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PETITIONER: PAOKAI HAOKIP

       Vs.

RESPONDENT: RISHANG & ORS.

DATE OF JUDGMENT: 12/08/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) MITTER, G.K.

CITATION:  1969 AIR  663            1969 SCR  (1) 637  CITATOR INFO :  RF         1970 SC2097  (152)  F          1988 SC 637  (8,9,11,12)

ACT: Representation of the People Act (43 of 1951), s. 100.(1)(d) (iv)-Election  petitioner  to prove that   election   result materially  affected-Evidence of witnesses, evaluation.

HEADNOTE: In  an  election  to a  Parliamentary  constituency,  having 2,19,554 voters 1,20,008 votes were polled.  of these  4,168 votes were declared  invalid. The appellant won by  securing 1,541  votes  more than the next candidate  the  respondent. The respondent filed an election petition on the ground that the  polling  was disturbed as the polling centres  were  in some cases changed without due notification, at some polling stations  almost  no votes were cast because of  fi’ring  at rioters and at some polling  stations the polling hours were reduced.  Only  1,894  votes were polled  at  these  polling booths,  in which the total number of voters  attached  were 8,620.  so  6,726  voters  could  not  vote.   The  Judicial Commissioner  ordered fresh poll in these polling  stations. In appeal by the returned candidate, this Court. HELD: The appeal must succeed. The decision of the Judicial Commissioner that the  election was in contravention of the Act and the Rules was correct in the  circumstances   this case but that did  not  alter  the position   with   regard  to  s.  100(1)(d)  (iv)   of   the Representation  of  the People Act.  That  section  requires that  the election petitioner must go a little  further  and prove  that  the result of the election had been  materially affected.  And  in  this  case  this  burden  had  not  been discharged. [643 F] The  evidence  in this case which had been brought  by   the election  ’petitioner  was the kind of  evidence  which  was criticised   by  this Court. Witnesses were brought  forward to state that a number of voters did not vote because of the change  of  venue or because of firing  and that   they  had already decided to vote en bloc for the election petitioner. This kind of evidence was merely an assertion on the part of a  witness,  who  could not speak ’for 500  voters  for  the simple  reason that as this Court said the casting of  votes

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at  an election depends upon a variety of factors and it  is not  possible  for  anyone to predicate how  many  or  which proportion of votes wilt go to one or the other  candidates. This  conclusion  is further forified if  one  examines  the polling pattern in this election.  Not more than 55% of  the voters  cast  their votes. !This immediately cut  down  the’ figure  of 6,726 to a little over half and the  margin  from which  the election petitioner could claim additional  votes therefore  becomes exceedingly small.  From the  pattern  of voting  as was  disclosed at the various polling  booths  to which  the voters had gone, it was clear, that  1,541  votes could not. by any reasonable guess, have been taken off from the  lead  of  the returned candidates so  as  to  make  the election  petitioner  successful. ’In ,so far as  the  other contesting  candidates were concerned, they had received  so few votes that even if they had received all the votes  that had  not  been cast, it would have mattered  little  to  the result  of the election.  The Judicial Commissioner  reached his  conclusion  by  committing the  same  error  which  was criticised  in  Vashist  Narain Sharmas case.  He  took  the statement  of witnesses at their word and held on the  basis of 638 these  statements that all the votes that had not been  cast would have gone  to the election petitioner. [642 B-643 E] Vashist  Narain  Sharma  V. Der Chandra and  Ors.  [1955]  1 S.C.R. 509, followed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION:   Civil Appeal  No.  683  of 1968. Appeal  under s. 116-A of the Representation of  the  People Act, 1951 from the Judgment and order dated January 10, 1968 of  the  Judicial  Commissioner  of  Manipur  in    Election Petition Case No. 2 of 1967. D. Goburdhun, for the appellant. K.R.  Chaudhuri, K. Rajendra Chaudhuri and  C.S.  Sreenivasa Rao, for respondent No. 1. The Judgment of the Court was delivered by Hidayatullah, C.J.  This is an appeal from the Court of  the Judicial Commissioner for Manipur at Imphal under s. 116A of the  Representation of People Act.  The appeal arises  ’from an election to the Outer Mareput Parliamentary  Constituency at which the appellant, who was the returned candidate,  and five  others  were the contesting  candidates.   This  Outer Mareput  Constituency comprised 14 Assembly  constituencies. The dates of poll were 15th, 20th, 24th, 28th February,  and 6th  March, 1967 and the time of poll was from 7-30 A.M.  to 4-30 P.M. This constituency had 2,19,554 registered  voters. The  total  number of votes polled was 1,20,008.   Of  these 4,166  votes were declared invalid.  The returned  candidate received  30,403  votes as against the  next  candidate  who received  28,862 votes.  There was thus a majority of  1,541 votes in favour of the returned candidate. The result of the poll was declared on March 10, 1967. The candidate who secured the second largest number of votes filed  this election petition on April 20, 1967.   The  main ground   of   attack,  which  succeeded  in   the   Judicial Commissioner’s   Court,  was  that the  poll  was  disturbed because   of  numerous circumstances.  These were  that  the polling  centres   were   in some  cases  changed  from  the original   buildings  to  other  buildings  of   which   due notification  was  not issued earlier with the  result  that

