Surendra Nath Khosla Vs. Dalip Singh
[1956] INSC 79 (29 November 1956)
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 second 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.
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.
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 a for said, 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 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
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 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 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.
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