# Seth Jagjivan Mardi Vithlani v. Messrs. Ra11ehhod· das Meghji. Venkatarama Ayyar]

- **Citation:** [1955] 1 S.C.R. 509
- **Court:** Supreme Court of India
- **Decided:** 1953-05-29
- **Bench:** S. R. DAs, Ghulam Hasan, Jagannadhadas
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/seth-jagjivan-mardi-vithlani-v-messrs-ra11ehhod-das-meghji-venkatarama-ayyar-356
- **Pages:** 11

## Headnote

Representation of the People Act, 1951 (Act XL/II of 1951),
s. 100(1) (c)-Words "the result of the election has been materially
affected"-lnterpretation of-Improper acceptance or rejection of a
nomination paper-Election-Validity of-Onus of proving that the
result
has
been materially affected-Finding of Election Tribunal
based on speculation and conjecture-Mis direction in law.
The words "the result of the election has been materially
affected" in section 100(1) (c) of the Representation of the People
1954
Seth Jagjivan
Mardi Vithlani
v.
Messrs. Ra11ehhod·
das Meghji.
Venkatarama
Ayyar].
1954
May20
1954
Yt1.thid .Narain
Sharma
v.
D1~ Cha'fldra and
Otlttrs.
510
SUPREME COURT REPORTS
[1955]
Act, 1951, indicate
that the result should not be judged by the
n1ere increase or decrease in the total nun*-r of votes
secured by
the
returned candidate but by proof of the fact that the \Vasted
votes \voul<l have been distributed in such a manner between the
contesting candidates
as
would have brought about the defeat of
the returned candidate.
Section 100(1) (c) clearly
places
a
burden on the
objector
to substantiate the
objection
that the result of the election has
been inaterially
affected by the in1propcr acceptance or
rejection
of the nornination paper.
1"he said section is too clear for any speculation about possibilities an<l
it lays
down that in1proper acceptance is not to be
regarded as fatal to the election unless the Tribunal is of opinion
chat the result has been inaterially affected.
) ..
-
If an Election Tribunal misdirects itself
in not con1prehending
the real
question before it and
proceeds n1erely on possibilities,.
speculation and conjecture, its or<ler must be set aside.
Al'
CIVIL
APPELLATE
JuR1smcTION :
Civil
Appeal
No. 151 of 1953.
Appeal by Special Leave granted by the Supreme
Court of India by its Order dated the 29th May,
1953,
from the Judgment and Order dated the 4th May, 1953,
of
the Election
Tribunal, Allahabad, in
Election
Petition No. 270 of 1952.
C.
K.
Daphtary,
Solicitor-General
for
India
(G. C. Mathur and C. P. Lal, with
him)
for the
appellant.
N aunit Lal for respondents Nos. 1 to 4.
1954. May 20. The Judgment of the Court was
delivered by
GHULAM
HASAN J.-This appeal preferred under
article 136 of the Constitution against the order, dated
May 4,
1951, of the
Election Tribunal, Allahabad,
setting aside the election of Sri Vashist Narain Sharma
to the Uttar Pradesh Legislative Assembly, raises two
questions for consideration. The first question is whether the nomination of
one of the rival
candidates,
Dudh Nath, was improperly accepted by the Returning
Officer and the second, whether the result of the election was thereby materially affected.
Eight candidates filed nominations to the Uttar
Pradesh Legislative
Assembly from Ghazipur
(South
East)
Constituency
No. 345,
three withdrew their
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....
i
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S.C.R .
SUPREME COURT REPORTS
511
candidature and
the contest was
confined
to
the
'954
remaining five. The votes. secured by these candidates
Vashist Narain
were as follows :-
Shartn•
1. Vashist Narain Sharma
2. Vireshwar Nath Rai
3. Mahadeo
12868
10996
3950
4. Dudh Nath
1983
5. Guiab Chand
1768
They were arrayed in the election petition as respondents Nos. 1 to 5 respectively. The first respondent
having secured the highest number of votes Was declared duly elected.
Three electors filed a petition under
section 81 of the Representation of the People Act (Act
XLIII of 1951) praying that the election of the returned candidate be declared void and that respondent No.
