# 637' PAOKAI HAOKIP v. RISHANG & ORS

- **Citation:** [1969] 1 S.C.R. 637
- **Court:** Supreme Court of India
- **Decided:** 1968-08-12
- **Bench:** M. Hidayatullah, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/637-paokai-haokip-v-rishang-ors-4460
- **Pages:** 8

## Headnote

Repl'es.ntlition of the People Act (43 of 1951), s. 100 (l)(d) (iv)-
Election petitioner to prove that
election
result
materially
affectedEvidence of witnesses, evaluation.
ln an eleCtion to a Parliamentary constituency, having 2,19,554 voters
1,20,008 votes were polled. Of these 4, 168 votes were declared invalid.
The appellant won by securing 1,541 votes more than the next candidat<>-
tbe respondent. The respondent filed an election petition on the ground ·
that the polling was disturbed as the polling centres were in some cases
changed without due notification, at some polling stations almost no votes
were cast because of firing at rioters and at some polling
stations the
polling hours were reduced. Only 1,894 votes were polled at these polling
booths, in which the total number of voters attached were 8,620. so 6,726 ·
voters could not vote
The Judicial Corumissioner ordered fresh poll in
these polling stations. · In appeal by the returned candidate, 1h!5 Court.
HELD : The appeal must succeed.
The decision of the Judicial Corumissioner that the election was in'
contravention of the Act and the Rules was correct in the circumstances
of. this case but that did not alter the position with regard to s. 100(1 )(d)
(iv) of the Representation of the People Act. That section requires that.
the election petitioner must go a little further and prove that the result
of the election had been materially affected. And in this case this burden'
had not been discharged. [643 F]
The evidence in this case which had been brought by the election'
petitioner was the kind of evidence which was criticised by this Court.
Witnesses were brought forward to state that a number of voters did not
vote because of the change of venue or because of firing and that they
had already decided to vote en bloc for the election petitioner. This kind
of evidence was merely an assertion on the part of a witness. who could
not speak for 500 voters for the simple reason that as this Court said the
casting of votes at an election depends upon a variety of factors and it
is riot possible for anyone to predicate hOw many or which proportion of
votes will go to one or the other candidates.
This conclusion is further
fortified if one examines the polling pattern in this election.
Not more
than 55% Of the voters cast their votes. This irumediately cut down the
figure of 6, 726 to a little over half and the margin from which
the
election petitioner could claim additional votes therefore becomes exceedingly small. From the pattern of voting as was disclosed at the various
polling booths to which the voters had gone, it was clear, that 1,541 votes
could not. by any reasonable guess. have been taken off from the lead of
the returned candidates so as to make the election petitioner successful.
In ~ fa'r as the other contesting candidates were concerned, they had
received so few votes that even if they had received all the votes that
had not been cast, it would have mattered little to the result of the election.
The Judicia1 O:>mmissioner reached his conclusion by committing
the same error which was criticised in Vashist Narain Sharm:ds case. He
took the statement of witnesses at their word and held on the basis of
638
SUPREME COl:RT Rt:l'ORTS
[1969] I SCR
1hcse Sl3tcmcnl< that au the votes 1hat hat! not been cast would hO\"C aone
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to the election petitioner. 1642 B-t>43 EJ
Vashi•t Narain Sharma v. Dn· Ch.mdra and Ors. (1955] 1
S.C.R.
509, followed.
CIVIL APPELLATE JUR!SIJICTtON : Civil Appeal No. 683 of
J 968.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the Judgment and order dated January 10, 1968
of the Judicial Commissioner of Manipur in
Election
Petition
Case No. 2 of 1967.
D. Goburdhun, for the appellant.
K. R. Chaudhuri, K. Rajendra Chaudhuri and C. S. Srcenivasa
Rao, for respondent No. I.
'The Judgment of the Court was delivered by
llidayatullah, C.J. This is an appeal from the Court of the
Judicial Commissioner for Manipur at Imphal under

## Text

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637'
PAOKAI HAOKIP
v.
RISHANG & ORS.
August 12, 1968
[M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.]
