judgement:
N: Criminal Appeal No. 38 of 1950.
Appeal from the judgment and order of the High Court of Patiala (Teja Singh C.J., and Gurnam Singh J.) dated 5th October, 1950, in Criminal Appeal No. 28 of 1950, affirming the conviction and sentence of the appellant by the Sessions Judge of Sangrur.
Gopal Singh and Kartar Singh, for the appellant.
Narinder Singh, Advocate General for the Patiala and East Punjab States Union (Jindra Lal, with him) for the respond ent.
Jai Gopal Sethi (R. L. Kohli, with him) for the Cavea tor. 1951.
December 19.
The Judgment of the Court was deliv ered by FAZL ALl J.
This is an appeal against the judgment of the High Court at Patiala upholding the conviction and sentence of the appellant, who was tried by the Sessions Judge of Sangrut for the offence of murder and sentenced to death.
373 The prosecution story is a somewhat long and complicated one, but ignoring unnecessary details, the material facts may be shortly stated as follows : On the 5th October, 1949, there was a quarrel between the appellant and one Darbara Singh, in the course of which the appellant attacked the latter with a phawra (a cutting instrument).
About that time, Gurmail Singh, the deceased person, returned to his house, which was close to the house of Darbara Singh, from his cotton field, where he had been working, in order to take tea for his companions who were still working in his field.
The appellant asked Gutmail Singh to lend him a spear to enable him to kill Darbara Singh, but since the latter refused to do so, there ensued a quarrel between him and the appellant, in the course of which they exchanged abuses and grappled with each other, and the fight was stopped only by the intervention of cer tain persons present at the place.
It appears that the appellant was greatly affected by this quarrel, and thereaf ter he is said to have armed himself with a rifle and at tacked 3 persons in the vicinity of Gurmail Singh 's cotton field.
He fired firstly at Kartar Singh, son of Satwan Singh, while the latter was returning to his house from the field of Gutmail Singh, but he was not hurt.
Soon after that, while Gurmail Singh was returning to his field after attending to his buffaloes in a garden which was nearby, the appellant chased him and fired at him thereby causing his instantaneous death.
Lastly, he is said to have fired at Kartar Singh, son of Bishan Singh and one Jangir Singh, while they were raising an alarm, but the bullet missed them.
Upon these allegations, the following three charges were framed against him : "(1) That you. fired a shot at Gurmail Singh deceased with rifle P.I. with the intention of killing him and caused his death and thereby committed an offence pun ishable under section 302. (2) That you. fired a shot at Kartar Singh and Jangir Singh with rifle P.I. with the intention of causing death and made an attempt to cause their death 374 section 307. . (3) That you. . fired a gun shot at Kartar Singh s/o Satwan Singh. with the intention of killing him and made an attempt to cause his death and thereby committed an offence punishable under section 307. " It appears that the appellant was an Instructor in the Home Guards.
and the rifle which he is said to have used had been given to him by his superior officer with 20 rounds of ammunition.
To support their version of the occurrence, the prosecu tion examined 3 eye witnesses whose evidence has been ac cepted by both the courts below after careful scrutiny.
The learned Sessions Judge acquitted the appellant of the second and third charges under section 307 of the Indian Penal Code, holding that there was no convincing evidence that the appellant intended to murder Jangit Singh and the other 2 persons.
He however convicted him of the first charge under section 302 of the Indian Penal Code and sentenced him to death, which sentence was later confirmed by the High Court.
The learned counsel for the appellant had very little to argue on the merits of the case, but he seriously contended that there had been a misjoinder of charges which could not be tried together under the law, and the illegality so committed had vitiated the whole trial of the appellant.
It appears that in the High Court, the line of argument on this point was somewhat different from the line adopted in this court.
What was stressed in that court seems to have been that the three incidents in respect of which the appellant was charged not having happened in the course of the same transaction, they could not have been properly made the subject of one trial, and for this contention reliance was placed mainly on section 235 (1)of the Criminal Procedure Code, which provides that "if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be at one trial for, every such offence.
