Holding

The Court held that Nikka Ram was not holding an office of profit at the relevant time and that the petitioner failed to prove a material effect on the election result, so the election of the appellant was not void.

Summary

The respondent challenged the election of the appellant, Tek Chand, alleging that the independent candidate Nikka Ram's nomination was improperly accepted because he was allegedly holding an office of profit and was a BJP/RSS activist whose votes allegedly cut into the respondent's tally, thereby materially affecting the result. The appellant contended that Nikka Ram had given notice of voluntary retirement under Rule 48‑A of the Central Civil Services (Pension) Rules, 1972, and that the retirement became effective on the expiry of the notice period, so he was not an office‑holder at the time of filing and scrutiny. The Supreme Court held that the proviso to sub‑rule (2) of Rule 48‑A makes the retirement effective automatically unless the appointing authority refuses permission before the notice period expires; no such refusal was made, so Nikka Ram was not holding an office of profit. Even assuming the nomination was improperly accepted, the petitioner failed to discharge the heavy burden of proving that the result was materially affected, as there was no positive evidence of how the "wasted" votes would have been distributed. Consequently, the election of the appellant stands. The appeal was allowed and the High Court’s order setting aside the election was reversed.

Issues considered

Whether Nikka Ram was holding an office of profit at the time of filing and scrutiny of his nomination papers, rendering his nomination improperly accepted.
Whether the improper acceptance of Nikka Ram's nomination materially affected the result of the election as it concerns the returned candidate, Tek Chand.

Legislation cited

Central Civil Services (Pension) Rules, 1972s. 48-A
Constitution of Indias. 191(1)(a)
Fundamental Ruless. 56(k)
Representation of the People Act, 1951s. 100(1)(d), s. 100(1)(d)(i)

Subjects

election petitionoffice of profitvoluntary retirementRepresentation of the People Actmaterial effectburden of proofvote distributionHimachal Pradesh Legislative Assembly

Judgment

TEKCHAND A
v.
DILE RAM

JANUARY 24, 2001
\ B
[DR. A.S. ANAND, C.J., R.C. LAHOTI AND
, SHIVARAJ V. PATIL, JJ.]

Election law:

Representation of the People Act, 1951: S.IOO(l)(d). c
Election-Election petition-Void election-Declaration of-Grounds
for-Nomination-Improper acceptance of-Returned candidate's election--
Effect on-Election of returned candidate challenged on the ground that
nomination of one N was improperly accepted since N was holding an office
of profit-Allegations that N was an activist of the defeated candidate's D
party; N cut into the votes of the defeated candidate; votes secured by N
should have gone to .the defeated candidate-Correctness of-Held: There is
no evidence that the voters were common to both N and the defeated
candidate-In the absence of any evidence as to the distribution of the
wasted votes, it cannot be judicially guessed that votes polled in favour of E
N would have gone to the defeated candidate-Hence, the result of the
election insofar as it concerns the returned candidate is not material(v
affected.

Central Civil Services (Pension) Rules, 1972: Rule 48-A.
F
Office of profit-Election-Election petition-Election of returned
candidate challenged on the ground that the nomination of one N was
improperiy accepted since N was holding an office of profit under the
Government-N had submitted a notice for voluntary retirement much before
the election--But no orders passed before the expiry of the notice period-
Eleclion held after the expiry of the notice period-Held: Appointing authority G
can refuse to accept the notice of voluntary retirement-But such refi1sal has
to be before the expi1y of notice period-In the absence of such refi1sal.
voluntary retirement becomes effective from the date of expiry of notice
period-Therefore, on the dale of scrutiny of nomination papers N was not
holding an office of profit-Hence, nomination of N was nm improperlv 1-1
527
528 SUPREME COURT REPORTS [200 I] I S.C.R.

A accepted-Fundamental Rules, R.56(k)-Constitution of India, 1950, Art.
191(/)(a).

The respondent-defeated candidate filed an election petition before the
High Court challenging the election of the appellant-returned candidate to
the State Legislative Assembly. The respondent contended that the nomination
B of one N, an independent candidate, was improperly accepted since N was
holding an office of profit in Government which was a bar under Article
19l(l)(a) of the Constitution of India; that N was an activist of the respondent's
party; that the vote bank of the respondent and N was common; that the votes
secured by N would have gone to the respondent had not the nomination of
C N been accepted; that the improper acceptance of the nomination of N
materially affected the result of the election insofar as it concerned the
appellant-returned candidate; and, therefore, the appellant's election ought
to be declared void under S.IOO(l)(d) of the Representation of the People Act,
1951. The High Court allowed the election petition. Hence this appeal.

On behalf of the appellant it was contended that N, much before the
D election, had given a notice for voluntary retirement from Government service
under Rule 48-A of the Central Civil Services (Pension) Rules, 1972 and
his retirement became effective from the date of expiry of the notice period;
that N was not holding an office of profit on the date of election; and,
therefore, the nomination of N was not improperly accepted.
E
On behalf of the respondent it was contended that under Rule 56(k) of
the Fundamental Rules acceptance of voluntary retirement was mandatory;
and that in the absence of such an acceptance N continued in Government
service and was holding an office of profit; and, therefore, the nomination of
N was improperly accepted.
F
The following questions arose before this Court:-

I. Whether at the relevant time N was holding an office of profit
being in the service of the State and as such his nomination
paper was improperly accepted, and, if so
G 2. Whether the result of the election, insofar as it concerned the
appellant, had been materially affected to declare it void?

Allowing the appeal, the Court

HELD : I. Looking to the evidence it cannot be said that in the
/
H constituency all along the respondent's party was leading and that the contest

;'
TEK CHAND v. DILE RAM 529
was only between two parties or that it was a stronghold of the respondent's A
party. Tbere were in all five candidates in the field. It is also not possible
to say with reasonable certainty or guess that all the votes secured by N
could have gone in favour of the respondent if N were not in the field that
too in the absence of any material to show the trend or probable distribution
of wasted votes. In this situation, how the votes secured by N could have been B
distributed among the remaining four candidates cannot be judicially guessed.
1539-G-HI

2. It cannot be said that the burden of proof placed on the respondent
(election petitioner) was discharged. It was not established that N was either
a member or an activist of the respondent's party. There was also no evidence C
to establish that he applied for the ticket of the respondent's party and the
same was den'ied to him. Similarly, there was no evidence to establish that
he campaigned in the election that he belonged to the respondent's party;
that he would join the respondent's party in case he was elected and that he
was a supporter of the Prime Minister. Further, there was nothing to establish
that the voters of the respondent's party and N were common. Having regard D
to the trend of voting in the previous elections, as brought out in the cross-
examination of the witnesses and in the absence of any evidence as to the
distribution of wasted votes, it cannot be said that votes polled in favour of
N would have gone in favour of the respondent if his nomination paper had
not been accepted. Hence, it is not possible to hold that the result of the E
election insofar as it concerned the returned candidate was materially affected.
1541-E-H)

3. In a democratic set up, an election of a returned candidate should
not be easily vulnerable to vague allegations or to averments made in an
election petition not substantiated or supported by positive, cogent and
reliable evidence. The verdict given by the majority of voters in a constituency F
.in favour of an elected candidate to represent a constituency in a State
Legislative Assembly or Parliament cannot be lightly annulled or negatived
in the absence of specific, acceptable and convincing evidence in support of
the grounds raised in an election petition. Being the Court of first appeal
when the finding recorded by the High Court in this case is not based on G
proper appreciation and objective assessment of evidence brought on record,
there is no impediment in reversing the finding recorded by the High Court.
[550-D-Fl

Chhedi Ram v. Jhilmit Ram, [198412 SCC 28t; Vashist Narain Sharma
v. Dev Chandra, [1955[ I SCR 509; Samant N. Balakrishna v. George H
•

530 SUPREME COURT REPORTS [2001] I S.C.R.

A Fernandez, 119691 3 SCR 603; Shiv Charan Singh v. Chandra Bhan· Singh,
1198812sec12; Chandras~khara Rao v. V. Jagapathi Rao; 119931 Supp.
2 SCC 229 and Uma Bhal/av Rath (Smt.) v. Maheshwari Mohanty (Smt.),
+ --
119991 3 sec 357' referred to.

lnayatu/lah v. Diwanchand Mahajan, 15 ELR 210 and In Re: Pokai
B Haokip, (19691 1 SCR 637, cited.

