{"id":247211,"date":"1987-10-27T00:00:00","date_gmt":"1987-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sarnam-singh-vs-smt-pushpa-devi-ors-on-27-october-1987"},"modified":"2018-08-04T06:17:45","modified_gmt":"2018-08-04T00:47:45","slug":"sarnam-singh-vs-smt-pushpa-devi-ors-on-27-october-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sarnam-singh-vs-smt-pushpa-devi-ors-on-27-october-1987","title":{"rendered":"Sarnam Singh vs Smt. Pushpa Devi & Ors on 27 October, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sarnam Singh vs Smt. Pushpa Devi & Ors on 27 October, 1987<\/div>\n
Equivalent citations: 1988 SCR (1) 630, \t 1988 SCC Supl. 65<\/div>\n
Author: E Venkataramiah<\/div>\n
Bench: Venkataramiah, E.S. (J)<\/div>\n
           PETITIONER:\nSARNAM SINGH\n\n\tVs.\n\nRESPONDENT:\nSMT. PUSHPA DEVI & ORS.\n\nDATE OF JUDGMENT27\/10\/1987\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nSINGH, K.N. (J)\n\nCITATION:\n 1988 SCR  (1) 630\t  1988 SCC  Supl.   65\n JT 1987 (4)   158\t  1987 SCALE  (2)861\n\n\nACT:\n     Representation of\tthe People  Act, 1951:\tSection l00-\nImproper rejectionl\/acceptance of nomination-Distinction and\neffect of-Result  of election-Whether  materially  affected-\nBurden of proof-Whether discharged.\n\n\n\nHEADNOTE:\n%\n     In the  election to the Uttar Pradesh State Legislative\nAssembly from constituency No. 41 held in early March, 1985,\n16 candidates  contested.  Respondent  No.  1  was  declared\nelected\t having\t secured  23,006  votes.  Respondent  No.  2\nsecured 20,735\tvotes being the next highest. The difference\nof votes  secured by  them was\tin the order of 2,271 votes.\nRespondent No.\t8 who  was working as a teacher in a college\nand who\t was one of the candidates secured 3,606 votes which\nwere more  than the  difference between the votes secured by\nrespondent No. 1 and 2.\n     The appellant  who was  an elector at the said election\nfiled an  election petition contending that respondent No. 8\nwas holding an 'office of profit' under the State Government\nas he  was working  as a teacher in a college and therefore,\nthe acceptance\tof his\tnomination by  the returning officer\nwas illegal, that since respondent No. 8 secured 3,606 votes\nwhich were  higher than\t the difference\t between  the  votes\nsecured by  respondent No.  1  and  respondent\tNo.  2,\t the\nelection of  respondent No. 1 should be considered as having\nbeen materially\t affected by  the wrongful acceptance of the\nnomination paper  of respondent\t No. 8,\t and the election of\nthe respondent No. 1 was, therefore, liable to be set aside.\nRespondent No.1\t contested the\telection  petition  pleading\nthat the  acceptance of\t the nomination\t paper of respondent\nNo. 8  was not illegal since he was not holding an office of\nprofit under  the State\t Government, and  that even  if\t the\nacceptance was\tillegal the  election could not be set aside\nsince the result of the election was not materially affected\nthereby.\n     Dismissing the  petition, the  High Court held that the\nacceptance of  the nomination  paper of respondent No. 8 was\nnot illegal  as he was not holding an office of profit under\nthe State Government and that\n631\neven if\t the acceptance of the nomination paper was illegal,\nthe appellant  had not\testablished that  the result  of the\nelection of respondent No. 1 had been materially affected on\nthe facts and in the circumstances of the case.\n     In the  appeal to\tthis Court  on the question: whether\nthe  appellant\thad  established  that\tthe  result  of\t the\nelection of respondent No. 1 had been materially affected by\nthe  wrongful\tacceptance  of\t the  nomination   paper  of\nrespondent No. 8.\n     Dismissing the appeal to this Court,\n^\n     HELD: The appellant has not discharged the burden which\nclearly lay  on him  of\t proving  that\tthe  result  of\t the\nelection had  been materially  affected, even  assuming that\nthe nomination\tof respondent  No.  8  had  been  improperly\naccepted. [640E]\n     Section 100  of the  Representation of  the People- Act\nmakes a distinction between the effect of improper rejection\nof any nomination, and the effect of the improper acceptance\nof any\tnomination on  the election.  