CHHEDI RAM v. JHII:.MiT RAM & OTHERS

The Judgment of the Court was delivered by · H • CHINNAPPA REDDY, J. At the General Election. to the Uttar Pradesh Vidhan Sabha held in 1979, Jhilmit Ram was elected froin

968 SIJPREME COIJRT REPORTS (1984] 1 s.c.tt.

the Jakhsuie Constituency reservea for the ·Scheduled Castes. He A secured 17822 'votes. Chhedi Ram, the runner-up secured 17449 .vo'tes. Thus the difference be.tween the successful candidate and the candidatjl who secured the next highest number of votes was 373 votes. There were fou~ other· caudldates of whom Mati Ram. secu- . red 6110 votes. Chhedi Ram challenged the election of Jhilmii Ram on the ground that Moti Ram was a Kahar by caste, not entitled to B seek election from the reserved constituency, that his nominaiion had been improperly'accepted and that the result of the election was materially affected. The Election Tribunal found that Moti Ram ~as a Kahar b} ca;te and not a memb<ir of the · Scheduled .Castes. "I.t rejected the evidence offered on behalf of Moti Ram that he was a .Gond and not a Kahar and recorded a finding that · delibe.rate attempts had been made to manufacture evidence to show that Moti Ram was a Gond. The Tribunal also noticed'that Moti Ram him- self was no.t prepared lo enter the witness box to· give evidence. Havfo.g a rived at the finding that Moti Ram's nomination had been improperly accepted, however., the Tribunal was 1iot prcP,ared to D 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 o~ the improper acceptance of the nomination. The election petition was, therefore, dismissed.· Chhe\ii Rani has pteferred this. appeal. E We are afraid the appeal has to be allowed. Under sec. lOO(l)(d) of the Represerit,ation of the People.Act, 1951, the election of a returned candidate shall be deC!ared to be void if the High Court is of opinion that the result .of the election, in so· far as it' concerns the returued 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 ~s a result of ,, the improper acceptance of a .nomination is on the person impeach· ing the election. The burden is readily discharged if the nomination which bas been improperly accepted was that of the successful candi- date himself. On the other band, 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 numb.er ?f 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. H The complication arises only in cases where the candidate, whose nomination Vias improperly accepted, has secured· a larger number of votes than the difference between the number of votes secured by

cliliBDi RAM v. JHILMIT RAM ( Chinnappa Reddy, J.) 969 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 .111ight have been cast for the candidate who secured the highest num· ber 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 oply. In this situation, the an~wer to the question whether the result of the.election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of • votes· secured by the successful candidate and the candidate securing c . 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) bears to the. number of votes secured · by the succesofol candidate. If the number of votes secured by, the .candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes oecured by the successful candidate and the candidate securing _the next highest number of votes," it would be next to impossibility to conclude that the result of t)le election has been materially affected. ·But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference, between the votes secured by the successful candidate and the candidate securing the next highest number of votes and· if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful. candidate, the reasonable prob- ability is that the result of the. election has been materially affected and one may venture to· hold .the fact as proved. Under the Indian Evid• ence Act, a fact is said to be proved when after considering the matters before it, the Court either belives it to exist or considers its existence • G so probable that a prudent man ought, under the circumstances of the ' particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the ·reasonable probability is all one way, a court mnst not lay down· an impossible standards of proof and hold a fact as not . proved. In the present H .case, the candidate whose nomination was improperly accepted .bad obtained 6,710 votes, that' is, almost 20 times the difference between

SUPREME COuRT REPORTS [i984J 1s.c.ll. the number of votes secured by the successful . candidate and the . candidate securing the next highest number of ~otes. Not inerely that. · A The number of votes secured by the candidate whose nomination was improperly accepted b~•e a fairly high proportion to the numtJer of \_ votes secured by the successful candidate-it was a little over one· third. Surely, in that situation, the result of the election may safely be said to have been affected. ·. B The learned counsel for the respondents invited our attention to the decisions of this court in Vashist Narain Sharma v. Dev Chandra and Others('), and Samant N. Balakrishna v. George Fernandez ·and · Others, etc.(') In Vashist Narain case, the difference between the num• • c her of votes secured by the. successful candidate and the number of votes secured by the candidate who got the next largest' number of ·votes was very nearly the same as the numt5er of votes secured by the . candidate .whose nomination was improperly accepted. Unless it was possible to say that all the wasted votes 'would have gone to the candidate who secured the highest number of votes n<xt to the D successful candidate, it was not possible to hold that the result of the election had been materially affected. It was in those circumstances that Ghulam Hasan, J. observed : · ·) "But we are riot prepared to hold tha't the mere fact E ' that the wasted votes are greater than the margin of votes · between the returned candidate· and the candidate securing the-next highest number·ofvotes must lead to the necess· ary inference that the -result of the election ·has been materially affected. That is a matter . which has to he proved and the onus of proving it' lies upon the petitioner. .,.- F It will not do merely to say that all or a majority of the wasted votes might have gone ·to the · next highest candidate. The casting of votes at an election depends • upon a variety of factors and it is not possible for any one • to-predicate how many of which proportion of the votes will go to one or the other of the candidates. While · it must be recognised that the petitioner in such a case is · confronted' with a difficult situation, it is not possible to relieve him of the duty imposed upon him by 'section '·, IOO(l)(c) and hold without evidence- that the duty has been discharged. Should , the petitioner fail to adduce

(1) [1955] S.C.R. 509 • (2) [1969] 3 S.C.R. 603.

. CHHEDi RAM v. JHiLMiT RAM (Chinnoppa Reddy, J.)_ 971

1 satisfactory_ evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribnnal would not interfere in his favour and would allow the election to stand''. A

We do agree with the observations of Ghulam Hasan, J. in the context of the facts of that case. It does not, however, mean that B whatever the number of wasted votes and whatever the margin of difference between the number of votes secured. ·by ·the successful candidate and tile number of votes secured by the next highest candidate, the court would invariably hold that the result of the election had not been materially affected. In an· appropriate case having regard to the margin of difference between the ·votes secured by the successful candidate . and· the candidate securing the next highest number of votes and the proporation which such margin bears to the wasted votes, it is permissible for the court to hold that the burden of proving that the result of the election has. been materially affected has been discharged. D ·In Samant [Ja/akrishna's case, the court observed;

"In our opinion the matter cannot be considered on possibility. Vashist Narain's case in_sists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Hethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no room, therefore, for a reasonable judicial guess. The law ~equi. · res proof. How fat that proof should go or what it should contain is not provided by the Legislature. In ). Vashist's case the· provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully discharged", G • We do no! thinle that this case lays down any different principle than what we have already said. On the other hand, the sentence underlined by us indicates• that where the difference between the number of votes secured by the successful· candidate and the H number of votes secured by the highest candidate is marginal,· it may be possible in the cirumstances of a case to hold that the

972 SUPRm,!B COURT REPORTS (19&4) 1 S.C.R.

A burden has been discharged. We have already indicated our view that in this case, the burden has certainly been discharged.

. An attemp was made by the learned counsel for the i. <

respondents to dislodge the finding of the Election Tribu.nal that Moti Ram was a Kahar and not a Gond. But having gone through the B relevant evidence, we affirm the finding of the Election Tribunal and .agree with the Election Tribunal that a crude attempt was . made to .fabricate evidence that Moti Ram was a member of the Scheduled Castes. In the circumstances,. the appeal ha~ to be allowed. We do so but without ·costs. · ·' ·

c H.L.C.' Appeal allowed.