4.1. It is clear from Rule 48-A(2) of the Central Civil Services (Pension)
Rules, 1972 that the appointing authority is required to accept the notice of ~
voluntary retirement given under sub-rule (1). It is open to the appointing
authority to refuse also on whatever grounds available to it but such refusal
c has to be before the expiry of the period specified in the notice. The proviso
to sub-rule (2) of Rule 48-A is clear and certain in its terms. If the appointing
authority does not refuse to grant the permission for retirement before the
expiry of the period specified in the said notice, the retirement sought for .J.:-
becomes effective from the date of expiry of the said period. In this case,
admittedly, the appointing authority did not refuse to grant the permission
D for retirement to N before the expiry of the period specified in the notice.
(553-D-FI

4.2. Since the proviso to sub-rule (2) of Rule 48-A is clear in itself and
the said Rule 48-A is self-contained, it is unnecessary to look to other
provisions, more so in the light of law laid down by this Court. The argument
E that acceptance can be eveu long after the date of the expiry of the period
specified in the notice and that the voluntary retirement may become effective
from the date specified in the notice, will lead to anomalous situation. It
cannot be both that the voluntary retirement could be effective from the date
of expiry of the period mentioned in the notice and still a Government servant
F could continue in service till the voluntary retirement is accepted. The
proviso to sub-rule (2) of Rule 48-A of the Rules does not admit such a
situation. (553-G-HI

5. It is not possible to accept the contention of the respondent that even ~

G
ifthe refusal of voluntary retirement is not communicated within the period
specified in the notice, the voluntary retirement cannot be effective unless
it is accepted by the appointing authority, since no meaning and effect can
be given to the proviso to sub-rule (2) to Rule 48-A. It is a cardinal rule of
construction that no word or provision should be considered redundant or
superfluous in interpreting the provisions of a statute or a rule. (556-FI
.
H 6. On the basis of the material available on record, on the date of
TEK CHAND v. DILE RAM [SHIVARAJ V. PATIL, J.] 531

scrutiny of the nomination papers, there was nothing to show that N continued A
in Government service in view of the admitted position that he had submitted
the application for voluntary retirement by giving a notice and no refusal
was communicated to him, refusing acceptance of voluntary retirement before
the expiry of the notice period. By virtue of Rule 48-A, the voluntary retirement
of N came into force and became effective from the date of expiry of the notice
period. (557-q B
State of Haryana v. S.K. Singhal, (1999) 4 SCC 293, relied on.

B.J. She/at v. State of Gujarat, (1979) 2 SCC 201, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2730 of C
2000.

From the Judgment and Order dated 24.3.2000 of the Himachal Pradesh
High Court in E.P. No. 2of1998.

D.D. Thakur, N.N. Bhatt, Vijay Prakash, Ankur Talwar and J.S. Attri for D
the Appellant.

P.S. Mishra, Ms. Swarupa Reddy, Chandrashekhar, Upendra Mishra,
Vishnu Sharma and C.P. Pandey for the Respondent.

Naresh K. Sharma for State of H.P.
E
The Judgment of the Court was delivered by

SHIV ARAJ V. PATIL, J. Aggrieved by the judgment and order dated
24.03.2000 passed by the High Court of Himachal Pradesh in Election Petition
No. 2/98, setting aside the election of the appellant from 61-Nachan (S.C.) F
Assembly Constituency and declaring it void, this appeal has been filed by
the appellant under Section 116-A of the Representation of People Act, 1951
(for short 'the RPA'), calling in question the correctness and validity of the
said judgment and order of the High Court.

The material and relevant facts, to the extent they are considered G
necessary for the disposal of this appeal, are set out as under.

The respondent Dile Ram filed the election petition challenging the
election of the appellant from 61-Nachan (S.C.) Assembly Constituency in
Himachal Pradesh, pleading that the nomination papers were filed by the
appellant, the respondent and others. He was set up as a candidate by the H
532
...
SUPREME COURT REPORTS [200 I] I S.C.R.

A Bhartiya Janata Party (BJP) and the appellant was a candidate sponsored by
the Indian National Congress (INC). After the scrutiny and withdrawal of -+--
nomination papers, five candidates remained in the field. The polling took
place on 28.02.1998. The appellant was declared elected by the Returning
Officer on 02.03 .1998 after the counting of votes. The votes secured by the
five candidates are as given below:-
B
Sr. No. Name of the Party affiliation Number of
candidate votes polled

I. Sh. Tek Chand Indian National Congress 14,390

c 2. Sh. Dile Ram Bhartiya Janata Party 13,631

3. Sh. Sohan Lal Janata Dal 328
~-

4. Sh. Damodar Himachal Vikas Party 9,182

D 5. Sh. Nikka Ram Independent 2,287

The respondent sought for setting aside the election of the appellant
on the ground that it was void as Nikka Ram, one of the contesting candidates
mentioned at Sr. No. 5 above was holding office of profit under Government ...,
of Himachal Pradesh on the date of filing of his nomination paper as well as
E on the date of scrutiny thereof. The Returning Officer ought to have rejected
his nomination paper as per Section 36(2)(a) of the RPA. According to the
respondent. Nikka Ram was working as Junior Engineer in Irrigation and
Public Health Department of Himachal Pradesh on the relevant dates and was
holding office of profit under the State Government and as such, he was
disqualified from contesting the election in view of the bar created under
F Article 191 (I )(a) of the Constitution of India. His nomination paper was
improperly and wrongly accepted by the Returning Officer which in turn had
materially affected the result of the election insofar as it concerned the
returning candidate - the appellant.

In. support of the grounds of challenge, material averments are made
G
in paras 4-5 of the election petition, which were denied in the written statement
filed by the appellant. Since the High Court has set out the pleadings of the
parties in sufficient details, we consider it unnecessary to repeat them.
According to the respondent, Nikka Ram was an active worker of the Rashtriya
Swayam Sevak Sangh (RSS) and was closely associated with the cadre and
H workers of RSS and BJP; the vote bank of the respondent as well as the said
TEK CHAND v. DILE RAM [SHIV ARA.IV. PATIL. J.] 533
Nikka Ram by and large was common as both of them were in contact with A
the BJP and RSS workers, supporters and well-wishers; having failed to get
BJP ticket, Nikka Ram filed his nomination paper as an independent candidate
only with an object to cut into the votes of the respondent and damage his
chances of election. Hence, the result of the election so far it concerned the
appellant had been materially affected.
B
The appellant denied that nomination paper ofNikka Ram was wrongly
and improperly accepted by the Returning Officer. It was also denied that
acceptance of his nomination paper had materially affected the result of
election insofar as it concerned the appellant. According to him it was wrong
to say that a mere margin of votes would determine or would be relevant to C
determine that result of election has been materially affected. He also pleaded
that he was not a member or active worker of BJP or RSS and he did not
-).... campaign in the election for votes as belonging to BJP.

Certain preliminary objections were taken as to the maintainability of the
election petition. By a detailed order dated 3.8. I 998, the High Court held that D
the petition did not suffer from any fatal defect so as to entail its dismissal
at the threshold. Since, thereafter main election petition itself was disposed
of after a full dressed trial on merits by the impugned judgment, it is
unnecessary to go into forther details on this aspect.

In the light of these pleadings of the parties, the learned trial Judge E
framed the following issues:-

"I. Whether the nomination paper ofshri Nikka Ram was improperly
and wrongfully accepted by the Returning Officer? OPP

2. If Issue No. I is proved in favour of the petitioner, whether the p
result of the election has been materially affected so far as it
concerns the election of the respondent 9 OPP

3. Whether Shri N ikka Ram was holding an office of profit under
Government of Himachal Pradesh and was disqualified for being
chosen as member of Himachal Pradesh Legislative Assembly? G
OPP

4. Whether Shri Nikka Ram was an active member of the Rashtriya
Swayam Sewak Sangh (R.S.S.) as alleged. If so, its effect? OPP"

The trial court took up issue nos. 1&3 together and after discussion
in the light of evidence, concluded that the nomination paper of Nikka Ram H
534 SUPREME COURT REPORTS (2001] I S.C.R.

A was improperly and wrongfully accepted by the Returning Officer as he was
holding an office of profit under the State Government on the date of filing
of his nomination paper as well as on the day of their scrutiny by the
Returning Officer and was disqualified for being chosen as a Member of the
Himachal Pradesh Legislative Assembly.

B Issue nos. 2&4 were taken up together for consideration stating that
they were inter-connected. The findings were recorded on these issues also
in favour of the respondent holding that by the improper and wrongful
acceptance of the nomination paper of Nikka Ram, the result of election has
been materially affected so far as it concerned the election of the appellant.
C In view of these findings, the election petition was allowed, the election of
the appellant was set aside declaring it as void under Section IOO(l)(d)(i) of
the RPA.

