Holding

The election of the returned candidate cannot be declared void unless the petitioner positively proves that the improper acceptance of a nomination materially affected the result, which was not done here.

Summary

In the 1985 Rajasthan Legislative Assembly election for the Karauli constituency, Shiv Charan Singh was declared the winner. Two electors challenged his election, alleging that the Returning Officer had improperly accepted the nomination of Kanhaiya Lal, who was under 25 and thus ineligible under Art. 173(b) of the Constitution. The Rajasthan High Court held that the improper acceptance materially affected the result because the margin between Singh and the runner‑up was 4,497 votes while Lal had secured 17,841 votes, and consequently declared Singh's election void. On appeal, the Supreme Court held that the petitioners had not discharged the statutory burden of proving that the improper acceptance actually altered the outcome; mere conjecture or speculation was insufficient. The Court reiterated that the burden of proving material effect lies on the election petitioner and that an election can be set aside only on positive, reliable evidence. Accordingly, the Supreme Court set aside the High Court’s order, upheld Singh’s election, and dismissed the petitions.

Issues considered

Whether the improper acceptance of a nomination paper of an ineligible candidate automatically voids the election of the returned candidate.
Whether the result of the election was materially affected by the improper acceptance of the nomination.
Who bears the burden of proving material effect under Section 100(1)(d)(i) of the Representation of the People Act, 1951.
Whether speculation or conjecture can satisfy the burden of proof.

Legislation cited

Representation of the People Act, 1951s. 100(1)(d)(i), s. 100(l)(c), s. 80

Subjects

Representation of the People ActElection petitionImproper acceptance of nominationMaterial effectBurden of proofSpeculationVoid electionLegislative Assembly

Judgment

SHIV CHARAN SINGH S/o SHRI ANGAD SINGH A
v.
CHANDRA BHAN SINGH S/o SHRI MAHAVIR
SINGH & ORS.

JANUARY 19, 1988
B
[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.)

Representation of the People Act, 1951: Section lOO(d)(i)-
Election-Improper acceptance of nomination paper of a contesting
candidate-Result of election of returned candidate-Whether mate-
rially affected-Burden of proof on election petitioner-Whether elec- C
tion can be declared void on surmises and conjectures.

The validity of the appellant's election to the Legislative Assembly
was challenged by two electors, Respondent Nos. I and 2, on the gronnd
that improper acceptance by the Returning Officer, of the nomination
paper of one of the contesting candidates who was not qualified to D
contest the election under Art. 173(b) of the Constitution, bad mate-
rially affected the resnlt of the election of the returned candidate.

The appellant contested the election petitions, contending that
there was no Improper acceptance of nomination paper of the candidate
in question and that the appellant's election was not materially affected. E

The High Court held that there was Improper acceptance of the

- nomination paper, as the candidate in question was not competent to
contest election for the reason that be was below 25 years of age. It also
held that the election of the appellant was materially affected, because
there was a difference of only 4497 votes between the votes polled by the F
.~ppellant and the next unsuccessful candidate and if the candidate
· whose nomination paper bad been Improperly accepted had not con-
! tested, the votes polled by him would have gone in favour of the next
unsuccessful candidate and other candidates, in which case the next
unsuccessful candidate could have polled the majority of valid votes. It
accordingly declared the appellant's election void. G

In the appeals before this Court it was contendeil on behalf of the
appellant that the finding recorded by the High Court that the impro-
per acceptance of the nomination paper of the candidate In question bad
materially affected the result of the appellant's election was based on
conj.ectures and surmises and not on any legal evidence and that none of H

713
714 SUPREME COURT REPORTS [1988] 2 S.C.R.

A th.e two election petitioners had produced ariy cogent and reliable evi-
dence to discharge the burden that the result of the election was mate-
rially affected on account of improper acceptance of the nomination
paper of the candidate in question.

