Santosh Yadav v. Narender Singh AIR 2002 SC 241
legitquest.com linkCivil Appeal No. 1306 of 2001 decided on 30/10/2001
Headnote
Representation of The People Act (43 of 1950) , S.100(1)(d)— “Result of election materially affected” – Plea that if a particular candidate was excluded, votes polled by him would have been polled by petitioner – No evidence however showing how many voters were there and which way polling went as amongst different candidates or pattern of voting in that constituency – Petition liable to be dismissed as petitioner failed in proving that result of election of returned candidate was materially affected by improper acceptance of nomination of that candidate.
The law as regards the results of election having been materially affected in case of improper acceptance of nomination may be summed up as under :- (1) A case of result of the election, in so far as it concern the returned candidate, having been materially affected by the improper acceptance of any nomination, within the meaning of S.100 (1) (d) (i) of the Representation of the People Act, 1951 has to be made out by raising specific pleadings setting out all material facts and adducing cogent evidence so as to enable a clear finding being arrived at on the distribution of wasted votes, that is, the manner in which the votes would have been distributed if the candidate, whose nomination paper was improperly accepted, was not in the fray.(2) Merely because the wasted votes are more than the difference of votes secured by the returned candidate and the candidate securing the next highest number of votes an inference as to the result of the election having been materially affected cannot necessarily be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner. (3) The burden of proving such material effect has to be discharged by the election petitioner by aducing positive, satisfactory and cogent evidence. If the petitioner is unable to adduce such evidence the burden is not discharged and the election R.P. No. 1 of 2000, D/- 9-1-2001 (Punj. and Har.) must stand.This rule may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but the Court is not concerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof. (4) The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility. There is no room for any guesswork, speculation, surmises or conjectures i.e. acting on a mere possibility. It will not suffice merely to say that all or majority of wasted votes might have gone to the next highest candidate. The law requires proof. How far that proof should go or what it should contain is not provided by the legislature.(5) 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. It is not permissible 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.(Para 16)
Where it was alleged that if a particular candidate was excluded then such number of votes would have been taken out of the votes polled by him and fallen into the box of petitioner as to make her successful, however there was nothing on record to show how many voters were there in the two villages and which way the polling went as amongst the different candidates, nor the election petitioner bring on record Form 20 document for the year 2000 elections or of the earlier elections so as to spell out what was the trend of voting in this particular Constituency, it was held that the election petitioner failed in discharging the heavy burden, which lay on her, of proving that the result of election, in so far as it concerns the returned candidate i.e., the respondent,had been materially affected by the improper acceptance of the nomination of that particular candidate as aforesaid and the petition was liable to be dismissed. It was more so when that candidate having been continuously in politics, he may have gradually strengthened his political base and thereby secured a spurt in the number of his voters and supporters and he and his family members were active in politics and they had their own political base. In such a case, the fact that the number of votes secured by that candidate was almost 59 times of the margin between the votes secured by the petitioner and the respondent was not material.(Para 25 26)
Cases Referred :
Surender Nath Khosla v. S. Dalip Singh [AIR 1957 SC 242] Para 7
Vashist Narain Sharma v. Dev Chandra [AIR 1954 SC 513] Para 9
Samant M. Balakrishna v. George Fernandez [AIR 1969 SC 1201] Para 9