Shri D.D. Thakur, learned senior counsel for the appellant, urged that:

D I. the High Court committed an error in not accepting the arguments
advanced on behalf of the appellant that in view of the proviso
to sub-rule (2) of Rule 48-A of the Central Civil Services (Pension)
Rules, 1972 (for short 'the Rules'), the voluntary retirement sought
for by Nikka Ram became effective from the date of expiry of the
period specified in the notice dated 5.12.1994; before the expiry
E of the said period admittedly no communication was made to
said Nikka Ram either accepting or refusing voluntary retirement
sought by him; the High Court wrongly brushed aside this
argument stating that there was overwhelming evidence on record
to show that the voluntary retirement was not accepted.
F 2. Nikka Ram gave notice on 5.12. I994 seeking voluntary retirement
under the Rules; no communication was made to him till 28.2.1998,
that is, the date of election itself; no action was taken against
Nikka Ram for participating in election; in response to letter
dated 25.3.1998 of the respondent a reply was given on 26.3.1998
long after the result of election was declared on 3.3.1998. In
G
these circumstances by operation of the proviso to Rule 48-A(2)
of the Rules Nikka Ram's voluntary retirement became effective
from the date of expiry of the period specified in the notice. As
such Nikka Ram ceased to be a Government servant under the
State and was not holding an office of profit. Thus he did not
H suffer any disqualification during the relevant period and
TEK CllAND v. DILE RAM [SHIV ARA.IV. PATIL, J.] 535

acceptance of his nomination paper was absolutely right and A
-+ justified.
'
J. The respondent did not specifically plead giving material
particulars as to how the result of the election so far it concerned
the appellant had been materially affected and he failed to
establish the same by cogent and acceptable evidence; merely B
because the votes secured by Nikka Ram were three times more
~ than the difference of votes secured by the appellant and the
respondent, it could not be said as to how the votes secured by
Nikka Ram could have been distributed in the absence of any
pleading and evidence in this regard; no material was placed to
show that trend or pattern of voting when in all there were five c
candidates in the field.
->-- 4. The approach of the High Court in appreciating the evidence
placed on record was not consistent with well established
principles; the High Court simply accepted the statements of the
witnesses including that of the respondent made in examination- D
in-chief without considering their evidence brought on record in
their cross-examination; the evidence of the appellant and his
).._ witnesses led in rebuttal/defence was not considered along with
the evidence led on behalf of the respondent applying the same
standards. In short, the analysis and appreciation of the evidence E
brought on record by the High Court was not objective and
appropriate.
Shri P.S. Mishra, learned senior counsel for the respondent, submitted:
I. That the findings recorded by the High Court based on evidence
are quite justified and they may not be disturbed. F
2. The standard and burden of proof in the case on hand cannot
be equated to the one which is required in an election petition
filed on the ground of corrupt practices, i.e., as in a quasi
criminal case; in the present case the burden of proof having
regard to the ground raised in the election petition should be G
considered lt par with a burden of proof as in any civil case.
3. Having regard to the facts and circumstances of the case, the
evidence brought on record and the 2287 votes secured by
Nikka Ram, which were three times more than the difference of
votes secured by the appellant and the respondent, i.e., 759, the H
536 SUPREME COURT REPORTS [2001] I S.C.R.

A High Court was right in declaring the election of the appellant
void. Further, the court cannot expect proof in a case like this
which is almost impossible so as to establish how the wasted
votes would have been distributed among the contesting
candidates.
B 4. Looking to the Fundamental Rule 56(k) and the Pension Rules
the acceptance of voluntary retirement ofNikka Ram by competent
authority was mandatory; in the absence of such acceptance he
should be treated to have continued in Government service;
acceptance of voluntary retirement after the expiry of the period
specified in the notice was not automatic; acceptance of
c voluntary retirement may be from a date later than the date
specified in the notice of voluntary retirement and the voluntary
retirement could become effective from the date of expiry of the
period mentioned in the notice having regard to Rule 48-A read
as a whole along with Fundamental Rules touching the question
D of voluntary retirement.

We have carefully considered the submissions made by the learned
counsel for the parties in the light of the pleadings and evidence brought on
record. The following two points arise for our consideration and decision in
this appeal:-
E I. Whether at the relevant time Nikka Ram was holding an office
of profit being in the service of the State of Himachal Pradesh
and as such his nomination paper was improperly accepted, and,
if so
2. Whether the result of the election, insofar as it concerned the
F appellant, had been materially affected to declare it void.

Section I 00, to the extent relevant for the purpose of this case, reads:-

"I 00. Grounds for declaring election to be void. - (I) Subject to the
provisions of sub- section (2) if the High Court is of opinion -
G
(a)

(b)
•
(c)

H (d) tliat the result of the election, in so far as it concerns a returned
TEK CHAND v. DILE RAM [SHIVARAJ V. PATIL. J.] 537

candidate, has been materially affected A
(i) by the improper acceptance of any nomination."

In an election petition where an election of a returned candidate is
impeached under Section I 00(1 )( d)(i) of the RPA, it is not enough only to
establish that a nomination of a candidate was improperly accepted. In addition, B
it has to be further established that such wrong acceptance of nomination
paper has materially affected the resu It of the election insofar it concerned the
returned candidate. In this view, in this case, having regard to facts and
contentions, we think it is appropriate to take up the second point set forth
above for consideration first.
c
In support of his case, the respondent (the election petitioner) examined
PWs 1-10 including himself. The appellant (the respondent in the election
petition) examined RWs 1-13 including himself in rebuttal. The High Court
having rightly stated in para 73 of the judgment that the onus was very heavy
on the respondent on issue no. 2 and that burden had to be discharged by D
him not only through specific and proper pleadings but also through cogent
evidence but went wrong in its approach whije discussing the evidence and
recording finding on issue no. 2. As is evident from the discussion made by
the High Court in paras 80-104 on the evidence led by the parties, the
approach was almost one-sided. In accepting the case of the respondent and
his witnesses, as spoken to in examination-in-chief without focusing the E
attention on what was brought about in the cross-examination of these
witnesses to test their truthfulness, correctness, probability or veracity, the
learned trial judge failed to objectively analyse and evaluate the evidence.
Further the evidence led by appellant was also not kept in view while
appreciating the evidence of the respondent and his witnesses.
F
As is evident from the election petition, the respondent did not
specifically plead that Nikka Ram was a member of RSS and I or BJP except
stating that he was an activist or actively associated with them; no documents
were produced to establish that he was a member of RSS and I or BJP;
similarly nothing was placed on record to show that he applied for and failed G
to get ticket from BJP to contest the election as a BJP candidate; however
it is stated that the vote bank was common for both, the respondent and
Nikka Ram. It is further stated that Nikka Ram secured 2287 votes whereas
the margin of difference between the votes secured by the appellant and the
respondent was only 759. As such the votes secured by Nikka Ram were
disproportionately large, being three times more than the margin of difference H
538 SUPREME COURT REPORTS [200 I) I S.C.R.

A between the votes secured by the appellant and the respondent; had the
nomination paper ofNikka Ram been rejected, the votes polled in his favour
would have definitely been polled in favour of the respondent as those were
pro-BJP and anti-establishment. The main plank of the campaign ofNikka Ram
was asking for votes in the name of Shri Atal Bihari Vajpayee; he being an
B RSS activist would stand by the side of Shri Atal Bihari Vajpayee if elected
as MLA. Hence improper acceptance of nomination paper of Nikka Ram had
materially affected election of the appellant so far he was concerned. It is not
pleaded as to the pattern or trend of voting so as to show how the wasted
votes secured by Nikka Ram could have been distributed. In his deposition
the respondent (PWi) has not spoken to as to the trend of voting or possible
C distribution of votes between the contesting candidates but for Nikka Ram
being in the field. He referred to greeting cards said to have been sent to
several persons and he received one Exbt. PWl/I which was marked subject
to objection but ultimately that was not admitted in evidence. In examination-
in-chief, he also stated that Nikka Ram had connection with RSS and was also
'o associated with BJP. He did not assert or say that Nikka Ram was member of
RSS and I or BJP. He admitted in cross-examination that in 1993 also, the
appellant contested and won the election as 'an independent candidate. The
respondent lost the election by a margin of 7300 votes. Congress candidate
in that election got only 3000 votes. In 1989 election to Lok Sabha. Mr. ~
Maheshwar Singh was the BJP candidate. He secured 5500 votes in this
E constituency, more than the Congress candidate and the respondent who
contested the Assembly election in the year 1990 as a BJP candidate got less
votes than the BJP Parliamentary candidate. He has admitted that witnesses
cited by him were the BJP activists; they were office bearers of the party prior
to 1991. He has further stated that one Ganga Singh. a former M.P. is a
resident of his constituency and his Panchayat. He was not aware whether
F the said Ganga Singh supported him or opposed him. He was President of the
BJP earlier. He has further admitted that "it is correct that Nikka Ram never
made any request for being made a member of the BJP in Nachan constituency.
I have no proof to the effect that the reqt1est was made by N ikka Ram for
obtaining the BJP ticket for Nachan constituency. 1 do not have the record
G indicating that Nikka Ram was the active member of the BJP. The request for
being made a member is to be formally accepted by an authority. I am not
aware whether the request made by Nikka Ram was accepted." In his evidence,
he stated that he never found Nikka Ram canvassing in his presence. He only
heard some people telling that he was trying to tell that after winning the
election, he would fonnally join BJP. He was unable to give names or particulars
H of those some persons who were telling so. Although he made a statement
TEK CHAND v. DILE RAM [SHIVARAJ V. PA TlL, J.] 539

