Vashist Narain Sharma vs Dev Chandra And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 151 of 1953

Decision Date: 20 May 1954

Coram: Ghulam Hasan, B. Jagannadhadas

In the matter titled Vashist Narain Sharma versus Dev Chandra and others, the judgment was delivered on the twentieth day of May, 1954 by a bench of the Supreme Court of India. The judgment was authored by Justice Ghulam Hasan, who was a member of a bench that also included Justice B. Jagannadhadas. The petitioner in the case was Vashist Narain Sharma and the respondents were Dev Chandra together with additional parties.

The formal citation for this decision is reported in the 1954 All India Reporter at page 513 and in the 1955 Supreme Court Reporter at page 509. The decision has been referenced in numerous subsequent reports, including the 1955 Supreme Court Reporter at page 233, the 1957 Supreme Court Reporter at page 242, the 1959 Supreme Court Reporter at page 93, the 1959 Supreme Court Reporter at page 422, the 1964 Supreme Court Reporter at page 1200, the 1965 Supreme Court Reporter at page 669, the 1966 Supreme Court Reporter at page 824, the 1969 Supreme Court Reporter at page 663, the 1969 Supreme Court Reporter at page 1201, the 1970 Supreme Court Reporter at page 2097, the 1972 Supreme Court Reporter at page 580, the 1977 Supreme Court Reporter at page 1914, the 1984 Supreme Court Reporter at page 146, the 1988 Supreme Court Reporter at page 637, and the 1990 Supreme Court Reporter at page 19. All of these references relate to the same judgment.

The legal provision at the centre of the dispute is Section 100, clause (1) sub-clause (c) of the Representation of the People Act, 1951, which is identified as Act XLIII of 1951. The wording of this clause states that the result of an election is considered to have been materially affected. The issue before the Court involved the interpretation of this phrase, the proper handling of an improper acceptance or rejection of a nomination paper, the validity of the election, the burden of proof required to demonstrate that the election result was materially affected, and whether the Election Tribunal had erred by basing its finding on speculation and conjecture.

The headnote of the judgment explained that the expression “the result of the election has been materially affected” in Section 100(1)(c) should not be understood merely by looking at the increase or decrease in the total votes obtained by the returned candidate. Rather, it requires proof that the votes which were improperly counted or discarded would, if correctly dealt with, have been distributed among the competing candidates in a manner that would have caused the returned candidate to be defeated. The provision imposes a clear burden on the objector to demonstrate that the improper handling of a nomination paper materially altered the election outcome. The provision does not allow the tribunal to decide on speculation about possible outcomes. The headnote further stated that improper acceptance of a nomination is not fatal to an election unless the tribunal is convinced that the result was materially affected. If an Election Tribunal misdirects itself by focusing on possibilities, speculation, or conjecture rather than the true question, its order must be set aside.

The case was heard under the civil appellate jurisdiction as Civil Appeal number 151 of 1953. The appeal was filed by way of a special leave granted by the Supreme Court of India through an order dated the twenty-ninth day of May, 1953. The appeal challenged the judgment and order dated the fourth day of May, 1953, rendered by the Election Tribunal in Allahabad in Election Petition number 270 of 1952. The Solicitor-General for India, appearing on behalf of the appellant, was assisted by counsel G. C. Mathur and C. P. Lal. Counsel Naunit Lal represented respondents numbered one to four.

The judgment was pronounced on the twentieth day of May, 1954. Justice Ghulam Hasan delivered the opinion of the Court. The appeal was brought under article 136 of the Constitution, challenging the order dated the fourth day of May, 1951, issued by the Election Tribunal in Allahabad, which had set aside the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly. The Court proceeded to examine the questions raised by the petition, focusing on the alleged improper acceptance of a rival candidate’s nomination and whether that error had materially affected the election result.

