K. Veeraswami, C.J.
1. The appellant, at the election. President of Keeramangalam Town Panchayat, was elected by 1,348 votes as against 1,191 votes secured by the first respondent. Of the election petition filed by the first respondent, the Tribunal found that the appellant Was guilty of corrupt practices, inasmuch as he has used a taxi, treated voters and prevented canvassing voters supporting the first respondent. This is the finding:
Hence I find that R.W. 1 has indulged in corrupt practices alleged in the petition and such practices will no doubt materially affect the election. It is proved by the petitioner that the election has been affected materially by the conduct of the first respondent.
The Tribunal accordingly set aside the election. A petition under Article 226 of the Constitution by the appellant failed and he has, therefore, come up in appeal.
2. For establishing corrupt practice by use of a taxi, the first respondent had examined himself and two others, one of whom was a taxi owner and the other, an-'observer. As to the other items of corrupt practice, the bulk of evidence is that provided by the first respondent himself. The Tribunal accepted his evidence and in so doing it has observed in more than one place in its order that the appellant had failed to discredit the evidence of the first respondent. Though we are of the view that the discussion and the finding in relation to corrupt practices are quite unsatisfactory, we shall proceed on the basis that the finding arrived at by the Tribunal is factual and cannot be scrutinised as in an appeal.
3. But the point raised before us for the appellant is that, merely because corrupt practices were proved, it did not automatically follow that they materially affected the result of the election, and that, unless that fact is established apart from the corrupt practices, the election of the appellant could not be void. We think that this point is well-founded. Rule n of the rules relating to panchayat election disputes is specific on that matter. By Clause (b) it is provided that, if in the opinion of the Election. Court the election of a returned candidate has been procured or induced or the result of the election has been materially affected by any of the corrupt practices named in the clause, the election of the returned candidate shall be void. The election of a returned candidate can be made void by showing that it was procured or induced or by the corrupt practices the result of the election had bee materially affected. These three things are separate and independent and they cannot be held to mean the same thing. Establishing corrupt practices is not by itself sufficient to make the election void. It must be shown that the election of the returned candidate has been procured or induced or the result of the election has been materially affected by the corrupt practices. As held in Vashisi Narain v. Dev Chandra : 1SCR509 the words 'the result of the election has been materially affected' indicate that the result should not be judged by the mere increase or decrease in the total mannter of votes secured by the returned candidate, but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought aboit the defeat of the returned candidate. In other words, what is to be established, besides corrupt practices, is that but for such corrupt practices the returned candidate would have suffered a defeat.
In the election petition filed by the first respondent there was no averment that the corrupt practices alleged by him procured or induced the election of the returned candidate; but the only allegation was that the corrupt practices materially affected the result of the election. The first respondent, in order to succeed in his petition, therefore, should, as a fact, prove by proper evidence that there were corrupt practices a d such corrupt practices materially affected the result of the election. The Tribunal, while finding corrupt practices, merely assumed that ipso facta they materially affected the result of the election. That is where it went wrong. This is clear from its observations:
Hence I find that R.W. 1 bad indulged in corrupt practices alleged in the petition and such practices will no doubt materially affect the election.
We have ouselves looked into the evidence and do not find any proof that the corrupt practices were such as to materially affect the result of the election.- In fact, no evidence was directed on that aspect. The appeal is, therefore, allowed and the order of the Tribunal is set aside. The appellant will be ertitled to costs from the first respondent. Counsel's fee Rs. 150.