TaxTMI 
TaxTMI 
TaxTMI 
1988 (1) TMI 361
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 support of their cases before the Hig....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 and his nomination paper was improperly accepted by the Returning Officer the said finding must be accepted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 candidate. The Election Tribunal set aside the election of the returned candidate on the finding that improper acceptance of the nomination paper of Dudh Nath had materially affected the result of the election. This Court set ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 would have gone to the candidate who had polled the next highest number of votes in the absence of the improperly nominated candidate and he would have polled majority of valid votes. The Court held that the statement of the wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 this Court in the aforesaid decisions. The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jectures. 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 Charan Singh the appellant. The High Court in our opinion rightly rejected the oral testimony of the witnesses in view of this Court's decision in Vashist Narain Sharmas' case. The High Court however having regard to the votes polled by the appellant Roshan Lal an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndidate 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 four contesting candidates. Jhilmit Ram the returned candidate had polled 17822 votes while Chedi Ram had polled the next highest number of votes being 17449 votes. Thus the difference between the successful candidate and the candidate who had secured the next highest numbe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 the successful candidate and the candidate securing the next highest number of votes, in that situation the result of the election was held to have been materially affected. The decision in Chedi Ram's case rests on its own facts. Applying the principle laid down in Ched....