GHULAM HASAN - (1.) THE Judgment of the court was delivered by :
(2.) THIS appeal preferred under article 136 of the Constitution against the order, dated 4/05/1951, of the Election tribunal, Allahabad, setting aside the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly, raises two questions for consideration. The first question is whether the nomination of one of the rival candidates, Dudh Nath, was improperly accepted by the Returning Officer and the second, whether the result of the election was thereby materially affected. Eight candidates filed nominations to the Uttar Pradesh Legislative Assembly from Ghazipur (South East) Constituency No. 345, three withdrew their candidature and the contest was confined to the remaining five. The votes secured by these candidates were as follows JUDGEMENT_513_AIR(SC)_1954Html1.htm They were arrayed in the election petition as respondents Nos. 1 to 5 respectively. The first respondent having secured the highest number of votes was declared duly elected. Three electors filed a petition under section 81 of the Representation of the People Act (Act XLIII of 1951) `praying that the election of the returned candidate be declared void and that respondent No. 2 be declared to have been duly elected; in the alternative, that the election be declared wholly void. The election was sought to be set aside on the grounds, inter alia, that the nomination of respondent No. 4 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected. The tribunal found that respondent No. 4, whose name was entered on the electoral roll of Gahmar Constituency Ghazipur (South East) 'personated' (meaning passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency ghazipur (South West), that the Returning Officer had improperly accepted his nomination, and that the result of the election was thereby materially affected. Allegations of major and minor corrupt practices and non-compliance with certain statutory rules were made but the tribunal found in favour of the returned candidate on those points. Dudh Nath, respondent No. 4, is Rajput by caste. His permanent or ancestral home is Gahmar but since 1943 he had been employed as a teacher in the Hindu Higher Secondary School at Zamania-a town 10 or 12 miles away-and he had been actually residing at village Baruin which is quite close to Zamania. The person for whom Dudh Nath 'personated' is Dudh Nath Kahar whose permanent house is at Jamuan, but his father lives at Baruin. Dudh Nath Kahar used to visit Baruin off and on but he was employed at Calcutta. The nomination paper filed by Dudh Nath gave his parentage and age which more properly applied to Dudh Nath Kahar. He gave his father's name as Shiv Deni alias Ram Krit. Ram Krit is the name of Dudh Nath Kahar's father. The electoral roll (Exhibit K) of Gahmar gives Dudh Nath's, father's name as Shio Deni with no alias and his age as 39, while the electoral roll of Pargana Zamania Monza Baruin (Exhibit C) gives Dudh Nath's father's name as Ram Krit and his age as 31. In the electoral roll of Jamuan Dudh Nath's age is entered as 34 but in the supplementary listit is mentioned as 30. When the nomination paper was filed on 24/11/1951, at 2-20 P.m. it was challenged by Vireshwar Nath Rai on the ground that Dudh Nath's father's name was Shivadeni and not Ram Krit but no proof was given in support of the objection and it was overruled on November 27. This order was passed at 1 P.m. One of the candidates, who later withdrew, filed an application at 3-25 P.m. before the Returning Officer offering to substantiate the objection which the objector had not pressed. This application was rejected on the ground that the nomination had already been declared as valid. In point of fact no evidence was adduced. This acceptance of the nomination on the part of the Returning Officer is challenged as being improper under section 36(6) of the Representation of the People Act and as the result of the election according to the objector has- been materially affected by the improper acceptance of this nomination, the tribunal is bound to declare the election to be wholly void under section 100(1) (c) of the Act. Mr. Daphtary on behalf of the. appellant has argued before us with reference to the provisions of S. 33 and 36 that this is not a case of improper acceptance of the nomination paper, because prima facie the nomination paper was valid and an objection having been raised but not pressed or substantiated, the Returning Officer had no option but to accept it. There was, as he says, nothing improper in the action of the, Returning Officer, On the contrary, it may, according to him, be more appropriately described as a case of an acceptance of an improper nomination paper by the Returning Officer, inasmuch as the nomination paper contained an inherent defect which was not discernible ex facie and could be disclosed only upon an enquiry and upon the taking of evidence as to the identity which was,not then forthcoming. Such a case, it is argued, is not covered by section (1)(c) but by section 100(2)(c) in which case the election of the returned candidate is alone to be declared void, whereas