Seth Jagjivan v. Messrs. Ra11ehhod·

GHULAM HASAN J.-This appeal preferred under article 136 of the Constitution against the order, dated the Election Tribunal, Allahabad, May 4, 1951, of setting aside the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly, raises questions for consideration. The first question is whe ther 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 elec tion was thereby materially affected. Eight candidates filed nominations Pradesh Legislative Assembly East) Constituency No. 345, from Ghazipur three withdrew to the Uttar (South ) .. - Al' - • I .... i S.C.R . SUPREME COURT REPORTS 511 candidature and the contest was remaining five. The votes. secured by these candidates were as follows :- confined '

#1. Vashist Narain Sharma 2. Vireshwar Nath Rai 3. Mahadeo '954 Vashist Narain Shartn• v. Dev Chandra and Others. Chu/am Hasao J. 12868 10996 3950 1983 1768 "'- \·

#4. Dudh Nath 5. Guiab Chand They were arrayed in the election petition as res pondents Nos. 1 to 5 respectively. The first respondent having secured the highest number of votes Was declar ed 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 return ed candidate be declared void and that respondent No. 2 be declared to have been duly elected ; in the alter native,· 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 Eiection Officer and that the result of the . election_ was thereby materially affect ed. The Tribunal found that respondent No. 4, whose name was entered on the dectoral roll of Gahmat Con (mean (South East) stituency Ghazipur ing, passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency that the Returning Officer had Ghazipur (South West), improperly accepted his nomination, and result of thr. election was thereby materially affected; Allegations of major and minor ·corrupt practices and rules were made non-Compliance with certain statutory the Tribunal returned carididate on those points. ' is' Raj put by caste. His permahent or ai1testral 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 _a~ to Zamania. ·The village Baruin which is quite close person: for. whom Dudli Nath is Dudh; is at Jamuah, Nath K:ihar whose permanent house Dudh Nath, respondent No'. 4, in favour of the 'personated' 'personated' 1954 V ashist Narain Sharma v. Dev Chandra and Otlurs. Ghulam Hasan J. 512 SUPREME COURT REPORTS [1955J ) .. father that Dudh Nath's but his 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 to Dudh Nath Kahar. He gave his father's applied name as Shiv Deni alias Ram Krit. Ram Krit name of Dudh Nath Kahar's father. The electoral roll (Exhibit K) of Gahmar gives Dudh Nath's father's na.me as Shio Deni with no alias and his age as 39, the electoral roll of Pargana Zamania Mouza 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 supplementary list as 30. When is mentioned nomination paper was filed on November 24, 1951, at 2-20 P.M. it was challenged by Vireshwar Nath Rai on the ground 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 appli cation at 3-25 P.M. before the Returning Officer offer ing 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 Returning Officer improper under section 36( 6) of the Representation of the People Act and as the result of the election according to improper objector has been materially affected by the is bound the Tribunal acceptance of this nomination, to declare the election to be wholly void under section lOO(l)(c) of the Act. Mr. Daphtary on behalf of appellant has argued before us with reference to the that this is not a case provisions of sections 33 and 36 the nomination paper, acceptance of because prima lacit: the nomination paper was valid and an objection having been raised but not pressed or the Returning Officer had no option but substantiated, it. There was, as he says, nothing improper to accept in the action of the Returning Officer. On the contrary, is challenged as being improper .. .,~ • I 1954 Vashisl Narain Sharma v. Dev Chandra and Others. Ghu/om Hasan]. S.C.R. SUPREME COURT REPORTS 513 IS alone 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 f acie and could be dis closed only upon an enquiry and upon taking of evidence as to the identity which was not then forth IS not covered by it is argued, commg. Such a case, section lOO(l)(c) but by section 100(2)(c) in which case the election of the returned candidate to be in the former case the election declared void, whereas to express any IS wholly void. We do not propose opmwn upon this aspect of the matter, as in our view the appeal can be disposed of on the second question. S1~ction 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 Returning Officer to examine the nomina tion paper and decide all objections which may be made to any nomination, and after a summary inquiry, 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) Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper record in for such rejec writing a brief statement of his tion. This sub-section shows that where the nomination 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 :- lays down that rejected, shall is required reasons • • ""-·\- ( 1) If the Tribunal is of opinion- (a) ................... . (b) ................... . ( c) that the result of the elections has been mate rially 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 • • ..... • Vas hist Na rain Sharma ~ Dtv Chandra and Others. Ghulam f/ruan]. 