J. CHANDRASEKHARA RAOversusV. JAGAPATHI RAO AND NINE OTHERS

A                       J. CHANDRASEKHARA RAO
                                   v.
                  V. JAGAPATHI RAO AND NINE OTHERS

                               DECEMBER 18, 1992

B                   [A.M. AHMADI, M.M. PUNCHHI AND
                          YOGESHWAR DAYAL, JJ.]

           Election Law : Representation of the People Act, 1951-Section 100
     (J)(C), JOO(l)(d)(i), JOO(J)(d)(iv)-Election Petition-Court to decide on
C    Positive and Affinnative evidence-Not on speculation and suspicion-f'osi·
     tive and reliable evidence-Burden of proof on petitioner-Courts not to set
     aside the election on sunnises and conjectures-Probable distribution of
     wasted votes-Demonstrated pattern-Consideration of.

            The petitioner and Respondents 1 to 9 contested for an Assembly
D    seat. Respondent No. 1 won the election by securing 37248 votes whereas
     the petitioner secured 36821 votes and Respondent No. 2 secured 9569
     votes.

           The petitioner filed a Election Petition before the High Court chal-
E lenging the election of Respondent No. 1 on the grounds, namely, that
     Respondent No. 2 who was under 25 years of age and was not eligible to
     contest the ·election; that the difference in votes secured by the petitioner
     and Respondent No. 1 was only 427 and that the votes polled by Respon·
     dent No. 2 were more than 22 times the difference between the number of
     votes secured by the Respondent No. 1, the returned candidate, and his
F    nearest rival the petitioner, and that the result of the election in so far as
     it concerned the returned candida~e was materially affected by the non·
     compliance with the provisions of the Constitution of India and the
     Representation of the People Act, 1951.

G           The High Court rejected the contentions and dismissed the Election
     Petition.

           Being aggrieved by the High Court's decision the appellant
     preferred the present appeal.

·H         Dismissing the appeal, this Court
                                         -786
                          J. C. RAO   1·.   V.J. RAO                     787

       HELD : 1. A decision in the election petition can be given only on      A
positive and affirmative evidence and. not merely on speculation and
suspicion, however strong they are. [796-G]

      2. It is for the election petitioner to prove by positive and reliable
evidence that either improper acceptance of the nomination of the can-
didate or on account of the non-compliance of the provisions of the            B
Constitution or the Act, Rules or Order, etc. that the wasted votes would
have been distributed in such a manner among the remaining candidatt's
that any candidate other than the returned candidate would have polled
the highest number of votes. Such a burden of proof may be difficult, say
impossible, but the courts cannot set aside the election of the returned       c
candidate on surmises and conjectures unless establ.ished by positive
evidence that the election of the returned candidate has been materially
affected. (796-H; 797-A,B]

      Chhedi Ram v. Jhilmit Ram & Others, (1984) 1 SCR 966, V.ashist
Narain Shanna v. Dev Chandra and Others, (1955) S.C.R. 509, Paokai D
                                                        =
Haokip v. Rishang and others, AIR 1969 S.C. 663 (1969) 1 S.C.R. 637;
Sarnam Singh v. Pushpa Devi and others, (1988) Suppl. S.C.C. 65; Samant
N. Ba/akrishna, etc. v. George Fernandez and others etc., AIR 1969 S.C.1201,
Smt. Lata Devi (Mali) v. Harn Rajwar, AIR 1990 S.C. 19 and Shiv Charan
Singh v. Chandra Bhan Singh and others, AIR 1988 SC 637 (1988] 2 E=
S.C.R. 713, relied on.

      3. The demonstrated pattern of voting can be taken into considera-
tion for reaching the conclusion with regard to the probable distribution
of wasted votes among the validly nominated candidates. [797-C]
                                                                               F
     Paokai Haokip v. Rishang and others, AIR 1969 SC 663         =(1969] 1
S.C.R. 637, relied on.

   ·CIVIL APPELLATE JURISDICTION                       Civil Appeal No. 4115
(NCE) OF 1991.                                                                 G
     From the Judgment and Order dated 12.9.1991 of the Andhra
Pradesh High Court in Election Petition No. 6 of 1990.