" It should be noted 375 that that section is only one of the exceptions to the general rule laid down in section 233 of the Code that for every distinct offence, there shall be a separate charge and every such charge shall be tried separately.
In this court, no reference was made to section 235, but the argument was confined to the question as to whether the present case falls within another exception of section 23 '3 which is contained in section 234 (1) which runs as 'follows : "When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three.
" It was argued before us that even though only 3 charges have been framed against the appellant, he has in fact been tried for 4 offences and not 3.
The 4 offences are said to be these : (1) Committing the murder of Gurmail Singh; (2) Attempting to murder Kartar Singh, son of Sarwan Singh; (3) Attempting to murder Jangit Singh; and (4) Attempting to murder Kartar Singh, son of Bishan Singh.
The learned counsel contended that the fact that the appellant has been acquitted of the last 3 offences and convicted only of the first offence was immaterial to the point raised by him, and we have only to see whether all the offences mentioned above could be properly tried together.
In our opinion, the short reply to this contention is that the second charge which relates to the appellant firing at Kartar Singh and Jangir Singh is not a charge with respect to 2 offences but is a charge with respect to one offence only.
The evidence adduced by the prosecution shows that the appellant fired only one bullet.
The word "offence" has been defined in the Criminal Procedure Code as meaning "any act or omission made punishable by any law for the time being in force".
There seems to be 49 376 nothing wrong in law to regard the single act of firing by the appellant as one offence only.
On the other hand, we think that it would be taking an extremely narrow and arti ficial view to split it into 2 offences.
There are several reported cases in which a similar view has been taken, and in our opinion they have not been incorrectly decided.
In Queen Empress vs Raghu Rai(1), where a person stole several bullocks from the same herdsman at the same time, it was held that only one offence had been committed.
In Promotha Nath Ray vs King Emperor(2), it was held that misappropria tion in regard to several account books constituted only one offence.
In Johan Subarna vs King EmPeror(3), it was held that when an attempt to cheat a number of men by speaking to them in a body had been committed, one joint charge was valid.
In Poonit Singh vs Madho Bhot (4), it was held that only one offence had been committed by a person who gave false information in one statement to the police against 2 persons.
In Sudheendrakumar Ray vs Emperor(5), a person who was chased by 2 constables had fired at them several times, but it seems to have been rightly assumed that the firing did not constitute more than one offence, though the point was not specifically raised or decided.
In our opinion, there is no substance in the point raised, though we should not be understood as laying down the wide proposition that in no case can a single act constitute more than one of fence.
The other points urged on behalf of the appellant before us were somewhat unsubstantial points relating to the merits of the case, which it is not usual for this court to allow to be raised in appeals by special leave.
In our opinion, this appeal is without merit, and it is accordingly dismissed.
Appeal dismissed.
Agent for the caveator: Vidya Sagar.

summary:
The appellant was tried in respect of the following charges: (i) causing the death of A and thereby committing an offence punishable under section 302, Penal Code, (ii) firing a shot at B and 372 C with the intention of causing their death and thereby committing an offence punishable under section 307, Penal Code, and (iii) firing a shot at D with the intention of killing him and thereby committing an offence punishable under section 307, Penal Code.
It was contended on his behalf that there was a misjoinder of charges as the second charge was really a charge in respect of two offences viz., attempt to murder B and attempt to murder C and the accused had therefore been charged with, and tried for, more than three offences in contravention of section 234 (1) of the Criminal Procedure Code :.Held, that there was nothing wrong in the trial as the single act of firing a shot at B and C is one offence and not two offences and the trial was not bad for misjoinder of charges.
[Their Lordships however observed that they should not be understood as laying down the wide proposition that in no case can a single act constitute more than one of fence.] Promotha Natha Roy vs King Emperor , Johan Subarna vs King Emperor , Poonit Singh vs Madho Bhot (I.L.R. and Sudheendra Kumar Roy vs Emperor (I.L.R. approved.