Repl'es.ntlition of the People Act (43 of 1951), s. 100 (l)(d) (iv)-
Election petitioner to prove that
election
result
materially
affectedEvidence of witnesses, evaluation.
ln an eleCtion to a Parliamentary constituency, having 2,19,554 voters
1,20,008 votes were polled. Of these 4, 168 votes were declared invalid.
The appellant won by securing 1,541 votes more than the next candidat<>-
tbe respondent. The respondent filed an election petition on the ground ·
that the polling was disturbed as the polling centres were in some cases
changed without due notification, at some polling stations almost no votes
were cast because of firing at rioters and at some polling
stations the
polling hours were reduced. Only 1,894 votes were polled at these polling
booths, in which the total number of voters attached were 8,620. so 6,726 ·
voters could not vote
The Judicial Corumissioner ordered fresh poll in
these polling stations. · In appeal by the returned candidate, 1h!5 Court.
HELD : The appeal must succeed.
The decision of the Judicial Corumissioner that the election was in'
contravention of the Act and the Rules was correct in the circumstances
of. this case but that did not alter the position with regard to s. 100(1 )(d)
(iv) of the Representation of the People Act. That section requires that.
the election petitioner must go a little further and prove that the result
of the election had been materially affected. And in this case this burden'
had not been discharged. [643 F]
The evidence in this case which had been brought by the election'
petitioner was the kind of evidence which was criticised by this Court.
Witnesses were brought forward to state that a number of voters did not
vote because of the change of venue or because of firing and that they
had already decided to vote en bloc for the election petitioner. This kind
of evidence was merely an assertion on the part of a witness. who could
not speak for 500 voters for the simple reason that as this Court said the
casting of votes at an election depends upon a variety of factors and it
is riot possible for anyone to predicate hOw many or which proportion of
votes will go to one or the other candidates.
This conclusion is further
fortified if one examines the polling pattern in this election.
Not more
than 55% Of the voters cast their votes. This irumediately cut down the
figure of 6, 726 to a little over half and the margin from which
the
election petitioner could claim additional votes therefore becomes exceedingly small. From the pattern of voting as was disclosed at the various
polling booths to which the voters had gone, it was clear, that 1,541 votes
could not. by any reasonable guess. have been taken off from the lead of
the returned candidates so as to make the election petitioner successful.
In ~ fa'r as the other contesting candidates were concerned, they had
received so few votes that even if they had received all the votes that
had not been cast, it would have mattered little to the result of the election.
The Judicia1 O:>mmissioner reached his conclusion by committing
the same error which was criticised in Vashist Narain Sharm:ds case. He
took the statement of witnesses at their word and held on the basis of
638
SUPREME COl:RT Rt:l'ORTS
[1969] I SCR
1hcse Sl3tcmcnl< that au the votes 1hat hat! not been cast would hO\"C aone
A
to the election petitioner. 1642 B-t>43 EJ
Vashi•t Narain Sharma v. Dn· Ch.mdra and Ors. (1955] 1
S.C.R.
509, followed.
CIVIL APPELLATE JUR!SIJICTtON : Civil Appeal No. 683 of
J 968.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the Judgment and order dated January 10, 1968
of the Judicial Commissioner of Manipur in
Election
Petition
Case No. 2 of 1967.
D. Goburdhun, for the appellant.
K. R. Chaudhuri, K. Rajendra Chaudhuri and C. S. Srcenivasa
Rao, for respondent No. I.
'The Judgment of the Court was delivered by
llidayatullah, C.J. This is an appeal from the Court of the
Judicial Commissioner for Manipur at Imphal under s. I 16A of
the Representation of People Act.
The appeal arises from an
election to the Outer Manipur Parliamcntaty Constituency
at
which the appellant, who was the returned c;indidate, and five
-Others were the contesting candidates. This Outer Manipur Constituency comprised 14 Assembly constituencies.
The dates of
poll were 15th, 20th, 24th, 28th Februal)', and 6th March, 1967
and the time of poll was from 7-30 A.M. to 4-30 P.M. This constituency had 2, 19,554 registered voters.
