Holding

When the votes secured by a candidate whose nomination was improperly accepted are disproportionately larger than the margin between the winner and the runner‑up and form a substantial proportion of the winner’s votes, the result is deemed materially affected and the election is void.

Summary

In the 1979 Uttar Pradesh Vidhan Sabha election for a Scheduled Caste reserved seat, Jhilmit Ram was declared elected by a margin of 373 votes over Chhedi Ram. A third candidate, Moti Ram, whose caste status made him ineligible for the reserved constituency, had his nomination improperly accepted and secured 6,110 votes. The appellant challenged the election under Section 100(1)(d) of the Representation of the People Act, 1951, arguing that the result was materially affected by the improper acceptance. The Supreme Court held that when the votes of an improperly accepted candidate are disproportionately larger than the margin between the winner and the runner‑up and constitute a substantial proportion of the winner’s votes, a reasonable probability exists that the result was materially affected. Consequently, the burden of proof was deemed discharged and the election was declared void. The appeal was allowed, setting aside the election, with no costs awarded.

Issues considered

The improper acceptance of a nomination of a candidate not belonging to the Scheduled Caste reserved category can materially affect the election result under Section 100(1)(d) of the Representation of the People Act, 1951.
What is the burden and standard of proof required to establish that the result of an election has been materially affected by such improper acceptance?
How should the court assess material effect when the votes secured by the improperly accepted candidate exceed the margin between the elected candidate and the runner‑up?
Whether the evidence regarding Moti Ram's caste status suffices to deem his nomination improperly accepted.

Legislation cited

Indian Evidence Act, 1872
Representation of the People Act, 1951s. 100(1)(c), s. 100(1)(d)

Subjects

election lawRepresentation of the People Actmaterial effectimproper nominationreserved constituencyScheduled Castesburden of proofIndian Evidence ActSupreme Court of India

Judgment

.,
'.966

CHHEDI RAM
.'A
v.

JHII:.MiT RAM & OTHERS
•
December 5, 1983

[S. MURTAZA.FAZAL ALI, 0. CHINNAPPA REDDY AND
.. • E.S. VENKATARAMIAH, JJ.)
• Repmentation of the People Act, 195/-S, 100(/)(d)-lmpr~per acceptance
of nomin~tion--;-When could it be. said to materially affect the result of election?.
'
The appellant; the respondent and four· other candidates contested the
election to a legislative assembly fror:D a cons~ituency reserved ·ror Scheduled
Castes. While the respondent was declared elected, the appellant secured the
next highest numbcir of votes and the difference in the number of ·votes secured
by them was only .373. The appellant challenged the election of the respondent
·D on the ground that the result of the election had been mat.erially effected by the
improper acceptance of the nomination of a third candidate who had secured
6710 votes. The Election Tribunal arrived at the findiOg that the candidate· in
question was not a·member of the Scheduled Castes· and hepce is nomination
had been improperly accePted, but nevertheless, refused to set aside the election
"o.f the respondent on the ground thii.t the resulf of the election had not been
shown to have been ~aterially affected as a result of the improper acceptance
E of the nomination.

Allowing the appeal,

HELD: Under s. IOO(l)(d) of the Representation of the Penple Act,
-1951,. the election of a returned candidate shall be declared to ·be_ void if the·
High Court is of the opinion that the result of the election, in so far as it
con~rns the returned 'Candidate, has been materially affected by the improper
acceptance of any nomination and the. burden of establishing the same is on the
person impeaching the election: Where the candidate whose nomination was
imprope~Jy accepted has secured' a larger number of votes than the difference
between the number of vOtes secured by the successful candidate and the candi-
G date securing the next highest number of votes, there is a possibility that a
sufficient -number of votes actually cast for t~e candidate whose nomination·
was improperly accepted might have been cast for the candidate who Secured
the highest number of votes next to the successful candidate so as to upset the
result of the .election. In such a -situation, the answer to the question whether
the.result of the election could be said to have been materially affected must
H depend on the facts, circumstances and reasonable probabilities of the .case.
If the number df votes secured by the candidate whose nomination was. impro-
perly acc::epted is disproportionately 13.rge as compared with tlie diffCrence

.•
CHHEDl RAM v. llliLMIT RAM (Chinnappa Reddy, J.) 961
between the votes secured by the successful candidate and the candidate tsecur-
ing the n·ext highest number of.votes and if the votes secured by the candidate
whose nomination was improperly accepted bears a fairly high proportion to
A
the votes secured by the successful candidate, the reasonable probability is that
tho result of the election h8.s been materially affected and one may venture to
hold the fact as proved. [968 F-G; 969 D-F] .