Shiv Charan Singh v. Chandra Bhan Singh [AIR 1988 SC 237] Para 9
Tek Chand v. Dile Ram [(2001) 3 SCC 290] Para 10
Paokai Haokip v. Rishang [AIR 1969 SC 663] Para 11
Chhedi Ram v. Jhilmit Ram [AIR 1984 SC 146] Para 12
Judgement
R.C. LAHOTI, J. – Pursuant to a notification issued by the Election Commission of India under Section 30 of the Representation of the People Act, 1951 (hereinafter the Act) in the month of January 2000, several constituencies, including 80-Ateli Assembly Constituency, in the State of Haryana, were called upon to elect members for the Haryana Legislative Assembly. Several nomination papers were filed on the dates appointed for filing nomination papers. After scrutiny held on 4th February and withdrawal of candidature by a few candidates on 7th February there were 17 candidates, including the appellant and respondent, who remained in the fray for 80-Ateli Constituency. It may be stated that Smt. Om Kala, wife of a candidate Shri Naresh Yadav, had also filed her nomination. She is alleged to be a cover candidate for her husband. Once the nomination of Shri Naresh Yadav was found to be in order and accepted Smt. Om Kala withdrew her candidature. The constituency went to polls on 25.2.2000. On counting, the contesting candidates were found to have secured the following numbers of votes:-
Sr.No. Name of the candidate Party affiliation No. of valid votes polled
1. Rao Om Parkash Engineer BSP 5819
2. Sh. Jagat Singh JD[U] 113
3. Sh. Narender Singh INC 31755
4. Sh. J.D. Yadav HVP 500
5. Smt. Santosh D/o Sh. Bhagwan Singh INLD 31421
6. Sh. Yogesh Kumar RJD 205
7. Sh. Laxmi Narain SP 785
8. Sh. Vinod Kumar SJP[R] 212
9. Sh. Om Parkash Yadav IND 18
10. Sh. Om Parkash IND 178
11. Sh. Naresh Yadav IND 19855
12. Comrade Balbir Singh IND 476
13. Sh. Ram Singh IND 111
14. Sh. Rama Nand Sharma IND 194
15. Smt. Santosh w/o Yudhvir IND 40
16. Sh. Satbir IND 92
17. Sh. Surender IND 18
3. The respondent Shri Narender Singh who was a candidate sponsored by Indian National Congress having secured 31755 votes, the highest number of votes, was declared elected. Smt. Santosh, the appellant, who was a candidate sponsored by Indian National Lok Dal (INLD) secured 31421 votes i.e. next below the highest number of votes. Thus, there was a margin of 334 votes between the votes secured by the respondent and the appellant.
4. The appellant filed an election petition putting in issue the election of the respondent. One of the grounds taken in the election petition was that the nomination of Shri Naresh Yadav was improperly accepted as he had been convicted under Section 304-B and Section 498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and one year respectively, besides the fine, under the judgment and order of sentence pronounced by the Court of Sessions at Gurgaon on 31/3/1990. Though an appeal was filed by him before the High Court and the High Court had suspended the execution of the sentence of imprisonment, nevertheless he remained a person convicted of offences falling under clause (a) of sub-section (1) and sub-section (3) of Section 8 of the Act and hence disqualified. The plea as to disqualification of Shri Naresh Yadav has been upheld by the High Court. Neither the factum of conviction of Shri Naresh Yadav nor the disqualification flowing therefrom is in issue in this appeal. However, in spite of holding that the election held in Ateli Assembly Constituency was vitiated on account of nomination of Shri Naresh Yadav having been improperly accepted, the learned designated Election Judge of the High Court of Punjab and Haryana has refused to set aside the election of the respondent as, in his opinion, the election-petitioner/appellant has failed in discharging the onus of proving that the result of the election, in so far as it concerns the respondent (the returned candidate), had been materially affected. The election petition having been dismissed, the judgment of the High Court has been put in issue by this appeal preferred under Section 116-A of the Act. The question arising for decision in this appeal is: whether the High Court was right in forming the opinion that on the established facts and circumstances of the case the appellant had failed in proving that the election of the respondent was materially affected by improper acceptance of the nomination paper of Shri Naresh Yadav.