     P.P. Rao, B. Rajeshwar Rao, Vimal Dave and Ms. Neelam Kalsi for
the Appellant.                                                                 H
    788                 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A        K. Madhava Reddy, D. Prakash Reddy, G. Prabhakar, Ms. Rani
    Chhabra (NP) and S.C. Patel (NP) for the Respondents.

          The Judgment of the Court was delivered by

          YOGESHWAR DAYAL, J. This is an appeal against the decision of
B   the learned Single Judge of the Andhra Pradesh High Court dated 12th
    September, 1991 whereby Election Petition No. 6 of 1990 filed by the
    appellant 'herein was dismissed.

         We find it convenient to refer to the parties as they were before the
    High Court.
c
           The petitioner and respondents 1 to 9 contested for membership of
    Andhra Pradesh Legislative Assembly from 254 Karimnagar Assemly con-
    stituency in the election which was held on 22nd November, 1989.

          Before the High Court the petitioner had taken various grounds but
D only one ground was urged before us by learned counsel for the petitioner.
           One of the grounds urged before the High Court was that the
    Returning Officer commited illegality in accepting the nomination paper
    of respondent No. 2 who was under 25 years of age and was not eligible
    to contest. He then pleaded that respondent No. 1 who was a winning
E   candidate secured 37248 votes whereas the petitioner secured 36821 votes
    and respondent No. 2 who was not eligible, secured 9568 votes. It was then
    submitted that the difference in votes secured by the petitioner and respon-
    dent No. 1 was only 427 and the Votes polled by respondent No. 2 were
    more than 22 times the difference between the number of votes secured by
F   the respondent No. 1 the returned candidate, and his nearest rival, the
    petitioner. It was further pleaded that the result of the election in so far as
    it concerned the returned candidate has been materially affected by the
    non-compliance with the provisions of the Constitution of India and the
    Representation of the People Act, 1951 (hereinafter referred to as 'the
G   Act') and the High Court may declare the election of the returned can-
    didate as void and to declare the petitioner as having been duly elected
    from the aforesaid constituency.

          The High Court· on consideration of the evidence led before it took
    the view that the second respondent appeared to be properly qualified on
H   the face of the electoral rolls and the nomination papers and since no
                    J.C. RAO v. V.J. RAO [DAYAL, J.]                      789

objection was raised to the acceptance of the nomination papers· by the· A
Returning Officer, it could not be said that there is any improper accep-
tance of any nomination paper under Section 100 (l)(d)(i) of the Act. The
High Court on consideration of evidence also took the view that respon-
dent No. 2 was less than 25 years of age on the date of scrutiny of
nomination papers and, therefore, was not qualified to contest the election. B
and it amounted to non-compliance with the provisions of the Constitution
and the Act within the meaning of Section 100 (1) (d) (iv) of the Act. After
giving this finding the High Court took the view that what is to be seen is
whether the result of the election of respondent No. 1 has been materially
affected by the non compliance with the provisions of the Constitution. The
High Court on cunsideration of evidence took the view that it is not so C
proved and consequently dismissed the Election Petition.

        Respondent No. 1 had filed his written statement and inter alia
pleaded : that the voting pattern and trends of the election demonstrated
that in the facts and circumstances of the case the presence of respondent
No. 2 in the contest or the votes polled by him do not in any way affect         D
the result of respondent No. 1. It was also submitted that the mere fact
that the margin of votes by which respondent No. 1 succeeded over the
petitioner is only 427 votes, it does not lead to necessary inference that the
result of the election has been materially affected. It was further pleaded
that it is not correct to say that by reason of respondent No. 2 polling more    E
than 22 times the margin of votes by which the respondent No. 1 succeeded
over the petitioner, the election result of respondent No. 1 has been
materially affected. It was asserted that the voting pattern clearly indicates
 that it was well nigh, impossible for the petitioner to have secured even a
small percentage of the votes polled by respondent No. 2 let alone a
substantial number of the same. It was submitted that in a multi-cornered        F
 contest the margins are unpredictable. In fact the respondent No. 2 took
away chunk of votes from the urban strong hold of respondent No. 1 while
the petitioner had no such disadvantage.

