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PETITIONER: SURENDRA NATH KHOSLA

       Vs.

RESPONDENT: DALIP SINGH

DATE OF JUDGMENT: 29/11/1956

BENCH:

ACT: Election-Improper  rejection  of  nomination   Paper-Whether result  of  the election  materially  affected  Presumption- Double  member constituency -Whether election  wholly  void- Attestation  Thumb  impression  of  Proposer  and  seconder- Whether  Properly attested-The Representation of the  People Act, 1951  XLIII of 1951), s. 100(I)(c)-The  Representations of the  People (Conduct of Elections and Election Petitions) Rules, 1951, r. 2(2).

HEADNOTE: Twelve candidates filed nomination papers for election  from a double member constituency for the State Assembly, one  of the seats being reserved for the Schedule Castes.  The thumb impressions of the proposer and seconder of a candidate were attested  by  a magistrate specified in this behalf  by  the Election  Commission.   But  there had  been  a  mistake  of omission of the name of the magistrate in the  communication sent  by the Election Commission to the  local  authorities. The  returning officer rejected the nomination paper on  the ground  that  there was no proper attestation of  the  thumb impressions  of  the  proposer and  seconder.   An  election petition  was filed to set aside the election on the  ground that  the nomination paper had been rejected improperly  and that  this  had  materially  affected  the  result  of   the election.   The  Election  Tribunal  set  aside  the  entire election: Held, (1) that the magistrate having in fact been  specified by the Election Commission, the attestation by him was  good attestation,  and the rejection of the nomination paper  was improper,(2)that  in the case of an improper rejection of  a nomination paper there was a presumption that the result  of the election had -been materially affected, and (3) that the whole  election,  including  that  of  the  Schedule   Caste candidate, was void. Vasisht Narain Sharma v.  Dev Chandra, (1955) 1 S.C.R.  509, Hari Yishnu Katnath v.  Syed Ahmad Ishaque, (1955) 1  S.C.R. 104, distinguished. Chatturbhuj Vithaldas jasani v. Moreshwar Parashram,  (1954) S.C.R. 817, and Karnail Singh v. Election Tribunal,  Hissar, 10 Elec.  Law Reports, 189, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 23 of 1956. Appeal against the judgment and order dated August 26, 1955, of the Election Tribunal, Patiala, in Election Petition  No. 12 of 1954.

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180 Gopal Singh, for the Appellants. Jagan Nath Kaushal and Naunit Lal, for respondent No. 6. 1956.  November 29.  The Judgment of the Court was delivered by SINHA  J.-This appeal by special leave is  directed  against the majority judgment and order of the Election Tribunal  of Patiala,   dated   August  26,  1955,  declaring   the   two appellants’  election to be void on account of the  improper rejection of the nomination paper of Buta Singh,  respondent 18. In order to appreciate the arguments raised on behalf of the appellant,%  it is necessary to state the following facts  : The   appellants  and  respondents  2  to  18  filed   their nomination  papers  on January 9,1954, for election  from  a double   member   constituency  of  Samana  to   the   Pepsu Legislative  Assembly.  Of the two seats, one  was  reserved for  the  Schedule  Caste  and  the  other  was  a   general constituency.   Scrutiny  of the nomination  papers  by  the Returning  Officer  took  place on January  13,  1954.   The Returning Officer accepted all the nomination papers  except that  of Buta Singh aforesaid on the ground that  the  thumb impressions  of the proposer and the seconder had  not  been attested  by  an  officer in accordance  with  the  Election Rules.   Polling  took place on February 24, 1954,  and  the results  announced  in the Pepsu Gazette on March  4,  1954. The results thus announced showed that the first  appellant, Suren  Ara  Nath Khosla, had obtained 13,853  votes  in  the general constituency and the second appellant, Pritam Singh, had polled 13,663 votes for the reserved seat.  They  having secured  the largest number of votes from  their  respective ’constituencies  were  declared to have been  duly  elected. The other candidates got smaller number of votes which it is not  necessary to set out here.  Buta Singh aforsaid,  whose nomination paper had been rejected by the Returning Officer, did  not take any further steps, But Dalip Singh, the  first respondent,  filed  an election petition with  the  Election Commission,  respondent  19.   The  election  petition   was enquired into by the Election Tribunal 181 consisting,  of  three  persons,  one  of  them  being   the Chairman.   A  number  of issues  were  joined  between  the parties.   The Chairman and another member of  the  Tribunal decided  the material issues 1 and 4 in favour of the  first respondent  to the effect that the 18th respondent had  been duly  proposed and seconded, that the Returning Officer  had wrongly  rejected his nomination paper and that as a  result of that rejection the result of the election as a whole  had been  materially affected.  On those findings they  declared the  election void as a whole and set aside the election  of the  appellants.   The third member of the  Tribunal,  while agreeing  with the majority in their judgment on  the  other issues,  disagreed with them on the most material  issue  in the  case,  namely,  issue  4,  and  held  that  the   first respondent had failed to prove, that the wrong rejection  of the  nomination paper of the 18th respondent had  materially affected  the result of the election.  The appellants  moved this  Court  and obtained special leave to appeal  from  the majority  judgment  declaring the election to be void  as  a whole. The  appeal was first placed for hearing before  a  Division Bench of three Judges on March 23,1956.  That Bench directed that the papers be laid before the Hon’ble the Chief Justice for having the case heard by a larger Bench because in their view  the case raised a difficult and important point  about