judgement:
iminal Appeals Nos. 43 and 44 of 1954.
Appeals by special leave from the judgment and order dated the 23rd October 1953 of the Circuit Bench of the Punjab High Court at Delhi in Criminal Appeal No. 24 D of 1953 arising out of the judgment and order dated the 26th August 1953 of the Court of Special Judge, Delhi in Corruption Case No. 10 of 1953.
Jai Gopal Sethi and Naunit Lal for the Appellants in Cr. A. No. 43 of 1954.
Pritam Singh Safeer, for the Appellant in Cr. A. No. 44 of 1954.
K. Daphtary, Solicitor General of India, Porus A. Mehta, H. R. Khanna and P. G. Gokhale, for the respondent in both appeals.
March 9.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
Ram Kishan, the first appellant in Criminal Appeal No. 43, is a partnerproprietor in the firm of Kundan Lal Raja Ram of Saharanpur.
Prem Chand, the second appellant, is a partner in the firm of Narain Prasad and Prem Chand in the same place.
The appellant, Gian Chand, is the munim of a firm called Lekh Raj Shambhu Nath.
Some of the Saharanpur merchants, including 184 the three firms, were suspected of exporting potatoes at concessional rates on false declarations or certificates that they were seed potatoes.
Police investigation was proceeding in this connection at Saharanpur in October, 1951.
Madan La], Railway Section Officer, examined as P. W. 4 in the case, was deputed by the Railway Department to assist the Special Police Establishment in the investigation.
Labhu Ram, Railway Parcels clerk in the Railway at Saharanpur, was deputed by the Station Master to help the Police party.
It is alleged by the prosecution that during the progress of the investigation, and after the houses and shops of the accused persons had been searched, Ram Kishan took Labhu Ram aside and proposed that the three firms would be prepared to pay Rs. 2,000 if the case was hushed up and that Madan Lal was to be sounded.
Madan Lal refused to have anything to do with such a proposal, but as the accused persisted in their offer, it was ultimately decided that a trap should be laid for them at Delhi in Madan Lal 's house.
It is unnecessary to narrate in detail the steps taken in connection with this plan.
The trap succeeded.
The three accused and Labhu Ram were at Delhi on the morning of the 29th December and an increased sum of Rs. 5,000 was paid in the shape of currency notes to Madan Lal by Ram Kishan while two police officers and a Magistrate were hearing the conversation from an adjoining room and saw the payment through a hole in the door.
The appellants were charged under section 120 B of the Indian Penal Code for criminal conspiracy to cause the offence of criminal misconduct punishable under section 5(2) of the Prevention of Corruption Act (II of 1947), to 'be committed by Madan Lal, one of the prosecution witnesses.
They also stood charged with an offence under the same section read with section 116 of the Indian Penal Code for abetting the commission of criminal misconduct by the said Madan Lal by paying him a sum of Rs. 5,000 by way of illegal gratification, which offence was, however, not committed by him.
185 The Special Judge, Delhi, who tried the case, found the appellants guilty under both heads of charges.
He sentenced Ram Kishan to three months ' rigorous imprisonment and a fine of Rs. 5,000; Prem Chand and Gian Chand to two months ' rigorous imprisonment and a fine of Rs. 1,000 each.
He did not separately convict or sentence the accused under the head of criminal conspiracy.
The High Court reduced the sentence on Gian Chand to the term of imprisonment already undergone and a fine of Rs. 500.
There is no dispute that the amount was actually paid to Madan Lal even though he said he could do nothing to help the appellants, who begged him somehow to help them out of the impending prosecution.
Evidence has also been given by the Magistrate and the police officers about the talk and the lower courts have found on the evidence of Madan Lal and Labhu Ram and the eavesdroppers that Rs. 5,000 was offered as a bribe and not as compensation money in settlement of the amounts legitimately due to the Railway.