5. The appellant‘s case in this regard is that Shri Naresh Yadav was an active worker/leader of INLD and was closely associated and well acquainted with the cadre, workers, supporters and well-wishers of INLD. He was earlier a member of Bahujan Samaj Party (BSP) and had contested 1996 Assembly Elections on the BSP ticket. In August 1998, he joined INLD and actively participated in all the programmes, functions and activities of INLD carried by Shri Om Prakash Chautala, president of INLD and Shri Ajay Singh Chautala, president of the youth wing of INLD. The respondent had extensively toured the constituency accompanying Shri Om Prakash and Shri Ajay Singh. He was an aspirant of INLD ticket for contesting as an official candidate of INLD from 80-Ateli constituency. However, the choice of INLD fell on the appellant. Shri Naresh Yadav, having failed in getting the ticket of INLD, revolted and filed his nomination as an independent candidate. On account of his close association with the INLD cadre he secured a high number of votes cutting into pro-INLD and anti-Congress votes which would have otherwise been polled in favour of the petitioner. Shri Naresh Yadav secured 19855 votes, which is more than 59 times the margin of votes between the votes secured by the respondent and the appellant. If only the nomination paper of Shri Naresh Yadav would have been rejected and his candidature would have been excluded the votes polled by him would have definitely been polled by the appellant. There was a pro-INLD wave in the entire State of Haryana in the Assembly Elections of the year 2000. It was in effect an anti-Congress wave. The respondent could not have secured more votes than what he had secured and in as much as the votes secured by Shri Naresh Yadav were otherwise pro INLD votes, they would all have been diverted to the appellant. These averments have been denied by the respondent in his written statement as already stated. The learned designated Election Judge has formed an opinion, on appreciation of evidence, that the appellant had failed in substantiating the plea raised in the election petition. Almost similar arguments, as were advanced in the High Court, have been advanced before this Court, of course with added vigour by the learned senior counsel for the appellant. Before we deal with the merits of the submission so made and enter into appreciation of evidence in the light of the submissions made, it will be useful to set out the relevant law.
7. The Parliament has drawn a clear distinction between an improper rejection of any nomination and the improper acceptance of any nomination. In the former case, to avoid an election, it is not necessary to further prove that the result of the election has been materially affected. The underlining reasoning for this was well set out by a Constitution Bench of this Court in Surender Nath Khosla v. S. Dalip Singh [AIR 1957 SC 242]. There is a presumption in the case of improper rejection of a nomination paper that it has materially affected the result of the election. The fact that one of several candidates for an election was kept out of the arena is by itself a very material consideration. The officer rejecting the nomination paper of a candidate may have kept out the most desirable candidate, the most desirable from the point of view of electors and the most formidable candidate from the point of view of the other candidates, from seeking election and therefore the Parliament felt that an improper rejection of any nomination paper is conclusive proof of the election being void and therefore dispensed with the need of evidence being tendered in proof of the result of the election having been materially affected. On the other hand, in the case of an improper acceptance of a nomination paper, proof is required by way of evidence demonstrating that the coming into the arena of an additional candidate has had the effect on the election in such a manner that the best choice of the electorate was excluded.
8. It is well settled by a catena of decisions that the success of a winning candidate at an election should not be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially clause (d) of sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to (iv) of clause (d), the election of a returned candidate shall not be avoided unless and until it was proved that the result of the election, in so far as it concerns a returned candidate, was materially affected.
9. A few decisions were cited at the Bar and it will be useful to look at them. In Vashist Narain Sharma v. Dev Chandra [AIR 1954 SC 513] the candidate whose nomination was improperly accepted had secured 1983 votes while the margin of votes between the winning candidate and the next below candidate was 1872. This court held that having called upon to record a finding that the result of the election has been materially affected, 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 wasted votes would have been so distributed between the contesting candidates as would have brought about the defeat of the returned candidate. The Court emphasized the need of proof by affirmative evidence and discarded the test of a mere possibility to say that the result could have been different in all probability. The question is one of fact and has to be proved by positive evidence. The Court observed that the improper acceptance of a nomination paper may have, in the result, operated harshly upon the petitioner on account of his failure to adduce the requisite positive evidence but the Court is not concerned with the inconvenience resulting from the operation of the law. The Court termed it 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. In Samant M. Balakrishna v. George Fernandez [AIR 1969 SC 1201] this Court recognized that proof of material effect on the result of the election in so far as a returned candidate is concerned on account of a miscarriage occasioned by improper acceptance of nomination paper at an election may be a simple impossibility. The judge has to enquire how the election would have gone if the miscarriage would not have happened and that enquiry would result virtually placing the election not in the hands of the constituency but in the hands of the Election Judge. The Court held that neither the matter could be considered on possibility nor there was any room for a reasonable judicial guess. The law requires proof; how far that proof should go or what it should contain is not provided by the legislature. In Shiv Charan Singh v. Chandra Bhan Singh [AIR 1988 SC 237] this court pointed out that proof of material effect on the result of the election in a case of improper acceptance of nomination paper involved the harsh and difficult burden of proof being discharged by the election petitioner adducing evidence to show the manner in which the wasted ballots would have been distributed amongst the remaining validly nominated candidates and in the absence of positive proof in that regard the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures.