Under the Evidence Act, a fact is 'said to be proved when after consi·
dering the matters before. it, the Court either believes it to exist or considers B
its existence so probable that a prudent man ought, under· the circumstances
of the particular case, to act upon the supposition. that· it exists. If having
a
regard to the facts and circu_mstances of case; the reaSonable probability is
~an one way, a court must not lay down an impossible standard of proof and
hold a fact as not proved. (969 G-H] .1

In the instant case, the candidate whose nomination was improperly
c
accepted had obtained U710 votes, that is, almost 20-times the· difference
b~tween the number of votes secured by the sllccessful candidate and the candi-
date securing the nexi highsst number of votes. Further, the number of votes
secured by the candidate Whose nomination was improperly accepted bore a
fairly high ·proportion to the number of votes secured by the successful candi-
date-it was a li.ttle over one-thir4. In such a situation the result of the election D
.may safely be said to have been affected. (969 H; 970 A-)l]

.' Vashist Narain Sharma v. Dev Chandra, rt955J S.C.R. 509; and
Samant N. Balakrishna v. George Fernandes, [1969} 3- S.C.R. 603; explained and.
distinguished.
E
CIVIL APPELLATE lURISDICTION Civil Appeal No. '688 of
1981.

From the Judgment and Order dated 5th January, 198! of the
Allahabad High Court.at Allahabad in Election P~tition No. 25 of . F
.. 1980.

~. S.C. Bir/a and R.L. Kuree/ for the Appellant.

Yogeshwar Prasad and Ms. Rani Chhabra for the Respondent
~0.1 .. G
.Pramod Swarup for Respondent No. 2.

The Judgment of the Court was delivered by ·
H
• CHINNAPPA REDDY, J. At the General Election. to the Uttar
Pradesh Vidhan Sabha held in 1979, Jhilmit Ram was elected froin
968 SIJPREME COIJRT REPORTS (1984] 1 s.c.tt.

the Jakhsuie Constituency reservea for the ·Scheduled Castes. He
A secured 17822 'votes. Chhedi Ram, the runner-up secured 17449
.vo'tes. Thus the difference be.tween the successful candidate and the
candidatjl who secured the next highest number of votes was 373
votes. There were fou~ other· caudldates of whom Mati Ram. secu-
. red 6110 votes. Chhedi Ram challenged the election of Jhilmii Ram
on the ground that Moti Ram was a Kahar by caste, not entitled to
B seek election from the reserved constituency, that his nominaiion had
been improperly'accepted and that the result of the election was
materially affected. The Election Tribunal found that Moti Ram
~as a Kahar b} ca;te and not a memb<ir of the · Scheduled .Castes.
"I.t rejected the evidence offered on behalf of Moti Ram that he was
a .Gond and not a Kahar and recorded a finding that · delibe.rate
attempts had been made to manufacture evidence to show that Moti
Ram was a Gond. The Tribunal also noticed'that Moti Ram him-
self was no.t prepared lo enter the witness box to· give evidence.
Havfo.g a rived at the finding that Moti Ram's nomination had been
improperly accepted, however., the Tribunal was 1iot prcP,ared to
D set aside the election of Jhilmit Ram as it took the view that the
result of the election had not been shown to have been materially
affected as a result o~ the improper acceptance of the nomination.
The election petition was, therefore, dismissed.· Chhe\ii Rani has
pteferred this. appeal.
E We are afraid the appeal has to be allowed. Under sec.
lOO(l)(d) of the Represerit,ation of the People.Act, 1951, the election
of a returned candidate shall be deC!ared to be void if the High Court
is of opinion that the result .of the election, in so· far as it' concerns
the returued candidate, has been materially affected by the improper
acceptance of any nomination. True, the burden of establishing that
F the result of the election has been materially affected ~s a result of ,,
the improper acceptance of a .nomination is on the person impeach·
ing the election. The burden is readily discharged if the nomination
which bas been improperly accepted was that of the successful candi-
date himself. On the other band, the burden is wholly incapable of
G being discharged if the candidate whose nomination was improperly
... accepted obtained a less number of votes than the difference between
the numb.er ?f votes secured by the successful candidate and the
· number of votes secured by the candidate who got the next highest
number of votes. In both these situations, the answers are ·obvious.
H
The complication arises only in cases where the candidate, whose
nomination Vias improperly accepted, has secured· a larger number
of votes than the difference between the number of votes secured by
cliliBDi RAM v. JHILMIT RAM ( Chinnappa Reddy, J.) 969
the. successful candidate and the number of votes got by the candidate
securing the next highest number of votes. The. complication is A
because of the possibility that a sufficient number of votes actually
cast for the candidate whose nomination was improperly accepted
.111ight have been cast for the candidate who secured the highest num·
ber of votes next to the successful candidate, so as to upset the result
of the election, but whether a sufficient number of voters would
B
have so done, would ordinarily remain a speculative possibility
oply. In this situation, the an~wer to the question whether the
result of the.election could be said to have been materially affected
must depend on the facts, circumstances and reasonable probabilities
of the case, particularly on the difference between the number of
• votes· secured by the successful candidate and the candidate securing c
. the next highest number of votes, as compared with the number of
votes secured by the candidate whose nomination was improperly
accepted and the proportion which the number of wasted votes (the
votes secured by the candidate whose nomination was improperly
accepted) bears to the. number of votes secured · by the succesofol
candidate. If the number of votes secured by, the .candidate whose D
nomination was rejected is not disproportionately large as compared
with the difference between the number of votes oecured by the
successful candidate and the candidate securing _the next highest
number of votes," it would be next to impossibility to conclude that
the result of t)le election has been materially affected. ·But, on the E
other hand, if the number of votes secured by the candidate whose
nomination was improperly accepted is disproportionately large as
compared with the difference, between the 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 F
to the votes secured by the successful. candidate, the reasonable prob-
ability is that the result of the. election has been materially affected and
one may venture to· hold .the fact as proved. Under the Indian Evid•
ence Act, a fact is said to be proved when after considering the matters
before it, the Court either belives it to exist or considers its existence • G
so probable that a prudent man ought, under the circumstances of the
' particular case, to act upon the supposition that it exists. If having
regard to the facts and circumstances of a case, the ·reasonable
probability is all one way, a court mnst not lay down· an impossible
standards of proof and hold a fact as not . proved. In the present H
.case, the candidate whose nomination was improperly accepted .bad
obtained 6,710 votes, that' is, almost 20 times the difference between
SUPREME COuRT REPORTS [i984J 1s.c.ll.
the number of votes secured by the successful . candidate and the
. candidate securing the next highest number of ~otes. Not inerely that. ·
A
The number of votes secured by the candidate whose nomination was
improperly accepted b~•e a fairly high proportion to the numtJer of
\_
votes secured by the successful candidate-it was a little over one·
third. Surely, in that situation, the result of the election may safely
be said to have been affected. ·.
B
The learned counsel for the respondents invited our attention to
the decisions of this court in Vashist Narain Sharma v. Dev Chandra
and Others('), and Samant N. Balakrishna v. George Fernandez ·and ·
Others, etc.(') In Vashist Narain case, the difference between the num•
•
c her of votes secured by the. successful candidate and the number of
votes secured by the candidate who got the next largest' number of
·votes was very nearly the same as the numt5er of votes secured by the
. candidate .whose nomination was improperly accepted. Unless it was
possible to say that all the wasted votes 'would have gone to the
candidate who secured the highest number of votes n<xt to the
D successful candidate, it was not possible to hold that the result of the
election had been materially affected. It was in those circumstances
that Ghulam Hasan, J. observed : ·
·)
"But we are riot prepared to hold tha't the mere fact
E ' that the wasted votes are greater than the margin of votes ·
between the returned candidate· and the candidate securing
the-next highest number·ofvotes must lead to the necess·
ary inference that the -result of the election ·has been
materially affected. That is a matter . which has to he
proved and the onus of proving it' lies upon the petitioner. .,.-
F 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
G
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
'·, IOO(l)(c) and hold without evidence- that the duty has
H been discharged. Should , the petitioner fail to adduce