An attack against the concurrent findings of fact being wholly futile in the circumstances, Mr. Sethi, for the appellants in Criminal Appeal No. 43 of 1954, raised some questions of law on their behalf.
His first point was that section 5(2) of the Prevention of Corruption Act (II of 1947), under which the accused were charged and convicted was inapplicable to the facts.
His second point was that Madan Lal was not a " public servant" within the meaning of the Act and hence the charge was unsustainable.
He urged as his third point that trap cases of this kind must be sternly discouraged and deprecated by the courts, inasmuch as opportunities for the commission of offences should not be deliberately created so that people who yield to the temptations of ordinary human nature might be punished as criminaIs; in other words, crimes committed under such circumstances should be regarded only as venial and not heinous.
To appreciate the first contention it is necessary to pay attention to the language of section 5 of the 186 Prevention of Corruption Act, which is in these terms: "section 5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty, (a)if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive of reward such as is mentioned in section 161 of the Indian Penal Code, or (b)if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c)if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d)if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
(2)Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
(3) In any trial of an offence punishable under sub section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be 187 proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.
(4)The provisions of this section shall be in addition to, and not in derogation of any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him".
The object of the Act as set out in the preamble is to make more effective provision for the prevention of bribery and corruption.
A new offence of criminal misconduct by a public servant is created by section 5 and under sub section (2) it is made punishable with imprisonment for a term which may extend to seven years or with fine or with both.
The offence is of four kinds or categories.
Bribery as defined in section 161 of the Indian Penal Code, if it is habitual, falls within clause (a).
Bribery of the kind specified in section 165, if it is habitual, is comprised in clause (b).
Clause (c) contemplates criminal breach of trust by a public servant and the wording takes us to section 405 of the Code.
It is with clause (d) that we are really concerned in the present case.
It was argued that the intention of the Act was to create by means of clause (d) an offence different from a single act of bribery and that it can come into play only when there is no offer to give an d acceptance of a bribe by a public servant.
Before it can be made applicable there must be proof, it was said, that the public servant adopted corrupt or illegal means and thereby obtained for himself or for any other person any valuable thing or pecuniary advantage.
To force a bribe out of an unwilling person is different from the acceptance of a bribe from a voluntary giver and that before a charge under section 5(1), sub clause (d) could be sustained, there must be threat or inducement, or promise proceeding from the public servant or duress or extortion practised by 188 him to obtain the pecuniary advantage.
This argument proceeds upon the footing that the Act seeks to create and creates an independent offence distinct from simple bribery.
In one sense, this is no doubt true but it does not follow that there is no overlapping of offences.
We have primarily to look at the language employed and give effect to it.
One class of cases might arise where corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage.
The word "obtains", on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver.
One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant.
The word 'obtains ' is used in sections 161 and 165 of the Penal Code.
The other words "corrupt or illegal means" find place in section162.
Apart from "corrupt and illegal means", we have also the words "or by otherwise abusing his position as a public servant".
If a man obtains a pecuniary advantage by the abuse of his position, he will be guilty under sub clause (d).
Sections 161, 162 and 163 refer to a motive or a reward for doing or forbearing to do something, showing favour or disfavour to any person, or for inducing such con duct by the exercise of personal influence.
It is not necessary for an offence under clause (d) to prove all this.
It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour.
To a certain extent the ingredients of the two offences are common, no doubt.
But to go further and contend that the offence as defined in clause (d) does not come with.
in the meaning of bribery is to place too narrow a construction on the sub clause.
A speedy disposal of corruption cases by special courts, the benefit of in vestigation by higher police authorities are some of the provisions intended for the protection of public 189 servants prosecuted under the Act while they are subjected also to increased disabilities, namely, a longer term of imprisonment as punishment and the application of the presumption referred to in subclause (3.).
In support of the contention that Madan Lal was not a "public servant", reference was made to section 137 of the Indian Railways Act.
