Chhedi Ram Vs. Jhilmit Ram & Ors
[1983] INSC 192 (5 December 1983)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J)
CITATION: 1984 AIR 146 1984 SCR (1) 966 1984
SCC (2) 281 1983 SCALE (2)843
CITATOR INFO :
D 1988 SC 637 (2,72) R 1990 SC 19 (20)
ACT:
Representation of the People Act,
1951-S.100(1)(d)- Improper acceptance of nomination-When could it be said to
materially affect the result of election?
HEADNOTE:
The appellant, the respondent and four other
candidates contested the election to a legislative assembly from a constituency
reserved for Scheduled Castes. While the respondent was declared elected, the
appellant secured the next highest number of votes and the difference in the
number of votes secured by them was only 373. The appellant challenged the
election of the respondent on the ground that the result of the election had
been materially affected by the improper acceptance of the nomination of a
third candidate who had secured 6710 votes. The Election Tribunal arrived at
the finding that the candidate in question was not a member of the Scheduled
Castes and hence is nomination had been improperly accepted, but nevertheless,
refused to set aside the election of the respondent on the ground that the
result of the election had not been shown to have been materially affected as a
result of the improper acceptance of the nomination.
Allowing the appeal,
HELD: Under s. 100(1)(d) of the
Representation of the People Act, 1951, the election of a returned candidate
shall be declared to be void if the High Court is of the opinion that the
result of the election, in so far as it concerns the returned candidate, has
been materially affected by the improper acceptance of any nomination and the
burden of establishing the same is on the person impeaching the election. Where
the candidate whose nomination was improperly accepted has secured a larger
number of votes than the difference between the number of votes secured by the
successful candidate and the candidate securing the next highest number of
votes, there is a possibility that a sufficient number of votes actually cast
for the candidate whose nomination was improperly accepted might have been cast
for the candidate who secured the highest number of votes next to the
successful candidate so as to upset the result of the election. In such a
situation, the answer to the question whether the result of the election could
be said to have been materially affected must depend on the facts,
circumstances and reasonable probabilities of the case. If the number of votes
secured by the candidate whose nomination was improperly accepted is
disproportionately large as compared with the difference 967 between the votes
secured by the successful candidate and the candidate securing the next highest
number of votes and if the votes secured by the candidate whose nomination was
improperly accepted bears a fairly high proportion to the votes secured by the
successful candidate, the reasonable probability is that the result of the
election has been materially affected and one may venture to hold the fact as
proved. [968 F-G; 969 D-F] Under the Evidence Act, a fact is said to be proved
when after considering the matters before it, the Court either believes it to
exist or considers its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition that it
exists. If having regard to the facts and circumstances of a case, the
reasonable probability is all one way, a court must not lay down an impossible
standard of proof and hold a fact as not proved. [969 G-H] In the instant case,
the candidate whose nomination was improperly accepted had obtained 6710 votes,
that is, almost 20-times the difference between the number of votes secured by
the successful candidate and the candidate securing the next highest number of
votes. Further, the number of votes secured by the candidate whose nomination
was improperly accepted bore a fairly high proportion to the number of votes
secured by the successful candidate-it was a little over one-third. In such a
situation the result of the election may safely be said to have been affected.
[969 H; 970 A-B] Vashist Narain Sharma v. Dev Chandra, [1955] S.C.R. and Samant
N. Balakrishna v. George fernandes, [1969] 3 S.C.R. 603; explained and
distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 688 of 1981.
From the Judgment and Order dated 5th
January, 1981 of the Allahabad High Court at Allahabad in Election Petition No.
25 of 1980.
S.C. Birla and R.L. Kureel for the Appellant.
Yogeshwar Prasad and Ms. Rani Chhabra for the
Respondent No. 1 Pramod Swarup for Respondent No.2.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. At the General Election to the Uttar Pradesh Vidhan Sabha
held in 1979, Jhilmit Ram was elected from 968 the Jakhsuie Constituency
reserved for the Scheduled Castes.
He secured 17822 votes, Chhedi Ram, the
runner-up secured 17449 votes. Thus the difference between the successful
candidate and the candidate who secured the next highest number of votes was
373 votes. There were four other candidates of whom Moti Ram secured 6710
votes. Chhedi Ram challenged the election of Jhilmit Ram on the ground that
Moti Ram was a Kahar by caste, not entitled to seek election from the reserved
constituency, that his nomination had been improperly accepted and that the
result of the election was materially affected. The Election Tribunal found
that Moti Ram was a Kahar by caste and not a member of the Scheduled Castes. It
rejected the evidence offered on behalf of Moti Ram that be was a Gond and not
a Kahar and recorded a finding that deliberate attempts had been made to
manufacture evidence to show that Moti Ram was a Gond. The Tribunal also
noticed that Moti Ram himself was not prepared to enter the witness box to give
evidence. Having a rived at the finding that Moti Ram's nomination had been
improperly accepted, however, the Tribunal was not prepared to set aside the
election of Jhilmit Ram as it took the view that the result of the election had
not been shown to have been materially affected as a result of the improper
acceptance of the nomination. The election petition was, therefore, dismissed.
Chhedi Ram has preferred this appeal.
We are afraid the appeal has to be allowed.
