Madhya Pradesh High Court
Kankar Munjare vs Election Commission Of India on 6 February, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 6th OF FEBRUARY, 2023
ELECTION PETITION NO.33/2019
BETWEEN:-
KANKAR MUNJARE, S/O SHRI RAMCHANDRA
MUNJARE, OCCUPATION AGRICULTURE, AGED
ABOUT 67 YEARS, R/O WARD NO.19, CIRCUIT
HOUSE ROAD, BALAGHAT, TAHSIL AND
DISTRICT BALAGHAT (M.P.)
.....PETITIONERS
(BY SHRI SHYAM YADAV - ADVOCATE AND SHRI SANJAY
KUMAR MALVIYA - ADVOCATE)
AND
1. MUKHA CHUNAV AYUKT, THROUGH
BHARAT NIRVACHAN AYOG, NIRVACHAN
SADAN, ASHOKA ROAD, NEW DELHI 110001
BHARAT.
2. MUKHA NIRVACHAN PADADHIKARI M.P.
NIRVACHAN SADAN, 17, ARERA HILLS,
BHOPAL M.P.
3. RETURNING ADHIKARI, BALAGHAT
DISTRICT BALAGHAT M.P.
4. ALI A.M.KHAN, S/O MOHD. DILAWAR
KHAN, AGED 62 YEARS, R/O SHAHEED
WARD, KATNI ROAD, NEAR NOOR MASJID,
SEONI, TAHSIL AND DISTRICT SEONI M.P.
5. DR. DHALSINGH BISEN, S/O. SHRI
SEVAKRAM BISEN, AGED 62 YEARS, R/O.
S.P. BANGLE KE PASS, BABRIYA ROAD, C.V.
2
RAMAN WARD, BARAPATHAR, SEONI,
480661, M.P.
6. MADHU BHAGAT S/O SHRI RAMDAYAL
BHAGAT, AGED 49 YEARS, R/O GRAM POST
CHAREGAON 2, TAHSIL AND DISTRICT
BALAGHAT M.P.
7. ABHISHEK BILHORE S/O. NOT KNOWN,
R/O. WARD NO.11, GRAM KHERI, TAHSIL
KHERLANJI, DISTRICT BALAGHAT M.P.
8. KARAN SING NAGPURE, S/O SHRI
VISANDAS NAGPURE, AGED 38 YEARS, R/O.
GRAM BIRANPUR, POST SAVRI KHURD,
TAHSIL LANJI, DISTRICT BALAGHAT M.P.
9. JAISING TEKAM, S/O. NOT KNOWN, AGED
63 YEARS, R/O. VILLAGE MOHGAON, POST
DONGRIYA, TAHSIL PARASWADA,
DISTRICT BALAGHAT M.P.
10. MUKESH BASOD S/O. MJANAN BASOD,
AGED 42 YEARS, R/O WARD NO.9, GRAM
SANVRI, TAHSIL KHERLANJI, DISTRICT
BALAGHAT M.P.
11. YUVRAJ SING BAIS, S/O GAINDASING,
AGED 49 YEARS, R/O. 26/3,
NEVRHAGAONKALAWAN, TAHSIL
KIRNAPUR, DISTRICT BALAGHAT M.P.
12. RAJAN MASEEH S/O SHRI G. MASEEH,
AGED ABOUT 62 YEARS, R/O.
SHANTINAGAR, WARD NO.14, KIRNAPUR,
TAHSIL KIRNAPUR, DISTRICT BALAGHAT
M.P.
13. BABU RAJENDRA DHOKE, S/O. SHRI
TIKARAM DHOKE, AGED 62 YEARS, R/O
BUDHI WARD NO.13, (SUBHASHNAGAR)
BALAGHAT, TAHSIL & DISTRICT
BALAGHAT M.P.
14 SATISH TIWARI, S/O NOT KNOWN, AGED 42
YEARS, R/O. GRAM POST DEVRI, TAHSIL
KATANGI, DISTRICT BALAGHAT M.P.
15 ADVOCATE SATPRAKASH SHULKE, S/O.
NOT KNOWN, R/O. WARD NO.32, NARMADA
3
NAGAR, BALAGHAT, TAHSIL AND DISTRICT
BALAGHAT M.P.
16. KISHORE SAMRITE, S/O. SHRI NANAJI
SAMRITE, AGED 56 YEARS, R/O WARD NO.3,
LANJI, TAHSIL LANJI, DISTRICT
BALAGHAT M.P.
17. G.L.G. TANDEKAR, S/O NOT KNOWN, R/O.
GRAM TEKADI TIJU, POST SHANKAR
PIPRIYA, TAHSIL KHERLANJI, DISTRICT
BALAGHAT M.P.
18. NARAYAN BANJARE S/O. NOT KNOWN, R/O.
GRAM POST DAMOH, TAHSIL BIRSA,
DISTRICT BALAGHAT M.P.
19. PREETAM BORKAR S/O NOT KNOWN, R/O.
GRAM DULAPUR, POST BADGAON, TAHSIL
LANJI DISTRICT BALAGHAT, M.P.
20 BODHSINGH BHAGAT S/O. NOT KNOWN,
R/O. GRAM GHUBADGODI, TAHSIL
KHERLANJI, DISTRICT BALAGHAT M.P.