The Court considered the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly and identified two issues for determination. The first issue concerned whether the Returning Officer had improperly accepted the nomination of one of the opposing candidates, identified as Dudh Nath, and the second issue examined whether such alleged impropriety had materially influenced the outcome of the election. In the constituency of Ghazipur (South East), designated as Constituency No. 345, eight individuals initially filed nomination papers. Subsequently three of those candidates withdrew, leaving a contest among the remaining five candidates. The poll results recorded the following vote totals: Vashist Narain Sharma received twelve thousand eight hundred sixty-eight votes; Vireshwar Nath Rai secured ten thousand nine hundred ninety-six votes; Mahadeo obtained three thousand nine hundred fifty votes; Dudh Nath obtained one thousand nine hundred eighty-three votes; and Gulab Chand received one thousand seven hundred sixty-eight votes. In the election petition, these five individuals were listed as respondents numbered one through five respectively, with the first respondent, Vashist Narain Sharma, having obtained the highest number of votes and consequently being declared duly elected.

Three registered electors filed a petition under section 81 of the Representation of the People Act (Act XLIII of 1951) seeking to have the election of the returned candidate declared void and to have respondent No. 2, Vireshwar Nath Rai, declared duly elected in place of the returned candidate. In the alternative, the petitioners asked that the entire election be declared void. The petition asserted, among other grounds, that the nomination of respondent No. 4, Dudh Nath, had been improperly accepted by the Returning Officer and that this irregularity had materially affected the result of the election. The Election Tribunal, after examining the evidence, concluded that respondent No. 4, whose name appeared on the electoral roll of the Gahmar constituency (Ghazipur South East), had “personated” Dudh Nath Kahar and had used the entries from the electoral roll of Baruin constituency (Ghazipur South West). The Tribunal held that the Returning Officer had indeed accepted the nomination of Dudh Nath improperly and that such acceptance had materially affected the election outcome. While the Tribunal also considered allegations of both major and minor corrupt practices and alleged non-compliance with certain statutory provisions, it ultimately found in favor of the returned candidate on those matters.

Dudh Nath, identified as respondent No. 4, belongs to the Rajput caste. His ancestral home is in Gahmar; however, since 1943 he had been employed as a teacher at the Hindu Higher Secondary School in Zamania, a town located ten to twelve miles from Gahmar, and he was actually residing in the village of Baruin, which lies in close proximity to Zamania. The individual whom Dudh Nath purported to impersonate is Dudh Nath Kahar, whose permanent residence is in Jamuan, while his father lives in Baruin. Dudh Nath Kahar occasionally visited Baruin but was primarily employed in Calcutta. The nomination paper submitted by Dudh Nath listed parentage and age details that more accurately corresponded to Dudh Nath Kahar. Specifically, the nomination named the father as Shiv Deni alias Ram Krit, a name that matches the father of Dudh Nath Kahar. The electoral roll for Gahmar (Exhibit K) records Dudh Nath’s father as Shio Deni with no alias and records his age as thirty-nine years, whereas the electoral roll for Pargana Zamania Monza Baruin (Exhibit C) records the father’s name as Ram Krit and records a different age. In the electoral roll for Jamuan, Dudh Nath’s age is entered as thirty-four, while the supplementary list records it as thirty. When the nomination paper was filed on 24 November 1951 at 2-20 p.m., it was challenged by Vireshwar Nath Rai on the ground that Dudh Nath’s father's name was Shivadeni and not Ram Krit; however, no supporting proof was produced, and the objection was overruled on 27 November at 1 p.m. Subsequently, one of the candidates who later withdrew filed an application at 3-25 p.m. before the Returning Officer offering to substantiate the objection that the original objector had not pursued. This application was rejected on the basis that the nomination had already been declared valid, and no evidence was presented. The acceptance of the nomination by the Returning Officer is thus contested as being improper under section 36(6) of the Representation of the People Act, and the petitioners allege that the result of the election has been materially affected by this alleged impropriety.

