Sarnam
Singh Vs. Smt. Pushpa Devi & Ors [1987] INSC 294 (27 October 1987)
VENKATARAMIAH,
E.S. (J) VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)
CITATION:
1988 SCR (1) 630 1988 SCC Supl. 65 JT 1987 (4) 158 1987 SCALE (2)861
ACT:
Representation
of the People Act, 1951: Section l00- Improper rejection /acceptance of
nomination-Distinction and effect of-Result of election-Whether materially
affected- Burden of proof-Whether discharged.
HEADNOTE:
%
In the election to the Uttar Pradesh State Legislative Assembly from
constituency No. 41 held in early March, 1985, 16 candidates contested.
Respondent No. 1 was declared elected having secured 23,006 votes. Respondent
No. 2 secured 20,735 votes being the next highest. The difference of votes
secured by them was in the order of 2,271 votes.
Respondent
No. 8 who was working as a teacher in a college and who was one of the
candidates secured 3,606 votes which were more than the difference between the
votes secured by respondent No. 1 and 2.
The
appellant who was an elector at the said election filed an election petition
contending that respondent No. 8 was holding an 'office of profit' under the
State Government as he was working as a teacher in a college and therefore, the
acceptance of his nomination by the returning officer was illegal, that since
respondent No. 8 secured 3,606 votes which were higher than the difference
between the votes secured by respondent No. 1 and respondent No. 2, the
election of respondent No. 1 should be considered as having been materially
affected by the wrongful acceptance of the nomination paper of respondent No.
8, and the election of the respondent No. 1 was, therefore, liable to be set
aside.
Respondent
No.1 contested the election petition pleading that the acceptance of the
nomination paper of respondent No. 8 was not illegal since he was not holding
an office of profit under the State Government, and that even if the acceptance
was illegal the election could not be set aside since the result of the election
was not materially affected thereby.
Dismissing
the petition, the High Court held that the acceptance of the nomination paper
of respondent No. 8 was not illegal as he was not holding an office of profit
under the State Government and that 631 even if the acceptance of the
nomination paper was illegal, the appellant had not established that the result
of the election of respondent No. 1 had been materially affected on the facts
and in the circumstances of the case.
In
the appeal to this Court on the question: whether the appellant had established
that the result of the election of respondent No. 1 had been materially
affected by the wrongful acceptance of the nomination paper of respondent No.
8.
Dismissing
the appeal to this Court, ^
HELD:
The appellant has not discharged the burden which clearly lay on him of proving
that the result of the election had been materially affected, even assuming
that the nomination of respondent No. 8 had been improperly accepted. [640E]
Section 100 of the Representation of the People- Act makes a distinction
between the effect of improper rejection of any nomination, and the effect of
the improper acceptance of any nomination on the election. If a nomination of
any person at an election had been improperly rejected the election of the
returned candidate is liable to be set aside without any further proof because
it is difficult to visualise the number of votes which the person whose
nomination has been rejected would have secured at the election and there is
every likelihood of the returned candidate not securing the highest number of
votes. [634E-G] Clause (c) of sub-section (1) states that if the High Court is
of the opinion that any nomination has been improperly rejected it shall
declare the election of the returned candidate to be void. [634Gl Sub-clause
(i) of clause (d) of sub-section (1) requires a petitioner in an election
petition to establish two grounds in order to get the election of the returned
candidate set aside. namely (i) that there has been improper acceptance of any
nomination and (ii) that by reason of entry of the candidate whose nomination
has been improperly accepted into the contest the result of the election
insofar as the returned candidate is concerned has been materially affected.
[635A-B] Having regard to the facts of the instant case it is not possible to
hold that the appellant has established that the result of the election of the
returned candidate had been materially affected because the dif- 632 ference
between the votes secured by respondent No. 1, the returned candidate and
respondent No. 2, the candidate who secured next highest votes was 2,271 votes.