2 be declared to have been duly elected ; in the alternative,· that the election . be declared wholly void. The
election was sought to be set . aside on the grounds
inter alia, that the nomination of respondent No. 4 was
improperly accepted· by the Eiection Officer and that
the result of the . election_ was thereby materially affected. The Tribunal found that respondent No. 4, whose
name was entered on the dectoral roll of Gahmat Constituency G

## Text

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S.C.R.
SUPREME COURT REPORTS
509
of the defendants that they had discharged the hundi ;
and that that clearly imported an acknowledgment
of liability on the bill, and was sufficient to clothe the
plaintiff with a right of action thereon.
Assume that
the plea of discharge of a hundi implies an acknowledgment of liability thereunder-an assumption which
we find it difficult to accept. The question still remains
whether that is sufficient in law to fasten a liability on
the defendants on the hundi. What is requisite for
fixing the drawees with liability under section 32 is the
acceptance by them of the instrument and not an
acknowledgment of liability. As the law prescribes no
particular form for acceptance, there
sltould be no
difficulty in
construing
an acknowledgment as
an
acceptance ; but then, it must satisfy the requirements
of section 7, and must appear on the bill and be signed
by the drawees. In the present case, the acknowledgment is neither in writing; nor is
it signed by the
defendants. It is a matter of implication arising from
the discharge of the instrument. That is not sufficient
to fix a liability on the defendants under section 32.
In conclusion, we must hold that there was neither a
valid presentment of the hundi for acceptance, nor a
valid acceptance thereof.
In the result, the appeal fails, and is dismissed with
costs.
Appeal dismissed.
V ASHIT NARAIN SHARMA
v.
DEV CHANDRA AND OTHERS.
[S. R. DAs, GHULAM HASAN and JAGANNADHADAS JJ.]
Representation of the People Act, 1951 (Act XL/II of 1951),
s. 100(1) (c)-Words "the result of the election has been materially
affected"-lnterpretation of-Improper acceptance or rejection of a
nomination paper-Election-Validity of-Onus of proving that the
result
has
been materially affected-Finding of Election Tribunal
based on speculation and conjecture-Mis direction in law.
The words "the result of the election has been materially
affected" in section 100(1) (c) of the Representation of the People
1954
Seth Jagjivan
Mardi Vithlani
v.
Messrs. Ra11ehhod·
das Meghji.
Venkatarama
Ayyar].
1954
May20
1954
Yt1.thid .Narain
Sharma
v.
D1~ Cha'fldra and
Otlttrs.
510
SUPREME COURT REPORTS
[1955]
Act, 1951, indicate
that the result should not be judged by the
n1ere increase or decrease in the total nun*-r of votes
secured by
the
returned candidate but by proof of the fact that the \Vasted
votes \voul<l have been distributed in such a manner between the
contesting candidates
as
would have brought about the defeat of
the returned candidate.
Section 100(1) (c) clearly
places
a
burden on the
objector
to substantiate the
objection
that the result of the election has
been inaterially
affected by the in1propcr acceptance or
rejection
of the nornination paper.
1"he said section is too clear for any speculation about possibilities an<l
it lays
down that in1proper acceptance is not to be
regarded as fatal to the election unless the Tribunal is of opinion
chat the result has been inaterially affected.
) ..
-
If an Election Tribunal misdirects itself
in not con1prehending
the real
question before it and
proceeds n1erely on possibilities,.
speculation and conjecture, its or<ler must be set aside.
Al'
CIVIL
APPELLATE
JuR1smcTION :
Civil
Appeal
No. 151 of 1953.
Appeal by Special Leave granted by the Supreme
Court of India by its Order dated the 29th May,
1953,
from the Judgment and Order dated the 4th May, 1953,
of
the Election
Tribunal, Allahabad, in
Election
Petition No. 270 of 1952.
C.
K.
Daphtary,
Solicitor-General
for
India
(G. C. Mathur and C. P. Lal, with
him)
for the
appellant.
N aunit Lal for respondents Nos. 1 to 4.
1954. May 20. The Judgment of the Court was
delivered by
GHULAM
HASAN J.-This appeal preferred under
article 136 of the Constitution against the order, dated
May 4,
1951, of the
Election Tribunal, Allahabad,
setting aside the election of Sri Vashist Narain Sharma
to the Uttar Pradesh Legislative Assembly, raises two
questions for consideration. The first question is whether the nomination of
one of the rival
candidates,
Dudh Nath, was improperly accepted by the Returning
Officer and the second, whether the result of the election was thereby materially affected.
