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PETITIONER: CHHEDI RAM

       Vs.

RESPONDENT: JHILMIT RAM & OTHERS

DATE OF JUDGMENT05/12/1983

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR  146            1984 SCR  (1) 966  1984 SCC  (2) 281        1983 SCALE  (2)843  CITATOR INFO :  D          1988 SC 637  (2,72)  R          1990 SC  19  (20)

ACT:      Representation of  the  People  Act,  1951-S.100(1)(d)- Improper acceptance  of nomination-When  could it be said to materially affect the result of election?

HEADNOTE:      The appellant, the respondent and four other candidates contested the  election to  a legislative  assembly  from  a constituency  reserved   for  Scheduled  Castes.  While  the respondent was  declared elected,  the appellant secured the next highest  number of  votes and  the  difference  in  the number of  votes secured by them was only 373. The appellant challenged the election of the respondent on the ground that the result  of the  election had been materially effected by the  improper  acceptance  of  the  nomination  of  a  third candidate who  had secured 6710 votes. The Election Tribunal arrived at  the finding  that the  candidate in question was not a member of the Scheduled Castes and hence is nomination had been  improperly accepted,  but nevertheless, refused to set aside  the election of the respondent on the ground that the result  of the  election had not been shown to have been materially affected  as a  result of the improper acceptance of the nomination.      Allowing the appeal, ^      HELD: Under  s. 100(1)(d)  of the Representation of the People Act, 1951, the election of a returned candidate shall be declared  to be  void if the High Court is of the 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 and  the  burden  of establishing the  same  is  on  the  person  impeaching  the election.  Where   the  candidate   whose   nomination   was improperly accepted  has secured  a larger  number of  votes than the  difference between  the number of votes secured by the successful candidate and the candidate securing the next highest number  of votes,  there is  a  possibility  that  a sufficient number  of votes  actually cast for the candidate

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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.  In such a situation, the answer to the question  whether the  result of  the election  could be said to  have been  materially affected  must depend  on the facts, circumstances  and reasonable  probabilities  of  the case. If  the number of votes secured by the candidate whose nomination was  improperly  accepted  is  disproportionately large as compared with the difference 967 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. [968 F-G; 969 D-F]      Under the  Evidence Act,  a fact  is said  to be 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 as not proved. [969 G-H]      In the instant case, the candidate whose nomination was improperly accepted had obtained 6710 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. Further, the number of votes secured by  the candidate  whose nomination  was  improperly accepted bore  a fairly  high proportion  to the  number  of votes secured  by the  successful candidate-it  was a little over one-third.  In such  a  situation  the  result  of  the election may  safely be  said to have been affected. [969 H; 970 A-B]      Vashist Narain  Sharma v.  Dev Chandra,  [1955]  S.C.R. 509; and Samant N. Balakrishna v. George fernandes, [1969] 3 S.C.R. 603; explained and distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 688 of 1981.      From the  Judgment and Order dated 5th January, 1981 of the Allahabad  High Court  at Allahabad in Election Petition No. 25 of 1980.      S.C. Birla and R.L. Kureel for the Appellant.      Yogeshwar  Prasad   and  Ms.   Rani  Chhabra   for  the Respondent No. 1      Pramod Swarup for Respondent No.2.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. At  the General  Election  to  the Uttar Pradesh  Vidhan Sabha  held in  1979, Jhilmit  Ram was elected from 968 the Jakhsuie Constituency reserved for the Scheduled Castes. He secured  17822 votes,  Chhedi Ram,  the runner-up secured 17449 votes.  Thus the  difference  between  the  successful candidate and  the candidate  who secured  the next  highest number of  votes  was  373  votes.  There  were  four  other

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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, that his nomination had been improperly accepted  and that the result of the election was materially affected.  The Election  Tribunal found that Moti Ram was  a Kahar  by caste and not a member of the Scheduled Castes. It  rejected the  evidence offered on behalf of Moti Ram that  be was  a Gond  and not  a Kahar  and  recorded  a finding  that   deliberate  attempts   had  been   made   to manufacture evidence  to show  that Moti Ram was a Gond. The Tribunal also noticed that Moti Ram himself was not prepared to enter the witness box to give evidence. Having a rived at the finding  that Moti  Ram’s nomination had been improperly accepted, however,  the Tribunal  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 materially affected  as a  result of the improper acceptance of the  nomination. The  election petition  was,  therefore, dismissed. Chhedi Ram has preferred this appeal.      We are  afraid the appeal has to be allowed. Under sec. 100(1)(d) of the Representation of the People Act, 1951, 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  successful candidate and  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 larger  number of votes than the difference between the number of votes secured by 969 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 east 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 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

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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 impossibility 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  disproportionately  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  be  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 standards of proof and hold a fact as not proved. In  the present case, the candidate whose nomination was improperly  accepted had  obtained 6,710 votes, that is, almost 20 times the difference between 970 the number  of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that.  The number  of votes  secured by the candidate whose nomination  was improperly accepted bore a fairly high proportion to  the number 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.      The learned  counsel for  the respondents  invited  our attention to  the decisions  of this court in Vashist Narain Sharma  v.   Dev  Chandra   and  Others(1),  and  Samant  N. Balakrishna v.  George  Fernandez  and  Others,  etc.(2)  In Vashist Narain  case, the  difference between  the number of votes secured  by the successful candidate and the number of votes secured  by the  candidate who  got the  next  largest number of  votes was  very nearly  the same as the number of votes  secured   by  the   candidate  whose  nomination  was improperly accepted.  Unless it was possible to say that all the wasted  votes would  have  gone  to  the  candidate  who secured the  highest number  of votes next to the successful candidate, it  was not  possible to  hold that the result of the election  had been  materially affected. It was in those circumstances that Ghulam Hasan, J. observed:           "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 one  to predicate how      many of which proportion of the votes will go to one or      the  other   of  the   candidates.  While  it  must  be

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    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 971      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".      We do  agree with  the observations of Ghulam Hasan, J. in the  context of  the facts  of that  case. It  does  not, however, mean  that whatever  the number of wasted votes and whatever the  margin of  difference between  the  number  of votes secured  by the successful candidate and the number of votes secured by the next highest candidate, the court would invariably hold that the result of the election had not been materially affected. In an appropriate case having regard to the margin  of difference  between the  votes secured by the successful candidate  and the  candidate securing  the  next highest number  of votes  and  the  proporation  which  such margin bears  to the wasted votes, it is permissible for the court to  hold that the burden of proving that the result of the  election   has  been   materially  affected   has  been discharged.      In Samant Balakrishna’s case, the court observed:           "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.  Hethamalani. But  the      margin is  large and  the number of votes earned by the      remaining candidates  also sufficiently  huge. There is      no room,  therefore, for  a reasonable  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  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 do  not think that this case lays down any different principle than what we have already said. On the other hand, the sentence  underlined by  us  indicates  that  where  the difference between  the  number  of  votes  secured  by  the successful candidate  and the number of votes secured by the highest candidate  is marginal,  it may  be possible  in the circumstances of a case to hold that the 972 burden has  been discharged.  We have  already indicated our view that  in this  case,  the  burden  has  certainly  been discharged.      An attempt  was made  by the  learned counsel  for  the respondents to dislodge the finding of the Election Tribunal that Moti  Ram was  a Kahar  and not a Gond. But having gone through the  relevant evidence, we affirm the finding of the Election Tribunal  and agree with the Election Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was a  member of the Scheduled Castes. In the circumstances, the appeal has to be allowed. We do so but without costs. H.L.C.                                      Appeal allowed. 973