If a nomination of any\nperson at  an election\thad  been  improperly  rejected\t the\nelection of the returned candidate is liable to be set aside\nwithout\t any  further  proof  because  it  is  difficult  to\nvisualise  the\tnumber\tof  votes  which  the  person  whose\nnomination has\tbeen rejected  would  have  secured  at\t the\nelection and  there is\tevery  likelihood  of  the  returned\ncandidate not securing the highest number of votes. [634E-G]\n     Clause (c)\t of sub-section\t (1) states that if the High\nCourt is  of  the  opinion  that  any  nomination  has\tbeen\nimproperly rejected  it shall  declare the  election of\t the\nreturned candidate to be void. [634Gl\n     Sub-clause\t (i)   of  clause  (d)\tof  sub-section\t (1)\nrequires a  petitioner in  an election petition to establish\ntwo grounds  in order  to get  the election  of the returned\ncandidate set aside. namely (i) that there has been improper\nacceptance of  any nomination  and (ii)\t that by  reason  of\nentry of  the candidate whose nomination has been improperly\naccepted into the contest the result of the election insofar\nas the\treturned candidate  is concerned has been materially\naffected. [635A-B]\n     Having regard  to the  facts of  the instant case it is\nnot possible to hold that the appellant has established that\nthe result  of the  election of\t the returned  candidate had\nbeen materially affected because the dif-\n632\nference between\t the votes  secured by respondent No. 1, the\nreturned candidate  and respondent  No. 2, the candidate who\nsecured next  highest votes  was 2,271 votes. Respondent No.\n8, the\tvalidity of  whose nomination  was  questioned,\t had\nsecured only  about 1\/7th  of the  number of votes polled by\nrespondent No.\t1 and  there were  15 candidates  (excluding\nrespondent  No.\t 8)  contesting\t the  election.\t It  is\t not\npossible to  reach a  finding  in  this\t case  by  making  a\njudicial guess\tthat all  the 3606  voters who\thad voted in\nfavour of  respondent No.  8 would  have cast their votes in\nfavour of respondent No. 2 alone. Even if about 1350 of them\nhad cast  their votes  in favour  of any  of  the  other  14\ncandidates (including the returned candidate) respondent No.\n2 could\t not have  become the  candidate who had secured the\nhighest number of votes at the election. [639C-E]\n     The High Court was, therefore, right in taking the view\nthat the  appellant or\tany other  party had  not placed any\nsatisfactory evidence  to reach\t the conclusion\t that all or\nsufficient number  of wasted  votes which  had been  cast in\nfavour of  respondent No.  8 would  have gone  in favour  of\nrespondent No.\t2, had\trespondent No. 8 not been one of the\ncandidates at the election, that in the context particularly\nof the\tpoll being  heavy and the contestants being large in\nnumber, 16  in all  It was unreasonable to guess that if the\nrespondent No. 8 were excluded from the arena of contest the\nwasted votes would have gone to the respondent No. 2 thereby\nenabling him  to succeed, and that the burden Iying upon the\npetitioner remained clearly undischarged and the speculative\npossibility did not attain the level of proof. [640B-D]\n     Vashist Narain Sharma v. Dev Chandra and others<\/a>, ]1955]\n1 -  S.C.R.  509;  Samant  N.  Balakrishna  etc.  v.  George\nFernandez and  Ors. etc., [1969] 3 S.C.R. 603 and Chhedi Ram\nv. Jhilmit Ram and others<\/a>, p ] 1984] 2 SCC 281, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.\t1177
\n(NCE) of 1986.\n<\/p>\n
     From the  Judgment and  order dated  17.1.1986  of\t the
\nAllahabad  High\t  Court\t (Election   Tribunal)\tin  Election
\nPetition No. 54 of 1985.\n<\/p>\n
     R.K. Garg and Ravi Parkash Gupta for the Appellant.