      The High Court noticed that in the Election Petition no mention was        G
made of the probable number of votes the petitioner would have got out
of the wasted votes except stating that the margin by which respondent No.
1 succeeded over the petitioner is 427 whereas respondent No. 2 secured
9568 votes which is more than 22 times the margin of votes by which
respondent No. 1 succeeded over the petitioner. The High Court also
noticed that the petitioner as P.W. 1 stated that if the nomination paper of     P.:
    790                 SUPREME COURT REPORTS (1992] SUPP. 3 S.~.R.

A   respondent No. 2 was not accepted he would have polled almost all the
    votes secured by respondent No. 2 as the workers of respondent No. 2 were
    in his favour and the acceptance of the nomination paper of respondent
    No. 2 materially 'affected his chances in the election. P.W. 2, respondent
    No. 2 in the Election Petition, has stated that there were general expecta-
    tion that respondent No. 1 was likely to win 1989 elections. He did not say
B   how his votes would have been distributed bet.ween the petitioner and
    respondent No. 1. The High Court noticed that this is all the evidence
    adduced by the petitioner to prove that the election of respondent No. 1
    has been materially affected.

          On the other hand the High Court noticed that respondent No. 2
C secured 8269 valid votes from urban areas and 1293 valid votes from rural
    areas and both the respondent No. 1 and respondent No. 2 have secured
    their votes mainly from urban areas while the petitioner secured bulk of
    his votes from rural areas, since the election petitioner was not so popular
    in urban areas and therefore the respondent No. 1 would have secured
    more number of wasted votes of respondent No. 2 than the petitioner:. The
D   High Court on consideration of the entire material took the view that
    having regard to demonstrated pattern of voting as could be seen from Ext.
    B. 7, the final result sheet, more of the wasted votes would have gone to
    respondent No. l.

          Mr. P.P. Rao, _learned counsel for the petitioner, relied on the
E   decision of this Court in Chhedi Ram v. Jhilmit Ram & others, [1984] 1
    S.C.R. 966, particularly on the following observation:; :

            "If the number of votes secured by the candidate whose
            nomination was improperly accepted is disproportionately
F           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 improper-
            ly accepted bears a. fairly high proportion to the votes
            secured by the successful candidate, the reasonable prob-
G           ability is that the result of the election has been lliateri~lly
            affected and one may venture to hold the fact as proved.

                Under the Evidence Act, a fact to be proved when
            after considering the matters before it, the Court either
H           believes it to exist or considers its existence so probable
                   J.C. RAU v. V.J. RAO [DAYAL, J.J                      791

        that a prudent man ought, under the circumstances of the                A
        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 must not
        lay down an impossible standard of proof and hold a fact
        as not proved.
                                                                                B
            In the instant case, the candidate whose nomination
        was improperly accepted had obtained 6710 votes, that is,
        almost 20-times the difference between the number of
        votes secured by the successful candidate and the can-
        didate securing the next highest number of votes. Further,              c
        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 success-
        ful candidate it was a little over one-third. In such a
        situation the result of the election may safely be said to
        have been affected.                                                     D

      It appears there was no evidence as to the trend of voting in that
case and the learned Judges did not agree with the judgment of this Court
in Vashist Narain Shanna v. Dev Chandra and others, [19551 S.C.R. 509.
                                                                                E
      Tlie words the result of the election has been materially affected
came up for consideration before this Court in the aforesaid case of Vashist
Narain Shamia. In that case Vashist Narain Shanna appellant therein
secured 12868 votes whereas Vireshwar Nath Rai secured 10996 votes. The
fourth respondent, whose nomination was held to be improperly accepted
secured 1983 votes. It was held that the words the result of the election has   F
been materially affected in Section 100 (l)(c) of the Act prior to 1956
amendment indicate :

        "that the result should not be judged by the mere increase
        or decrease in the total number of votes secured by the
        returned candidate but by proof of the fact that the wasted             G
        votes would have been distributed in such a manner be-
        tween the contesting candidates as would have brought
        about the defeat of the returned candidate."

         It was further held :                                                  H
    792                 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A           "But we are not prepared to hold that the mere fact that
            the wasted votes are greater than the margin of votes
            between 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
B           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 or
c           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 lOO(l)(c) and hold without
            evidence that the duty has been discharg'!d. Should the
D
            petitioner fail to adduce satisfactory evidence to enable the
            Court to find in his favour on the point, the inevitable result
            would be that the Tribunal would not interfere in his favour
            and would allow the election to stand."

