Yadav Vs. Narender Singh  Insc 572 (30 October 2001)
R.C. Lahoti & P. Venkatarama Reddi R.C. Lahoti, J.
WITH C.A. NO. 2412 OF 2001
to a notification issued by the Election Commission of India under Section 30
of the Representation of the People Act, 1951 (hereinafter `the Act, for short)
in the month of January 2000 several constituencies, including 89 Ateli
Assembly Constituency, in the State of Haryana, were called upon to elect
members for the Haryana Legislative Assembly. Several nomination papers were
filed on the dates appointed for filing nomination papers.
scrutiny held on 4th February and withdrawal of candidature by a few candidates
on 7th February there were 17 candidates, including the appellant and
respondent, who remained in the fray for Ateli Constituency. It may be stated
that Smt. Om Kala, wife of a candidate Shri Naresh Yadav, had also filed her
nomination. She is alleged to be a cover candidate for her husband. Once the
nomination of Shri Naresh Yadav was found to be in order and accepted Smt. Om Kala
withdrew her candidature. The constituency went to polls on 25.2.2000. On
counting, the contesting candidates were found to have secured the following
numbers of votes:- Sr.No.
of the candidate Party affiliation No. of valid votes polled 1.
Parkash, Engineer BSP 5819 2.
Singh JD[U] 113 3.
Singh INC 31755 4.
J.D. Yadav HVP 500 5.
D/o Sh. Bhagwan Singh INLD 31421 6.
Kumar RJD 205 7.
Narain SP 785 8.
Kumar SJP[R] 212 9.
Parkash Yadav IND 18 10.
Parkash IND 178 11.
Yadav IND 19855 12.
Balbir Singh IND 476 13.
Ram Singh IND 111 14.
Nand Sharma IND 194 15.
W/o Yudhvir IND 40 16.
IND 92 17.
above table the party affiliation of the candidates is also given.
respondent Shri Narender Singh who was a candidate sponsored by Indian National
Congress having secured 31755 votes, the highest number of votes, was declared
elected. Smt. Santosh, the appellant, who was a candidate sponsored by Indian
National Lok Dal (INLD) secured 31421 votes i.e. next below the highest number
of votes. Thus, there was a margin of 334 votes between the votes secured by
the respondent and the appellant.
appellant filed an election petition putting in issue the election of the
respondent. One of the grounds taken in the election petition was that the
nomination of Shri Naresh Yadav was improperly accepted as he had been
convicted under section 304-B and Section 498 A of the Indian Penal Code and
was sentenced to undergo rigorous imprisonment for seven years and one year
respectively, besides the fine, under the judgment and order of sentence
pronounced by the Court of Sessions at Gurgaon on 30- 31/3/1990. Though an
appeal was filed by him before the High Court and the High Court had suspended
the execution of the sentence of imprisonment, nevertheless he remained a
person convicted of offences falling under clause (a) of sub-section (1) and
sub-section (3) of Section 8 of the Act and hence disqualified. The plea as to
disqualification of Shri Naresh Yadav has been upheld by the High Court.
Neither the factum of conviction of Shri Naresh Yadav nor the disqualification flowing
therefrom is in issue in this appeal.
in spite of holding that the election held in 89-Ateli Assembly Constituency
was vitiated on account of nomination of Shri Naresh Yadav having been
improperly accepted, the learned designated Election Judge of the High Court of
Punjab and Haryana has refused to set aside the election of the respondent as,
in his opinion, the election-petitioner/appellant has failed in discharging the
onus of proving that the result of the election, in so far as it concerns the
respondent (the returned candidate), had been materially affected.
election petition having been dismissed, the judgment of the High Court has
been put in issue by this appeal preferred under Section 116A of the Act. The
question arising for decision in this appeal is:
the High Court was right in forming the opinion that on the established facts
and circumstances of the case the appellant had failed in proving that the
election of the respondent was materially affected by improper acceptance of
the nomination paper of Shri Naresh Yadav.