Eight candidates filed nominations to the Uttar
Pradesh Legislative
Assembly from Ghazipur
(South
East)
Constituency
No. 345,
three withdrew their
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....
i
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S.C.R .
SUPREME COURT REPORTS
511
candidature and
the contest was
confined
to
the
'954
remaining five. The votes. secured by these candidates
Vashist Narain
were as follows :-
Shartn•
1. Vashist Narain Sharma
2. Vireshwar Nath Rai
3. Mahadeo
12868
10996
3950
4. Dudh Nath
1983
5. Guiab Chand
1768
They were arrayed in the election petition as respondents Nos. 1 to 5 respectively. The first respondent
having secured the highest number of votes Was declared duly elected.
Three electors filed a petition under
section 81 of the Representation of the People Act (Act
XLIII of 1951) praying that the election of the returned candidate be declared void and that respondent No.
2 be declared to have been duly elected ; in the alternative,· that the election . be declared wholly void. The
election was sought to be set . aside on the grounds
inter alia, that the nomination of respondent No. 4 was
improperly accepted· by the Eiection Officer and that
the result of the . election_ was thereby materially affected. The Tribunal found that respondent No. 4, whose
name was entered on the dectoral roll of Gahmat Constituency Ghazipur (South East) 'personated' (meaning, passed himself off as) Dudh Nath Kahar and used
the entries of his electoral roll of Baruin Constituency
Ghazipur (South West), that the Returning Officer had
improperly
accepted
his
nomination,
and
that the
result of thr. election was thereby materially affected;
Allegations of major and minor ·corrupt practices and
non-Compliance
with certain statutory rules were made
but the
Tribunal found
in favour
of the
returned
carididate on those points.
'
Dudh Nath, respondent No'. 4, is' Raj put by caste.
His permahent or ai1testral home is Gahmar but since!
1943 he had been employed as a teacher in the Hindu
Higher Secondary School at Zamania-a town 10 or 12
miles away-and ·he . had been actually residing
_a~
village Baruin
which is quite close to Zamania. ·The
person: for. whom Dudli Nath 'personated' is Dudh;
Nath K:ihar whose permanent house is at Jamuah,
v.
Dev Chandra and
Others.
Chu/am Hasao J.
1954
V ashist Narain
Sharma
v.
Dev Chandra and
Otlurs.
Ghulam Hasan J.
512
SUPREME COURT REPORTS
[1955J
but his father lives
at Baruin. Dudh Nath Kahar
used to visit Baruin off and on but he was employed
at Calcutta. The nomination paper filed
by Dudh
Nath gave his parentage and age which more properly
applied to Dudh Nath Kahar. He gave his father's
name as Shiv Deni alias Ram Krit. Ram Krit is the
name of
Dudh Nath Kahar's father. The electoral
roll (Exhibit K) of Gahmar gives Dudh Nath's father's
na.me as Shio Deni with
no alias and his age as 39,
while the electoral roll of Pargana Zamania Mouza
Baruin (Exhibit C) gives Dudh Nath's father's name as
Ram Krit and his age as 31. In the electoral roll of
Jamuan Dudh Nath's age is entered as 34 but in the
supplementary list
is
mentioned
as
30. When the
nomination paper was filed on November 24, 1951, at
2-20 P.M. it was challenged by Vireshwar Nath Rai on
the ground that Dudh Nath's father's
name was
Shivadeni and not Ram Krit but no proof was given in
support of the
objection and it was overruled on
November 27. This order was passed at 1 P.M. One
of the .candidates, who later withdrew, filed an application at 3-25 P.M. before the Returning Officer offering to substantiate the objection which the objector
had not pressed. This application was rejected on the
ground that the nomination had already been declared
as valid. In point of fact no evidence was adduced.
This acceptance of the nomination on the part of the
Returning Officer is challenged as
being improper
under section 36( 6) of the Representation of the People
Act and as the result of the election according to the
objector has been materially affected by the improper
acceptance of this nomination, the Tribunal is bound
to declare the election to be wholly void under section
lOO(l)(c) of the Act. Mr. Daphtary on behalf of the
appellant has argued before us with reference to the
provisions of sections 33 and 36 that this is not a case
of improper
acceptance
of the nomination paper,
because prima lacit: the nomination paper was valid
and an objection having been raised but not pressed or
substantiated, the Returning Officer had no option but
to accept it.
