J.C. SHAH, J.
1. At the last general elections held on February 20, 1967, the appellant and ten others contested for a seat in the Madhya Pradesh Legislative Assembly from the Lahar Constituency No. 13. The first respondent secured 8904 votes; the appellant secured 6,109 votes, and Respondent 2 Heeralal Bahadur secured 4227 votes. (No argument was advanced before us which necessitate reference to the votes secured by the other candidates). Respondent 1, Sarjoo Prasad Tiwari who secured the highest number of votes was declared elected. The appellant Kamta Prasad Upadhyaya who secured the next largest number of votes, applied to the High Court of Madhya Pradesh under the Representation of the People Act, 43 of 1951, for setting aside the election of respondant 1 on diverse grounds. It is necessary to refer to only one ground on which the appeal is argued before us.
2. Respondent 2, Heeralal Bahadur was, it was the case of the appellant, disqualified to stand as a candidate for election under Article 19(1)(a) of the Constitution in that he held an office of profit under the Government of Madhya Pradesh other than an office described by the Legislature of the State by law as not disqualifying its holder, and since his nomination was erroneously accepted by the Returning Officer, the election of the returned candidate was liable to be set aside. Five issues were raised in respect of this contention. They were —
“2(a) Whether Respondent 2 was in the service of the Government as a teacher in Primary School at Magroda, District Guna either on the date of the filing of the nomination papers or on the date of the scrutiny as alleged by the petitioner?
(b) Whether Respondent 2 already submitted his resignation from Government service and was accepted on 7-1-1967 as alleged by Respondent 1?
(c) Whether Respondent 2 held an office of profit under the Government of Madhya Pradesh and, therefore, was not qualified to contest the election to fill seat in question?
(d) Whether there has been improper acceptance of nomination paper of Respondent 1 on this account as alleged?
(e) Whether the result of the election insofar as it concerns the returned candidate Respondent 1 has been materially affected by such improper acceptance as alleged by the petitioner?”
The High Court on a consideration of the evidence bearing on the issues recorded answers in the affirmative on Issues 2(a), (c) and (d), and on Issue 2(b) the High Court recorded an answer “Accepted on April 1, 1967”. The High Court recorded on Issue 2(e) the answer “Note proved”, and rejected the petition filed by the appellant.
3. Counsel for the appellant contends that after deciding Issue 2 (a), (b), (c) and (d) in favour of the appellant; the High Court erred in deciding Issue 2(e) against the appellant. The first respondent polled 2795 votes more than the appellant. Respondent 2 Heeralal Bahadur had polled 4227 votes and since Heeralal Bahadur was disqualified from standing as a candidate those votes were “thrown away”.' Counsel for the appellant contends that if the Returning Officer had rejected the nomination of Heeralal Bahadur, a large majority of the voters who voted for Heeralal Bahadur would have voted for the appellant. Counsel says that there were 6000 votes belonging to the Kachhi community in the constituency and the sympathy of the Kachhi community had always voted for the candidate sponsored by the political party which had supported his candidature, but since the members of the community of Kachhi had resolved to vote solidly in favour of Heeralal Bahadur Respondent 2 who was a Kachhi, they did not vote for him. Counsel submits that if, Heeralal Bahadur's nomination had not been accepted those votes would have gone to the appellant, and in that event the total votes, polled by the appellant would have exceeded the votes polled by Respondent 1. Counsel contends that by reason of the improper acceptance of the nomination paper of Heeralal Bahadur the election of the returned candidate had been materially affected, and on that ground it is liable to be set aside under Section 100(1)(d) of the Representation of the People Act, 1951.
4. A similar question arose for decision before this Court in Vashist Narain Sharma v. Dev Chandra1. It was contended in that case that if the nomination of one of the candidates Dudh Nath had not been accepted the result of the election would have been different and on that account it must be held that by reason of the improper acceptance of the nomination paper of Dudh Nath the result of the election was materially affected. This Court rejected the contention observing (at p. 514):
“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 Court further observed:
“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.”
The onus, according to the Court, of proving that improper acceptance of the nomination had materially affected the result of the election, lies upon the petitioner who seeks to set aside the election, and that the question can arise in one of the following three ways —
“(1) where the candidate whose nomination was improperly accepted had secured a smaller number of votes than the difference between the returned candidate and the candidate securing the next highest number of votes;
(2) where the candidate securing the next highest number of votes secured more votes than the difference;
(3) where the person whose nomination has been improperly accepted is the returned candidate himself.”
In the first class of cases the result of the election is not materially affected, because even if all the “wasted votes” were added to the votes of the candidate securing the next highest votes, it will make no difference to the result. In the third class of cases unquestionably the nomination of the returned candidate being improperly accepted, the election must be set aside. Dealing with the second class of cases, the Court observed:
“... 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 candidate securing the next highest number of votes must lead to the necessary inference that 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.”