that some members of the BJP joined Nikka Ram, he could not give their A
names, parentage, village, place, time· and their whereabouts. As to Exbt.
PW 1/1, he admitted that it was not written in his presence; it was not signed
by Nikka Ram in his presence and that his name, date and other particulars
were also not written in his presence. He stated that this card was received
by him through post. However, he did not have the possession of the B
envelope with him. In the cross-examination, he further admitted that wife of
Nikka Ram had defeated the candidate of BJP in Zila Parishad elections and
that she secured 3700 votes. The BJP candidate secured 1200 votes only. It
is also admitted that wife ofNikka Ram was the President ofChatar Panchayat
to which Tek Chand, the appellant, belonged. She defeated both the Congress
and BJP candidates for the presidentship of the Panchayat. Nothing was C
brought on record to show that the relationship between Nikka Ram and his
wife were strained or they belonged to different political parties or ideologies.
From this evidence of the PWl, it is not at all possible to hold that Nikka Ram
was either a member of RSS or BJP or was actively associated with them. One
of the cardinal principles of evidence is that the best possible evidence
should be placed before the court for establishing a particular fact or a D
relevant fact. Either to the membership or association· ofNikka Ram with RSS
or BJP, no documentary evidence was placed on record such as membership
register, application form, correspondence or his participation in any of the
programmes or activities ofRSS or BJP. So much so, no documentary evidence
was placed on record to show the trend of voting or distribution of votes E
between the contesting candidates belonging to different political parties or
independent candidates during previous elections of either assembly,
parliament or panchayat elections. No other witness for the respondent spoke
about the possible distribution of so called wasted votes. Having regard to
·1
the evidence and in the absence of positive and cogent evidence lead on
... behalf of the respondent it is not possible to hold that how many out of the F
votes secured by Nikka Ram could have gone to the respondent so as to say
that the result of the election was materially affected so far as it concerned
the returned candidate. Looking to the above evidence it cannot be said that
in this constituency all along BJP was leading and that the contest was only
between two parties or that it was a strong hold of BJP. There were in all five G
candidates in the field. Damodar, candidate sponsored by Himachal Vikas
Congress secured 9182 votes and Sohan Lal, Janata Dal 328 votes. It is also
not possible to say with reasonable certainty or guess that all the votes
secured by Nikka Ram or more than 759 votes could have gone in favour of
the respondent if Nikka Ram was not in the field that too in the absence of
any material to show the trend or probable distribution of wasted votes. H
540 SUPREME COURT REPORTS [200 I) I S.C.R..

A Further, there were iwo other candidates also in the ·field. In this situatfon,
how these 2287 votes of Nikka Ram could have been· distributed among the -t-
remaining four candidates cannot be judicially guessed. ·

The statement of PW I that all witnesses cited by him were active ·
workers of BJP is to be kept in mind while appreciating their evidence. PW4
B is one Ranvir. He stated that he was the President of the BJP of Mandi Sadar
and he filled up membership form of Nikka Ram for BJP. In the cross-
examination, he has admitted that Nikka Ram never applied for being enrolled
as a member from Nachan Manda!; he applied for the membership from the
Mandi constituency; membership was never given to him. from Nachan
C constituency. He admitted that PW5, Ram Swarup, was the General Secretary
ofBJP of Mandi district; PW6, Joginder Singh, was the active member ofBJP
from Nachan constituency. He also stated that membership register ofNachan
would be with its President but the said register was not produced. The
evidence of this witness did not help the respondent to establish that Nikka
Ram was member of BJP or he was associated with RSS or he was active
D worker of RSS or BJP. PW5 stated that Nikka Ram was orie of the activists
of the BJP. He was aspiring for BJP .ticket from Nachan constituency. In his
cross-examination·, _he stated that they had the list of tht members of the BJP
and that the name of Nikka Ram appeared therein but. he could not produce
that record. He further stated that names of members were received from
E Man~als and then the list was prepared; the name ofNikka Ram was received
from Mandi Manda!. Those records were not produced. He, however, further
. stated that the membership of the BJP had not been conferred upon Nikka ·
Ram. PW6, is Joginder Singh, proposer of the respondent in the election. He
filed objection to the nomination paper of Nikka Ram. In his evidence he ·
. stated that he was an active participant in the RSS and Nikka Ram was
F associated with the activities of the RSS and BJP. The Returning Officer
directed him to produce evidence that Nikka Ram was in the active service.
He could not produce evidence as the time given was too short. In the ·cross-
examination, he has stated that resignation was given by Nikka Ram· in the
year 1995. He had no personal knowledge as to whether the resignation was
G . accepted or not. He did not make any written request to the Returning Officer
to grant more time to plac·e the record. PW7, Nand Lal, was the President of
the Gram Panchayat Bara, from 1990 to 1995. He stated that he was associated ···-+:-
with the BJP; Nikka Ram used to come and meet with a request to vote for
BJP; when he was unable to get the BJP ticket, he told he was the worker
ofBJP, therefore, the votes should be given to him;. Nikka Ram claimed himself
H as the man of Shri Atal Bihari Vajpayee on the ground that he belonged to
TEK CHAND v. DILE RAM [SHI VARA.IV. PATIL, J.J 541

that party. In the cross-examination, he admitted that he had no proof of the A
fact that Nikka Ram was an active member of the BJP. PW8, Uma Dutt, stated
that he became a member of the BJP after his retirement. Nikka Ram was Junior
. Engineer in his Circle. He had known and seen Nikka Ram as an active member
of the BJP. In his cross-cxaminatjon he said that he helped the respondent
in the election. He was not aware as to which Pradhan of Gram Panchayats B
belonged to which pa11y and for which party they worked. He was also not
__. aware who worked for the BJ P or for the Congress or for the independent
candidate. His evidence is of no help to the respondent. PW9, Prem Chaudhary,
stated that he knew the appellant and Nikka Ram; Nikka Ram belonged to
RSS; he received a greeting card: he also belonged to RSS: during election,
Nikka Ram was soliciting votes as being member of BJP. In the cross- C
examination, he stated that he received the card in March 1997. He had not
seen any record of membership of Nikka Ram. He stated that Nikka Ram
attended training camp of the RSS with him but did not remember the date
nor the month nor the year. He further stated that he helped Nikka Ram during
the election, as he was one among them. The last witness PWIO examined in
support of the election petition was Dhameswar Dutt, Pradhan of Gram D
Panchayat, Jhungi since 1993. He stated that a meeting was held in the
Panchayat. In that meeting, Nikka Ram said that he belonged to BJP and was
follower of Shri Atal Bihari Vajpayee. He further stated that the speech made
by Nikka Ram did not have any impact on the members of the Panchayat. He
denied that he was the active member of the BJP, although PW! himself had E
stated that all his witnesses belonged to BJP. From this evidence, it cannot
be said that the burden of proof placed on the respondent (election petitioner)
was discharged. By this evidence, it was not established that Nikka Ram was
either a member or activist of RSS and I or BJP. There was also no evidence
to establish that he applied for BJP ticket and the same was denied to him.
Similarly, there was no evidence to establish that he campaigned in the F
election that he belonged to BJP; he would join BJP in case he was elected
and that he-was supporter of Shri Atal Bihari Vajpayee. Further there was
nothing to establish that voters of BJP and Nikka Ram were common. On the
other hand wife of Nikka Ram contested an election as an independent
candidate and defeated both BJP and Congress candidates. Having regard to G
the trend of voting in the previous elections, as brought out in the cross-
examination of PW! and in the absence cf any evidence as to the distribution
of wasted votes, it cannot be said that votes polled in favour of Nikka Ram
would have gone in favour of the respondent if his nomination paper had not
been accepted. This being the position, it is not possible to hold that the
result of the election in so far it concerned the returned candidate was H
542 SUPREME COURT REPORTS [2001] 1 S.C.R.

A niaterially affected. Unfortunately, the High Court has recorded a finding
otherwise. The High Court has found fault with the appellant saying that ~
there was no rebuttal evidence as against the so called positive and cogent
evidence led on behalf of the respondent (election petitioner), even when the
respondent failed to establish his case by discharging burden of proof placed
on him. Even otherwise the rebuttal evidence is very much there as contained
B in evidence of RWs 1-13.

