the act clearly says that the act was passed in order to enable the state government to take over the administration of schools imparting primary education which were being run by the local authorities into its own hands. Even though the representatives of local authorities are associated in the administration of such schools after the act was passed, the final control of the schools is vested in the government and such control is exercised by it through the director and deputy director of basic education (member secretary) and other district basic education officers appointed by the government. "on the basis of the said findings, the Supreme Court held that the government had direct control and that the subordination of the board and its employees to the government is writ large on the face of the act and the rules made thereunder. Taking into consideration these aspects, the Supreme Court held that under the Act, the government took over all the basic schools with the object of providing compulsory education to the children and that every employee of the board is, in fact, holding the office under the government. At this juncture, it is necessary to notice here that the decision in biharlal dobray's case was pressed into service in a later case viz. , in satrucharla chandrasekhar's case by the unsuccessful candidate to contend that the successful candidate was holding an office of profit under the government. With reference to the said case, the Supreme Court in satrucharla chandrasekhar's case, AIR 1992 SC 1959 has, among other things, pointed out as under:"as a matter of fact in a later decision i. e. , in ashok kumar bhattacharyya's case, AIR 1985 SC 211 this court distinguished biharilal dobray's case, AIR 1984 SC 385 and held thus at p. 217, para 20 of air:"the measure of control by the government over a local authority should be judged in order to eliminate the possibility of conflict between duty and interest and to maintain the purity of the elected bodies. After reviewing various cases, and the Provisions of the various sections of the U. P. Basic Education Act, 1972 especially in view of Section 13 of the Act, this court held in the last mentioned case that the measure of control was such that U. P. education board was an authority which was not truly independent of the government and every employee of the board was in fact holding an office of profit under the state government. The statement of objects and reasons of the U. P. Basic Education Act, 1972 and sections 4,6,7,13 and 19 all of which have been set out in extenso in that decision make that conclusion irresistible. " (emphasis supplied) therefore biharilal dobray's case is not of much assistance to the respondents. As a matter of fact, as already observed in biharilal dobray's case as well as ashok kumar battacharyy's case the emphasis was also on the nature of the post held and the possibility of conflict between duty and interest of an elected member and to appreciate the same the test is whether the government has power to appoint or dismiss the employee who is being chosen as a legislator. " ( 27 ) FROM what is stated hereinabove, it appears to me that the facts in biharilal's case are clearly distinguishable and the ratio lald down in the said case cannot be called in aid by the petitioner for the same reason explalned by the Supreme Court in a later case. ( 28 ) IT is significant to notice here that the Supreme Court in satrucharla chandrasekhar's case has taken a survey of the various decisions rendered by it earlier and in view of the same, it is not necessary to refer to the earlier decisions. After referring to the various decisions, the Supreme Court has in para 23 of its judgment held as under:"what emerges from the above discussion is that the government has some control over the itda which is set up as a project, since it provides funds and sanctions the posts; the district collector is appointed as project officer and some officers are ex-officio members of the itda which carries out the object of providing the compulsory education in tribal areas. But the itda is a registered society having its own constitution. Though the project officer is the district collector, he acts as a different entity. But the itda is a registered society having its own constitution. Though the project officer is the district collector, he acts as a different entity. The power to appoint or to remove teachers is not with the government but with the project officer. The government may have contro] over the appointing authority but has no direct control over the teachers. The small post that appellant holds in itda is only that of a teacher who is directly under the control of the project officer. In such a situation the question of any conflict between his duties and interests as an elected member does not arise since it cannot be said that he, as a teacher, can be subjected to any kind of pressure by the government which has neither the power to appoint him nor to remove him from service. Taking a practical view of the substance of these factors into consideration, we are of the view that the appellant cannot be held to be holding an office of profit under the government. Accordingly the order of the high court is set aside and the appeal is allowed. Parties are directed to bear their own costs throughout. " ( 29 ) A careful perusal of the judgment of the Supreme Court in satrucharla chandrasekhar's case would clearly go to show that the fact that the government has got some control over mandal panchayat or for that matter the government contributes certain amount to the mandal panchayat fund or the fact that the functions exercised by the mandal panchayat are in the nature of governmental functions or for that matter the fact that the government has got under certain circumstances the power to dissolve mandal panchayat are not factors which are decisive with reference to the question in controversy, Sri r. j. desai, learned counsel for the petitioner, however, submitted that one of the important criterions lald down in satrucharla chandrasekhar's case, viz. , the possibility of conflict between the duties attached to the office of the pradhana and the duties flowing from one's position as an m. l. a. will be decisive in this case and according to Sri desai, as pointed out earlier, if a pradhana is elected as an m. l. a. he will not be in a position to exercise his duties as pradhana freely and impartially or effectively. Though Sri desai is right in contending that the criterion lald down by the Supreme Court with reference to the conflict of duties is a very important criterion, I am not in a position to agree with him that the pradhana if elected as an m. l. a. cannot be in a position to effectively exercise his functions as pradhana or for that matter he would not be in a position to exercise his functions without prejudice or predilection. I am indeed of the view that the submissions made by Sri desai in this behalf are far fetched. The functions of the pradhana as enumerated in Section 61 of the Zilla Parishad Act are already referred to earlier. If the pradhana does not discharge his function properly there is a provision to remove him by moving a motion of no confidence. Further in a democratic set up where elections are fought out on party lines at all levels, that it to say, even at the level of panchayats, submissions made by Sri desai lose their significance. As pointed by the Supreme Court in the decision in gurugobinda basu v sarkari prasad ghosal and others, AIR 1964 SC 254 a practical and sensible conclusion is required to be reached in such a situation. Under these circumstances, I am not inclined to agree with the submissions made by Sri desai in this behalf. ( 30 ) FURTHER, it is necessary to remember that mandal panchayat is a local authority as defined in Section 2 (17) of the Zilla Parishad Act. It is therefore the chairman of the mandal panchayat is a holder of office under a local authority. Might be that the government has got some control over the mandal panchayats; that however will not and cannot make the pradhana of the mandal panchayat an holder of office of profit under the government. This line of distinction is clearly brought out in the two decisions of the Supreme Court viz. , in abdul shakur's case, AIR 1958 sc52 and in gurushanthappa's case, AIR 1969 SC 744 , para 11. The observations of the Supreme Court in the said two decisions are on the point. As pointed out by the Supreme Court, the wording of article 58 (2) and article 191 (l) (a) of the Constitution is not the same. , in abdul shakur's case, AIR 1958 sc52 and in gurushanthappa's case, AIR 1969 SC 744 , para 11. The observations of the Supreme Court in the said two decisions are on the point. As pointed out by the Supreme Court, the wording of article 58 (2) and article 191 (l) (a) of the Constitution is not the same. While under article 58 (2), a person shall not be eligible for election as president (of the union) if he holds any office of profit under the government of India or the government of any state or under any local or other authority subject to the control of any of the said governments, under article 191 (1) (a) the latter part of disqualification reflected in article 58 (2) is not a disqualification to be chosen as or to be a member of the legislative assembly. Even at the risk of repetition it is necessary to state that the mandal panchayat is a local authority and even if it is held that it is subject to control by the governments still the holder of office of profit in a mandal panchayat cannot and will not be a holder of office of profit under the state government. Further the Supreme Court in the decision in ashok kumar's case, AIR 1985 SC 211 has in para 11 of its judgment observed that "municipalities are separately mentioned in contradistinction of the state government as it will be clear from reference to item 5 in list ii of the vii schedule of the constitution. Therefore, a local authority as such is a separate and distinct entity. This will become further clear from article 58 (2) of the constitution. (emphasis supplied) further in para 21 of its judgment, in ashok kumar's case, the Supreme Court has held as under:"for determination of the question whether a person holds an office of profit under the government each case must be measured and judged in the light of the relevant Provisions of the act. (emphasis supplied) further in para 21 of its judgment, in ashok kumar's case, the Supreme Court has held as under:"for determination of the question whether a person holds an office of profit under the government each case must be measured and judged in the light of the relevant Provisions of the act. Having regard to the provisions of the bengal Municipal Act, 1932 as extended to tripura, the Provisions of which have been set out hereinbefore, we are of the opinion that the state government does not exercise any control over officers like accountant in-charge respondent No. 1 and that he continues to be an employee of the municipality though his appointment is subject to the confirmation by the government. Just by reason of this condition an employee of a local authority does not cease to be an employee of the municipality. Local authority as such or any other authority does not cease to become independent entity separate from government. Whether in a particular case it is so or not must depend upon the facts and circumstances of the relevant Provisions. To make in all cases of employees of local authorities subject to the control of government and to treat them as holders of office of profit under the government would be to obliterate the specific differentiation made under article 58 (2) and article 102 (1) (a) of