\n     Qamarrudin and Mrs. Qamarrudin for the Respondents.
\n     The Judgment of the Court was delivered by
\n633<\/span>
\n     VENKATARAMIAH, J.\tThis appeal  is filed  under section
\n116A  of  the  Representation  of  the\tPeople\tAct,  195  l
\n(hereinafter referred  A to  as ‘the  Act’) by the appellant
\nagainst the  Judgment dated  January 17,  1986 of  the\tHigh
\nCourt of  Allahabad in\tElection Petition  No.\t34  of\t1985
\ndismissing the Election Petition.\n<\/p>\n
     The election  to the  Uttar Pradesh  State\t Legislative
\nAssembly from  Constituenc No. 41-Gunnaur, Village Mirzapur,
\nDistrict  Baduan   took\t place\tin  early  March,  1985.  16
\ncandidates contested at the said election. Respondent No. I-
\nSmt. Pushpa  Devi was  declared elected having secured 23006
\nvotes. The  next highest number of votes was secured by Shri
\nNaurangi Singh.\t He  secured  20735  votes.  The  difference
\nbetween the  votes secured by Respondent No. l and the votes
\nsecured by Respondent No. 2 was in the order of 227 l votes.
\nRespondent No.\t8, who\twas working as a teacher in the Babu
\nRam Singh  Intermediate College,  Baburala, Baduan  was also
\none of\tthe candidates\tin the\telection.  He  secured\t3606
\nvotes, which were more than the difference between the votes
\nsecured by  Respondent No.,  and by  Respondent No.  2.\t The
\nappellant, who\twas an\telector at  the said election, filed
\nthe Election  Petition, out  of which  this  appeal  arises,
\ncontending that\t Respondent No.\t 8, who\t was  working  as  a
\nteacher\t in   the  Babu\t  Ram  Singh  Intermediate  College,
\nBaburala, Baduan,  was holding an office of profit under the
\nState Government  and,\ttherefore,  the\t acceptance  of\t his
\nnomination by  the  Returning  officer\twas  illegal.  Since
\nRespondent No.\t8 secured 3606 votes, which were higher than
\nthe difference between the votes secured by Respondent No. I
\nand the\t votes secured\tby Respondent No. 2, the election of
\nRespondent  No.\t  I  should  be\t considered-as\thaving\tbeen
\nmaterially  affected  by  the  wrongful\t acceptance  of\t the
\nnomination paper  of Respondent\t No. 8\tand the\t election of
\nRespondent No.\t1 was  liable to  be set aside. The Election
\nPetition was  contested by  Respondent No. 1. It was pleaded
\nby Respondent  No. 1  that the\tacceptance of the nomination
\npaper of  Respondent No.  8 was not illegal since Respondent
\nNo. 8  was not\tholding an  office of profit under the State
\nGovernment and\tsecondly  even\tif  the\t acceptance  of\t the
\nnomination paper  of  Respondent  No.  8  was  illegal,\t the
\nelection could\tnot be\tset aside  since the  result of\t the
\nelection was not materially affected thereby. The High Court
\nheld  that   the  acceptance  of  the  nomination  paper  of
\nRespondent No. 8 was not illegal as Respondent No. 8 was not
\nholding an  office of  profit under the State Government and
\nit  further   held  that  even\tif  the\t acceptance  of\t the
\nnomination paper  of  Respondent  No.  8  was  illegal,\t the
\nappellant  had\tnot  established  that\tthe  result  of\t the
\nelection of Respondent No. I had been materially affected on
\nthe facts and in the H
\n634<\/span>
\ncircumstances  of  the\tcase.  The  High  Court\t accordingly
\ndismissed the  petition. Aggrieved  by the  judgment of\t the
\nHigh Court the appellant has filed this appeal.\n<\/p>\n
     Since it  is possible  to dispose of this appeal on the
\nsecond ground  we do  not propose  to express any opinion in
\nthis case  on the  question whether Respondent No. 8 was, in
\nfact, holding an office of profit under the State Government