On behalf of the respondents, it was urged that on the material on
B record and having regard to the number of votes polled by the candi-
date whose nomination was improperly accepted and the difference
between the votes polled by the appellant and the next unsuccessful
candidate, the findings recorded by the High Court were sustainable in
law and the same were in accordance with the law laid down by this
Court, in Chhedi Ram v. Jhilmit Ram & Ors., [1984] t SCR 966.
c Allowing the appeals,

HELD: l. The election petitioners have failed to prove that
the result of the election of the appellant was materially affected on
the ground of improper acceptance of nomination paper. Therefore,
D the election of the returned : candidate could not be declared
void. [727C-D I

2. t Improper acceptance of nomination paper of any contesting
candidate (other than the contesting candidate) does not ipso facto ren-
der the election· of the returned candidate void. The election can be
E declared void only if it is found that the result of the election of the
returned ·candidate was m~terially affected on the ground of such
improper acceptance. The burden of proving the material effect on the
result of ele'ction is always on th..- election-petitioner challenging the
validity of the election of the returned candidate. Unless this burden is -"
-
,_

discharged by the election petitioner the result of the returned candi,:_,
F date cannot he declared void. [719F-H] - \

2. 2 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 accepted would have been distributed in such a manner
amongst the remaining candidates that some other candidates (other
G than the returned candidate) would have polled the highest number of
valid votes. In the absence of any such proof, the result cannot be held
to have been materially affected. [723C-D]

The burden to prove this material effect is difficult and many
times it is almost impossible to produce the requisite proof. But the
H difficulty in proving this fact does not alter the position of law. The
r SHIV CHARAN SINGH v. CHANDRA BHAN SINGH 715

-{ legislative intent is clear that unless the burden howsoever difficult it A
may be, is discharged, the election cannot be declared void. [719G-HI

2.3 It is not permissible in law to avoid the election of ·the
returned candidate on speculations or conjectures relating to the man-
ner in. which the wasted votes would have been distributed amongst the
remaining validly nominated candidates. [723F] B

Legislative' intent is apparent that the harsh and difficult burden
of proving material effect on the result of the election has to be dis-
charged by the person challenging the election and the Courts cannot
speculate on the question. In the absence of positive proof of material
effect on the result of the election of the returned candidate, the election C
must be allowed to stand and the Court should not interfere with the
election on speculation and conjectures. [723F ·G I

Casting of votes by electors depends upon several factors and it is
not possible to forecast or guess as to how and in what manner the
voters would have exercised their choice in the absence of the improp· D
erly nominated candidate. No inference on the basis of circumstances
can successfully be drawn. [7250-E]

. · The Courts are m--.,quipped to speculate as to how the voters
y could· have exercised their right of vote in the absence of improperly
nominated candidate. Any speculation made by the Court in this respect E
would be arbitrary and contrary to the democratic principles. [725B-C I
L
In the instant case, the election petitioners had failed to discharge
• "' the burden of proving the fact that the result of the election of the
r- .,.-,..._appellant had been materially by reason of improper acceptance of the
·, nomination paper of the candidate in question. In the absence of any F
f positive evidence provided by the election petitioners, it was not open to
the High Court to record fmdings that the result of the election was
materially affected. There were l l contesting candidates. If the candi·
date whose nomination paper had been improperly accepted was not in
the election contest, it is difficult to say in what proportion the voters
"' ~ who had voted for him would have voted for the remaining candidates. G
Therefore, the result of the returned candidate co~ld not be declared
Y void on the basis of surmises and conjectures. l724E; 725E-HI
l'ashist Narain Sharma v. Dev Chandra and others, [1955] SCR
509 and Paokai Haokip v. Rishang & Ors., 11969] l SCR 637, relied
on. H
716 SUPREME COURT REPORTS [1988] 2 S.C.R.

A Chhedi Ram v. Jhilmit Ram 2 Others, [1984] t SCR 966 disting-
uished and explained.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
4132 4133 (NCE) of 1986.

