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PETITIONER: SARNAM SINGH

       Vs.

RESPONDENT: SMT. PUSHPA DEVI & ORS.

DATE OF JUDGMENT27/10/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1988 SCR  (1) 630        1988 SCC  Supl.   65  JT 1987 (4)   158        1987 SCALE  (2)861

ACT:      Representation of  the People  Act, 1951:  Section l00- Improper rejectionl/acceptance of nomination-Distinction and effect of-Result  of election-Whether  materially  affected- Burden of proof-Whether discharged.

HEADNOTE: %      In the  election to the Uttar Pradesh State Legislative Assembly from constituency No. 41 held in early March, 1985, 16 candidates  contested.  Respondent  No.  1  was  declared elected  having  secured  23,006  votes.  Respondent  No.  2 secured 20,735  votes being the next highest. The difference of votes  secured by  them was  in the order of 2,271 votes. Respondent No.  8 who  was working as a teacher in a college and who  was one of the candidates secured 3,606 votes which were more  than the  difference between the votes secured by respondent No. 1 and 2.      The appellant  who was  an elector at the said election filed an  election petition contending that respondent No. 8 was holding an ’office of profit’ under the State Government as he  was working  as a teacher in a college and therefore, the acceptance  of his  nomination by  the returning officer was illegal, that since respondent No. 8 secured 3,606 votes which were  higher than  the difference  between  the  votes secured by  respondent No.  1  and  respondent  No.  2,  the election of  respondent No. 1 should be considered as having been materially  affected by  the wrongful acceptance of the nomination paper  of respondent  No. 8,  and the election of the respondent No. 1 was, therefore, liable to be set aside. Respondent No.1  contested the  election  petition  pleading that the  acceptance of  the nomination  paper of respondent No. 8  was not illegal since he was not holding an office of profit under  the State  Government, and  that even  if  the acceptance was  illegal the  election could not be set aside since the result of the election was not materially affected thereby.      Dismissing the  petition, the  High Court held that the acceptance of  the nomination  paper of respondent No. 8 was not illegal  as he was not holding an office of profit under the State Government and that 631

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even if  the acceptance of the nomination paper was illegal, the appellant  had not  established that  the result  of the election of respondent No. 1 had been materially affected on the facts and in the circumstances of the case.      In the  appeal to  this Court  on the question: whether the  appellant  had  established  that  the  result  of  the election of respondent No. 1 had been materially affected by the  wrongful   acceptance  of   the  nomination   paper  of respondent No. 8.      Dismissing the appeal to this Court, ^      HELD: The appellant has not discharged the burden which clearly lay  on him  of  proving  that  the  result  of  the election had  been materially  affected, even  assuming that the nomination  of respondent  No.  8  had  been  improperly accepted. [640E]      Section 100  of the  Representation of  the People- Act makes a distinction between the effect of improper rejection of any nomination, and the effect of the improper acceptance of any  nomination on  the election.  If a nomination of any person at  an election  had  been  improperly  rejected  the election of the returned candidate is liable to be set aside without  any  further  proof  because  it  is  difficult  to visualise  the  number  of  votes  which  the  person  whose nomination has  been rejected  would  have  secured  at  the election and  there is  every  likelihood  of  the  returned candidate not securing the highest number of votes. [634E-G]      Clause (c)  of sub-section  (1) states that if the High Court is  of  the  opinion  that  any  nomination  has  been improperly rejected  it shall  declare the  election of  the returned candidate to be void. [634Gl      Sub-clause  (i)   of  clause  (d)  of  sub-section  (1) requires a  petitioner in  an election petition to establish two grounds  in order  to get  the election  of the returned candidate set aside. namely (i) that there has been improper acceptance of  any nomination  and (ii)  that by  reason  of entry of  the candidate whose nomination has been improperly accepted into the contest the result of the election insofar as the  returned candidate  is concerned has been materially affected. [635A-B]      Having regard  to the  facts of  the instant case it is not possible to hold that the appellant has established that the result  of the  election of  the returned  candidate had been materially affected because the dif- 632 ference between  the votes  secured by respondent No. 1, the returned candidate  and respondent  No. 2, the candidate who secured next  highest votes  was 2,271 votes. Respondent No. 8, the  validity of  whose nomination  was  questioned,  had secured only  about 1/7th  of the  number of votes polled by respondent No.  1 and  there were  15 candidates  (excluding respondent  No.  8)  contesting  the  election.  It  is  not possible to  reach a  finding  in  this  case  by  making  a judicial guess  that all  the 3606  voters who  had voted in favour of  respondent No.  8 would  have cast their votes in favour of respondent No. 2 alone. Even if about 1350 of them had cast  their votes  in favour  of any  of  the  other  14 candidates (including the returned candidate) respondent No. 2 could  not have  become the  candidate who had secured the highest number of votes at the election. [639C-E]      The High Court was, therefore, right in taking the view that the  appellant or  any other  party had  not placed any satisfactory evidence  to reach  the conclusion  that all or sufficient number  of wasted  votes which  had been  cast in favour of  respondent No.  8 would  have gone  in favour  of