514 SUPREME COURT REPORTS [1955] indicate lOO(l)(c), the Tribunal must find the Election Tribunals and it is agreed that Before an election can be declared to be wholly void under section "the result of the election has been materially affected." These words have been the subject of much controversy before opinions expressed have not always been uniform or consistent. These words seem to us 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 wasted votes would have been distributed in such a manner between the contesting candidates as would the defeat of the returned candi have brought about date. The next question is whether the the petitioner who burden of proving this to us objects in favour of the objector. It the view would be useful to refer to the corresponding proviiion in the English Ballot Act, 1872, section 13 of which is as follows :- the volume of opinion preponderates to the validity of the election. the burden that arises lies upon It appears "No election shall be declared invalid bv reason of a non-compliance with the rules contained in the schedule to this Act, or .any mistake in the use of if it appears in the second schedule to this Act, the question the election was conducted in accordance with the 1l1at principle; laid down in the body of this Act, and such non-compliance or mistake did not affect result of the election." the Tribunal having cognizance of This section indicates that an election is not to be if it. appears to the. Tribunal that non declared invalid rules or any mistake in the compliance with statutory the result of the elec use of such forms did not affect throws the onus on the person who seeks to tion. This the election. The language of section lOO(l)(c), uphold however, clearly places a burden upon the objector to substantiate that the result of the election has heen materially affected. On the contrary under the respond the English Act ent to show the negative, viz., that. the decision has not been affected. This . view was expressed the burden is placed upon the objection result of ... ' - .,_ 1954 Vas hist Narain Sharma v. Dev Chandra and Others. Ghulam Hasan]. 'S.C.R. SUPREME COURT REPORTS 515 (later Mr. it was in Rai Bahadur Surendra Narayan Sinha v. Amulya dhone Roy & Others(!), by a Tribunal presided over by Justice) Roxburgh. The contention Mr. the petitioner having advanced in that case was irregularity established an the duty of the result of the election had respondent to show thereby. The Tribunal not been materially affected the provisions of section 13 of the Ballot referred Act and drew a distinction between that section and ·the provisions of paragraph 7 ( 1) ( c) of Corrupt Practices Order which was more or less on the same lines as sec tion 100( 1) ( c). They held that the onus is differently two provisions. While under the English _placed by Act the Tribunal hearing an election petition is enjoined if it appears to it that interfere with an election the use of non-compliance with forms did not affect provision of paragraph 7 ( 1) ( c) placed the burden on the petitioner. The Tribunal recognized the difficulty in such circumstances but of offering positive proof expressed the view ·that interpret and follow the rule as it stood. result of the election, the rules or mistake in they had that the onus of proving that In C. M. Karale v. Mr. B. K. Dalvi etc.( 2 ), the Tribunal result had been affected rests heavily on the · petitioner of materially :proving by affimiative evidence 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. that all or a In Babu Basu Sinha v. Babu Rajandhari Sinha etc. (3 ), 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 It was held that the question should ·of the ·People Act. :always be decided on the. basis of the material on (t) _Indian Election Cases by Sen and Poddar, ,page t88 •.. (2) Doabia's _Election Cases, Vol. I (p. 178). . (3)· Indian Election Petitions (Vol. III) by Sbri Jagat Narain page 80. (.4) Gazette of India (Extraordinary) October 13, 1953. · . ' 516 SUPREME COURT REPORTS [1955} ..... 1954 V ashist Narain Sharma v. Dev Chandra and Others. Ghulam Hasan J. record and not on mere probabilities. T?e Tribunal distinguished between an improper rejection and an nomination improper acceptance of while in the former case the election had been materially affected, latter the petitioner must prove by affirmative evidence, though that the result had been mate rially affected. observing is a presumption it is difficult, in the The learned counsel for the respondents concedes. improper accept result the petitioner but he argues. that the burden of proving that ance of a nomination has materially affected the of the election that the question can arise in one of three ways : lies upon (1) where improperly accepted had secured difference between the returned candidate securing the next highest number of votes, the candidate whose nomination was, less votes candidate and (2) where more votes, and the person referred to above secured· In two cases the other it is contended to the votes of It is agreed that in improperly accepted is readily conceded is not materially affected because (3) where the person whose nomination has been: the returned candidate himself.. the result of the the first case if all election the candidate wasted votes are added securing the highest votes, it will make no difference to the result and the returned candidate will retain the that the seat. third case result is materially affe.cted. So far as that such is concerned it may be would be the conclusion. But we are not prepared t<> the wasted votes are greater the margin of votes between the returned' candidate and the candidate securing the next highest number of votes must inference 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 wi11' that all or a majority of the not do merely wasted votes might have gone to the next highest candidate. The casting of votes at an election depend" upon a variety of factors and it is not possible for any to the necessary the mere fact to say , ... .. - - ' ... - ' S.C.R. SUPREME COURT REPORTS 517 one to predicate how many or which proportion of 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 imposed upon him possible to relieve him of the duty by section 100(1) (c) and hold without evidence the petitioner the duty has been discharged. Should in his favour on this point, the inevitable Court to find result would be that the Tribunal would not interfere in his favour and would allow the election to stand . satisfactory evidence to adduce to enable 1954 Vashist Naraitt Sharma v. Dev Chandra and Others. Ghulam Hasan j. In two cases [Lakhan Lal Mishra v. Tribeni Kumar etc. (1) and Manda! Sumitra Devi v. Sri Surajnarain the Election Tribunal, Bhagalpur, had Singh etc.