B From the Judgment and Order dated 22.10.1986 of the Rajas-
than High Court in S.B. Election Petition Nos. 1 and 9 of 1985.
1
N.M.Ghatate, B.R. Dutta and S.V. Deshpande for the Appel- l'
lant.

Dr. Y.S. Chitale, M.R. Calla and Jitendra Sharma for the
c Respondents.

The Judgment of the Court was delivered by

SINGH,J. These two appeals under Section 116-A of the Rep-
D resentation of the People Act, 1951 (hereinafter referred to as the Act)
are directed against the judgment and order of the High Court of ,_,,.
Rajasthan at Jaipur dated 22nd October 1986 setting aside the appel-
lant's election to the Legislative Assembly of the State of Rajasthan.
Election to the Rajasthan Legislative Assembly Constituency No. (80
Karauli) was held in 1985. ·The appellant and 10 other candidates
E contested the election from the aforesaid assembly constituency. The 'r
Returning Officer declared the .appellant duly elected on his having
obtained majority of valid votes. Chandra Bhan Singh, Respondent No.
1, filed Election Petition No. 1 of 1985 as an elector and another •
Election Petition No. 9 of 1985 was filed by Mukand Ram, Respon- "-
dent No. 2, also an elector before the High Court of Rajasthan under
F Section 80 of the Act, c:hallenging the validity of the appellant's el&</"*"'\
tion to the legislative assembly on the ground that Kanhaiya Lal a t
contesting candidate was not qualified to contest election under Arti-
cle 173(b) of the Constitution as he was below 25 years of age on the
date of scrutiny of nomination papers and his nomination paper was
improperly accepted by the Returning Officer which materially affec-
G ted the result of the election of the returned candidate. The appellant ~ '
appeared and contested both the election petitions, and pleaded
before the High Court the Kanhaiya Lal was qualified to be a candi- ·y
date at the election as he had completed 25 years of age .on the date of
scrutiny of nomination papers and there was no improper acceptance
of his nomination paper. He further pleaded that in any view, his
H election was not materially affected by the acceptance of Kanhaiya
SHIV CHARAN SINGH v. CHANDRA BHAN SINGH (SINGH, J.] 717

Lal's nomination paper. Both the election petitions were consolidated A
and tried jointly by the High Court. The issues framed were almost
identical in the two election petitions and the election petitioners and
the appellant produced evidence in support of their cases before the
High Court. The High Court by its order dated 22nd October, 1986
held that Kanhaiya Lal was not qualified to be a candidate as he had B
not completed 25 years of age and that his nomination paper was
improperly accepted by the Returning Officer. The High Court further
held that since the difference between the votes polled by the appel-
lant and Roshan Lal an unsuccessful candidate who had obtained the
next highest votes was only 4497 votes, the result of the election was
materially affected. On these findings the High Court" declared the
appellant's election void and directed the Election Commission to hold C
fresh election.

Learned counsel for the appellant raised only one submission
before us in challenging the correctness of the order of the High Court.
He urged that the finding recorded by the High Court that the impro- D
per acceptance of the nomination paper of Kanhaiya Lal had mate-
rially affected the result of appellant's election was based on conjec-
tures and surmises and not on any legal evidence. Learned counsel
further submitted that none of the two election petitioners had pro-
duced any cogent and reliable evidence to discharge the burden that
y the result of the election was materially affected on account of impro- E
per acceptance of the nomination paper of Kanhaiya Lal but on the
other hand the appellant had produced large number of witnesses in
support of his case, but the High Court had failed to consider the
evidence of those witnesses. Dr. Chitale appearing on behalf of the
Respondents urged that on the material on record and having regard
·~~to the number of votes polled by Kanhaiya Lal and the difference F
between the votes polled by the appellant and the next unsuccessful
candidate Roshan Lal the findings recorded by the High Court are
sustainable in law and the same are in accordance with the law laid
down by this Court in Chhedi Ram v. Jhilmit Ram & Others., [1984) 1
SCR966.
G
•'
In all eleven candidates contested the election. After counting, it
was found that the total number of votes polled were 60815 out of
which 821 votes were rejected being invalid by the Returning Officer.
Thus the total number of valid votes were 59994. The total valid·
number of votes polled by each of the candidates was as under: H
718 SUPREME COURT REPORTS [1988] 2 S.C.R.

