SURENDRA NATH KHOSLA Vs. S DALIP SINGH

JUDGEMENT

(1.) This appeal by special leave is directed against the majority judgment and order of the Election Tribunal of Patiala, dated August 26, 1955, declaring the two appellants election to be void on account of the improper rejection of the nomination paper of Buta Singh, respondent 18.

(2.) In order to appreciate the arguments raised on behalf of the appellants it is necessary to state the following facts:The appellants and respondents 2 to 18 filed their nomination papers on January 9, 1954, for election from a double member constituency of Samana to the Pepsu Legislative Assembly. Of the two seats, one was reserved for the Schedule Caste and the other was a general constituency. Scrutiny of the nomination papers by the Returning Officer took place on January 13, 1954. The Returning Officer accepted all the nomination papers except that of Buta Singh aforesaid on the ground that the thumb impressions of the proposer and the seconder had not been attested by an officer in accordance with the Election Rules. Polling took place on February 24, 1954, and the results announced in the Pepsu Gazette on March 4, 1954. The results thus announced showed that the first Appellant, Surendra Nath Khosla, had obtained 13,853 votes in the general constituency and the second appellant, Pritam Singh, had polled 13,663 votes for the reserved seat. They having secured the largest number of votes from their respective constituencies were declared to have been duly elected. The other candidates got smaller number of votes which it is not necessary to set out here. Buta Singh aforesaid, whose nomination paper had been rejected by the Returning Officer, did not take any further steps. But Dalip Singh, the first respondent, filed an election petition with the Election Commission, respt. 19. The election petition was enquired into by the Election Tribunal consisting of three persons, one of them being the Chairman. A number of issues were joined between the parties. The Chairman and another member of the Tribunal decided the material issues 1 and 4 in favour of the first respondent, to the effect that the 18th respt. had been duly proposed and seconded, that the Returning Officer had wrongly rejected his nomination paper and that as a result of that rejection the result of the election as a whole had been materially affected. On those findings they declared the election void as whole and set aside the election of the appellants. The third member of the Tribunal, while agreeing with the majority in their judgment on the other issues, disagreed with them on the most material issue in the case, namely, issue 4, and held that the first respondent had failed to prove that the wrong rejection of the nomination paper of the 18th respondent had materially affected the result of the election. The appellants moved this Court and obtained special leave to appeal from the majority judgment declaring the election to be void as a whole.

(3.) The appeal was first placed for hearing before a Division Bench of three Judges on March 23, 1956. That Bench directed that the papers be laid before the Hon'ble the Chief Justice for having the case heard by a larger Bench because in their view the case raised a difficult and important point about election law. They made reference to the full Court decision in Hari Vishnu Kamath vs. Syed Ahmad Ishaque, (1955) 1 SCR 1104 (A), which upheld the earlier decision of this Court in Vashisht Narain Sharma vs. Dey Chandra, (1955) 1 SCR 509 (B) as authorities for the proposition that the burden of proof is on the person who seeks to challenge the election and that he must prove that the result of the election has been materially affected by the improper rejection of the nomination paper. They indicated the difficulty of discharging such a burden unless some sort of presumption was called in aid of the petitioner who sought to have the election set aside.