Mahadeo Vs. Babu Udai Pratap Singh
& Ors  INSC 243 (10 November 1965)
10/11/1965 GAJENDRAGADKAR, P.B.
(CJ) GAJENDRAGADKAR, P.B. (CJ) RAMASWAMI, V.
CITATION: 1966 AIR 824 1966 SCR (2) 564
RF 1970 SC2097 (152)
Representation of the People Act (43 of
1951), s. 100 (1) (d) (iv) and Conduct of Election Rules, 1961, r. 56(2)
At the general elections for a seat in the
U.P. Legislative Assembly, the appellant was declared elected. The name of the
1st respondent who was a defeated candidate,, was inaccurately printed in the
ballot papers issued as "Udai Bhan Pratap Singh" though his symbol
was correctly shown.
Alleging that the incorrect printing of his
name had materially prejudiced his prospects of securing the votes of all his
supporters, he challenged the appellant's election by an election petition. The
Election Tribunal, and the High Court on appeal, set aside the appellants
The High Court rejected the 1st respondent's
contentions -that the misprinting constituted an irregularity in the form or
the design of the ballot paper and that therefore r.
56(2)(g) of the Conduct of Election Rules,
1961, had been.
contravened. The High Court, however, held
that the misprinting of the 1st respondent's name on the ballot papers rendered
the appellant's election void under s. 100(1)(d)(iv) of the Representation of
the People Act, 1951.
In the appeal to this Court,
HELD: The appeal should be allowed and the
election petition dismissed. [572 E] The design to which r. 56(2) (g) refers is
the form, the pattern or the outline of the ballot paper and not its contents..
The High Court was therefore right in holding that r. 56(2) (g) had not been
contravened by the misprinting. [572 B-C] The High Court and the Election
Tribunal were in error when they came to the conclusion that the appellant's
election had been rendered void under s. 1 00 ( 1) (d) (iv) by reason of the
fact that the 1st respondents same had been misprinted on the ballot papers.
The misprinting was an irregularity which fell under the section as it amounted
to non-compliance of r. 22 of the Rules. But the proof of such noncompliance
did not necessarily or automatically render the appellant's election void. To
make the election void, the 1st respondent had to prove the non-compliance and
its material effect on the election. Since he had failed to prove the latter
fact, his challenge to the validity of the appellant's election could not be
sustained. [570 B; 572 C- D]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 478 of 1965.
Appeal from the judgment and order dated
January 29, 1964 of the Allahabad High Court (Lucknow Bench) in First Appeal
4 of 1964.
M. C. Setalvad and J. P. Goyal, for the
565 Bishan Singh, Bimalesh Chandra Agarwala
and C. P. Lai, for respondent no. 1.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. The short question which arises in this appeal is whether
the Election Tribunal, Lucknow, and the High Court of Judicature at Allahabad,
Lucknow Bench, were right in holding that the election of the appellant Mahadeo
was invalid under s. 100 ( 1 ) (d) (iv) of the Representation of the People Act
1951 (No. 43 of 1951) (hereinafter called the Act). The facts leading to this
point are not many, and there is no dispute about them. At the General
Elections of 1962, for the U.P. Legislative Assembly seat in Constituency No.
133 in Mijhaura, District Faizabad, 6 persons offered themselves as candidates.
The appellant was one of them, and in fact, as a result of the election, he was
duly declared to have been elected.
Respondent No. 1, Udai Pratap Singh was
The appellant received 17,688 votes, whereas
respondent No. 1 received 10,985 votes. There were 4 other candidates besides
these two, but we are not concerned with them in the present appeal. Respondent
No. 1 challenged the validity of the appellant's election by filing an election
petition in that behalf before the Election Tribunal, Lucknow. It appears that
the election symbol of the appellant was scales (Tarazu), whereas that of
respondent No. 1 was lamp (Deepak) In his petition, respondent No. 1 alleged
that his real name is Udai Pratap Singh and not Udai Bhan Pratap Singh. His
real name had been recorded in the electoral roll and had been mentioned as
such in his nomination paper. Even so, in the ballot paper issued on the
occasion of the election, his name was printed as Udai Bhan Pratap Singh; and
that, according to him, virtually eliminated him from the contest, because the
constituency did not know that he was standing for election.
In support of his case that by the improper
description of his name on the ballot papers the whole election had become
invalid respondent No. 1 pleaded that as a result of the infirmity in the
ballot papers, his opponents spread news throughout the constituency that he
had withdrawn from the election. The failure of the ballot papers to print his
name correctly and accurately had materially prejudiced the prospects of
respondent No. 1 to secure the votes of all his supporters, and that had made
the election invalid. As a result of the rumour deliberately spread by his
opponents that he had withdrawn from the election, many of the voters did not
go to the polling booth. It is on these grounds up.CI/66-6 566 that respondent
No. 1 wanted to challenge the validity of the appellants election.