1. Shiv Charan Singh (appellant) 21443
A
2. Kanhaiya Lal. 17341
3. Asphak. 275
4. Narayan. 1310
5. Prahl ad 252
6. Pu ran Chandra Sharma. 1308
B 7. Mana Lal 198
8. Ram Swaroop. 102
9. Roshan Lal. 16946
10. Samanta. 271
11. Heera Lal 40.

The High Court has held that Kanhaiya Lal's nomination paper was
c improperly accepted, as he was not competent to contest the election
for the reason of his being below 25 years of age. Since there was
difference of only 4497 votes between the votes polled by the appellant
and the next unsuccessful candidate Roshan Lal who had polled 16946
votes the High Court held that if Kanhaiya Lal had not contested the
D election the aforesaid number of votes polled by him could have gone
in favour of Roshan Lal aild other candidates, as a result of which
Roshan Lal would have pol!ed,the majority of valid votes. In this view
the High Court concluded that the result of the appellant's election
was materially affected and iL accordingly declared the appellant's
election void. Since the learned counsel for the appellant did not
E challenge the finding recorded by the High Court that Kanhaiya Lal
was not qualified to be a candidate on the date of his nomination as he
was below 25 years of age and his nomination paper was improperly
accepted by the Returning Officer the said finding must be accepted as
correct. The only question which survives for consideration is whether
improper acceptance of Kanhaiya Lal's nomination paper materially ~
F affected the result of the appellant's election. - ·\

Section 100 confers power on the High Court to declare the
election of the returned candidate void if the grounds set out therein
are made out. Section 100 ( 1) relevant for our purpose is as under:

G "100. Grounds for declaring election to be void.-(1) Sub-
ject to the provisions of sub-section (2) if the High Court is
of opinion.

(a) that on the date of his election a returned candidate
was not qualified, or was disqualified to be chosen to fill
H the seat under the Constitution or this Act or the Govern-
SH!V CHARAN SINGH v. CHANDRA BHAN SINGH (SINGH, J.] 719

i ment of Union Territories Act, 1963 (20of1963) or A
). '( (b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other
person with the consent of a returned candidate or his elec-
tion agent; or
B

l} (c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a
• returned candidate, has been materially affected:

·\ (i) by the improper acceptance of any nomination, or
c
~ (ii) by any corrupt practice committed in the interests of
the returned candidate by an agent other than his election
agent or

(iii) by the improper reception, refu~al or rejection of any D
'" vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Con-
stitution or of this Act or of any rules or orders made under
y this Act,
E
the High Court shall declare the election of the returned
candidate to be void."

'"" Section lOO(l)(d)(i) provides for setting aside the election of the
v·'l',__returned candidate on the ground of improper acceptance of any nomi-
1 nation paper provided the result of the election of the returned candi- F
I date is materially affected by reason of such improper acceptance of
nomination of a candidate other than the returned candidate. Impro-
per acceptance of nomination paper of any contesting candidate (other
than the contesting candidate) does not ipso facto render the election
of the returned candidate void. The election can be declared void only
if it is found that the result of the election of the returned candidate G
was materially affected on the ground of such improper acceptance.
The burden of proving the material effect on the result of election is
always on the election-petitioner challenging the validity of the elec-
tion of the returned candidate. Unless this burden is discharged by the
·_ election petitioner the result of the returned candidate cannot be
declared void. H
720 SUPREME COURT REPORTS I1988] 2 S.C.R,