RWI, K.D. Lakhanpal, the Returning Officer, in his evidence has stated
)...
•
that Nikka Ram was an independent candidate. One Joginder Singh (PW6)
raised objection to the nomination paper of Nikka Ram. At 12.15 PM on
c 5.2.1998, time was given to Joginder Singh to prove his objection upto 3.00
PM that Nikka Ram was in Government service. He failed to prove his objection
by 3.00 PM. The Returning Officer waited for him upto 6.25 PM; even then
...)_ -
he did not produce any proof and no extension of time was sought for on
behalf of the objector beyond 6.25 PM. On the basis of the record available,
he accepted the nomination paper of Nikka Ram by rejecting the objection of
D Joginder Singh on the ground of lack of proof. In the cross-examination, he
denied the suggestion that time sought for to furnish proof by Joginder Singh
was denied. The appellant was examined as RW-2. In his evidence, while ~
rebutting the case of the respondent and supporting his defence, he has ~
clearly denied the suggestions in the cross-examination to the contrary. RW2
in his evidence has further stated that Nikka Ram contested the election as
E
an· independent candidate. He and Nikka Ram belong to same Panchayat.
Nikka Ram's wife Raj Kumari was the Pradhan of said Gram Panchayat. She
defeated both BJP and Congress candidates in the election of Pradhan of
Gram Panchayat. The BJP candidate had polled 250 votes whereas she had
polled 750 votes. In the Zila Parishad election, she had polled approximately
F 3,700 votes while the BJP candidate had polled 1200 votes. Out of 40 Gram
Panchayats, 30-32 have Congress elected Pradhans. During election, Nikka
Ram had been canvassing for vote as an independent candidate and did not
appeal in the name of any political party. It was denied that Nikka Ram was
active worker of RSS. It was also denied that because of the propaganda of
Nikka Ram, the votes of BJP supporters which would have been in the normal
G
course polled in favour of the respondent instead went in favour of N ikka
~
Ram. He also denied the suggestion that in case nomination paper of Nikka
Ram had not been accepted, the respondent would have been successful in
the election. The appellant also denied that he had put up Nikka Ram as a
candidate for the said election by financing him so as to cut into the votes
H of Dile Ram (the respondent). The High Court did not accept his evidence on
TEK CHAND v. DILE RAM [SHIVARAJ V. PATIL, J.] 543
_,, the ground that in cross-examinatiori, certain suggestions were made although A
they were denied and that RW-2 did not raise any objection to the nomination
paper ofNikka Ram. RW-3, Raju, in his evidence has stated that Nikka Ram
had appointed him as polling agent at Chachyot polling station and he had
accompanied Nikka Ram for canvassing votes in his favour and he heard
Nikka Ram saying to the voters that they all had seen what Dile Ram had done B
and also what Tek Chand had done and they should 'vote him as he is an
educated person. He further stated that he had not canvassed for votes on
the ground of being an active member of any political party nor he had asked
for votes in the name of any political party. His evidence was sought to be
discredited on the ground that he reached Shimla in jeep belonging to the
appellant in order to give evidence in court and he had stayed previous night C
with the appellant in MLA hostel. Assuming, the witness was interested but
did not support the case of the election petitioner in any way on whom the
burden of proof was heavy to establish his case. RW4, Hemraj, stated that
he was a worker ofNikka Ram as well as his polling agent at Khanet-11 polling
station. According to him, Nikka Ram asked for votes holding out a promise
that he would get minor work done such as repair o+ roads etc. He did not D
say that he would join any political party in case he was elected and that he
did not canvass for or seek votes in the name of any political party. Nothing
was said as to why his evidence was discarded. The evidence of RW5, Kam la
Devi, is also to the same effect and she stated that during election campaign
in her presence Nikka Ram had not announced himself to be a worker of BJP E
nor did he say that his leader was Shri Atal Bihari Vajpayee. RW6, Charandas
has deposed that Nikka Ram had asked for their votes by saying that he was
a person from the same constituency and that he would give better account
if elected and that he had not canvassed for votes in the name of BJP nor
he had stated that in case of being elected, he would join that party. RW7,
Dhanram Das and RW8, Dayal Singh, have also stated that Nikka Ram did not F
ask for votes in the name of BJP and ~e had also not canvassed saying that
he would join BJP in case he is elected. The High Court has commented on
the evidence of RW8 saying that he had not been able to tell the date ofNikka
Ram's visit to his village nor the names of the persons who accompanied him
on that occasion. Nothing more is said as to why the: evidence of these G
witnesses sh~ld not be accepted. The evidence of RWs 9-13 are also more
or less to the same effect. No good reasons are given by the High Court for
not accepting their evidence. The learned trial Judge in the judgment has
stated that the respondent pleaded his case in the election petition in a
positive and forthright manner and also has led positive and reliable evidence.
Placing strong reliance on Chhedi Ram v. Jhilmit Ram and Others, [1984] 2 H
544 SUPREME COURT REPORTS [2001] l S.C.R.

A sec 281, concluded "that by imp.roper acceptance of the nomination paper
of Nikka Ram who was disqualified from contesting the election on the
relevant date and the number of votes polled by him, namely 2287 which
would be in the nature of wasted votes, the substantial majority of the said
wasted votes would have been polled by the respondent, had Nikka Ram not
B been in the electoral fray." In view of this conclusion, the learned trial Judge
held that the result of the election insofar it concerned the appellant has been
materially affected to the detriment of the respondent who would have been
otherwise the successful candidate. The argument advanced on behalf of the
appellant that in case nomination paper of Nikka Ram had been rejected, it
was not necessary that all votes polled by him would have gone only to the
C respondent and not to the other candidates when there were two other
candidates in the field and one of them namely Damodar of Himachal Vikas
Congress had polled 9182 votes, was lightly brushed aside saying that there
was no merit in that argument inasmuch as the respondent had led positive
and cogent evidence to show that Nikka Ram cut deeply into the votes of
the respondent by contesting election as a parallel BJP candidate. We are
D unable to agree with the statement of the High Court that the respondent led
positive and cogent evidence to show that Nikka Ram cut deeply into the
votes of the respondent by contesting the election as a parallel BJP candidate
as it is not supported by cogent and acceptable evidence. On behalf of the
appellant, it was also urged before the High Court that in order to succeed
E on the ground that the result of the election had been materially affected in
so far as it concerned the returned candidate by the improper acceptance of
the nomination paper of Nikka Ram, the respondent had to establish by
positive evidence that the wasted votes polled, would have been otherwise
polled in favour of the respondent. In support of this contention, the case
of Vashist Narain Sharma v. Dev Chandra and others, (1995] I SCR 509, of
F this Court was cited. This contention was rejected saying that "in the present
case the petitioner has adduced satisfactory and positive evidence to show
that the wasted votes polled by Nikka Ram would in substantial majority have
been polled otherwise by the petitioner. So the question of findii:ig being
speculative or conjectural does not arise on the facts of this case." Here
G again, the High Court was not correct in the light of the evidence brought
on record.
+
In Vashist Narain Sharma v. Dev Chandra and others. [1955] I SCR
509; a three Judge Bench of this Court has expressed the view that whether
the result of the election has been materially affected should not be judged
H by the mere increase or decrease in the total number of votes secured by the
TEK CHAND v. DILE RAM [SIIIVARAJ V. PATIL. J.] 545

returned candidate but by proof of the fact that the wasted votes wou"Id have A
been distributed in such a manner between the contesting candidates, which
would have brought about the defeat of the returned candidate and burden
of proof in this regard lies upon the petitioner, who questions the validity of
the election and that the election of a returned candidate cannot be set aside
on mere possibility or conjecture as to the distribution of wasted votes.
B
This Court in Sa111anl N. Balakrishna etc. v. George Fernandez and
· ,....( others etc., [l 969] 3 SCR 603, has referred to and followed Vashist Narain
case (supra). In para 2 aLpage 644 of that judgment it is stated, thus: -

"In our opinion the matter cannot be considered on possibility. Vashist
Narain 's case insists on proof. If the margin of votes were small c
something might be made of the points mentioned by Mr. Jethmalani.
But the 111argin is large and the n11111ber of votes earned by the
re111aining candidates also sufficiently huge. There is no room,
therefore, for a reasonable judicial guess. The law requires proof.
How far that proof should go or wliat it should contain is not provided D
by the Legislature. In Vashist's case and in lnayatullah v. Diwanchand
Mahajan, ( 15 ELR 210) 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 successfi1!ly discharged We cannot overlook the rulings of
this Court and follow the English ruling cited to us. " E
[emphasis supplied]

This Court in Shiv Charan Singh v. Chandra Bhan Singh, [1988] 2 SCC
12; after referring to Vashist Narain case (supra) and Chhedi Ram v. Jhilmit
Ram, (1984] 2 sec 281; dealing with an election petition filed on the ground F
under Section IOO(l)(d)(i) itself, has clearly stated that the burden of strict
proof is on election petitioner; it is not permissible to act on conjectures and

- surmises; mere fact that number of votes polled by a candidate, whose
nomination was improperly accepted, was greater than the margin of votes
polled by the returned candidate and the candidate securing the next highest
number of votes not by itself was conclusive proof of the material effect on G
the election of the returned candidate. Paras I0 and I I of the judgment read
thus:

"I 0. In the instant case Shiv Charan Singh the appellant had polled
21,443 votes and Roshan Lal had polled 16, 946 the next highest
number of votes. There was thus a difference of 4497 votes between H
546 SUPREME COURT REPORTS [2001] I S.C.R.

