# \ , TEKCHAND v. DILE RAM

- **Citation:** [2001] 1 S.C.R. 527
- **Court:** Supreme Court of India
- **Decided:** 2001-01-24
- **Bench:** Dr. A.S. Anand, R.C. Lahoti, Shivaraj V. Patil
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tekchand-v-dile-ram-17865
- **Pages:** 32

## Headnote

Election law:
Representation of the People Act, 1951: S.IOO(l)(d).
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
A
B
c
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.
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
F
the election--But no orders passed before the expiry of the notice periodEleclion 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.
D
E
F
G
On behalf of the appellant it was contended that N, much before the
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.
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.
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
2.
Whether the result of the election, insofar as it concerned the
appellant, had been materially affected to dec

## Text

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\
,
TEKCHAND
v.
DILE RAM
JANUARY 24, 2001
[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).
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
A
B
c
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.
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
F
the election--But no orders passed before the expiry of the notice periodEleclion 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.
D
E
F
G
On behalf of the appellant it was contended that N, much before the
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.
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.
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
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 crossexamination 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
.J.:-
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,
D
admittedly, the appointing authority did not refuse to grant the permission
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
E
provisions, more so in the light of law laid down by this Court. The argument
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
~
ifthe refusal of voluntary retirement is not communicated within the period
G 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.
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
E
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
A
B
c
D
532
SUPREME COURT REPORTS
[200 I] I S.C.R.
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:-
Sr. No. Name of the
Party affiliation
Number of
candidate
votes polled
I.
Sh. Tek Chand
Indian National Congress
14,390
2.
Sh. Dile Ram
Bhartiya Janata Party
13,631
3.
Sh. Sohan Lal
Janata Dal
328
4.
Sh. Damodar
Himachal Vikas Party
9,182
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 N ikka 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
F
G
disqualified from contesting the election in view of the bar created under
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
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.
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
B
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 respondent9 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.
D
E
Shri D.D. Thakur, learned senior counsel for the appellant, urged that:
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
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. I 994 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
N ikka Ram for participating in election; in response to letter
dated 25.3.1998 of the respondent a reply was given on 26.3.1998
G
H
long after the result of election was declared on 3.3.1998. In
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
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.
'
The respondent did not specifically plead giving material
J.
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 c
show that trend or pattern of voting when in all there were five
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
D
witnesses including that of the respondent made in examinationin-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
A
SUPREME COURT REPORTS
[2001] I S.C.R.
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
c
D
E
F
G
specified in the notice was not automatic; acceptance of
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
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:-
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
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 -
(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.
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
c
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 examinationin-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
F
resident of his constituency and his Panchayat. He was not aware whether
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
·1
...
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
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
-tremaining 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 crossexamination, 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 ·crossexamination, 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
election that he belonged to BJP; he would join BJP in case he was elected
F
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 crossexamination 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
B
on him. Even otherwise the rebuttal evidence is very much there as contained
•
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. R W2
E in his evidence has further stated that Nikka Ram contested the election as
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.