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Maniklal Madanlal Lahoti Vs. Tukaram Ganpat Tehore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2811 of 1976
Judge
Reported in(1978)80BOMLR522; 1978MhLJ316
AppellantManiklal Madanlal Lahoti
RespondentTukaram Ganpat Tehore
DispositionAppeal dismissed
Excerpt:
.....aside--burden of proof on the election petitioner to show that the result of the election has been materially affected.;the difference between the votes secured by the petitioner and the first respondent, the returned candidate, after recounting of the votes was of only one vote, and the voters who were disallowed from exercising their right of vote were two. on a writ petition filed by the petitioner.;that from this small difference a finding could not be recorded that because of this the result of the election had been materially affected. the question would have to be decided on the basis of the material on record and not on mere probability. it was neither possible to anticipate the pattern of voting nor was it possible to anticipate the result. the question was one of fact and had..........of improper acceptance of' the nomination paper. they agreed that the question whether the result of election had been materially affected must be proved by affirmative evidence. they laid down the following test:if the number of votes secured by the candidate, whose nomination paper has been improperly accepted, is lower than the difference between the number of votes secured by the successful candidate and the candidate who has secured the next highest number of votes, it is easy to find that the result has not been materially affected. if, however, the number of votes secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee what the result would have been if that candidate had not been in the field. it will neither be possible to.....
Judgment:

Dharmadhikari, J.

1. The election to Chikhali Municipal Council was held on November 17, 1974 in which petitioner Maniklal and respondent No. 1 Tukaram were the contesting candidates from Ward No. 17 of Chikhali. The poll was held on November 17, 1974 and the votes were counted on November 18, 1974. As a result of this counting respondent No. 1 Tukaram was declared elected from Ward No. 17. The total votes polled at the election were 456. Respondent No. 1 Tukaram secured 224 votes whereas petitioner Maniklal got 222 votes. Ten votes were declared invalid. In view of this counting respondent No. 1 Tukaram was declared elected by the Returning Officer as a Councillor from Ward No. 17.

2. After the said election, the petitioner filed an election petition before the district Judge, Buldana, under Section 21 of the Maharashtra Municipalities Act, 1965, referred to hereinafter as the Act. The main ground raised in the election petition related to the denial of right of franchise to two voters, namely, Diwakar Radhakrishna Deshpande and Pralhad Bhikaji Murkute. Some other contentions were also raised in the said election petition, but we are not concerned with them in this Special Civil Application. Therefore, it is not necessary to make a detailed reference to the said contentions.

3. The Presiding Officer had filed a written-statement in reply to the allegations made in the election petition and had denied them. Respondent No. 1 Tukaram, the returned candidate, also filed his written-statement. The parties also adduced evidence in support of their respective cases.

4. After appreciating all the evidence on record, the learned district Judge by his order dated April 29, 1975 initially directed re-counting of the votes. The votes were then re-counted before the Court and ultimately it was found that one vote was wrongly counted by the Returning Officer in favour of respondent No. 1, the returned candidate. The said vote was, therefore, excluded from consideration and ultimately it was found that respondent No. 1 Tukaram secured 223 votes whereas petitioner Maniklal polled 222 votes. Therefore, in spite of this re-counting the result of the election was maintained as the respondent No. 1 secured majority of votes. So far as the other issues are concerned, the learned district Judge came to the conclusion that Diwakar Radhakrishna Deshpande and Pralhad Bhikaji Murkute were improperly disallowed by the Returning Officer from exercising their right to vote. The learned district Judge further found that as a consequence of this the result of the election had been materially affected. However, the learned district Judge relying upon the provisions of Section 21(11-A) of the Act came to the conclusion that by his conduct in disallowing these two voters to vote, the Presiding Officer only committed an error and nothing else and, therefore, in view of the provisions of Sub-section (11-A) of Section 21 of the Act, the election of the returned candidate cannot be set aside, as it has not been proved that the said error or irregularity was corruptly caused. In the view which the learned district Judge took, he dismissed the election petition filed by the petitioner. Being aggrieved by this decision of the district Judge the present writ petition is filed by petitioner Maniklal challenging the said order of the learned district Judge.

5. Shri A.P. Deshpande, the learned Counsel appearing for the petitioner, contended before us that the learned district Judge, committed an error in coming to the conclusion that this was merely a case of an error or an irregularity which is covered by Sub-section (11-A) of Section 21 of the Act. According to Shri Deshpande, by virtue of the provisions of Section 12 of the Act every person whose name is in the list of voters is qualified to vote and to deny him such a right is an illegality and not merely an error or irregularity. Therefore, according to Shri Deshpande, to such a case the provisions of Section 21 (11-A) of the Act would not apply. In support of this contention Shri Deshpande is relying upon the decision of this Court in Madhavrao v. Collector, Kolhapur [1965] Mh. L.J. 146 : 66 Bom. L.R. 784. Therefore, according to Shri Deshpande, once it is held by the learned district Judge that the two voters were improperly disallowed to exercise their right of vote and it is further held that this has materially affected the result of the election, the learned district Judge should have set aside the election of the returned candidate and should have ordered re-election.