in the former case the election is wholly void. We do not propose to express any opinion upon this aspect of the matter, as in our view the appeal can be disposed of on the second question. Section 33 of the Representation -of the People Act, 1951, deals' with the presentation of nomination -paper and lays down the requirements for a valid nomination, On the date fixed for scrutiny of the nominations the Returning Officer is required to examine the nomination paper and decide-all objections which may be made to any nomination, and after a summary enquiry. if any, as he thinks necessary he is entitled to refuse nomination on certain grounds mentioned in Ss. (2) of section 36. Ss. (6) lays down that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. This Ss. shows that where the nomination paper is accepted., no reasons are required to be given. Section 100 gives the grounds for declaring an election to be void. The material portion is as follows:-(1) If the tribunal is of opinion(a)......................................... (b)......................................... (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. It is under this Ss. that the election was sought to be set aside, 515 Before an election can-be declared to be wholly void under section 100(1) (c), the tribunal must find that `the result of the election has been materially affected. ` These words have been the subject of much controversy before the Election tribunals and it is agreed that the opinions expressed have not always been uniform or consistent. These words seem to us to indicate that 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 the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. The next question that arises is whether the burden of proving this lies upon the petitioner who objects to the validity of the election. It appears to us that the volume of opinion preponderates in favour of the view that the burden lies upon the objector. It would be useful to refer to the corresponding provision in the English Ballot Act, 1872, section 13 of which is as follows:- ` No election shall be declared invalid by reason of a non-compliance with the rules contained in the first schedule to this Act, or any mistake in the use of the forms in the second schedule to this Act, if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election.` This section indicates that an election is not to be declared invalid if it appears to the tribunal that noncompliance with statutory rules or any mistake in the use of such forms did not affect the result of the election. This throws the onus on the person who seeks to uphold the election. The language of section 100(1)(c), however, clearly places a burden upon the objector to substantiate the objection that the result of the election has been materially affected. On the contrary under the English Act the burden is placed upon the respondent to show the negative, viz., that the result of the decision has not been affected. This view was expressed in Rai Bahadur Surendra Narayan Sinha v. Amulyadhone Roy & others (1), by a tribunal presided over by Mr. (later Mr. Justice) Roxburgh. The contention advanced in that case was that the petitioner having established an irregularity it was the duty of the respondent to show that the result of the election had not been materially affected thereby. The tribunal referred to the provisions of section 13 of the Ballot Act and drew a distinction between that section and the provisions of paragraph 7(1) (c) of Corrupt Practices Order which was more or lesson the same lines as section 100(1) (c). They held that the onus is differently placed by the two provisions. While under the English Act the tribunal hearing an election petition is enjoined not to interfere with an election if it appears to it that noncompliance with the rules or mistake in the use of forms did not affect the result of the election, the provision of paragraph 7(1) (e) placed the burden on the petitioner. The tribunal recognized the difficulty of offering positive proof in such circumstances but expressed the view that they had to interpret and follow the rule as it stood.
(3.) IN C. M. Karale v. -Mr. B. K. Dalvi etc. (2), the tribunal held that the onus of proving that the result had been materially affected rests heavily on the petitioner of proving by affirmative evidence that all or a large number of votes would have come to the returned candidate if the person whose nomination had been improperly accepted had not been in the field. In Babu Basu Sinha v. Babu Rajandhari Sinha etc. it was emphasized that it is not enough for the petitioner to show that the result of the election might have been affected but he must show that it was actually affected thereby. The case of Jagdish Singh v. Shri Rudra Deolal etc. was one under section 100(1) (c) of the Representation of the People Act. It was held that the question should always be decided on the basis of the material on the record and not on mere probabilities. The tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence, though it is difficult, that the result had been materially affected. ;