1. This is a petition under Article 227 of the Constitution seeking to revise the order of an Election Tribunal refusing to set aside the election of opposite party No. 1. The petitioner and 4 others were candidates tor election as Commissioner of the Cuttack Municipality from Ward No. XVII. Opposite party No. 1 was declared elected having secured the largest number of votes. The petitioner's case is that opposite party No. 2 Bishnu Charan Mukherji was disqualified for standing as a Councillor and that the Election Officer improperly accepted his nomination paper. It is contended that if this irregularity had not been committed by the Returning Officer, the petitioner would have secured the largest number of votes and would have been elected. The petitioner, therefore, prayed that the election of the opposite party No. 1 may be set aside and that he himself be declared elected.
2. The Election Tribunal held that opposite party No. 2 was disqualified on the date f his nomination as a candidate but also held that the improper acceptance of his nomination paper did not materially affect the result of the election. The petition of the unsuccessful candidate Shri Narendra Chandra Pradhan was accordingly dismissed.
3. The admitted facts are that the contesting candidates secured votes in the following order : I. Raghu Rout -- 468. 2. Nerendra Chandra Pradhan -- 31-8. 3. Bishnu Charan Mukerji --286. 4. Brajabandhu Das --157. 5. Amitav Mohapatra --70.
The petitioner's case is that the votes polled for Bisnnu Charan Mukherji would have gone to him if his nomination paper had not been improperly accepted and that he would have topped the polls. It is also admitted that on the date of the nomination, opposite party No. 2 was disqualified within the meaning of Section 16 Sub-clause (ix), Orissa Municipal Act, 1950, from standing as a candidate as he was employed as legal practitioner against the Municipality. Another fact which is not seriously disputed is that the petitioner alone stood as a party candidate, his candidature having been supported by an organisation known as Town Committee while the other candidates stood each on his own strength and were independent candidates. A further fact that emerges from the evidence is that all the candidates except the petitioner were residents of Ward No. XVII and the petitioner was a voter registered in Ward No. XVIII of the Municipality. The petitioner is the Printer and Publisher of a local newspaper and 3 of the opposite parties are lawyers while the successful candidate is a journalist. Upon these facts, it is argued on behalf of the petitioner that the election is void as it had not been conducted in accordance with the provisions of the Orissa Municipal Act and the non-compliance with the mandatory provision of Section 16(ix) has affected the result of the election.
Section 18(1)(c) lays down that the election of any person as a councillor may be questioned by election petition on the ground that such person though enrolled as an elector was disqualified for election under the provisions of Sections 15, 16 and 29. Section 13(2)(b), however, lays down that the election of any person as a councillor shall not be questioned on the ground that any non-compliance with this Act .....or of any error, irregularity or informality on the part of the officer or officers, charged with carrying out the provisions of this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election. The functions of the Tribunal are laid down in Section 25 which prescribes when the election proceedings may be avoided. Section 25 reads as follows :
'25. Notwithstanding anything contained in the preceding sections, if the Tribunal, in the course of hearing of an election petition, is of opinion that the evidence discloses :
(iii) the result of election has been materially affected by improper acceptance or refusal of a candidate's nomination : It shall set aside the whole proceedings .....'.
A plain reading of Sections 18 (2) (b) and 25 (iii) makes it clear that the mere fact of improper acceptance or refusal of a candidate's nomination, 'will not justify the avoidance of election proceedings. It has further to be proved to the satisfaction of the Tribunal that the result of the election has been materially affected thereby. The non-compliance with a provision of the Act is not of sufficient importance to avoid the election because the election may have been notwithstanding such error substantially conducted in accordance with the Act. There is no provision in the Act which lays down that mere non-compliance of any of the provisions would render the election void. On the other hand, the provisions imply that a breach however extensive cannot as such avoid election unless it has materially affected the result of the election.
4. The petitioner's contention is that if the non-compliance with the Act has been established, it is for the successful candidate to prove that the result of the election has not been materially affected thereby while the stand taken by the successful candidate is that the petitioner must show not only that there was a non-compliance with provision of the Act but that there was no real electing at all. In other words, the Tribunal should be satisfied that the constituency had not in fact had a fair and free opportunity of electing a candidate by a majority vote. If the Tribunal is satisfied that notwithstanding the irregularity in the election proceedings there was a free and fair election and that every candidate was allowed to take his chance, the existence of any irregularity would not entitle the Tribunal to declare the election void. The question, therefore, is what is the true statement of the rule under which an election may be avoided. The Tribunal after recording evidence held that the petitioner would not have secured a majority of votes even if opposite party No. 2 had not entered the field. It also held that the onus of proving that the election had been materially affected by the improper acceptance of the nomination of opposite patty No. 2 rested upon the petitioner which he had failed, to discharge.
5. It is contended before us that in that view of the law the Tribunal was in error. Strong reliance was placed on the decision of the Election Commissioners in Agra case reported in Jagat Narain on Election Petitions, Vol. IV at page 18, The observations of the Election Commissioners are as follows :
'Improper acceptance or refusal of a nomination paper by the Returning Officer in our view is so grave an irregularity that this presumption would require the strongest and most conclusive proof for its rebuttal and it lies heavily on the respondent to rebut the presumption so raised.'