The total number of
votes polled was 1,20,008.
Of these 4, 166 votes were declared
invalid. The returned candidate received 30,40:1 votes as again.~t
the next candidate who received 28,862 votes.
There was thus
a majority of 1,541 votes in favour of the returned candidate.
The result of the poll was declared on March 10, 1967.
The candidate who secured the second largest number of
votes filed this election petition on April 20, 1967.
The main
ground of attack, which succeeded in the Judicial Commissioner's
Court, wa<; that the poll was disturbed
because of
numerous
circumstances.
These were that the polling centres
were
in
some cases changed from the original buildings to other buildings of which due notification was not issued earlier with the
result that many of the voters who went to vote at the old polling booths found no arrangement for poll and rather than go
to the new polling station. went away without casting their votes.
The second ground was that owing to firing by the Naga Hostiles,
the voting at some of the polling statiorLs was disturbed and
almost no votes were cast.
It was lastly contended that the
polling hours at some stations were reduced with the result that
some of the voters who went to the polling station were unable
to cast their votes.
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PAOKA! v. J.USHANG (Hidayatullah, C.J.)
639
It is hardly necessary to set down here the names of the polling
stations at which these things happened.
In any event, these
polling stations carry rather strange names and it would not help
to state them here.
The net result may be stated.
It was this
there were 12 polling centres, at 4 of which the venue for the poll
was, altered.
There were 6 others at which the firing disturbed
the poll and in 2 of the polling centres not a single vote was
cast and lastly in one of the polling centres out of 513 voters
only one voted.
The following chart discloses the break-up of the figures at
these polling centres :
SI.
No.of
No.of
No.
Na1ne of the polling stations
voters
votes
(as notified)
attached
actually
to the
cast
station
J. Tungam Kbullen High School
1,242
522
2. Chandel Junior Basic School
1,060
172
3. Purum Pantha L.P. School ..
654
338
4. Litan L.P. School
449
347
5. Toupokpi M.E. School
584
128
6. Chakpikarong M.E. School
715
67
7. Bolyang Ta1npak L.P. School
868
249
8. Oklu L.P. School
725
17
9. Larong Khullen J.B. School
581
53.
10. Lakhamei M.E. School
665
11. Ngari Khullen M.E. School
564
12. Karong Dak Bungalow
513
8,620
1,894
It will be noticed from this chart that out of 8,620 votes which
could have been polled, only 1,894 votes were actually received.
In other words, 6,726 voters did not vote or could not vote, The
election petitioner who ran a deficit of 1,541 votes claimed in the
election petition that the result of the poll was prejudicial to
him in particular and that by the non-compliance with the provisions of the Act and: its rules, the result of the election in so
far as the returned candidate was concerned had been materially
affected. The Judicial Commissioner after examining a large
number of witnesses on both sides, came to the conclusion that
there was this flaw in the election for this constituency.
He
went further and held that the result of the election in so far
as it concerned the returned candidate had been materially
affected.
He, therefore, avoided the election and ordered fresh
poll in the 12 polling stations.
In this appeal, the returned candidate attempted to establish
that polling was not so disorganised that it could be said that
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·640
SUPREME COURT REPORTS
(1969) I S.C.R.
.it did not take ,place.
He attempted to show that even where
the polling station was shifted, it was a matter of few hundred
yards and the people went to vote knew the new location of the
polling booths.
He also submitted that, in any event, this had
affected all the contesting candidates equally and the election
petitioner could not, therefore, be said to have suffered more
than the other candidates.
Lastly, the returned candidate con-
. tended that it had not been established in accordance with the
ruling of this Court in Vashist .t:'arain Sharma v. Dev Chandra
and others( 1) that the result of the election had been materially
affected so far as his election was concerned. In this connection,
the returned candidate relies upon the majority which he had already obtained and refers to the votes which had not been cast.
pointing out that on the general pattern of the voting as disclosed
in the case it cannot possibly be said that the election petitioner
would have carried such a majority from those
votes
as
to
neutralise the successful lead he had already established.