In the electoral roll for Jamuan, Dudh Nath’s age was recorded as thirty-four, while the supplementary list showed his age as thirty. On 24 November 1951 at 2:20 p.m., a nomination paper was filed and immediately challenged by Vireshwar Nath Rai on the ground that Dudh Nath’s father’s name was recorded as Shivadeni rather than Ram Krit. The challenger offered no documentary proof to support the allegation, and the objection was dismissed on 27 November at 1 p.m. Subsequently, a candidate who later withdrew filed an application at 3:25 p.m. before the Returning Officer, offering to substantiate the objection that had not been pressed earlier. The Returning Officer rejected this application on the basis that the nomination had already been declared valid, and no evidence was adduced to the contrary. The objector contends that the Returning Officer’s acceptance of the nomination was improper under section 36(6) of the Representation of the People Act, and argues that the election result was materially affected by that improper acceptance, thereby obligating the Tribunal to declare the election wholly void under section 100(1)(c) of the Act. Counsel for the appellant, Mr Daphtary, submitted that the case does not constitute an improper acceptance because, on its face, the nomination paper satisfied the requirements of section 33 and the objection, though raised, was neither pressed nor substantiated. He maintained that the Returning Officer had no alternative but to accept the nomination and that there was nothing improper in his conduct. Conversely, the counsel argued that the situation might better be described as the acceptance of an inherently defective nomination, a defect that could not be discerned on the face of the paper and would have required an enquiry and evidence concerning the true identity of the candidate, evidence that was not available at the time. He further submitted that such a circumstance falls under section 100(2)(c), which would void only the election of the returned candidate, rather than rendering the whole election void as provided in section 100(1)(c). The Court, however, refrained from forming an opinion on this particular point, noting that the appeal could be resolved on the second question. Section 33 of the Representation of the People Act, 1951, governs the presentation of nomination papers and sets out the criteria for a valid nomination. On the day fixed for scrutiny, the Returning Officer must examine each nomination, address any objections, and, after any summary enquiry he deems necessary, may refuse a nomination on the grounds listed in sub-section (2) of section 36. Sub-section (6) stipulates that the Returning Officer shall endorse each nomination paper with his decision to accept or reject it and, if rejected, record in writing a brief statement of his reasons.

The statute provides that the Returning Officer must write his decision to accept or reject each nomination paper on the paper itself, and if he rejects a nomination he must also write a brief statement explaining the reasons for rejection. The provision therefore indicates that when a nomination is accepted the Returning Officer is not required to give any reasons for the acceptance. Section one hundred of the Representation of the People Act enumerates the circumstances in which an election may be declared void. The relevant part of that section states that if the Tribunal is of the opinion that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election wholly void. It was on the basis of this sub-section that the petitioners sought to have the election set aside. Before a Tribunal can declare an election wholly void under subsection one hundred one c, it must first find that the result of the election has been materially affected. The phrase ‘materially affected’ has been the source of much debate before various election tribunals, and authorities have not always expressed a consistent view on its meaning. The Court interprets the phrase to mean that the effect on the result cannot be measured merely by the increase or decrease in the total votes obtained by the winning candidate. Instead, the Court requires proof that the votes which were improperly rejected or accepted would, if correctly allocated, have been distributed among the contestants in a way that would have caused the declared winner to lose. A further issue is to determine which party bears the burden of proving that the election result was materially affected. The Court observes that the majority of opinions place that burden on the petitioner who challenges the validity of the election. For comparative guidance the Court refers to section thirteen of the English Ballot Act of 1872, which provides that an election shall not be declared invalid for non-compliance with statutory rules or form mistakes if the Tribunal, having jurisdiction over the matter, is satisfied that the election was conducted in accordance with the principles of the Act and that such non-compliance did not affect the result. That provision thus places the onus on the party seeking to uphold the election to show that the irregularity did not affect the result. In contrast, the language of section one hundred one c of the Indian Act expressly imposes on the objector the duty to demonstrate that the result of the election was materially affected. Therefore, unlike the English statute where the respondent must prove the negative, Indian law requires the challenger to prove the positive impact on the election result.

