2001 Supreme(SC) 1506

2001(8) Supreme 72
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Chief Justice of India, R.C. Lahoti and P. Venkatarama Reddi, JJ.
Santosh Yadav -Appellant
versus
Narender Singh -Respondent
Civil Appeal No. 1306 of 2001
With
C.A. No. 2412 of 2001
Decided on 30-10-2001
Counsel for the Parties :
For the Appellant : P.S. Misra, Sr. Advocate, Mahabir Singh, Bhoop Singh, Ajay Pal, S.R. Sharma and Ms. Aishwarya Bhati, Advocates.
For the Respondent : Rakesh Dwivedi, Sr. Advocate, Rao Ranjit Singh and Ms. Niranjana Singh, Advocates.

IMPORTANT POINT
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 respondent was materially affected by improper acceptance of the nomination paper of Shri Naresh Yadav who was a person convicted of offences falling under Section 8(3)(1)(a) of the Representation of People Act, 1951.

Headnote:(i) Representation of People Act, 1951-Sections 100(1)(c) and 100(1)(d)-Grounds for declaring election void-Distinction between grounds any nomination has been improperly rejected and improper acceptance of any nomination .

       Held : The 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 & Anr. v. S. Dalip Singh & Ors., AIR 1957 SC 242. There is a 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 bad the effect on the election is such a manner that the best choice of the electorate was excluded. It is well settled by a catena of decisions that the success of a winning candidate at an election should not be lightly interfered with. This 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 affected. (Paras 7 and 8)

       (ii) Representation of People Act, 1951-Section 100(1)(d)-Election petition on ground that nomination of one Naresh Yadav improperly accepted-Violation of Section 8(3) (1)(a)-He was a convict of offences falling under it-Number of votes secured by him is almost 59 times of the margin between the votes of appellant and the respondent-High Court held it did not materially affect election of respondent-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 respondent was materially affected by improper acceptance of nomination paper of Shri Naresh Yadav? (Yes)-Law stated-Applied - Case law appreciated- Appeal dismissed.

       Held : The 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.

        (2) 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. The issue is one of fact and the onus of proving it lies upon the petitioner.

        (3) The 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.

        (4) The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility. There 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.

        (5) The 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 imaginary ground.

       Having so stated the law, we now proceed to assess and evaluate the evidence adduced by the parties. In all 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 Yadav 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. (Paras 16, 17 and 18)

       Held further : Smt. Santosh 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 obvioulsy interested in the success of the appellant in the election petition. There evidence also does not advance the case of the appellant. (Para 20)

       Held also : 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. (Para 15)

       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. (Para 22)

       Held consequently : 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. In our 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 successful. In as 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. The 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. (Paras 24, 25 and 26)