the Constitution and to extend the disqualification under article 102 (1) (a) to an extent not warranted by the language of the article. " (emphasis supplied) I may also point out here that the decision in Smt. Kanta kathuria v manak chand surana, AIR 1970 SC 694 is not of any assistance in reaching a conclusion on this aspect. However, that decision will be considered in greater detail while considering the effect of Karnataka legislature (prevention of disqualification) (Amendment) Act, 1991 with reference to the removal of disqualification, if any. Thus testing the facts of the case by the touch stone of the various decisions of the Supreme Court, I have no hesitation whatsoever in reaching a conclusion that respondent 1 though was holding an office of profit as pradhana of mandal panchayat on the relevant date was not holding the said office under the government. Thus testing the facts of the case by the touch stone of the various decisions of the Supreme Court, I have no hesitation whatsoever in reaching a conclusion that respondent 1 though was holding an office of profit as pradhana of mandal panchayat on the relevant date was not holding the said office under the government. ( 31 ) IN view of my finding hereinabove, the question as to whether the disqualification is removed by Karnataka Act No. 20 of 1991 really does not arise. However, i find that it is desirable that the same is required to be considered having regard to the submissions made at the bar with reference to the same. ( 32 ) KARNATAKA legislature (prevention of disqualification) (Amendment)act, 1991 was enacted by the Karnataka legislature. The said act amends Section 3 of the Karnataka legislature (prevention of disqualification) Act, 1956 (Karnataka Act No. 4 of 1957 ). It would be indeed in fitness of things to extract the Provisions of the said act with a view to appreciate the submission made by the learned counsel on either side from a proper perspective. The same reads as under:"1. Short title and commencement (1) this act may be called the Karnataka legislature (prevention of disqualification) (Amendment) Act, 1991. (2) it shall come into force at once. 1. Amendment of Section 3. in Section 3 of the Karnataka legislature (prevention of disqualification) Act, 1956 (karnataka act 4 of 1957) in clause (cc), after the words "upadhyaksha of the zilla parishads" the words "and pradhana and upa-pradhana of mandal panchayats", shall be deemed to have been inserted with effect from the fourteenth day of august, 1985. " ( 33 ) SRI desai, learned counsel for the petitioner submitted that the saidact cannot and will not remove the disqualification incurred by the petitioner. According to him, the act suffers from certain infirmities, with the result, the same cannot achieve the intended object. In the first place, the learned counsel pointed out that Section 1 (2) of the said act provides that it shall come into force at once. In otherwords, the said act should be deemed to have come into force on 19th day of April 1991 when it was published in the Karnataka gazette extraordinary. In the first place, the learned counsel pointed out that Section 1 (2) of the said act provides that it shall come into force at once. In otherwords, the said act should be deemed to have come into force on 19th day of April 1991 when it was published in the Karnataka gazette extraordinary. It is therefore contended by the learned counsel that the act if at all would be prospective and will not remove the disqualification if incurred next before that date. The learned counsel submitted that retrospective operation would have been there, if in Section 1 (2) of act No. 20 of 1991 it is stated that "it shall be deemed to have come into force with effect from the fourteenth day of August 1985. " the learned counsel submitted that the modus operandi now adopted by the legislature by using the expression in the way and manner as it has done would not give retrospective operation to the said act. The learned counsel also pointed out that the said act does not contain any validating provision, and that therefore, the same will not have any effect in removing the disqualification incurred by respondent 1. The learned counsel further pointed out that the act in question is also hit by the mischief of article 14 of the Constitution of india. In support of his submissions, with reference to the aspect under consideration, the learned counsel has placed reliance on the decision in Smt. Kanta kathuria 's case, AIR 1970 SC 694 as also the decision in shriprithvi cotton mills ltd. , etc. V broach borough municipality and others, AIR 1970 SC 192 . Reliance is placed on certain observations reflected in the book "principles of statutory interpretation" by Justice c. p. singh (4th edn. p. 298) particularly, with reference to the effect of amendment on pending proceedings. Reliance is also placed on this aspect on the decision in united provinces v mt. Atiqa begum and others, AIR 1941 fc 16. The learned counsel has placed reliance on the decision in Shri bhagwandass sehgal v state of haryana and others, AIR 1974 SC 2355 with reference to the submission that the act is hit by the mischief of article 14 of the constitution. Atiqa begum and others, AIR 1941 fc 16. The learned counsel has placed reliance on the decision in Shri bhagwandass sehgal v state of haryana and others, AIR 1974 SC 2355 with reference to the submission that the act is hit by the mischief of article 14 of the constitution. ( 34 ) ON the other hand, Smt. Pramila, learned counsel for respondent 1 argued that the wording of article No. 20 of 1991 would clearly go to show that it has got retrospective effect. It is pointed out by the learned counsel that the legislature has got the supreme power and the same is valid. The learned counsel has placed reliance on the decision in Smt. Indira nehru gandhi v Shri RAJ narain, AIR 1975 SC 2299 . On a careful consideration of the submissions made by the learned counsels on either side and after going through the various decisions pressed into service at the bar by the learned counsels, i find that it s difficult to accept the submissions made by Sri desai, the learned counsel for the petitioner. ( 35 ) THE Provisions of act No. 20 of 1991 are already extra ctedhere in above. The question as to what is the intention of the legislature in enacting the said piece of legislation will have to be gathered from the totality of the wordings reflected in the act. It is no doubt true that Section 1 (2) has not stated that it should be deemed to have come into force with effect from a particular past date. If it was so stated then it would not have been certainly necessary for the legislature to state that the words "pradhana and upa-pradhana of mandal panchayat" shall be deemed to have been inserted with effect from the 14th day of August 1985. However, the modus operandi adopted by the legislature with reference to act No. 20 of 1991 should not leave any doubt in anybody's mind as regards as to what the legislature means. When the actual amending clause clearly says that the words in question should be deemed to have been inserted with effect from the 14th day of August 1985 it is clear that the legislature has given retrospective operation to the same. When the actual amending clause clearly says that the words in question should be deemed to have been inserted with effect from the 14th day of August 1985 it is clear that the legislature has given retrospective operation to the same. Might be that the drafting technique adopted in this particular piece of legislation is different from the techniques adopted in some other similar pieces of legislation where retrospective effect is sought to be given. However, the same should not make any difference as long as the intention of the legislature can be clearly spelt out from the totality of the wordings reflected in the particular piece of legislation. Under these circumstance, I am not impressed by the submission made by Sri desai, learned counsel for the petitioner. (emphasis supplied) ( 36 ) IT is true that a validating clause like, the one found in act No. 5 of c1968 which was enacted for the prevention of disqualification of membership of the state legislative assembly by the legislature of Rajasthan is not found in act No. 20 of 1991. However, it is significant to notice here that the said act brought into being by the legislature of Rajasthan was enacted after a judgment was already given by the high court against the successful candidate in the election and when the matter was actually pending before the Supreme Court. The significance of validating clause in the said act will have to be appreciated in the context of the said circumstance. Such is not the situation here. No judgment was yet passed against anybody with reference to the election in question in the instant case when act No. 20 of 1991 was enacted by the Karnataka state legislature. Sri desai, learned counsel, however, submitted that validating clause will be necessary not merely in the context of the judgments of a court of law or tribunal, but also in the context of an administrative order. The learned counsel argued that under Section 100 (1) (d) of the act improper acceptance of any nomination is also a ground for setting aside the election if the result of the election has been materially affected, in so far as it concerns a returned candidate. The learned counsel argued that under Section 100 (1) (d) of the act improper acceptance of any nomination is also a ground for setting aside the election if the result of the election has been materially affected, in so far as it concerns a returned candidate. Dilating on the same, the learned counsel argued that in the instant case, as on the date on which the nomination of respondent 1 was accepted by the returning officer he was clearly disqualified and that therefore, the acceptance of his nomination was an improper acceptance of nomination and that therefore, it was absolutely necessary to insert a validating clause in act No. 20 of 1991 and failure to incorporate such a validating clause is fatal. I am unable to agree with the submissions made by the learned counsel for the petitioner. Once when the alleged disqualification is removed on account of act No. 20 of 1991 which is deemed to have been operating on the date on which nomination was accepted, the acceptance of nomination of respondent 1 should be deemed to have been validly accepted. The question of incorporating a validating clause in act No. 20 of 1991 does not arise at all. There was no order either administrative or judicial operating against respondent \ on the date on which act No. 20 of 1991 was enacted with reference to his alleged disqualification. In that view of the matter question of incorporating any validating clause in act No. 20 of 1991 does not arise at all. Neither the decision in kanta kathuria's case, AIR 1970 SC 694 nor the decision in Sri p. c. mills ltd, 's case, AIR 1970 SC 192 is of any avail to the learned counsel for the petitioner. ( 37 ) IT is true that retrospective statute which affects rights in existence is not readily construed to affect adjudication of pending proceedings as pointed in the book "principles of statutory interpretation" at page 298 as also in the decision in united province's case, AIR 1941 fc 16. However, if the wording is so clear as regards the intention of the legislature to give retrospective effect to a piece of legislation, it will have to be given effect to. It would be indeed refreshing to cull out the paragraph under the caption "pending proceedings" in the aforesaid 'treatise' viz. However, if the wording is so clear as regards the intention of the legislature to give retrospective effect