A the voles polled by the appellant and Roshan Lal. Kanliaiya Lal
whose nomination paper had improperly been accepted, had secured
17,841 votes which were wasted. The election petitioners did not
produce any evidence to discharge the burden that improper
acceptance of the nomination paper of Kanhaiya Lal materially affected
the result of the election of the returned candidate. On the other hand
B 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
c the appellant. The High Court in our opinion rightly rejected the oral
testimony of the witnesses in view of this court's decision in Vashist
Narain Sharma 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 17,841 votes therefore
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 a.nd conjectures.
E
11. Indisputably, the election petitioners had failed to discharge the
burden of proving the fact that the resu It of election of the appellant .
had been materially affected by reason of improper acceptance of the
nomination paper of Kanhaiya Lal. In the absence of any positive
evidence produced by the election petitioners, it was not open to the
F High Court to record findings that the result of the election was
materially affected. The High Court's findings relating to the material
affect 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 affected by reason of
G
improper acceptance of nomination paper of a candidate (other than
the returned candidate) and if such burden is not discharged the +
election of the returned candidate must be allowed to stand as held
by this court in Vashist Narain Sharma and in Paokai Haokip, [ 1969]
I SCR 637 case. It is true that the burden placed on the election
H petitioner in such circumstances is almost impossible to discharge.
TEK CHAND'" DILE RAM [SHIV ARAJ V. PATIL, J.] 547
But in spite of the fact that this Court had highlighted this question A
on more than one occasion, Parliament has not amended the relevant
provisions although the Act has been subjected to several
amendments. It is manifest that law laid down by this Court in
Vashist Narain Sharma case and Paokai Haokip case holds the field
and it is not permissible to set aside the election of a returned B
candidate under Section IOO(l){d) on mere surmises and conjectures.
If the improperly nominated candidate had not been in the election
contest, it is difficult to comprehend or predicate with any amount
of reasonable certainty the manner and the proportion in which the
voters who exercised their choice in favour of the improperly
nominated candidate would have exercised their votes. The courts C
are ill-equipped to specit!ale as to how the voters could have
exercised their right of vote in the absence of improperly nominated
candidate. Any speculation made by the court in this respect would
be arbitrary and contrQ/y to the democratic principles. It is a matter
of common knowledge that electors exercise their right of vote on
various unpredictable considerations. Many times electors cast their D
vote on consideration offriendship, party affiliation, local affiliation,
caste, religion, personal relationship and many other imponderable
considerations. Casting of votes by electors depends upon several
factors and it is not possible lo forecast or guess as to how and in
what manner the voters would have exercised their choice in the E
absence of the improperly nominated candidate. No inference on the
basis of circumstances can successfi1/ly be drawn. While in a suit or
proceedings it may be possible for the court to draw inferences or
proceed on probabilities with regard lo the conduct of parties to the
suit or proceedings, ii is not possible to proceed on probabilities or
draw inferences regarding the conduct of thousands of voters, who F
may have voted for the improperly nominated candidate. In the
instant case there were 11 contesting candidates. If Kanhaiya Lal
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
There is possibility that many voters who had gone to the polling
station to cast their votes in favour of Kanhaiya Lal may not have
gone to exercise their vote in favour of the remaining candidates. It
is probable that in the absence of Kanhaiya Lal in the election contest,
many voters would have voted for the returned candidate as he
appeared to be the most popular candidate. It is difficult to comprehend H
548 SUPREME COURT REPORTS [200 I] I S.C.R.

A that the majority of the voters who exerc'ised their choice in favour of
Kanhaiya Lal would have voted for the next candidate Roshan Lal. It
is not possible to .forecast how many and in what proportion the
votes would have gone to one of the other remaining candidates and
+- -·
in what manner the wasted votes would have been distributed among
the remaining contesting candidates. In this view, the result of the
B returned candidate could not be declared void on the basis ofsunnises
and conjectures."
[Emphasis supplied]

Further in our country as the things stand. all voters do not belong to or are
C affiliated to one or the other political party. Large majority of them may be
neutral or independant or not committed. In this case, Nikka Ram contested
the election as an independent candidate, obviously, on a symbol other than
those allotted to recognized political parties. Hence it cannot be said that all ~-
2287 votes secured by Nikka Ram were from common vote bank ofBJP. May
D be, many out of those voters did not belong to any political party.

In para 12 of the same judgment it is clearly stated that decision of this
court in Chhedi Ram's case did not overrule earlier decisions in Vashist
Narain Sharma and Paokai Haokip cases and added that Chhedi Ram's case
did not lay down any different law and that decision turned upon its own
E facts. In Chhedi Ram's case the difference between successful ca~didate and
the candidate who had secured the next highest number of votes was 373
only. While the candidate whose nomination paper found to have been
improperly accepted had polled 6710 votes, i.e., almost 20 times of the difference
of number of votes secured by the successful candidate and the candidate
securing the next highest number of votes. In that situation result of the
F election was held to have been materially affected.

In Chhedi Ram v. Jhilmit Ram and others, [ 1984] 2 SCC 281; it is held
that the burden of establishing that the result of election has been materially
affected due to the improper acceptance of nomination is on the person
G impeaching the election. If, having regard to the facts and circumstances of
a case the reasonable probability is all one way, the burden may be said to
have been discharged and a court must not lay down an impossible standard ·y
of proof and hold a fact as not proved. It is added that question must depend
on the facts, circumstances and reasonable probabi Ii ties of the case,
particularly, when votes secured by a candidate, whose nomination was
H improperly accepted, was disproportionately large as compared with the
TEK CHAND v DILE RAM [SHIV ARA.IV. PATIL, J.] 549

difference between the votes secured by the returned candidate and the A
candidate securing the next highest number of votes. In the case we are
dealing with the facts and circumstances are entirely different. The reasonable
probability is not all one way in favour of respondent. On the other hand
there is no cogent and reliable evidence to probablise the case of the
respondent. B

A three ·Judge Bench of this Court in J. Chandrasekhara Rao v. V.
Jagapathi Rao and others, [1993) Supp. 2 SCC 229, after referring to other
decisions of this Court including Chhedi Ram's case (supra) has held that
Chhedi Ram's case did not overrule the earlier decisions and that Chhedi
Ram's case rested on its own facts. It is further expressed that a decision in c
the election petition can be given only on the positive and affirmative evidence
and not merely on speculation and suspicion, however, strong they may be.
Para 18 of the said judgment reads: -

"18. Thus it can be seen from all the aforesaid decisions of this Court D
that it is for the election petitioner to prove by positive and reliable
evidence that either improper acceptance of the nomination of the
candidate or on account of the non-compliance with the provisions
of the Constitution or the Act, Rules or orders etc. that ihe wasted
votes would have been distributed in such a manner among the E
remaining candidates that any candidate other than the returned
candidate would have polled the highest number of valuable votes.
Such a burden of proof maybe 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
election of the returned candidate has been materially affected." F
[emphasis supplied)

In spite of this Court explaining the position clearly, as above, in
relation to Chhedi Ram's case in two subsequent decisions of'three Judge
Bench in Shiv Charan Singh and Chandrasekhara Rao cases (supra), strangely G
the High COurt misread Chhedi Ram's case and preferred to support its view
from that case as against aforementioned decisions and other decisions of
this Court. We may repeat that in the aforementioned decisions. it is clearly
stated that the Chhedi Ram's case was decided on its own facts.

In Uma Bhallav Rath (Smt.) v. Maheshwar Mohanty (Smt.) and others, H
550 SUPREME COURT REPORTS (2001] I S.C.R.

A [1999] 3 sec 357, this Co.urt has taken a view that election of a returned
candidate cannot be set aside on "presumptions", surmises or conjectures. _........
There must be clear and cogent proof in support of the allegations. Applying
the principles stated and law laid down by this Court in the aforementioned
decisions and in the facts and circumstances of the case having regard to the
B evidence placed on record we have no hesitation in reaching the conclusion
that the High Court committed a manifest error in concluding that the result
of the election of the appellant had been materially affected on account of
improper acceptance of the nomination paper of Nikka Ram. No doubt, in
appeal court will be slow in disturbing a finding of fact recorded by the trial
court based on proper appreciation of evidence but it is also the duty of the
C appellate court to disturb it if the burden of proof is not discharged by
cogent, positive and acceptable evidence in the light of law laid down by this
Court. More so when there is non consideration of material evidence and
appreciation of evidence is not objective and one sided.