A The question as to how and in what manner the burden of Prov- )..-
ing that the result of election was materially affected should be dis-
charged is a vexed question which has been considered by this Court in
a number of cases. In the leading case of Vashist Narain Sharma v. Dev
Chandra and others, I1955] SCR 509 this Court considered this ques-
tion at length. In that case the nomination paper of one Dudh Nath a
B contesting candidate who had polled 1983 votes was found to have
been improperly accepted. The returned candidate had polled 12860
votes while Vireshwar Nath Rai had polled 10996 votes being the next
highest number of votes. There was thus difference of 1864 votes bet-
ween the votes polled by the returned candidate and the next unsuc- •
cessful candidate. The Election Tribunal set aside the election of the
returned candidate on the finding that improper acceptance of the
c nomination paper of Dudh Nath had materially affected the result of
the election. This Court set aside the order of the Tribunal on the
ground that the election petitioner had failed to discharge the burden
of proving that the result of the election liad been materially affected.
The Court observed as under:
D
"But we are not prepared to hold that the mere fact that ,__..
the wasted votes are greater than the margin of votes bet-
ween the returned candidate and the candidate securing
the next highest number of votes must lead tc the necessary
inference that the result of the election has been materially Y
E affected. That is a matter which has to be proved and the
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 of
F which proportion of the votes will go to one or the other~·
the candidates. While it must be recognised that the peti- \
tioner 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 discharged. Should the petitioner fail to
G adduce satisfactory evidence to enable the Court to find in f. •
his favour on this point, the inevitable result would be that
the Tribunal would not interfere in his favour and would "f'
allow the election to stand."

Section 100 (l)(c) of the Act as it stood in 1952 was in pari
1I materia with the present Section lOO(l)(d)(l) of the Act. The
-{ SHN CHARAN SINGH v. CHANDRA BHAN SINGH [SINGH, J.) 721

interpretation of Section 100 ( 1)(c) of the Act as given by the Court in A
' ,,. Vashist Narain Sharma's, case fully applies to the interpretation of
Section lOO(l)(d)(l) of the Act. In Vashist Narain Sharma's, case this
Court has categorically held that the result of the election of the
returned candidate cannot be materially affected merely for the
reason that the number of votes polled by the candidate whose nomi-
\ nation paper was improperly accepted was greater than the margin of B
votes polled by the returned candidate and the candidate securing the
4
" next highest number of votes, because it could not be predicated in
what manner or proportion the voters would have exercised their
0 choice in the absence of the improperly nominated candidate from the
.- ~ election contest. Proceeding further the Court considered the question
\
whether any speculation, or conjecture could be made in a case where C
the number of votes secured by the candidate whose nomination paper
was improperly accepted was higher than the difference between the
votes polled by the returned candidate and the candidate who may
have polled the next highest number of votes. The Court observed that
in such a case it was impossible to foresee what the result would have
been if the improperly nominated candidate had not been in the field. D
Since it was not possible to anticipate the result, the election petitioner
· must discharge the burden of proving that fact, and on his failure to
prove that fact the election of the returned candidate must be allowed
to stand. Then the question arose as to how and in what manner the
burden could be discharged by the election petitioner. On behalf of
election petitioner an attempt had been made to discharge burden by E
producing a number of electors before the Tribunal who had stated
that all or some of the votes would have gone to the candidate who had
polled the next highest number of votes in the absence of the improp-
erly nominated candidate and he would have polled majority of valid
~tes. The Court held that the statement of the witnesses as to in what
t manner votes would have been distributed among the remaining con-
testing candidates could not be relied upon in determining the ques-
F

tion of material effect on the election of the returned candidate. The
Court observed:

+ J "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 positive evidence. If the petitioner is
unable to adduce evidence in a case such as the present, the
only inescapable conclusion to which the Tribunal can come
is that the burden is not discharged and that the election must H
722 SUPREME COURT REPORTS [1988] 2 S.C.R.

stand. Such result may operate harshly upon the petitioner
A
seeking to set aside the election on the ground of improper
acceptance of a nomination paper, but neither the Tri·
bunal, nor this Court is concerned with the inconvenience
resulting from the operation of the law. How this state of
things can be remedied is a matter entirely for the Legislature
B to consider."
(Underlining by us)