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respondent No.  2, had  respondent No. 8 not been one of the candidates at the election, that in the context particularly of the  poll being  heavy and the contestants being large in number, 16  in all  It was unreasonable to guess that if the respondent No. 8 were excluded from the arena of contest the wasted votes would have gone to the respondent No. 2 thereby enabling him  to succeed, and that the burden Iying upon the petitioner remained clearly undischarged and the speculative possibility did not attain the level of proof. [640B-D]      Vashist Narain Sharma v. Dev Chandra and others, ]1955] 1 -  S.C.R.  509;  Samant  N.  Balakrishna  etc.  v.  George Fernandez and  Ors. etc., [1969] 3 S.C.R. 603 and Chhedi Ram v. Jhilmit Ram and others, p ] 1984] 2 SCC 281, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  1177 (NCE) of 1986.      From the  Judgment and  order dated  17.1.1986  of  the Allahabad  High   Court  (Election   Tribunal)  in  Election Petition No. 54 of 1985.      R.K. Garg and Ravi Parkash Gupta for the Appellant.      Qamarrudin and Mrs. Qamarrudin for the Respondents.      The Judgment of the Court was delivered by 633      VENKATARAMIAH, J.  This appeal  is filed  under section 116A  of  the  Representation  of  the  People  Act,  195  l (hereinafter referred  A to  as ’the  Act’) by the appellant against the  Judgment dated  January 17,  1986 of  the  High Court of  Allahabad in  Election Petition  No.  34  of  1985 dismissing the Election Petition.      The election  to the  Uttar Pradesh  State  Legislative Assembly from  Constituenc No. 41-Gunnaur, Village Mirzapur, District  Baduan   took  place  in  early  March,  1985.  16 candidates contested at the said election. Respondent No. I- Smt. Pushpa  Devi was  declared elected having secured 23006 votes. The  next highest number of votes was secured by Shri Naurangi Singh.  He  secured  20735  votes.  The  difference between the  votes secured by Respondent No. l and the votes secured by Respondent No. 2 was in the order of 227 l votes. Respondent No.  8, who  was working as a teacher in the Babu Ram Singh  Intermediate College,  Baburala, Baduan  was also one of  the candidates  in the  election.  He  secured  3606 votes, which were more than the difference between the votes secured by  Respondent No.,  and by  Respondent No.  2.  The appellant, who  was an  elector at  the said election, filed the Election  Petition, out  of which  this  appeal  arises, contending that  Respondent No.  8, who  was  working  as  a teacher  in   the  Babu   Ram  Singh  Intermediate  College, Baburala, Baduan,  was holding an office of profit under the State Government  and,  therefore,  the  acceptance  of  his nomination by  the  Returning  officer  was  illegal.  Since Respondent No.  8 secured 3606 votes, which were higher than the difference between the votes secured by Respondent No. I and the  votes secured  by Respondent No. 2, the election of Respondent  No.   I  should  be  considered-as  having  been materially  affected  by  the  wrongful  acceptance  of  the nomination paper  of Respondent  No. 8  and the  election of Respondent No.  1 was  liable to  be set aside. The Election Petition was  contested by  Respondent No. 1. It was pleaded by Respondent  No. 1  that the  acceptance of the nomination paper of  Respondent No.  8 was not illegal since Respondent No. 8  was not  holding an  office of profit under the State Government and  secondly  even  if  the  acceptance  of  the