Under sec. 100(1)(d) of the Representation of the People Act, 1951, the
election of a returned candidate shall be declared to be void if the High Court
is of opinion that the result of the election, in so far as it concerns the
returned candidate, has been materially affected by the improper acceptance of
any nomination. True, the burden of establishing that the result of the
election has been materially affected as a result of the improper acceptance of
a nomination is on the person impeaching the election. The burden is readily
discharged if the nomination which has been improperly accepted was that of the
successful candidate himself. On the other hand, the burden is wholly incapable
of being discharged if the candidate whose nomination was improperly accepted
obtained a less number of votes than the difference between the number of votes
secured by the successful candidate and the number of votes secured by the
candidate who got the next highest number of votes. In both these situations, the
answers are obvious. The complication arises only in cases where the candidate,
whose nomination was improperly accepted, has secured a larger number of votes
than the difference between the number of votes secured by 969 the successful
candidate and the number of votes got by the candidate securing the next
highest number of votes. The complication is because of the possibility that a
sufficient number of votes actually cast for the candidate whose nomination was
improperly accepted might have been east for the candidate who secured the
highest number of votes next to the successful candidate, so as to upset the
result of the election, but whether a sufficient number of voters would have so
done, would ordinarily remain a speculative possibility only. In this
situation, the answer to the question whether the result of the election could
be said to have been materially affected must depend on the facts,
circumstances and reasonable probabilities of the case, particularly on the
difference between the number of votes secured by the successful candidate and
the candidate securing the next highest number of votes, as compared with the
number of votes secured by the candidate whose nomination was improperly
accepted and the proportion which the number of wasted votes (the votes secured
by the candidate whose nomination was improperly accepted) bears to the number
of votes secured by the successful candidate. If the number of votes secured by
the candidate whose nomination was rejected is not disproportionately large as
compared with the difference between the number of votes secured by the
successful candidate and the candidate securing the next highest number of
votes, it would be next to impossibility to conclude that the result of the
election has been materially affected. But, on the other hand, if the number of
votes secured by the candidate whose nomination was improperly accepted is
disproportionately large as compared with the difference between the votes
secured by the successful candidate and the candidate securing the next highest
number of votes and if the votes secured by the candidate whose nomination was
improperly accepted bears a fairly high proportion to the votes secured by the
successful candidate, the reasonable probability is that the result of the
election has been materially affected and one may venture to hold the fact as
proved. Under the Indian Evidence Act, a fact is said to be proved when after
considering the matters before it, the Court either believes it to exist or
considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
exists. If having regard to the facts and circumstances of a case, the
reasonable probability is all one way, a court must not lay down an impossible
standards of proof and hold a fact as not proved. In the present case, the
candidate whose nomination was improperly accepted had obtained 6,710 votes,
that is, almost 20 times the difference between 970 the number of votes secured
by the successful candidate and the candidate securing the next highest number
of votes. Not merely that. The number of votes secured by the candidate whose
nomination was improperly accepted bore a fairly high proportion to the number
of votes secured by the successful candidate-it was a little over one-third.
Surely, in that situation, the result of the election may safely be said to
have been affected.
The learned counsel for the respondents
invited our attention to the decisions of this court in Vashist Narain Sharma
v. Dev Chandra and Others(1), and Samant N. Balakrishna v. George Fernandez and
Others, etc.(2) In Vashist Narain case, the difference between the number of
votes secured by the successful candidate and the number of votes secured by
the candidate who got the next largest number of votes was very nearly the same
as the number of votes secured by the candidate whose nomination was improperly
accepted. Unless it was possible to say that all the wasted votes would have
gone to the candidate who secured the highest number of votes next to the
successful candidate, it was not possible to hold that the result of the
election had been materially affected. It was in those circumstances that
Ghulam Hasan, J. observed:
"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 anyone to predicate how many of 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 971 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".
We do agree with the observations of Ghulam
Hasan, J.
in the context of the facts of that case. It
does not, however, mean that whatever the number of wasted votes and whatever
the margin of difference between the number of votes secured by the successful
candidate and the number of votes secured by the next highest candidate, the
court would invariably hold that the result of the election had not been
materially affected. In an appropriate case having regard to the margin of
difference between the votes secured by the successful candidate and the
candidate securing the next highest number of votes and the proporation which
such margin bears to the wasted votes, it is permissible for the court to hold
that the burden of proving that the result of the election has been materially
affected has been discharged.
In Samant Balakrishna's case, the court observed:
"In our opinion the matter cannot be
considered on possibility. Vashist Narain's case insists on proof. If the
margin of votes were small something might be made of the points mentioned by
Mr. Hethamalani. But the margin is large and the number of votes earned by the
remaining candidates also sufficiently huge. There is no room, therefore, for a
reasonable judicial guess.
The law requires proof. How far that proof
should go or what it should contain is not provided by the Legislature. In
Vashist's case the provision was held to prescribe an impossible burden. The
law has however remained as before. We are bound by the rulings of this Court
and must say that the burden has not been successfully discharged".
We do not think that this case lays down any
different principle than what we have already said. On the other hand, the
sentence underlined by us indicates that where the difference between the
number of votes secured by the successful candidate and the number of votes
secured by the highest candidate is marginal, it may be possible in the
circumstances of a case to hold that the 972 burden has been discharged. We
have already indicated our view that in this case, the burden has certainly
been discharged.
An attempt was made by the learned counsel for
the respondents to dislodge the finding of the Election Tribunal that Moti Ram
was a Kahar and not a Gond. But having gone through the relevant evidence, we
affirm the finding of the Election Tribunal and agree with the Election
Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was
a member of the Scheduled Castes. In the circumstances, the appeal has to be
allowed. We do so but without costs.
H.L.C. Appeal allowed.
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