10. All the above said decisions were referred to, dealt with and followed in a recent decision of this court in Tek Chand v. Dile Ram [(2001) 3 SCC 290]. This court held that the mere fact that the number of votes secured by a candidate whose nomination paper was improperly accepted, was greater (more than three times in that case) than the margin of the difference between the votes secured by the returned candidate and the candidate securing the next higher number of votes, was not by itself conclusive proof of material effect on the election of the returned candidate.
11. It is common knowledge that voting and abstention from voting, as also the pattern of voting, depend upon a complex variety of factors, which may defy reasoning and logic. Depending on a particular combination of contesting candidates and the political parties fielding them, the same set of voters may cast their ballots in a particular way and may respond differently on a change in such combination. Voters have a short-lived memory and not an inflexible allegiance to political parties and candidates. Election manifestos of political parties and candidates in a given election, recent happenings, incidents and speeches delivered before the time of voting may persuade the voters to change their mind and decision to vote for a particular party or candidate giving up their previous commitment of belief. In Paokai Haokip v. Rishang [AIR 1969 SC 663] this court has taken judicial notice of the fact that in India all the voters do not always go to the polls and that the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.
12. The learned senior counsel for the appellant placed heavy reliance on Chhedi Ram v. Jhilmit Ram [AIR 1984 SC 146] and submitted that the ratio of the decision squarely applies to the present case and should govern the decision thereof. It was submitted that in Chhedi Ram case the candidate whose nomination was improperly accepted had obtained 6710 votes which was almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. So also the number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate – a little over 1/3rd. The learned senior counsel submitted that on availability of these twin factors it was held by this Court that the result of the election might safely be said to have been affected; while the case of the present appellant stands on a much better footing in as much as the number of votes secured by Shri Naresh Yadav is almost 59 times of the margin between the votes secured by the appellant and the respondent.
13. At the first blush the submission appears to be attractive but is found to be devoid of merit on closer scrutiny. Chhedi Ram case came up for the consideration of this Court at least on three occasions. In Shiv Charan’s case and Tek Chand case, this Court has held that Chhedi Ram case rested on its own facts and did not overrule the earlier decisions of this Court namely the decisions in Vashisht Narain Sharma case and Samant N. Balakrishna case. In Chhedi Ram case not only the proportion of wasted votes was 20 times of the margin, there were six candidates in all in the election fray. The Court formed an opinion that a reasonable probability was raised in favour of holding that the result of the election had been materially affected. The decision in Chhedi Ram case does not set out detailed facts and circumstances and the nature of the evidence adduced which may have persuaded the Court in arriving at a finding in favour of the election petitioner. In view of the earlier decisions of this Court existing before Chhedi Ram case was decided, it cannot be held that merely because the number of wasted votes bears a high degree of proportion to the margin of votes between the winning candidate and the next highest candidate, an inference must always be drawn that the result of the election was materially affected in so far as the returned candidate is concerned. There must be definite evidence available before the Court enabling an inference being drawn as to how the wasted votes would have been distributed amongst the contesting candidates. The Court cannot conjecturise or return findings on surmises.
