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TaxTMI 
1988 (1) TMI 361
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....2, also an elector before the High Court of Rajasthan under Section 80 of he Act, challenging the validity of the appellants' election to the legislative assembly on the ground that Kanhaiya Lal a contesting candidate was not qualified to contest election under Article 173(b) of the Constitution as he was below 25 years of age on the date of scrutiny of nomination papers and his nomination paper was improperly accepted by the Returning Officer which materially affected the result of the election of the returned candidate. The appellant appeared and contested both the election petitions, and pleaded before the High Court that Kanhaiya Lal was qualified to be a candidate at the election as he had completed 25 years of age on the date of scrutiny of nomination papers and there was no improper acceptance of his nomination paper. He further pleaded that in any view, his election was not materially affected by the acceptance of Kanhaiya Lal's nomination paper. Both the election petitions were consolidated and tried jointly by the High Court. The issues framed were almost identical in the two election petitions and the election petitioners and the appellant produced evidence in su....
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....ayan 1310 5 Prahlad 252 6 Puran Charan Sharma 1308 7 Mana Lal 198 8 Ram Swaroop 102 9 Roshan Lal 16949 10 Samanta 271 11 Heera Lal 40 The High Court has held that Kanhaiya Lal's nomination paper was improperly accepted, as he was not competent to contest the election for the reason of his being below 25 years of age. Since there was difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal who had polled 16946 votes the High Court held that if Kanhaiya Lal had not contested the election the aforesaid number of votes polled by him could have gone in favour of Roshan Lal and other candidates as a result of which Roshan Lal would have polled the majority of valid votes. In this view the High Court concluded that the result of the appellant's election was materially affected and it accordingly declared the appellant's election void. Since the learned Counsel for the appellant did not challenge the finding recorded by the High Court that Kanhaiya Lal was not qualified to be a candidate on the date of his nomination as he was below 25 years of age ....
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....id only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance. The burden of proving the material effect on the result of election is always on the election-petitioner challenging the validity of the election of the returned candidate. Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void. 6. The question as to how and in what manner the burden of proving that the result of election was materially affected should be discharged is a vexed question which has been considered by this Court in a number of cases. In the leading case of Vashist Narain Sharma v. Dev Chandra and Ors. 1955 SCR 509, this Court considered this question at length. In that case the nomination paper of one Dudh Nath a contesting candidate who had polled 1983 votes was found to have been improperly accepted. The returned candidate had polled 12860 votes while Vireshwar Nath Rai had polled 10996 votes being the next highest number of votes. There was thus difference of 1864 votes between the votes polled by the returned candidate and the next unsuccessful candida....
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....what manner of proportion the voters would have exercised their choice in the absence of the improperly nominated candidate from the election contest. Proceeding further the court considered the question whether any speculation, or conjecture could be made in a case where the number of votes secured by the candidate whose nomination paper was improperly accepted was higher than the difference between the votes polled by the returned candidate and the candidate who may have polled the next highest number of votes. The Court observed that in such a case it was impossible to foresee what the result would have been if the improperly nominated candidate had not been in the field. Since it was not possible to anticipate the result, the election petitioner must discharge the burden of proving that fact, and on his failure to prove that fact the election of the returned candidate must be allowed to stand. Then the question arose as to how and in what manner the burden could be discharged by the election petitioner. On behalf of election petitioner an attempt had been made to discharge burden by producing a number of electors before the Tribunal who had stated that all or some of the votes ....
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.... surmise and anybody's guess as to how those people, who did not vote, would have actually voted. Then the question arose if witnesses could not be relied upon, in what manner the election petitioner, could discharge the burden. Referring to the decision in Vashit Narain Sharma's case the Court observed as under: How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law 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. We are satisfied that in this case this burden has not been discharged. (Underlining by us) 9. We are in respectful agreement with the view taken by....
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....the Courts cannot speculate on the question. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures. 10. In the instant case Shiv Charan Singh the appellant had polled 21443 votes and Roshan Lal had polled 16496 the next highest number of votes. There was thus a difference on 4497 votes between the votes polled by the appellant and Roshan Lal. Kanhaiya Lal whose nomination paper had improperly been accepted, had secured 17841 votes which were wasted. The election petitioners did not produce any evidence to discharge the burden that improper acceptance of the nomination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate. On the other hand the appellant who was the returned candidate produced 21 candidates representing cross section of the voters of the constituency. All these witnesses had stated before the High Court that in the absence of Kanhaiya Lal in the election contest, the majority of the voters who had voted for Kanhaiya Lal would have voted for Shiv Cha....
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....e improperly nominated candidate had not been in the election contest, it is difficult to comprehend or predicate with any amount of reasonably certainty the manner and the proportion in which the voters who exercised their choice in favour of the improperly nominated candidate would have exercised their votes. The Courts are ill-equipped to speculate as to how the voters could have exercised their right of vote in what manner the wasted votes would have been distributed among the remaining contesting candidates. In this view, the result of the returned candidate could not be declared void on the basis of surmises and conjectures. 12. The High Court placed reliance on the decision of this Court in Chedi Ram's case in holding that the result of the election was materially affected in view of the margin of difference between the appellant and Roshan Lal and the votes secured by Kanhaiya Lal. The decision in Chedi Ram's case does not over-rule earlier decisions of this Court in Vashit Narain Sharma and Paokai Haokip's case and it does not lay down any different law. Instead the decision of the case turned upon the facts of that case. In Chedi Ram's case there were f....
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....ct of thousands of voters, who may have voted for the improperly nominated candidate. In the instant case there were 11 contesting candidates. If Kanhaiya Lal whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates. There is possibility that many voters who had gone to the polling station to cast their votes in favour of Kanhaiya Lal may not have gone to exercise their vote in favour of the remaining candidates. It is probable that in the absence of Kanhaiya Lal in the election contest, many voters would have voted for the returned candidate as he appeared to be the most popular candidate. It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanhaiya Lal would have voted for the next candidate Roshan Lal. It is not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and candidate whose nomination was improperly accepted had obtained 6710 votes i.e. almost 20 times the difference between the number of votes secured by th....