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

1. At the last general elections held on February 20, 1967, the appellant and ten others contested for a seat in the Madhya Pradesh Legislative Assembly from the Lahar Constituency No. 13. The first respondent secured 8, 904 votes; the appellant secured 6, 109 votes, and respondent No. 2 Heeralal Bahadur secured 4, 227 votes. (No argument was advanced before us which necessitate reference to the votes secured by the other candidates). Respondent No. 1, Sarjoo Prasad Tiwari who secured the highest number of votes was declared elected. The appellant Kamta Prasad Upadhyaya who secured the next largest number of votes, applied to the High Court of Madhya Pradesh under the Representation of the People Act 43 of 1951, for setting aside the election of respondent No. 1 on diverse grounds. It is necessary to refer to only one ground on which the appeal is argued before us.2. Respondent No. 2, Heeralal Bahadur was, it was the case of the appellant, disqualified to stand as a candidate for election under Article 19(1)(a) of the Constitution in that he held an office of profit under the Government of Madhya Pradesh other than an office described by the Legislature of the State by law as not disqualifying its holder, and since his nomination was erroneously accepted by the Returning Officer, the election of the returned candidate was liable to be set aside. Five issues were raised in respect of this contention. They wereWhether respondent No. 2 was in the service of the Government as a teacher in Primary School at Magroda, District Guna either on the date of the filing of the nomination papers or on the date of the scrutiny as alleged by the petitioner ?(b) Whether respondent No. 2 already submitted his resignation from Government service and was accepted on 7-1-1967 as alleged by respondent No. 1 ?(c) Whether respondent No. 2 held an office of profit under the Government of Madhya Pradesh and, therefore, was not qualified to contest the election to fill seat in question ?(d) Whether there has been improper acceptance of nomination paper of respondent No. 1 on this account as alleged ?(e) Whether the result of the election in so far as it concerns the returned candidate respondent No. 1 has been materially affected by such improper acceptance as alleged by the petitionerHigh Court on a consideration of the evidence bearing on the issues recorded answers in the affirmative on Issues No. 2 (a), (c) and (d), and on issue No. 2(b) the High Court recorded an answer "Accepted on April 1, 1967". The High Court recorded on Issue No. 2 (e) the answer "Not proved", and rejected the petition filed by the appellant.

Reasoning:
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