case in this regard is that Shri Naresh Yadav was an active worker/leader of
INLD and was closely associated and well acquainted with the cadre, workers,
supporters and well-wishers of INLD. He was earlier a member of Bahujan Samaj
Party (BSP) and had contested 1996 Assembly Elections on the BSP ticket. In
August 1998, he joined INLD and actively participated in all the programmes,
functions and activities of INLD carried by Shri Om Prakash Chautala, president
of INLD and Shri Ajay Singh Chautala, president of the youth wing of INLD. The
respondent had extensively toured the constituency accompanying Shri Om Prakash
and Shri Ajay Singh. He was an aspirant of INLD ticket for contesting as an official
candidate of INLD from Ateli constituency. However, the choice of INLD fell on
the appellant. Shri Naresh Yadav, having failed in getting the ticket of INLD,
revolted and filed his nomination as an independent candidate. On account of
his close association with the INLD cadre he secured a high number of votes
cutting into pro INLD and anti-Congress votes which would have otherwise been
polled in favour of the petitioner. Shri Naresh Yadav secured 19855 votes,
which is more than 59 times the margin of votes between the votes secured by
the respondent and the appellant. If only the nomination paper of Shri Naresh Yadav
would have been rejected and his candidature would have been excluded the votes
polled by him would have definitely been polled by the appellant. There was a
pro INLD wave in the entire State of Haryana in the Assembly Elections of the year 2000. It was in effect an
anti-Congress wave. The respondent could not have secured more votes than what
he had secured and in as much as the votes secured by Shri Naresh Yadav were
otherwise pro INLD votes, they would all have been diverted to the appellant.
These averments have been denied by the respondent in his written statement as
already stated. The learned designated Election Judge has formed an opinion, on
appreciation of evidence, that the appellant had failed in substantiating the
plea raised in the election petition. Almost similar arguments, as were
advanced in the High Court, have been advanced before this Court, of course
with added vigour by the learned senior counsel for the appellant. Before we
deal with the merits of the submission so made and enter into appreciation of
evidence in the light of the submissions made, it will be useful to set out the
100 of the Act, in so far as relevant for the purpose of this appeal, reads as
under:- 100. Grounds for declaring election to be void.
Subject to the provisions of sub-section (2) if the High Court is of opinion -
(a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) that any nomination has been
improperly rejected ;
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 (ii) xxx xxx xxx xxx (iii) xxx xxx xxx xxx (iv) xxx xxx xxx xxx the High
Court shall declare the election of the returned candidate to be void.
Parliament has drawn a clear distinction between an improper rejection of any
nomination and the improper acceptance of any nomination. In the former case,
to avoid an election, it is not necessary to further prove that the result of
the election has been materially affected. The underlining reasoning for this
was well set out by a Constitution Bench of this Court in Surender Nath Khosla
presumption in the case of improper rejection of a nomination paper that it has
materially affected the result of the election. The fact that one of several
candidates for an election was kept out of the arena is by itself a very
material consideration. The officer rejecting the nomination paper of a
candidate may have kept out the most desirable candidate, the most desirable
from the point of view of electors and the most formidable candidate from the
point of view of the other candidates, from seeking election and therefore the
Parliament felt that an improper rejection of any nomination paper is
conclusive proof of the election being void and therefore dispensed with the
need of evidence being tendered in proof of the result of the election having
been materially affected. On the other hand, in the case of an improper
acceptance of a nomination paper, proof is required by way of evidence
demonstrating that the coming into the arena of an additional candidate has had
the effect on the election in such a manner that the best choice of the
electorate was excluded.
well settled by a catena of decisions that the success of a winning candidate
at an election should not be lightly interfered with.
is all the more so when the election of a successful candidate is sought to be
set aside for no fault of his but of someone else. That is why the scheme of
Section 100 of the Act, especially clause (d) of sub-section (1) thereof
clearly prescribes that in spite of the availability of grounds contemplated by
sub-clauses (i) to (iv) of clause (d), the election of a returned candidate
shall not be avoided unless and until it was proved that the result of the
election, in so far as it concerns a returned candidate, was materially
decisions were cited at the Bar and it will be useful to & Ors., AIR 1954
SC 513, the candidate whose nomination was improperly accepted had secured 1983
votes while the margin of votes between the winning candidate and the next
below candidate was 1972. This court held that having called upon to record a
finding that the result of the election has been materially affected, 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
wasted votes would have been so distributed between the contesting candidates
as would have brought about the defeat of the returned candidate. The Court
emphasized the need of proof by affirmative evidence and discarded the test of
a mere possibility to say that the result could have been different in all
probability. The question is one of fact and has to be proved by positive
Court observed that the improper acceptance of a nomination paper may have, in
the result, operated harshly upon the petitioner on account of his failure to
adduce the requisite positive evidence but the Court is not concerned with the
inconvenience resulting from the operation of the law. The Court termed it
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 George Fernandez & Ors., AIR 1969 SC 1201, this Court recognized that
proof of material effect on the result of the election in so far as a returned
candidate is concerned on account of a miscarriage occasioned by improper
acceptance of nomination paper at an election may be a simple impossibility.
