Surendra Nath Khosla vs Dalip Singh

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 23 of 1956

Decision Date: 29 November, 1956

Coram: N.H. Bhagwati, B.P. Sinha, S.K. Das

In the matter titled Surendra Nath Khosla versus Dalip Singh, the Supreme Court delivered its judgment on 29 November 1956. The bench that heard the case comprised Justices N H Bhagwati, B P Sinha and S K Das. The petitioner, Surendra Nath Khosla, challenged the order passed against the respondent, Dalip Singh. The substantive issue involved the alleged improper rejection of a nomination paper in an election, and the Court was called upon to consider whether the result of that election had been materially affected, whether a presumption of such effect applied, whether the election was a double‑member constituency and consequently whether the entire election could be declared void. The Court also examined the question of whether the thumb impressions of the proposer and seconder on the nomination paper had been properly attested, invoking the provisions of the Representation of the People Act, 1951 (specifically section 100(I)(c)) and the Conduct of Elections and Election Petitions Rules, 1951 (rule 2(2)). The headnote of the judgment explained that twelve candidates had filed nomination papers for a double‑member constituency of a State Assembly, one seat being reserved for the Scheduled Castes. The thumb impressions of the proposer and seconder for one candidate had been attested by a magistrate who had been duly specified for that purpose by the Election Commission. However, an omission occurred in the communication from the Election Commission to the local authorities, wherein the name of the magistrate was left out. Consequently, the returning officer rejected the nomination paper on the ground that the thumb impressions were not properly attested. An election petition was then filed seeking to set aside the election on the basis that the rejection was improper and that it had materially affected the election result. The Election Tribunal, after hearing the petition, set aside the entire election. It held that (1) the attestation by the magistrate was valid because the magistrate had in fact been specified by the Election Commission, making the rejection of the nomination improper; (2) when a nomination paper is improperly rejected, a presumption arises that the election result has been materially affected; and (3) the whole election, including the seat reserved for the Scheduled Caste candidate, must be declared void. The Tribunal’s reasoning referred to earlier decisions, distinguishing Vasisht Narain Sharma v Dev Chandra (1955 1 S.C.R. 509) and Hari Yishnu Katnath v Syed Ahmad Ishaque (1955 1 S.C.R. 104), while also citing Chatturbhuj Vithaldas Jasani v Moreshwar Parashram (1954 S.C.R. 817) and Karnail Singh v Election Tribunal, Hissar (10 Elec. Law Reports 189). The judgment proceeded to the civil appellate jurisdiction, being filed as Civil Appeal No. 23 of 1956, challenging the order dated 26 August 1955 of the Election Tribunal, Patiala, in Election Petition No. 12 of 1954. The appellants were represented by counsel, while the respondent numbered as No. 6 was represented by his own counsel. The judgment, delivered by Justice Sinha, noted that the appeal by special leave was directed against the majority opinion of the Election Tribunal, which had declared the elections of the two appellants void because of the improper rejection of the nomination paper of respondent 18, Buta Singh. To understand the arguments advanced on behalf of the appellant, the Court found it necessary to set out the factual background, beginning with the filing of nomination papers by the appellants and respondents numbered 2 through 18 on 9 January 1954 for the double‑member constituency of Samana in the Patiala and East Punjab States Union Legislative Assembly.

In this case the appellants and respondents numbered 2 to 18 filed their nomination papers on 9 January 1954 for election from the double‑member constituency of Samana to the PEPSU Legislative Assembly. Of the two seats, one was reserved for the Scheduled Caste and the other was a general seat. The Returning Officer conducted the scrutiny of the nomination papers on 13 January 1954 and accepted every nomination except that of the eighteenth respondent, Buta Singh, on the ground that the thumb impressions of the proposer and the seconder had not been attested by an officer as required by the Election Rules. Polling was held on 24 February 1954 and the results were published in the PEPSU Gazette on 4 March 1954. The Gazette showed that the first appellant, Suren Ara Nath Khosla, obtained 13,853 votes in the general constituency, while the second appellant, Pritam Singh, received 13,663 votes for the reserved seat. Having secured the largest number of votes in their respective constituencies, they were declared duly elected. The other candidates obtained fewer votes, which the record does not set out. Buta Singh, whose nomination had been rejected, did not pursue any further remedy, but the first respondent, Dalip Singh, filed an election petition with the Election Commission, identified as respondent 19. The petition was examined by an Election Tribunal consisting of three members, one of whom acted as Chairman. Several issues were framed between the parties. The Chairman and one other member of the Tribunal decided the material issues numbered 1 and 4 in favour of the first respondent, holding that the eighteenth respondent had been validly proposed and seconded, that the Returning Officer had erred in rejecting his nomination paper, and that this erroneous rejection had materially affected the overall result of the election. On the basis of those findings they declared the entire election void and set aside the election of the appellants. The third member, while agreeing with the majority on the remaining issues, dissented on the most critical issue, issue 4, concluding that the first respondent had failed to prove that the wrongful rejection of the eighteenth respondent’s nomination paper had materially influenced the election outcome. The appellants consequently moved this Court and obtained special leave to appeal the majority judgment that declared the election void. The appeal was first scheduled for hearing before a Division Bench of three judges on 23 March 1956. That Bench directed that the papers be placed before the Chief Justice for consideration by a larger Bench because, in its view, the case raised a difficult and important point of election law. The Bench made reference to the full Court decision in Hari Vishnu Kamath v Syed Ahmad Ishaque, which upheld the earlier decision of this Court in Vasisht Narain Sharma v Dev Chandra, as