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election  law.   They  made  reference  to  the  full  Court decision  in  Hari Vishnu Kamath v. Syed  Ahmad  Ishaque(1), which  upheld the earlier decision of this Court in  Vasisht Narain  Sharma  v. Dev Chandra(2), as  authorities  for  the proposition  that the burden of proof is on the  person  who seeks to challenge the election and that he must prove  that the  result of the election has been materially affected  by the  improper  rejection of the non  lination  paper.   They indicated the difficulty of discharging such a burden unless some sort of presumption was called in aid of the petitioner who sought to have the election set aside. In this Court learned counsel for the appellants has  raised three questions for our determination:. (1) That (1) [1955] 1 S.C.R. 1104, (2) [1955] 1 S.C.R. 509. 182 the first. issue had been wrongly determined by the Election Tribunal  and that it should have been held that  the  thumb impressions  of  the  proposer  and  seconder  of  the  18th respondent  had not been properly verified according to  the Election  Rules  and  that therefore the  rejection  of  the nomination  paper by the Returning Officer was justified  by law. (2) Assuming that the nomination paper had been wrongly rejected, the fourth issue had been wrongly decided by  the, majority  in so far as it held that there was a  presumption that the wrong rejection of the nomination had the necessary result  of  materially affecting the election and  that  the evidence  led on behalf of the appellants  had  not-rebutted that  presumption.   It  was  further  contended  that   the minority  judgment on issue No. 4 to the effect that it  was for  the first respondent, who ,sought to have the  election set aside, to prove that the result of the election had been materially affected on account of the wrong rejection of the nomination  paper  of the 18th respondent was  correct,  and that  he had failed to establish that by evidence. (3)  That in any case, the election of the second appellant in respect of the reserved seat should not have been set aside. The first issue is in these terms: "  Whether  respondent  No. 19 (respondent No.  18  in  this Court) was duly proposed and seconded and thumb  impressions of  the  proposer and the seconder on his  nomination  paper were attested in accordance with law?" The  Tribunal  took the view that as a matter  of  fact  the respondent  Buta Singh had been duly proposed and  seconded’ The  learned  counsel for the appellants did  not  challenge that  finding  of fact.  But he contended that  the  further finding  of the Tribunal that the thumb impressions  of  the proposer  and the seconder on the nomination paper had  been attested  in  accordance with law is erroneous.  As  to  the regularity of the attestation, the matter depends, upon  the rules framed under the provisions of the Representation’  of the People Act, XLIII of 1951 (hereinafter referred 183 to  as  the Act), particularly r. 2(2). which is  in,  these terms: "  For the purposes of the Act or these rules, a person  who is  unable  to,  Write his  name  shall,,  unless  otherwise expressly  provided in these rules,be deemed to have  signed an instrument or other paper if he has placed a mark on such instrument  or other paper in the presence of the  Returning Officer  or the presiding officer or such other  officer  as may be specified in this, behalf by the Election  Commission and  such officer on being satisfied as to his identity  has attested the mark: as being the mark of such person." In  this case the nomination had been attested by  a,  local