14. Observations in Shiv Charan Singh case are pertinent and apposite. It is no doubt true that the burden which is placed by law on the election petitioner is very strict; even if it is strict it 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 not 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.
15. A word about the pleadings. Section 83 of the Act mandates an election petition to contain a concise statement of the material facts on which the petitioner relies. The rules of pleadings enable a civil dispute being adjudicated upon by a fair trial and reaching a just decision. A civil trial, more so when it relates to an election dispute, where the fate not only of the parties arrayed before the Court but also of the entire constituency is at a stake, the game has to be played with open cards and not like a game of chess or hide and seek. An election petition must set out all material facts wherefrom inferences vital to the success of the election petitioner and enabling the Court to grant the relief prayed for by the petitioner can be drawn subject to the averments being substantiated by cogent evidence. Concise and specific pleadings setting out all relevant material facts, and then cogent affirmative evidence being adduced in support of such averments, are indispensable to the success of an election petition. An election petition, if allowed, results in avoiding an election and nullifying the success of a returned candidate. It is a serious remedy. Therefore, an election petition seeking relief on a ground under section 100 (1) (d) of the Act, must precisely allege all material facts on which the petitioner relies in support of the plea that the result of the election has been materially affected. Unfortunately in the present case all such material facts and circumstances are conspicuous by their absence.
16. The law as regards the result of election having been materially affected in case of improper acceptance of nomination may be summed up as under : –
(1) A case of result of the election, in so far as it concerns the returned candidate, having been materially affected by the improper acceptance of any nomination, within the meaning of Section 100(1)(d)(i) of the Representation of the People Act, 1951 has to be made out by raising specific pleadings setting out all material facts and adducing cogent evidence so as to enable a clear finding being arrived at on the distribution of wasted votes, that is, the manner in which the votes would have been distributed if the candidate, whose nomination paper was improperly accepted, was not in the fray.
(2) Merely because the wasted votes are more than the difference of votes secured by the returned candidate and the candidate securing the next highest number of votes, an inference as to the result of the election having been materially affected cannot necessarily be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner.
(3) The burden of proving such material effect has to be discharged by the election petitioner by adducing positive, satisfactory and cogent evidence. If the petitioner is unable to adduce such evidence the burden is not discharged and the election must stand. This rule may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but the Court is not concerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof.
(4) The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility. There is no room for any guess work, speculation, surmises or conjectures i.e. acting on a mere possibility. It will not suffice merely to say that all or majority of wasted votes might have gone to the next highest candidate. The law requires proof. How far that proof should go or what it should contain is not provided by the legislature.
(5) 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. It is not permissible 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.
17. Having so stated the law, we now proceed to assess and evaluate the evidence adduced by the parties.
18. In all there are 10 witnesses examined on behalf of the election petitioner/appellant. Balwant Singh, PW 1, the Returning Officer has deposed to only certain undisputed facts. Sant Lal, PW 2, has produced result-sheets of Haryana State Legislative Assembly Elections held in the years 1982, 1987, 1991, 1996 and 2000. Pawan Kumar, PW 3, is a photographer and Ashok Wadhwa, PW 4, and Rohtas Yadav, PW 5, are press-reporters, who have deposed to Shri Naresh Ydadav having joined INLD publicly in early August, 1998 in the presence of Shri Om Prakash Chautala and other leaders of INLD which is a fact not disputed by the respondent at this stage. Ram Kumar, PW 6, District Office Secretary of INLD, has deposed to Shri Naresh Yadav and the appellant – both having been aspirants for INLD party ticket but in mid-September, 1998 the ticket having been denied to Shri Naresh Yadav and the appellant having been given the party ticket where after Shri Naresh Yadav made a rebellion and chose to contest as an independent candidate. Again, this is also a fact not seriously disputed at this stage. The statements of remaining four witnesses are relevant and need to be scrutinized for the purpose of deciding the main controversy in this appeal.