to a piece of legislation, it will have to be given effect to. It would be indeed refreshing to cull out the paragraph under the caption "pending proceedings" in the aforesaid 'treatise' viz. , "principles of statutory interpretation" by Justice g. p. singh. Under the caption "pending proceedings" it is observed therein as under:"a retrospective statute which affects rights in existence is not readily construed to affect adjudication of pending proceedings. The courts insist that to have that result the language should be sufficiently clear, although it need not be express. "courts have undoubtedly leaned very strongly against applying a new act to a pending action, when the language of the statute does not compel them to do so. In the words of s. r. das, c. j. : "the golden Rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a clalm in litigation at the time when the act was passed. "a careful perusal of the aforesaid paragraph would clearly go to show that it is not the law that retrospective operation is barred whenever and wherever a piece of legislation is brought into being during the pendency of a litigation. While it would be indeed correct to contend that the intention to give retrospective affect, should not be readily accepted by a court of law when the proceeding is pending, it would be wholly wrong to contend that such an intention should not be accepted even when the wordings of the piece of legislation are crystal clear and reflect such an intention. In fact, the observations culled out hereinabove which are practically the sum total of judicial decisions including the decision of the apex court support my observations. ( 38 ) FURTHER i also find that there is no substance in the submission madeby Sri desai that act No. 20 of 1991 is hit by the mischief of article l4 of the constitution. ( 38 ) FURTHER i also find that there is no substance in the submission madeby Sri desai that act No. 20 of 1991 is hit by the mischief of article l4 of the constitution. The decision in Shri bhagwandas sehgal v state of haryana and others, AIR 1974 SC 2355 which is pressed into service by the learned counsel in this behalf is not at all applicable to the facts of the instant case. Further the observation made in the said case also does not assist the learned counsel in making a submission like the one which he has made. In para 11 therein, the Supreme Court has held as under:"it is noteworthy that the status, administrative responsibilities and other conditions which go with the office of the chairman of the improvement trust are not the same as those of the members of the trust or other statutory bodies. The mere fact therefore, that for the purpose of removing the disqualification, the chairman of the improvement trusts have been put in clause (i) as a class separate from that of the members of the trust and other statutory bodies in clause (e) of Section 2 does not offend the guarantee of equal treatment enshrined in article 14 of the constitution. "in the instant case, it is not shown by Sri desai as to who are the persons other than pradhana and upa-pradhana of mandal panchayats who have been unjustly omitted from the classification to which the aforesaid two offices belong. Under these circumstances, it is obvious that the submissions made with reference to article 14 of the Constitution also cannot hold any water. For the aforesaid reasons, I have no hesitation whatsoever in holding that even if it is assumed that respondent 1 was holding an office of profit under the state government and thereby incurred disqualification to be chosen as and to be a member of the state legislative assembly, the said disqualification stands removed on account of the Provisions reflected in act No. 20 of 1991. ( 39 ) FOR the reasons stated hereinabove, i answer issue No. 1 by holding that respondent 1, basangouda held an office of profit, but he did not hold an office of profit under the state government on the date of nomination or election and even if it is assumed that he held an office of profit under the government, the same stands removed on account of the Provisions reflected in act No. 20 of 1991. ( 40 ) ISSUE No. 2. under this issue, in substance, it is required to be seenas to whether there are grounds for declaring that the election of respondent 1 is void. Section 100 of the act reads as under:"grounds for declaring election to be void. (1) subject to the Provisions of sub-section (2) if the high court is of opinion (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this act or the government of union territories Act, 1963 (20 of 1963); or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c)that any nomination has been improperly rejected; or (d)that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the Provisions of the Constitution or of this act or of any rules or orders made under this Act, the high court shall declare the election of the returned candidate to be void. (2) xx xx xx xx"it is therefore necessary to see as to whether the allegations made in the petition constitute the grounds adumbrated under Section 100 of the act and if so whether the same are established by acceptable evidence. The petitioner in his election petition has, among other things, alleged that respondent 1 indulged in corrupt practice such as, both capturing and rigging of booths. The petitioner in his election petition has, among other things, alleged that respondent 1 indulged in corrupt practice such as, both capturing and rigging of booths. It is asserted by him that respondent 1 and his supporters snatched the ballot papers from the presiding officer and after putting the 'x' mark against the symbol of bicycle they put them at the ballot boxes. It is also stated that on account of the complalnt filed in respect of both nos. 6 and 7 re-polling took place in relation to those booths on 26-11-1989. It is further stated that in several instances after entering the polling booths, respondent 1 and his supporters have prevented the voters from exercising the franchise and sent them away threatening them and thereafter seized the ballot papers from the officials and after putting the 'x' mark seal against the symbol of bicycle, they put them in the ballot boxes. It is also stated that respondent 1 and his supporters put their thumb impressions or forged signatures on the counterfolls of the ballot papers and on some counterfolls no signatures were affixed. It is also stated that complalnts were not filed in respect of the other polling booths referred to above (other than polling booth nos. 6 and 7) either on account of the fact that the said officals were afraid of respondent 1 and his henchmen or that they were colluding with respordent 1 and his men. It is further stated that polling percentage in the aforesaid polling booths proved to be abnormally high and respondent 1, basangouda polled in the said polling booths in the range of 80% to 99% of the votes polled. It is also stated that the votes of dead persons and persons out of station on the date of election were also got cast in the process of rigging the votes in those particular booths. These are the sum total of the allegations relevant for consideration with reference to the question as to whether there are grounds for declaring the election of respondent 1 as void. ( 41 ) A perusal of the allegations marshalled hereinabove would go to show that it is the specific cases of the petitioner that there was rigging and booth capturing. ( 41 ) A perusal of the allegations marshalled hereinabove would go to show that it is the specific cases of the petitioner that there was rigging and booth capturing. At this juncture, it is necessary to notice here that booth capturing by a candidate or his agent or other persons is included in the definition of 'corrupt practice' under Section 123 of the act. Section 123 (8) of the act provides that booth capturing by a candidate or his agent or other person shall be deemed to be corrupt practice for the purpose of the act. It is necessary to point out here that though the expression 'rigging' is not defined or explained in the Act, the meaning of the expression 'booth capturing' is explalned in Section 135-a of the act. Section 135-a of the act will have to be read with explanation (4) to Section 123 (8) of the act. Explanation (4) to Section 123 (8) provides that 'booth capturing' shall have the same meaning as in Section 135-a. Explanation to Section 135-a reads as under: "for the purpose of this Section, "booth capturing" includes, among other things, all or any of the following activities, namely: (a)seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections; (b)taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and prevent others from voting; (c)threatening any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote; (d)seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes; (e)doing by any person in the service of government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate. "it is significant to notice here that the wording of the explanation to Section 135-a of the act would go to show that inclusive definition is not exhaustive but is only indicative. However, it is pertinent to notice here that though the explanation to Section 135-a of the act is not exhaustive but is indicative, the same, however, throws a lot of light on the various facets of 'booth capturing'. A careful perusal of clause (a) to the explanation to Section 135-a culled out hereinabove would clearly go to show that the seizure of polling station or making the polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of election, would amount to booth capturing. It is therefore clear that snatching of ballot papers from the polling officers and putting the seal on the ballot papers in front of the symbol of a particular candidate and thereafter putting the same in the ballot boxes would clearly fall within the compass of the said expression. It is also clear that the act of preventing the voters from voting at the polling booths would fall under the expression "any other act which affects the orderly conduct of election" employed in clause (a) of explanation to Section 135-a of the act. It is also noticed here that the expression 'rigging' though not a matter of definition or explanation in the act is such as would broadly fall within the same frame. Haying regard to what is stated hereinabove, it can be stated that the allegations reflected in the petition would reflect the grounds under Section 100 read with Section 123 of the act. I hasten to add here that the question as to whether the petition contains a concise statement of all the material facts on which the petitioner relies and the question as to whether the petitioner has set forth full particulars of corrupt practice that the petitioner has alleged, are questions which will have to be considered separately. (emphasis supplied) ( 42 ) SMT. Pramila, learned counsel for respondent 1 contended that the petitioner in his election petition has not complied with the requirements of Section 83 of the Act, in that, he has not given a concise statement of all the material facts and has also not given the full particulars of corrupt practice alleged by him. (emphasis supplied) ( 42 ) SMT. Pramila, learned counsel for respondent 1 contended that the petitioner in his election petition has not complied with the requirements of Section 83 of the Act, in that, he has not given a concise statement of all the material facts and has also not given the full particulars of corrupt practice alleged by him. Dilating on this aspect, the learned counsel submitted that whenever corrupt practice is alleged in an election, the petitioner is required to give the mode of corruption, the measure of corruption, the manner of corruption, the type of corruption, the date of corruption and the time of corruption and the like. The learned counsel in this connection, has placed reliance on a recent decision of this court in g. Shankaregowda v Shri rathan singh, 1992 (3) kar. L. j. 378 : ILR 1992 (3) kar. 2565. Reliance is also placed on the decision in samant n balakrishna, etc. V george fernandez and others, AIR 1969 SC 1201 ; the decision in azhar hussain v rajiv gandhi, AIR 1986 SC 1253 and the decision in dhartipakar madan lal agarwal v Shri rajiv gandhi, AIR 1987 SC 1577 . On the other hand, Sri desai, learned counsel for the petitioner submitted that the allegations made in the petition meet all the requirements of Section 83 of the act. Dilating on this aspect, the learned counsel submitted that it is only material facts which are required to be pleaded and not the evidence by which the same are sought to be proved. Similarly, it is pointed out by Sri desai that the particulars required to be given are the particulars which can be properly called as "material particulars. " the learned counsel also submitted that particulars like source of information with reference to a particular allegation and the like are not required to be pleaded. In this connection, the learned counsel has relied on a decision in naresh kumar v prakash narain aswathi and others, AIR 1988 all. 102 . The learned counsel also invited the attention of this court to the decision in roop lal sathi v nachhattar singh, AIR 1982 SC 1559 . It is pointed out by the learned counsel that the court has got ample power to direct the parties to give better particulars with reference to the allegations. 