These allegations were denied by the
appellant. He urged that the mistake in the printing of the name of respondent
No. 1 on the ballot papers amounted to no more than mis- description of his
name, and that at the time of the election, everyone knew that the name Udai
Bhan Pratap Singh really referred to respondent No. 1 and no one else. The
appellant seriously disputed the allegation made by respondent No. 1 that a
rumour had been spread at the time of the election that respondent No. 1 had
withdrawn from the election, and he contended that the allegation of respondent
No. 1 in that behalf was completely untrue. He also disputed the case made out by
respondent No. 1 that a large number of voters did not go to the polls because
of the said rumour.
The Election Tribunal considered the evidence
led by both the parties and held that the specific case made out by respondent
No. 1 about the rumour spread by the opponents of respondent No. 1 that he had
withdrawn from the election, had not been proved. Consequently, the further
allegation made by respondent No. 1 that many of his supporters did not attend
the polling booth because they thought that he had withdrawn from the election,
also was rejected. This finding has been confirmed by the High Court, so that
this part of respondent No. 1's case does not fall to be considered by us.
The Election Tribunal, however, held that the
mistake in the printing of the name of respondent No. 1 on the ballot papers
had resulted in the contravention of Election Rule No. 56 (2) (g) of the
Conduct of Elections Rules, 1961 (hereinafter called "the Rules"),
and this contravention, according to it, rendered the appellant's election void
under S. 100 ( 1 ) (d) (iv) of the Act. In coming to this conclusion, the
Election Tribunal recorded a finding that the printing of the name of
respondent No. 1 on the ballot papers disguised the fact from the voters that
respondent No. 1 had stood for election and made the design of the ballot
papers materially defective. It held that Rules 22 and 30 had thus been
contravened, and that led to the violation of Rule 56(2) (g) of the Rules.
The decision of the Election Tribunal was
challenged by the appellant by preferring an appeal before the High Court.
The High Court has confirmed the finding of
the Tribunal about the mistake in the printing of respondent No. 1's name on
the ballot papers. It has, however, reversed the conclusion of the Election 567
Tribunal about the infirmity in the design of the ballot papers, and
consequently, it did not agree that r. 5 6 (2) (g) of the Rules had been
contravened. Even so, the High Court came to the conclusion that the
irregularity caused by the misprinting of respondent No. 1's name on the ballot
papers rendered the appellant's election void under s. 100(1)(d)(iV) of the
Act. That is why the appeal preferred by the appellant before the High Court
was dismissed. The appellant then applied for and obtained a certificate from
the High Court for coming to this Court in appeal, and it is with the said
certificate that the present appeal has been brought to this Court. That is how
the only question which arises for our decision in the present appeal is
whether the High Court was right in holding that the appellant's election had
become void under s. 100 ( 1 ) (d) (iv) of the Act.
Before dealing with this question, it is
necessary to consider briefly the legislative history of the statutory
provision contained in s. 100 ( 1 ) (d) (iv). The present provisions contained
in s. 100 of the Act have been introduced by the Amending Act 27 of 1956.
Section 100 ( 1 ) (d) (iv) reads thus "Subject to the provisions of
sub-section (2), if the Tribunal is of opinion that the result of the election,
in so far as it concerns a returned candidate, has been materially affected by
any non-compliance with the provisions of the Constitution or of this Act or of
any rules or orders made under this Act, the Tribunal shall declare the election
of the returned candidate to be void".
Before the amendment of 1956, the relevant
provision in s. 100(1) (c) read thus :- "If the Tribunal is of opinion
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 would be noticed that the earlier
provision dealt with the improper acceptance and rejection of nomination
together and in the same manner. The effect of the said provision was that
where the validity of an election of any candidate was challenged on the ground
that any nomination paper had been improperly accepted, it had to be shown by
the party challenging the election that by the said improper acceptance, the
result of the election had been materially affected. The same test had to be
satisfied where an election was challenged on the ground that any nomination
paper had been improperly rejected. In other words, whether 568 the infirmity
on which a given election was challenged, consisted of the improper acceptance
of a nomination paper, or the improper rejection of a nomination paper, made no
difference; in either case, the party challenging the election had to prove two
facts : (1) the improper rejection or acceptance of a nomination paper; and (2)
the effect of the said improper rejection or acceptance on the election itself.
