When Improper acceptance of nomination be said to have materially affected result of election?

  Representation of the  People  Act,  1951-S.100(1)(d)-
Improper acceptance  of nomination-When  could it be said to
materially affect the result of election?
The appellant, the respondent and four other candidates
contested the  election to  a legislative  assembly  from  a
constituency  reserved  for  Scheduled  Castes.  While  the
respondent was declared elected,  the appellant secured the
next highest  number of  votes and  the  difference  in  the
number of  votes secured by them was only 373. The appellant
challenged the election of the respondent on the ground that
the result  of the  election had been materially effected by
the  improper  acceptance  of  the  nomination of  a  third
candidate who  had secured 6710 votes. The Election Tribunal
arrived at  the finding  that the  candidate in question was
not a member of the Scheduled Castes and hence is nomination
had been  improperly accepted, but nevertheless, refused to
set aside  the election of the respondent on the ground that
the result  of the  election had not been shown to have been
materially affected  as a  result of the improper acceptance
of the nomination.
     Allowing the appeal,
^
     HELD: Under  s. 100(1)(d) of the Representation of the
People Act, 1951, the election of a returned candidate shall
be declared  to be  void if the High Court is of the opinion
that the  result of  the election,  in so far as it concerns
the returned  candidate, has been materially affected by the
improper acceptance  of any  nomination and  the  burden  of
establishing the  same is  on the  person  impeaching  the
election.  Where   the candidate   whose   nomination  was
improperly accepted  has secured  a larger  number of  votes
than the  difference between  the number of votes secured by
the successful candidate and the candidate securing the next
highest number of votes,  there is  a possibility  that  a
sufficient number  of votes  actually cast for the candidate
whose nomination  was improperly  accepted might  have been
cast for  the candidate  who secured  the highest  number of
votes next  to the  successful candidate  so as to upset the
result of  the election.  In such a situation, the answer to
the question  whether the  result of  the election  could be
said to  have been  materially affected  must depend  on the
facts, circumstances  and reasonable  probabilities  of  the
case. If  the number of votes secured by the candidate whose
nomination was improperly  accepted  is  disproportionately
large as compared with the difference
967
between the  votes secured  by the  successful candidate and
the candidate  securing the next highest number of votes and
if the votes secured  by the candidate whose nomination was
improperly accepted  bears a  fairly high  proportion to the
votes secured  by the  successful candidate,  the reasonable
probability is that the  result of  the election  has been
materially affected  and one may venture to hold the fact as
proved. [968 F-G; 969 D-F]
     Under the Evidence Act,  a fact  is said to be proved
when after  considering the  matters before  it,  the  Court
either believes  it to exist or  considers its existence so
probable that  a prudent  man ought, under the circumstances
of the particular case, to act upon the supposition that it
exists. If having regard to the facts and circumstances of a
case, the  reasonable probability  is all  one way,  a court
must not lay down an impossible standard of proof and hold a
fact as not proved. [969 G-H]
     In the instant case, the candidate whose nomination was
improperly accepted had obtained 6710 votes, that is, 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. Further, 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-it was a little
over one-third.  In such  a  situation the  result  of  the
election may  safely be  said to have been affected.

Supreme Court of India

Chhedi Ram vs Jhilmit Ram & Others on 5 December, 1983

Equivalent citations: 1984 AIR 146, 1984 SCR (1) 966,

1984 SCC  (2) 281,

BENCH:
REDDY, O. CHINNAPPA (J)
FAZALALI, SYED MURTAZA
VENKATARAMIAH, E.S. (J)

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Whether limitation for filing election petition will commence from date when results of election were declared?

Learned counsel for respondent No.1, therefore
relying upon the aforesaid statement, made attempt
to contend that the limitation would begin, as held
by the High Court in her favour from 21.02.2012,
for filing election petition which is the date on which
the election results were declared and then were
published in the official gazette as provided in
Section 10 read with Section 32 of the Act and
hence 10 days will have to be counted from
21.02.2012. Learned counsel, thus submitted that
the election petition filed by respondent No.1 on
28.02.2012 was within limitation because 10 days
period prescribed under Section 33 (1) ended on
02.03.2012.
29. We do not agree with this submission. It is, in
our opinion, wholly misplaced in the facts of this

case. Firstly, Section 33 (1) only mentions Section
28 (k) and does not refer to any other section much
less Section 10 or/and 32 for deciding the issue of
limitation. In other words, Section 33 (1) is
controlled by Section 28 (k) only and not by any
other section of the Act for deciding the issue of
limitation. Secondly, if the intention of the
legislature was to calculate the period of limitation
from the date of issuance of Official Gazette as
provided in Section 10 and/or Section 32, as
contended by the learned counsel for respondent
No.1, then instead of mentioning Section 28 (k), the
legislature would have mentioned Section 10 and/or
Section 32 in Section 33(1) of the Act. However, it
was not done. The legislative intention, therefore,
appears to be clear leaving no ambiguity therein by
including Section 28 (k) only and excluding Section
10 and 32 in Section 33 (1).
REPORTABLE
 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No. 6848 OF 2015
 (ARISING OUT OF SLP (C) No. 6244/2015)
Smita Subhash Sawant …….Appellant(s)
VERSUS
Jagdeeshwari Jagdish Amin & Ors. ……Respondent(s)

Citation;AIR 2016 SC 1409

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