The judge has to enquire how the election would have gone if the miscarriage
would not have happened and that enquiry would result virtually placing the
election not in the hands of the constituency but in the hands of the Election
Judge. The Court held that neither the matter could be considered on
possibility nor there was any room 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; but the insistence on proof can not & Ors., AIR 1988 SC
637, this court pointed out that proof of material effect on the result of the
election in a case of improper acceptance of nomination paper involved the
harsh and difficult burden of proof being discharged by the election petitioner
adducing evidence to show the manner in which the wasted ballots would have
been distributed amongst the remaining validly nominated candidates and in the
absence of positive proof in that regard the election must be allowed to stand
and the Court should not interfere with the election on speculation and
the above said decisions were referred to, dealt with and Ram, (2001) 3 SCC
290. This court held that the mere fact that the number of votes secured by a
candidate whose nomination paper was improperly accepted, was greater (more
than three times in that case) than the margin of the difference between the votes
secured by the returned candidate and the candidate securing the next higher
number of votes, was not by itself conclusive proof of material effect on the
election of the returned candidate.
common knowledge that voting and abstention from voting, as also the pattern of
voting, depend upon a complex variety of factors, which may defy reasoning and
logic. Depending on a particular combination of contesting candidates and the
political parties fielding them, the same set of voters may cast their ballots
in a particular way and may respond differently on a change in such
combination. Voters have a short-lived memory and not an inflexible allegiance
to political parties and candidates. Election manifestos of political parties
and candidates in a given election, recent happenings, incidents and speeches
delivered before the time of voting may persuade the voters to change their
mind and decision to vote for a particular party or candidate giving up their
previous commitment or this court has taken judicial notice of the fact that in
India all the voters do not always go to the polls and that the casting of
votes at an election depends upon a variety of factors and it is not possible
for anyone to predicate how many or which proportion of votes will go to one or
the other of the candidates.
learned senior counsel for the appellant placed heavy and submitted that the
ratio of the decision squarely applies to the present case and should govern
the decision thereof. It was submitted that in Chhedi Rams case the candidate
whose nomination was improperly accepted had obtained 6710 votes which was
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. So also 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 - a little over 1/3rd. The learned senior
counsel submitted that on availability of these twin factors it was held by
this Court that `the result of the election might safely be said to have been
the case of the present appellant stands on a much better footing in as much as
the number of votes secured by Shri Naresh Yadav is almost 59 times of the
margin between the votes secured by the appellant and the respondent.
first blush the submission appears to be attractive but is found to be devoid
of merit on closer scrutiny. Chhedi Rams case came up for the consideration of
this Court at least on three occasions.
Charans case (supra), Tek Chands case (supra) and J.
229, this Court has held that Chhedi Rams case rested on its own facts and did
not over-rule the earlier decisions of this Court namely the decisions in Vashisht
Narain Sharmas case (supra) and Samant N. Balakrishnas case (supra). In Chhedi
Rams case not only the proportion of wasted votes was 20 times of the margin,
there were six candidates in all in the election fray. The Court formed an
opinion that a reasonable probability was raised in favour of holding that the
result of the election had been materially affected. The decision in Chhedi
Rams case does not set out detailed facts and circumstances and the nature of
the evidence adduced which may have persuaded the Court in arriving at a
finding in favour of the election petitioner. In view of the earlier decisions
of this Court existing before Chhedi Rams case was decided, it cannot be held
that merely because the number of wasted votes bears a high degree of
proportion to the margin of votes between the winning candidate and the next
highest candidate, an inference must always be drawn that the result of the
election was materially affected in so far as the returned candidate is
concerned. There must be definite evidence available before the Court enabling
an inference being drawn as to how the wasted votes would have been distributed
amongst the contesting candidates. The Court cannot conjecturise or return
findings on surmises.