The Court noted that earlier authorities established the principle that the burden of proof rested upon the party who challenged an election, requiring that party to demonstrate that the election result had been materially affected by an improper rejection of a nomination paper. Those authorities further observed that satisfying this burden was difficult unless some presumption favored the petitioner who sought to have the election declared void. Learned counsel for the appellants then presented three specific questions for the Court’s determination. The first question asserted that the Election Tribunal had erred in its decision on the initial issue, claiming that the thumb impressions of the proposer and the seconder of the eighteenth respondent had not been properly verified in accordance with the Election Rules, and therefore the Returning Officer’s rejection of the nomination paper should have been considered lawful. The second question, assuming that the nomination paper had indeed been wrongly rejected, argued that the Tribunal’s majority had wrongly decided the fourth issue by presuming that an improper rejection automatically resulted in a material effect on the election, and that the evidence offered by the appellants had failed to rebut that presumption; the appellants further contended that the minority opinion, which held that the burden lay on the first respondent seeking to set aside the election to prove a material impact from the wrongful rejection, was correct and that the respondent had not established such proof by evidence. The third question asserted that, irrespective of the foregoing, the election of the second appellant to the reserved seat should not have been set aside. The Court then restated the first issue in the words: whether respondent number nineteen, who was identified as respondent number eighteen for the purposes of this Court, had been duly proposed and seconded and whether the thumb impressions of the proposer and the seconder on his nomination paper had been attested in accordance with law. The Tribunal had found, as a matter of fact, that the respondent, identified as Buta Singh, had indeed been duly proposed and seconded, and the appellants’ counsel did not dispute that factual finding. However, the counsel argued that the Tribunal’s additional finding—that the thumb impressions on the nomination paper had been attested lawfully—was erroneous. The Court observed that the question of whether the attestation was regular depended upon the rules framed under the Representation of the People Act, 1951, specifically rule two of paragraph two, which provides that a person unable to write his name shall be deemed to have signed an instrument if he places his mark in the presence of the Returning Officer or another officer specified by the Election Commission, provided that the officer is satisfied as to the person’s identity and attests the mark as that person’s signature.

The rule under the Representation of the People Act provides that a person who is unable to write his name shall, unless expressly provided otherwise, be deemed to have signed an instrument or other paper if he places a mark on such instrument or other paper in the presence of the Returning Officer, the presiding officer, or any other officer who may be specified by the Election Commission, and if that officer, being satisfied as to the person’s identity, attests the mark as being the mark of that person. In the present case the nomination paper was attested by a local magistrate. After examining the relevant evidence, the Tribunal recorded the finding that the magistrate had been specified by the Election Commission for that purpose. Consequently, the point of contention was essentially a question of fact. Counsel for the appellants argued that the Tribunal’s finding revealed a mistake of omission in the communication from the Election Commission to the local election officer, and that such a clerical or accidental mistake rendered the attestation unacceptable. The Court was not prepared to accept this contention as sound in principle. The Tribunal had, as a matter of fact, found that the persons whose thumb impressions appeared on the nomination paper had indeed proposed and seconded the candidate, and that those thumb impressions had been attested by a magistrate who was, in fact, authorised to do so. On that basis, there was no room for the argument that the Returning Officer was justified in rejecting the nomination paper. Accordingly, the first ground of attack failed.

The second ground of attack raised the issue identified as Issue No. 4: whether the rejection of the nomination paper of respondent No. 19 (respondent No. 18 in this Court) had materially affected the result of the election. The majority of the Tribunal held that when a nomination paper is improperly rejected, a strong presumption arises that the result of the election has been materially affected. The Tribunal referred to a large number of decisions of various Election Tribunals, both before and after the enactment of the Act, to demonstrate that the prevailing view in most decisions is that such a presumption operates in favour of holding that the election result was materially affected, and that the burden lies on the party seeking to uphold the election to prove the contrary. Applying that presumption, the Tribunal concluded that the evidence adduced by the appellants (then respondents) did not rebut it. Counsel for the appellants drew the Court’s attention to Section 100(1)(c) of the Act, which states: “If the Tribunal is of 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 to be wholly void.” He argued that the legislature placed “improper acceptance” and “improper rejection” of a nomination paper on the same footing, and that the condition precedent to declaring an election void is that the Tribunal must be satisfied not only that there was an improper rejection but also that such rejection materially affected the election result.