6. On the other hand, it is contended by Shri Jaiswal, the learned Counsel for the respondent No. 1, that Section 12 of the Act only lays down the qualification for voting. As to how this right is to be exercised is laid down by the Rules framed under Section 17 of the Act. On the averments made in the petition at the most it could be said that by raising a dispute about the identification of the voters the Presiding Officer had committed an error or an irregularity in not permitting these two voters in exercising their right of vote. The error is on the part of the Presiding Officer with which respondent No. 1, the returned candidate, is not concerned. Therefore, on the principle that a person cannot be punished for the conduct of somebody else on whom he had no control, the election cannot be set aside and this is what has been precisely laid down by Section 21(11-A) of the Act. Therefore, according to Shri Jaiswal, the learned district Judge was right in coming to the conclusion that to such a case the provisions of Sub-section (11-A) of Section 21 of the Act will apply. In the alternative, it was also contended by Shri Jaiswal that the finding recorded by the learned district Judge that because of this improper refusal on the part of the Presiding Officer to permit the two voters to exercise their right of vote the result of the election has been materially affected is wholly perverse. According to the learned counsel, the burden was upon the petitioner to prove that as a result of this error, irregularity or non-compliance with the provisions of the Act or the Rules, the result of the election has been materially affected. In this case no evidence has been adduced by the petitioner to establish that the result of the election has been materially affected because of the alleged non-compliance. The finding recorded by the learned district Judge in this behalf is wholly perverse as it is not based on any material on record. Further the district Judge has not given any reasons for this finding. Therefore, Shri Jaiswal has challenged the very finding recorded by the learned district Judge and has further contended that unless it is established by cogent evidence that the result of the election has been materially affected, the petitioner is not entitled to any relief even if the case is not covered by Sub-section (11-A) of Section 21 of the Act.

7. In our opinion having regard to the facts and circumstances of this case if it is held that as a result of the alleged non-compliance or irregularity the result of the election has not been materially affected, then obviously the petitioner cannot succeed in this election petition. Even otherwise, according to Shri Jaiswal, in a given case, even if the petitioner succeeds in establishing the fact that the result of the election has been materially affected, in that case also, in view of the provisions of Section 21(11-A) of the Act the election of a returned candidate cannot be set aside unless it is shown that the alleged irregularity or non-compliance of the rules was corruptly caused. However, this contention will require consideration if initially it is held that because of an error made by the Presiding Officer in carrying out the provisions of the Act and Rules or because of some informality the result of the election is materially affected.

8. It is no doubt true that it was also contended by Shri A.P. Deshpande, the learned Counsel appearing for the petitioner, that once it is established that the election conducted was illegal or was conducted in breach of the mandatory provisions of the Act and the Rules, then it is not necessary for the petitioner to prove further that as a result of this non-compliance or a breach the result of the election has been materially affected. According to Shri Deshpande, such a proof is not necessary in case of an election petition filed under Section 21 of the Act. According to learned Counsel as Section 21 of the Apt is worded in general terms, once it is established that the election held is in breach of the provisions of the Act and the Rules, then the petitioner must succeed and the election of the returned candidate will have to be set aside. It is not possible for us to accept this contention of Shri Deshpande.

9. By now it appears to be well settled that normally in all cases of irregularity of procedure any one who challenges the result of an election has to show that the alleged irregularity or even an illegality has materially affected the result of the election. Unless it could be shown that the non-compliance with the Rules have affected the result of the election, the election cannot be lightly interfered with. Where any irregularity or illegality has been alleged by the petitioner in an election petition, it is not sufficient only to prove the alleged irregularity or illegality, but it must further be shown that the said irregularity or illegality has materially affected the result of the election. It is for the person challenging the election to establish by satisfactory evidence that the result of the election has been materially affected. See Eknath v. Gorakh [1964] Mh. L.J. 691 : 66 Bom. L.R. 584 and Kisanrao v. Shri M.L. Somalwar (1968) Special Civil Application No. 743 of 1968.