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nomination paper  of  Respondent  No.  8  was  illegal,  the election could  not be  set aside  since the  result of  the election was not materially affected thereby. The High Court held  that   the  acceptance  of  the  nomination  paper  of Respondent No. 8 was not illegal as Respondent No. 8 was not holding an  office of  profit under the State Government and it  further   held  that  even  if  the  acceptance  of  the nomination paper  of  Respondent  No.  8  was  illegal,  the appellant  had  not  established  that  the  result  of  the election of Respondent No. I had been materially affected on the facts and in the H 634 circumstances  of  the  case.  The  High  Court  accordingly dismissed the  petition. Aggrieved  by the  judgment of  the High Court the appellant has filed this appeal.      Since it  is possible  to dispose of this appeal on the second ground  we do  not propose  to express any opinion in this case  on the  question whether Respondent No. 8 was, in fact, holding an office of profit under the State Government or not  on the  date on which the nomination paper was filed or on  the date  of the election. We leave the said question open.      In order  to decide the second question it is necessary to set out the relevant part of section 100 of the Act which reads thus:           "100. Grounds  for declaring  election to be void-           (1) Subject  to the  provisions of sub-section (2)           if the High Court is of opinion-           ..................................................           (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  of  any                nomination, or............"      Section 100  of the Act makes a distinction between the effect of  improper rejection  of  any  nomination  and  the effect of  the improper  acceptance of any nomination on the election. If  a nomination  of any person at an election has been  improperly  rejected  the  election  of  the  returned candidate is  liable to  be set  aside without  any  further proof because  it is  difficult to  visualise the  number of votes which  the person  whose nomination  has been rejected would have  secured at  the  election  and  there  is  every likelihood  of  the  returned  candidate  not  securing  the highest number of votes. It is for this reason clause (c) of section 100(1)  of the  Act states that if the High Court is of the  opinion that  any  nomination  has  been  improperly rejected it  shall declare  the  election  of  the  returned candidate to  be void.  Sub-clause (i) of clause (d) of sub- section (1)  of section  100 of  the Act is, however, worded differently. It  says that  if the  High Court is of opinion that the  result of  the election insofar as it concerns the returned candidate  has  been  materially  affected  by  the improper acceptance of any nomination it 635 shall declare  the election  of the  returned  candidate  as void. Sub-clause (i) of clause (d) of section 100( I) of the Act  requires  a  petitioner  in  an  election  petition  to establish two  grounds in  order to  get the election of the returned candidate  set aside,  namely, (i)  that there  has been improper acceptance of any nomination; and (ii) that by reason of  the entry  of the  candidate whose nomination has been improperly  accepted into the contest the result of the

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election insofar  as the returned candidate is concerned has been  materially   affected.  The   reason  for   making   a distinction between  a case  falling  under  clause  (c)  of section 100(1)  of the  Act and  a case  falling under  sub- clause (i)  of clause  (d) of section 100( I) of the Act can be explained  with reference  to a hypothetical case. Let us assume  that  the  returned  candidate  has  secured  at  an election 30,000  votes and 20,000 votes have been secured by a candidate  who has  secured the  next  highest  number  of votes.  We  shall  assume  that  a  third  candidate,  whose nomination paper  had been  improperly accepted  has secured just 1000  votes. In  this case  even if  it is  held  while deciding an  election petition  that the  nomination of  the third candidate  has been  improperly accepted,  there is no justification to  set aside  the election  of the successful candidate because even if all the votes secured by the third candidate are  added to  the candidate  who has  secured the next highest  number of  votes he  would be a person who has secured 21000 votes and the successful candidate would still be a  person who  has secured the highest number of votes at the election.  In this  hypothetical case  it has to be held that the  result of  the election  has not  been  materially affected at  all. Such  election petition has necessarily to be rejected.  This Court  was called  upon to  decide a case similar to  the present  one in Vashist Narain Sharma v. Dev Chandra and  others. [1955]  1 S.C.R.  509. In that case the returned candidate  Vashist Narain  Sharma had secured 12868 votes and Vireshwar Nath Rai secured the next highest number of votes, i.e.,10,996. The difference in the number of votes secured by  these two candidates was 1872. Another candidate by name  Dudh Nath  at the  election, whose  validity was in issue in  that case, had secured 1983 votes. There were also two other candidates in the field. One of the grounds in the election petition,  out of  which the  above case arose, was that the election of the returned candidate was liable to be set aside  since the  nomination paper of Dudh Nath had been improperly accepted  by the Election Commissioner. The Court in that case held that the burden of proving that the result of the  election had  been materially affected on account of the  improper   acceptance  of   a  nomination  was  on  the petitioner and that even if there was wrongful acceptance of the nomination  having regard to the number of votes secured by the  several candidates  it was not possible to hold that the 636 result of  the election  had been  materially  affected.  In Samant N. Balakrishna etc. v. George Fernandez and Ors etc., [1969] 3  S.C.R. 603 section 100( l)(d)(i)) of the Act again arose for  consideration. In  that case this Court commented at pages  643-644 on the decision in Vashist Narain Sharma’s case (supra) thus:-           "Mr. Chari  relies upon  the rulings of this Court           where it  has been  laid down  how the  burden  of           proving  the   effect  on  the  election  must  be           discharged. He  referred to  the case  reported in           Vashist Narain  Sharma v. Dev Chandra and Surendra           Nath Khosla  v. Dilip  Singh and the later rulings           of this  Court in  which Vashist Narain’s case has           been fol. lowed and applied.                In  our   opinion  the   matter   cannot   be           considered on  possibility. Vashist  Narain’s case           insists on  proof. If  the margin  of  votes  were           small  something  might  be  made  of  the  points           mentioned by  Mr. Jethmalani.  But the  margin  is           large and  the  number  of  votes  earned  by  the

