Shyamal Kumar Sen, J.
1. In the instant Election Petition the petitioner has challenged election of the respondent No. 1 and has also prayed that the said election be declared void and the petitioner be declared elected having received majority of valid votes polled. The respondent No. 1 has filed written statement. Thereafter, on 8-10-96 issues were framed and following issues" were settled :--
"1. Is the Election Petition liable to be dismissed for non-service of the correct copy of the petition and for non-compliance with Section 81(3) of the Representation of the People Act, 1951 of the present petition?
2. Are the allegations of corrupt practices are made in paragraphs 13, 15, 17, 18, 19, 20 and 29 of the petition and different sub-paragraphs thereof correct?
3. Does the Election Petition disclose any cause of action?
4. Is the Election Petitioner entitled to a declaration that the election of the respondent No. 1 of 212 Ramnagar Legislative Assembly Constituency void?
5. Is the election petitioner entitled to recounting of votes as prayed for in the Petition?
6. To what relief, if any, is the election petitioner entitled?"
2. On 6-5-97 the Preliminary issue was taken up and disposed of by the following order :--
"It is stated by Mr. Ganguly, learned Advocate for the respondents that he has already raised a preliminary objection as to maintainability of this Election Petition in the Written Statement that correct copy of page 3 of the affidavit of compliance relating to corrupt practice was not supplied to him.
Mr. Mullick, learned Advocate for the petitioner disputes the said submissions and an submits that true copy of the Petition along with the affidavit of compliance relating to corrupt practice has been sent to the respondent No. 1 immediately after the objection is raised in the written statement.
In that view of the matter, Mr. Ganguly withdraws the preliminary objection.
Preliminary issue is disposed of with the ' observation as recorded above.
With regard to other issues, Mr. Mullick submits the matter may be taken up on next Tuesday."
3. On 5-8-97 Mr. Mallick, learned advocate for the petitioner has submitted that the petitioner was not willing to proceed with the allegation of corrupt practice and as such the issue No. 2 need not be decided. In view of the aforesaid statement of Mr. Mallick the said issue was dropped.
4. Mr. Gangopadhyay, learned advocate for the respondent No. 1 has submitted that the petitioner is not entitled to proceed with the Election Petition since he has given up the charge of corrupt practice and accordingly he suggested an additional issue and after hearing following additional issue was also settled on 5th August, 1997:
1 A. Is the petitioner entitled to proceed with the Election Petition in view of the charges on corrupt practice being not pressed by the respondent No. 1 ?
5. On 6th August 1997 an additional issue was raised by Mr. Mallick in connection with issue No. 5. Accordingly an additional issue was settled which is as follows :
"2(a) -- Is there any improper reception, refusal or rejection of votes?
(b) -- If so, has the result of the election of the respondent No. 1 been materially affected by such improper reception or rejection of votes?"
6. It has been contended by Mr. Mallick learned advocate for the petitioner that even though he has given up the issue relating to charges for corrupt practice, he is still entitled to urge the case of improper reception, refusal or rejection of votes by the Returning Officer which is a statutory provision and also is entitled to proceed with the Election Petition.
7. It is the case of the respondent No. 1 that after the withdrawal of charges of corrupt practices the Election Petition does not survive at all and no question arises as to the trial of the Election Petition because the entire petition rests on the charges of corrupt practice and nothing independent of corrupt practice is there in the petition for which a trial can be commenced.
8. The respondent No. 1 mainly raises objection on the ground that the case of corrupt practice has been made out in paragraph 13 which relates to charge against the B.D.O. However, other paragraphs which relate to, charges against the Returning Officer and other counting agents, Counting Assistant, Assistant Returning Officer will also come under corrupt practice under Section 100(1)(b) of the Representation of People Act and not under Section 100(1)(d)(ii) since it has been alleged that they acted as agent and/or with the consent of the returned candidates and were involved in such corrupt practices.
9. It has been argued by Mr. Ganguly, learned advocate for the respondent No. 1 that upon strict interpretation, the expression 'any other person' means the said counting Personnel including Returning Officer, and Assistant Returning Officer will also come within definition of any other person' since they have acted with the consent or knowledge of the returned candidate as alleged in the petition. In that event, the entire petition will become an election relating to charge of corrupt practice and if the said charge is withdrawn, the election petition will fail.
10. It has been contended that there is a distinction between corrupt practice as provided under Section 100(1)(b) read with Section 123(7) of the Act and Section 100(1)(d) of the Act whereas the corrupt practice as contemplated under the Act really involves corrupt practice committed by the Govt. Officer or any other person but exclude the irregularity which has been specific under Section 100(1)(d), namely improper reception or rejection of votes by the Returning Officer of the counting assistants or counting personnel which may materially affect the result of the election so far as it concerns the returned candidate.
