Civil Appeal No 280 of 1988
From the Judgment and order dated 2051987 of the Calcutta 820 High Court in Civil order No 1344 of 1987
Somnath Chatterjee and Rathin Dass for the Appellants
SN Kacker Badar Durrez Ahmed and Parijat Sinha for the Respondents
The Judgment of the Court was delivered by OZA J
Leave granted
This appeal has been filed aggrieved by the judgment of the High Court of Calcutta dated 20th May 1987 wherein the learned Judge allowed a petition under Article 227 and quashed suo moto proceedings under Sec 442a of the West Bengal Estates Acquisition Act 1953  Act  for short and also the appeal which was pending before the lower appellate court under the Act
The proceedings under Article 227 reached the High Court rather in an interesting situation
Suo moto proceedings in 1968 were started by the Revenue officer Tollygunj under Sec 442a of the Act
There were also proceedings under Sec
6 clause 5 read with Sec
47 of the same Act started by Revenue officer and the case was registered as Case No 22 of 1968
A suit filed in 1969 between parties to which the State of West Bengal was not a party ended in a compromise decree on 6870 and a decree in terms of compromise was drawn up
It was title suit No 67 of 1969
After the final orders were passed by the Revenue officer in Case No 22 of 1968 wherein the respondent Ashit Nath Das did not participate and against these final orders a petition was filed in the High Court of Calcutta where rule was issued and by orders of the High Court dated 1481 the rule was made absolute quashing the orders in the said revenue case directing the settlement officer to issue proper notice to Ashit Nath Das as he claimed to be an interested party and dispose of the matter after giving him opportunity of hearing
As a result of this order passed by the High Court on 22182 the proceedings under Sec 442a of the Act was re opened according to the orders passed by the High Court and on 9282 final orders were passed in these proceedings by the special revenue officer
Against this order Ashit Nath Das preferred an appeal before the 9th Additional District Judge Alipore who is the competent authority to hear an appeal under this Act which was registered as EA Appeal No 2 of 1982
On 11283 it appears that Ashit Nath Das obtained an opinion 821 Of the Advocate General of West Bengal regarding the aforesaid proceedings pending in Appeal No 2 of 1982 before the 9th Additional District Judge Alipore and filed that opinion with an application in the Court of Additional District Judge
The Additional District Judge passed an order on 25286 rejecting the prayer of the respondent by saying that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the appellant and the prayer of the appellant before the Additional District Judge the present respondent that the appeal be disposed of in accordance with the opinion of the Advocate General was rejected
It is interesting to note that such a strange prayer was made and the learned Additional District Judge by his order rejected that prayer
The relevant part of the order reads as under It is his case that after the order of the RO now impugned in this appeal his client had made a reference of the matter to the Adv
General Govt
Of West Bengal and sought for his opinion
It is alleged that the Adv
General had given his opinion that the order of the Ro was wrong on the basis of this the appellants now want that the appeal should be disposed of as per opinion of the Adv
General because all relevant papers were submitted to him and copy of his opinion and the copy of the petition and copies of the papers were handed over to the State lawyer
 As the learned Judge observed that it could only be considered as a ground
The date of hearing of the appeal was fixed on 19486 to suit the convenience of the advocates of parties
It is against this order that a petition under article 227 was filed before the High Court
Learned counsel appearing for the appellants read through the petition which was filed before the High Court to contend that in fact there was nothing in the order of the Additional District Judge which could be said to be an order against the respondent of which a grievance could be made in a petition under article 227
As regards the date of hearing the learned Additional District Judge had observed in his order that to suit the convenience of advocates appearing in the case 19486 is fixed as the date of hearing Learned counsel for the appellants referred to us paragraph No 14 of the petition under article 227 in which a ground was specifically raised saying
It was further contended that the Advocate General had 822 given his opinion that the order of the Revenue officer was wrong and as such on the basis of the said opinion the petitioner wanted that the appeal should be disposed of as per opinion of the Advocate General
 A grievance also was made in this petition that the learned Additional District Judge refused to look into the opinion of the Advocate General except as a ground of appeal on behalf of the appellants
In the grounds in this petition under article 227 one ground urged was that the learned Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General and that should have fixed an early date for the hearing of the appeal and it is significant that nothing on the merits or the validity of the proceedings under Sec 442a of the Act were challenged in this petition under article 227
The manner in which the petition was entertained in the High Court and the impugned order was passed also is rather interesting
on 18486 it appears that this petition was presented and orders were passed
The presence of the counsel of both the parties is mentioned thereafter it is stated that further proceedings before the appellate tribunal be stayed and it is further stated that Advocate General is also directed to appear on Friday next 25486 at the first sitting of the Court
Apparently from this what appears is that after asking the Advocate General to remain present the learned Judge kept the matter to be taken up on 25486
It appears that thereafter the case did not appear in the list for hearing as is apparent from the order dated 18486 when rule was not issued and the matter was kept on 25486
It is alleged that this was contested by the State Govt
but neither the parties were called upon to file affidavits nor any rule was issued and subsequently on 13686 this case was shown in the list of the Hon ble Judge for judgment but on 13686 the judgment was not delivered and thereafter the case appeared in the list on 20587 for judgment and on this date the judgment was delivered although the file had no number as it appears that rule was not issued and the petition was not even numbered and it is this impugned judgment which is challenged by the State of West Bengal in this appeal in special leave
In this order the learned Judge has treated this petition under article 227 as a revisional application of the petitioner challenging the order passed by Additional District Judge on 25286 which has been referred to above
823 The learned Judge has reproduced the contention advanced by the counsel for the respondents that the appellate court ie 9th Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General and about this contention the learned Judge of the High Court has made the following observation in his impugned judgment It is most regretable to note the stand taken by the State in the matter in disregarding the written opinion given by no loss person that the Advocate General of West Bengal showing such scant respect or no respect at all to such opinion and I hudder to think that if such disrespect is shown to the opinion of the Advocate General of West Bengal what should be the position of the Advocate General before the court and also to the State Government