102 . The learned counsel also invited the attention of this court to the decision in roop lal sathi v nachhattar singh, AIR 1982 SC 1559 . It is pointed out by the learned counsel that the court has got ample power to direct the parties to give better particulars with reference to the allegations. The learned counsel also argued that none of the decisions pressed into service by the other side on this aspect is applicable to the facts of this case. ( 43 ) IN the context of the submissions made at the bar with reference to the aspect touched upon immediately hereinabove, I am of the view that it would be convenient to consider this aspect while appreciating the evidence on record, that is so because, the appreciation of evidence in this case and the submission made with reference to Section 83 of the act are in a way inextricably mixed up with each other. ( 44 ) THE petitioner has relied on oral evidence and documentary evidence in, support of the allegations made in the petition. The oral evidence comprised of the evidence of petitioner and 13 other witnesses. Petitioner has also relied on the documents marked at ex. P. 1 to p. 17. I may point out here that no document is marked as ex. P. 13 under the circumstances referred to in the order sheet dated 4-2-1993. In otherwords, there is no exhibit like ex. P. 13. The contents of the order in the order sheet dated 4-2-1993 are clear in this behalf. Respondent 1 has also examined himself apart from examining 20 witnesses. Two documents viz. , ex. R. 1 and ex. R. 2 are marked for himself. I may point out here that ex. R. 1 is a part of ex. P. 7; ex. R. 2 is nothing but a printed copy of Karnataka Act No. 20 of 1991. ( 45 ) PETITIONER-DR. Amarkhed has examined himself as p. w. 1. Admittedly he is not an eye witness. However, he has spoken as regards his having visited booth No. 5 at googehal and some other polling booths. P. 7; ex. R. 2 is nothing but a printed copy of Karnataka Act No. 20 of 1991. ( 45 ) PETITIONER-DR. Amarkhed has examined himself as p. w. 1. Admittedly he is not an eye witness. However, he has spoken as regards his having visited booth No. 5 at googehal and some other polling booths. It is in his evidence that he found some 100 and more voters from parsapur when he visited polling booth No. 5, and that they told him that they arrived at the polling booth to cast their votes, they found that somebody had already cast their votes. It is also his version that they told him that large scale booth capturing and rigging were going on in that belt and that he (p. w. 1) should be visited. He says that he went to the presiding officer at booth No. 5 and told him to lodge a complalnt. He has also spoken as regards his having went to chikkadinni-polling booth No. 7 and about the polling officer having told him to the effect that 10 to 20 people entered the booth and after threatening him (polling officer) they took away the ballot papers and affixed the cycle symbol and put the votes in the ballot boxes. He has also made a reference to the copy of the complalnt at ex. P. 3 said to have been lodged by the said presiding officer. He has also referred to his having gone to booth No. 6 at hiredinni. It is his version that the atmosphere there was tense and he asked the presiding officer to be vigilant. He has also spoken as regards the copy of the complalnt at ex. P. 7, said to have been given by the presiding officer at booth No. 6, at hiredinni. He has spoken as regards his having moved to the other booths like, bagwad, gavigatti, janekal and other polling stations. It is his version that in those stations and particularly at gavigatti he was told by his supporters that the followers of respondent 1 had broken into the polling booths forcibly and removed the ballot papers and votes were cast on behalf of respondent 1 by those people during his visit. It is his version that in those stations and particularly at gavigatti he was told by his supporters that the followers of respondent 1 had broken into the polling booths forcibly and removed the ballot papers and votes were cast on behalf of respondent 1 by those people during his visit. He has also referred to the polling pattern in the places coming under the bagalwad mandal panchayat, of which, respondent 1 was the chairman at the relevant point of time. It is also his version that thereafter he went to manvi and he met the presiding officer and also the c. i. of police and asked them to check up if re-poll could be held. P. w. 2-ammaji is a witness who has spoken as regards his having seen respondent 1-basanagouda and naganagouda along with 10 to 15 persons alighting from the lorry and respondent 1 asking naganagouda to get all his brothers and about respondent 1 having instructed naganagouda to make sure that none of the voters voted and to see that all the votes are cast by his men. P. w. 2 has spoken with reference to the incident at gavigatti polling booth. P. w. 3-kariappa is another witness. He has also spoken about as to what transpired at gavigatti. In sum his evidence is that when he and others went to the polling booth at gavigatti at or at about 8. 30 a. m. he found basanagouda and naganagouda and others outside the building and basangouda and naganagouda told him and others who have there with men that if they (p. w. 3 and his companions) cast their votes, their legs would be broken. It is also his version that safety for his life and him they returned without casting their votes. P. w. 4-basavantha is another witness who has spoken as regards as to what transpired on that day at aidal. It is his version that on the date of poll he had been to the polling booth at that place and when he and others were visited the polling booths, basanagouda and naganagouda along with 20 persons entered polling booth and snatched the ballot papers from the polling officer and asked their followers to affix the seal to the cycle mark. It is also his version that he and his companions were threatened by respondent 1 and his supporters. It is also his version that he and his companions were threatened by respondent 1 and his supporters. P. w. 5-neelappa has spoken as regards as to what, according to him, transpired at janekal. According to him, he had gone to the polling booth at or at about 9. 30 a. m. and it is the version that one shankarappa was not permitted to vote by the presiding officer on the ground that his name was not found in the electoral roll. He has spoken as regards he and others having cast their votes. It is his version that when he was insides the polling booth respondent 1 accompanied by naganagouda and his brother basanthagouda along with 10 to 15 persons entered the booth. Basanagouda thereafter snatched the ballot papers from the polling officer and asked his companions to mark the votes against the cycle symbol and anticipating some trouble he (p. w. 5) and his friends came out of the polling booth. P. w. 6-shankarappa has also spoken as regards as to what transpired at janekal. His version is similar to the one given by P. W. 5-neelappa. P. w. 7-malabasavaiah has spoken as regards as to what transpired at the polling booth at bagwad. He was not an eye witness to the incident as such. However, it is his version that he was the polling agent of janatha dal and he went to polling booth No. 94 at 7. 30 a. m. and he visited the polling booth nos. 95 and 96 also and finally settled at polling booth No. 94. It is his version that at about 10. 15 a. m. he left the polling booth to go to his house to take lunch etc. , and little later somebody came and told him that gavigatti gowda and basanagouda were casting votes for themselves. It is also his version that when he went back to the booth he could not find them first he wanted to know from the polling officer as regards as to what he has been told but the polling officer, according to him, (p. w. 7), neither affirmed nor denied the same. P. w. 8-hanumantha is a witness who has spoken as regards as to what transpired in the polling booth at maladgud. P. w. 8-hanumantha is a witness who has spoken as regards as to what transpired in the polling booth at maladgud. It is his version that when he went to the polling booth he noticed basanagouda and ganchingatti nagegowda with about 10 to 12 persons entering the polling booths and thereafter basanagouda-respondent 1 and naganagouda snatching the ballot papers from the polling officers and giving the same to their followers and marking the votes on the cycle symbol and thereafter their affixing the mark against the cycle symbol and putting them in the ballot boxes. P. w. 9-venkoba is another witness examined on behalf of the petitioner as regards as to what, according to him, has transpired in the polling booth relating to bagalwad. He has also spoken about his noticing basanagouda- respondent 1 and naganagouda along with 10 to 15 supporters and snatching the ballot papers from the officers and about respondent 1 directing his followers to affix the seal on the bicycle symbol. P. w. 10-shankarappa is another witness who is examined on behalf of the petitioner. He has also spoken as regards as to what transpired in the booth relating to bagalwad. His version is that when he went to the poll along with his friends there was a lot of commotion in the polling booth and at that stage bagwad basavanagowda raised a hue and cry and asked the people to affix their votes for the cycle symbol. P. w. 11-mallappa who was allegedly the polling agent of respondent 1 basanagouda has spoken as regards as to what he did on the instructions of respondent 1. It is his version that he and one virupakshappa took charge as polling agents of respondent 1. The polling took place in a calm atmosphere till 8. 