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         remaining candidates also sufficiently huge. There           is no  room, there fore, for a reasonably judicial           guess. The  law requires proof. How far that proof           should  go  or  what  it  should  contain  is  not           provided by the Legislature. In Vashist’s case and           in  Inayatullah   v.   Diwanchand   Mahajan,   the           provision was  held  to  prescribe  an  impossible           burden. The law has however remained as before. we           are bound  by the  rulings of  this Court and must           say that  the burden  has  not  been  successfully           discharged. We cannot overlook the rulings of this           Court and follow the English rulings cited to us."      The very  same question was considered by this Court in Chhedi Ram  v. Jhilmit  Ram and others, 1984] 2 SCC 281 by a bench of  which one  of us (Venkataramiah, J.) was a member. The judgment  in that case was delivered by Chinnappa Reddy, J. In  that case  the returned  candidate  Jhilmit  Ram  had secured 17,  822 votes  and Chhedi  Ram, the  runner-up  had secured  17449   votes.  Thus  the  difference  between  the successful candidate  and the  candidate  who  secured  next highest  votes   was  373   votes.  There  were  four  other candidates, of  whom Moti Ram secured 6710 votes. Chhedi Ram challenged the  election of  Jhilmit Ram  on the ground that Moti Ram was a Kahar by caste, not entitled to seek election from the  reserved constituency,  i.e., his  nomination  had been improperly  accepted and  the result  of  election  was materially affected.  The High Court found that Moti Ram was a Kahar by caste 637 and not  a member-of the scheduled Castes. Having arrived at the conclusion  that Moti Ram’s nomination had been accepted improperly, the High Court was not prepared to set aside the election of  Jhilmit Ram as it took the view that the result of the  election had not been shown to have been affected in view of  the improper  acceptance of  the nomination of Moti Ram. The  election petition  in that  case  was,  therefore, dismissed. Chhedi Ram then preferred an appeal to this Court against the  judgment of  the High Court. This Court allowed the appeal.  In the  course of the judgment Chinnappa Reddy, J. Observed thus                "2. We  are  afraid  the  appeal  has  to  be           allowed.   Under    section   l00(1)(d)   of   the           Representation of  the  People  Act,  195  1,  the           election of a returned candidate shall be declared           to be  void if  the High  Court is of opinion that           the result  of the  election,  in  so  far  as  it           concerns  the   returned   candidate,   has   been           materially affected  by the improper acceptance of           any nomination.  True, the  burden of establishing           that  the   result  of   the  election   has  been           materially affected  as a  result of  the improper           acceptance  of  a  nomination  is  on  the  person           impeaching the  election. The  burden  is  readily           discharged  if   the  nomination  which  has  been           improperly accepted  was that  of  the  successful           candidate himself.  On the  other hand, the burden           is wholly  incapable of  being discharged  if  the           candidate whose nomination was improperly accepted           obtained  a   less  number   of  votes   than  the           difference between  the number of votes secured by           the candidate  who got  the next highest number of           votes. In  both these  situations, the answers are           obvious. The  complication arises  only  in  cases           where  the   candidate,   whose   nomination   was           improperly accepted, has secured a large number of