The
. election petitioner as the answering respondent tried to establish
that the pattern of the voting clearly showed that tlic returned
candidate had obtained a fortuitous lead which was capable of
being wiped off if the voting had proceeded according to the Act
. and the Rules. Both sides relied upon statistics to establish their
cases.
The election petitioner in addition relied upon the evidence of witnesses which he pointed out had been accepted by
the Judicial Commissioner and upon the observations of this
·Court contended that we should not lightly depart from the findings given by the learned Judicial Commissioner.
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entering into the
numerous
details, is
confined to the above contentions of the rival parties. To begin
with, it is hardly necessary for us to go over the evidence with a
view to ascertaining whether there had been or not a breach of
the Act and the. rules in the conduct of the election at this conF
stituency. We may say at once that havinl! read the evidence we
are in entire agreement with the decision of the learned Judicial
Commissioner that by the change of venue and owing to the firing,
a number of voters probably failed to record their votes which
they would have !!One if the poll had gone on
smoothly
and
according to rules.
This shows that the matter b governed
by
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s. 100( I)( d) (iv).
The question remains still whether the condition precedent to
the avoidance of the election of the returned
candidate which
requires proof from the election petitioner that the result of the
election had been materially affected in so far as the returned
candidate was concerned, has been established in the present case.
II
This part of the case depends upon the ruling of this Court in
(i)[i9ss11 S.C.R. 509.
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PAOKAI v. lUSHANG (Hidayatu/lah, C.l.)
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Vashist Narain Shamuis case('). In that case there was a difference of 111 votes between the returned candidate and the candidate who had obtained the next higher number of votes.
One
candidate, by name Dudh Nath Singh, was found not competent
to stand and the question arose whether the votes wasted on Dudh
Nath Singh, if they had been polled in favour of the remaining
clllldidates, would have materially affected the fate of the election.
Certain principles were stated as to how the probable effect upon
the election of the successful candidate of votes which were
wasted (in this case not cast) must be worked out.
Two witnesses were brought to depose that if Dudh Nath Singh had not·
been a candidat.e for whom no voting had to be done, the voters ·
would have voted for the next successful candidate.
Ghulam
Hasan, J. did not accept this kind of evidence. It is observed as
follows:
·
"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 votes would have gone to one or the other
on some supposed 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 stand."
In another passage, it is observed :
"It will not <lo merely to say that all or a majority
of the wasted votes might have gone to the next highest
candidate. The casting of votes at an election depends
upon a variety of factors and it is not possible for any
one to predicate how many ·or which proportion of the
votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such
a case is confronted with a difficult situation, it is not
possible to relieve him of the duty imposed upon him
by s. lOO(l)(c) and hold without evidence that the
duty has been discharged."
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Further it is pointed out t~at the burden of proof in England
1S the exact reverse of that lmd down by the Indian statutes.
There, the returned candidate has to prove that the non-compliance
or mistake does not affect the result of the election.
In our
country, the burden is upon the election petitioner to show
affirmatively that the result of the election has been materially
affected.
(1) (1955] I S.C.R. 509.
642
SUPREME COURT REPORTS
(1969) I S.C.R.
Therefore, what we have to see is whether this burden bas
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been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the
poll would have gone against the returned candidate if the breach
of the rules had not occurred anQ proper poll had taken place at
all the polling stations including those at which it did not.
The evidence in this case which led by the election petitioner
is the kind of evidence which was criticised by this Court. Witnesses have stated that a number of voters did not vote because
of the change of venue or because of firing and that they had
decided to vote en bloc for the election petitioner. This kind of
evidence is merely .:n assertion on the part of each witness, and
he cannot speak for 500 voters for the simple reason that as this
Court said the ca,ting of votes at an election depends upon a
variety of factors and it is not possible for anyone to predicate
how many or which proportion of votes will go to one or the other
of the candidates. W c cannot therefore accept the statement even
of a Headman that the whole village would have voted in favour
of one candidate to the exclusion of the others.
This conclusion is further fortified if one examines the polling
pattern in this election. To begin with, it is wrong for the election
petitioner to contend that of the 6, 726 votes which were not cast.
he would have rei:cived all of them. The general pattern of poll
not only in this c9nstitucncy but in the whole of India is that all
the voters do not always go to the polls. In fact, in this case,
out of 2,19,554 voters, only L20,008 cast their votes.
