20 May 1954
Supreme Court


Case number: Appeal (civil) 151 of 1953






DATE OF JUDGMENT: 20/05/1954


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 510 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



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 511 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



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, 512 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, 513 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,



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, 66 514 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 515 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



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. 516 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



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 517 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. 518 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



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 519 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.