Respondent No. 8, the validity of whose nomination was questioned, had secured
only about 1/7th of the number of votes polled by respondent No. 1 and there
were 15 candidates (excluding respondent No. 8) contesting the election. It is
not possible to reach a finding in this case by making a judicial guess that
all the 3606 voters who had voted in favour of respondent No. 8 would have cast
their votes in favour of respondent No. 2 alone. Even if about 1350 of them had
cast their votes in favour of any of the other 14 candidates (including the
returned candidate) respondent No. 2 could not have become the candidate who
had secured the highest number of votes at the election. [639C-E] The High
Court was, therefore, right in taking the view that the appellant or any other
party had not placed any satisfactory evidence to reach the conclusion that all
or sufficient number of wasted votes which had been cast in favour of
respondent No. 8 would have gone in favour of respondent No. 2, had respondent
No. 8 not been one of the candidates at the election, that in the context
particularly of the poll being heavy and the contestants being large in number,
16 in all It was unreasonable to guess that if the respondent No. 8 were
excluded from the arena of contest the wasted votes would have gone to the
respondent No. 2 thereby enabling him to succeed, and that the burden Iying
upon the petitioner remained clearly undischarged and the speculative
possibility did not attain the level of proof. [640B-D] Vashist Narain Sharma
v. Dev Chandra and others, ]1955] 1 - S.C.R. 509; Samant N. Balakrishna etc. v.
George Fernandez and Ors. etc., [1969] 3 S.C.R. 603 and Chhedi Ram v. Jhilmit
Ram and others, p ] 1984] 2 SCC 281, referred to.
Civil
Appellate Jurisdiction: Civil Appeal No. 1177 (NCE) of 1986.
From
the Judgment and order dated 17.1.1986 of the Allahabad High Court (Election
Tribunal) in Election Petition No. 54 of 1985.
R.K.
Garg and Ravi Parkash Gupta for the Appellant.
Qamarrudin
and Mrs. Qamarrudin for the Respondents.
The
Judgment of the Court was delivered by 633 VENKATARAMIAH, J. This appeal is
filed under section 116A of the Representation of the People Act, 195 l
(hereinafter referred A to as 'the Act') by the appellant against the Judgment
dated January 17, 1986 of the High Court of Allahabad in Election Petition No.
34 of 1985 dismissing the Election Petition.
The
election to the Uttar Pradesh State Legislative Assembly from Constituenc No.
41-Gunnaur, Village Mirzapur, District Baduan took place in early March, 1985.
16 candidates contested at the said election. Respondent No. I- Smt. Pushpa
Devi was declared elected having secured 23006 votes. The next highest number
of votes was secured by Shri Naurangi Singh. He secured 20735 votes. The
difference between the votes secured by Respondent No. l and the votes secured
by Respondent No. 2 was in the order of 227 l votes.
Respondent
No. 8, who was working as a teacher in the Babu Ram Singh Intermediate College,
Baburala, Baduan was also one of the candidates in the election. He secured
3606 votes, which were more than the difference between the votes secured by
Respondent No., and by Respondent No. 2. The appellant, who was an elector at
the said election, filed the Election Petition, out of which this appeal
arises, contending that Respondent No. 8, who was working as a teacher in the
Babu Ram Singh Intermediate College, Baburala, Baduan, was holding an office of
profit under the State Government and, therefore, the acceptance of his
nomination by the Returning officer was illegal. Since Respondent No. 8 secured
3606 votes, which were higher than the difference between the votes secured by
Respondent No. I and the votes secured by Respondent No. 2, the election of
Respondent No. I should be considered-as having been materially affected by the
wrongful acceptance of the nomination paper of Respondent No. 8 and the
election of Respondent No. 1 was liable to be set aside. The Election Petition
was contested by Respondent No. 1. It was pleaded by Respondent No. 1 that the
acceptance of the nomination paper of Respondent No. 8 was not illegal since
Respondent No. 8 was not holding an office of profit under the State Government
and secondly even if the acceptance of the nomination paper of Respondent No. 8
was illegal, the election could not be set aside since the result of the
election was not materially affected thereby. The High Court held that the
acceptance of the nomination paper of Respondent No. 8 was not illegal as
Respondent No. 8 was not holding an office of profit under the State Government
and it further held that even if the acceptance of the nomination paper of
Respondent No. 8 was illegal, the appellant had not established that the result
of the election of Respondent No. I had been materially affected on the facts
and in the H 634 circumstances of the case. The High Court accordingly
dismissed the petition. Aggrieved by the judgment of the High Court the
appellant has filed this appeal.
Since
it is possible to dispose of this appeal on the second ground we do not propose
to express any opinion in this case on the question whether Respondent No. 8
was, in fact, holding an office of profit under the State Government or not on
the date on which the nomination paper was filed or on the date of the
election. We leave the said question open.