\nor not\ton the\tdate on which the nomination paper was filed
\nor on  the date\t of the election. We leave the said question
\nopen.\n<\/p>\n
     In order  to decide the second question it is necessary
\nto set out the relevant part of section 100 of the Act which
\nreads thus:\n<\/p>\n
\t  “100. Grounds\t for declaring\telection to be void-
\n\t  (1) Subject  to the  provisions of sub-section (2)
\n\t  if the High Court is of opinion-\n<\/p><\/blockquote>\n
\t  …………………………………………..\n<\/p><\/blockquote>\n
\t  (c)  that   any  nomination  has  been  improperly
\n\t  rejected; or\n<\/p><\/blockquote>\n
\t  (d) that  the result of the election, in so far as
\n\t  it  concerns\t a  returned   candidate,  has\tbeen
\n\t  materially affected-\n<\/p><\/blockquote>\n
\t       (i)  by\t the  improper\t acceptance  of\t any
\n\t       nomination, or…………”<\/p><\/blockquote>\n
     Section 100  of the Act makes a distinction between the
\neffect of  improper rejection  of  any\tnomination  and\t the
\neffect of  the improper\t acceptance of any nomination on the
\nelection. If  a nomination  of any person at an election has
\nbeen  improperly  rejected  the\t election  of  the  returned
\ncandidate is  liable to\t be set\t aside without\tany  further
\nproof because  it is  difficult to  visualise the  number of
\nvotes which  the person\t whose nomination  has been rejected
\nwould have  secured at\tthe  election  and  there  is  every
\nlikelihood  of\tthe  returned  candidate  not  securing\t the
\nhighest number of votes. It is for this reason clause (c) of
\nsection 100(1)\tof the\tAct states that if the High Court is
\nof the\topinion that  any  nomination  has  been  improperly
\nrejected it  shall declare  the\t election  of  the  returned
\ncandidate to  be void.\tSub-clause (i) of clause (d) of sub-
\nsection (1)  of section\t 100 of\t the Act is, however, worded
\ndifferently. It\t says that  if the  High Court is of opinion
\nthat the  result of  the election insofar as it concerns the
\nreturned candidate  has\t been  materially  affected  by\t the
\nimproper acceptance of any nomination it
\n635<\/span>
\nshall declare  the election  of the  returned  candidate  as
\nvoid. Sub-clause (i) of clause (d) of section 100( I) of the
\nAct  requires  a  petitioner  in  an  election\tpetition  to
\nestablish two  grounds in  order to  get the election of the
\nreturned candidate  set aside,\tnamely, (i)  that there\t has
\nbeen improper acceptance of any nomination; and (ii) that by
\nreason of  the entry  of the  candidate whose nomination has
\nbeen improperly\t accepted into the contest the result of the
\nelection insofar  as the returned candidate is concerned has
\nbeen  materially   affected.  The   reason  for\t  making   a
\ndistinction between  a case  falling  under  clause  (c)  of
\nsection 100(1)\tof the\tAct and\t a case\t falling under\tsub-
\nclause (i)  of clause  (d) of section 100( I) of the Act can
\nbe explained  with reference  to a hypothetical case. Let us
\nassume\tthat  the  returned  candidate\thas  secured  at  an
\nelection 30,000\t votes and 20,000 votes have been secured by
\na candidate  who has  secured the  next\t highest  number  of
\nvotes.\tWe  shall  assume  that\t a  third  candidate,  whose
\nnomination paper  had been  improperly accepted\t has secured
\njust 1000  votes. In  this case\t even if  it is\t held  while
\ndeciding an  election petition\tthat the  nomination of\t the
\nthird candidate\t has been  improperly accepted,\t there is no
\njustification to  set aside  the election  of the successful
\ncandidate because even if all the votes secured by the third
\ncandidate are  added to\t the candidate\twho has\t secured the