E   Accordingly the Tribunal's order was set aside and the result of the
    successful candidate was upheld.

           The next case, in which the question of burden of proving that the
    result of election was materially affected came up for consideration, is
F   Paokai Haokip v. Rishang and others, AIR 1969 S.C. 663={1969] 1 S.C.R.
    637, and it accepted the principles laid down in Vashist Narain Slzam1a's
    case. It was held in tliat case thus :

            "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
G           votes would have gone to one or the other on some sup-
            posed or imaginary ground. The question is one of fact and
            has to be proved by the positive evidence. If the petitioner
           ·is unable to adduce evidence in a case such as the present,
            the only inescapable cor..clusion to which the Tribunal can
H           come is that the burden is not discharged and that the
                    J. C. RAO v. VJ. RAO [DAYAL, J.]                         793

        election must stand.                                                       A
In that case the successful candidate received 30403 votes as against the
next candidate who received 28862 votes and thus secured a majority of
1541. The candidate who secured the second largest votes i.e. 28862 filed
the election petition on the ground, that the changing of polling centres
which was duly notified earlier without complying the provisions of the Act B
and the Rules, has materially affected the result of the returned candidate.
It was held that the burden is upon the election petitioner to show affirm-
atively that the result of the election has been materially affected. It has to
be seen in every case whether this burden has bee11. successfully discharged
by the election petitioner by demonstrating to the Court either positively         c
or affirmatively. that the poll would have gone against the returned can-
didate if the breach of the rules had not occurred and the polling booths
had not been changed. It was observed, thus :

        "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
                                                                                   D
        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                        E
        successfully discharged by the election petitioner or not."

        It was further held, thus :

        "It is notorious that statistics can prove any thing and made              F
        to lie for either case, it is open to us in reaching our
        conclusion to pay attention to the demonstrated pattern of
        voting. Having done so, we are quite satisfied that 1541
        vote.s could not, by any reasonable guess, have been taken
        off from the lead of the returned candidate so as to make
        the election petitioner successful."                                       G

Thus this Court has taken into consideration the demonstrated pattern of
voting in arriving at the conclusion that the election petitioner would not
have taken any of the votes from the lead of the returned candidate in a
given case.                                                                        H-
    794                 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A         In Samam Singh v. Pushpa Devi and others, [1988] Supp. S.C.C. 65,
  · the successful candidate, first respondent, secured 23006 votes and the
    second respondent secured 20735 votes. The difference between the votes
    secured by the first and the second respondent was 2271. That the nomina-
    tion of the eighth respondent, who secured 3606 votes i.e. more than the
    difference of votes between the first and the second respondent, was
B wrongfully accepted. This Court observed as follows:-

            "The appellant or any other party had not placed satisfac-
            tory evidence to reach the conclusion that all or a sufficient
            number of wasted votes which had been cast in favour of
c           respondent 8 would have gone in favour of respondent 2,
            had respondent 8 not been one of the candidates at the
            election."

    After referring to the decisions in the cases of Vashist Narain Shanna
D (Supra), Samant N. Balakrishna, etc. v. George Fernandez and others etc.,
    AIR 1969 S.C. 1201 and Smt. Lata Devi (Mali) v. Harn Rajwar, AIR 1990
    S.C. 19 it was held that having_ regard to the facts of the case it was not
    possible to hold that the appellant has established that the result of the
    election of the returned candidate has been materially affected. It was
    observed as follows:-
E
            "In our opinion the matter cannot be considered on pos-
            :;ibility. Vashist Narain 's case insists on proof. If the margin
            of votes was small something might be made of the points
            mentioned by Mr. J ethmalani. But the margin is large and
                                                                                  ..
F           the number of votes earned by the remaining candidates
            also sufficiently huge, there is no· room, therefore, for a
            reasonable judicial guess. The law requires proof. How far
            that proof should or what it should contain is not provided
            by the legislature. In Vashist's case [1955] 1 S.C.R. 509=
            AIR 1954 S.C. 513 and in Inayatullah Khan v. Diwancltand
G           Mahajan, 15 ELR 219 at 235-36 (MP), the provision was
            held-to prescribe an impossible burden. The law has how-
            ever remained as before. We are bound by the rulings of
            this Court and must say that the burden has not been
            successfully discharged. We cannot overlook the rulings of
H           this Court and follow the English rulings cited to us."
                    J.C. RAO    1·.   V.J. RAO [DAYAL. J.j                 795