In Paokai Haokip v. Rishang & Ors., [1969] 1 SCR 637 the
Judicial Commissioner Manipur had set aside the election of the
returned candidate to Lok Sabha on the ground that there was gross t , ,
-
violation of the Act and the Rules framed thereunder in Conducting the
c election as a result of which the result of the election was materially
affected under Section lOO(l)(d)(iv) of the Act on the findings that on
the polling date a number of polling centres were changed without
notice to voters and there was firing and riots at some polling stations,
as a result of which a number of voters could not exercise their right to
D vote. In rendering the aforesaid findings the Judicial Commissioner had
placed reliance upon the statement of witnesses who had testified before
the Tribunal that if they had opportunity to cast their votes, they would
have voted for the unsuccessful candidate. This Court, placing reliance
on the decision in Vas hist Narain Sharma' s case held that the statement
of witnesses could not be taken at their word and it was a surmise and
E anybody's guess as to how those people, who did not vote, would have
actually voted. Then the question arose if witnesses could not be relied
upon, in what manner the election petitioner, could discharge the
burden. Referring to the decision in Vashist Narain Sharma's case the ..,
Court observed as under:

F "How he has to prove it has already been stated by th~
Court and applying that test, we find that he has signific·
antly failed in his attempt and therefore the election of the
returned candidate could not be avoided. 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 it. It is for the Legislature
G 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 successfully discharged by the
election petitioner or not. We are satisfied that in this case
H this burden has not been discharged."
(Underlining by us)
SHIV CHARAN SINGH v. CHANDRA BHAN SINGH [SINGH, J.[ 723

We are _in respectful agreement with the view taken by this Court A
in the aforesaid decisions. The election of a returned candidate cannot
be declared void on the ground of improper 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
candidate materially affected the result of the election of the returned
candidate. The result of the election can be affected only on the proof B
that the votes polled by the candidate whose nomination paper had
wrongly been accepted would have been distributed in such a manner
amongst the remaining candidates that some other candidate (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 C
in the absence of the candidate whose nomination paper was wrongly
accepted in the election contest, any other candidate (other than the
returned candidate) would have polled the majority of valid votes. In
the absence of any such proof the result cannot be held to have been
materially affected. The burden to prove this material effect is difficult
and many times it is almost impossible to produce the requisite proof. D
But the difficulty in proving this fact does not alter the position of law.
The legislative intent is clear that unless the burden howsoever dif-
ficult it may be, is discharged, the election cannot be declared void.
The difficulty of proving the material effect was expressly noted by this
Court in Vashist Narain Sharma's and Paokai Haokip's, cases and the
Court observed that the difficulty could be resolved by the Legislature E
and not by the Courts. Since then the Act has been amended several
times, but Parliament has not, altered the burden of proof placed on
the election petitioner under Section lOO(l)(d) of the Act. Therefore
the law laid in the aforesaid decisions still hold the field. It is not
~ermissible in law to avoid the election of the returned candidate on
/ speculations or conjectures relating to the manner in which the wasted F
· votes would have been distributed amongst the 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
positive proof of material effect on the result of the election of the G
returned candidate, the election must be allowed to stand and the
Court should not interfere with the election on speculation and conjec-
tures.

In the instant case Shiv Charan Singh the appellant had polled
21443 votes and Roshan Lal had polled 16496 the next highest number H
724 SUPREME COURT REPORTS [1988) 2 S.C.R.