30 a. m. and thereafter basanagowda and naganagouda came inside the polling booth and after entering the booth, basanagouda took away the ballot"papers from the officers and handed over it to naganagouda with instructions to mark all the votes in favour of his party to the cycle symbol and that the polling officers and others remained quiet fearing the manhandling by basanagouda who had beaten up some officers at the elections in 1974. He has also stated that thereafter both naganagouda and basanagouda told his colleague virupakshappa that it was his responsibility to see that all the votes are marked on cycle symbol and thereafter they left the booth and went elsewhere. It is his version that thereafter following the instructions of two gowdas, he and others put the seal on the cycle symbol and thereafter at about 11. 00 or 12. 00 noon he left the booth, and again he returned to the booth at about 3. 00 p. m. and at 4. 00 p. m. a follower of basanagouda-respondent 1 came there with instructions asking him and virupakshappa to see that all the remaining votes for the assembly constituencies are cast against the cycle symbol of basanagouda and thereafter he and virupakshappa marked about 100 ballot papers each casting the votes in favour of the cycle symbol of basanagouda. P. W. 12-h. Basavaraj is not an eye witness to any incident. He has spoken as regards his having consulted his Advocate as to whether he could contest the election, but on the advice of his lawyer that he had to resign the post of upa-pradhana if he wanted to contest the election, he did not take part in the election. P. w. 13-dr. M. t. manjunath was the presiding officer relating to booth No. 6-hiredinni. He has deposed as regards as to what transpired on 24-11-1989 at the polling booth at hiredinni. He has stated that the polling went on smoothly till 3. 00 p. m. and around 3. 00 p. m. a crowd of 30 people rushed into the booth with the result, the people who were standing in the queue for voting ran away from the booth. He has stated that the polling went on smoothly till 3. 00 p. m. and around 3. 00 p. m. a crowd of 30 people rushed into the booth with the result, the people who were standing in the queue for voting ran away from the booth. He has also stated that on entering the booth the mob snatched the ballot papers available with the polling officer and at that stage on noticing the commotion he locked up the suitcase in which ballot papers had been kept and thereafter when he tried to get up from his chair to see as to what was happening, the crowd pushed him back to his chair and thereafter the mob forced him to surrender the ballot papers but he resisted and at that stage five people out of the crowd produced appointment orders appointing them as polling agents and while he was scrutinising them the other members in the crowd snatched away the appointment orders also and at that stage a number of other people also came inside the booth. It is his version that then one among the crowd asked him his name and some others who were with him threatened to do away with him unless he surrendered the ballot papers and he had therefore to surrender the ballot papers because of the alarming situation that developed. He has also stated that he gave away 466 of papers of assembly constituency. He has also stated that the people pushed (presumably put) them into the ballot box. According to him, the incident took place between 3 to 5 p. m. he has also stated that the mob engaged themselves in putting the ballot papers into the boxes with shouting the names of the candidates. It is his version that after the polling was over he went to manvi and gave a complalnt to the returning officer outlining the events that had taken place and on the basis of his complalnt a criminal case was registered. P. w. 14-basaiah siddaramaiah bidarimath, the returning officer who has spoken as regards his having received the complalnts from the two presiding officers relating to polling station nos. 6 and 7 in manvi assembly constituency. It is also his version that he contacted the district election officer viz. P. w. 14-basaiah siddaramaiah bidarimath, the returning officer who has spoken as regards his having received the complalnts from the two presiding officers relating to polling station nos. 6 and 7 in manvi assembly constituency. It is also his version that he contacted the district election officer viz. , the deputy commissioner of raichur district and has directed by the district election officer, he seized all the election materials, that is to say, the polling materials of both the polling stations viz. , polling booth nos. 6 and 7 and has directed by the district election officer, re-polls were held in polling station nos. 6 and 7 on the very next day. He has also spoken as regards as the final result sheet relating to 3-raichur parliamentary constituency which is at ex. P. 14. He has also spoken to the other aspects. He has been cross-examined in great detail and the answers elicited in the course of the cross-examination will be referred to at the appropriate stage. ( 46 ) THE petitioner apart from examining the witnesses referred to here in above has also got marked the documents from ex. P. 1 to p. 17. Ex. P. 1 is the document reflecting the return of election; ex. P. 2 is a copy of the letter of resignation dated 6-12-1989 already referred to earlier. Ex. P. 3 is a complalnt dated 24-11-1989 relating to polling booth No. 7; ex. P. 4 is the fir connected with the same; ex. P. 5 is the final result sheet; ex. P. 6 is the copy of the comparative statement showing the votes polled by the petitioner and respondent 1; ex. P. 7 is a copy of the complalnt dated 24-11-1989 said to have been given by P. W. 13 relating to the alleged incident at hiredinni polling booth No. 6; ex. P. 8 is the voters list regarding googebal-polling booth No. 5; ex. P. 9 is the letter dated 14-11-1991 to Dr. Amarkhed by the chief secretary, zilla parishad, raichur with reference to the particulars sought by the former relating to the letter of resignation and its acceptance; ex. P. 10 to 12 are the voters lists relating to polling booth nos. 94,95 and 96 of byagwat. As pointed out earlier ex. P. 13 does not exist (vide order sheet dated 4-2-1993 ). Ex. P. 14 is form No. 20; ex. P. 10 to 12 are the voters lists relating to polling booth nos. 94,95 and 96 of byagwat. As pointed out earlier ex. P. 13 does not exist (vide order sheet dated 4-2-1993 ). Ex. P. 14 is form No. 20; ex. P. 15 is the original resignation letter given by respondent 1 to the deputy commissioner; ex. P. 16 is the voters list of parliament in relation to the 23-manvi assembly constituency. Ex. P. 17 is the certificate for payment of Rs. 2,000/ -. ( 47 ) AS pointed out earlier, respondent 1 has also chosen to exam in ehimself and his witnesses. The evidence of r. w- 1 to r. w. 21 exhaust the oral evidence putforth by respondent 1. At this juncture it will suffice if it is observed that the evidence adduced on behalf of respondent 1 is negatived in character and that therefore, it is not necessary to refer to the evidence of each and every witness examined on behalf of respondent 1 at this stage. It will suffice if the evidence is referred to at a later stage while considering the question as to whether the evidence adduced on behalf of the petitioner alluded to hereinabove is acceptable. ( 48 ) HAVING referred to the compendium of the evidence of the witnesses examined on behalf of the petitioner both oral and documents it is necessary to see as to whether the same is sufficient to prove the allegation of the petitioner with respondent 1 indulged in rigging and booth capturing. ( 49 ) SRI desai, learned counsel for the petitioner submitted that theevidence of each of the witnesses examined on behalf of the petitioner is free from blemish and that nothing is elicited in the course of the cross-examination of any of these witnesses, which would render their evidence untrustworthy. The learned counsel submitted that when a witness is examined on oath, the presumption is that he has told the truth and it is for the other side to displace this presumption by any of the modes known to law and if the other side is not successful in displacing the said presumption the evidence putforth by the witnesses will have to be accepted. The learned counsel submitted that the evidence of the different eye-witnesses to the incident is also rendered probable by certain circumstances. In particular, the learned counsel placed reliance on ex. The learned counsel submitted that the evidence of the different eye-witnesses to the incident is also rendered probable by certain circumstances. In particular, the learned counsel placed reliance on ex. P. 3 to ex. P. 7, certified copies of the complalnts with reference to the incident alleged to have taken place at chikkadinni and hiredinni respectively. Sri desai, learned counsel has also relied on the related evidence of P. W. 13-dr. Manjunath who was a presiding officer at hiredinni. The learned counsel also submitted that the polling pattern reflected in ex. P. 6, to wit, the certified copy of the comparative statement showing the votes polled by the petitioner and respondent 1 in polling booth nos. 5,68,73,74,88,91,92,93,94,95,96,100,102,103 and 103 of 23- manvi assembly constituency, would lend great assurance to the evidence of the different witnesses examined on behalf of the petitioner. Dilating on this aspect, the learned counsel submitted that the same would go to show that the petitioner has, polled ridiculously low number of votes in these polling booths in particular, whereas, respondent 1- basanagouda has polled enormously large number of votes in these polling booths. The learned counsel argued that if the polling pattern with reference to these polling booths is juxtaposed with reference to the other polling booths, the same would present a striking difference in the pattern of polling in the two sets of polling booths and the same, according to Sri desai, would lend assurances to the assertion of the petitioner that there was booth capturing and rigging in the polling booths reflected in ex. P. 6 and would lend assurances to the oral evidence of the witnesses examined on behalf of the petitioner. The learned counsel also submitted that if the returning officer for 3- raichur parliamentary constituency, that is to say, the deputy commissioner, raichur is summoned directing him to produce form No. 16 (part-i and part-ii) mentioned under Rule 45 of the conduct of election rules, 1961, the same would confirm the oral evidence of the witnesses. Making his submissions on these lines, the learned counsel submitted that it is a pre- eminently fit case for setting aside the election. Making his submissions on these lines, the learned counsel submitted that it is a pre- eminently fit case for setting aside the election. ( 50 ) ON the other hand, Smt. Pramila, learned counsel for respondent 1 contended that the evidence adduced on behalf of the petitioner is vague and in an election petition it would be hazardous to rely on the oral evidence of witnesses much less on the evidence of interested witnesses. The learned counsel also pointed out that the documents admitted in evidence before the court are not of any consequence and that the same cannot by any stretch of imagination be availed of by the petitioner to establish that respondent 1 is guilty of corrupt practice. It is also argued by the learned counsel that much of the evidence sought to be let in by the petitioner is the evidence with reference to a fact which is not pleaded. It is argued by Smt. Pramila that there cannot be any variance between pleading and proof. The learned counsel also submitted that the proof required in an election petition against the respondent is akin to the proof required against an accused in a criminal case. In support of her submission the learned counsel has relied on certain decisions which will be referred to at the appropriate place hereinbelow. ( 51 ) I have given a serious thought to the submissions made by the