Case: Kamta Prasad Upadhyaya Vs. Sarjoo Prasad Tiwari &amp; Others

rules or orders made under the Act or rules relating to the election, or by any mistake in the use of any prescribed form. No distinction was made between the consequence arising out of improper acceptance and out of improper rejection of any nomination, provided the result .of the election was materially afftcted thereby. Under Section 100 as amended, the election is not to be set aside in its entirety; only the election of the returned candidate has to be declared void. If any nomination has been improperly rejected, irrespective of the question whether the election has been materially affected thereby, - the election of the returned candidate must be set aside. Where, however, there has been improper acceptance of any nomination the election of the returned candidate shall be declared void if the result of the election was materially affected by such improper acceptance. It is further provided that for non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act the election of the returned candidate shall be declared void if the result of the election in so far as it concerns the returned candidate had been materially affected thereby. If the result of the election had been materially affected by the improper acceptance of any nomination under the Act before amendment, the election was wholly void. Under the amended Act the election of the returned candidate is to be declared void. That is the only change made in declaring the consequences arising from improper acceptance of nomination. The onus of proof before the Amending Act lay upon the election petitioner to establish in case of improper acceptance of any nomination, that the result of the election had been materially affected thereby; even under the Act as amended, the burden remains upon the election petitioner. We are unable to hold that the re-arrangement of the provisions relating to setting aside of the election by the Amending Act of 1956, in cases where there has been improper acceptance of nomination any substantial modification in the law declared by this Court in Vashist Narain Sharmas case (supra) was intended. Whether in a given case the onus is discharged must depend upon facts of that case. We may observe that in a recent case decided by this Court Poakai Haokip v. Rishang and Others (CA 623 of 1968, decided on Aug. 12, 1968) this Court has affirmed the view expressed in Vashist Narain Sharmas case (supra).6. Counsel then contended that in this case there was evidence to show that if Heeralal Bahadurs nomination had not been accepted, the appellant would have been declared elected, because all the votes which were cast in favour of Heeralal Bahadur who was a Kachhi would have been cast in favour of the appellant. But the following observations in Vashist Narain Sharmas case (supra) at p. 516 clearly negative that plea :"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 or 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 100(1)(c) 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."It may be accepted that in the constituency there were 6, 000 Kachhi voters. But there is nothing to show that all Kachhi voters did vote at the election or that only Heeralal Bahadur obtained the votes of Kachhi or that if Heeralal Bahadur had not stood for the election, all those voters would have voted for the appellant.7. It was said that the Kachhi voters would have voted for the appellant who stood as a candidate of the Congress party, but for the fact that a member of their own community-Heeralal Bahadur - was standing as a candidate, and in a caste meeting held on February 5, 1967, at the village Amaha it was resolved that all the Kachhi numbering about 6, 000 should vote for Heeralal. We have read the evidence of the witnesses Dine Kachhi, P.W. 4 Mukundi Kachhi P.W. 5, Garibe Kachhi P.W. 7, Hiralal Kachhi P.W. 8, Gangadhar Kachhi P.W. 12, and Kamta Prasad P.W. 14 and we hold that there is no reliable evidence which supports the case that if the nomination of Heeralal Bahadur had not been accepted, 6, 000 voters belonging to the Kachhi community or a majority of those voters would have voted for the appellant. How the members of the community reacted to the resolution and how far they regarded the resolution as binding upon them is a matter of speculation, and it would be impossible to predicate that the votes cast in favour of Heeralal Bahadur or a majority of those votes would have gone to the appellant and to no other candidate. How voters at an election will vote in a given situation cannot be determined with any degree of certainty. It is, therefore impossible to accept the assertion made by the candidate and his supporters that on some supposed or imaginary ground of affinity-political or communal-all or some of the votes would have gone to him, but for the irregularity committed by the Returning Officer in accepting the nomination of Heeralal. We agree with the High Court that the evidence on the record on the point that the "wasted votes" would have been distributed in such a manner that it would have brought about the defeat of the returned candidate is scanty and unreliable, and even that scanty evidence is only of a speculative or conjectural nature.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. It was said that the Kachhi voters would have voted for the appellant who stood as a candidate of the Congress party, but for the fact that a member of their own community-Heeralal Bahadur - was standing as a candidate, and in a caste meeting held on February 5, 1967, at the village Amaha it was resolved that all the Kachhi numbering about 6, 000 should vote for Heeralal. We have read the evidence of the witnesses Dine Kachhi, P.W. 4 Mukundi Kachhi P.W. 5, Garibe Kachhi P.W. 7, Hiralal Kachhi P.W. 8, Gangadhar Kachhi P.W. 12, and Kamta Prasad P.W. 14 and we hold that there is no reliable evidence which supports the case that if the nomination of Heeralal Bahadur had not been accepted, 6, 000 voters belonging to the Kachhi community or a majority of those voters would have voted for the appellant. How the members of the community reacted to the resolution and how far they regarded the resolution as binding upon them is a matter of speculation, and it would be impossible to predicate that the votes cast in favour of Heeralal Bahadur or a majority of those votes would have gone to the appellant and to no other candidate. How voters at an election will vote in a given situation cannot be determined with any degree of certainty. It is, therefore impossible to accept the assertion made by the candidate and his supporters that on some supposed or imaginary ground of affinity-political or communal-all or some of the votes would have gone to him, but for the irregularity committed by the Returning Officer in accepting the nomination of Heeralal. We agree with the High Court that the evidence on the record on the point that the "wasted votes" would have been distributed in such a manner that it would have brought about the defeat of the returned candidate is scanty and unreliable, and even that scanty evidence is only of a speculative or conjectural nature.the following observations in Vashist Narain Sharmas case (supra) at p. 516 clearly negative that pleacasting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or 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 100(1)(c) 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