in Shiv Charan Singhs case (supra) are pertinent and apposite. It is no doubt
true that the burden which is placed by law on the election petitioner is very
strict; even if it is strict it is for the courts to apply it. It is for the
Legislature to consider whether it should be altered. If there is another way
of determining the burden, the law should say it and not the courts. It is only
in given instances that, taking the law as it is the courts can reach the
conclusion whether the burden of proof has been successfully discharged by the
election petitioner or not.
about the pleadings. Section 83 of the Act mandates an election petition to
contain a concise statement of the material facts on which the petitioner
relies. The rules of pleadings enable a civil dispute being adjudicated upon by
a fair trial and reaching a just decision. A civil trial, more so when it
relates to an election dispute, where the fate not only of the parties arrayed
before the Court but also of the entire constituency is at a stake, the game
has to be played with open cards and not like a game of chess or hide and seek.
An election petition must set out all material facts wherefrom inferences vital
to the success of the election petitioner and enabling the Court to grant the
relief prayed for by the petitioner can be drawn subject to the averments being
substantiated by cogent evidence. Concise and specific pleadings setting out
all relevant material facts, and then cogent affirmative evidence being adduced
in support of such averments, are indispensable to the success of an election
petition. An election petition, if allowed, results in avoiding an election and
nullifying the success of a returned candidate. It is a serious remedy.
an election petition seeking relief on a ground under section 100 (1) (d) of
the Act, must precisely allege all material facts on which the petitioner
relies in support of the plea that the result of the election has been
materially affected. Unfortunately in the present case all such material facts
and circumstances are conspicuous by their absence.
law as regards the result of election having been materially affected in case
of improper acceptance of nomination may be summed up as under : - (1) A case
of result of the election, in so far as it concerns the returned candidate,
having been materially affected by the improper acceptance of any nomination,
within the meaning of Section 100 (1) (d) (i) of the Representation of the
People Act, 1951 has to be made out by raising specific pleadings setting out
all material facts and adducing cogent evidence so as to enable a clear finding
being arrived at on the distribution of wasted votes, that is, the manner in
which the votes would have been distributed if the candidate, whose nomination
paper was improperly accepted, was not in the fray.
Merely because the wasted votes are more than the difference of votes secured
by the returned candidate and the candidate securing the next highest number of
votes, an inference as to the result of the election having been materially
affected cannot necessarily be drawn.
issue is one of fact and the onus of proving it lies upon the petitioner.
burden of proving such material effect has to be discharged by the election
petitioner by adducing positive, satisfactory and cogent evidence. If the
petitioner is unable to adduce such evidence the burden is not discharged and
the election must stand. This rule may operate harshly upon the petitioner
seeking to set aside the election on the ground of improper acceptance of a
nomination paper, but the Court is not concerned with the inconvenience
resulting from the operation of the law. Difficulty of proof cannot obviate the
need of strict proof or relax the rigour of required proof.
burden of proof placed on the election petitioner is very strict and so
difficult to discharge as nearing almost an impossibility.
is no room for any guesswork, speculation, surmises or conjectures i.e. acting
on a mere possibility. It will not suffice merely to say that all or majority
of wasted votes might have gone to the next highest candidate. The law requires
proof. How far that proof should go or what it should contain is not provided
by the legislature.
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. It is not permissible 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
so stated the law, we now proceed to assess and evaluate the evidence adduced
by the parties.
there are 10 witnesses examined on behalf of the election petitioner/appellant.
Balwant Singh, PW 1, the Returning Officer has deposed to only certain
undisputed facts. Sant Lal, PW 2, has produced result-sheets of Haryana State
Legislative Assembly Elections held in the years 1982, 1987, 1991, 1996 and 2000.
Pawan Kumar, PW 3, is a photographer and Ashok Wadhwa, PW 4, and Rohtas Yadav,
PW 5, are press-reporters, who have deposed to Shri Naresh Ydadav having joined
INLD publicly in early August, 1998 in the presence of Shri Om Prakash Chautala
and other leaders of INLD which is a fact not disputed by the respondent at
this stage. Ram Kumar, PW 6, District Office Secretary of INLD, has deposed to Shri
Naresh Yadav and the appellant - both having been aspirants for INLD party
ticket but in mid-September, 1998 the ticket having been denied to Shri Naresh Yadav
and the appellant having been given the party ticket where after Shri Naresh Yadav
made a rebellion and chose to contest as an independent candidate. Again, this
is also a fact not seriously disputed at this stage. The statements of
remaining four witnesses are relevant and need to be scrutinized for the
purpose of deciding the main controversy in this appeal.