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many  of  the’ voters who went to vote at  the  old  polling booths  found no arrangement for poll and rather than go  to the  new  polling station, went away without  casting  their votes.  ’The second ground was that owing to firing  by  the Naga  Hostiles, the voting at some of the  polling  stations was   disturbed   and  almost no votes were  cast.   It  was lasfly  contended  that the polling hours at  some  stations were  reduced  with the result that some of the  voters  who went to the polling station were unable to cast their votes. 639 It  is  hardly necessary to set down here the names  of  the polling  stations  at which these things happened.   In  any event, these pelting stations carry rather strange names and it would not help to state them here.  The net result may be stated.  It was this there were 12 polling centres, at 4  of which  the  venue for the poll was altered.   There  were  6 others  at which the firing disturbed the poll and In  2  of the  polling. centres not a single vote was cast and  lastly in  one  of the polling centres out of 513 voters  only  one voted. The following chart discloses the break-up of the figures at these polling centres: SR.                                         No. of    No. of No.     Name of the polling stations         voters    votes         (as notified)                     attached  actually                                             to the    cast                                             station 1.Tungam Khullen High School     ........     1,242      522 2.ChandelJunior Basic School    ........      1,060      172 3. Purum Pantha L.P. School  .........          654      338 4. Litan L.P. School  ............              449      347 5. Toupokpi M.E. School  ......                 584      128 6.Chakpikarong     M.E    School.......          715      67 7.Bolyang Tampak L.P. School...........          868     249 8.Oklu L.P.School .................              725      17 9.Lorong Khullen J.B.School.........             581      53 10.Lakhmei M.E.School..............              665      -- 11.Nagri Khullen M.E.School ..........           564      -- 12.Karong Dak Bumgalow..............             513       1 It  will be noticed from this chart that out of 8,620  votes which could have been polled, only 1,894 votes were actually received. In other words, 6,726 voters did not vote or could not vote. The election petitioner who ran a deficit of 1,541 votes  claimed in the election petition that the  result  of the  poll was prejudicial to him in particular and friar  by the  non-compliance with the provisions of the Act  and  its rules, the result of the election in so, far as the returned candidate  was concerned had been materially  affected.  The Judicial  Commissioner after  examining  a  large number  of witnesses  on both sides, came to the conclusion that  there was  this  flaw in the election for this  constituency.   He went further and held that the result of the election in  so far  as  it  concerned the returned   candidate   had   been materially  affected.  He, therefore, avoided  the  election and ordered fresh poll in the 12 polling stations. In   this  appeal,  the  returned  candidate  attempted   to establish  that  polling  was not so  disorganised  that  it could be said that 340 it did not take place.  He attempted to show that even where the  polling  station was shifted, it was a  matter  of  few hundred  yards  and  the people went to vote  knew  the  new location of the polling booths.  He also submitted that,  in any event, this had, affected all the contesting  candidates equally    and    the   election.  petitioner   could   not,