It is argued on the authority of this observation that opposite party No. 1 should have rebutted the presumption arising from the irregularity in the improper acceptance of nomination paper of opposite party No. 2 and should have proved that the result of the election had not been materially affected by the irregularity.
After going through the several cases placed before us, I am not prepared to accept the statement as laying down the correct proposition and am inclined to think that it has much too widely been stated. This view has been expressly dissented from by the Commissioners who heard the Hoshiarpur Case -- 'S. Mula Singh v. Ch. Mangu Ram', reported in Doabia Vol. II at p. 271. The reported cases point out the distinction between the case of an improper refusal and improper acceptance of a nomination paper. The distinction between the two cases is obvious; in the one case the whole electorate is deprived of its right to vote for a candidate who is legally entitled to stand; in the other, all the candidates including a disqualified one are put up for election and every one on the electoral roll had the opportunity Of voting for a candidate out of the candidates he prefers. It cannot, therefore, be urged that the mere acceptance of an invalid nomination deprives the Constituency of the opportunity of voting for the candidate of its choice. Nor can it be said that the votes polled for the disqualified candidate have been thrown away. I would refer in this connexion to the practice of the Parliamentary Committee which is stated in Halsbury, Vol. 12 p.. 306 :
'By the common law the principle seems to be firmly established that where a candidate is in point of fact disqualified at the time of an election all votes given for him with knowledge of the fact upon which such disqualification is founded must be considered as thrown away. This knowledge may be established either by distinct notice or by notoriety, & it will in all cases be inferred that where the voter is aware of the facts he is aware of the legal deduction from those facts,. however intricate and doubtful such deduction may be.'
It is not the case of the petitioner that he informed the voters of the existing disqualification of opposite party No. 2 nor is there any other material to justify the inference that the voters otherwise knew that opposite party No.2 was disqualified on the date of the nomination. I am, therefore, of the view that the improper acceptance of the nomination of opposite party No. 2 is not in itself sufficient to avoid the election and that the votes cast in his favour cannot be regarded as having been thrown away.
6. The next question is whether the onus of proving that the result of the election has been materially affected was rightly cast on the petitioner. Reliance was placed for the opposite party No. 1 on the case (--'Jakatdar v. Kottle',) reported in Jagat Narain, Vol. IV, p. 31, Where it is stated :
'The law in India and in England is different in respect of the effect of non-compliance with the electoral rules. In India, even though the petitioner succeeds in proving that there was non-compliance with the provisions of law it is further required to be proved that such non-compliance materially affected the result of the election. The election cannot be said to be materially affected unless the irregularities which have occurred actually turn the scale in favour of the returned can- didate. It must be shown that but for the irregularities the returned candidate would not have secured a majority of votes. It is not enough to show that the result of the election might have been affected; it must be shown that the result of the election was actually affected by non-compliance with the rules and regulations.'
Reliance was placed upon an earlier case --'Babu Dasu Singh v. Babu Rajandhari Singh'. reported in Jagat Naraini on Election Petitions, Vol. III, p. 80. Even, in England, it was held in the 'Hackney case' reported in Vol. 11 of O'Malley and Hardcastle, p. 77 that the result of the election must be held to have been materially affected even if, but for the irregularities in connexion with the election, the returned candidate would still have been elected though with a reduced majority. But this view has been dissented from in a subsequent case. (The East Clare Case') reported in Vol. IV of O'Mal-ley and Hardcastle, p. 162 in which it has been held that the result of the election cannot be said to be materially affected unless the irregularities which have occurred actually turned the scale in favour of the returned candidate. This view of the law was accepted by the Commissioners in 'Dasu Singii's case' and followed in 'Jakatdar's case'. I have, therefore, arrived at the conclusion that the Tribunal was right in throwing the onus upon the petitioner to show not merely that there was any irregularity but that the improper acceptance of the nomination of opposity party No. 2 materially affected the result of the election. The Tribunal on a Consideration of the evidence came to the conclusion that the petitioner had failed to discharge the onus and it is not for this Court to review the evidence and come to its own finding of fact. On the particular facts of this case, I am of opinion that the Tribunal has correctly observed that it is at best a matter of conjecture whether the petitioner would have secured a majority of votes if opposite party No. 2 had not contested. I am in agreement with the view taken by the Tribunal as the circumstances of this case fully support that view. Opposite party No. 2 is a lawyer and there were two other lawyers in the field. It is as likely as not that the votes cast in favour of opposite party No. 2 would have gone to the other two lawyers and not to the petitioner.
Another circumstance is that all the candidatesexcept the petitioner were independent candidates and it may be that all the votes cast infavour of the independent candidates were votesthrown against the petitioner. It is, therefore,unlikely that any of those votes would havecome to the petitioner or to the organisation onwhose behalf he was set up as a candidate.The petitioner is admittedly not a resident voterof Ward No. XVII and it is possible that thevoters preferred to return one who lived in theWard, that he may bs more accessible to themand would be able to effectively represent themin the Council. But, even if the 286 votes polledby opposite party No. 2 were proportionatelydistributed the petitioner would still be in aminority and would not have succeeded as against opposite party No. 1. We, are, therefore,satisfied that the Tribunal has taken the correct view of the legal position and has alsorightly appreciated the facts and the probabi-lities of the case. We see, therefore, no reasonto interfere with the decision of the Tribunaland would accordingly dismiss this petition.But in the circumstances, we direct that eachparty shall bear his own costs.
7. I agree.