21. MAQBOOL SHAH, S/O NOT KNOWN, R/O.
WARD NO.12, LAKHNADON, TAHSIL
LAKHNADON, DISTRICT SEONI M.P.
22. SMT MANISHA BAIDYA S/O NOT KNOWN
R/O. WARD NO.12, R/O. GRAM PANCHAYAT
GARRA SURAJ TILES, POST GARRA,
TAHSIL BARRA, DISTRICT BALAGHAT M.P.
23 MIR SHYAM LILHARE LODHI S/O NOT
KNOWN, R/O GRAM MOHGAON BEJU,
TAHSIL KHERLANJI, DISTRICT BALAGHAT
M.P.
24. RAKESH KUMAR S/O NOT KNOWN, R/O.
GRAM POST DHAPARA (GANGERUA) PS
ARI, TAHSIL BARGHAT DISTRICT SEONI
M.P.
25. ROOPLAL KUTRAHE (SAMAJ SEVAK)
LODHI S/O. NOT KNOWN, R/O WARD NO4,
DEVTOLA, DISTRICT BALAGHAT M.P.
.....RESPONDENTS
4
(RESPONDENT NO.5 BY SHRI GYANENDRA SINGH BAGHEL - ADVOCATE)
(NOBODY APPEARED FOR OTHER RESPONDENTS)
................................................................................................................................................
Reserved on: 30.01.2023
Pronounced on: 06.02.2023
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
ORDER
Invoking Sections 80 & 81 of the Representation of People
Act, 1951 (in short "Act, 1951") this election petition has been filed by the
petitioner questioning the Election of Parliamentary Constituency No.15
and for declaring such election as void and it be cancelled.
2. The succinct portrayal of facts as per the petitioner is that in
an election of Parliamentary Constituency conducted in the year 2019,
the petitioner was one of the candidates, who participated in that
election and submitted his nomination form on 09.04.2019 disclosing
the fact that he is a resident of Balaghat and his name finds place in the
voter-list. Similarly, other candidates have also submitted their
nomination forms. In furtherance thereto, the scrutiny of nomination
papers got done on 10.04.2019 and the date of withdrawal of nomination
form was fixed till 12.04.2019. Further, the date of polling was
scheduled as 29.04.2019 and date of counting of votes was fixed as
23.05.2019 and the date of concluding the election was 27.05.2019. The
election program was declared by the Election Commission, which is
made appendage to the election petition.
(i) In pursuance to the notification issued by the Government of India
on 02.04.2019, the election got conducted. The election petitioner
participated in the election from Balaghat Constituency and submitted
his nomination form as a candidate of Bahujan Samaj Party (BSP). His
nomination papers were accepted and was granted BSP's symbol i.e.
Elephant.
(ii) Respondent No.16 Kishore Samrite also submitted his nomination
form as independent candidate giving incorrect information in the
nomination form and also suppressing certain material information with
regard to his past criminal antecedents, but even though his nomination
was accepted and he was allowed to contest the election. As averred in
the election petition, respondent No.16 was awarded with a punishment
of five years conviction and against the judgment of criminal trial,
Cr.A.No.27/2010 was filed and was pending in the High Court.
Although the sentence was temporarily suspended by the High Court,
but still according to the election-petitioner, respondent No.16 was not
eligible to participate in the election. Astoundingly, the returning officer
while ignoring the said material aspect, accepted his nomination paper
and also allotted him symbol of 'Cup & Plate'. As per the election
petitioner, the acceptance of nomination form of respondent No.16 by
the returning officer illegally vitiates the whole election illegal and as
such it deserves to be declared void.
(iii) As scheduled, on 29.04.2019 the polling was done and all the
Electronic Voting Machines (EVM) used in the election were kept in
strong-room inasmuch as counting was scheduled for 23.05.2019 that is
after a period of 24 days. As per the petitioner, on the date of counting
of votes, it was noticed that EVMs of polling booth No.100 of Lanji;
booth No.9 of Paraswara Constituency Chandna; booth No.23 Silgi;
booth No.28 Khalondi; booth No.65 Chudki; booth No.57 Sahjana and
booth No.24 of Bhalwa, were surprisingly found 99% charged. An
immediate objection with regard to astonished defect was reported to the
incharge of the booths by the representatives of the political parties
saying as to how even after 24 days, EVMs can display 99% charged,
but brushing aside those objections even counting was continued and the
election result was also declared in which respondent No.5 secured
696102 votes; election-petitioner secured 85177 votes and respondent
No.16 secured 7365 votes.
(iv) In the election petition, it is also averred that respondent No.5 did
not disclose the material information that the lands comprised in khasra
No.772 of Gram Pipariya Tahsil Balaghat; khasra No.306/4 of Gram
Anagarh and khasra No.124/9 of Gram Jiyarat, belonged to his family
members i.e. wife and sons and also did not disclose the information
with regard to other immovable property. The election petition also
contains that over the land comprised in khasra No.124/9 there situates a
shop in which a liquor shop was being run and the cost of said shop was
around Rs.6 lakh and that was one of the main source of income of
respondent No.5, but in the affidavit filed along with nomination form,
this fact has not been disclosed. This illegality has also been overlooked
by the returning officer while accepting the form of respondent No.5
whereas this material suppression was the very ground for rejecting the
nomination form of respondent No.5. The election of respondent No.5 is
also challenged on the ground that the returning officer committed
illegality in accepting the nomination form of respondent No.16 and as
such the whole election was vitiated and thus it be cancelled.