\nnext highest  number of\t votes he  would be a person who has
\nsecured 21000 votes and the successful candidate would still
\nbe a  person who  has secured the highest number of votes at
\nthe election.  In this\thypothetical case  it has to be held
\nthat the  result of  the election  has not  been  materially
\naffected at  all. Such\telection petition has necessarily to
\nbe rejected.  This Court  was called  upon to  decide a case
\nsimilar to  the present\t one in Vashist Narain Sharma v. Dev
\nChandra and  others<\/a>. [1955]  1 S.C.R.  509. In that case the
\nreturned candidate  Vashist Narain  Sharma had secured 12868
\nvotes and Vireshwar Nath Rai secured the next highest number
\nof votes, i.e.,10,996. The difference in the number of votes
\nsecured by  these two candidates was 1872. Another candidate
\nby name\t Dudh Nath  at the  election, whose  validity was in
\nissue in  that case, had secured 1983 votes. There were also
\ntwo other candidates in the field. One of the grounds in the
\nelection petition,  out of  which the  above case arose, was
\nthat the election of the returned candidate was liable to be
\nset aside  since the  nomination paper of Dudh Nath had been
\nimproperly accepted  by the Election Commissioner. The Court
\nin that case held that the burden of proving that the result
\nof the\telection had  been materially affected on account of
\nthe  improper\tacceptance  of\t a  nomination\twas  on\t the
\npetitioner and that even if there was wrongful acceptance of
\nthe nomination\thaving regard to the number of votes secured
\nby the\tseveral candidates  it was not possible to hold that
\nthe
\n636<\/span>
\nresult of  the election\t had been  materially  affected.  In
\nSamant N. Balakrishna etc. v. George Fernandez and Ors etc.,
\n[1969] 3  S.C.R. 603 section 100( l)(d)(i)) of the Act again
\narose for  consideration. In  that case this Court commented
\nat pages  643-644 on the decision in Vashist Narain Sharma’s
\ncase (supra) thus:-\n<\/p>\n
\t  “Mr. Chari  relies upon  the rulings of this Court
\n\t  where it  has been  laid down\t how the  burden  of
\n\t  proving  the\t effect\t on  the  election  must  be
\n\t  discharged. He  referred to  the case\t reported in
\n\t  Vashist Narain  Sharma v. Dev Chandra and Surendra
\n\t  Nath Khosla<\/a>  v. Dilip\t Singh and the later rulings
\n\t  of this  Court in  which Vashist Narain’s case has
\n\t  been fol. lowed and applied.\n<\/p><\/blockquote>\n
\t       In  our\t opinion  the\tmatter\t cannot\t  be
\n\t  considered on\t possibility. Vashist  Narain’s case
\n\t  insists on  proof. If\t the margin  of\t votes\twere
\n\t  small\t something  might  be  made  of\t the  points
\n\t  mentioned by\tMr. Jethmalani.\t But the  margin  is
\n\t  large and  the  number  of  votes  earned  by\t the
\n\t  remaining candidates also sufficiently huge. There
\n\t  is no\t room, there fore, for a reasonably judicial
\n\t  guess. The  law requires proof. How far that proof
\n\t  should  go  or  what\tit  should  contain  is\t not
\n\t  provided by the Legislature. In Vashist’s case and
\n\t  in  Inayatullah   v.\t Diwanchand   Mahajan,\t the
\n\t  provision was\t held  to  prescribe  an  impossible
\n\t  burden. The law has however remained as before. we
\n\t  are bound  by the  rulings of\t this Court and must
\n\t  say that  the burden\thas  not  been\tsuccessfully
\n\t  discharged. We cannot overlook the rulings of this
\n\t  Court and follow the English rulings cited to us.”<\/p><\/blockquote>\n
     The very  same question was considered by this Court in
\nChhedi Ram  v. Jhilmit\tRam and others<\/a>, 1984] 2 SCC 281 by a
\nbench of  which one  of us (Venkataramiah, J.) was a member.
