JUDGMENT

CHINNAPPA REDDY, J.:—At the General Election to the Uttar Pradesh Vidhan Sabha held in 1979, Jhilmit Ram was elected from the Jakbsuie Constituency reserved for the Scheduled Castes. He secured 17822 votes. Chhedi Ram the runner-up secured 17449 votes. Thus the difference between the successful candidate and the candidate who secured the next highest number of votes was 373 votes. There were four other candidates of whom Moti Ram secured. 6710 votes. Chhedi Ram challenged the election of Jhilmit Ram on the ground that Moti Ram was a Kahar by caste, not entitled to seek election from the reserved constituency, that his nomination had been improperly accepted and that the result of the election was materially affected. The Election Tribunal found that Moti Ram was a Kahar by caste and not a member of the Scheduled Castes. It rejected the evidence offered on behalf of Moti Ram that he was a Gond and not a Kahar and recorded a finding that deliberate attempts had been made to manufacture evidence to show that Moti Ram was a Gond. The Tribunal also noticed that Moti Ram himself was not prepared to enter the witness box to give evidence. Having arrived at the finding that Moti Rams nomination had been improperly accepted, however. the Tribunal was not prepared to set aside the election of Jhilmit Ram as it took the view that the result of the election had not been shown to have been materially affected as a result of the improper acceptance of the nomination. The election petition was, therefore, dismissed. Chhedi Ram has preferred this appeal.

2. We are afraid the appeal has to be allowed. Under Section 100 (1) (d) of the Representation of the People Act. 1951, the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself. On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations, the answers are obvious. The complication arises only in cases where the candidate, whose nomination was improperly accepted has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes. The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only. In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circurnstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted. votes (the votes. secured by the candidate whose nomination was improperly accepted) bear