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PETITIONER:

VASHIST NARAIN SHARMA

Vs.

RESPONDENT:

DEV CHANDRA AND OTHERS.

DATE OF JUDGMENT:

20/05/1954

BENCH:

HASAN, GHULAM

BENCH:

HASAN, GHULAM

DAS, SUDHI RANJAN

JAGANNADHADAS, B.

CITATION:

1954 AIR 513 1955 SCR 509

CITATOR INFO :

RF 1955 SC 233 (30)

F 1957 SC 242 (3,6)

E 1959 SC 93 (11)

RF 1959 SC 422 (16)

RF 1964 SC1200 (16)

O 1965 SC 669 (17,18)

RF 1966 SC 824 (10)

F 1969 SC 663 (6,7,11)

R 1969 SC1201 (57,58)

E 1970 SC2097 (152,153)

RF 1972 SC 580 (26)

F 1977 SC1914 (6)

R 1984 SC 146 (3,5)

F 1988 SC 637 (6,7,8,9,10,11,12)

F 1990 SC 19 (17,18,19)

ACT:

Representation of the People Act, 1951 (Act XLIII of

1951), S. 100 (1) (c)-Words the result of the election has

been materially affected"-Interpretation of-Improper

acceptance or rejection of a nomination paper-Election-

Validity of-Onus of proving that the result has been

materially affected-Finding of Election Tribunal based on

speculation and conjecture-Misdirection in law.

HEADNOTE:

The words "the result of the election has been

materially affected" in section 100 (1) (c) of the

Representation of the People

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Act, 1951, indicate that the result should not be judged by

the mere increase or decrease in the total number 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 about the defeat of the returned candidate.

Section 100 (1) (c) clearly places a burden on the

objector to substantiate the objection that the result of

the election has been materially affected by the improper

acceptance or rejection of the nomination paper.

The said section is too clear for any. speculation about

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possibilities and it lays down that improper acceptance is

not to be regarded as fatal to the election unless the

Tribunal is of opinion that the result has been materially

affected.

If an Election Tribunal misdirects itself in not

comprehending the real question before it and proceeds

merely on possibilities, speculation and conjecture, its

order must be set aside.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 151 of 1953.

Appeal by Special Leave granted by the Supreme Court of

India by its Order dated the 29th May, 1953, from the

Judgment and Order dated the 4th May, 1953, of the Election

Tribunal, Allahabad, in Election Petition No. 270 of 1952.

I C. K. Daphtary, Solicitor-General for India (G. C.

Mathur and C. P. Lal, with him) for the appellant.

Naunit Lal for respondents Nos. I to 4.

1954. May 20. The Judgment of the Court was delivered by

GHULAM HASAN J.-This appeal preferred under article 136 of

the Constitution against the order, dated May 4, 1951, of

the Election Tribunal, Allahabad, setting aside the election

of Sri Vashist Narain Sharma to the Uttar Pradesh

Legislative Assembly, raises two questions for

consideration. The first question is whether the nomination

of one of the rival candidates, Dudh Nath, was improperly

accepted by the Returning Officer and the second, whether

the result of the election was thereby materially affected.

Eight candidates filed nominations to the Uttar Pradesh

Legislative Assembly from Ghazipur (South East) Constituency

No. 345, three withdrew their

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candidature and the contest was confined to the remaining

five. The votes secured by these candidates were as follows

1. Vashist Narain Sharma 12868

2. Vireshwar Nath Rai 10996

3. Mahadeo 3950

4. Dudh Nath 1983

5. Gulab Chand 1768

They were arrayed in the election petition as respondents

Nos. I to 5 respectively. The first respondent having

secured the highest number of votes was declared duly

elected. Three electors filed a petition under section 81

of the Representation of the People Act (Act XLIII of 1951)

"praying that the election of the returned candidate be

declared void and that respondent No. 2 be declared to have

been duly elected; in the alternative, that the election be

declared wholly void. The election was sought to be set

aside on the grounds, inter alia, that the nomination of

respondent No. 4 was improperly accepted by the Election

Officer and that the result of the election was thereby

materially affected. The Tribunal found that respondent No.

4, whose name was entered on the electoral roll of Gahmar

Constituency Ghazipur (South East) 'personated' (meaning

passed himself off as) Dudh Nath Kahar and used the entries

of his electoral roll of Baruin Constituency ghazipur (South

West), that the Returning Officer had improperly accepted

his nomination, and that the result of the election was

thereby materially affected. Allegations of major and minor

corrupt practices and non-compliance with certain statutory

rules were made but the Tribunal found in favour of the

returned candidate on those points.