(1) [1955] S.C.R. 509
• (2) [1969] 3 S.C.R. 603.
. CHHEDi RAM v. JHiLMiT RAM (Chinnoppa Reddy, J.)_ 971

1 satisfactory_ evidence to enable the Court to find in his
favour on this point, the inevitable result would be that
the Tribnnal would not interfere in his favour and would
allow the election to stand''.
A

We do agree with the observations of Ghulam Hasan, J. in the
context of the facts of that case. It does not, however, mean that B
whatever the number of wasted votes and whatever the margin of
difference between the number of votes secured. ·by ·the successful
candidate and tile number of votes secured by the next highest
candidate, the court would invariably hold that the result of the
election had not been materially affected. In an· appropriate case
having regard to the margin of difference between the ·votes secured
by the successful candidate . and· the candidate securing the next
highest number of votes and the proporation which such margin bears
to the wasted votes, it is permissible for the court to hold that the
burden of proving that the result of the election has. been materially
affected has been discharged. D
·In Samant [Ja/akrishna's case, the court observed;

"In our opinion the matter cannot be considered on
possibility. Vashist Narain's case in_sists on proof. If
the margin of votes were small something might be made of E
the points mentioned by Mr. Hethamalani. But the margin
is large and the number of votes earned by the remaining
candidates also sufficiently huge. There is no room,
therefore, for a reasonable judicial guess. The law ~equi.
· res proof. How fat that proof should go or what it
F
should contain is not provided by the Legislature. In
). Vashist's case the· provision was held to prescribe an
impossible burden. The law has however remained as
before. We are bound by the rulings of this Court and
must say that the burden has not been successfully
discharged", G
•
We do no! thinle that this case lays down any different principle
than what we have already said. On the other hand, the sentence
underlined by us indicates• that where the difference between the
number of votes secured by the successful· candidate and the H
number of votes secured by the highest candidate is marginal,· it
may be possible in the cirumstances of a case to hold that the
972 SUPRm,!B COURT REPORTS (19&4) 1 S.C.R.

A
burden has been discharged. We have already indicated our view
that in this case, the burden has certainly been discharged.

. An attemp was made by the learned counsel for the
i. <

respondents to dislodge the finding of the Election Tribu.nal that Moti
Ram was a Kahar and not a Gond. But having gone through the
B relevant evidence, we affirm the finding of the Election Tribunal and
.agree with the Election Tribunal that a crude attempt was . made to
.fabricate evidence that Moti Ram was a member of the Scheduled
Castes. In the circumstances,. the appeal ha~ to be allowed. We do
so but without ·costs. · ·' ·

c H.L.C.' Appeal allowed.

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