P.V. Rajamannar, C.J.
1. This appeal against the judgment of Rajagopala Ayyangar, J., in W.P. No. 22 of 1954 relates to the election of the President of the Panchayat Board of Andhiyur. The election took place on 28th April, 1953 and the appellant was declared elected as having obtained the largest number of votes. Originally five candidates filed their nomination papers, namely, the appellant and the contesting respondent (first respondent) and three others, namely, Manicka Mudali, Angappa Mudali and Perianna Gounder. The date for the scrutiny of the nominations was 11th April, 1953. A valid withdrawal of a nomination could have been effected under the rules by notice in writing sent by the candidate and communicated to the Election Officer before 13th April, 1953. The three candidates other than the appellant and the first respondent sent up written communications by post withdrawing their candidature on 14th April, 1953. The communications were received by the election authority on the 16th. Before this date one of them, Manicka Mudali revoked his withdrawal by letter dated 15th April, 1953, which reached the election authority on the 17th April, 1953. The Election Officer treated Manicka Mudali as continuing to be a candidate, but treated the other two, Angappa Mudali and Perianna Gounder, as having validly withdrawn from the contest. The result was that at the polling booth boxes were set up for the appellant, the first respondent and for Manicka Mudali. There were no boxes for Angappa Mudali and Perianna Gounder. As already mentioned, at the election held on the 28th April, 1953, the appellant secured the largest number of votes, namely, 3373. The first respondent obtained 2515 and Manicka Mudali 263 votes. The appellant was declared duly elected. Thereupon the first respondent filed O.P. No. 19 of 1953 before the Election Commissioner, the District Munsiff of Gobichettipalayam, to set aside the election of the appellant. He alleged several grounds of which it suffices to mention only one, namely, that the withdrawals of Angaapa Mudali and Perianna Gounder were invalid and therefore they should have been treated as candidates who validly stood for election and boxes should have been placed for them also, to enable voters to record votes for them if they chose. The Election Commissioner held that the withdrawals were not properly made and five boxes should have been placed in the polling booths for all the five candidates including Angappa Mudali and Perianna Gounder. He further held that on account of this irregularity the result of the election had been materially affected. On this ground he set aside the election of the appellant. The appellant filed W.P. No. 22 of 1954 in this Court to have the order of the Election Commissioner setting aside his election quashed. The petition was heard and disposed of by Rajagopala Ayyangar, J. The learned Judge held that the withdrawals were improper and that boxes should have been placed for Angappa Mudali and Perianna Gounder also and he also agreed with the finding of the Election Commissioner that the irregularity had materially affected the election of the appellant. On this finding he dismissed the petition.
2. Mr. T.R. Srinivasan, learned Counsel for the appellant, conceded that the withdrawals were not validly made and it was wrong on the part of the Election Officer to have omitted to place boxes in the polling booths for Angappa Mudali and Perianna Gounder. But he contended that this action on the part of the Returning Officer was only a non-compliance with the rules and, before the election could be set aside, it must be found on positive evidence that the result of the election has been materially affected by such non-compliance with the rules, and there was no such positive evidence in this case. He relied in support of his contention on the recent ruling of the Supreme Court in Vashist Narain Sharma v. Devchandra (1954) 2 M.L.J. 379 : (1954) S.C.J. 717. Before we refer in detail to the Supreme Court decision we shall briefly refer to the evidence on which the learned Judge, Rajagopala Ayyangar, J., was prepared to uphold the finding of the Election Commissioner that the result of the election had been materially affected. The only material evidence on this point was a statement of the first respondent himself as P.W. 10, namely:
Perianna Gounder is a Veterinary Doctor. He has a mill there. He is an influential man. If their boxes were also there Palaniappa Pillai could not have got himself elected.
3. Mr. Jagadisa Ayyar, learned Counsel for the contesting respondent, was unable to draw our attention to any other passage in the depositions which had any material bearing on the question at issue. It was on the above statement of the first respondent that the learned Judge was prepared to rest his finding.
4. In the case before the Supreme Court what happened was this. Eight candidates filed nominations to the U.P. State Legislative Assembly from a certain constituency, of whom three withdraw and the contest was confined to the remaining five. The votes secured by these five candidates were as follows:
Vashist Narain Sharma .. 12,868
Vireshwar Nath Rai .. 10,996
Mahadeo .. 3,950
Dudh Nath .. 1,983
Gulab Chand .. 1,768
Vashist Narain Sharma was declared duly elected as having secured the highest number of votes. There was an election petition filed to set aside his election on the ground inter alia that the nomination of Dudh Nath was improperly accepted by the Election Officer and that the result of the election was there by materially affected. The Election Tribunal held that the nomination of Dudh Nath had been improperly accepted and the result of the election had thereby been materially affected and set aside the election of Vashist Narain who filed an appeal by special leave to the Supreme Court. The relevant provision of the Representation of the People Act, 1951, with which the Supreme Court had to deal was Section 100(1)(c) which ran thus:
If the Tribunal is of opinion:
(c) that the result of the election has been materially affected by the improper acceptance or rejection of a nomination,
the Tribunal shall declare the election to be wholly void.
Construing the language of this provision, Ghulam Hasan, J., who delivered the judgment of the Court, observed thus:
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 grounds. 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 a 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.
It was pressed upon their Lordships that the finding that the result of the election had been affected was a finding of fact; but that argument was repelled by observing
but there is no foundation for the so called finding of fact.
His Lordship added:
The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon a mere possibility. Their finding upon the matter is speculative and conjectural.
Applying the principle of this decision to the facts of the case before us what follows? Here the only evidence on the question whether the result of the election has been materially affected is the opinion-evidence of an interested party, namely, the first respondent, who has filed the petition, that if Perianna Gounder had stood, his opponent Palaniappa would not have been elected. This is certainly the ipse dixit of a highly interested party. One can at least attach some value to a voter coming into the witness-box and deposing that if there was a box for Perianna Gounder he would have voted for him. But it is impossible to attach any value to a conjecture of one of the parties that if some one had stood someone else would have got less votes. This statement cannot serve as foundation for a finding of fact and it is practically admitted that but for this there is noting else to serve as such foundation.
5. We hold that the order of the Election Commissioner is vitiated by an error apparent on the face of the record. On a wrong construction and application of the relevant rule he has set aside an election which he had no jurisdiction to set aside. His finding of fact that the result of the election has been materially affected was based on no evidence and therefore had no value.
6. The appeal is allowed and the order of Rajagopala Ayyangar, J., is set aside. The rule nisi issued to the Election Commissioner is made absolute and his order setting aside the election of the appellant is hereby quashed. The election petition filed by the first respondent will, as a result, be dismissed. There will be no order as to costs either in the petition or in this appeal because the learned Judge did not have the benefit of the ruling of the Supreme Court when he disposed of the writ petition.