Dudh Nath, respondent No. 4, is Rajput by caste. His

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permanent or ancestral home is Gahmar but since 1943 he had

been employed as a teacher in the Hindu Higher Secondary

School at Zamania-a town 10 or 12 miles away-and he had been

actually residing at village Baruin which is quite close to

Zamania. The person for whom Dudh Nath 'personated' is Dudh

Nath Kahar whose permanent house is at Jamuan,

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but his father lives at Baruin. Dudh Nath Kahar used to

visit Baruin off and on but he was employed at Calcutta.

The nomination paper filed by Dudh Nath gave his parentage

and age which more properly applied to Dudh Nath Kahar. He

gave his father's name as Shiv Deni alias Ram Krit. Ram

Krit is the name of Dudh Nath Kahar's father. The electoral

roll (Exhibit K) of Gahmar gives Dudh Nath's, father's name

as Shio Deni with no alias and his age as 39, while the

electoral roll of Pargana Zamania Monza Baruin (Exhibit C)

gives Dudh Nath's father's name as Ram Krit and his age as

31. In the electoral roll of Jamuan Dudh Nath's age is

entered as 34 but in the supplementary list it is mentioned

as 30. When the nomination paper was filed on November 24,

1951, at 2-20 P.m. it was challenged by Vireshwar Nath Rai

on the ground that Dudh Nath's father's name was Shivadeni

and not Ram Krit but no proof was given in support of the

objection and it was overruled on November 27. This order

was passed at 1 P.m. One of the candidates, who later

withdrew, filed an application at 3-25 P.m. before the

Returning Officer offering to substantiate the objection

which the objector had not pressed. This application was

rejected on the ground that the nomination had already been

declared as valid. In point of fact no evidence was

adduced. This acceptance of the nomination on the part of

the Returning Officer is challenged as being improper under

section 36(6) of the Representation of the People Act and as

the result of the election according to the objector has-

been materially affected by the improper acceptance of this

nomination, the Tribunal is bound to declare the election to

be wholly void under section 100(1) (c) of the Act. Mr.

Daphtary on behalf of the. appellant has argued before us

with reference to the provisions of sections 33 and 36 that

this is not a case of improper acceptance of the nomination

paper, because prima facie the nomination paper was valid

and an objection having been raised but not pressed or

substantiated, the Returning Officer had no option but to

accept it. There was, as he says, nothing improper in the

action of the, Returning Officer, On the contrary,

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it may, according to him, be more appropriately described as

a case of an acceptance of an improper nomination paper by

the Returning Officer, inasmuch as the nomination paper

contained an inherent defect which was not discernible ex

facie and could be disclosed only upon an enquiry and upon

the taking of evidence as to the identity which was,not then

forthcoming. Such a case, it is argued, is not covered by

section (1)(c) but by section 100(2)(c) in which case the

election of the returned candidate is alone to be declared

void, whereas in the former case the election is wholly

void. We do not propose to express any opinion upon this

aspect of the matter, as in our view the appeal can be

disposed of on the second question.

Section 33 of the Representation -of the People Act,

1951, deals' with the presentation of nomination -paper and

lays down the requirements for a valid nomination, On the

date fixed for scrutiny of the nominations the Returning

Officer is required to examine the nomination paper and

decide-all objections which may be made to any nomination,

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and after a summary enquiry. if any, as he thinks necessary

he is entitled to refuse nomination on certain grounds

mentioned in sub-section (2) of section 36. Sub-section (6)

lays down that the Returning Officer shall endorse on each

nomination paper his decision accepting or rejecting the

same and, if the nomination paper is rejected, shall

record in writing a brief statement of his reasons for such

rejection. This sub-section shows that where the nomination

paper is accepted., no reasons are required to be given.

Section 100 gives the grounds for declaring an election to

be void. The material portion is as follows:--

(1) If the Tribunal is of opinion-

(a).........................................

(b).........................................

(c)that the result of the election has been materially

affected by the improper acceptance or rejection of any

nomination,

the Tribunal shall declare the election to be wholly void.

It is under this sub-section that the election was sought to

be set aside,

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Before an election can-be declared to be wholly void under

section 100(1) (c), the Tribunal must find that "the result

of the election has been materially affected. " These words

have been the subject of much controversy before the

Election Tribunals and it is agreed that the opinions

expressed have not always been uniform or consistent. These

words seem to us to indicate that the result should not be

judged by the mere increase or decrease in the total number

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 about the defeat of the returned candidate.