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         votes than  the difference  between the  number of           votes secured  by the successful candidate and the           number of  votes got by the candidate securing the           next highest  number of votes. The complication is           because  of  the  possibility  that  a  sufficient           number of  votes actually  cast for  the candidate           whose nomination  was  improperly  accepted  might           have been  cast for  the candidate who secured the           highest number  of votes  next to  the  successful           candidate, so  as  to  upset  the  result  of  the           election,  but  whether  a  sufficient  number  of           voters would have so done, would ordinarily remain           a speculative possibility only. In this situation,           the answer  to the  question whether the result of           the 638           election could  be said  to have  been  materially           affected must  depend on  the facts, circumstances           and  reasonable   probabilities   of   the   case,           particularly on  the difference between the number           of votes  secured by  the successful candidate and           the candidate  securing the next highest number of           votes,  as  compared  with  the  number  of  votes           secured by  the  candidate  whose  nomination  was           improperly accepted  and the  proportion which the           number of  wasted votes  (the votes secured by the           candidate   whose    nomination   was   improperly           accepted) bears  to the number of votes secured by           the successful  candidate. If  the number of votes           secured by  the  candidate  whose  nomination  was           rejected  is   not  disproportionately   large  as           compared with the difference between the number of           votes secured  by the successful candidate and the           candidate securing  the  next  highest  number  of           votes, it  would be next to impossible to conclude           that  the   result  of   the  election   has  been           materially affected.  But, on  the other  hand, if           the number of votes secured by the candidate whose           nomination    was     improperly    accepted    is           disproportinately  large   as  compared  with  the           difference  between   the  votes  secured  by  the           successful candidate  and the  candidate  securing           the next  highest number of votes and if the votes           secured by  the  candidate  whose  nomination  was           improperly accepted bears a fairly high proportion           to the  votes secured by the successful candidate,           the reasonable  probability is  that the result of           the election  has been materially affected and one           may venture  to hold the fact as proved. Under the           Indian Evidence  Act, a  fact is said to he proved           when after  considering the matters before it, the           court either believes it to exist or considers its           existence so  probable that  a prudent  man ought,           under the circumstances of the particular case, to           act upon the supposition that it exists. If having           regard to  the facts  and circumstances of a case,           the reasonable probability is all one way, a court           must not  lay down an impossible standard of proof           and hold  a fact  is not  proved. In  the  present           case,   the   candidate   whose   nomination   was           improperly accepted had obtained 67 10 votes, that           is, almost  20 times  the difference  between  the           number  of   votes  secured   by  the   successful           candidate and  the  candidate  securing  the  next           highest number  of  votes.  Not  merely  that.  Th

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         number of  votes secured  by the  candidate  whose           nomination was  improperly accepted  bore a fairly           high proportion to the number 639           Of votes  secured by  the successful  candidate-it           was a  little  over  one-third.  Surely,  in  that           situation, the  result of  the election may safely           be said to have been affected."      In the  case before  us Respondent  No. I  had  secured 23006 votes  and Respondent  No. 2  had secured 20735 votes. The margin  thus was  of 22371  votes. Respondent No. 8, the validity of  whose nomination  was questioned,  had  secured 3606 votes.  It is  no doubt true that if we assume that all the 3606  votes secured  by Respondent No. 8 would have gone to Respondent  No. 2,  Respondent No.  2 would have been the successful candidate.  at the election. Having regard to the facts of  this case  we feel that it is not possible to hold that the  appellant in  this appeal has established that the result of  the election  of the  returned candidate had been materially affected because the difference between the votes secured by  Respondent  No.  1  and  the  votes  secured  by Respondent No.  2 was  2272  votes.  Respondent  No.  8  had secured only  about 1  7th of  the number of votes polled by the Respondent No. l and there were 15 candidates (excluding respondent  No.  8)  contesting  the  election.  It  is  not possible to  reach a  finding  in  this  case  by  making  a judicial guess  that all  the 3606  voters who  had voted in favour of  Respondent No.  8 would  have cast their votes in favour of Respondent No. 2 alone. Even if about 1350 of them had cast  their votes  in favour  of any  of  the  other  14 candidates (including the returned candidate) Respondent No. 2 could  not have  become the  candidate who had secured the highest number of votes at the election. At this stage it is relevant to  refer to  the observation of Gulam Hasan, J. In Vashist Narain Sharma’s, case (supra) which run thus:-                "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 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 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 of  confronted with a difficult situation, it           is not possible to relieve him of the duty imposed           upon him H 640           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 the  case before us we are of the view that the High Court was right in observing that the appellant or any other party had  not placed  satisfactory evidence  to  reach  the

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conclusion that  all or  a sufficient  number of  the wasted votes which  had been  cast in  favour of  Respondent No.  8 would  have   gone  in  favour  of  Respondent  No.  2,  had Respondent No.  8 not  been one  of the  candidates  at  the election. The  High Court has on the evidence before it held that "in  the context  particularly of  the poll being heavy and the  contestants being  large in  number  16  in  all-it remains unreasonable  to guess  that if the respondent No. 8 were excluded  from the  arena of  contest the  wasted votes would have gone to the respondent no. 2 thereby enabling him to succeed.  The burden  Iying upon  the petitioner  remains clearly undischarged  and the  speculative possibility  does not attain  the level  of proof."  We agree  with the  above observation of  the High  Court since  the appellant has not discharged the  burden which  clearly lay  on him or proving that the result of the election had been materially affected even assuming  that the  nomination of  Respondent No. 8 had been improperly  accepted. This  appeal  should,  therefore, fail. We  accordingly dismiss it. We, however, make no order as to costs. N.P.V.                                     Appeal dismissed. 641