There was, as he says, nothing improper
in the action of the Returning Officer. On the contrary,
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S.C.R.
SUPREME COURT REPORTS
513
it may,
according to
him, be more appropriately
described as a case of an acceptance of an improper
nomination paper by the Returning Officer, inasmuch
as the nomination paper contained an inherent defect
which was not discernible ex f acie and could be disclosed only upon an enquiry and upon the taking of
evidence as to the identity which was not then forthcommg. Such a case, it is argued,
IS not covered by
section lOO(l)(c) but by section 100(2)(c) in which case
the election of the returned candidate
IS alone to be
declared void, whereas in the former case the election
IS wholly void. We do not propose to express any
opmwn upon this aspect of the matter, as in our view
the appeal can be disposed of on the second question.
S1~ction 33 of the
Representation of the People Act,
1951, deals with the presentation of nomination paper
and lays down the requirements for a valid nomination.
On the date fixed for scrutiny of the nominations the
Returning Officer is required to examine the nomination paper and decide all objections which may be
made to any nomination, and after a summary inquiry,
if any, as he thinks necessary he is entitled to refuse
nomination on certain grounds mentioned in sub-section
(2) of section 36. Sub-section (6) lays down that the
Returning Officer shall endorse on each nomination
paper his decision accepting or rejecting the same and,
if the nomination paper is rejected, shall record in
writing a brief statement of his reasons for such rejection. This sub-section shows that where the nomination
paper
IS accepted, no reasons are required to be given.
Section 100 gives the grounds for declaring an election
to be void. The material portion is as follows :-
( 1) If the Tribunal is of opinion-
(a) ................... .
(b) ................... .
( c) that the result of the elections has been materially affected by the improper acceptance or rejection
of any nomination,
the Tribunal shall
declare the election to be wholly
void. It is under this sub-section that the election was
sought to be set aside •
1954
Vashisl Narain
Sharma
v.
Dev Chandra
and Others.
Ghu/om Hasan].
Vas hist Na rain
Sharma
~
Dtv Chandra
and Others.
Ghulam f/ruan].
514
SUPREME COURT REPORTS
[1955]
Before an election can be declared to be wholly void
under section lOO(l)(c), the Tribunal must find that
"the result of the election has been materially affected."
These words have been the subject of much controversy
before the Election Tribunals and it is agreed that the
opinions expressed have not always been uniform or
consistent. These words seem to us to indicate that
the result should not be judged by the mere increase or
decrease in the total number of votes secured by the
returned candidate but by proof of the fact that the
wasted votes would have been distributed in such a
manner between the
contesting candidates
as
would
have brought about the defeat of the returned candidate. The next question that arises is whether the
burden of proving this lies upon the petitioner who
objects to the validity of the election. It appears to us
that the volume of opinion preponderates in favour of
the view that the burden lies
upon the objector. It
would be useful to refer to the corresponding proviiion
in the English Ballot Act, 1872, section 13 of which is
as follows :-
"No election shall be declared invalid bv reason of
a non-compliance with the rules contained in the first
schedule to this Act, or .any mistake in the use of the
forms in the second schedule to this Act, if it appears
to the Tribunal having cognizance of the question
1l1at
the election was conducted in accordance with the
principle; laid down in the body of this Act, and that
such non-compliance or mistake did not affect the
result of the election."
This section indicates that an election is not to be
declared invalid if it. appears to the. Tribunal that noncompliance with statutory rules or any mistake in the
use of such forms did not affect the result of the election. This throws the onus on the person who seeks to
uphold the election. The language of section lOO(l)(c),
however,
clearly places a burden upon the objector to
substantiate the objection that the result of the election
has heen
materially
affected.
On the contrary under
the English Act the burden is placed upon the respondent to show the negative, viz., that. the result of the
decision has not been affected. This . view was expressed
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'S.C.R.
SUPREME COURT REPORTS
515
in Rai Bahadur Surendra Narayan Sinha v. Amulyadhone Roy & Others(!), by a Tribunal presided over by
Mr.
(later Mr. Justice)
Roxburgh.
The contention
advanced in that case was
that the petitioner having
established an irregularity it
was
the duty of
the
respondent to show that the result of the election had
not been
materially
affected
thereby.