In the case of Rai Bahadur Surendra Narayan Sinha v. Amulyadhone Roy & others, the Tribunal, which was presided over by Mr. Roxburgh (who later became a Justice), expressed the view that once a petitioner had established an irregularity, the burden shifted to the respondent to demonstrate that the result of the election had not been materially affected. The Tribunal referred to section 13 of the Ballot Act and drew a clear distinction between that provision and the provisions of paragraph 7(1)(c) of the Corrupt Practices Order, which are substantially similar to section 100(1)(c) of the Representation of the People Act. It held that the two provisions allocate the onus differently. Under the English Act, a Tribunal hearing an election petition is directed not to interfere with the election if, in its view, any non-compliance with the rules or mistake in the use of forms did not affect the result. By contrast, paragraph 7(1)(e) placed the burden on the petitioner. Although the Tribunal recognised the difficulty of offering positive proof in such circumstances, it observed that the rule must be interpreted and applied as it stands.

In C. M. Karale v. B. K. Dalvi, the Tribunal further clarified that the heavy burden of proving that the result was materially affected rests on the petitioner. The petitioner must produce affirmative evidence showing that a large number, or all, of the votes in question would have been cast for the returned candidate had the improperly accepted nomination not been in the field. The decision in Babu Basu Sinha v. Babu Rajandhari Sinha reinforced this principle, emphasizing that it is insufficient for the petitioner merely to suggest that the result might have been affected; the petitioner must demonstrate that the result was actually affected. In Jagdish Singh v. Shri Rudra Deolal, which concerned section 100(1)(c) of the Representation of the People Act, the Tribunal held that the question must always be decided on the basis of the material on the record and not on mere probabilities. The Tribunal distinguished between an improper rejection of a nomination and an improper acceptance of a nomination. In the former situation, a presumption arises that the election has been materially affected; in the latter situation, the petitioner is required to prove, by affirmative evidence, that the result was materially affected, even though such proof is difficult to obtain.

The counsel for the respondents conceded that the burden of proving that an improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner. However, the counsel argued that this question can arise in one of several ways, referring to the authorities cited in Indian Election Cases by Sen and Poddar (page 188), Doabia’s Election Cases, Vol. 1 (P. I78), Indian Election Petitions (Vol. III) by Shri Jagat Narain (page 50), and the Gazette of India (Extraordinary) dated 13 October 1953.

The Court observed that the situation of an improperly accepted nomination could arise in three distinct ways. The first situation occurs when the candidate whose nomination was mistakenly accepted obtained fewer votes than the numerical margin separating the duly returned candidate from the runner-up. The second situation arises when that improperly accepted candidate secured a number of votes exceeding the same margin. The third situation involves the case where the candidate whose nomination was improperly accepted is, in fact, the candidate who was declared elected. The parties agreed that in the first situation the election result cannot be said to be materially affected, because adding all the wasted votes to the leading candidate’s total would not change the outcome, and the returned candidate would still retain the seat. The respondents argued that in the second and third situations the result is materially affected, and the tribunal accepted that view for the third situation without further discussion. However, the Court declined to accept the proposition that the mere existence of wasted votes greater than the margin automatically creates a necessary inference of material effect. The Court emphasized that such an inference must be established by proof, and the burden of proving material effect rests on the petitioner. It is insufficient for the petitioner to simply assert that all or most of the wasted votes might have been cast for the runner-up, because voting behavior depends on many factors and cannot be reliably predicted. Although the Court recognized that the petitioner faces a difficult evidential task, it cannot dispense with the statutory duty imposed by section 100(1)(c) to provide affirmative evidence. If the petitioner fails to produce satisfactory evidence enabling the Court to find in his favour, the inevitable consequence is that the Tribunal will not interfere and the election will stand as it was. The Court referred to two earlier decisions, namely Lakhan Lal Mishra v. Tribeni Kumar and Mandal Sumitra Devi v. Sri Surajnarain Singh, in which the Bhagalpur Election Tribunal examined the same question of improper acceptance of a nomination paper. Those tribunals held that the issue of whether the election result was materially affected must be proved by affirmative evidence, and they formulated a test based on the comparison of votes. According to that test, if the votes obtained by the improperly accepted candidate are lower than the difference between the successful candidate’s votes and those of the next highest candidate, the result is clearly not materially affected. Conversely, if the votes of the improperly accepted candidate exceed that difference, the tribunal may infer that the result could have been different, though it is impossible to predict the exact outcome.