D In a democratic set up, an election of a returned candidate should not
be easily vulnerable to vague allegations or to averments made in an election
petition not substantiated or supported by positive, cogent and reliable
evidence. The verdict given by the majority of voters in a constituency in
favour of an elected candidate to represent a constituency in a State Legislative
E Assembly or Parliament cannot be lightly annulled or negatived in the absence
of specific, acceptable and convincing evidence in support of the grounds
raised in an election. petition. Being the Court of first appeal when the finding
recorded by the High Court in this case is not based on proper appreciation
and objective assessment of evidence brought on record, as discussed above,
we have no impediment in reversing the finding recorded by the High Court.
F
Thus viewed from any angle and even assuming that nomination paper
of Nikka Ram was improperly accepted we hold that the election of the
appellant-the returned candidate in so far it concerned him had not been
materially affected. The point No. 2 is answered accordingly.
G In view of our finding recorded on point no. 2, we coul~have disposed
of this appeal without any further discussion on point No. I. Since the learned
counsel on both sides took pains in elaborately arguing on this point as well,
we will examine and consider the same for completiC'n.

H Answer to this question depends on whether Nikka Ram was in
TEK CHAND v. DILE RAM [SHIV ARA.IV. PATIL, J.] 551
Government service on the dat!! of filing and scrutiny of his nomination paper. A
Nikka Ram gave an application for voluntary retirement on 5.12.1994 to the
Superintending Engineer, Irrigation and Public Health, Circle Rampur, District
Shimla, Himachal Pradesh. In that application he has stated that he had
completed 20 years of service and sought voluntary retirement with all benefits
of service. The said application mentioned also of three months' notice with B
a request that he may be retired with effect from 28.2.1995. According to the
respondent, as pleaded in para 4 of the election petition, the said application
made for voluntary retirement had not so far been accepted by the Government
and Nikka Ram still continued in Government service. Copy of the letter dated
26.3 .1998 issued by the Superintending Engineer certifying that voluntary
retirement application ofNikka Ram had not been accepted, was filed alongwith C
the election petition. Exbt. PW3/1 is said to be the Office Order of the IPH
Dept!. dated 18.12.1996; it says that an inquiry under Rule 14 of the Central
Civil Servict! (Classification, Control and Appeal) Rules, 1965 is being held
against Nikka Ram and the Inquiry Authority to inquire into the charges
framed was appointed. Of course, the nature and contents of the charges were D
not indicated. Exbt. PW3/2 is a letter dated 29.12.1994 from the Superintending
Engineer, !PH, Circle Rampur, addressed to the Executive Engineer. In the
letter it is stated that Nikka Ram had sought voluntary retirement from
,._.. Government service with effect from 28.2.1995 by giving three months' notice.
Further the Executive Engineer was requested to examine the case properly
as required under the Rule and send No Demand Certificate as well as E
Vigilance Clearance Certificate alongwith specific comments to take further
action. It is further indicated that if not the detailed position be intimated to
this office immediately, the VVC may be obtained personally from the E-In-
C, !PH Department, Shim la, as well as from the C.N. Dharmshala immediately.
Copies were sent to other authorities to take immediate action. Exbt. F
PW3/l is another letter dated 2.4.1998 from the Superintending Engineer
addressed to Nikka Ram at his home address stating that his voluntary
retirement as sought could not be accepted for the reason that !otal length
of his service was 19 years I 0 months and 6 days which was less than 20
years. One more letter Exbt. PW3/2 dated 26.3.1998 from the Superintending G
Engineer was addressed to the respondent in reply to his letter dated 25.3.1998
informing that issue of voluntary retirement of Nikka Ram had not been
finalized dut: to some departmental formalities and his request for voluntary
retirement had not been accepted till date. In response to the application
dated 6.8.1998 of the respondent, Exbt. PW3/3 dated 7.8.1998 was issued
giving various details of the departmental formalities and hurdles indicating H
552 SUPREME COURT REPORTS [200!] I S.C.R.

A that his voluntary retirement could not be accepted.

It is not disputed that the appointing authority did not refuse to grant
the permission for retirement before expiry of the period specified in the said
application dated 5.12.1994 given by Nikka Ram. Further, no communication
whatsoever was made to him within the said period. During the course of the
B argument before the High Court, the learned counsel for the parties referred
to Rule 48-A of the Rules, of course, placing their own interpretation. Since
the said Rule is material and has bearing on the question to be determined, ~·
it is extracted below:-

c "48-A. Retirement on completion of 20 years qualifying service.

(I) At any time after a Government servant has completed twenty
years' qualifying service, he may, by giving notice of not less ~
than three months in writing to the appointing authority, retire
from service.
D
Provided that this sub-rule shall not apply to a Government
servant, including scientist or technical expert who is -

(i) on assignments under the Indian Technical and Economic
_..
Co-operation (ITEC) Programme of the Ministry of External
E
Affairs and other aid programmes.

(ii) Posted abroad in foreign based offices of the Ministries I
Departments.

F (iii) On a specific contract assignment to a foreign Government,
unless, after having been transferred to India, he has resumed
the charge of the post in India and served for a period of
not less than one year.

(2) The notice of voluntary retirement given under sub-rule (I) shall
G
require acceptance by the appointing authority;

Provided that where the appointing authority does not refuse to
+
grant the permission for retirement before the expiry of the
period specified in the said notice, the retirement shall become
H effective from the date of expiry of the said period.
TEK CHAND v. DILE RAM [SHIVARAJ V. PATIL, J.] 553
A
Under sub-rule (1) of the said Rule, at any time after completion of20
years' qualifying service, a Government servant could give notice of not less
than three months' in writing to the appointing authority for retirement from
service. Under sub-rule (2), voluntary retirement given under sub-rule (I) shall
require acceptance by the appointing authority. In the proviso to sub-rule (2) B
of Rule 48-A, it is clearly stated that in case the appointing authority does
not refuse to grant the permission for retirement before the expiry of the
period specified in the said notice, the retirement shall become effective from
the date of expiry of the said period.
c
It is clear from sub-rule (2) of the Rule that the appointing authority is
required to accept the notice of voluntary retirement given under sub-rule (I).
It is open to the appointing authority to refuse also on whatever grounds
available to it but such refusal has to be before the expiry of the period
specified in the notice. The proviso to sub-rule (2) is clear and certain in its
terms. If the appointing authority does not refuse to grant the permission for D
retirement before the expiry of the period specified in the said notice, the
retirement sought for becomes effective from the date of expiry of the said
period. In this case, admittedly, the appointing authority did not refuse to
grant the permission for retirement to Nikka Ram before the expiry of the
period specified in the notice dated 5.12.1994. The learned senior counsel for E
the respondent argued that the acceptance of voluntary retirement by
appointing authority in all cases is mandatory. In the absence of such express
acceptance the Government servant continues to be in service. In support of
this submission, he drew our attention to Rule 56(k) of Fundamental Rules.
He also submitted that acceptance may be on a later date, that is, even after
the expiry of the period specified in the notice and the retirement could be F
effective from the date specified in the notice. Since the proviso to sub-rule
(2) of Rule 48-A is clear in itself and the said Rule 48-A is self-contained, in
our opinion, it is unnecessary to look to other provisions, more so in the light
of law laid down by this Court. An argument that acceptance can be even
long after the date of the expiry of the period specified in the notice and that G
the voluntary retirement may become effective from the date specified in the
notice, will lead to anomalous situation. Take a case, if an application for
voluntary retirement is accepted few years' later from the date specified in the
notice and voluntary retirement becomes operative from the date of expiry of
the notice period itself, what would be the position or status of such a
Government Servant during the period from the date of expiry of the notice H
554 SUPREME COURT REPORTS [2001] I S.C.R.

