TMI Blog1954 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... Vireshwar Nath Rai 10996 3. Mahadeo 3950 4. Dudh Nath 1983 5. Gulab Chand 1768 3. They were arrayed in the election petition as respondents Nos. 1 to 5 respectively. The first respondent having secured the highest number of votes was declared duly elected. Three electors filed a petition under section 81 of the Representation of the People Act (Act XLIII of 1951) praying that the election of the returned candidate be declared void and that respondent No. 2 be declared to have been duly elected; in the alternative, that the election be declared wholly void. The election was sought to be set aside on the grounds, inter alia, that the nomination of respondent No. 4 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected. The Tribunal found that respondent No. 4, whose name was entered on the electoral roll of Gahmar Constituency Ghazipur (South East) 'personated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Act and as the result of the election according to the objector has been materially affected by the improper acceptance of this nomination, the Tribunal is bound to declare the election to be wholly void under section 100(1)(c) of the Act. Mr. Daphtary on behalf of the appellant has argued before us with reference to the provisions of sections 33 and 36 that this is not a case of improper acceptance of the nomination paper, because prima facie the nomination paper was valid and an objection having been raised but not pressed or substantiated, the Returning Officer had no option but to accept it. There was, as he says, nothing improper in the action of the Returning Officer. On the contrary, it may, according to him, be more appropriately described as a case of an acceptance of an improper nomination paper by the Returning Officer, inasmuch as the nomination paper contained an inherent defect which was not discernible ex facie and could be disclosed only upon an enquiry and upon the taking of evidence as to the identity which was not then forthcoming. Such a case, it is argued, is not covered by section 100(1)(c) but by section 100(2)(c) in which case the election of the returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden of proving this lies upon the petitioner who objects to the validity of the election. It appears to us that the volume of opinion preponderates in favour of the view that the burden lies upon the objector. It would be useful to refer to the corresponding provision in the English Ballot Act, 1872, section 13 of which is as follows :- No election shall be declared invalid by reason of a non-compliance with the rules contained in the first schedule to this Act, or any mistake in the use of the forms in the second schedule to this Act, if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election. 7. This section indicates that an election is not to be declared invalid if it appears to the Tribunal that non-compliance with statutory rules or any mistake in the use of such forms did not affect the result of the election. This throws the onus on the person who seeks to uphold the election. The language of section 100(1)(c), however, clearly places a burden upon the objector to substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should always be decided on the basis of the material on the record and not on mere probabilities. The Tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence, though it is difficult, that the result had been materially affected. 11. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways : (1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself. 12. It is agreed that in the first case the result of the election is not materially affected because if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the number of votes secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee what the result would have been if that candidate had not been in the field. It will neither be possible to say that the result would actually have been the same or different nor that it would have been in all probability the same or different. 14. In both the cases the margin of votes between the successful candidates and the next highest candidate was less than the number of votes secured by the candidate whose nomination was improperly accepted. They held that the result was materially affected. We are unable to accept the soundness of this view. It seems to us that where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all; but where it is not possible to anticipate the result as in the above mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand. 15. The Tribunal in the present case rightly took the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... best candidate. 17. The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon a mere possibility. Their finding upon the matter is speculative and conjectural. 18. Mr. Naunit Lal also attempted to argue that he could support the decision of the Tribunal on other grounds which had been found against him and referred to the analogy of the Code of Civil Procedure which permits a respondent to take that course. That provision has no application to an appeal granted by special leave under article 136. We have no appeal before us on behalf of the respondents and we are unable to allow that question to be reagitated. 19. The result is that we set aside the order of the Tribunal and hold that it is not proved that the result of the election has been materially affected by an improper acceptance of the nomination, assuming that the case falls within the purview of section 36(6) and that finding is correct. 20. We accordingly set aside the order of the Tribunal and uphold the election of the appellant. The appellant will get his costs from the respondents incurred here and in the proceedings before the Tribunal. 21. Order accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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