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magistrate and the Tribunal after referring to the  relevant evidence  has recorded the finding that magistrate had  been specified  by the, Election Commission in that behalf.   The question,  therefore, is essentially one of fact.   But  the learned counsel for the appellants contended that, as  found by the Tribunal, there had been a mistake of omission in the communication  from, the Election Commission to  the  local, election  officer  and  that such a  mistake,  clerical  or. accidental  though  it  may have been,  has  the  effect  of rendering the act station unacceptable.  We are not prepared to  accede  to that contention as sound in  principle.   The Tribunal having found as a fact that the persons whose thumb impressions  the  nomination paper. purported to,  bear  had really  proposed and seconded the candidate and  that  those thumb impressions had -been attested by a magistrate who had in,  fact been authorised in that behalf, there is no  room; for the contention that, the Returning Officer was justified in  rejecting the nomination paper in question.   The  first ground of attack therefore fails. The  second ground of attack is based on issue No. 4,  which is in these terms: "  Whether  the  rejection  of  the  nomination  ’paper  of, respondent,  No.  19 (respondent No. 18 in this  Court)  had materially, affected the result of the election." On   his issue the  majority of the Tribunal took  the  view that in a case where a nomination, paper had 184 been improperly rejected there is a strong presumption  that the result of the election has been materially affected.  It referred  to  a  large  number  of  decisions  of  different Election  Tribunals both before and after the  enactment  of the Act to show that the view taken in most of the decisions was  that  in a case like this there was  a  presumption  in favour  of holding that the result of the election had  been materially  affected and that. the burden lay,on the  person seeking to uphold the election to prove the contrary.   They gave effect to, that presumption and held that the evidence: ’Adduced by the appellants (then respondents) did not  rebut that  presumption.  The learned counsel for  the  appellants invited our,attention to the words of the statute..  Section 100(1)(c) is in these terms-: "If the Tribunal is of opinion (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." He  argued  that  the  legislature  has  placed  "  improper acceptance  "  and " improper rejection "  of  a  nomination paper  on the same footing, and the condition  precedent  to the  declaration  of  an election to be  void  is  that  the Tribunal should be satisfied not only that there has been an improper  rejection  of  a nomination paper  but  Also  that improper rejection has materially affected the result of the election,  (confining the provisions of the statute  to;.the facts of the present case).  Reliance was also placed by him on the two decisions ’of this Court, namely, Vashisht Narain Sharma  v.  Dev Chandra (supra) and -Hari Vishnu  Kamath  v. Syed  Ahmad  Ishaque (supra) in support of  the  proposition that  the two conditions are cumulative and must  -both’  be established  and that the burden of establishing them is  on the  person who seeks to have the election set  aside.   He. also  relied   upon the terms of,& 90(3) of the Act  to  the effect,  that  the provisions of the,  Evidence  Act  shall, subject to the provisions of 185