In the cases that were just mentioned, the Court observed that it is impossible to predict what the election result would have been if the candidate whose nomination had been improperly accepted had not contested. The Court stated that it cannot be said with certainty that the result would have been the same, different, or even that it would probably have been the same or different. In both of those decisions, the margin between the winning candidate and the next highest candidate was smaller than the total votes obtained by the candidate whose nomination was improperly accepted, and the tribunals therefore concluded that the result was materially affected. The present Court does not accept that reasoning as sound. It appears that where the margin of votes is greater than the number of votes secured by the improperly accepted candidate, the result is not merely not materially affected but is not affected at all. By contrast, where it is not possible to foresee the outcome, as in the cases cited, the petitioner must bear the burden of proving that the result was materially affected; if the petitioner fails to meet that burden, the election must be upheld.

The Tribunal in the present matter correctly noted that it was not persuaded by the oral evidence concerning the probable disposition of the votes wasted on Dudh Nath Singh. Nevertheless, the Tribunal went on to state: “Considering that Dudh Nath respondent No 4 received more votes than the margin by which respondent No 1 was returned, we are constrained to hold that there was a reasonable possibility of respondent No 2 being elected in place of respondent No 1, had Dudh Nath not been in the field.” The Court finds that the language of section 100(1)(c) leaves no room for speculation about possibilities. That provision expressly provides that an improper acceptance of a nomination is not fatal to an election unless the Tribunal is of the opinion that the result has been materially affected. The number of wasted votes was one hundred and eleven, and the Court cannot accept the unsubstantiated assertions of witnesses on either side that all or some of those votes would have gone to a particular candidate on imagined grounds. The issue is a factual one that must be proved by positive evidence. If the petitioner is unable to adduce such evidence in a case of this nature, the only unavoidable conclusion is that the burden remains unmet and the election must stand. Though this outcome may be harsh for a petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, neither the Tribunal nor this Court is concerned with the inconvenience caused by the operation of the law. Any remedy for this state of affairs is a matter for the Legislature to consider. The English

The Court observed that the statute to which it had referred did not create any difficulty and provided a clear and sensible standard for the Tribunal to apply when forming its opinion. The provision directed the Tribunal not to set aside an election if the Tribunal was of the view that any irregularity had not materially affected the result. The counsel for the petitioner, Mr. Nauinit Lal, contended that the finding that the election result had been materially affected was a factual conclusion that the Court should not disturb in a special appeal. The Court, however, found that no factual basis existed for such a purported finding. It noted that the Tribunal could not be certain that the respondent identified as No. I would obtain only fifty-six of the wasted votes sufficient to secure an absolute majority; consequently, the Tribunal could not logically conclude that all of the wasted votes would have been cast for the second-ranked candidate. The Court held that the Tribunal had erred by failing to understand the precise issue it was required to determine and had based its conclusion merely on conjecture. The Tribunal’s conclusion was therefore described as speculative and conjectural. Mr. Naunit Lal further attempted to sustain the Tribunal’s decision on alternative grounds that had been rejected, invoking an analogy with a provision of the Code of Civil Procedure that permits a respondent to take a particular course. The Court clarified that this provision did not apply to an appeal granted by special leave under article 136, and that no appeal was pending on behalf of the respondents, preventing the matter from being re-examined. As a result, the Court set aside the Tribunal’s order, holding that it had not been proved that the election result was materially affected by the improper acceptance of the nomination, assuming the case fell within the scope of section 36(6) and that the finding was correct. Accordingly, the Tribunal’s order was annulled and the election of the appellant was upheld. The appellant was awarded costs against the respondents for expenses incurred in these proceedings and before the Tribunal. The Court issued an order to that effect.