The next question that arises is whether the burden of

proving this lies upon the petitioner who objects to the

validity of the election. It appears to us that the volume

of opinion preponderates in favour of the view that the

burden lies upon the objector. It would be useful to refer

to the corresponding provision in the English Ballot Act,

1872, section 13 of which is as follows:-

" No election shall be declared invalid by reason of a

non-compliance with the rules contained in the first

schedule to this Act, or any mistake in the use of the forms

in the second schedule to this Act, if it appears to the

Tribunal having cognizance of the question that the election

was conducted in accordance with the principles laid down in

the body of this Act, and that such non-compliance or

mistake did not affect the result of the election."

This section indicates that an election is not to be

declared invalid if it appears to the Tribunal that non-

compliance with statutory rules or any mistake in the use of

such forms did not affect the result of the election. This

throws the onus on the person who seeks to uphold the

election. The language of section 100(1)(c), however,

clearly places a burden upon the objector to substantiate

the objection that the result of the election has been

materially affected. On the contrary under the English Act

the burden is placed upon the respondent to show the

negative, viz., that the result of the decision has not been

affected. This view was expressed

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in Rai Bahadur Surendra Narayan Sinha v. Amulyadhone Roy &

others (1), by a Tribunal presided over by Mr. (later Mr.

Justice) Roxburgh. The contention advanced in that case was

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that the petitioner having established an irregularity it

was the duty of the respondent to show that the result of

the election had not been materially affected thereby. The

Tribunal referred to the provisions of section 13 of the

Ballot Act and drew a distinction between that section and

the provisions of paragraph 7(1) (c) of Corrupt Practices

Order which was more or lesson the same lines as section

100(1) (c). They held that the onus is differently placed

by the two provisions. While under the English Act the

Tribunal hearing an election petition is enjoined not to

interfere with an election if it appears to it that non-

compliance with the rules or mistake in the use of forms did

not affect the result of the election, the provision of

paragraph 7(1) (e) placed the burden on the petitioner. The

Tribunal recognized the difficulty of offering positive

proof in such circumstances but expressed the view that they

had to interpret and follow the rule as it stood.

In C. M. Karale v. -Mr. B. K. Dalvi etc. (2), the Tribunal

held that the onus of proving that the result had been

materially affected rests heavily on the petitioner of

proving by affirmative evidence that all or a large number

of votes would have come to the returned candidate if the

person whose nomination had been improperly accepted had not

been in the field.

In Babu Basu Sinha v. Babu Rajandhari Sinha etc. it was

emphasized that it is not enough for the petitioner to show

that the result of the election might have been affected but

he must show that it was actually affected thereby.

The case of Jagdish Singh v. Shri Rudra Deolal etc. was

one under section 100(1) (c) of the Representation of the

People Act. It was held that the question should always be

decided on the basis of the material on the

(1) Indian Election Cases by Sen and Poddar, page 188.

(2) Doabia's Election Cases, Vol. 1 (P. I78).

(3) Indian Election Petitions (Vol. III) by Shri jagat

Narain, page So.

(4) Gazette of India (Extraordinary) October 13, 1953.

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record and not on mere probabilities. The Tribunal

distinguished between an improper rejection and an improper

acceptance of nomination observing that while in the former

case there is a presumption that the election had been

materially affected, in the latter case the petitioner must

prove by affirmative evidence, though it is difficult, that

the result had been materially affected.

The learned counsel for the respondents concedes that the

burden of proving that the improper acceptance of a

nomination has materially affected the result of the

election lies upon the petitioner but he argues that the

question can arise in one of three ways:

(1) where the candidate whose nomination was

improperly accepted had secured less votes than the

difference between the returned candidate and the candidate

securing the next highest number of votes,

(2) where the person referred to above secured more votes,

and

(3) where the person whose nomination has been improperly

accepted is the returned candidate himself.

It is agreed that in the first case the result of the

election is not materially affected because if all the

wasted votes are added to the votes of the candidate

securing the highest votes, it will make no difference to

the result and the returned candidate will retain the seat.

In the other two cases it is contended that the result is

materially affected. So far as the third case is concerned

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it may be readily conceded that such would be the

conclusion. But we are not prepared to hold that the mere

fact that the wasted votes are greater than the margin of

votes between the returned candidate and the candidate

securing the next highest number of votes must lead to the

necessary inference that the result of the election has been

materially affected. That is a matter which has to be

proved and the onus of proving it lies upon the petitioner.

It will not do merely to say that all or a majority of the

wasted votes might have gone to the next highest candidate.

The casting of votes at an election depends upon a variety

of factors and it is not possible for any

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one to predicate how many or which proportion of the votes

will go to one or the other of the candidates. While it

must be recognised that the petitioner in such a case is

confronted with a difficult situation, it is not possible to

relieve him of the duty imposed upon him by section 100(1)

(c) and hold without evidence that the duty has been

discharged. Should the petitioner fail to adduce

satisfactory evidence to enable the' Court to find in his

favour on this point, the inevitable result would be that

the Tribunal -would not interfere, in his favour and would

allow the election to stand.