Ram, PW 7, is a resident of village Silarpur while Sher Singh, PW 8, is a
resident of village Shyampura. Both of them have deposed to there having been
two main groups in their respective villages in the election. The two groups
were of the Congress and the INLD. None of them speaks of having any knowledge
about the entire constituency. None of the two has deposed to, he himself
having been a voter and exercised his own franchise. Bali Ram, PW 7, states Shri
Naresh yadav having made in -roads into the votes of the appellant. Obviously,
the statement is confined to his own village.
Singh, PW 8, too deposed that Shri Naresh Yadav contesting as an independent
candidate affected the votes of INLD and those votes were not in favour of Congress
. What has been stated by these two witnesses does not go beyond being `ipse dixit
of the witnesses.
is nothing on record to show how many voters were there in the two villages and
which way the polling went as amongst the different candidates.
Yadav, PW 9, the appellant herself, deposed about some party workers having
gone with Shri Naresh Yadav without disclosing the names of such party workers.
She further stated that the party votes were divided because Shri Naresh Yadav
asked for the votes in the name of Shri Om Prakash Chautala a fact not alleged
in the election petition. This is apart from the fact that who were such voters
and at what point of time they were asked to vote for Shri Naresh Yadav is
neither averred in the pleadings nor stated in her statement. According to her
own admission Shri Om Prakash Chautala was touring the constituency and had
come to support her in the constituency. Satbir Singh, PW 10, is General
Secretary of INLD of District Mohindergarh and was In-charge of election
campaigning in Ateli Constituency in February, 2000. He claims to have toured
the Ateli Constituency during the elections and therefrom he deposed that on
account of Shri Naresh Yadav having contested as an independent candidate many
of the workers and voters of INLD supported him. The statement has remained as
vague and general as is of the appellant herself. The witnesses PW 7, PW 8 and
PW 10, are all party workers and would naturally have some bias in favour of
their own party and would be obviously interested in the success of the
appellant in the election petition. There evidence also does not advance the
case of the appellant.
documents which have been brought on record by the election petitioner show the
State level results of Haryana. But what is relevant is the trend of voting and
distribution of votes amongst contesting candidates in Ateli Constituency and
not necessarily the entire State. The election petitioner did not bring on
record Form 20 document for the year 2000 elections or of the earlier elections
so as to spell out what was the trend of voting in this particular
Constituency. Form 21-E tendered in evidence establish that in the past
elections, it was the Congress Party which had won election in Ateli in 1982,
1991 and 1996. In 1982 elections Congress (J) candidate was returned to
Legislative Assembly having secured 27298 votes and Shri Banshi Singh, father
of Shri Naresh Yadav secured 27105 votes and lost. In 1991, Shri Banshi Singh
secured 19343 votes as a Congress candidate and won the election. In the year
1996 there were 47 candidates contesting from Ateli constituency. INC candidate
won having secured 22114 votes. However, Om Prakash, engineer contesting on Haryana
Vikas Party ticket, Ajit Singh (Samajvadi Party), Naresh Yadav (BSP), Nihalsingh
(Samta Party) and Bharat Singh (Independent) secured 19270, 15686, 9846, 7534
and 3328 respectively. In the year 2000 itself one Shri Om Prakash, engineer, a
BSP candidate secured 5819 votes, not a totally insignificant number and in the
event of Shri Naresh Yadav being excluded he would also have shared some of the
wasted votes, apart from other candidates out of 17 in all. No definite trend
or mood of voters is, thus, projected from the statistics so made available. In
Paokai Haokips case (supra), Chief Justice M. Hidayatullah said that statistics
cannot be called in aid to prove such facts, because it is notorious that
statistics can prove anything and made to lie for either case. It has also come
in the evidence that father of Naresh Yadav has been a Sarpanch and Smt. Om Kala,
the wife of Shri Naresh Yadav is herself active in politics and contested
several elections. She had contested Zila Parishad Elections within the
constituency of Ateli on two occasions and on both occasions she was elected.
