ivil Appeal Nos
4 132 4 133 NCE of 1986
From the Judgment and order dated 22101986 of the Rajas  than High Court in SB Election Petition Nos 1 and 9 of 1985
NM Ghatate BR Dutta and SV Deshpande for the Appellant
Dr YS Chitale MR Calla and Jitendra Sharma for the Respondents
The Judgment of the Court was delivered by SINGHJ
These two appeals under Section 116 A of the Rep resentation of the People Act 1951 hereinafter referred to as the Act are directed against the judgment and order of the High Court of Rajasthan at Jaipur dated 22nd October 1986 setting aside the appellant s election to the Legislative Assembly of the State of Rajasthan
Election to the Rajasthan Legislative Assembly Constituency No 80 Karauli was held in 1985
The appellant and 10 other candidates contested the election from the aforesaid assembly constituency
The Returning officer declared the appellant duly elected on his having obtained majority of valid votes
Chandra Bhan Singh Respondent No 1 filed Election Petition No 1 of 1985 as an elector and another Election Petition No 9 of 1985 was filed by Mukand Ram Respondent No 2 also an elector before the High Court of Rajasthan under Section 80 of the Act challenging the validity of the appellant s election to the legislative assembly on the ground that Kanhaiya Lal a contesting candidate was not qualified to contest election under Article 173b of the Constitution as he was below 25 years of age on the date of scrutiny of nomination papers and his nomination paper was improperly accepted by the Returning officer which materially affected the result of the election of the returned candidate
The appellant appeared and contested both the election petitions and pleaded before the High Court the Kanhaiya Lal was qualified to be a candidate at the election as he had completed 25 years of age on the date of scrutiny of nomination papers and there was no improper acceptance of his nomination paper
He further pleaded that in any view his election was not materially affected by the acceptance of Kanhaiya 717 Lal s nomination paper
Both the election petitions were consolidated and tried jointly by the High Court
The issues framed were almost identical in the two election petitions and the election petitioners and the appellant produced evidence in support of their cases before the High Court
The High Court by its order dated 22nd October 1986 held that Kanhaiya Lal was not qualified to be a candidate as he had not completed 25 years of age and that his nomination paper was improperly accepted by the Returning officer
The High Court further held that since the difference between the votes polled by the appellant and Roshan Lal an unsuccessful candidate who had obtained the next highest votes was only 4497 votes the result of the election was materially affected
On these findings the High Court declared the appellant s election void and directed the Election Commission to hold fresh election
Learned counsel for the appellant raised only one submission before us in challenging the correctness of the order of the High Court
He urged that the finding recorded by the High Court that the improper acceptance of the nomination paper of Kanhaiya Lal had materially affected the result of appellant s election was based on conjectures and surmises and not on any legal evidence
Learned counsel further submitted that none of the two election petitioners had produced any 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 Kanhaiya Lal but on the other hand the appellant had produced large number of witnesses in support of his case but the High Court had failed to consider the evidence of those witnesses
Dr Chitale appearing on behalf of the Respondents urged that on the material on record and having regard to the number of votes polled by Kanhaiya Lal and the difference between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal the findings recorded by the High Court are sustainable in law and the same are in accordance with the law laid down by this Court in Chhedi Ram vs Jhilmit Ram  others
  In all eleven candidates contested the election
After counting it was found that the total number of votes polled were 60815 out of which 821 votes were rejected being invalid by the Returning officer
Thus the total number of valid votes were 59994
The total valid
number of votes polled by each of the candidates was as under H 718 1
Shiv Charan Singh appellant 21443 2
Kanhaiya Lal
17341 3
Asphak
275 4
Narayan
1310 5
Prahlad 252 6
Puran Chandra Sharma
1308 7
Mana Lal 198 8
Ram Swaroop
102 9
Roshan Lal
16946 10
Samanta
271 11
Heera Lal 40 The High Court has held that Kanhaiya Lal s nomination paper was improperly accepted as he was not competent to contest the election for the reason of his being below 25 years of age
Since there was difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal who had polled 16946 votes the High Court held that if Kanhaiya Lal had not contested the election the aforesaid number of votes polled by him could have gone in favour of Roshan Lal and other candidates as a result of which Roshan Lal would have polled the majority of valid votes
In this view the High Court concluded that the result of the appellant s election was materially affected and it accordingly declared the appellant s election void
Since the learned counsel for the appellant did not challenge the finding recorded by the High Court that Kanhaiya Lal was not qualified to be a candidate on the date of his nomination as he was below 25 years of age and his nomination paper was improperly accepted by the Returning officer the said finding must be accepted as correct
The only question which survives for consideration is whether improper acceptance of Kanhaiya Lal s nomination paper materially affected the result of the appellant s election
Section 100 confers power on the High Court to declare the election of the returned candidate void if the grounds set out therein are made out
Section 100 1 relevant for our purpose is as under 100
Grounds for declaring election to be void 1 Subject to the provisions of sub section 2 if the High Court is of opinion
a that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Govern 719 ment of Union Territories Act 1963 20 of 1963or b that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent or c that any nomination has been improperly rejected or d that the result of the election in so far as it concerns a returned candidate has been materially affected i by the improper acceptance of any nomination or ii by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or iii by the improper reception refusal or rejection of any vote or the reception of any vote which is void or iv by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act