11. It has been contended on behalf of the petitioner that the word 'corrupt practice' which has been used in the petition against the Returning Officer and the Counting officials, the same cannot come within the meaning of Section 123(7) of the said Act. He has also referred to several electoral offences mentioned under Chapter II of Part VII of the Act. Section 134 of the Act provides for breaches of official duties in connection with the election. He has submitted that the corrupt practice involves electoral offences and as such any improper refusal, reception and/or rejection of votes including non compliance of the provisions of the Act, Rules and Orders by the Returning Officers and Govt. Officials under him engaged in the official duties in conducting elections including counting of votes cannot be said to be an offence which is a corrupt practice but shall be deemed to be breached of official duties in connection with election as provided under Section 123(7) of the Act. Such offences are also punishable under the law against the concerned Officer.
12. Mr. Mallick has further submitted that full particulars have been disclosed with all materials supported by official records of the counting including statutory forms and documents which cannot be contradicted and since there is improper reception or rejection of votes and non-compliance of the statutory duties by the Returning Officer, Assistant Returning Officer and counting personnel the petitioner is entitled to claim relief and in fact he has made out a clear case for recounting.
13. I have considered the submissions of the learned advocates for the parties. Section 100 refers to grounds for declaring election to be void. In this connection it is necessary to consider Section 100(1)(b) and Section 100(1)(d) which are set out here in below :--
"Subject to the provisions of Sub-section (2) if the High Court is of opinion--
(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
(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 of any nomination or
t(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."
14. The corrupt practice has been classified under several categories and enumerated under Section 123 of the Act. The corrupt practice alleged in the instant petition comes under Section 123(7) of the Act, as following:
"123(7) -- The following shall be deemed to be corrupt practices for the purposes of this Act.--
(1) to (6).......................................
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate's election, from any person in the person in the service of the Government and belonging to any of the following classes, namely:--
(a) Gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed :
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election."
15. It is clear on perusal of 123(7) that the corrupt practice alleged therein does not relate to the offence or irregularities of the election officers, that is to say, the Returning Officer, Assistant Returning Officer, counting assistants and other employees who have been specifically entrusted with the election job.
16. In the instant case, the petitioner has come up the allegations made so far as the corrupt practice under Section 123(7) which comes within the provisions of Section 123(7) of the Act. The election may be declared to be void if the allegations of corrupt practice under Section 123(7) is proved.
17. An election may also be declared void under Section 100(1)(d) for improper reception, rejection of votes by the counting officials or for violation of the statutory duties or failure to comply with the statute.
18. In the instant case even if the allegation of corrupt practice is given up which relates to Section 123(7), that means he is not claiming relief under Section 100(1)(b) but is still entitled to proceed under Section 100(1)(d) and pray for a declaration under the said provisions of the statute.
19. The word 'corrupt practice' which has been mentioned in the petition as against the Returning Officer and counting officials and the allegations of their acting as agent of the petitioner cannot in any event bring it within the offence of corrupt practice in terms of Section 100(1)(b) read with Section 123(7). In the instant petition, there are also specific, full details of material particulars of improper reception, refusal and/or rejection of votes including mistake in the counting as will appear from the official documents or records annexed to the petition which clearly bring it within the purview of Section 100(1)(d) and the Court cannot overlook the same.
20. On 19-8-97 the matter was adjourned till 26-8-97. On 26-8-97 hearing on the additional issues concluded.
21. It has been alleged that the petitioner repeatedly requested the Returning Officer to come and check up the bundles pointing out the respective counting tables but the Returning Officer neither come to check the said bundles nor deputed any of the said Assistant Returning Officer to do the same and threatened the petitioner to remove from the counting halls, if the petitioner makes further complaints about manipulation of Counting.
22. It appears that specific allegation has been made with regard to the irregularities in the conduct of counting by the counting officers, Assistant Returning Officers, Returning Officers and officials connected with the counting process. Those allegations relate to improper reception/ rejection. It has also been alleged in the petition that the result of the election in so far as it concerned, the returned candidate has been materially affected. In view of the improper reception, refusal or rejection of votes in terms of Sub-clause (iii) of Section 100(1)(d) those allegations are to be decided irrespective of the allegation of corrupt practice under Section 101(b) read with Section 123(7).
23. In that view of the matter, in my view, even if the petitioner gives up the allegation of corrupt practice it will as still open to him to proceed with the other issues being issue Nos. 2A and 2B and to proceed with the petition.
24. The additional issue raised by Mr. Gangopadhyay decided in the affirmative and the petitioner, in my view, is entitled to proceed with the Election Petition, although he has not pressed the charges of corrupt practice.