Even if
we were to add lo them the 6, 726 votes, it is obvious that not
more than 55% of the voters would have gone to the polls. This
immediately cuts down the figure of 6, 726 to a little over half
and the margin from which the election petitioner could claim
additional votes therefore becomes exceedingly small.
When we
tum to the pattern of voting, as is disclosed at the various polling
booths at which the voters had in fact gone, we get reasonably
dear picture.
At 9 polling centres, 1,893 votes were actually
polled.
Of these, 524 votes were received by the election petitioner and 413 by the returned candidate and 1,097 votes went
to the other candidates.
In other words, out of 20 votes, l l
went to other candidates, 5 to the election petitioner and 4 to the
returned candidate. lf one goes by the law of averages and
applies these figures reasonably to half of the votes which were
not cast, it is demonstrated at once that the election petitioner
could not expect to wipe off the large arrears under which he
laboured and that he could not have therefore made a successful
bid for the scat even with the assistance of the voters who did not
cast their votes.
It is pointed out that at Tungam Khullcn High
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PAOKAI v. RISHANG (Hidayatullah, C.J.)
643
School, he received 401 out of 522 votes.
Ji this had been the
general pattern, one could say that he would have got almost all
the votes that had not been cast. But look at the other polling
stations. At Litan L. P. School, he obtained 41 out of 34 7, at
Chandel Junior Basic School he got 34 out of 172, at Purum
Pantha L. P. School he got 1 f out of 338, at Toupokpi M. E.
School 18 out of 128, at Oklu L. P. School 8 out of 17, at Chakpi
Karong M. E. School 2 out of 67, at Larong Khnllen L. P. School
1 out of 53 and at Bolyang Tampak L. P. School 8 out of 249.
While we. do not think that statistics can be called in aid to prove
such facts, because it is notorious that statistics can prove anything and made to lie for either case, it is open to us in reaching
our conclusion to pay attention to the demonstrated pattern of
voting. Having done so, we are quite satisfied that 1,541 votes
could not, by any reasonable guess, have been taken off from the
lead of the returned candidate so as to make the election petitioner successful.
In so far as the other contesting candidates
are concerned, they had received so few votes that eveu if they
had received all the votes that had not been cast, it would not
have mattered little to the result of the election.
The learned
Judicial Commissioner reached· his conclusion by committing the
same error which was criticised in Vashist Narain Shanna's(')
case.
He took the statement of the witnesses at their word and
held on the basis of those statements that all the votes that had not
been cast would have gone to the election petitioner.
For this,
there is no foundation in fact; it is a surmise and it is anybody's
guess as to how these people, who did not vote, would have actually
voted.
In our opinion, the decision of the learned Judicial Commissioner that the election was to contravention of the Act and the
Rules was correct in the circumstances of this case; but that does
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not alter the position with regard to s. lOO(l)(d)(iv) of the Act.
That section requires that the election petitioner must go a little.
further and prove that the result of the election had been materially
affected. How he has to prove it has already been stated by this
Court and applying that test, we find that he has signmcantly failed
in his attempt and therefore the election of the returned candidatt'
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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 to consider whether it should
be altered. If ther~ is another way of determining the burden,
~he Jaw should say It and not the courts.
It is only in given
mstances that, taldng the law as it is, the courts can reach the
conclusion whether the burden of proof has been successfully~ disH
charged by the election petitioner or not.
We are satisfied that
in this case this burden has not been discharged.
The result is
(!) [195511 S.C.R. 509
Lil Sup.Cl/69-10
644
SUPREME COl'RT REl'ORTS
(1969] I S.C.R.
that the appeal must succeed and it is allowed.
The election of
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the returned candidate will stand. The costs in the Judicial Com·
missioner's Court will be as ordered. The election petitioner who
apparently was not so much at fault as the Government in changing the polling stations, shall bear only half the costs of the
appellant in this Court.
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Appeal alloll'ed.
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