\nThe judgment  in that case was delivered by Chinnappa Reddy,
\nJ. In  that case  the returned\tcandidate  Jhilmit  Ram\t had
\nsecured 17,  822 votes\tand Chhedi  Ram, the  runner-up\t had
\nsecured\t 17449\t votes.\t Thus  the  difference\tbetween\t the
\nsuccessful candidate  and the  candidate  who  secured\tnext
\nhighest\t votes\t was  373   votes.  There  were\t four  other
\ncandidates, of\twhom Moti Ram secured 6710 votes. Chhedi Ram
\nchallenged the\telection of  Jhilmit Ram  on the ground that
\nMoti Ram was a Kahar by caste, not entitled to seek election
\nfrom the  reserved constituency,  i.e., his  nomination\t had
\nbeen improperly\t accepted and  the result  of  election\t was
\nmaterially affected.  The High Court found that Moti Ram was
\na Kahar by caste
\n637<\/span>
\nand not\t a member-of the scheduled Castes. Having arrived at
\nthe conclusion\tthat Moti Ram’s nomination had been accepted
\nimproperly, the High Court was not prepared to set aside the
\nelection of  Jhilmit Ram as it took the view that the result
\nof the\telection had not been shown to have been affected in
\nview of\t the improper  acceptance of  the nomination of Moti
\nRam. The  election petition  in that  case  was,  therefore,
\ndismissed. Chhedi Ram then preferred an appeal to this Court
\nagainst the  judgment of  the High Court. This Court allowed
\nthe appeal.  In the  course of the judgment Chinnappa Reddy,
\nJ. Observed thus
\n\t       “2. We  are  afraid  the\t appeal\t has  to  be
\n\t  allowed.   Under    section\tl00(1)(d)   of\t the
\n\t  Representation of  the  People  Act,\t195  1,\t the
\n\t  election of a returned candidate shall be declared
\n\t  to be\t void if  the High  Court is of opinion that
\n\t  the result  of the  election,\t in  so\t far  as  it
\n\t  concerns  the\t  returned   candidate,\t  has\tbeen
\n\t  materially affected  by the improper acceptance of
\n\t  any nomination.  True, the  burden of establishing
\n\t  that\tthe   result  of   the\telection   has\tbeen
\n\t  materially affected  as a  result of\tthe improper
\n\t  acceptance  of  a  nomination\t is  on\t the  person
\n\t  impeaching the  election. The\t burden\t is  readily
\n\t  discharged  if   the\tnomination  which  has\tbeen
\n\t  improperly accepted  was that\t of  the  successful
\n\t  candidate himself.  On the  other hand, the burden
\n\t  is wholly  incapable of  being discharged  if\t the
\n\t  candidate whose nomination was improperly accepted
\n\t  obtained  a\tless  number   of  votes   than\t the
\n\t  difference between  the number of votes secured by
\n\t  the candidate\t who got  the next highest number of
\n\t  votes. In  both these\t situations, the answers are
\n\t  obvious. The\tcomplication arises  only  in  cases
\n\t  where\t the   candidate,   whose   nomination\t was
\n\t  improperly accepted, has secured a large number of
\n\t  votes than  the difference  between the  number of
\n\t  votes secured\t by the successful candidate and the
\n\t  number of  votes got by the candidate securing the
\n\t  next highest\tnumber of votes. The complication is
\n\t  because  of  the  possibility\t that  a  sufficient
\n\t  number of  votes actually  cast for  the candidate
\n\t  whose nomination  was\t improperly  accepted  might
\n\t  have been  cast for  the candidate who secured the
\n\t  highest number  of votes  next to  the  successful
\n\t  candidate, so\t as  to\t upset\tthe  result  of\t the
\n\t  election,  but  whether  a  sufficient  number  of
\n\t  voters would have so done, would ordinarily remain
\n\t  a speculative possibility only. In this situation,
\n\t  the answer  to the  question whether the result of
\n\t  the
\n638<\/span>
\n\t  election could  be said  to have  been  materially
\n\t  affected must\t depend on  the facts, circumstances
\n\t  and  reasonable   probabilities   of\t the   case,
\n\t  particularly on  the difference between the number
\n\t  of votes  secured by\tthe successful candidate and
\n\t  the candidate\t securing the next highest number of
\n\t  votes,  as  compared\twith  the  number  of  votes
\n\t  secured by  the  candidate  whose  nomination\t was