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therefore,  be  said to have suffered more’ than  the  other candidates.   Lastly, the returned candidate contended  that it had not been established in accordance with the ruling of this  Court  in Vashist ,Narain Sharma v.  Dev  Chandra  and others(1)   that  the  result  of  the  election  had   been materially affected so far as his election was concerned. In this  connection,  the returned candidate  relies  upon  the majority  which  he had already obtained and refers  to  the votes  which  had not been cast, pointing out  that  on  the general  pattern of the voting as disclosed in the  case  it cannot  possibly be said that the election petitioner  would have  carried  such  a majority from those   votes   as   to neutralise  the successful lead he had already  established. The election petitioner as the answering respondent tried to establish that the pattern of the voting clearly showed that the returned candidate had obtained a fortuitous lead  which was  capable of being wiped off if the voting had  proceeded according to the Act and the Rules.  Both sides relied  upon statistics   to   establish  their  cases.    The   election petitioner in addition relied upon the evidence of witnesses which  he  pointed out had been accepted  by  the  Juclicial Commissioner  and  upon  the  observations  of  this   Court contended  that  we  should  not  lightly  depart  from  the findings given by the learned Judicial Commissioner. This case without  entering into the  numerous  details,  is confined to the above contentions of the rival parties.   To begin  with,  it is hardly necessary for us to go  over  the evidence with a view to ascertaining whether there had  been or  not a breach of the Act and the rules in the conduct  of the election at this constituency.  We may say at once  that having read the evidence we are in entire agreement with the decision  of the learned Judicial Commissioner that  by  the change of venue and owing to the firing, a number of  voters probably failed to record their votes which they would  have gone  if the poll had gone  on  smoothly  and  according  to rules.  This shows that the matter is governed  by s. 100(1) (d) (iv). The  question remains still whether the condition  precedent to the avoidance of the election of the returned   candidate which requires proof from the election petitioner ’that  the result  of the election had been materially affected  in  so far  as  the   returned candidate was  concerned,  has  been established  in  the  present case. This  part  of-the  case depends upon the ruling of this Court  in (1) [1955] 1 s.C.R. 509. 641 Vashist  Narain Sharmas case(1).  In that case there  was  a difference  of 111 votes between the returned candidate  and the  candidate  who had obtained the next higher  number  of votes.   One candidate, by name Dudh Nath Singh,  was  found not  competent to stand and the question arose  whether  the votes wasted on Dudh Nath Singh, if they had been polled  in favour  of the remaining candidates, would  have  materially affected  the fate of the election. Certain principles  were stated  as to how the probable effect upon the  election  of the successful candidate of  votes  which  were. wasted  (in this case not cast) must be worked out.  Two witnesses  were brought  to depose that if Dudh Nath Singh had not,  been  a candidate  for  whom no voting had to be  done,  the  voters would have voted for the next successful candidate.   Ghulam Hasan,  J.  did  not accept this kind of  evidence.   It  is observed as follows:               "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

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             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." In another passage, it is observed:               "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 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               s.  100(1)(c) and hold without  evidence  that               the. duty has been discharged." Further  it  is  pointed out that the  burden  of  proof  in England  the exact reverse of that laid down by the   Indian statutes.  There, the returned candidate has to  prove  that the non-compliance or mistake does not affect the result  of the   election.  In   our country, the burden  is  upon  the election   petitioner   to   ’show  affirmatively  that  the result of the ’election has been materially’ affected. (1) [1955] 1 S.C.R. 509. 642 Therefore,  what we have to see is whether this  burden  has been  successfully discharged by the election petitioner  by demonstrating  to  the  court  either  positively  or   even reasonably  that  the.  poll would  have  gone  against  the returned  candidate  if  the breach     the  rules  had  not occurred and proper poll had taken place at’ all the polling stations including those at which it did not. The  evidence  in  tiffs  case which  led  by  the  election petitioner  is the kind of evidence which was criticised  by this  Court.  Witnesses have stated that a number of  voters did  not vote because of the change of venue or  because  of firing  and  that they had decided to vote en bloc  for  the election  petitioner.   This kind of evidence is  merely  an assertion  on the part of each witness, and he cannot  speak for 500 voters for the simple reason that as this Court said the  casting of votes at an election depends upon a  variety of  factors and it is not possible for anyone  to  predicate how many or which proportion of votes will go to one or  the other  of  the candidates.  We cannot therefore  accept  the statement  even  of a Headman that the whole  village  would have  voted in favour of one candidate to the  exclusion  of the others. This  conclusion  is further fortified if one  examines  the polling  pattern  in this election.  To begin  with,  it  is wrong  for  the election petitioner to contend that  of  the 6,726 votes which were not cast, he would have received  all of  them.   The  general pattern of poll not  only  in  this constituency  but  in  the whole of India is  that  a11  the voters  do  not always go to the polls.  In  fact,  in  this case,  out  of  2,19,554 voters, only  1,20,008  cast  their votes.   Even if we were to add to them the 6,726 votes,  it is obvious that not more than 5 5 % of the voters would have gone to the polls.  This immediately cuts down the figure of 6,726  to a little over half and the margin from  which  the