(v) It is further averred in the petition that respondent No.5 did not
disclose the actual assets and suppressed material information with
regard to properties owned by him and also did not disclose the fact that
on his land, he is running a liquor shop which is one of the main sources
of his income and as such respondent No.5 be declared ineligible to
contest the election and his election on these grounds can be declared
void. It is also alleged that the objection with regard to defect in EVMs
in number of polling booths is not entertained by the returning officer
properly and as such the election is illegal and should be cancelled.
(vi) Respondent No.5, who is main contesting respondent, as his
election was put to question and was a returned candidate, submitted his
written-statement therein denied the allegations made in the election
petition and also submitted that no information with regard to his
property was concealed by him. It is also stated in the written-statement
that if nomination form of respondent No.16 was found illegally
accepted, it does not materially affect the election because he secured
only 7365 votes, whereas respondent No.5 secured 696102 votes. It is
also stated in the written-statement that the objection with regard to
defect in EVMs was pointed-out, which was duly entertained by the
returning officer in time, but did not find any substance in the objection
inasmuch as the experts from the company which supplied EVMs, were
called, who personally examined the machines and opined that there was
no perceivable defect. The written-statement further contains that the
election was conducted with all fairness and there is no significant
reason available to get the whole election annulled that too on the basis
of petitioner's unfounded apprehension.
3. At trial, this Court framed as many as six issues. The parties
produced their witnesses and led their evidence. For the purpose of
convenience those issues are reproduced hereinbelow-
"(i) Whether the nomination paper of respondent No.16
was improperly accepted?
(ii) Whether the respondent No.16 was disqualified from
contesting the election for the reason of his being
convicted and sentenced to 5 years imprisonment in
S.T.No.15/2017?
(iii) Whether the election in so far as it concerns the
respondent No.5/Returned candidate has been materially
affected by the improper acceptance of his nomination?
(iv) Whether respondent No.5/Returned candidate has
not disclosed his income and details of other immovable
properties, if yes, whether it has materially affected the
election?
(v) Whether the EVM of polling booth No. 9, 12, 23, 28,
65, 57 and 24 of Parliamentary Constituency No.15 were
tampered and if yes, whether the election deserves to be
set aside?
(vi) Relief and costs?"
4. Juxtaposing the issues framed with the pleadings and
evidence led by the parties, to evade repetitiveness, I find it profitable to
answer certain issues by clubbing them together. Accordingly, issue
Nos.(i), (ii) & (iii) are conjointly dealt with and answered.
Issue Nos.(i), (ii) & (iii)
Adumbration of pleadings in regard to these issues is made in
paragraphs No.4, 5 and 6 of the election petition. It is contended by the
learned counsel for the petitioner that in the statement of election-
petitioner, it is stated that form of respondent No.16 Kishore Samrite
was wrongly accepted inasmuch as he was awarded sentence for a term
of five years imprisonment and as such he was ineligible to contest the
election. A specific query was also made to the Collector being a
returning officer, who clarified that nomination form of Kishore Samrite
was Ex.P/11 and whatever information given by him in affidavit were
correct and that it does not come within his jurisdiction to conduct an
enquiry with regard to testing the veracity of supplied information. To
reinforce this submission, learned counsel has placed reliance on the
decision of the Supreme Court in re Resurgence India v. Election
Commission of India and another (2014) 14 SCC 189, pinpointing
paragraphs 20 and 21, which I feel it apt to quote hereunder:-
"20. Thus, this Court held that a voter has the
elementary right to know full particulars of a candidate
who is to represent him in the Parliament and such right
to get information is universally recognized natural right
flowing from the concept of democracy and is an
integral part of Article 19(1)(a) of the Constitution. It
was further held that the voter's speech or expression in
case of election would include casting of votes, that is to
say, voter speaks out or expresses by casting vote. For
this purpose, information about the candidate to be
selected is a must. Thus, in unequivocal terms, it is
recognized that the citizen's right to know of the
candidate who represents him in the Parliament will
constitute an integral part of Article 19(1)(a) of the
Constitution of India and any act, which is derogative of
the fundamental rights is at the very outset ultra vires.
21. With this background, Section 33A of the RP Act
was enacted by Act 72 of 2002 with effect from
24.08.2002. Thus, the purpose of the Act 72 of 2002 was
to effectuate the right contemplated in Association for
Democratic Reforms (supra). However, the legislators
did not incorporate all the suggestions as directed by this
Court in the above case but for mandating all the
candidates to disclose the criminal antecedents under
Section 33A by filing an affidavit as prescribed along
with the nomination paper filed under Section 33(1) of
the RP Act so that the citizens must be aware of the
criminal antecedents of the candidate before they can
exercise their freedom of choice by casting of votes as
guaranteed under the Constitution of India. As a result, at
present, every candidate is obligated to file an affidavit
with relevant information with regard to their criminal
antecedents, assets and liabilities and educational
qualifications."