In this case, the Court observed that the statutory condition for declaring an election void required the Tribunal to be satisfied not only that a nomination paper had been improperly rejected but also that such improper rejection had materially affected the result of the election. The counsel for the appellants emphasised that the language of section 100(1)(c) of the Act confined its application to the facts before the Tribunal and therefore both conditions—improper rejection and material effect—must be established cumulatively. To support this proposition, the counsel relied on two earlier decisions of this Court, namely Vashisht Narain Sharma v. Dev Chandra and Hari Vishnu Kamath v. Syed Ahmad Ishaque, arguing that the burden of proving both elements rested on the party seeking to set aside the election. Further reliance was placed on section 90(3) of the Act, which provides that the provisions of the Evidence Act shall, subject to the Act itself, be deemed to apply in all respects to the trial of an election petition. The counsel contended that sections 101 and 102 of the Evidence Act therefore imposed upon the petitioner the duty to establish both conditions before any relief could be granted.

The Court held that this line of argument did not advance the appellants’ case beyond the principles already laid down in the cited authorities. It noted that while the other provisions of the Evidence Act, including the rules of presumption, are equally applicable, neither of the two referenced cases directly dealt with the facts of the present matter, which involved an improper rejection of a nomination paper. The Court referred to a Division Bench decision in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, page 842, which had held that the improper rejection of a nomination paper “affects the whole election.” A similar view was expressed in Karnail Singh v. Election Tribunal, Hissar, by a five‑Judge Bench of this Court. However, the Court observed that in those decisions the relevant statutory provisions had not been discussed. It pointed out that, although the wording of section 100 is general and applies equally to improper acceptance and improper rejection, case law has drawn a distinction between the two categories. Regarding improper rejection, the Court noted that almost all Election Tribunals across the country have consistently held that there is a presumption that such rejection has materially affected the election result. The Court further explained that, given the practical difficulty—indeed, the near impossibility—of proving how electors would have voted had the rejected candidate been allowed to stand, the mere fact that a candidate was excluded from the contest is itself a material consideration.

In this case, the Court observed that when a nomination is rejected, the mere fact that one of several candidates is excluded from contesting the election is itself a very material consideration. The Court cited authorities (1) [1954] S.C.R. 817 and (2) 10 Elec. Law Reports 189 to illustrate this point. It was explained that circumstances can easily be imagined in which the candidate who is most desirable to the electorate, or the candidate who is most formidable to the other contenders, is wrongly prevented from standing for election. By excluding such a desirable candidate, the officer who rejects the nomination paper may deprive the voters of the opportunity to vote for the best candidate available. Conversely, the Court noted that in cases of improper acceptance of a nomination paper, it is often possible to produce evidence showing that the inclusion of an additional candidate did not affect the election of the best candidate in the field. The Court therefore held that it is reasonable to infer that the legislature, aware of the distinction between improper rejection and improper acceptance, has given legislative sanction to this view by amending section 100 through the Representation of the People (Second Amendment) Act, XXVII of 1956, and by expressly providing that an improper rejection of any nomination paper constitutes conclusive proof that the election is void. For these reasons, the Court affirmed that the majority decision on the fourth issue was correct. The Court also considered the argument raised by counsel for the appellants that any presumption arising from an improper rejection should be rebuttable and that the Tribunal ought to have examined whether the evidence placed before it had sufficiently rebutted that presumption. Counsel offered to lead the Court through the oral evidence presented by the appellants. However, the Court declined to revisit that evidence, stating that in a special leave appeal the Court does not normally re‑examine factual findings made by a competent Tribunal. Accordingly, the Court concluded that the Tribunal was justified in holding that the result of the election had been materially affected by the improper rejection of the contested nomination. Finally, the Court addressed the contention that, even if the Tribunal was correct in declaring the election void with respect to the general seat, there was no ground to set aside the election as a whole and that the election of the second appellant should therefore stand. The Court pointed out that section 100 expressly provides that when a Tribunal is of the opinion, as it was in this case, that the result of the election was materially affected by the improper rejection of a nomination paper, the Tribunal must declare the election wholly void. The election in question involved a double‑seat constituency and was treated as a single, integral election. Consequently, if the election had to be declared void, the Tribunal was fully authorized to set aside the entire election. The Court therefore dismissed the appeal, finding that all the contentions raised in support of the appeal had failed.

After reviewing the submissions and the record, the Court concluded that the appeal had not succeeded on any of the grounds presented. Because the appeal was found to have failed, the Court determined that the proper course was to bring the proceedings to an end. Consequently, the Court ordered that the appeal be dismissed in its entirety. In addition, the Court directed that the costs of the proceedings be levied upon the respondents who had contested the appeal. This direction required the respondents, who had opposed the relief sought by the appellant, to bear the expenses incurred by the appellant in bringing the case before the Tribunal. The dismissal of the appeal was therefore confirmed as a final order, and the award of costs against the contesting respondents was incorporated as part of that final disposition, ensuring that the unsuccessful party would be responsible for the financial burden of the litigation.