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election petitioner could claim additional votes  therefore. becomes  exceedingly small.  When we turn to the pattern  of voting,  as  is disclosed at the various polling  booths  at which  the voters had in fact gone, we get reasonably  clear picture.   At  9 polling centers, 1893 votes  were  actually polled.   Of these, 524 votes were received by the  election petitioner and 413 by the returned candidate and 1,097 votes went  to  the other candidates.  In other words, out  of  20 votes,  11  went  to other candidates,  5  to  the  election petitioner and 4 to the returned candidate.  If one goes  by the  law of  averages  and applies these figures  reasonably to   half  of  the  votes  which  were   not  cast,  it   is demonstrated at once that the election petitioner could  not expect to wipe off the large arrears under which he  labored and  that he could not have therefore made a successful  bid for the seat even with the assistance of the voters who  did not  cast  their votes.  It is pointed out  that  at  Tungam Khullen High 643 School, he received 401 out of 522 votes.  If this had  been the  general pattern, one could say that he would  have  got almost  the votes that had not been cast.  But look  at  the other  polling stations.  At Litan L.P. School, he  obtained 41 out of 347, at Chandel Junior Basic School he got 34  out of 172, at Purum Pantha L.P. School he got 11 out of 338, at Toupokpi  M.E. School 18 out of 128, at Oklu L.P.  School  8 out  o.f  17, at Chakpi Karong M.E. School 2 out of  67,  at Larong Khullen L.P. School 1 out of 53 and at Bolyang Tampak L.P.  School  8  out  of 249. While we  do  not  think  that statistics can be called in aid to prove such facts, because it is notorious that statistics can prove anything and  made to  lie  for either case, it is open to us in  reaching  our conclusion  to pay attention to the demonstrated pattern  of voting.   Having done so, we are quite satisfied that  1,541 votes  could not, by any reasonable guess, have  been  taken off  from the lead of the returned candidate so as  to  make the election petitioner successful.  In so far as the  other contesting  candidates are concerned, they had  received  so few votes that even if they had received all the votes  that had not been cast, it would not have mattered little to  the result  of the election.  The learned Judicial  Commissioner reached his conclusion by conrefitting the same error  which was  criticised  in Vashist Narain Sharing’s(1))  case.   He took  the statement of the witnesses at their word and  held on the basis of those statements that all the votes that had not  been cast would have gone to the  election  petitioner. For  this, there is no foundation in fact; it is  a  surmise and  it is anybody’s guess as to how these people,  who  did not vote, would have actually voted. In  our  opinion,  the  decision  of  the  learned  Judicial Commissioner  that the election was to contravention of  the Act  and the Rules was correct in the circumstances of  this case; but that does not alter the position with regard to s. 100(  1 )(d)(iv) of the Act. That section requires that  the election petitioner must go a little further and prove  that the result of the election had been materially affected. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in  his attempt and therefore the election of  the  returned candidate  could not be avoided.  It is no doubt  true  that the  burden which is placed by law is very strict;  even  if it.  is strict it is for the courts to apply it.  It is  for the  Legislature to consider whether it should  be  altered. If  there is another way of determining the burden, the  law should  say  it and not the courts.  It is only   in   given

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instances  that,  taking the law as it is,  the  courts  can reach  the conclusion whether the burden of proof  has  been successfully  discharged by the election petitioner or  not. We are satisfied that in this case this burden has not  been discharged.  The result is Sup. Cl/69--10 644 that  the  appeal  must  succeed and  it  is  allowed.   The election of the returned candidate will stand. The costs  in the Judicial Com.missioner’s Court will be as ordered.   The election petitioner who apparently was not so much at  fault as  the Government in changing the polling  stations,  shall bear only half the  costs  of  the appellant in this Court. Y.P.                                        lippeal allowed. 645