learned counsels on either side. The variousjdecisions of the Supreme Court referred to immediately hereinabove make it clear that a charge of corrupt practice is in the nature of a criminal charge and as such a very catious approach must be made and that the charge must be established beyond a pale of doubt, almost like a criminal charge (vide: ram singh and others v col. Ram singh, AIR 1986 SC 3 , para 222 ). It is also necessary to remember that proof beyond reasonable doubt does not mean proof to the point of perfection. The expression "proof beyond reasonable doubt" should not be stretched to such an extent as to make it almost impossible to prove the charge of corrupt practice in every case (vide: s. Harcharan singh v s. Sajjan singh and others, AIR 1985 SC 236 , para 64 ). The expression "proof beyond reasonable doubt" should not be stretched to such an extent as to make it almost impossible to prove the charge of corrupt practice in every case (vide: s. Harcharan singh v s. Sajjan singh and others, AIR 1985 SC 236 , para 64 ). At this juncture it is also necessary to remember that often time it becomes difficult to place implicit reliance on the evidence of any witness, more so, at the hearing of an election petition, since elections are fought out on party lines and individuals are having their own political leanings. In the decision in hallu and others v state of madhya pradesh, AIR 1974 SC 1936 , the Supreme Court has, among other things, held as follows:"it is generally not easy to find witnesses on whose testimony implicit reliance can be placed. It is always advisable to test the evidence of witnesses on the anvil of objective circumstances in the case. " ( 52 ) BEARING in mind what is stated hereinabove, it will have to be seen asto whether the evidence alluded to earlier stands the test of the principles lald down in the decisions referred to hereinabove. ( 53 ) AS seen earlier, the petitioner is not an eye witness to any incident. Hehas only spoken as regards his having visited certain polling booths and about his having come to know as regards booth capturing by respondent 1 and his supporters at some places. However, even in the course of his evidence let alone in the petition, the petitioner has not stated as to who gave him the information though, he has stated that among the crowd of people who met him at gavigatti and informed him about the alleged illegal activities in the booth, were gundappa and narasappa. However, he has not chosen to examine either of them. It is also necessary to notice here that, though according to the petitioner, he came to know aboutbooth capturing he has not given any report in writing about the same, though he met the returning officer at manvi at 5. 00 p. m. on the date of election. He has no doubt, stated that he made an oral report to him (returning officer ). 00 p. m. on the date of election. He has no doubt, stated that he made an oral report to him (returning officer ). However, it is noticed that P. W. 14-bidarimath who was the returning officer for manvi assembly constituency and who is examined as a witness for the petitioner has stated in the course of his cross-examination as under:"on the polling day Dr. Amarkhed had casually come. It was in the afternoon. However, it was before the closure of the poll. He had come with somebody, i do not know who that somebody was. Dr. Amarkhed did not complaln anything as regards any matter with reference to polling station nos. 5, 6, 7,68, 73,74, 78, 88,91,92, 93, 94,103,104,105 and 75. He did not complaln to me either in writing or orally. " ( 54 ) IT is also necessary to point out here that petioner has also admitted in the course of his cross-examination that he has not made any complalnt in writing to the election commissioner, chief electoral officer, returning officer, presiding officer etc. , touching the irregularities complalned of in the petition. In my opinion the conduct of the petitioner is one of the important objective circumstances which casts its shadow on the totality of the evidence. If really incidents had taken place as alleged, it is natural to believe that he would file his written complalnts or reports at the earliest to all concerned, having regard to the course of common conduct and human nature. ( 55 ) P. W. 2-ammaji whose evidence was summarised earlier and who hasspoken as regards the alleged booth capturing at gavigatti is a person who, according to whose own showing in the course of cross-examination, had worked for Dr. Amarkhed in the election. Apart from that it is also necessry to point out here that P. W. 11-mallappa who has also spoken as regards as to what transpired at gavigatti (booth No. 103) has stated in the course of his cross-examination that P. W. 2-ammaji was not present in booth No. 103. Further P. W. 3-kariappa who is also a resident of the same village, that is to say, gavigatti does not speak about either the presence of ammaji P. W. 2 or about having met him on that day. These are circumstances which should put the court on guard. Further P. W. 3-kariappa who is also a resident of the same village, that is to say, gavigatti does not speak about either the presence of ammaji P. W. 2 or about having met him on that day. These are circumstances which should put the court on guard. P. w. 3-kariappa, as noticed earlier, is another witness who has spoken as regards as to what transpired at gavigatti. Though he has repeated practically the same version which was narranted by P. W. 2, his evidence also sufferes from certain infirmity. His name is not remotelly referred to by Dr. Amarkhed in his evidence. It is also not the version of the witnesses that he had informed Dr. Amarkhed as regards as to what, according to him, transpired at gavigatti. Under these circumstances, it is not quite clear as regards as to how this person was identified as a witness in the alleged incident. It is also necessary to notice here that it is the evidence of P. W. 2- ammaji that when he was going to the polling booth, he met some persons of his village who were coming out of the school and they told him that they were prevented from voting. However, P. W. 3 does not even remotely refer to the same. Under these circumstances, it becomes difficult to say that his evidence is free from doubt. One other witness who has spoken as regards as to what transpired at gavigatti (polling booth), is P. W. 11-mallappa. The gist of his evidence in his examination-in-chief is already referred to earlier. This witness is said to be polling agent of respondent 1. He has chosen to speak for the petitioner. This itself is a circumstance which should put the court on guard in the light of the observations made by the Supreme Court in pratap singh v hardwari lal, AIR 1970 SC 1500 , para 47. Respondent 1 and r. w. 21- channappa who was the election agent of respondent 1, in particular, have stated that P. W. 11 mallappa was not the polling agent of respondent 1. No document is also produced or got summoned to confirm his presence there at the polling booth and to probabilise his version that he was the polling agent of respondent 1. No document is also produced or got summoned to confirm his presence there at the polling booth and to probabilise his version that he was the polling agent of respondent 1. Further, it is necessary to notice here that P. W. 2-ammaji, who according to P. W. 11, is known to him does not even remotely refer to the presence of P. W. 11 in the course of his evidence. P. w. 3 has also not spoken as regards the presence of P. W. 11-mallappa. It is also pertinent to note here that P. W. 11 has asserted in the course of his cross-examination that one m. k. desai was not the polling agent of Dr. Amarkhed. However, P. W. 2 has admittedin his cross-examination that m. k. desai was the polling agent of congress-i petitioner was a candidate for congress-i. Further it is necessary to point out here that the version given by P. W. 11 in the course of his examination-in-chief as also the version given in the course of his cross- examination particularly with reference to the sequence of events which had allegedly taken place at gavigatti would also dilute his evidence. The version given by P. W. 2-ammaji and P. W. 3-kariappa is already referred to earlier with reference to the beginning of the sequence of events that took place at gavigatti, P. W. 11-mallappa has elicted in the course of his examination-in-chief, among other things, as under:"the polling began at 8-00 a. m. I was given a voters' list, then i went and sat inside the booth. The polling took place in a calm atmosphere till 8-30 a. m. thereafter basanagouda and nagangouda accompanied by 10 or 12 people came inside the polling booth. After entering the booth basanagouda took away the ballot papers from the officers and handed it over to nagangouda with instructions to mark all the votes in favour of his party and the cycle symbol. The polling officer and others remained quiet, fearing manhandling by basavangouda who had beaten up some officers at the elections in 1974. Thereafter both nagangouda and basangouda told my colleague virupakshappa that it was his respnsibility to see that all the votes are marked on cycle symbol. After this, they left the booth and went elsewhere. Thereafter following the instructions of the two goudas i and others put the seal on the cycle symbol. Thereafter both nagangouda and basangouda told my colleague virupakshappa that it was his respnsibility to see that all the votes are marked on cycle symbol. After this, they left the booth and went elsewhere. Thereafter following the instructions of the two goudas i and others put the seal on the cycle symbol. Thereafter at about 11 or 12 noon i left the booth and went to my house to take my food. Till i left the booth nobody in the village came into the booth fearing the hostility of the candidate basavangouda. Again i returned to the booth at about 3 p. m. at about quarter to four polling for both the assembly and parliament had stopped. By then 575 votes had been registered. At four p. m. a follower of basavangouda (r1) came there with instructions asking us to see that all the remaining votes for the assembly constituencies are cast against the cycle symbol of basavanagouda. Thereafter i and virupakshappa marked about 100 ballot papers each casting the votes in favour of the cycle symbol of basavanagouda and put them in the ballot boxes and sealed it. "in the course of his cross-examination, among others, it is elicited as under;"basavangouda and nagangouda came to the polling booth at about 8. 