A of votes. There was thus a difference on 4497 votes between the votes
polled by the appellant and Roshan Lal. Kanhaiya Lal whose nomina-
tion paper had impro'jierly been accepted, had secured 17841 votes
which were wasted. The election petitioners did not produce any
evidenc e to discharge the burden that improper acceptance of the
nomination paper of Kanhaiya Lal materially affected the result of the
B election of the returned candidate. On the other hand the appellant
who was the returned candidate produced 21 candidates representing
cross section of the voters of the constituency. All these witnesses had
stated before the High Court that in the absence of Kanhaiya Lal in the
..
election contest, the majority of the voters who had voted for
Kanhaiya Lal would have voted for Shiv Charan Singh the appellant.
The High Court in our opinion rightly. rejected the oral testimony of
c the witnesses in view of this Court's decision in Vashist Narain
t
't--
Sharma's, case. The High Court however having regard to the votes
polled by the appellant Roshan Lal and Kanhaiya Lal held that the
result of the election was materially affected. The High Court held that
in view of the fact that difference between Shiv Charan Singh the
D appellant and Roshan Lal was only 4497 and Kanhaiya Lal, whose
nomination was improperly accepted had secured 17841 votes there-
fore it could reasonably be concluded that the election was materially
affected. In our opinion the High Court committed error declaring the
appellant's election void on speculations and conjectures.
y
E Indisputably, the election petitioners had failed to discharge the
burden of proving the fact that the result of election of the appellant
had been materially affected by reason of improper acceptance of the
nomination paper of Kanhaiya Lal. 1n the absence of any positive
evidence produced by the election petitioners, it was not open to the
High Court to record findings that the result of the election was matn,-
F rially affected. The High Court's findings relating to the material effect .
on the result of the election are based on conjectures and surmises and
not on any evidence. The Legislature has, as noted earlier placed a
difficult burden on the election petitioner to prove that the result of
the election was materially afected by reason of improper acceptance
of nomination paper of a candidate (other than the returned candi-
G date) and if such burden is not discharged the election of the returned
candidate must be allowed to stand as held by this Court in V ashist y
Narain Sharma's and in Paokai Haokip's case. It is true that the I
burden placed on the election petitioner in such circumstances is
almost impossible to discharge. But in spite of the fact that this Court
had highlighted this question on more than one occasion, Parliament
H .has not amended the relevant provisions although the Act has been
SHIV CHARAN SINGH v. CHANDRA BHAN SINGH [SINGH, J.] 725

-{ subjected to several amendments. It is manifest that law laid down by
A
this Court in Vashist Narain Sharma's case and Paokai Haokip's case
• " holds the field and it is not permissible to set aside the election of a
returned candidate under Section lOO{l){d) on mere surmises and con-
jectures. If the improperly nominated candidate had not been in the
election contest, it is difficult to comprehend or predicate with any
amount of reasonably certainty the manner and the proportion in B
't which the voters who exercised their choice in favour of the improp-
'..., erly nominated candidate would have exercised their votes. The
·~ Courts are ill-equipped to speculate as to how the voters could have
•· exercised their right of vote in the absence of improperly nominated
-~ candidate. Any speculation made by the Courtin the this respect,would
~ be arbitrary and contrary to the democratic principles. It is a matter of C
• common knowledge that electors exercise their right of vote on various
~ unpredictable considerations. Many times electors cast their vote on
consideration of friendship, party affiliation, local affiliation, caste,
religion, personal relationship and many other imponderable consid-
erations. Casting of votes by electors depends upon several factors and
it is not possible to forecast or guess as to how and in what manner the D
-~
voters would have exercised their choice in the absence of the improp-
erly nominated candidate. No inference on the basis of circumstances
can successfully be drawn. While in a suit of proceedings it may be
possible for the Court to draw inferences or proceed on probabilities
"y with regard to the conduct of parties to the suit or proceedings, it is not
possible to proceed on probabilities or draw inferences regarding the E
conduct of thousands of voters, who may have voted for the improp-
erly nominated candidate. In the instant case there were 11 contesting
candidates. If Kanaiya Lal whose nomination paper had been improp·
... erly accepted was not in the election contest, it is difficult to say in
,~hat proportion the voters who had voted for him would have voted
for the remaining candjdates. There is possibility that many voters who p
1
1 had gone to the polling station to cast their votes in favour of Kanaiya
Lal may not have gone to exercise their vote in favour of the remaining
candidates. It is probable that in the absence of Kanaiya Lal in the
election contest, many voters would have voted for the returned candi-
-1 _. date as he appeared to be the most popular candidate. It is difficult to
comprehend that the majority of the voters who exercised their choice G
"( in favour of Kanaiya Lal would have voted for the. next candidate
. Roshan Lal. It is not possible to forec31\t how many arid in what prop-
ortion the votes would have gone to one or the other remaining candi·
dates and in what manner the wasted votes would have been distri-
buted among the remaining contesting candidates. In this view, the
result of the returned candidate could not be declared void on the basis H
726 SUPREME COURT REPORTS [1988] 2 S.C.R.