In
order to decide the second question it is necessary to set out the relevant
part of section 100 of the Act which reads thus:
"100.
Grounds for declaring election to be void- (1) Subject to the provisions of
sub-section (2) if the High Court is of opinion-
..................................................
(c)
that any nomination has been improperly rejected; or (d) that the result of the
election, in so far as it concerns a returned candidate, has been materially
affected- (i) by the improper acceptance of any nomination,
or............" Section 100 of the Act makes a distinction between the
effect of improper rejection of any nomination and the effect of the improper
acceptance of any nomination on the election. If a nomination of any person at
an election has been improperly rejected the election of the returned candidate
is liable to be set aside without any further proof because it is difficult to
visualise the number of votes which the person whose nomination has been
rejected would have secured at the election and there is every likelihood of
the returned candidate not securing the highest number of votes. It is for this
reason clause (c) of section 100(1) of the Act states that if the High Court is
of the opinion that any nomination has been improperly rejected it shall
declare the election of the returned candidate to be void. Sub-clause (i) of
clause (d) of sub- section (1) of section 100 of the Act is, however, worded
differently. It says that if the High Court is of opinion that the result of
the election insofar as it concerns the returned candidate has been materially
affected by the improper acceptance of any nomination it 635 shall declare the
election of the returned candidate as void. Sub-clause (i) of clause (d) of
section 100( I) of the Act requires a petitioner in an election petition to
establish two grounds in order to get the election of the returned candidate
set aside, namely, (i) that there has been improper acceptance of any
nomination; and (ii) that by reason of the entry of the candidate whose
nomination has been improperly accepted into the contest the result of the
election insofar as the returned candidate is concerned has been materially
affected. The reason for making a distinction between a case falling under
clause (c) of section 100(1) of the Act and a case falling under sub- clause
(i) of clause (d) of section 100( I) of the Act can be explained with reference
to a hypothetical case. Let us assume that the returned candidate has secured
at an election 30,000 votes and 20,000 votes have been secured by a candidate
who has secured the next highest number of votes. We shall assume that a third
candidate, whose nomination paper had been improperly accepted, has secured
just 1000 votes. In this case even if it is held while deciding an election
petition that the nomination of the third candidate has been improperly
accepted, there is no justification to set aside the election of the successful
candidate because even if all the votes secured by the third candidate are
added to the candidate who has secured the next highest number of votes he
would be a person who has secured 21000 votes and the successful candidate
would still be a person who has secured the highest number of votes at the
election. In this hypothetical case it has to be held that the result of the
election has not been materially affected at all. Such election petition has necessarily
to be rejected. This Court was called upon to decide a case similar to the
present one in Vashist Narain Sharma v. Dev Chandra and others. [1955] 1 S.C.R.
509. In that case the returned candidate Vashist Narain Sharma had secured
12868 votes and Vireshwar Nath Rai secured the next highest number of votes,
i.e.,10,996. The difference in the number of votes secured by these two
candidates was 1872. Another candidate by name Dudh Nath at the election, whose
validity was in issue in that case, had secured 1983 votes. There were also two
other candidates in the field. One of the grounds in the election petition, out
of which the above case arose, was that the election of the returned candidate
was liable to be set aside since the nomination paper of Dudh Nath had been
improperly accepted by the Election Commissioner. The Court in that case held
that the burden of proving that the result of the election had been materially
affected on account of the improper acceptance of a nomination was on the
petitioner and that even if there was wrongful acceptance of the nomination
having regard to the number of votes secured by the several candidates it was
not possible to hold that the 636 result of the election had been materially
affected. In Samant N. Balakrishna etc. v. George Fernandez and Ors etc.,
[1969] 3 S.C.R. 603 section 100( l)(d)(i)) of the Act again arose for
consideration. In that case this Court commented at pages 643-644 on the
decision in Vashist Narain Sharma's case (supra) thus:- "Mr. Chari relies
upon the rulings of this Court where it has been laid down how the burden of
proving the effect on the election must be discharged. He referred to the case
reported in Vashist Narain Sharma v. Dev Chandra and Surendra Nath Khosla v.
Dilip Singh and the later rulings of this Court in which Vashist Narain's case
has been fol. lowed and applied.