30 a. m. on that day and stayed in the booth for about 10 minutes. I now say that i did not leave the polling booth after basavangouda left the polling booth to go elsewhere. Isay that i remained in the booth even after those people left. I might have marked 10 or 15 papers against the cycle symbol. After nagangouda and basavangouda left the booth i affixed seals against cycle symbol on 10 to 15 ballot papers. I might have affixed the seals to the 10 or 15 ballet papers referred to above between 3 p. m to 5 p. m. i took those ballot papers and marked them up because I was the polling agent in that place. The polling officers saw me taking those ballot papers into my hands. There were two or three boys inside the polling booths. Those boys signed the counterfolls of the ballot papers and handed over the ballot papers to me. Those boys are veerangouda, mallikarjuna, shivaraj and basavaraj, i know that I could not exercise other's votes. I did not inform Dr. There were two or three boys inside the polling booths. Those boys signed the counterfolls of the ballot papers and handed over the ballot papers to me. Those boys are veerangouda, mallikarjuna, shivaraj and basavaraj, i know that I could not exercise other's votes. I did not inform Dr. Amarkhed that I have dealt with and marked votes of other persons on the date of poll. Before i left the booth at about 12 noon some 300 to 350 votes had been cast. By the time i returned to the booth nearly 500 and odd votes had been cast. From 3 to 5 p. m. nobody turned up at the booth to cast votes. It is true that between 3 to 5 p. m. i had marked 100 ballot papers in favour of cycle symbol and thereafter sealed up the ballot boxes. "if one reads between the lines the portion of the evidence of P. W. 11 in the course of his examination-in-chief and in the course of cross-examination culled out hereinabove, one will not fail to find something unusual in it. The answers elicited in the course of cross-examination would give an impression that it is P. W. 11 who at his own with the help of some three boys did, what he said he had done. It is needless to say that the court is expected to read the evidence from the crucible of probabilities. Further it is necessary to point out here that there would be polling officer and presiding officer in a polling station. Further it is not anybody's case that there was a mob at gavigatti polling booth in the afternoon. In that context, it would be indeed difficult to believe that three boys can take away the ballot papers from the polling officer or from the presiding officer and would help mastermind the operation. It is also necessary to mention here that neither the presiding officer nor any of the polling officer nor even the polling agent of Dr. Amarkhed filed any complalnt to the police or to the returning officer. Further P. W. 1 also has complalned regarding the same when he met P. W. 14-badarimath as deposed to by P. W. 14 himself. Further p. w, 1's evidence goes to show that he was a candidate for congress-i and m. k. desai was the polling agent at gavigatti. Further P. W. 1 also has complalned regarding the same when he met P. W. 14-badarimath as deposed to by P. W. 14 himself. Further p. w, 1's evidence goes to show that he was a candidate for congress-i and m. k. desai was the polling agent at gavigatti. This is clear from the evidence of P. W. 2-ammaji. It is significant to notice here that P. W. 1 has not even remotely stated in the course of his evidence that m. k. desai had told him as regards anything that is said to have transpired at gavigatti. Further as pointed out earlier, Sri m. k. desai is not examined. All the circumstances if appreciated in conjunction the same would indeed cast a cloud on the evidence of P. W. 11-mallappa. What is more; r. w. 17-veeranagouda who is said to be the polling agent of respondent 6 at gavigatti has stated that there was no untoward incident and , polling went on smoothly. He has stated that P. W. 11 had just come to polling booth, cast his vote and went away. It is significant to notice that respondent 6-sanjeev naika though has filed written statement has not stepped into the witness box to deny the same. Under the circumstances, the evidence of r. w. 17 gains credibility. In so far as the polling booth at aidal is concerned, it is seen earlier that P. W. 4-basavantha roy has spoken as regards as to what, according to him, transpired there at aidal. However, it is noticed that in the course of his cross-examination P. W. 14 has stated that he did not make any compliant to the police who were outside the polling booth touching the events of the day. He has also further stated that he also did not make any complalnt to Dr. Amarkhed. It therefore becomes enigmatic to know as to how this witness was identified as a witness to the alleged incident. This circumstance coupled with his conduct in not complalning to the police outside the polling station renders his evidence vulnerable. In so far as polling booth at janekal is concerned, it is seen earlier that P. W. 5-neelappa and P. W. 6-shankarappa have spoken as regards as to what transpired at the polling booth at janekal. However, it is relevant to notice that P. W. 1-dr. In so far as polling booth at janekal is concerned, it is seen earlier that P. W. 5-neelappa and P. W. 6-shankarappa have spoken as regards as to what transpired at the polling booth at janekal. However, it is relevant to notice that P. W. 1-dr. Amarkhed has not even remotely spoken as regards anything having been told by either of them. Further P. W. 5 has admitted that there was a policeman at the door of the polling booth. P. w. 5 did not chose to make any complalnt to him or to the p. s. or to Dr. Amarkhed. The evidence of P. W. 6 also suffers from the same infirmity. Apart from that, in the course of his cross-examination it is elicited, among other things, as under:"i do not know Dr. Amarkhed at all. I came to give evidence in the court today on my own volition. I was instructed to appear before court in connection with this case, by my lawyer Sri virupakshappa. The name of one person by name sharappa in the voter's list, i argued with the polling officer that sharappa refers to shankarappa. There was no name as shankarappa in the voter's list. I deny the suggestion that basavanagouda had not visited the booth on that day and nothing untoward incident took place at the booth on that day. I see the person who is before court, (counsel points out to Dr. Amarkhed, petr.) I say that i do not know that person. "the answers elicited as above, coupled with his conduct in not complalning to anybody does not inspire confindence to place implicit reliance in his evidence. It is also necessary to notice that there was a home-guard inside the booth and policeman outside the booth. Apart from that there would be polling officers and presiding officers. According to Dr. Amarkhed he had visited janekal. However, he has not stated anybody having told him anything about any untoward incident in the said polling booth. Further P. W. 14-returning officer has also stated that nobody has complained to him about any irregulairty except booth nos. 6 and 7. Under these circumstances, the evidence of P. W. 5 and P. W. 6 also is not of any assistance to the petitioner. Further P. W. 14-returning officer has also stated that nobody has complained to him about any irregulairty except booth nos. 6 and 7. Under these circumstances, the evidence of P. W. 5 and P. W. 6 also is not of any assistance to the petitioner. In so far as the evidence of P. W. 7-malabasavaiah is concerned he has spoken, as alluded to earlier, as regards as to what transpired at bagewad. It is necessary to point out here that he is not an eye witness to booth capturing. He has only spoken about somebody having told him about gavigatti gowda and basangowda casting votes for themselves in the booth, when he was in his house for taking lunch and when he went back to the booth he did not find them there and the polling officer neither confirmed nor denied the said version. In the course of his cross-examinaiton, it is elicited that he did not remember the name of the person who had told him as regards as to what was said to have been told to him by that person. Further, it is also elicited in the course of his cross-examination that he had made a complalnt to the assistant commissioner against basangouda regarding khata. Under these circumstances, I am not inclined to accept the evidence of P. W. 7. As seen earlier, P. W. 8-hanumantha has spoken as regards as to what transpired at maladgud. This witness also has not stated in his evidence as regards anything having been told by him to anybody about the alleged incident. Further his name is also not remotely ref erred to by Dr. Amarkhed either in the course of his evidence or in the petition. Further it is elicited in the course of his cross-examinaiton that there were two or three officers in the polling booth. It is necessary to state here that none of them has given any complalnt to anybody. No one amongst them is examined by Dr. Amarkhed, he is also not shown to have given any complalnt to anybody with reference to the alleged incident. These are circumstances, which, according to me, would put the court on guard with reference to his evidence. P. w. 9-venkoba, as seen earlier, has spoken as regards as to what, according to him, transpired at bagalwad. His examination-in-chief is already alluded to earlier. These are circumstances, which, according to me, would put the court on guard with reference to his evidence. P. w. 9-venkoba, as seen earlier, has spoken as regards as to what, according to him, transpired at bagalwad. His examination-in-chief is already alluded to earlier. However, it is significant to notice that Dr. Amarkhed has not stated anywhere in the course of his evidence about' anything having been told by this witness to him nor has he disclosed anything about the same in the election petition. Further he has stated that he did not give any complalnt although he felt scared from the date of election till the date of his deposition. Further the the evidence of P. W. 14 goes to show that nobody has complalned about anything having taken place in any polling booths except booth nos. 6 and 7. Under these circumstances, I am of the view that the evidence of this witness also cannot be taken on its face value. The evidence of P. W. 10, another witness viz. , shankarappa also suffers from the same infirmity. Among other things, he has stated that he did not complaln of misdeeds to anyone because he became scared. In my opinion, the said version becomes difficult to accept. If he had not disclosed to anyone it becomes difficult to accept as to how can he be identified as a witness. Further he has stated in the course of his cross-examination that his name has been mentioned in the voters list at si. No. 690 and the recital in the witness list mentioning his name as 690 is correct. However it is seen that the name of one Smt. Nagarathnamma is shown as a voter at si. no. 690. Though I am not inclined to attach much importance to the latter aspect the ealier circumstance viz. , his conduct in keeping quiet without disclosing the incident to anybody is a very important circumstance which would militate against his evidence. Further this person's name is not even remotely referred to by P. W. 1 either in his evidence or in the petition as the person from whom he has come to know about what transpired at bagalwad. Under these circumstances, the evidence of this witness also cannot be said to be free from doubt. I have already shown earlier as regards as to how P. W. 11-mallappa's evidence is not acceptable. Under these circumstances, the evidence of this witness also cannot be said to be free from doubt. I have already shown earlier as regards as to how P. W. 11-mallappa's evidence is not acceptable. The evidence of P. W. 12, is alluded to earlier; he is not an eye witness to any alleged incident and he only speaks about his having taken legal advise as regards his qualification to contest the election on account of his having been the upapradhana of mandal panchayat. It is not necessary to dilate on his evidence with reference to the point under consideration. The evidence of P. W. 13-dr. Manjunath is already referred to earlier. However, it is necessary to mention here even at the risk of repetition that hehas not even remotely referred either to respondent 1 or for that matter any of his supporters. Under these circumstances, I am of the view that the evidence of this witness is not of any use to connect respondent 1 with the alleged incidents at chikkadinni and hiredinni. The evidence of P. W. 14-bidarimath is already referred to earlier and he is the returning officer. His evidence as pointed out ealier instead of assisting the petitioner casts a cloud on the rest of the evidence adduced by the