In two cases [Lakhan Lal Mishra v. Tribeni Kumar etc.

(1) and Mandal Sumitra Devi v. Sri Surajnarain Singh etc.

(2) ], the Election Tribunal, Bhagalpur, had to consider the

question of improper acceptance of the nomination paper.

They agreed that the question whether the result of election

had been materially affected must be proved by affirmative

evidence. They laid down the following test:

"If the number of votes secured by the candidate, whose

nomination paper has been improperly accepted, is lower than

the difference between the number of votes secured by the

successful candidate and the candidate who has secured the

next highest number of votes, it is easy to find that the

result has not been materially affected. If, however, the

number of votes secured by such a candidate is higher than

the difference just mentioned, it is impossible to foresee

what the result would have been if that candidate had not

been in the field. It will neither be possible to say that

the result would actually have been the same or different

nor that it would have been in all probability the same or

different."

In both the cases the margin of votes between the successful

candidates and the next highest candidate was less than the

number of votes secured by the candidate whose nomination

was improperly accepted. They held that the result was

materially affected. We are unable to accept the' soundness

of this view. It seems to us that where the margin of votes

is greater

(1) Gazette of India (Extry.) Feby. 2, 1953.

(2) Gazette of India (Extry.) Feby. 26,1953.

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than the votes secured by the candidate whose nomination

paper had been improperly accepted, the result is not only

materially not affected but not affected at all; but where

it is not possible to anticipate the result as in the above

mentioned cases, we think that the petitioner must discharge

the burden of proving that fact and on his failure to do so,

the election must be allowed to stand.

The Tribunal in the present case rightly took the view

that they were not impressed with the oral evidence about

the probable fate of votes wasted on Dudh Nath Singh, but

they went on to observe : "Considering that Dudh Nath

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respondent No. 4 received more votes than the margin of

votes by which respondent No. 1 was returned we are

constrained to hold that there was reasonable possibility of

respondent No. 2 being elected in place of respondent No. 1,

had Dudh Nath not been in the field." We are of opinion that

the language of section 100(1)(c) is too clear too any

speculation about possibilities. The section clearly lays

down that improper acceptance is not to be regarded as fatal

to the election unless the Tribunal is of opinion that the

result has seen materially affected. The number of wasted

votes was 111. It is impossible to accept the ipse dixit.

of witnesses coming from one side or the other to say that

all or some of the votes would have gone to one or the other

on some supposed or imaginary ground. The question is one

of fact and has to be proved by positive evidence. If the

petitioner is unable to adduce evidence in a case such as

the present, the only inescapable conclusion to which the

Tribunal can come is that the burden is not discharged and

that the election must stand. Such result may operate

harshly upon the petitioner seeking to set aside the

election on the ground of improper acceptance of a

nomination paper, but neither the Tribunal, nor this Court

is concerned with the inconvenience resulting from the

operation of the law. How this state of things can be

remedied is a matter entirely for the Legislature to

consider. The English Act to which we have referred

presents no such conundrum and lays down a. perfectly

sensible

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criterion upon which the Tribunal can proceed to declare its

opinion. It directs the Tribunal not to set aside the

election if it is of opinion that the irregularity has not

materially affected the result.

Mr. Nauinit Lal argued that the finding that the result of

the election has been materially affected is a finding of

fact which this Court should not interfere with in special

appeal but there is no foundation for the so-called finding

of fact. If the Tribunal could not be sure that the

respondent No. I would get only 56 out of the wasted votes

to give him an absolute majority, how could the Tribunal

conjecture that all the wasted votes would go to the second

best candidate.

The Tribunal misdirected itself in not comprehending what

they had to find and proceeded merely upon a mere

possibility. Their finding upon the matter is speculative

and conjectural.

Mr. Naunit Lal also attempted to argue that he could support

the decision of the Tribunal on other grounds which had been

found against him and referred to the analogy of the Code of

Civil Procedure which permits a respondent to take that

course. That provision has no application to an appeal

granted by special leave under article 136. We have no

appeal before us on behalf of the respondents and we are

unable to allow that question to be reagitated.

The result is that we set aside the order of the Tribunal

and hold that it is not proved that the result of the

election has been materially affected by an improper

acceptance of the nomination, assuming that the case falls

within the purview of section 36(6) and that finding is

correct.

We accordingly set aside the order of the Tribunal and

uphold the election of the appellant. The appellant will

get his costs from :the respondents incurred here and in the

proceedings before the Tribunal.

Order accordingly.

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