\n\t  improperly accepted  and the\tproportion which the
\n\t  number of  wasted votes  (the votes secured by the
\n\t  candidate   whose    nomination   was\t  improperly
\n\t  accepted) bears  to the number of votes secured by
\n\t  the successful  candidate. If\t the number of votes
\n\t  secured by  the  candidate  whose  nomination\t was
\n\t  rejected  is\t not  disproportionately   large  as
\n\t  compared with the difference between the number of
\n\t  votes secured\t by the successful candidate and the
\n\t  candidate securing  the  next\t highest  number  of
\n\t  votes, it  would be next to impossible to conclude
\n\t  that\tthe   result  of   the\telection   has\tbeen
\n\t  materially affected.\tBut, on\t the other  hand, if
\n\t  the number of votes secured by the candidate whose
\n\t  nomination\twas\timproperly    accepted\t  is
\n\t  disproportinately  large   as\t compared  with\t the
\n\t  difference  between\tthe  votes  secured  by\t the
\n\t  successful candidate\tand the\t candidate  securing
\n\t  the next  highest number of votes and if the votes
\n\t  secured by  the  candidate  whose  nomination\t was
\n\t  improperly accepted bears a fairly high proportion
\n\t  to the  votes secured by the successful candidate,
\n\t  the reasonable  probability is  that the result of
\n\t  the election\thas been materially affected and one
\n\t  may venture  to hold the fact as proved. Under the
\n\t  Indian Evidence  Act, a  fact is said to he proved
\n\t  when after  considering the matters before it, the
\n\t  court either believes it to exist or considers its
\n\t  existence so\tprobable that  a prudent  man ought,
\n\t  under the circumstances of the particular case, to
\n\t  act upon the supposition that it exists. If having
\n\t  regard to  the facts\tand circumstances of a case,
\n\t  the reasonable probability is all one way, a court
\n\t  must not  lay down an impossible standard of proof
\n\t  and hold  a fact  is not  proved. In\tthe  present
\n\t  case,\t  the\tcandidate   whose   nomination\t was
\n\t  improperly accepted had obtained 67 10 votes, that
\n\t  is, almost  20 times\tthe difference\tbetween\t the
\n\t  number  of   votes  secured\tby  the\t  successful
\n\t  candidate and\t the  candidate\t securing  the\tnext
\n\t  highest number  of  votes.  Not  merely  that.  Th
\n\t  number of  votes secured  by the  candidate  whose
\n\t  nomination was  improperly accepted  bore a fairly
\n\t  high proportion to the number
\n639<\/span>
\n\t  Of votes  secured by\tthe successful\tcandidate-it
\n\t  was a\t little\t over  one-third.  Surely,  in\tthat
\n\t  situation, the  result of  the election may safely
\n\t  be said to have been affected.”\n<\/p>\n
     In the  case before  us Respondent\t No. I\thad  secured
\n23006 votes  and Respondent  No. 2  had secured 20735 votes.
\nThe margin  thus was  of 22371\tvotes. Respondent No. 8, the
\nvalidity of  whose nomination  was questioned,\thad  secured
\n3606 votes.  It is  no doubt true that if we assume that all
\nthe 3606  votes secured\t by Respondent No. 8 would have gone
\nto Respondent  No. 2,  Respondent No.  2 would have been the
\nsuccessful candidate.  at the election. Having regard to the
\nfacts of  this case  we feel that it is not possible to hold
\nthat the  appellant in\tthis appeal has established that the
\nresult of  the election\t of the\t returned candidate had been
\nmaterially affected because the difference between the votes
\nsecured by  Respondent\tNo.  1\tand  the  votes\t secured  by
\nRespondent No.\t2 was  2272  votes.  Respondent\t No.  8\t had
\nsecured only  about 1  7th of  the number of votes polled by
\nthe Respondent No. l and there were 15 candidates (excluding
\nrespondent  No.\t 8)  contesting\t the  election.\t It  is\t not
\npossible to  reach a  finding  in  this\t case  by  making  a
\njudicial guess\tthat all  the 3606  voters who\thad voted in
\nfavour of  Respondent No.  8 would  have cast their votes in
\nfavour of Respondent No. 2 alone. Even if about 1350 of them
\nhad cast  their votes  in favour  of any  of  the  other  14
\ncandidates (including the returned candidate) Respondent No.
