Case: Surendra Nath Khosla Vs. Dalip Singh

2. In order to appreciate the arguments raised on behalf of the appellants it is necessary to state the following facts: The appellants and respondents 2 to 18 filed their nomination papers on January 9, 1954, for election from a double member constituency of Samana to the Pepsu Legislative Assembly. Of the two seats, one was reserved for the Schedule Caste and the other was a general constituency. Scrutiny of the nomination papers by the Returning Officer took place on January 13, 1954. The Returning Officer accepted all the nomination papers except that of Buta Singh aforesaid on the ground that the thumb impressions of the proposer and the seconder had not been attested by an officer in accordance with the Election Rules. Polling took place on February 24, 1954, and the results announced in the Pepsu Gazette on March 4, 1954. The results thus announced showed that the first Appellant, Surendra Nath Khosla, had obtained 13,853 votes in the general constituency and the second appellant, Pritam Singh, had polled 13,663 votes for the reserved seat. They having secured the largest number of votes from their respective constituencies were declared to have been duly elected. The other candidates got smaller number of votes which it is not necessary to set out here. Buta Singh aforesaid, whose nomination paper had been rejected by the Returning Officer, did not take any further steps. But Dalip Singh, the first respondent, filed an election petition with the Election Commission, respt. 19. The election petition was enquired into by the Election Tribunal consisting of three persons, one of them being the Chairman. A number of issues were joined between the parties. The Chairman and another member of the Tribunal decided the material issues 1 and 4 in favour of the first respondent, to the effect that the 18th respt. had been duly proposed and seconded, that the Returning Officer had wrongly rejected his nomination paper and that as a result of that rejection the result of the election as a whole had been materially affected. On those findings they declared the election void as whole and set aside the election of the appellants. The third member of the Tribunal, while agreeing with the majority in their judgment on the other issues, disagreed with them on the most material issue in the case, namely, issue 4, and held that the first respondent had failed to prove that the wrong rejection of the nomination paper of the 18th respondent had materially affected the result of the election. The appellants moved this Court and obtained special leave to appeal from the majority judgment declaring the election to be void as a whole.The appeal was first placed for hearing before a Division Bench of three Judges on March 23, 1956. That Bench directed that the papers be laid before the Honble the Chief Justice for having the case heard by a larger Bench because in their view the case raised a difficult and important point about election law. They made reference to the full Court decision in Hari Vishnu Kamath v. Syed Ahmad Ishaque, 1955-1 SCR 1104  : ((S) AIR 1955 SC 233  ) (A), which upheld the earlier decision of this Court in Vashisht Narain Sharma v. Dey Chandra, 1955-1 SCR 509  : (AIR 1954 SC 513  ) (B) as authorities for the proposition that the burden of proof is on the person who seeks to challenge the election and that he must prove that the result of the election has been materially affected by the improper rejection of the nomination paper. They indicated the difficulty of discharging such a burden unless some sort of presumption was called in aid of the petitioner who sought to have the election set aside.

Reasoning:
We are not prepared to accede to that contention as sound in principle. The Tribunal having found as a fact that the persons whose thumb impressions the nomination paper purported to bear had really proposed and seconded the candidate and that those thumb impression had been attested by a Magistrate who had in fact been authorised in that behalf, there is no room for the contention that the Returning Officer was justified in rejecting the nomination paper in question. The first ground of attack thereforeour opinion, that argument does not advance the case of the appellants any more than what had been laid down by this Court in the cases referred to above. The other provisions of the Evidence Act including the rules of presumption must also be equally applicable. But neither of the two cases referred to above directly applies to the facts of the present case which is one of improper rejection of nominationappears that though the words of the section are in general terms with equal application to the case of improper acceptance, as also of improper rejection of a nomination paper, case law has made a distinction between the two classes of cases. So far as the latter class of cases is concerned, it may be pointed out that almost all the Election Tribunals in the country have consistently taken the view that there is a presumption in the case of improper rejection of a nomination paper that it has materially affected the result of the election. Apart from the practical difficulty, almost the impossibility, of demonstrating that the electors would have cast their votes in a particular way, that is to say, that a substantial number of them would have cast their votes in favour of the rejected candidate, the fact that one of several candidates for an election had been kept out of the arena is by itself a very material consideration. Cases can easily be imagined where the most desirable candidate from the point of view of electors and the most formidable candidate from the point of view of the other candidates may have been wrongly kept out from seeking election. By keeping out such a desirable candidate, the officer rejecting the nomination paper may have prevented the electors from voting for the best candidate available. On the other hand, in the case of an improper acceptance of a nomination paper, proof may easily be forthcoming to demonstrate that the coming into the arena of an additional candidate has not had any effect on the election of the best candidate in the field. The conjecture therefore is permissible that the legislature realising the difference between the two classes of cases has given legislative sanction to the view by amending S. 100 by the Representation of the People (Second Amendment) Act, 27 of 1956, and by going to the length of providing that an improper rejection of any nomination paper is conclusive proof of the election being void. For the reasons aforesaid, in our opinion, the majority decision on the fourth issue is alsowe refused to go into that evidence for the simple reasons that this Court in an appeal by special leave does not ordinarily reopen findings of fact recorded by a competent tribunal. It must therefore be held that the Tribunal was justified in coming to the conclusion that the result of the election had been materially affected by the improper rejection of the nomination inS. 100 in terms provides that if the Tribunal was of the opinion, as it was in this case, that the result of the election had been materially affected by the improper rejection of the nomination paper, "The Tribunal shall declare the election to be wholly void". The election in this case was in respect of a double seat constituency and was one integral whole. If it had to be declared void, the Tribunal was justified in setting aside the election as a whole.