19. Bali Ram, PW 7, is a resident of village Silarpur while Sher Singh, PW 8, is a resident of village Shyampura. Both of them have deposed to there having been two main groups in their respective villages in the election. The two groups were of the Congress and the INLD. None of them speaks of having any knowledge about the entire constituency. None of the two has deposed to, he himself having been a voter and exercised his own franchise. Bali Ram, PW 7, states Shri Naresh Yadav having made in-roads into the votes of the appellant. Obviously, the statement is confined to his own village. Sher Singh, PW 8, too deposed that Shri Naresh Yadav contesting as an independent candidate affected the votes of INLD and those votes were not in favour of Congress. What has been stated by these two witnesses does not go beyond being ipse dixit of the witnesses. There is nothing on record to show how many voters were there in the two villages and which way the polling went as amongst the different candidates.
20. Smt. Santosh Yadav, PW 9, the appellant herself, deposed about some party workers having gone with Shri Naresh Yadav without disclosing the names of such party workers. She further stated that the party votes were divided because Shri Naresh Yadav asked for the votes in the name of Shri Om Prakash Chautala a fact not alleged in the election petition. This is apart from the fact that who were such voters and at what point of time they were asked to vote for Shri Naresh Yadav is neither averred in the pleadings nor stated in her statement. According to her own admission Shri Om Prakash Chautala was touring the constituency and had come to support her in the constituency. Satbir Singh, PW 10, is General Secretary of INLD of District Mohindergarh and was in-charge of election campaigning in 80-Ateli Constituency in February, 2000. He claims to have toured the 80-Ateli Constituency during the elections and therefrom he deposed that on account of Shri Naresh Yadav having contested as an independent candidate many of the workers and voters of INLD supported him. The statement has remained as vague and general as is of the appellant herself. The witnesses PW 7, PW 8 and PW 10, are all party workers and would naturally have some bias in favour of their own party and would be obviously interested in the success of the appellant in the election petition. There evidence also does not advance the case of the appellant.
21. The documents which have been brought on record by the election petitioner show the State level results of Haryana. But what is relevant is the trend of voting and distribution of votes amongst contesting candidates in 80-Ateli Constituency and not necessarily the entire State. The election petitioner did not bring on record Form 20 document for the year 2000 elections or of the earlier elections so as to spell out what was the trend of voting in this particular Constituency. Form 21-E tendered in evidence establish that in the past elections, it was the Congress Party which had won election in 80-Ateli in 1982, 1991 and 1996. In 1982 elections Congress (J) candidate was returned to Legislative Assembly having secured 27298 votes and Shri Banshi Singh, father of Shri Naresh Yadav secured 27105 votes and lost. In 1991, Shri Banshi Singh secured 19343 votes as a Congress candidate and won the election. In the year 1996 there were 47 candidates contesting from 80-Ateli constituency. INC candidate won having secured 22114 votes. However, Om Prakash Engineer contesting on Haryana Vikas Party ticket, Ajit Singh (Samajvadi Party), Naresh Yadav (BSP), Nihal Singh (Samta Party) and Bharat Singh (Independent) secured 19270, 15686, 9846, 7534 and 3328 respectively. In the year 2000 itself one Shri Om Prakash Engineer, a BSP candidate secured 5819 votes, not a totally insignificant number and in the event of Shri Naresh Yadav being excluded he would also have shared some of the wasted votes, apart from other candidates out of 17 in all. No definite trend or mood of voters is, thus, projected from the statistics so made available. In Paokai Haokip case, Chief Justice M. Hidayatullah said that statistics cannot be called in aid to prove such facts, because it is notorious that statistics can prove anything and made to lie for either case. It has also come in the evidence that father of Naresh Yadav has been a Sarpanch and Smt. Om Kala, the wife of Shri Naresh Yadav is herself active in politics and contested several elections. She had contested Zila Parishad Elections within the constituency of Ateli on two occasions and on both occasions she was elected. In the year 1996, Shri Naresh Yadav had contested elections as the candidate of Bahujan Samaj Party and had polled 9846 votes, almost half of the votes polled by him in the impugned elections. Thus, Shri Naresh Yadav and his family members are active in politics and they have their own political base. Shri Naresh Yadav does not have any fixed party affiliation; he has been often changing his