the High Court shall declare the election of the returned candidate to be void
 Section 1001di provides for setting aside the election of the returned candidate on the ground of improper acceptance of any nomination paper provided the result of the election of the returned candidate is materially affected by reason of such improper acceptance of nomination of a candidate other than the returned candidate
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
720 The question as to how and in what manner the burden of Providing that the result of election was materially affected should be discharged is a vexed question which has been considered by this Court in a number of cases
In the leading case of Vashist Narain Sharma vs Dev Chandra and others  this Court considered this question at length
In that case the nomination paper of one Dudh Nath a contesting candidate who had polled 1983 votes was found to have been improperly accepted
The returned candidate had polled 12860 votes while Vireshwar Nath Rai had polled 10996 votes being the next highest number of votes
There was thus difference of 1864 votes bet ween the votes polled by the returned candidate and the next unsuccessful candidate
The Election Tribunal set aside the election of the returned candidate on the finding that improper acceptance of the nomination paper of Dudh Nath had materially affected the result of the election
This Court set aside the order of the Tribunal on the ground that the election petitioner had failed to discharge the burden of proving that the result of the election had been materially affected
The Court observed as under But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes bet ween the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected
That is a matter which has to be proved and the onus of proving it lies upon the petitioner
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 100lc and hold without evidence that the duty has been discharged
Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand
 Section 100 lc of the Act as it stood in 1952 was in pari materia with the present Section 100ld1 of the Act
The 721 interpretation of Section 100 1c of the Act as given by the Court in Vashist Narain Sharma s case fully applies to the interpretation of Section 1001d1 of the Act
In Vashist Narain Sharma s case this Court has categorically held that the result of the election of the returned candidate cannot be materially affected merely for the reason that the number of votes polled by the candidate whose nomination paper was improperly accepted was greater than the margin of votes polled by the returned candidate and the candidate securing the next highest number of votes because it could not be predicated in what manner or proportion the voters would have exercised their choice in the absence of the improperly nominated candidate from the election contest
Proceeding further the Court considered the question whether any speculation or conjecture could be made in a case where the number of votes secured by the candidate whose nomination paper was improperly accepted was higher than the difference between the votes polled by the returned candidate and the candidate who may have polled the next highest number of votes
The Court observed that in such a case it was impossible to foresee what the result would have been if the improperly nominated candidate had not been in the field
Since it was not possible to anticipate the result the election petitioner must discharge the burden of proving that fact and on his failure to prove that fact the election of the returned candidate must be allowed to stand
Then the question arose as to how and in what manner the burden could be discharged by the election petitioner
On behalf of election petitioner an attempt had been made to discharge burden by producing a number of electors before the Tribunal who had stated that all or some of the votes would have gone to the candidate who had polled the next highest number of votes in the absence of the improperly nominated candidate and he would have polled majority of valid votes
The Court held that the statement of the witnesses as to in what manner votes would have been distributed among the remaining contesting candidates could not be relied upon in determining the question of material effect on the election of the returned candidate
The Court observed It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground
The question is one of fact and has to be proved by positive evidence
If the petitioner is unable to adduce evidence in a case such as the present the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must 722 stand
Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper but neither the Tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law
How this state of things can be remedied is a matter entirely for the Legislature to consider
Underlining by us Tn Paokai Haokip vs Rishang Ors
  the Judicial Commissioner Manipur had set aside the election of the returned candidate to Lok Sabha on the ground that there was gross violation of the Act and the Rules framed thereunder in conducting the election as a result of which the result of the election was materially affected under Section 1001div of the Act on the findings that on the polling date a number of polling centres were changed without notice to voters and there was firing and riots at some polling stations as a result of which a number of voters could not exercise their right to vote
In rendering the aforesaid findings the Judicial Commissioner had placed reliance upon the statement of witnesses who had testified before the Tribunal that if they had opportunity to cast their votes they would have voted for the unsuccessful candidate
This Court placing reliance on the decision in Vashist Narain Sharma s case held that the statement of witnesses could not be taken at their word and it was a surmise and anybody s guess as to how those people who did not vote would have actually voted
Then the question arose if witnesses could not be relied upon in what manner the election petitioner could discharge the burden
Referring to the decision in Vashist Narain Sharma s case the Court observed as under How he has to prove it has already been stated by this Court and applying that test we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided
It is no doubt true that the burden which is placed by law is very strict even if it is strict it is for the courts to apply it
It is for the Legislature to consider whether it should be altered
If there is another way of determining the burden the law should say it and not the courts
It is only in given instances that taking the law as it is the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not
We are satisfied that in this case this burden has not been discharged Underlining by us 723 We are in respectful agreement with the view taken by this Court in the aforesaid decisions
The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination of a candidate materially affected the result of the election of the returned candidate
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 candidate other than the returned candidate would have polled the highest number of valid votes
In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest any other candidate other than the returned candidate would have polled the majority of valid votes
In the absence of any such proof the result cannot be held to have been materially affected
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 legislative intent is clear that unless the burden howsoever difficult it may be is discharged the election cannot be declared void
The difficulty of proving the material effect was expressly noted by this Court in Vashist Narain Sharma s and Paokai Haokip s cases and the Court observed that the difficulty could be resolved by the Legislature and not by the Courts
Since then the Act has been amended several times but Parliament has not altered the burden of proof placed on the election petitioner under Section 1001d of the Act
Therefore the law laid in the aforesaid decisions still hold the field
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
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
In the instant case Shiv Charan Singh the appellant had polled 21443 votes and Roshan Lal had polled 16496 the next highest number 724 Of votes
There was thus a difference on 4497 votes between the votes polled by the appellant and Roshan Lal
Kanhaiya Lal whose nomination paper had improperly been accepted had secured 17841 votes which were wasted
The election petitioners did not produce any evidence e to discharge the burden that improper acceptance of the nomination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate
On the other hand the appellant who was the returned candidate produced 21 candidates representing cross section of the voters of the constituency
All these witnesses had stated before the High Court that in the absence of Kanhaiya Lal in the election contest the majority of the voters who had voted for Kanhaiya Lal would have voted for Shiv Charan Singh the appellant
The High Court in our opinion rightly rejected the oral testimony of the witnesses in view of this Court s decision in Vashist Narain Sharma s case
The High Court however having regard to the votes polled by the appellant Roshan Lal and Kanhaiya Lal held that the result of the election was materially affected
The High Court held that in view of the fact that difference between Shiv Charan Singh the appellant and Roshan Lal was only 4497 and Kanhaiya Lal whose nomination was improperly accepted had secured 17841 votes therefore it could reasonably be concluded that the election was materially affected
In our opinion the High Court committed error declaring the appellant s election void on speculations and conjectures
Indisputably the election petitioners had failed to discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason of improper acceptance of the nomination paper of Kanhaiya Lal
In the absence of any positive evidence produced by the election petitioners it was not open to the High Court to record findings that the result of the election was materially affected
The High Court s findings relating to the material effect on the result of the election are based on conjectures and surmises and not on any evidence
The Legislature has as noted earlier placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate other than the returned candidate and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this Court in Vashist Narain Sharma s and in Paokai Haokip s case
It is true that the burden placed on the election petitioner in such circumstances is almost impossible to discharge
But in spite of the fact that this Court had highlighted this question on more than one occasion Parliament has not amended the relevant provisions although the Act has been 725 subjected to several amendments
It is manifest that law laid down by this Court in Vashist Narain Sharma s case and Paokai Haokip s case holds the field and it is not permissible to set aside the election of a returned candidate under Section 1001d on mere surmises and conjectures
If the improperly nominated candidate had not been in the election contest it is difficult to comprehend or predicate with any amount of reasonably certainty the manner and the proportion in which the voters who exercised their choice in favour of the improperly nominated candidate would have exercised their votes
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 the this respect would be arbitrary and contrary to the democratic principles
It is a matter of common knowledge that electors exercise their right of vote on various unpredictable considerations
Many times electors cast their vote on consideration of friendship party affiliation local affiliation caste religion personal relationship and many other imponderable considerations
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
While in a suit of proceedings it may be possible for the Court to draw inferences or proceed on probabilities with regard to the conduct of parties to the suit or proceedings it is not possible to proceed on probabilities or draw inferences regarding the conduct of thousands of voters who may have voted for the improperly nominated candidate
In the instant case there were 11 contesting candidates
If Kanaiya Lal 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
There is possibility that many voters who had gone to the polling station to cast their votes in favour of Kanaiya Lal may not have gone to exercise their vote in favour of the remaining candidates
It is probable that in the absence of Kanaiya Lal in the election contest many voters would have voted for the returned candidate as he appeared to be the most popular candidate