Learned counsel for the election petitioner further placed reliance
on a decision of Supreme Court in re Krishnamoorthy v. Sivakumar
and others (2015) 3 SCC 467, focusing on paragraphs 86 and 94,
which are indispensable to be reproduced hereunder:-
"86. From the aforesaid, it is luculent that free exercise
of any electoral right is paramount. If there is any direct
or indirect interference or attempt to interfere on the part
of the candidate, it amounts to undue influence. Free
exercise of the electoral right after the recent
pronouncements of this Court and the amendment of the
provisions are to be perceived regard being had to the
purity of election and probity in public life which have
their hallowedness. A voter is entitled to have an
informed choice. A voter who is not satisfied with any of
the candidates, as has been held in People's Union for
Civil Liberties (NOTA case), can opt not to vote for any
candidate. The requirement of a disclosure, especially
the criminal antecedents, enables a voter to have an
informed and instructed choice. If a voter is denied of
the acquaintance to the information and deprived of the
condition to be apprised of the entire gamut of criminal
antecedents relating to heinous or serious offences or
offence of corruption or moral turpitude, the exercise of
electoral right would not be an advised one. He will be
exercising his franchisee with the misinformed mind.
That apart, his fundamental right to know also gets
nullified. The attempt has to be perceived as creating an
impediment in the mind of a voter, who is expected to
vote to make a free, informed and advised choice. The
same is sought to be scuttled at the very commencement.
It is well settled in law that election covers the entire
process from the issue of the notification till the
declaration of the result. This position has been clearly
settled in Hari Vishnu Kmath v. AhmadIshaque and
others [(2006) 7 SCC 1], Election Commission of India
v. Shivaji [(2001) 3 SCC 594] and V.S. Achuthanandan
v. P.J. Francis and Another [AIR 1955 SC 233]. We have
also culled out the principle that corrupt practice can
take place prior to voting. The factum of non-disclosure
of the requisite information as regards the criminal
antecedents, as has been stated hereinabove is a stage
prior to voting.
94. In view of the above, we would like to sum up our
conclusions:
94.1 Disclosure of criminal antecedents of a candidate,
especially, pertaining to heinous or serious offence or
offences relating to corruption or moral turpitude at the
time of filing of nomination paper as mandated by law is
a categorical imperative.
94.2 When there is non-disclosure of the offences
pertaining to the areas mentioned in the preceding
clause, it creates an impediment in the free exercise of
electoral right.
94.3 Concealment or suppression of this nature deprives
the voters to make an informed and advised choice as a
consequence of which it would come within the
compartment of direct or indirect interference or attempt
to interfere with the free exercise of the right to vote by
the electorate, on the part of the candidate.
94.4 As the candidate has the special knowledge of the
pending cases where cognizance has been taken or
charges have been framed and there is a non- disclosure
on his part, it would amount to undue influence and,
therefore, the election is to be declared null and void by
the Election Tribunal under Section 100(1)(b) of the
1951 Act.
94.5 The question whether it materially affects the
election or not will not arise in a case of this nature."
Further, learned counsel for the election petitioner placed reliance
on decision of the Supreme Court in re Mairembam Prithviraj v.
Pukhrem Sharatchandra Singh (2017) 2 SCC 487, particularly
paragraph 23, which is reproduced hereunder:-
"23. It is clear from the above judgment in Durai
Muthuswami [(1973) 2 SCC 45] that there is a
difference between the improper acceptance of a
nomination of a returned candidate and the improper
acceptance of nomination of any other candidate. There
is also a difference between cases where there are only
two candidates in the fray and a situation where there
are more than two candidates contesting the election. If
the nomination of a candidate other than the returned
candidate is found to have been improperly accepted, it
is essential that the election Petitioner has to plead and
prove that the votes polled in favour of such candidate
would have been polled in his favour. On the other
hand, if the improper acceptance of nomination is of the
returned candidate, there is no necessity of proof that
the election has been materially affected as the returned
candidate would not have been able to contest the
election if his nomination was not accepted. It is not
necessary for the Respondent to prove that result of the
election in so far as it concerns the returned candidate
has been materially affected by the improper acceptance
of his nomination as there were only two candidates
contesting the election and if the Appellant's
nomination is declared to have been improperly
accepted, his election would have to be set aside
without any further enquiry and the only candidate left
in the fray is entitled to be declared elected."
By placing reliance on the above judgments, particular paragraphs
thereof quoted above, the principal contention of learned counsel for the
petitioner is that as per the provisions of Section 33A of Act, 1951, it is
clear that when a candidate suffering a punishment of imprisonment for
a period of more than two years, then he is not eligible to contest the
election.
To keep clarity in the understanding, Section 33A is reproduced
hereunder:-
"33A. Right to information- (1) A candidate shall, apart
from any information which he is required to furnish,
under this Act or the rules made thereunder, in his
nomination paper delivered under sub-section (1) of
section 33, also furnish the information as to whether--
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending case in
which a charge has been framed by the court of
competent jurisdiction;
(ii) he has been convicted of an offence [other than
any offence referred to in sub-section (1) or sub-section
(2), or covered in sub-section (3), of section 8] and
sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be,
shall, at the time of delivering to the returning officer the
nomination paper under sub-section (1) of section 33,
also deliver to him an affidavit sworn by the candidate in
a prescribed form verifying the information specified in
sub-section (1).