petitioner. The crucial portion of his evidence particularly in the course of his cross-examination is already referred to ealier and it is not necessary to refer to the same here again. I have pointed out hereinabove, that the oral evidence is not satisfactory. At this juncture, it is also necessary to recall the observations of the Supreme Court regarding the approach to be adopted in relation to the oral evidence particularly in a case like the one in hand. The Supreme Court in the decisionin kanhaiyalal vmannalal and others, AIR 1976 SC 1886 has held at paras 22 and 23 therein as under:"so far as, however, the distribution of the pamphelt on 2nd march, 1972, at jawi and thadoli, which alone survives for consideration, the pettioner relies entirely upon oral testimony and the court will have to be cautious and circumspect in accepting the same. This court in rahimkhan v khurshid ahmed, 1975 (1) scr 643 : AIR 1975 SC 290 dealing with the oral testimony in election cases pithily observed at page-656 as follows:"we must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no x-ray whereby the dishonesty of the story can be established and, if the court were gullible enough to gulp such oral versions and invalidate elections a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The court must look for serious assurance, unly ing circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life. " "further at para-46, the Supreme Court has held as under:"oral testimony, therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent sosurce. The matter would have been different if there had been an immediate written complalnt to the returning officer against kanhaiyalal as had been made in the case of his workers. "it is necessary to notice here that the Supreme Court in kanhaiyalal's case has followed its earlier decision at para-23 in rahim khan v khurshid ahmed, AIR 1975 SC 290 . ( 56 ) IN the instant case, the oral evidence of eye witnesses apart from suffering from certain inherent infirmities, is also not supported by any documentary evidence. It is true that petitioner has produced ex. P. 3 and p. 7, copies of the complalnts given in respect of the alleged booth capturing in booth nos. 6 and 7 at chikkadinni and hiredinni respectively. It is true that petitioner has produced ex. P. 3 and p. 7, copies of the complalnts given in respect of the alleged booth capturing in booth nos. 6 and 7 at chikkadinni and hiredinni respectively. However, it is necessary to mention here that neither ex. P. 3 nor p. 7 even remotely mentions the name of either respondent 1 or his supporters like, naganagouda or his brother. Further P. W. 13-dr. Manjunath has also not even remotely-implicated either respondent 1 or for their matter any of his supporters as such. Further none is examined to speak about the alleged part played by respondent 1 or for that matter his supporters with reference to polling booth nos. 6 and 7. It is also necessary to point out here that in respect of polling booth nos. 6 and 7 on account of the complalnts at ex. P, 3 and p. 7, repoll was held the very next day. It is not anybody's case that there was booth capturing or rigging at the time of repoll, in those two booths. Sri desai, learned counsel, however, has strongly relied on the comparative statement at ex. P. 6 to contend that it is only in those booths, where respondent 1 has registered a big margin over the petitioner and in so far as other polling booths are concerned there is no margin as such. It is true that respondent 1 has polled large number of votes, in these polling booths. However, the result sheet at ex. P. 5 goes to show that in quite a good number of other booths also he has registered a big margin. For example, in booth No. 29 petitioner has polled 43, whereas respondent 1 has polled 323. Similarly in booth No. 39 petitioner has polled 43 and respondent 1 has polled 359. Similarly, in booth No. 53 petitioner has polled 59, whereas respondnt-1 has polled 273. In the same way, in booth No. 58 petitioner has polled 86, whereas respondent 1 has polled 307. Further in booth No. 81 petitioner has polled 49 whereas respondent 1 has polled 255. In the same way, in booth No. 113 petitioner has polled 57, whereas respondent 1 has polled 224. Similarly in booth No. 130 petitioner has polled 71 and respondent 1 has polled 213. Further in booth No. 81 petitioner has polled 49 whereas respondent 1 has polled 255. In the same way, in booth No. 113 petitioner has polled 57, whereas respondent 1 has polled 224. Similarly in booth No. 130 petitioner has polled 71 and respondent 1 has polled 213. In booth No. 132 petitioner has polled 93 and respondent has polled 208, in the same way in booth No. 134 petitioner has polled 75 and respondent 1 has polled 266. ( 57 ) IN the context of what is stated hereinabove, it is not correct to say that the voting pattern is the same only in booths referred to in ex. P. 6. Further it is required to be remembered that certain candidates wield greater influence in certain areas for one reason or the other. It is the version of the petitioner that most of the booths in which booth capturing is said to have been taken place fall within the area of bagalwad mandal panchayat of which respondent 1 was the chairman, it is therefore possible that respondent 1 had established a rapport with the people in that area. Instances of candidates registering big margins in particular areas are quite common. Further it is significant to notice that after re-poll in booth nos. 6 and 7, petitioner has polled 90 and 91 votes respectively, whereas respondent 1 has polled 461 and 187 votes respectively. It is not the case of the petitioner that there was rigging or booth capturing in those polling booths at repoll. Under these circumstances, I am not impressed by the submissions made by Sri desai, learned counsel for the petitioner in this behalf. ( 58 ) SRI desai, however, pointed out that votes at the polling booths nos. 88 (bagalwad), 94 (byagwat), 95 (byagwat), 96 (byagwat), 102 (aidal) and 103 (gavigatti) polled by all the candidates taken together, for the assembly election, are more than the number of votes polled by candidates taken together, for lok sabha election in those booths. It is pointed out by Sri desai that the difference is as under: ( 61 ) AT this juncture, i pause for a while to point out that the aforesaid booths are the booths where there is greater difference in the votes polled in the assembly election on the one hand and votes polled in the parliamentary election on the other. ( 62 ) I may also point out that even in respect of janekal and malladagudda, similar was the case. However, the candidates who contested for the parties of whom the said witnesses are said to have been the polling agents did not challenge their version either in cross-examination or by entering the witness box. ( 63 ) THE aforesaid aspects, in my opinion, deepen the doubt of the case of the petitioner. ( 64 ) FURTHER as pointed out by the Supreme Court in kanhaiyalal's case, AIR 1976 SC 1886 , it must be remembered that corrupt practices may be proved by hiring half-a-dozen witnesses apparently respectable and dis-interested to speak to short and simple episodes and it is extremely unsafe in the present climate of kilkenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. Further it is held, as seen earlier, that the court must look for serious assurance unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life and oral testimony will have to be judged with the greatest care and an electoral victory cannot be allowd to be nullified by a mouthful or oral testimony without contemporaneous assurance of a reliable nature from an independent source. In para 46 it is held that "the matter would have been different if there had been an immediate written complalnt to the returning officer against kanhaiyalal as had been made in the case of his workers. " ( 65 ) AS pointed out earlier, in an election petition, the charge of corrupt practice is in the nature of a criminal charge and the evidence adduced in the case should be such as to enable the court to hold that the charge must be true and it is not sufficient even if there are circumstances which may enable the court to hold that the charge may be true. Between 'may be true' and 'must be true* there is a long distance and this distance will have to be covered by unimpeachable evidence. There may be certain circumstance which create strong suspicion. However, it is necessary to remember that suspicion however strong cannot take the place of proof. Between 'may be true' and 'must be true* there is a long distance and this distance will have to be covered by unimpeachable evidence. There may be certain circumstance which create strong suspicion. However, it is necessary to remember that suspicion however strong cannot take the place of proof. In the instant case, for the reasons stated hereinabove, I have no hesitation to hold that the petitioner has failed to establish issue No. 2. It is answered accordingly. ( 66 ) ISSUE No. 3. this issue relates to the contentions raised by respondent 1 that petition is not maintainable. The learnaed counsel for respondent 1 sumbitted that the petition is not maintainable for the reasons more than one. In the first place, the learned counsel argued that the petitioner has produced only the return of election in form No. 21-e and has not produced form No. 21-c relating to the declaration of result of election. In my opinion, the said contention is not tenable, because, i find that ex. P. 1 contains the particulars relating to the return as well as the declaration. It is therefore, not necessary to dilate on this aspect. The learned counsel also contended tht the election petition is liable to be dismissed in limine on account of the defective verification. The verification to the petition reads as under:"i, b. s. amarkhed, aged 59 years do hereby verify that the statements made in para-iii (1 to 6) are true to the best of my knowledge and belief and the statements made in para-iv (1 to 22) are also true to the best of my knowledge, belief and information and i believe them to be true and correct. "with reference to the verification to the election petition culled out hereinabove, the learned counsel submitted that the latter part does not disclose as to what portion of the petition is to the knowledge of the petitioner, what portion of the petition is according to his belief and what portion of the petition is according to his information. Though i find that the said defect is one of the circumstances which has to be taken into consideration while appreciating the evidence on record, in my opinion, the same is not fatal to the petition. Though i find that the said defect is one of the circumstances which has to be taken into consideration while appreciating the evidence on record, in my opinion, the same is not fatal to the petition. This view finds support from the observation made by the Supreme Court in the decision in murarka radhey shyam v roop singh, AIR 1964 SC 1545 . In that view of the matter, I am of the view that the defect, if any, is cured and the contentions raised by the learned counsel for respondent 1 that the petition is liable to be dismissed in limine is not acceptable. ( 67 ) IN the view that I have taken, i hold that the petition is maintainable. Issue No. 3 is answered accordingly. ( 68 ) FROM what is stated hereinabove, it would follow that the petition is liable to be dismissed under Section 98 (a) of the Representation of People Act, 1951. ( 69 ) IN the result, the election petition is dismissed with cost of respondent1. Advocate's fee is fixed at Rs. 2,500/ -. The rest of the respondents shall bear their own costs. --- *** --- .