\n2 could\t not have  become the  candidate who had secured the
\nhighest number of votes at the election. At this stage it is
\nrelevant to  refer to  the observation of Gulam Hasan, J. In
\nVashist Narain Sharma’s, case (supra) which run thus:-\n<\/p>\n
\t       “But we\tare not\t prepared to  hold that\t the
\n\t  mere fact  that the  wasted votes are greater than
\n\t  the margin of votes between the returned candidate
\n\t  and the candidate securing the next highest number
\n\t  of votes must lead to the necessary inference that
\n\t  the result  of the  election has  been  materially
\n\t  affected. That  is a matter which has to be proved
\n\t  and  the   onus  of\tproving\t it  lies  upon\t the
\n\t  petitioner. It  will not do merely to say that all
\n\t  or majority of the wasted votes might have gone to
\n\t  the next  highest candidate.\tThe casting of votes
\n\t  at an\t election depends  upon a variety of factors
\n\t  and it  is not  possible for\tany one to predicate
\n\t  how many  or which proportion of the votes will go
\n\t  to one  or the  other of  the candidates. While it
\n\t  must be  recognised that  the petitioner in such a
\n\t  case of  confronted with a difficult situation, it
\n\t  is not possible to relieve him of the duty imposed
\n\t  upon him H
\n640<\/span>
\n\t  by section  100(1)(c) and  hold  without  evidence
\n\t  that the  duty has  been  discharged.\t Should\t the
\n\t  petitioner fail to adduce satisfactory evidence to
\n\t  enable the  Court to\tfind in\t his favour  on this
\n\t  point, the  inevitable result\t would be  that\t the
\n\t  Tribunal would  not interfere\t in his\t favour\t and
\n\t  would allow the election to stand.”<\/p><\/blockquote>\n
     In the  case before us we are of the view that the High
\nCourt was right in observing that the appellant or any other
\nparty had  not placed  satisfactory evidence  to  reach\t the
\nconclusion that\t all or\t a sufficient  number of  the wasted
\nvotes which  had been  cast in\tfavour of  Respondent No.  8
\nwould  have   gone  in\tfavour\tof  Respondent\tNo.  2,\t had
\nRespondent No.\t8 not  been one\t of the\t candidates  at\t the
\nelection. The  High Court has on the evidence before it held
\nthat “in  the context  particularly of\tthe poll being heavy
\nand the\t contestants being  large in  number  16  in  all-it
\nremains unreasonable  to guess\tthat if the respondent No. 8
\nwere excluded  from the\t arena of  contest the\twasted votes
\nwould have gone to the respondent no. 2 thereby enabling him
\nto succeed.  The burden\t Iying upon  the petitioner  remains
\nclearly undischarged  and the  speculative possibility\tdoes
\nnot attain  the level  of proof.”  We agree  with the  above
\nobservation of\tthe High  Court since  the appellant has not
\ndischarged the\tburden which  clearly lay  on him or proving
\nthat the result of the election had been materially affected
\neven assuming  that the\t nomination of\tRespondent No. 8 had
\nbeen improperly\t accepted. This\t appeal\t should,  therefore,
\nfail. We  accordingly dismiss it. We, however, make no order
\nas to costs.\n<\/p>\n
N.P.V.\t\t\t\t\t   Appeal dismissed.\n641<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sarnam Singh vs Smt. Pushpa Devi & Ors on 27 October, 1987 Equivalent citations: 1988 SCR (1) 630, 1988 SCC Supl. 65 Author: E Venkataramiah Bench: Venkataramiah, E.S. (J) PETITIONER: SARNAM SINGH Vs. RESPONDENT: SMT. PUSHPA DEVI & ORS. DATE OF JUDGMENT27\/10\/1987 BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247211","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSarnam Singh vs Smt. 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