R.C.LAHOTI, J. - (1.) PURSUANT 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. After 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 thathat 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:- JUDGEMENT_72_SUPREME8_2001Html1.htm
(2.) IN the above table the party affiliation of the candidates is also given. The 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 i.e. 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. The 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 Session at Gurgaon on 30/-31-3-1990. Though an appeal was filed by him before the High Court and the High Court has 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. However, 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. The 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: whether 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.
(3.) THE appellant's 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 Election 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 that 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 relevant law. Section 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,- (1) 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; or (d) that the result of the election, in so far as it concern 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". ;