5. Counsel for the appellant, however, urges that since Vashist Narain Sharma case was decided Section 100 of the Representation of the People Act, 1951 has been extensively amended and the intention disclosed by the amendment was to supersede the law declared by that case, and in any event to lighten the onus of proof which lies upon the election petitioner in a petition for setting aside the election on the ground of improper acceptance of the nomination of a candidate. The relative provisions of the Act may be set out in juxtaposition:
“Under Section 100 as it stood before it was amended by Act 27 of 1956, the tribunal was empowered to declare the election wholly void where the result of the election was materially affected by the improper acceptance or rejection of any nomination and to declare the election of the returned candidate void, where the result of the election was materially affected on account, amongst others, of non-compliance with any provisions of the Constitution, or of the Act or of any rules or orders made under the Act or rules relating to the election, or by any mistake in the use of any prescribed form. No distinction was made between the consequence arising out of improper acceptance and out of improper rejection of any nomination, provided the result of the election was materially affected thereby. Under Section 100 as amended, the election is not to be set aside in its entirety; only the election of the returned candidate has to be declared void. If any nomination has been improperly rejected, irrespective of the question whether the election has been materially affected thereby, the election of the returned candidate must be set aside. Where, however, there has been improper acceptance of any nomination the election of the returned candidate shall be declared void if the result of the election was materially affected by such improper acceptance. It is further provided that for non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act the election of the returned candidate shall be declared void if the result of the election in-so-far as it concerns the returned candidate had been materially affected thereby. If the result of the election had been materially affected by the improper acceptance of any nomination under the Act before amendment, the election was wholly void. Under the amended Act the election of the returned candidate is to be declared void. That is the only change made in declaring the consequences arising from improper acceptance of nomination. The onus of proof before the Amending Act lay upon the election petitioner to establish in case of improper acceptance of any nomination, that the result of the election had been materially affected thereby; even under the Act as amended, the burden remains upon the election petitioner. We are unable to hold that the re-arrangement of the provisions relating to setting aside of the election by the Amending Act of 1956, in cases where there has been improper acceptance of nomination any substantial modification in the law declared by this Court in Vashist Narain Sharma case was intended. Whether in a given case the onus is discharged must depend upon facts of that case. We may observe that in a recent case decided by this Court Poakai Haokip v. Rishang2 this Court has affirmed the view expressed in Vashist Narain Sharma case.”
6. Counsel then contended that in this case there was evidence to show that if Heeralal Bahadur's nomination had not been accepted, the appellant would have been declared elected, because all the votes which were cast in favour of Heeralal Bahadur who was a Kachhi would have been cast in favour of the appellant. But the following observations in Vashist Narain Sharma case at p. 516 clearly negative that plea:
“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.”
It may be accepted that in the constituency there were 6000 Kachhi voters. But there is nothing to show that all Kachhi voters did vote at the election or that only Heeralal Bahadur obtained the votes of Kachhi or that if Heeralal Bahadur had not stood for the election, all those voters would have voted for the appellant.
7. It was said that the Kachhi voters would have voted for the appellant who stood as a candidate of the Congress party, but for the fact that a member of their own community — Heeralal Bahadur — was standing as a candidate, and in a caste meeting held on February 5, 1967, at the Village Amaha it was resolved that all the Kachhi numbering about 6,000 should vote for Heeralal. We have read the evidence of the witnesses Dine Kachhi, PW 4 Mukundi Kachhi PW 5, Garibe Kachhi PW 7, Hiralal Kachhi PW 8, Gangadhar Kachhi PW 12, and Kamta Prasad PW 14 and we hold that there is no reliable evidence which supports the case that if the nomination of Heeralal Bahadur had not been accepted, 6000 voters belonging to the Kachhi community or a majority of those, voters would have voted for the appellant. How the members of the community reacted to the resolution and how far they regarded the resolution as binding upon them is a matter of speculation, and it would be impossible to predicate that the votes cast in favour of Heeralal Bahadur or a majority of those votes would have gone to the appellant and to no other candidate. How voters at an election will vote in a given situation cannot be determined with any degree of certainty. It is, therefore impossible to accept the assertion made by the candidate and his supporters that on some supposed or imaginary ground of affinity-political or communal — all or some of the votes would have gone to him, but for the irregularity committed by the Returning Officer in accepting the nomination of Heeralal. We agree with the High Court that the evidence on the record on the point that the “wasted votes” would have been distributed in such a manner that it would have brought about the defeat of the returned candidate is scanty and unreliable, and even that scanty evidence is only of a speculative or conjectural nature.
8. The appeal therefore fails and is dismissed with costs.