(3) The returning officer shall, as soon as may be after the
furnishing of information to him under sub-section (1),
display the aforesaid information by affixing a copy of
the affidavit, delivered under sub-section (2), at a
conspicuous place at his office for the information of the
electors relating to a constituency for which the
nomination paper is delivered."
Shri Shyam Yadav, learned counsel for the election petitioner
submitted that in view of referral of the decisions of the Supreme Court
that accepting the nomination form of a candidate not eligible to contest
the election, is a situation which materially affects the election and as
such it be declared void and need to be annulled.
Shri Baghel, learned counsel appearing for respondent No.5
submitted that in the nomination form of respondent No.16, marked as
Ex.P/11, required information about the criminal case has been
disclosed by him and also disclosed about the pendency of appeal
against conviction before the High Court. As such, there was nothing
illegal on the part of respondent No.16 and his nomination form was
rightly accepted by the returning officer. Even otherwise, if the
nomination form of respondent No.16 is accepted illegally, that does not
materially affect the election and as such on the said ground the election
of returned candidate cannot be brought under the clouds. He further
submitted that Section 100 (1)(b) of Act, 1951 provides the grounds
under which election can be declared void and he submitted that the
grounds raised by the petitioner in his petition are neither available to
him nor are they in consonance with the required grounds for getting
declared the election of returned candidate void. It is germane to quote
Section 100 of Act, 1951, which read thus;-
"100. Grounds for declaring election to be void.--(1)
Subject to the provisions of sub-section (2) if 2 the High
Court is of opinion--
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified, to be
chosen to fill the seat under the Constitution or this Act
[or the Government of Union Territories Act, 1963 (20
of 1963)]; or
(b) that any corrupt practice has been committed by
a returned candidate or his election agent or by any
other person with the consent of a returned candidate or
his election agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected--
(i) by the improper acceptance or any nomination,
or
(ii) by any corrupt practice committed in the
interests of the returned candidate [by an agent other
than his election agent], or
(iii) by the improper reception, refusal or rejection
of any vote or the reception of any vote which is void,
or
(iv) by any non-compliance with the provisions of
the Constitution or of this Act or of any rules or orders
made under this Act, 2
the High Court shall declare the election of the returned
candidate to be void.
(2) If in the opinion of [the High Court], a returned
candidate has been guilty by an agent other than his
election agent, of any corrupt practice but [the High
Court] is satisfied--
(a) that no such corrupt practice was committed at
the election by the candidate or his election agent, and
every such corrupt practice was committed contrary to
the orders, and 8[without the consent], of the candidate
or his election agent;
(c) that the candidate and his election agent took
all reasonable means for preventing the commission of
corrupt practices at the election; and
(d) that in all other respects the election was free
from any corrupt practice on the part of the candidate or
any of his agents, then [the High Court] may decide that
the election of the returned candidate is not void."
Shri Baghel, learned counsel for respondent No.5 submitted that
acceptance of nomination form of any of the candidates illegally is not a
ground of declaring the election void. Instinctively, ground (1)(d) very
categorically provides that accepting the nomination form improperly if
materially affects the election of returned candidate then only it can be
declared void. He further submitted that here in the case at hand, the
votes secured by respondent No.16 if at all counted in favour of election
petitioner, even then that would not affect the election of returned
candidate. He also submitted that all the decisions, in which petitioner
has placed reliance, are related with the acceptance of nomination form
of a returned candidate, not disclosing the material fact and information
with regard to criminal antecedent. But, here in this case, the petitioner
is not alleging anything against acceptance of nomination form of
returned candidate, rather alleging improper acceptance of nomination
form of respondent No.16, who was not the returned candidate and even
otherwise his election does not materially affect the election of returned
candidate. Shri Baghel submitted that issue No.(i) could not be proved
by the petitioner and if at all it is considered to be proved, that cannot be
a ground for declaring the election of returned candidate void. To bolster
his submissions, Shri Baghel has placed reliance on the decision of
Supreme Court in re Vashist Narain Sharma v. Dev Chandra and
others AIR 1954 SC 513, wherein the situation "the result of the
election has been materially affected" has been dealt with and it has
been observed as under;-
"Before an election can-be declared to be wholly void
under section 100(1) (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 provision in the English Ballot
Act, 1872, section 13 of which is as follows:-
"5. No election shall be declared invalid by
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 that the election
was conducted in accordance with the principles
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 non-
compliance 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 100(1)
(c), however, clearly places a burden upon the objector
to substantiate the objection that the result of the
election has been 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 in Rai Bahadur Surendra
Narayan Sinha v. Amulyadhone Roy & others (1), 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 lesson 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) (e) 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."