A of surmises and conjectures.

The High Court placed reliance on the decision of this Court in
Chhedi Ram's case in holding that the result of the election was mate-
"
...
rially affected in view of the margin of difference between the appel-
lant and Roshan Lal and the votes secured by Kanaiya Lal. The deci-
B sion in Chhedi Ram's case does not over-rule earlier decisions of this

t ...~!
Court in Vashist Narain Sharma and Paokai Haokip's case and it does '
not lay down any different law. Instead the decision of the case turned
upon the facts of that case. In Chhedi Ram's case there were four
contesting candidates. Jhilmit Ram the returned candidate had polled

c
17822 votes while Chhedi Ram had polled the next highest number of
votes being 17449 votes. Thus the difference between the successful
candidate and the candidate who had secured the next highest number
r
of votes was 373 votes only. While Moti Ram whose nomination paper ~
was found to have been improperly accepted had polled 6710 votes.
The High Court had dismissed the election petition on the finding that
the result of the election had not been materially affectt;d' as a result of
D the improper acceptance of the nomination paper ofM'oti Ram. This
'r~
Court allowed the appeal and set aside the election of the returned
candidate on the finding that if the number of votes secured by the
candidate whose nomination was improperly accepted was not dispro-
portionately large as compared with the difference between the
number of votes secured by the successful candidate and the candidate
E 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 to the votes secured by the successful candidate, 'r
there was a reasonable probability that the result of the election had
been materially affected and one may venture to hold that fact as ...
proved. After making these observations the Court noted that in that~
F case the candidate whose nomination was improperly accepted had \
obtained 6710 votes i.e. almost 20 times the difference between the
number of votes secured by the successful candidate and the candidate
securing the next highest number of votes, in that situation the result
of the election was held to have been materially affected. The decision
:in Chhedi Ram"s case rests on its own facts. Applying the principl'e laid
G down in Chhed'i Ram's case to the facts of the instant case it is not ..
\...

possible to hold that the result of the election of the ·appellant was
materially affected. As already noted the appellant had polled 21443
y
votes while Roshan Lal had polled the next highest number of votes
16946 and the difference between the two was only 4497 votes while
the votes polled by the improperly nominated .candidate Kanaiya Lal
H was 17841 thus the proportion of difference was only four times, while
SHIV CHARAN SINGH v. CHANDRA BHAN SINGH [SINGH, J.) 727

the difference in Chhedi Ram's case was 20 times. Further in Chhedi A
Ram's case there-were only 4 contesting candidates while in the instant
case there were 11 contesting candidates and in the absence of Kanaiya
Lal other remaining 10 would have shared the wasted votes. On these
facts even on the basis of Chhedi Ram's case it is not possible to draw-
any inference or act on probability and to record a finding that the
B
· majority of wasted votes would have gone to Roshan Lal in such a way
\- as to affect the result of the appellant's election. In the circumstances,
the findings recorded by the High Court that the result of the election
. of the appellant was materially affected is not sustainable in law .

" In the result, we hold that the election petitioners have failed to
· prove that the result of the election of the appellant was materially c
-1 affected on the ground of improper acceptance of nomination paper of
Kanaiya Lal. Therefore, the election of the returned candidate could
not be declared void. We accordingly allow the appeals, set aside the
judgment and order of the High Court, uphold the appellant's election
and dismiss the election petitions with costs throughout.
D
N.P.V. Appeals allowed.

y