party membership. It can not therefore be said that the votes which he secured were necessarily a cut into INLD vote bank. It is difficult to agree with the submission of the learned senior counsel for the appellant that while as a candidate of BSP, Shri Naresh Yadav polled 9846 votes in 1996 elections, his rise by 9885 votes in the year 2000 elections should be attributed to, and be treated as, a cut into INLD votes and these 9885 votes or a major chunk of them would have otherwise gone to the appellant. Shri Naresh Yadav having been continuously in politics, he may have gradually strengthened his political base and thereby secured a spurt in the number of his voters and supporters. It needs hardly any evidence to hold, as one can safely assume that the appellant must have openly and widely propagated herself as INLD candidate and made it known to the constituency that she was the official candidate sponsored by INLD and Shri Naresh Yadav was not an INLD sponsored candidate and was a defector. Therefore, it is difficult to subscribe to the suggested probability that any voter committed to INLD ideology would have still voted for Shri Naresh Yadav merely because he had for a period of two years before defection remained associated with INLD.
22. In Vashist Narain Sharma case, the election petitioner made an attempt at discharging the onus of proof by producing a number of electors before the Tribunal who had stated that all or some of the votes would have gone to the candidate who had polled the next highest number of votes and in the absence of the improperly nominated candidate he would have polled majority of valid votes. It was held that the statement of the witnesses as to in what manner votes would have been distributed among the remaining contesting candidates could not be relied upon in determining the question of material effect on the election of the returned candidate. The Court observed that it was impossible to accept 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. In Paokai Haokip case witnesses were brought forward to state that a number of voters did not vote because of the change of venue and certain other incidents. This Court held that this kind of evidence was merely an assertion on the part of a witness who could not have spoken for 500 voters. The Court also refused to accept the statement even of village Headman that the whole village would have voted in favour of one candidate to the exclusion of the other.
23. The learned senior counsel for the appellant extensively read out a few passages from the decision of this Court in Tek Chand case. The passages relate to marshalling of evidence. During discussions this Court has made certain observations as to the missing pieces of the facts and circumstances which by their absence had a debilitating effect on the evidence adduced. The learned senior counsel submitted that the evidence which was missing in Tek Chand case has been adduced and made available in the present case and therefore the finding on the crucial issue should lean in favour of the appellant. We are afraid such a submission can not be accepted. We see no acceptable logic behind the argument that if what was missing in Tek Chand case, would have been available, the finding would necessarily have been in favour of the election petitioner.
24. We also do not see force in the submission of the learned senior counsel for the respondent that Smt. Om Kala had withdrawn her candidature because of her husband‘s nomination having been accepted and if the nomination of her husband Shri Naresh Yadav would have been rejected than she being a cover candidate, would have contested the election and therefore the result of the election can not be said to have been materially affected. Suffice it to observe that we have to deal with what has happened and not with an imaginary situation which could have happened but did not happen.
25. In our opinion, on the pleadings and the evidence adduced, the election petitioner/appellant has utterly failed in demonstrating the pattern of voting in 80-Ateli Constituency. There were 17 contesting candidates in the field. It is difficult to make a reasonable guess, much less with any certainty, that if Shri Naresh Yadav was excluded then such number of votes would have been taken out of the votes polled by him and fallen into the box of appellant as to make her successful.
26. In as much as we have found, agreeing with the High Court that the election petitioner/appellant has failed in discharging the heavy burden, which lay on her, of proving that the result of election, in so far as it concerns the returned candidate i.e., the respondent, has been materially affected by the improper acceptance of the nomination of Shri Naresh Yadav, the judgment of the High Court cannot be faulted. The appeal and the cross objections, are held liable to be dismissed and are dismissed accordingly, though without any order as to the costs.
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