In the year 1996, Shri Naresh Yadav had contested elections as the candidate of
Bahujan Samaj Party and had polled 9846 votes, almost half of the votes polled
by him in the impugned elections. Thus, Shri Naresh Yadav and his family
members are active in politics and they have their own political base. Shri Naresh
Yadav does not have any fixed party affiliation; he has been often changing his
party membership. It can not therefore be said that the votes which he secured
were necessarily a cut into INLD vote bank. It is difficult to agree with the
submission of the learned senior counsel for the appellant that while as a
candidate of BSP, Shri Naresh Yadav polled 9846 votes in 1996 elections, his
rise by 9885 votes in the year 2000 elections should be attributed to, and be
treated as, a cut into INLD votes and these 9885 votes or a major clunk of them
would have otherwise gone to the appellant. Shri Naresh Yadav having been
continuously in politics, he may have gradually strengthened his political base
and thereby secured a spurt in the number of his voters and supporters. It
needs hardly any evidence to hold, as one can safely assume that the appellant
must have openly and widely propagated herself as INLD candidate and made it
known to the constituency that she was the official candidate sponsored by INLD
and Shri Naresh Yadav was not an INLD sponsored candidate and was a defector.
Therefore, it is difficult to subscribe to the suggested probability that any
voter committed to INLD ideology would have still voted for Shri Naresh Yadav
merely because he had for a period of two years before defection remained
associated with INLD.
Narain Sharmas case (supra) the election petitioner made an attempt at
discharging the onus of proof by producing a number of electors before the
Tribunal who had stated that all or some of the votes would have gone to the
candidate who had polled the next highest number of votes in the absence of the
improperly nominated candidate he would have polled majority of valid votes. It
was held that the statement of the witnesses as to in what manner votes would
have been distributed among the remaining contesting candidates could not be
relied upon in determining the question of material effect on the election of
the returned candidate. The Court observed that it was impossible to accept
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 grounds. Paokai Haokips case (supra) witnesses were brought forward
to State that a number of voters did not vote because of the change of venue
and certain other incidents. This Court held that this kind of evidence was
merely an assertion on the part of a witness who could not have spoken for 500
voters. The Court also refused to accept the statement even of village Headman
that the whole village would have voted in favour of one candidate to the
exclusion of the other.
learned senior counsel for the appellant extensively read out a few passages
from the decision of this Court in Tek Chands case (supra). The passages relate
to marshalling of evidence. During discussions this Court has made certain
observations as to the missing pieces of the facts and circumstances which by
their absence had a debilitating effect on the evidence adduced. The learned
senior counsel submitted that the evidence which was missing in Tek Chands case
has been adduced and made available in the present case and therefore the
finding on the crucial issue should lean in favour of the appellant. We are
afraid such a submission can not be accepted. We see no acceptable logic behind
the argument that if what was missing in Tek Chands case, would have been
available, the finding would necessarily have been in favour of the election
also do not see force in the submission of the learned senior counsel for the
respondent that Smt. Om Kala had withdrawn her candidature because of her
husbands nomination having been accepted and if the nomination of her husband Shri
Naresh Yadav would have been rejected than she being a cover candidate, would
have contested the election and therefore the result of the election can not be
said to have been materially affected. Suffice it to observe that we have to
deal with what has happened and not with an imaginary situation which could
have happened but did not happen.
opinion, on the pleadings and the evidence adduced, the election
petitioner/appellant has utterly failed in demonstrating the pattern of voting
in Ateli Constituency. There were 17 contesting candidates in the field. It is
difficult to make a reasonable guess, much less with any certainty, that if Shri
Naresh Yadav was excluded then such number of votes would have been taken out
of the votes polled by him and fallen into the box of appellant as to make her
much as we have found, agreeing with the High Court that the election
petitioner/appellant has failed in discharging the heavy burden, which lay on
her, of proving that the result of election, in so far as it concerns the
returned candidate i.e., the respondent, has been materially affected by the
improper acceptance of the nomination of Shri Naresh Yadav, the judgment of the
High Court cannot be faulted.
respondent has preferred cross objections. Without going into the question of
maintainability thereof we have found no merit therein and the learned senior
counsel for the respondent, did not, in all fairness, seriously press the same.
The appeal and the cross objections, are held liable to be dismissed and are
dismissed accordingly, though without any order as to the costs.
. . .
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LAHOTI ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .J.
P.VENKATARAMA REDDI ) October 30, 2001.