S.N. Modi, J.
1. The appellant Ramkishore & the two respondents, Jagdishprasad & Puniya, were candidates for election to the Rajgarh Municipality from Ward No. 3 The total number of persons who participated at the polling was 431, The counting commenced on 16-9-74 & on the same tav the result was declared. The appellant Ramkishore, respondent No. 1 Jagdish Prasad & respondent No. 2 Puniye a secured 207, 209 and 11 votes respectively. Two ballot papers were declared invalid. The other two bal of papers which were not counted related to PW 4 Gurucharandas and his wife Mst. Ladoo. Both of them were kept secret in sealed envelope marked Art 4 as they were challenged votes. It may be mentioned here bat at the time of polling the identity of Gurucharandas and Mst. Ladoo was challenged by respondent Jagdish Prasad. The Presiding Officer after evidence held both these voters to be genuine voters. They were therefore supplied with ballot papers which instead of being inserted into the ballot-box were kept by the Presiding Officer PW 3 Bhonreylal in a sealed envelope. As they were not in the ballot box, they were not counted as the time of counting of the votes. The Returning Officer declared respondent Jagdishprasad to be elected as he secured the highest number of votes. An election petition was then filed by the appellant Ramkishore on the ground inter-alia that the election of the returned candidate was void on account of improper refusal to receive the challenged votes, of Gurucharandas and his wife Mst Ladoo. According to the appellant, both these votes were cast in his favour and their non-reception has materially affected the election of the returned candidate. Respondent Jagdishprasad contested the petition and denied all material allegations pleaded in the petition. The learned Munsif, Rajgarh, is whose court the election petition was filed, rejected the petition. He held that the ballot papers of Gurucharandas and his wife Mst. Ladoo were challenged votes within the meaning of Section 42 of the Rajasthan Municipalities Election Order, 1960. hereinafter called as the Order. This finding is not challenged before me. The learned Munsif further held:
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The learned Munsif, however, came to the conclusion that there was noncompliance of the provisions of the Order in as much as the Presiding Officer did not record the word 'cancel' on the said two ballot papers of Gurucharandas and Mst. Ladoo. He then discussed the point whether the result of the returned candidate has been materially affected on account of non-compliance of the provisions of the Order and came to the conclusion in negative He accordingly rejected the election petition. It is against this order that the present appeal has been preferred by the appellant Ramkishore.
2. Mr. Kaila, the learned advocate for the appellant, contends that the presiding officer improperly prevented Gurucharandas and Mst. Ladoo from inserting their ballot papers into the ballot box. This contention of Mr. Kalla appears to be well-founded. Undoubtedly, respondent no 1 Jagdishprasad challenged the identity of the said voters at the time of polling. For each challenge, he deposited a sum of Rs. 2/- in cash with PW 3 Bhonreylal (Presiding Officer) On enquiry, PW 3 Bhonreylal was satisfied that both of them were electors having their existence on the electoral roll and challenge as to their identity was not established. The two voters were then supplied with the ballot papers and they duly entered their votes on these papers. A reading of the statements of PW 3 Bhonreylal and PW 4 Gurucharandas lead to the inference that PW 4 Gurucharandas and his wife Mst Ladoo wanted to insert their ballot papers into the ballet box but Bhonreylal did not permit them to do & instead took away the ballot papers to himself. On taking possession of the ballot papers, Bhonreylal kept them inside a sealed envelope and forwarded that sealed envelope along with other papers in another sealed envelope to the Returning Officer It is true that there is no direct evidence to show that that the said voters wanted to insert their ballot papers into the ballot-box and that Bhonreylal, Presiding Officer, prevented them from doing so But a careful reading of the statements of PW 3 and PW 4 and the conduct of PW 3 Bhonreylal in placing those ballot papers in a sealed envelope without canceling them as required by Section 38(8) of the Order leave no doubt that Bhonreylal took away the ballot papers and did not allow Gurucharandas and Mst. Ladoo to insert them into the ballot box. This action of PW 3 Bhonreylal was certainly not in accordance with lay and it amounted to improper refusal to receive valid votes within the meaning of Section 34(d)(iii) of the Rajasthan Municipalities Act, 1959, hereinafter referred to as the Act.
3. Section 34 of the Act so far as it is relevant for our purpose reads as under:
Section 34 - Grounds on which election may be called in question. The election of any person as member of a Board may be questioned by an election petition on one or more of the following grounds, namely:
(a), (b) and (c) xx xx xx(d) that the result of the election, in so far as it concerns a returned candidates, has been materially affected-
(i), (ii) xx xx xx(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any noncompliance with the provisions of this Act or of rules or orders made thereunder, or(e) and (f) xx xx xx.
In the present case, the election of the returned candidate is sought to beset aside under Clause (d) of Section 34 of the Act. Before an election can be declared void under the said clause, the court must find that the result of the election in so far as it concerns the returned candidate has been materially affected. An identical provision is found in Clause (d)(iii) and (iv) of Sub-section (1) Section 100 of the Representation of the People Act, 1951, which reads as under:
Section 100, Grounds for declaring election to be void. (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion--
(a) xx xx xx(b) xx xx xx(c) xx xx xx(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) xx xx xx(ii) xx xx xx(iii) by an 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,
the High Court shall declare the election of the returned candidate to be void. xx xx xx xx
Section 100(1)(d) came up for interpretation before their lordships of the Supreme Court in Paokai Haokip v. Rishang and Ors. : 1SCR637 . Their lordships relying upon their decision in Vashistnarain Sharma v. Dev Chandra : 1SCR509 observed as follows:
In our country, the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected.
Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the poll would have gone against the returned candidate it the breach of the rules had not occurred and proper poll had taken place at all the polling station including those at which it did not.
Their lordships then examined the evidence in the case before them and held-
In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; bit that dues not alter the position with regard to Section 100(1)(d)(iv) of the Ace. Than sections inquires 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 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 pot 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.
It follows from the above authoritative pronouncements of their lordships of the Supreme Court that the burden lay heavily upon the petitioner to prove that the result of the election was materially affected on account of the non-reception of the challenged votes at the time of counting. The evidence on this point consists of the statement of PW 1 Ramkishore, the appellant and PW 4 Gurucharandas. It is contended by Mr. Kalla, the learned advocate for the appellant, that besides the oral evidence, there are also important circumstances to show that the voters Gurucharandas and Mst Ladoo must have voted in favour of the appellant. In this connection, stress is laid on the fact that it was the respondent Jagdishprasad who challenged the identity of these two voters. It is urged that if the respondent Jagdishprasad had known that the said voters were going to cast their votes in his favour, he would not have challenged their identify. The learned Counsel next read over the statement of BW 4 Gurucharandas wherein he stated that he voted in favour of the appellant. It is urged that Mst. Ladoo is the wife of PW 4 Gurucharandas and as both of them came together to the polling station, it can be safely presumed that Mst. Ladoo, like her husband, must have voted for the appellant It is also alleged that if these two votes are added to the votes secured by the appellant, the number of votes secured by the appellant would swell to 209, that is, equal to the number of the votes secured by the returned candidate. The result of the election in that case would depend upon the drawing of the lots The learned counsel, in the circumstances, urges that the appellant has discharged the burden to prove that the result of the election was materially affected by the improper refusal to receive the challenged votes of Gurucharandas and Met Ladoo. AM these contentions were put forward in the lower court and they had been fully dealt with by the teamed Munsif. In my opinion he rightly discarded them as based on conjectures and surmises. PW 4 Gurucharandas has, no doubt, stated that he voted for the appellant, but he was unable to say whether Mst. Ladoo also voted for the appellant. No one else except Mat Ladoo could have stated whether or not she voted for the appellant Ms; Ladoo was not examined by the appellant for the reasons best Known to him. The appellant himself in his statement showed his ignorance as to whether Mst. Ladoo voted for him or not It is 'rue that Mst Ladoo is the wife of PW4 & both of them live together. Not only that both of them also reached the polling-ration, together, but merely on these facts it cannot be said with any amount of certainty that Mst. Ladoo must have voted for the app' Ham. In my opinion, the language of Section 34(d) of the Act is too clear for any speculation about possibilities. The clause clearly lays down that the election will not be declared invalid unless it is proved that the result of the election of the returned candidate has been materially affected. In view of the above position, it is not possible to hold on supposition or imaginary ground that the result of the election was materially affected.
4. Mr. Kalla next contended that in the present case, margin of the votes between the returned candidate and the appellant is so small (say two votes only) that reasonable guess or probability can be inferred and such inference is permissible under the law. In this connection, Mr. Kalla invited my attention to Samant N. Balakishna v. George Fernandez and Ors. : 3SCR603 . The relevant observation of their lordships on which reliance is placed are contained in para 58 at page 1225 of the report. They run as under:
In our opinion, the matter cannot be considered on possibility. Vashist Narain's case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently large. There is no room, therefore for a reasonable judicial guess the law require proof. How far that proof should go or what it should contain is not provided by the legislature. In Vashit's case 1956 1 SCR 509 : : 1SCR509 and in Inavatullab v. Diwan Chand Mahajan (1958) 15 Ele LR 219 at pp. 235 236 (MP) the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and mus' say that the burden has not been successfully discharged. We cannot overlook the rulings of this Court and follow the English rulings cited to us.
5. Mr. Kalla particularly laid stress on the following words if the margin of votes were small something might be made of the points mentioned by Mr. Jetha Malani' In my opinion, by these words, their lordships never meant to allow the court to go into the realm of possibilities. Their lordships in this very paragraph have observed that there is no room for a reasonable judicial guess because the law requires proof and not mere possibilities.
6. Mr. Kalla next submits that the sealed envelope Article 4 which contains the challenged votes be opened by this Court to find out whether or not both these voters had cast their votes in favour of the appellant, In other words, his prayer is to allow him inspection of the ballot papers. While summarising the principles laid down in its previous judgments from time to time in granting prayer, their lordships of the Supreme Court in Bhabhi v. Sheo Govind and Ors. : AIR1975SC2117 laid down the following conditions before a court can grant inspection of the ballot papers:
1. That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations:
2. That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts:
3. The court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
4. That the court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
5. That the discretion conferred on the court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and
6. That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegation made for a recount, and not for the purpose of fishing out materials.
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions; are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.
In the present case, most of the conditions mentioned above have not been satisfied. There is no proof that Mst. Ladoo had cast her vote in favour of the appellant. The appellant in his petition no doubt stated that Gurucharandas and Mst. Ladoo gave their votes in his favour but in his statement he showed his complete ignorance whether or not they voted for him. I do not think it to be a fit case for granting inspection of the ballot papers.
7. In the result, the appeal fails and it is dismissed with coats.