Vashist Narain Sharma Vs. Dev Chandra
& Ors [1954] INSC 69 (20 May 1954)
HASAN, GHULAM DAS, SUDHI RANJAN
JAGANNADHADAS, B.
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.
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 re-agitated.
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.
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