       In Shiv Charan Singh v. Chandra Bhan Singh and others, AIR 1988           A
SC 637 = j1988J 2 S.C.R. 713 the Supreme Court again considered the
question of burden of proof under Section 100( 1)( d)(i) of the Act. In the
said case Shiv Charan Singh was elected having secured 21443 votes. The
next highest votes secured by Kanhaiya Lal was 17341. Roshan Lal secured
16345 votes. Contending that the nomination paper of Kanhaiya Lal was
improperly accepted by the Returning Officer, election petition was filed        8
questioning the election of Shiv Charan Singh. The High Court held,
relying on the decision of Supreme Court in Cheddi Ram's case (Supra)
since the wasted votes are 17341 whereas the difference between Shiv
Charan Singh and Roshan Lal was 4497, that the result of the election was
materially affected in view of the margin of difference between Shiv Charan      C
Singh and Roshan Lal and votes secured by Kanhaiya Lal. In appeal the
Supreme Court reversed the said judgment and held that since the election
petitioner failed to prove that the election was materially affected the
election cannot be declared as void. It was held :

                                                                                 D
         "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 im-
         proper 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                E
         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 ac-
       . cepted would have been distributed in such a manner                     F
         amongst the remaining candidates that some other can-
         didate (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                 G
         wrongly accepted in the election contest, any other can-
         didate (other than the returned candidate) would have
         polled the majority of valid votes. In the absence of any
         such proof the result cannot he held to have hecn matcrially
         affected. The burden to pron: this material effect i~ dif{icult         H
    796                 SUPREME COURT REPORTS {1992] SUPP. 3 S.C.R.

A           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, however difficult it may be, is
            discharged, the election cannot be declared void. The
            difficulty of proving the material effect was expressly noted
B           by this Court in Vashist Narain Sharma's, AIR 1954 SC 513
            and Paokai Haokip, AIR 1969 SC 663 cases and the Court
            observed that the difficulty could be resolved by the Legis-
            lature and not by the Courts. Since then the Act has been
            amended several times, but Parliament has not altered the
c           burden of proof placed on the election petitioner under S.
            100 (1)( d) 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
D           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
E           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."

          It was held that the decision in Cheddi Ram's case (supra) does not
F   overrule the earlier decisions. It was also observed that the decision in
    Cheddi Ram's case rests on its own facts.

          A decision in the election petition can be given only on the positive
    and affirmative evidence and not merely on speculation and suspicion,
G   however, strong they are.Jn the instance case there is no such positive and
    affirmative evidence.

           Thus it can be seen from all the aforesaid decisions of this Court that
    it is for the election petitioner to prove by positive and reliable evidence
H   that either improper acceptance of the nomination of the candidate or on
                   J.C. RAO v. V.J. RAO [DAYAL, J.J                   797

account of the non-compliance of the provisions of the Constitution or the A
Act, Rules or orders etc. that the wasted votes would have been distributed
in such a manner among the remaining candidates that any candidate other
than the returned candidate would have polled the highest number of
valuable votes. Such a burden of proof may be difficult, say impossible, but
the Courts cannot set aside the election of the returned candidate on
surmises and conjectures unless established by positive evidence that the
                                                                             B
election of the returned candidate has been materially affected.

      We have already noticed the fact that the High Court had accepted
the evidence of respondent No. 1 as to the trend of voting. No argument
was advanced before us challenging this finding. The demonstrated pattern    C
of voting can be taken into consideration for reaching the conclusion with
regard to the probable distribution of wasted votes among the validly
nominated candidates as laid down by Hidayatullah, C.J. in Paokai
Haokip's case (supra).

     In view of these facts we have no option but to dismiss the appeal.     D
The same is accordingly dismissed with costs.

V.M.                                                   Appeal dismissed.