However the learned Judge did not agree that the Additional District Judge should have decided in accordance with the opinion of the Advocate General and we are happy that the 9th Additional District Judge Alipore did not accede to such a prayer but after the above quoted observation the learned Judge has decided matters which were not raised before the High Court in the petition under article 227
No ground about the validity of 442a proceedings on the basis of Amending Act not getting the assent of President was raised
When the case was fixed for 25th April Friday next directing the Advocate General to remain present there after it was never heard and it only ultimately resulted in the impugned order
It is not contended even by the learned counsel for the respondents that any additional grounds were urged in the petition under article 227 inviting the Court to consider the matter as to the effect of the Amendment Act 1969 not receiving the assent of the President and the subsequent Amendment Act receiving the assent of the President and the effect thereto
Unfortunately the learned Judge of the High Court lost sight of the fact that the only grievance against the order of the Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing
This question about the suo moto proceedings under Sec 442a and the validity of the Amendment Act and its effect were neither considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of but it appears that the 824 learned Judge of the High Court after examining these legal aspects without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the learned Judge went on without their being proper grounds before it and without giving an opportunity to the present appellant State of West Bengal to have their say in the matter
Under these circumstances it is apparent that the order passed by the learned Judge of the High Court dated 20587 is completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and therefore the order deserves to be quashed and is quashed
Apparently therefore the appeal filed by the respondent before the 9th Additional District Judge which was pending when the learned Judge of the High Court passed the impugned order revives and it could not be said that the appeal is disposed of as observed by the learned Judge of the High Court
Consequently it is directed that the appeal which was pending before the 9th Additional District Judge Alipore shall be heard by the learned Additional District Judge in accordance with law
The learned Additional District Judge while hearing and disposing of the appeal shall not be bound or obsessed by any observation made by the learned Judge in the impugned order
In the circumstances of the case parties are directed to bear their own costs
N V K Appeal allowed


Summary:
 The validity of the appellant s election to the Legislative Assembly was challenged by two electors Respondent Nos 1 and 2 on the ground that improper acceptance by the Returning officer of the nomination paper of one of the contesting candidates who was not qualified to contest the election under article 173b of the Constitution had materially affected the result of the election of the returned candidate
The appellant contested the election petitions contending that there was no improper acceptance of nomination paper of the candidate in question and that the appellant s election was not materially affected
The High Court held that there was improper acceptance of the nomination paper as the candidate in question was not competent to contest election for the reason that he was below 25 years of age
It also held that the election of the appellant was materially affected because there was a difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate and if the candidate whose nomination paper had been improperly accepted had not contested the votes polled by him would have gone in favour of the next unsuccessful candidate and other candidates in which case the next unsuccessful candidate could have polled the majority of valid votes
It accordingly declared the appellant s election void
In the appeals before this Court it was contended on behalf of the appellant that the finding recorded by the High Court that the improper acceptance of the nomination paper of the candidate in question had materially affected the result of the appellant s election was based on conjectures and surmises and not on any legal evidence and that none of 714 the two election petitioners had produced by cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of the candidate in question
On behalf of the respondents it was urged that on the material on record and having regard to the number of votes polled by the candidate whose nomination was improperly accepted and the difference between the votes polled by the appellant and the next unsuccessful candidate the findings recorded by the High Court were sustainable in law and the same were in accordance with the law laid down by this Court
in Chhedi Ram vs Jhilmit Ram  ors
   Allowing the appeals  HELD l
The election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper
Therefore the election of the returned candidate could not be declared void
717C D 21 Improper acceptance of nomination paper of any contesting candidate other than the contesting candidate does not ipso facto render the election
Of the returned candidate void
The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance
The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate
Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void
719F H 22 The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidates other than the returned candidate would have polled the highest number of valid votes
In the absence of any such proof the result cannot be held to have been materially affected
732C D The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof
But the difficulty in proving this fact does not alter the position of law
The 715 legislative intent is clear that unless the burden howsoever difficult it may be is discharged the election cannot be declared void
719G H 23 It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates
723F Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question
In the absence of positive proof of material effect on the result of the election of the returned candidate the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures
723F G Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate
No inference on the basis of circumstances can successfully be drawn
725D El The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate
Any speculation made by the Court in this respect would be arbitrary and contrary to the democratic principles
725B C In the instant case the election petitioners had failed to discharge the burden of proving the fact that the result of the election of the appellant had been materially by reason of improper acceptance of the nomination paper of the candidate in question
In the absence of any positive evidence provided by the election petitioners it was not open to the High Court to record findings that the result of the election was materially affected
There were ll contesting candidates
If the candidate whose nomination paper had been improperly accepted was not in the election contest it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates
Therefore the result of the returned candidate could not be declared void on the basis of surmises and conjectures
724E 725E H Vashist Narain Sharma vs Dev Chandra and others  and Paokai Haokip vs Rishang  Ors   relied on
716 Chhedi Ram vs Jhilmit Ram 2 others 1984 t SCR 966 distinguished and explained