It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanaiya Lal would have voted for the next candidate Roshan Lal
It is not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates
In this view the result of the returned candidate could not be declared void on the basis 726 of surmises and conjectures
The High Court placed reliance on the decision of this Court in Chhedi Ram s case in holding that the result of the election was materially affected in view of the margin of difference between the appellant and Roshan Lal and the votes secured by Kanaiya Lal
The decision in Chhedi Ram s case does not over rule earlier decisions of this Court in Vashist Narain Sharma and Paokai Haokip s case and it does not lay down any different law
Instead the decision of the case turned upon the facts of that case
In Chhedi Ram s case there were four contesting candidates
Jhilmit Ram the returned candidate had polled 17822 votes while Chhedi Ram had polled the next highest number of votes being 17449 votes
Thus the difference between the successful candidate and the candidate who had secured the next highest number of votes was 373 votes only
While Moti Ram whose nomination paper was found to have been improperly accepted had polled 6710 votes
The High Court had dismissed the election petition on the finding that the result of the election had not been materially affected as a result of the improper acceptance of the nomination paper of Moti Ram
This Court allowed the appeal and set aside the election of the returned candidate on the finding that if the number of votes secured by the candidate whose nomination was improperly accepted was not disproportionately large as compared with the difference between the number of 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 there was a reasonable probability that the result of the election had been materially affected and one may venture to hold that fact as proved
After making these observations the Court noted that in that case the candidate whose nomination was improperly accepted had obtained 6710 votes ie almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes in that situation the result of the election was held to have been materially affected
The decision in Chhedi Ram s case rests on its own facts
Applying the principle laid down in Chhedi Ram s case to the facts of the instant case it is not possible to hold that the result of the election of the appellant was materially affected
As already noted the appellant had polled 21443 votes while Roshan Lal had polled the next highest number of votes 16946 and the difference between the two was only 4497 votes while the votes polled by the improperly nominated candidate Kanaiya Lal was 17841 thus the proportion of difference was only four times while 727 the difference in Chhedi Ram s case was 20 times
Further in Chhedi Ram s case there were only 4 contesting candidates while in the instant case there were 11 contesting candidates and in the absence of Kanaiya Lal other remaining 10 would have shared the wasted votes
On these facts even on the basis of Chhedi Ram s case it is not possible to draw any inference or act on probability and to record a finding that the majority of wasted votes would have gone to Roshan Lal in such a way as to affect the result of the appellant s election
In the circumstances the findings recorded by the High Court that the result of the election of the appellant was materially affected is not sustainable in law
In the result we hold that 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 of Kanaiya Lal
Therefore the election of the returned candidate could not be declared void
We accordingly allow the appeals set aside the judgment and order of the High Court uphold the appellant s election and dismiss the election petitions with costs throughout
NPV Appeals allowed


Summary:
 The respondents filed a writ petition in the High Court for quashing the order dated 3111984 of the authorities informing the respondent Union about the scheme of election to the Works Committee to be constituted for the period 1984 86 on the basis of division in different constituencies under the Industrial Disputes Central Rules 1957 framed under the 
The High Court held that such a distribution of constituencies was not permissible in view of the scheme of the Rules especially Rules 39 41
42 and 43
In the appeal by special leave on behalf of the appellants it was contended that such a division of constituencies to give appropriate representation to various sections groups and categories of workers skilled unskilled clerical and otherwise was justified under Rule 39 and proviso to Rule 43
On behalf of the respondents it was contended that while Rule 42 contemplated only division in two constituencies that is those who were members and those were not of a registered trade union it further provided that where more than half the workers belonged to one registered trade union there was no need for any division of constituencies and election will be only by general vote of workers of the industry and therefore the High Court was right in holding that the division of constituencies as contemplated in the aforesaid order was not permissible
Dismissing the appeal 826  HELD The scheme of the Industrial Disputes Control Rules 1957 for the constitution of Works Committee clearly provides that a where there is a registered trade union having more than SO per cent membership of the workers in that establishment the total number of members of the Works Committee will be elected without distribution of any constituencies and b if in an industry no trade union registered under the Trade Unions Act represents more than 50 per cent of the members then only the election will be held in two constituencies one from the members of the registered trade union or unions and the other from non members of the trade unions and it is only in this contingency it is further provided that if the employer thinks proper may further sub divide the constituency into department section or shed
832C E When there is a registered trade union in an establishment having more than 50 per cent membership the exercise under Rule 43 of the Industrial Disputes Control Rules 1957 is futile and is not called for
832F G In the instant case since the respondent union s membership is more than 50 per cent the distribution of constituencies under Rule 42 is not contemplated and therefore there is no occassion for Rule 43 or proviso therein to come into operation
832G