( ) ], the question of improper acceptance of the to consider nomination paper. the question result of election had been materially whether affected must be proved by affirmative evidence. They laid down the following test :- They agreed it is easy to find that than the difference between the successful candidate and "If the number of votes secured by the candidate, whose nomination paper has been improperly accepted, the number of secured by the next highest number of candidate who has secured the result has not been votes, the i;i.umber of votes materially affected. the differ secured by such a candidate foresee what ence just mentioned, if that candidate had not the result would have been It will neither be possible to say been in the field. that the the same or different nor that it would have been in all probability the same or different." result would actually have been it is impossible to If, however, is higher In both the cases the margin of votes between the successful candidates and the next highest candidate was less improperly accepted . candidate whose nomination was the result was materially affected. We They held the soundness of this view. It are unable is greater the number of votes secured by the margin of votes to us that where to accept (2) Gazette oflndia (Extry.J Feby. 2, 1953. (1) Gazette oflndia (Extry.) Fcby. 26, 1953. ... .. • 518 SUPREME COURT REPORTS [1955] ...... V a.sJiist Narain Sharma v. Dtv C!1andra and Ot/iers. C!mlam Hasan J. the votes secured by the candidate whose nomi nation 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 the burden of proving that petitioner must discharge the election must be fact and on his failure allowed to stand. the above mentioned cases, we to do so, - to be speculation there was lays down they were not The Tribunal in that Dudh Nath the present case rightly took impressed with the oral the probable fate of votes wasted on evidence about to observe : Dudh Nath Singh, but they went on respondent No. 4 "Considering received more votes than the margin of votes by which respondent No. 1 was returned we are constrained ·to reasonable possibility of res in place of respondent pondent No. 2 being elected No. l, had Dudh Nath not been in the field." We are that the language of section 100(1) ( c) is too of opinion about possibilities. The section clearly improper acceptance regarded as fatal to the election unless the the result has· been materi Tribunal is of opinion lll. ally affected. The number of wasted votes was ipse dixit of witnes3es It coming from one side or the other to say that all or to one or the other some· of the votes would have gone on some supposed or imaginary ground. The questi<m is one of fact and has to be proved by positive evi If· the petitioner· is unable to ·adduce evidence dence. the only inescapable in a case such as conclusion the election must burden is not discharged and that stand. Such result may operate harshly upon petitioner seeking the election on to set aside ground of improper acceptance of a nomination paper, the Tribunal, nor this Court is concerned but neither with the inconvenience resulting from the operation of law. How this state of things can be remedied is for the Legislature to consider. The a matter ·entirely referred presents .. no English Act to which we have lays down a perfectly sensible such conundrum and the present, the Tribunal can come is that impossible to accept to which S.C.R. SUPREME COURT REPORTS 519 / V ashist N araitr Sharma v. Dev Chandra alfd Others. Chu/am Hasan]. criterion upon which declare aside the election if it is of opinion rity has not materially affected the result. its opinion. It directs the Tribunal can proceed the Tribunal not to set irregula ' • Mr. Naunit Lal argued the finding that the result of the election has been materially affected is a interfere finding of fact which this Court should not with in special appeal but there is no foundation for If the Tribunal could the so-called not be sure that the respondent No. 1 would get only 56 to give him_ an absolute out of majority, how could the Tribunal conjecture that all the wasted votes would go the second best candi date. the wasted votes finding of fact. The Tribunal misdirected itself in not comprehend ing what they had to find and proceeded merely upon a mere possibility. Their finding upon speculative and conjectural. the matter Mr. Naunit Lal also attempted to argue that he the decision of the Tribunal on other found against him and the analogy of the Code of Civil Procedure to take that course. That to an appeal granted by leave under article 136. We have no appeal respondents and we are could support grounds which had been referred to which permits a respondent provision has no application special before us on behalf of the unable to allow that question to be reagitated. that we set aside The result Tribunal and hold that it is not proved that the result of the election has been materially affected by an the nomination, assuming that improper acceptance of the case falls within :md that finding is correct. the purview of section 36(6) the order of We accordingly set aside the order of the Tribunal the election of the appellant. The appel incurred and uphold lant will get his costs from the respondents here and in the proceedings before the Tribunal. Order accordingly.