The
Tribunal
referred to the provisions of section 13 of the Ballot
Act and drew a distinction between that section and
·the provisions of paragraph 7 ( 1) ( c)
of Corrupt Practices
Order which was more or less on the same lines as section 100( 1) ( c). They held that the onus is differently
_placed by the two provisions. While under the English
Act the Tribunal hearing an election petition is enjoined
not to interfere with an election if it appears to it that
non-compliance with the rules or mistake in the use of
forms did not affect the result of the election, the
provision of paragraph 7 ( 1) ( c)
placed the burden on
the petitioner. The Tribunal recognized the difficulty
of offering positive
proof in such circumstances but
expressed the view ·that they had to interpret and
follow the rule as it stood.
In C. M. Karale v. Mr. B. K. Dalvi etc.( 2), the Tribunal
held that the onus of proving that the result had been
materially
affected rests
heavily
on the · petitioner of
:proving by affimiative
evidence
that all or a large
number of votes would have come to the · returned
candidate. if the person . whose nomination had been
improperly accepted· had not been in the field.
In Babu Basu Sinha v. Babu Rajandhari Sinha etc. (
3),
it was emphasized that it is not enough for the petitioner
to_ show that the result of the election might have been
affected but he must show that it was
actually affected
·thereby.
· The case of Jagdish Singh v. Shri Rudra Deolal etc. ("),
·was one under section 100(1) (c) of the Representation
·of the ·People Act. It was held that the question should
:always be decided on the. basis of the material on the
(t) _Indian Election Cases by Sen and Poddar, ,page t88 •..
(2) Doabia's _Election Cases, Vol. I (p. 178). .
.
(3)· Indian Election Petitions (Vol. III) by Sbri Jagat Narain page 80.
(.4) Gazette of India (Extraordinary) October 13, 1953.
·
'
1954
Vas hist Narain
Sharma
v.
Dev Chandra
and Others.
Ghulam Hasan].
1954
V ashist Narain
Sharma
v.
Dev
Chandra
and Others.
Ghulam Hasan J.
516
SUPREME COURT REPORTS
[1955}
record and not on mere probabilities. T?e Tribunal
distinguished between an improper rejection and an
improper acceptance of
nomination
observing that
while in the former case there is a presumption that
the election had been materially affected, in the latter
case the petitioner must prove by affirmative evidence,
though it is difficult, that the result had been materially affected.
The learned counsel for the respondents concedes.
that the burden of proving that the improper acceptance of a nomination has materially affected the result
of the election lies upon the petitioner but he argues.
that the question can arise in one of three ways :
(1) where the candidate whose nomination was,
improperly accepted had secured less votes than thedifference
between the returned
candidate
and
the
candidate securing the next highest number of votes,
(2) where the person referred to above secured·
more votes, and
(3) where the person whose nomination has been:
improperly accepted is
the returned candidate himself..
It is agreed that in the first case the result of the
election is not materially affected because if all thewasted votes are added to the votes of the candidate
securing the highest votes, it will make no difference
to the result and the returned candidate will retain theseat. In the other two cases it is contended that theresult is materially affe.cted.
So far as the third caseis
concerned it may be readily conceded that such
would be the conclusion. But we are not prepared
t<>
hold that the mere fact that the wasted votes aregreater than the margin of votes between the returned'
candidate and the candidate securing the next highest
number of votes must lead to the necessary inferencethat the result of the election has been materially
affected. That is a matter which has to be proved and'
the onus of proving it lies upon the petitioner. It wi11'
not do merely to say that all or a majority of thewasted votes
might have gone to the next highest
candidate. The casting of votes at an election depend"
upon a variety of factors and it is not possible for any
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S.C.R.
SUPREME COURT REPORTS
517
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 section 100(1) (c) and hold without evidence that
the duty has been discharged. Should the petitioner
fail
to adduce
satisfactory
evidence
to
enable the
Court to find in his favour on this point, the inevitable
result would be that the Tribunal would not interfere
in his favour and would allow the election to stand .
In two cases
[Lakhan Lal Mishra v. Tribeni Kumar
etc. (1) and Manda! Sumitra Devi v. Sri Surajnarain
Singh etc.( ) ], the Election Tribunal, Bhagalpur, had
to consider the question of improper acceptance of the
nomination paper.