Though the statutory provision thus treated
the two infirmities alike and required in either case the proof of the effect
of the said infirmities on the election in a material way, judicial decisions
rendered by Election Tribunals and Courts appeared to make a distinction
between the two categories of cases. In regard to cases of improper rejection
of a nomination paper, it was held that the material effect of such improper
rejection on the election itself was implicit and could be presumed without any
evidence. This view proceeded on the ground that it would be practically
impossible for a party to demonstrate by evidence that the electors would have
cast their votes in a particular way, that is to say, a substantial number of
them would have cast their votes in favour of the rejected candidate. Even so
the fact that one of the several candidates had been kept out of the arena is
itself a substantial 'and material consideration which may justify the
presumption that such a keeping out the candidate has materially affected the
result of the election (vide Surendra Nath Khosla and Anr. v. S. Dalip Singh
and others) (1).
On the other hand, in regard to the category
of cases where the infirmity was improper acceptance of a nomination paper,
different considerations had to be taken into account. In Vashist Narain Sharma
v. Dev Chand & Others(1), it was held by this Court that "in the case
of improper acceptance of a nomination : (a) if the nomination accepted was
that of the returned candidate, the result must be materially affected;
(b) if the difference between the number of
votes is more than the wasted votes, the result cannot be affected at all;
(c) if the number of wasted votes is greater
than the margin of votes between the returned candidate and the candidate
securing the next highest number of votes, it cannot be presumed that the
wasted votes might have gone to the latter and that the result of the election
has been materially affected. This is a matter which has to be proved and,
though it must be recopied that the petitioner in such a case is confronted
with a difficult situation, he cannot be relieved of the duty (1)  S.C.R.
(2) 10 E.L.R. 30.
569 imposed upon him by S. 100 ( 1 ) (c), and
if the petitioner fails to adduce satisfactory evidence in support of his plea,
the Tribunal would not interfere in his favour and would allow the election to
This position has now been clarified by the
Legislature itself by amendings.100 in 1956. The amended s.100(1)(a),(b)&
2(c) refer to three classes of cases where the election is set aside on proof
of facts enumerated in the said clauses. Clause (a) refers to a case where a
returned candidate was not qualified, or was disqualified, to be chosen to fill
the seat under the Constitution or this Act at the date of his election. As
soon as this fact is proved, his election is set aside. Similarly, under cl.
(b), if any corrupt practice is shown to have
been committed by a returned candidate or his election agent or by any other
person with the consent of a returned candidate or his election agent, the
election of the returned candidate is set aside and declared void. Likewise,
cl. (c) provides that the election of a returned candidate shall be declared
void if it is shown that any nomination has been improperly rejected. It would
thus be seen that the view which the Election Tribunals and the Courts had been
consistently taking in dealing with the question about the effect of the
improper rejection of any nomination paper, has been con- firmed by the
Legislature and now, the position is that if it is shown that at any election,
any nomination paper has been improperly rejected, the improper rejection
itself renders the election void without any further proof about the material
effect of this improper rejection.
The Amending Act of 1956 has thus separated
the cases of improper rejection of nomination papers from those where
nomination papers have been improperly accepted. It will be recalled that both
these cases had been grouped together under s. 100(1) (c) of the un amended
Act. Now, the cases of improper rejection have been taken under s. 100(1) (c),
whereas cases of improper acceptance fall to be dealt with under s. 100 ( 1 )
(d) (iv). Where it is alleged that a nomination paper has been improperly
accepted, it obviously means that the acceptance is the result of
non-compliance with the provisions of the Constitution or of the Act or of any rule
or order made under the Act; and as we have seen, the case for respondent No. 1
in the present appeal is that the ballot papers were rendered invalid by virtue
of the fact that they contravened r. 56(2) (g) of the Rules.
Therefore, there can be no doubt that in
dealing with the contention raised by respondent No. 1, we will have to enquire
570 whether it has been shown by respondent No. 1 that by reason of the
infirmity in the ballot papers, the result of the election has been materially
affected. This part of the statutory requirement has not been properly
appreciated by the High Court as well as by the Election Tribunal when they
came to the conclusion that the election of the appellant had been rendered
void under s. 100(1) (d) (iv) of the' Act by reason of the fact that the name
of respondent No.
1 had been misprinted on the ballot papers.
It is plain that apart from the allegation made by respondent No. 1 that as a
result of the misprint in question a false rumour was spread by his opponents
that he had withdrawn from the election, no other allegation has been made and
no evidence adduced to show that the said misprint had in any manner materially
affected the result of the election.