Likewise, in re Mahadeo v. Babu Udai Partap Singh and others
AIR 1966 SCC 824, the Supreme Court dealt with the situation
"improper rejection and improper acceptance of nomination paper -
material effect on election" and observed as under:-
"Before dealing with this question, it is necessary to
consider briefly the legislative history of the statutory
provision contained in s. 100 ( 1 ) (d) (iv). The present
provisions contained in s. 100 of the Act have been
introduced by the Amending Act 27 of 1956. Section 100
( 1 ) (d) (iv) reads thus "Subject to the provisions of sub-
section (2), if the Tribunal is of opinion that the result of
the election, in so far as it concerns a returned candidate,
has been materially affected by any non-compliance with
the provisions of the Constitution or of this Act or of any
rules or orders made under this Act, the Tribunal shall
declare the election of the returned candidate to be void".
Before the amendment of 1956, the relevant provision in
s. 100(1) (c) read thus :-
"If the Tribunal is of opinion that the result of the
election has been materially affected by the improper
acceptance or rejection of any nomination, the
Tribunal shall declare the election to be wholly void"."
Furthermore, Shri Baghel, placed reliance on a decision in re
Paokai Haokip v. Rishang and others AIR 1969 SC 663 wherein the
Supreme Court while dealing with the situation "burden to prove that
election was materially affected", has observed as under:-
"12. 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 not alter the position with regard
to s. 100(1)(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
significantly failed in his attempt and therefore the
election of the returned candidate could not be avoided.
It is no doubt true that the burden which is placed by law
is very strict; even if it. is strict it is for the courts to
apply it. It is for the Legislature to consider whether it
should be altered. If there is another way of determining
the burden, the law should say it and not the courts. It is
only in given instances that, taking the law as it is, the
courts can reach the conclusion whether the burden of
proof has been successfully discharged by the election
petitioner or not. We are satisfied that in this case this
burden has not been discharged. The result is Sup. Cl/69-
10 that the appeal must succeed and it is allowed. The
election of the returned candidate will stand. The costs in
the Judicial Commissioner'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."
Over and above, Shri Baghel relied upon a decision in re Shiv
Charan Singh v. Chandra Bhan Singh and others AIR 1988 SC 637
while dealing with the situation "improper acceptance of nomination
paper - election petitioners failing to prove that election of returned
candidate was materially affected, came to observe as under:-
"9. We are in respectful agreement with the view taken
by this Court in the aforesaid decisions. The election of a
returned candidate cannot be declared void on the
ground of improper acceptance of nomination paper of a
contesting candidate unless it is established by positive
and reliable evidence that improper acceptance of the
nomination of a candidate materially affected the result
of the election of the returned candidate. The result of
the election can be affected only on the proof that the
votes polled by the candidate whose nomination paper
had wrongly been accepted would have been distributed
in such a manner amongst the remaining candidates that
some other candidate (other than the returned candidate)
would have polled the highest number of valid votes. In
other words the result of the election of the candidate
cannot be held to have been materially affected unless it
is proved that in the absence of the candidate whose
nomination paper was wrongly accepted in the election
contest, any other candidate (other than the returned
candidate) would have polled the majority of valid votes.
In the absence of any such proof the result cannot be
held to have been materially affected. The burden to
prove this material effect is difficult and many times it is
almost impossible to produce the requisite proof. But the
difficulty in proving this fact does not alter the position
of law. The legislative intent is clear that unless the
burden howsoever difficult it may be, is discharged, the
election cannot be declared void. The difficulty of
proving the material effect was expressly noted by this
Court in Vashist Narain Sharma's and Paokai Haokip's,
cases and the Court observed that the difficulty could be
resolved by the Legislature and not by the Courts. Since
then the Act has been amended several times, but
Parliament has not, altered the burden of proof placed on
the election petitioner under Section 100(1)(d) of the
Act. Therefore the law laid in the aforesaid decisions still
hold the field. It is not permissible in law to avoid the
election of the returned candidate on speculations or
conjectures relating to the manner in which the wasted
votes would have been distributed amongst the
remaining validly nominated candidates. Legislative
intent is apparent that the harsh and difficult burden of
proving material effect on the result of the election has to
be discharged by the person challenging the election and
the Courts cannot speculate on the question. In the
absence of positive proof of material effect on the result
of the election of the returned candidate, the election
must be allowed to stand and the Court should not
interfere with the election on speculation and
conjectures.
10. In the instant case Shiv Charan Singh the appellant
had polled 21443 votes and Roshan Lal had polled
16496 the next highest number Of votes. There was thus
a difference on 4497 votes between the votes polled by
the appellant and Roshan Lal. Kanhaiya Lal whose
nomination paper had improperly been accepted, had
secured 17841 votes which were wasted. The election
petitioners did not produce any evidence e to discharge
the burden that improper acceptance of the nomination
paper of Kanhaiya Lal materially affected the result of
the election of the returned candidate. On the other hand
the appellant who was the returned candidate produced
21 candidates representing cross section of the voters of
the constituency. All these witnesses had stated before
the High Court that in the absence of Kanhaiya Lal in the
election contest, the majority of the voters who had
voted for Kanhaiya Lal would have voted for Shiv
Charan Singh the appellant. The High Court in our
opinion rightly rejected the oral testimony of the
witnesses in view of this Court's decision in Vashist
Narain Sharma's, case. The High Court however having
regard to the votes polled by the appellant Roshan Lal
and Kanhaiya Lal held that the result of the election was
materially affected. The High Court held that in view of
the fact that difference between Shiv Charan Singh the
appellant and Roshan Lal was only 4497 and Kanhaiya
Lal, whose nomination was improperly accepted had
secured 17841 votes therefore it could reasonably be
concluded that the election was materially affected. In
our opinion the High Court committed error declaring
the appellant's election void on speculations and
conjectures.