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. Jethmalani. But the margin is large and the
number of votes earned by the remaining candidates also sufficiently huge.
There is no room, there fore, for a reasonably 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 and in Inayatullah v. Diwanchand Mahajan,
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 cannot overlook the rulings
of this Court and follow the English rulings cited to us." The very same
question was considered by this Court in Chhedi Ram v. Jhilmit Ram and others,
1984] 2 SCC 281 by a bench of which one of us (Venkataramiah, J.) was a member.
The
judgment in that case was delivered by Chinnappa Reddy, J. In that case the
returned candidate Jhilmit Ram had secured 17, 822 votes and Chhedi Ram, the
runner-up had secured 17449 votes. Thus the difference between the successful
candidate and the candidate who secured next highest 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, i.e.,
his nomination had been improperly accepted and the result of election was
materially affected. The High Court found that Moti Ram was a Kahar by caste
637 and not a member-of the scheduled Castes. Having arrived at the conclusion
that Moti Ram's nomination had been accepted improperly, the High Court 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 affected in view of the
improper acceptance of the nomination of Moti Ram. The election petition in
that case was, therefore, dismissed. Chhedi Ram then preferred an appeal to this
Court against the judgment of the High Court. This Court allowed the appeal. In
the course of the judgment Chinnappa Reddy, J. Observed thus "2. We are
afraid the appeal has to be allowed. Under section l00(1)(d) of the
Representation of the People Act, 195 1, 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 Numbers 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
large number of votes than the difference between the number of votes secured
by 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 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, 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 638
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 impossible 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 he 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
is not proved. In the present case, the candidate whose nomination was
improperly accepted had obtained 67 10 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. Not merely that. The
number of votes secured by the candidate whose nomination was improperly
accepted bore a fairly high proportion to the number 639 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." In the case before us Respondent No. I had secured 23006 votes
and Respondent No. 2 had secured 20735 votes.
The
margin thus was of 22371 votes. Respondent No. 8, the validity of whose
nomination was questioned, had secured 3606 votes. It is no doubt true that if
we assume that all the 3606 votes secured by Respondent No. 8 would have gone
to Respondent No. 2, Respondent No. 2 would have been the successful candidate.
at the election. Having regard to the facts of this case we feel that it is not
possible to hold that the appellant in this appeal has established that the
result of the election of the returned candidate had been materially affected
because the difference between the votes secured by Respondent No. 1 and the
votes secured by Respondent No. 2 was 2272 votes. Respondent No. 8 had secured
only about 1 7th of the number of votes polled by the Respondent No. l and
there were 15 candidates (excluding respondent No. 8) contesting the election.
It is not possible to reach a finding in this case by making a judicial guess
that all the 3606 voters who had voted in favour of Respondent No. 8 would have
cast their votes in favour of Respondent No. 2 alone. Even if about 1350 of
them had cast their votes in favour of any of the other 14 candidates
(including the returned candidate) Respondent No. 2 could not have become the
candidate who had secured the highest number of votes at the election. At this
stage it is relevant to refer to the observation of Gulam Hasan, J. In Vashist
Narain Sharma's, case (supra) which run thus:- "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 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 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 of confronted
with a difficult situation, it is not possible to relieve him of the duty
imposed upon him H 640 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 the case before us we are of
the view that the High Court was right in observing that the appellant or any
other party had not placed satisfactory evidence to reach the conclusion that
all or a sufficient number of the wasted votes which had been cast in favour of
Respondent No. 8 would have gone in favour of Respondent No. 2, had Respondent
No. 8 not been one of the candidates at the election. The High Court has on the
evidence before it held that "in the context particularly of the poll
being heavy and the contestants being large in number 16 in all-it remains
unreasonable to guess that if the respondent No. 8 were excluded from the arena
of contest the wasted votes would have gone to the respondent no. 2 thereby
enabling him to succeed. The burden Iying upon the petitioner remains clearly
un-discharged and the speculative possibility does not attain the level of
proof." We agree with the above observation of the High Court since the
appellant has not discharged the burden which clearly lay on him or proving
that the result of the election had been materially affected even assuming that
the nomination of Respondent No. 8 had been improperly accepted. This appeal
should, therefore, fail. We accordingly dismiss it. We, however, make no order
as to costs.
N.P.V.
Appeal dismissed.
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