10. In this context, a reference could also be made to the decision of the Supreme Court in Mahadeo v. Udai Partap : [1966]2SCR564 wherein the Supreme Court has observed as follows (p. 828):

Therefore, we are left with only one irregularity, and that has been introduced by the misprinting of the name of respondent No, 1 on the ballot papers; and this irregularity can legitimately be treated as falling under Section 100(1)(d)(iv) of the Act. Misprinting of the name of respondent No. 1 on the ballot papers amounts to non-compliance with Rule 22 of the Rules; but the proof of such non-compliance does not necessarily or automatically rendered the election of the appellant void. To make the said election void, respondent No. 1 has to prove the non-compliance in question, and its material effect on the election.

It appears to be consistent view of the Supreme Court that in such cases the petitioner must go a little further and prove that the result of the election has been materially affected. See Vashist Narain v. Dev Chandra : [1955]1SCR509 , Paokai v. Rishang : [1969]1SCR637 and S.N. Balakrishna v. Fernandez : [1969]3SCR603 . It is no doubt true that this interpretation of the Supreme Court is based upon the provisions of the Representation of People Act. However, the same principle has been extended by this Court in Eknath v. Gorakh and Kisanrao v. Shri M.L. Somalwar, even to the enactment where a specific provision as contained in Section 100(1)(d)(iv) of the Representation of People Act has not been made. From bare reading of the basic election Statute of this country or the well established principles of election law, it is quite clear that it is only in the case of fundamental infirmities like commission of corrupt practice, improper rejection of nomination paper, lack of basic qualification in the candidate etc. that an election should be declared void. It is quite obvious that these are matters which either go to the very root of the election process or involve the question of purity of election. On the other hand, unless otherwise expressly provided, so far as mere non-compliance with the provisions of the Act and Rules made thereunder are concerned, the well established principle is that the election petitioner must show that the result of the election has been materially affected. This involves salient principle that the verdict of the electorate should not be lightly set aside unless it is clear that the result of the election so far as returned candidate is concerned has been materially affected. An election is a time consuming process involving lot of expenditure. If it is shown that the voters have been able to make their choice in a free and proper manner, then election should not be set aside on mere technicalities. Every procedural provision in the election law cannot be raised to such a high pedestal that its violation should ipso facto result in setting aside the verdict of electorate. The Court of law charged with the duty of determining the validity of an election must lean in favour of the will of the people. This principle appears to be firmly established in our system of law relating to elections. At least this appears to be the intention even behind the provisions of Sub-section (11-A) of Section 21 of the Act. Therefore, in all cases where the election of a returned candidate is challenged on the ground of some irregularities or illegality, the petitioner will have to show and establish that the same has materially affected the result of the election.

11. In the present case, having regard to the finding recorded by the learned district Judge it can safely be held that the refusal on the part of the Presiding Officer in not permitting the two voters to exercise their right of voting was obviously an irregularity. From the contentions raised in the written-statement it appears that from the list which was with the Presiding Officer the names of these voters were deleted. There was some dispute about the identity of the voters and on the basis of the list which was with the Presiding Officer he disallowed the two voters from exercising their right of vote. It is neither alleged nor established that this was done by the Presiding Officer with any corrupt motive. It appears to be a bona fide mistake on the part of the Presiding Officer. Even assuming that such a case is not covered by Sub-section (11-A) of Section 21 of the Act it was incumbent upon the petitioner to prove that this illegality or irregularity had materially affected the result of the election. As to how this could be proved is a vexed question, but as observed by the Supreme Court in Vashist Narain v. Dev Chandra only because it is not possible for the petitioner to prove this fact he cannot be absolved of the responsibility or the burden. In this behalf a reference could usefully be made to the following observations of the Supreme Court in Vashist Narairts case (p. 515):

But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidates securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.

The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.

(10) In two cases The Gazette of India, Extraordinary, Part II Section 3 dated February 2 and 26, 1953 'Lakhan Lal Mishra v. Tribeni Kumar', and 'Mandal Sumitra Devi v. Sri Surajnarain Singh', the Election Tribunal, Bhagalpur, had to consider the question of improper acceptance of' the nomination paper. They agreed that the question whether the result of election had been materially affected must be proved by affirmative evidence. They laid down the following test:

If the number of votes secured by the candidate, whose nomination paper has been improperly accepted, is lower than the difference between the number of votes secured by the successful candidate and the candidate who has secured the next highest number of votes, it is easy to find that the result has not been materially affected. If, however, the number of votes secured by such a candidate is higher than the difference just mentioned, it is impossible to foresee what the result would have been if that candidate had not been in the field. It will neither be possible to say that the result would actually have been the same or different nor that it would have been in all probability the same or different.

In both the cases the margin of votes between the successful candidates and the next highest candidate was less than the number of votes secured by the candidate whose nomination was improperly accepted. They held that the result was materially affected. We are unable to accept the soundness of this view. It seems to us that where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all; but where it is not possible to anticipate the result as in the above mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand.