11. Indisputably, the election petitioners had failed to
discharge the burden of proving the fact that the result of
election of the appellant had been materially affected by
reason of improper acceptance of the nomination paper
of Kanhaiya Lal. In the absence of any positive evidence
produced by the election petitioners, it was not open to
the High Court to record findings that the result of the
election was materially affected. The High Court's
findings relating to the material effect on the result of the
election are based on conjectures and surmises and not
on any evidence. The Legislature has, as noted earlier
placed a difficult burden on the election petitioner to
prove that the result of the election was materially
affected by reason of improper acceptance of nomination
paper of a candidate (other than the returned candidate)
and if such burden is not discharged the election of the
returned candidate must be allowed to stand as held by
this Court in Vashist Narain Sharma's and in Paokai
Haokip's case. It is true that the burden placed on the
election petitioner in such circumstances is almost
impossible to discharge. But in spite of the fact that this
Court had highlighted this question on more than one
occasion, Parliament has not amended the relevant
provisions although the Act has been subjected to several
amendments. It is manifest that law laid down by this
Court in Vashist Narain Sharma's case and Paokai
Haokip's case holds the field and it is not permissible to
set aside the election of a returned candidate under
Section 100(1)(d) on mere surmises and conjectures. If
the improperly nominated candidate had not been in the
election contest, it is difficult to comprehend or predicate
with any amount of reasonably certainty the manner and
the proportion in which the voters who exercised their
choice in favour of the improperly nominated candidate
would have exercised their votes. The Courts are ill-
equipped to speculate as to how the voters could have
exercised their right of vote in the absence of improperly
nominated candidate. Any speculation made by the
Court in the this respect would be arbitrary and contrary
to the democratic principles. It is a matter of common
knowledge that electors exercise their right of vote on
various unpredictable considerations. Many times
electors cast their vote on consideration of friendship,
party affiliation, local affiliation, caste, religion, personal
relationship and many other imponderable
considerations. Casting of votes by electors depends
upon several factors and it is not possible to forecast or
guess as to how and in what manner the voters would
have exercised their choice in the absence of the
improperly nominated candidate. No inference on the
basis of circumstances can successfully be drawn. While
in a suit of proceedings it may be possible for the Court
to draw inferences or proceed on probabilities with
regard to the conduct of parties to the suit or
proceedings, it is not possible to proceed on probabilities
or draw inferences regarding the conduct of thousands of
voters, who may have voted for the improperly
nominated candidate. In the instant case there were 11
contesting candidates. If Kanaiya Lal whose nomination
paper had been improperly accepted was not in the
election contest, it is difficult to say in what proportion
the voters who had voted for him would have voted for
the remaining candidates. There is possibility that many
voters who had gone to the polling station to cast their
votes in favour of Kanaiya Lal may not have gone to
exercise their vote in favour of the remaining candidates.
It is probable that in the absence of Kanaiya Lal in the
election contest, many voters would have voted for the
returned candidate as he appeared to be the most popular
candidate. It is difficult to comprehend that the majority
of the voters who exercised their choice in favour of
Kanaiya Lal would have voted for the next candidate
Roshan Lal. It is not possible to forecast how many and
in what proportion the votes would have gone to one or
the other remaining candidates and in what manner the
wasted votes would have been distributed among the
remaining contesting candidates. In this view, the result
of the returned candidate could not be declared void on
the basis of surmises and conjectures."
Taking strength of the decisions relied upon and quoted
hereinbove, Shri Baghel submitted that it is clear the election of returned
candidate did not get materially affected due to acceptance of
nomination paper of respondent No.16. He further submitted that even
otherwise there is no pleading or proof by the petitioner that the
acceptance of nomination form of respondent No.16 did materially
affect the election of returned candidate. To reinforce, he placed reliance
on a decision in re Rajesh Kumar v. Devendra Singh 2013(3) MPLJ
640, in which the High Court has considered this aspect and observed
that the election petitioner is obligated to plead and prove that
acceptance of nomination form improperly, materially affected the
election of returned candidate. In absence of specific pleading in that
regard, the election cannot be declared void.
Of late, the Supreme Court in re Rajendra Kumar Meshram v.
Vanshmani Prasad Verma and another 2017(2) MPLJ 262 while
dealing with such situation, came to observe that before declaring the
election void, the High Court is also required to carry out exercise to
find out whether improper acceptance of nomination had materially
affected the result of election or not. Relevant is paragraph 9, which is
reproduced as under;-
"9. Under Section 100 (1)(d), an election is liable to be
declared void on the ground of improper acceptance of a
nomination if such improper acceptance of the
nomination has materially affected the result of the
election. This is in distinction to what is contained in
Section 100(1)(c) i.e. improper rejection of a nomination
which itself is a sufficient ground for invalidating the
election without any further requirement of proof of
material effect of such rejection on the result of the
election. The above distinction must be kept in mind.