Let us now examine the character of the
infirmity on which the election of the appellant has been declared void by the
High Court as well as the Election Tribunal. We have already noticed that the
ballot papers show the name of respondent No. 1 as Udai Bhan Pratap Singh,
whereas it should have been shown as Udai Pratap Singh. It has been urged
before us by Mr. Bishan Singh for respondent No. 1 that evidence on the record
shows that Udai Bhan Pratap Singh is, in fact, the name of the grandfather of
respondent No. 1, and he attempted to argue that the printing of Udai Bhan
Pratap Singhs name on the ballot papers may have given a wrong impression to
the voters that it was the grandfather of respondent No. 1 who was standing for
election and not respondent No. 1 himself. Such a plea has not been made by
respondent No. 1 in his election petition and does not appear to have been
pressed either before the Election Tribunal or the High Court. Therefore, we do
not propose to consider this plea.
Nevertheless, it cannot be disputed that
there has been a printing error in the matter of the name of respondent No. 1
on the ballot papers and that has introduced an infirmity in the ballot papers.
It is common ground that r. 22 requires that the postal ballot paper shall be
in such form, and the particulars therein shall be in such language or
languages as the Election Commission may direct; and the form quite clearly
imposes the obligation on the authorities concerned to print the name of the
candidate correctly. But it is also clear that the symbol chosen by respondent
No. 1 which was a lamp (Deepak) has been correctly shown against the misprinted
name; and it would not be unreasonable to take into account the fact that a
large majority of voters concentrate on the symbol chosen by the candidate
rather than on his name. In fact, some of the evidence adduced in the pasent
case itself shows that the voters looked at the symbols and put their votes.
Mr. Gur Datta Singh who was the election agent of respondent No. 1 has given
evidence in the present proceedings. He has frankly admitted that when he went
to cast his vote, he was in a hurry, and so, he affixed the seal in the second
column on the symbol of Deepak; he did not see the name written in that column.
In fact, as we have already mentioned as many as 10,985 voters voted for respondent
No. 1. so we think the irregularity on which respondent No. 1 strongly relies
loses some of its significance and cannot be treated as anything more than a
mis-description of his name. From such misdescription it would be wholly
unreasonable to infer that the voters must have come to the conclusion that
respondent No. 1 was not a candidate at the election at all. The High Court has
rejected the case of respondent No. 1 in so far as he had alleged that his
opponents had spread a rumour that he had withdrawn from the election; and yet,
in a part of its judgment the High Court seems to have held that the result of
the misprint was that from the point of view of the voters, respondent No. 1
had, in substance, been eliminated from the election. We are unable to agree
with this conclusion.
Then as to the design of the ballot paper,
the High Court has reversed the finding of the Election Tribunal that the
design of the ballot paper suffered from any irregularity.
The Rule in respect of the design is r. 30.
Clause (1) of this rule says that every ballot paper shall be in such form, and
the particulars therein shall be in such language, or languages as the Election
Commission may direct. Then follow the other two clauses of this Rule which are
not relevant. This Rule in terms deals with the form of the ballot paper and
this fact has to be borne in mind in considering the applicability of r. 56 on
which respondent No. 1 relies. Rule 56(1) provides that the ballot papers taken
out of each ballot box shall be arranged in convenient bundles and scrutinised.
Sub-rule (2) then enumerates the cases in which the returning officer has to
reject the ballot paper. One of these cases is specified in cl. (g) of sub-Rule
(2); if the ballot paper bears a serial number, or is of a desire, different
from the serial numbers or, as the case may be, design, of the ballot papers
authorised for use at the particular polling station, the ballot paper has to
be rejected. The argument urged by respondent No. 1 before the Election
Tribunal was that the misprint of the name constituted a serious irregularity
in the form or design of the ballot paper, 572 and that attracted the
provisions of r. 5 6 (2) (g) of the Rules; and since, notwithstanding the
contravention of r.
30, the ballot papers had not been rejected,
that made the election invalid. We are unable to see either the logic or the
reasonableness of this argument. The design to which r. 56 (2) (g) refers, is
the form, the pattern, or the outline of the ballot paper and not the contents
of the ballot paper. The symbol chosen by respondent No. 1 was correctly shown
on the ballot papers, though his name had been misprinted. On these facts, we
are satisfied that the High Court was right in holding that r. 5 6 (2) (g) had
not been contravened.
Therefore, we are left with only one
irregularity, and that has been introduced by the misprinting of the name of
respondent No. 1 on the ballot papers; and this irregularity can legitimately
be treated as falling under S. 100 ( 1 ) (d) (iv) of the Act. Misprinting of
the name of respondent No. 1 on the ballot papers amounts to non-compliance
with r. 22 of the Rules; but the proof of such non-compliance does not
necessarily or automatically render the election of the appellant void. To make
the said election void, respondent No. 1 has to prove the non-compliance in
question, and its material effect on the election. This latter fact he has
failed to prove, and so, his challenge to the validity of the appellant's
election cannot be sustained.
The result is, the appeal is allowed, the
order passed by the High Court is set aside, and the election petition filed by
respondent No. 1 before the Election Tribunal is dismissed with costs