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the Act, be deemed to apply in all respects to the trial  of an  election petition.  The contention further is  that  ss. 101 and 102 of the Evidence Act must therefore apply and the burden must be cast on the petitioner before the Tribunal to establish  both  the conditions before any relief  could  be granted  to  him.  In our opinion, that  argument  does  not advance  the case of the appellants any more than  what  has been laid down by this Court in the cases referred to above. The other provisions of the Evidence Act including the rules of presumption must also be equally applicable.  But neither of  the two cases referred to above directly applies to  the facts of the present case which is one of improper rejection of  a nomination paper.  A Division Bench of this Court  has laid  down  in the law of Chatturbhuj  Vithaldas  Jasani  v. Moreshwar  Parashram  (1)  at  p.  842  that  the   improper rejection   of  a  nomination  paper  "affects   the   whole election".  A similar view was taken in the case of  Karnail Singh  v. Election Tribunal, Hissar (2), by a Bench of  five Judges of this Court.  But, as pointed out on behalf of  the appellants,  in  neither  of those two  cases  the  relevant provisions of the Act have been discussed.  It appears  that though  the words of the section are in general  terms  with equal  application  to the case of improper  acceptance,  as also  of improper rejection of a nomination paper, case  law has made a distinction between the two classes of cases.  So far  as  the latter class of cases is concerned, it  may  be pointed  out that almost all the Election Tribunals  in  the country  have  consistently taken the view that there  is  a presumption  in  the  case,  of  improper  rejection  of   a nomination paper that it has materially affected the  result of  the  election.   Apart from  the  practical  difficulty, almost the impossibility, of demonstrating that the electors would have cast their votes in a particular way, that is  to say, that a substantial number of them would have cast their votes in favour of the rejected candidate, the fact that one of  several candidates for an election had been kept out  of the arena is by itself a very material (1) [1954] S.C.R. 817.    (2) 10 Elec.  Law Reports 189. 24 186 consideration.  Cases can easily be imagined where the  most desirable candidates from the point of view of electors  and the most formidable candidate from the point of view of  the other candidates may have been wrongly kept out from seeking election.   By keeping out such a desirable  candidate,  the officer  rejecting the nomination paper may  have  prevented the  electors from voting for the best candidate  available. On the other hand, in the case of an improper acceptance  of a  nomination  paper,  proof may easily  be  forthcoming  to demonstrate that the coming into the arena of an  additional candidate has not had any effect on the election of the best candidate  in  the  field.   The  conjecture  therefore   is permissible  that the legislature realising  the  difference between  the  two  classes of cases  has  given  legislative sanction   to   the  view  by  amending  s.   100   by   the Representation  of the People (Second Amendment) Act,  XXVII of  1956,  and by going to the length of providing  that  an improper  rejection  of any nomination paper  is  conclusive proof   of  the  election  being  void.   For  the   reasons aforesaid,  in  our opinion, the majority  decision  on  the fourth issue is also correct. Alternatively, it was argued by the learned counsel for  the appellants  that if there was such a presumption, it  was  a rebuttable  one and the Tribunal should have held  that  the evidence  adduced  by  the  appellants  had  rebutted   that

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presumption.   He  proposed  to take  us  through  the  oral evidence  adduced by them.  But we refused to go  into  that evidence for the simple reason that this Court in an  appeal by special leave does not ordinarily reopen findings of fact recorded  by a competent Tribunal.  It must,  therefore,  be held  that  the  Tribunal was justified  in  coming  to  the conclusion  that  the  result  of  the  election  had   been materially  affected  by  the  improper  rejection  of   the nomination in question. Lastly  it  was urged that assuming that  the  Tribunal  was justified in declaring the election to be void so far as the general seat was concerned, there was no reason to set aside the election as a whole and that, therefore, the election of the second appellant should not have                             187 been  set aside.  But s. 100 in terms provides that  if  the Tribunal  was of the opinion, as it was in this  case,  that the  result of the election had been materially affected  by the  improper  rejection  of  the  nomination  paper,   "the Tribunal shall declare the election to be wholly void".  The election  in  this  case was in respect  of  a  double  seat constituency  and was one integral whole.  If it had  to  be declared  void, the Tribunal was justified in setting as  in the election as a whole.  As  all  the contentions raised in support  of  the  appeal fail,  it  must be dismissed with costs  to  the  contesting respondents. Appeal dismissed.