Proceeding on the said basis, we find that the High Court
did not endeavor to go into the further question that
would be required to be determined even if it is assumed
that the appellant- returned candidate had not filed the
electoral roll or a certified copy thereof and, therefore,
had not complied with the mandatory provisions of
Section 33(5) of the 1951 Act. In other words, before
setting aside the election on the above ground, the High
Court ought to have carried out a further exercise,
namely, to find out whether the improper acceptance of
the nomination had materially affected the result of the
election petition. This has not been done notwithstanding
issue No.6 framed which is specifically to the above
effect. The High Court having failed to determine the said
issue i.e. issue No.6, naturally, it was not empowered to
declare the election of the appellant returned candidate as
void even if we are to assume that the acceptance of the
nomination of the returned candidate was improper."
Enlightened by the above-quoted enunciation of law and
considering the existing fact-situation of the case, it is clear that the
petitioner never pleaded in the petition that acceptance of nomination
form of respondent No.16 materially affected the election of returned
candidate and factually also it is not the situation because total votes
secured by respondent No.16 are much-less in comparison to the votes
secured by returned candidate. Thus, these issues i.e. issue Nos.(i), (ii)
& (iii) are answered in negative.
Issue No.(v)
The relatable pleadings to this issue are made in paragraphs 7 and
8 of the election petition. The election petitioner (PW1) in paragraph 2
of his statement has supported those pleadings and stated that despite
making complaint to the returning officer, no heed was paid to it. The
representative of the election petitioner namely Mukesh Kumar Vasnik
(PW2) has also so stated in his statement but in cross-examination, he
stated that he did not have any information as to on which table counting
of votes pertaining to booth Nos.9, 23, 28, 57 and 65 was done and he
was also not aware as to who was the agent on the polling booths and
whether any complaint was made by him to the returning officer about
defect in EVMs. He also stated that he made a complaint (Ex.P/8) with
regard to some of the polling booths, although that complaint was made
after completion of fifth-round counting. PW3 Ravi Shankar also stated
in his statement that he had also tried to make complaint about the
defect in EVMs, but his complaint was not taken care of.
Shri Shyam Yadav, learned counsel for the petitioner submitted
that when complaint with regard to defect in EVMs was made, then it
was obligatory for the returning officer to cease the counting process
and at-first resolve the dispute as made in complaint, but that was not
done. Thus, it is clear that due to defect in EVMs whole election was
vitiated and on that basis it is imperative to cancel the election of
returned candidate.
In contrast, Shri Baghel, learned counsel for respondent No.5
opposed the submissions made on behalf of the petitioner and submitted
that the returning officer has been examined as PW4, who has
categorically stated in his statement that the objection was received by
him with regard to defect in EVMs used in polling booth Nos.9, 12, 23,
28, 65 and 57, in which cognizance was properly taken and
representative of Company which supplied EVMs was also called and
after getting checked EVMs, the representative submitted a report that
there was no defect in EVMs.
A meticulous scrutiny to the statement of returning officer gives a
notion that oftentimes, in almost every election where EVMs are used,
objection lamenting defect in EVMs is raised and the Election
Commission on several occasions dealt with such objection and nothing
substantial could be brought to the surface and even an overt
opportunity was provided to the persons raising such objection for
giving strict proof showing that EVMs are defective, but no such proof
could ever be presented. Even in the case at hand, there is no material
available to deduce that EVMs used in the election were found
defective. Obviously, there is no reason to disbelieve the statement of
returning officer i.e. Collector, Balaghat that representative of EVM
company was called, who in turn, examined and submitted a report.
Moreso, the whole procedure was properly followed during the course
of election and on each & every important occasions, the representative
of respective candidates were present and in their presence EVMs were
kept in strong-room, then later-on opened for the purpose of counting of
votes. Indeed, there appears no defect in the procedure which could
demonstrate that there was any possibility of tampering EVMs so as to
increase the number of votes of any candidates. Momentarily, if the
defect as has been pointed-out in EVMs of selected polling booths is
considered to be true and the total votes cast in those polling booth for
the sake of presumption is considered to be in favour of the election
petitioner, even then it does not materially affect the result of returned
candidate.
In view of the above discourse, I am of the opinion that issue No.
(v) is neither proved nor can it be a ground to declare the election of
returned candidate void, which could be made basis to cancel the
election of returned candidate. Thus, this issue too is answered in
negative.
Issue No.(iv) -
So far as this issue is concerned, it has been given-up by the
counsel for the election petitioner on the ground that as they failed to
prove anything against the returned candidate and as such no argument
relatable to this issue was urged.
5. In view of the above discourse made in details dealing with
the issues framed by this Court and answering those in negative, I find
the election petition being bereft of substance. The inadequacy of
pleadings and proof will not succour the disgruntled election-petitioner,
who lost the battle of election as the luck would have it. The ray of hope
strengthened by the decisions cited on behalf of election petitioner, will
also not yield any positive result for the election-petitioner in the fact-
situation of the case inasmuch as the decisions cited on behalf of
returned candidate are more befitting the fact-situation involved in the
case at hand
6. Ex consequentia, the election petition is hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
sudesh
SUDESH KUMAR
SHUKLA
2023.02.07
18:51:14 +05'30'