(11) The Tribunal in the present case rightly took the view that they were not impressed with the oral evidence about the probable fate of votes wasted on Dudh Nath Stegh, but they went on to observe:

Considering that Dudh Nath respondent No. 4 received more votes than the margin of votes by which respondent No. 1 was returned we are constrained to hold that there was reasonable possibility of respondent No. 2 being elected in place of respondent No. 1, had Dudh Nath not been in the field.

We are of opinion that the language of Section 100(1)(c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. The number of wasted votes was 111. It is impossible to accept the 'ipse dixit' of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.

The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law.

How this state of things can be remedied is a matter entirely for the legislature to consider. The English Act to which we have referred presents no such conundrum and lays down a perfectly sensible criterion upon which the Tribunal can proceed to declare its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result.

Similar view was taken by the Supreme Court in Paokai v. Rishang and S.N. Balakrishna v. Fernandez as well as in Jabar Singh v. Genda Led : [1964]6SCR54 .

12. From these decisions of the Supreme Court it is quite clear that in such matters proof is required and it cannot be considered on the basis of mere possibility. Under Section 12 of the Act it is laid down that every person whose name is in the list of voters shall be qualified to vote at the election of a Councillor for the Ward to which such list pertains. In other words it confers a right on every person whose name is entered in the electoral roll of a particular constituency to vote in that constituency. But this does not mean that in a case where there has been improper refusal of vote, there is an infraction of any of the provisions of the Act, which by itself would be a ground for declaring the election to be void. As to how this voting process should be regulated is laid down by the Rules, known as the Maharashtra Municipalities Election Rules. Therefore when the petitioner complains that there has been an improper refusal to vote he has to demonstrate by evidence that as a consequence of the alleged non-compliance the result of the election is materially affected. Unless he so proves by adducing proper evidence, he must fail. In the present case a dispute was raised about the identity of the person who claimed that his name is not deleted from the voters list. A dispute was also raised as to whether the names are really deleted or not. From the written-statement filed by the Presiding Officer it appears that at that stage petitioner or his agent had not taken proper steps as contemplated by the rules. His belated plea now raised at the trial could be termed as an afterthought. At least from this an inference could be drawn that he was not sure that these voters will vote only for him and none else. In the present case but for establishing the fact that the two voters were improperly disallowed by the Presiding Officer from exercising their right of vote it has not been established that the irregularity or illegality has materially affected the result of the election. It is no doubt true that the difference between the votes secured by the petitioner and the respondent No. 1, the returned candidate, after recounting of the votes is of only one vote and the voters who were disallowed from exercising their right of vote were two. But from this mere margin or a small difference, a finding cannot be recorded that because of this the result of the election has been materially affected. This requires further proof. The question will have to be decided on the basis of the material on record and not on mere probability. As observed by the Supreme Court in Vashist Narain v. Dev Chandra the casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. Adducing such an evidence may be difficult or to some extent impossible. But it is not possible to relieve the petitioner of the duty imposed upon him by law and to hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere ill Ms favour and would allow the election to stand. In such cases it is neither possible to anticipate the pattern of voting nor it is possible to anticipate the result. After all this is a question of evidence. It is also impossible to accept the ipse dixit of the witnesses coming from one side or the other to say that all such votes would have gone to one or the other candidate on some supposed or imaginary ground. Ultimately the question is one of fact and has to be proved by positive evidence. In the case before us such evidence is lacking. It is no doubt true that certain circumstances have been brought on record to indicate that these two voters might have voted in favour of the petitioner. But the circumstances brought on record are not enough to draw an inference that in all certainty these votes would have gone to the petitioner and not to respondent No. 1. This is more so when the petitioner has not taken proper steps at the time of polling itself. In the absence of such an evidence, in our opinion, having regard to the facts and circumstances of the present case it will have to be held that the petitioner has failed to grove that because of the alleged non-compliance with the provisions of the Act or the Rules the result of the election has been materially affected. From the bare reading of the order of the learned district Judge and the evidence on record it is quite clear that this finding of the learned district Judge is not based on any evidence. The learned district Judge has recorded this finding on the basis of speculation and difference between margin of votes only. To say the least, this speculation or possibility cannot be equated with the proof. Therefore, it is not possible for us to hold in the present case that the petitioner has succeeded in establishing the fact that as a result of the non-compliance with the provisions of either the Act or the Rules the result of the election has been materially affected.

13. Once this finding is recorded, then it is not necessary to deal and decide the question based on the scope and interpretation of Sub-section (11-A) of Section 21 of the Act. Therefore, we are leaving the said question open.

14. In the result, therefore, the petition fails and is dismissed. However, in the circumstances of the case there will be no order as to costs.


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