They
agreed
that
the
question
whether the result of election had been materially
affected must be proved by affirmative evidence. They
laid down the following test :-
"If the number of votes secured by the candidate,
whose nomination paper has been improperly accepted,
is lower than the difference between the number of
votes
secured by
the successful candidate and the
candidate who has secured the next highest number of
votes, it is easy to find that the result has not been
materially
affected. If, however,
the i;i.umber of votes
secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee
what
the result would have been if that candidate had not
been in the field.
It will neither be possible to say
that the result would actually have been the same or
different nor that it would have been in all probability
the same or different."
In both the cases the margin of votes between the
successful candidates and the next highest candidate
was less than the number of votes secured by the
candidate whose nomination was improperly accepted .
They held that the result was materially affected. We
are unable to accept the soundness of this view. It
seems to us that where the margin of votes is greater
(2) Gazette oflndia (Extry.J Feby. 2, 1953.
(1) Gazette oflndia (Extry.) Fcby. 26, 1953.
1954
Vashist Naraitt
Sharma
v.
Dev
Chandra
and Others.
Ghulam Hasan j.
V a.sJiist Narain
Sharma
v.
Dtv C!1andra
and Ot/iers.
C!mlam Hasan J.
518
SUPREME COURT REPORTS
[1955]
than the votes secured by the candidate whose nomination paper had been improperly accepted, the result
is not only materially not affected but not affected at
all ; but where it is not possible to anticipate the result
as in the above mentioned cases, we think that the
petitioner
must discharge
the burden of proving that
fact and on his failure to do so, the election must be
allowed to stand.
The Tribunal in the present case rightly took the
view that they were not impressed with the oral
evidence about the probable fate of votes wasted on
Dudh Nath
Singh, but they went on
to
observe :
"Considering
that
Dudh
Nath respondent
No. 4
received more votes than the margin of votes by which
respondent No. 1 was returned we are constrained ·to
hold
that
there
was
reasonable
possibility
of respondent No. 2 being elected in place of respondent
No. l, had Dudh Nath not been in the field." We are
of opinion that the language of section 100(1) ( c) is too
clear
for
any
speculation
about
possibilities.
The
section clearly lays down that improper acceptance is
not to be regarded as fatal to the election unless the
Tribunal is of opinion that the result has· been materially
affected.
The number of wasted votes
was
lll.
It is impossible to accept the ipse dixit of witnes3es
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 questi<m
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.
Such result
may
operate
harshly
upon
the
petitioner seeking to set aside the election on the
ground of improper acceptance of a nomination paper,
but neither the Tribunal, nor this Court is concerned
with the inconvenience resulting from the operation of
the law. How this state of things can be remedied is
a matter ·entirely for the Legislature to consider.
The
English
Act to which we have referred
presents .. no
such conundrum and lays down a perfectly sensible
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S.C.R.
SUPREME COURT REPORTS
519
criterion upon which the Tribunal can proceed to
declare its opinion. It directs the Tribunal not to set
aside the election if it is of opinion that the irregularity has not materially affected the result.
Mr. Naunit Lal argued that the finding that the
result of the election has been materially affected is a
finding of fact which this Court should not interfere
with in special appeal but there is no foundation for
the so-called finding of fact. If the Tribunal could
not be sure that the respondent No. 1 would get only 56
out of the wasted
votes
to give him_ an absolute
majority, how could the Tribunal conjecture that all
the wasted votes would go to the second best candidate.
The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon
a mere possibility. Their finding upon the matter is
speculative and conjectural.
Mr. Naunit Lal also attempted to argue that he
could support the decision of the Tribunal on other
grounds which had been found
against
him and
referred to the analogy of the Code of Civil Procedure
which permits a respondent to take that course. That
provision has no application to an appeal granted by
special leave under article 136. We have no appeal
before us on behalf of the respondents and we are
unable to allow that question to be reagitated.
The result is that we set aside the order of the
Tribunal and hold that it is not proved that the result
of the election has been materially affected by an
improper acceptance of the nomination, assuming that
the case falls within the purview of section 36(6) :md
that finding is correct.
We accordingly set aside the order of the Tribunal
and uphold
the election of the appellant. The appellant will get his costs from the respondents incurred
here and in the proceedings before the Tribunal.
Order accordingly.
/
V ashist N araitr
Sharma
v.
Dev Chandra
alfd Others.
Chu/am Hasan].