A period upto the date of acceptance of the voluntary retirement by the
appointing authority? One either continues in service or does not continue

B
in service. It cannot be both that the voluntary retirement could be effective
from the date of expiry of the period mentioned in the notice and still a
Government servant could continue in service till the voluntary retirement is
accepted. The proviso to sub-rule (2) of Rule 48-A of the Rules does not
-
admit such situation.
~-
This Court in a recent judgment in the case of State of Haryana and
others v. S.K. Singhal, [1999] 4 SCC 293, after referring to few earlier decisions
of this Court touching the very point in controversy in para 13 of the
C judgment has held thus :-

"13. Thus, from the aforesaid three decisions it is clear that ifthe right
to voluntarily retire ·is conferred in absolute terms as in Dinesh Chandra
Sangma case by the relevant rules and there is no provision in the
rules to withhold permission in certain contingencies the voluntary
D retiremem comes into effect automatically on the expiry of the period
specified in the notice. If, however, as in B.J. Shelat case and as in
Sayed Muzaffar Mir case the authority concerned is empowered to
withhold permission to retire if certain cond.itions exist, viz, in case the
employee is under suspension or in case a departmental enquiry is
E pending or is contemplated, the mere pendency of the suspension or
departmental enquiry or its contemplation does not result in the notice
for voluntary retirement not coming into effect on the expiry of the
period specified. What is further needed is that the authority concerned
must pass a positive order withholding permission to retire and must
also communicate the same to the employee as stated in B.J. Shelat
F case and in Sayed Muzaffar Mir case before the expiry of the notice
period. Consequently, there is no requirement of an order of acceptance
of the notice to be communicated to the employee nor can it be said
that non-communication of acceptance should be treated as amounting
to withholding of permission."
G
In our view, this judgment fully supports the contention urged on
behalf of the appellant in this regard. In this judgment, it is observed that
there are three categories of rules relating to seeking of voluntary retirement
after notice. In first category, voluntary retirement automatically comes into
force on expiry of notice period. In second category also, retirement comes
H into force unless an order is passed during notice period withholding permission
TEK CHAND v. DILE RAM [SHIV ARA.IV. PATIL, l] . 555
to retire and in third category voluntary retirement does not come into force A
unless permission to this effect is granted by the competent authority. In such
a case, refusal· of permiss;on can be communicated even after the expiry of
the notice period. It all depends upon the relevant rules. In the case decided,
the relevant rule required acceptance of notice by appointing authority and
the proviso to the Rule further laid down that retirement shall come into force B
automatically if appointing authority did not refuse permission during the
notice period. Refusal was not communicated to the respondent during the
notice period and the court held that voluntary retirement came into force on
expiry of the notice period and subsequent order conveyed to him that he
could not be deemed to have voluntary retired had no effect. The present
case is almost identical to the one decided by this Court in the aforesaid C
decision.

This Court in B.J She/at v. State of Gujarat & Ors., (1978] 2 SCC 201,
while dealing with a case of voluntary retirement, referring to Bombay Civil
Service Rules, Rule 161(2)(ii) proviso and Rule 56(k) of the Fundamental
Rules, in similar situation, held that a positive action by the appointing D
authority was required and it was open to the appointing authority to withhold
permission indicating the same and communicating its intention to the
Government Servant withholding permission for voluntary retirement and that
no action can be taken once the Government servant has effectively retired.
Paras 9 and I 0 of the said judgment read thus :
E
"9. Mr. Patel next referred us to the meaning of the word "withhold"
in Webster's Third New International Dictionary which is given as
"hold back" and submitted that the permission should be deemed to
have been withheld if it is not communicated. We are not able to read
the meaning of the word "withhold" as indicating that in the absence F
of a communication it must be understood as the permission having
been withheld.

10. It will be useful to refer to the analogous provision in the
Fundamental Rules issued by the Government of India applicable to
the Central Government servants. Fundamental Rule 56(a) provides G
that except as otherwise provided in this Rule, every Government
servant shall retire from service on the afternoon of the last day of
the month in which he attains the age of fifty-eight years. Fundamental
Rule 56(j) is similar to Rule 16l(aa)(l) of the Bombay Civil Services
Rules conferring an absolute right on the appropriate authority to
retire a Government servant by giving not less than three months' H
556 SUPREME COURT REPORTS [200 I] I S.C.R.

A notice. Under Fundamental Rule 56(k) the Government servant is
entitled to retire from service after he has attained the age of fifty-five
years by giving notice of not less than three months in writing to the
appropriate authority on attaining the age specified. But proviso (b)
to sub-rule 56(k) states that it is open to the appropriate authority to
withhold permission to a Government servant under suspension who
..
B seeks to retire under this clause. Thus under the Fundamental Rules
issued by the Government of India also the right of the Government ~
servant to retire is not an absolute right but is subject to the proviso
where under the appropriate authority may withhold permission to a •'F
Government servant under suspension. On a consideration of Rule
c 161(2)(ii) and the proviso, we are satisfied that it is incumbent on the
Government to communicate to the Government Servant its decision
to withhold permission to retire on one of the grounds specified in the ~-
proviso."
"'
In this decision effect of Rule 56(k) of Fundamental Rules is also considered
D which answers the argument of the learned counsel for the respondent on this
aspect. It may also be noticed that under Rule 48-A in Government of India's
decision giving instructions to regulate voluntary retirement it is stated,
"Even where the notice of voluntary retirement given by a Government servant
requires acceptance by the appointing authority, the Government servant
giving notice may presume acceptance and the retirement shall be effective
E in terms of the notice unless the competent authority issues an order to the
contrary before the expiry of the period of notice".

If we accept the argument of the learned senior counsel for the
respondent, even if the refusal of voluntary retirement is not communicated
within the period specified in notice, the voluntary retirement cannot be ~
F effective unless it is accepted by the appointing authority, no meaning and
effect can be given to the proviso to sub-rule (2) to Rule 48-A. It is cardinal
rule of construction that no word or provision should be considered redundant
or superfluous in interpreting the provisions of a statute or a rule.

The High Court looking to the letters dated 29.12.1994, 18.12.1996,
G
2.4.1998, 26.3.1998 and 7.8.1998 came to the conclusion that Nikka Ram was
in Government service on the date of filing nomination paper. The High Court +-
also observed that there was glaring omission on the part of the appellant in
not controverting the pleadings and evidence of the respondent with regard
to Nikka Ram being in Government service at the relevant time and also relied
•
J
H on the oral evidence in this regard to say that Nikka Ram was holding office
TEK CHAND v. DILE RAM [SHIVARAJ V. PATIL, J.] 557
of profit by being in Government service on the date of filing nomination A
paper and as such his nomination paper was wrongly accepted. It is not
disputed, as already stated above, that no communication was given to Nikka
Ram before the expiry of the period specified in the notice of voluntary
retirement. Nikka Ram was not examined. Exbt. PW3/2, letter dated 26.3.1998,
Exbt. PW3/3, letter dated 2.4.1998 and Exbt. PW3/3 Jetter dated 7.8.1998 were B
of dates subsequent to the date of filing of nomination paper and even
declaration of the result of the election on 2.3.1998. On the basis of the
material available on record on the date of scrutiny of nomination paper, there
.(
was nothing to show that Nikka Ram continued in Government service in view
of the admitted position that he had submitted application for voluntary
retirement by giving notice on 5. I 2. I 994 and no refusal was communicated to C
him, refusing acceptance of voluntary retirement before 28.2.1995. By virtue
of Rule 48-A, as discussed above, the voluntary retirement ofNikka Ram came
into force and became effective from 28.2.1995. Neither Nikka Ram nor
Government of Himachal Pradesh are parties to this appeal before us. In this
appeal we do not wish to deal with the status of N ikka Ram in relation to
Government service or the respective rights and contentions, if any, ofNikka D
Ram and State Government in regard to his service and the consequences that
may follow. For the purpose of this appeal it is enough to say that on the
date of filing and scrutiny of nomination paper of Nikka Ram, he should be
deemed to have been voluntarily retired by operation of proviso to sub-rule
(2) of Rule 48-.A. E

I.As. 2/2000 and 3/2000 are filed for impleadment ofNikka Ram and State
of Himachal Pradesh and for modification of the order dated 24. 7 .2000
respectively. Application for impleadment was made on the ground that Nikka
Ram and State of Himachal Pradesh were not made parties to the election
petition. The deci>ion, one way or the other, on the point whether the said F
N ikka Ram ceased to be a Government servant or continued to be in
Government service may result in serious consequences affecting the rights
ofNikka Ram or the State Government as the case may be. Since neither Nikka
Ram nor the State of Himachal Pradesh were necessary or proper parties to
be impleaded in the election petition, we do not think it appropriate to allow G
I.A. No. 212000. Hence it is rejected. We, however, wish to add that the order
passed or observations made in this appeal on the point of acceptance of the
nomination paper of Nikka Ram on the ground that he had ceased to be in
Government service having regard to the proviso to sub-rule (2) of Rule
48-A on the available material on the date of his nomination and scrutiny, will
be without prejudice to the rights and contentions either ofNikka Ram or the H
558 SUPREME COURT REPORTS [2001] I S.C.R.

A State Government in relation to service ofNikka Ram. No order is necessary
in I.A. 3/2000.

Jn the result, for the reasons stated above, this appeal merits acceptance.
Hence, it is allowed. The judgment and order of the High Court impugned in
this appeal are set aside and the election petition stands dismissed. Parties
B to bear their own costs.

v.s.s. Appeal allowed.