Under the Act as it stood before it was amended by Act XVII of 1955, every railway servant was deemed, to be a public servant only for the purposes of Chapter IX of the Indian Penal Code and it was provided by sub clause (4) that "notwithstanding anything in section 21 of the Indian Penal Code a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those mentioned in Chapter IX".
The amended sub clause (1) is in these terms: "Every railway servant, not being a public servant as defined in section 21 of the Indian Penal Code shall be deemed to be a public servant for the purposes of Chapter IX and section 409 of that Code".
Sub section (4) has now been omitted.
The Prevention of Corruption Act provides by section 2 that "For the purposes of this Act, 'public servant ' means a public servant as defined in section 21 of the Indian Penal Code".
The result is that before the amendment, railway servants were treated as public servants only for the purposes of Chapter IX of the Indian Penal Code but now as the result of the amendment all railway servants have become public servants not only for the limited purposes but generally under the Prevention of Corruption Act.
It has been stated already that a trap was laid for catching the appellants and this circumstance, according to the learned counsel for the appellants, should be taken into account in the matter of sentence.
In this connection, our attention was invited to the well known and weighty observations of Lord Goddard, C.J. in Brennan vs peek(1) where his Lord 25 (1) 190 ship expressed the hope that "the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone; if they do commit offences they ought also to be convicted and punished, for the order of their superior would afford no defence".
While there is much to be said in support of the opinion expressed by the learned Chief Justice, it cannot be laid down as an absolute rule that the laying of traps must be prohibited on the ground that by so doing we hold out an invitation for the commission of offences.
The detection of crime may become difficult if intending offenders, especially in cases of corruption are not furnished opportunities for the display of their inclinations and activities.
Where matters go further and the police authorities themselves supply the money to be given as a bribe, severe condemnation of the method is merited, as in Rao Shiv Bahadur Singh and another vs The State of Vindhya Pradesh(1).See also Ramjanam Singh vs The State, of Bihar(2).
But whatever the ethics of the question 'might be, there is no warrant for the view that the offences committed in the course of traps are less grave and call only for lenient or nominal sentences.
For the appellant in the connected Appeal No. 44 it was urged by his learned counsel that he was only a munim of a firm and not a partner or a proprietor as the other appellants and that it could not be stated of him that he was interested in giving or attempting to give any bribe for hushing up the case.
There is, however, the clear and definite evidence of Labhu Ram that Gian Chand came along with the appellants to him when the talk about the bribe took place.
He says that on the morning of the 29th December, 1951, the three accused who were staying at the Coronation Hotel, Delhi, told him that they had amongst themselves collected Rs. 5,000 to be paid to Madan Lal and that in the of Madan Lal all the three accused one by one made request to Madan Lal to hush up the potato case pending against them.
This (1) (2) Cr.
Appeal No. 81 of 1953.
191 is corroborated by Madan Lal who states that all the three accused said that the money had been subscribed by them jointly and requested him to accept the same and get the case withdrawn.
The case of Gian Chand does not stand on any different footing from that of the other appellants.
The convictions and sentences are confirmed and the appeal will stand rejected.

dataset_name: IN-Abs

summary:
The appellants were suspected of exporting potatoes at concessional rates on false declarations and Madan Lal, a Railway Officer, was deputed to assist the Police in the investigation.
In course of that investigation the appellants offered a bribe to Madan Lal for hushing up the case but he refused to accept it.
As they persisted in their offer a trap was laid in Madan Lal 's house and it succeeded.
Two Police Officers and a Magistrate heard the conversation from the adjoining room and saw the payment of the bribe through a hole.
The appellants were charged under section 120 B of the Indian Penal Code for criminal conspiracy to cause the offence of criminal misconduct punishable under section 5(2) of Prevention of Corruption Act of 1947 to be committed by Madan Lal as also under that section read with section 116 of the Indian Penal Code.
They were convicted by the Special Judge on both the counts and their convictions were upheld by the High Court.
The contentions on their behalf were that section 5(2) of the Prevention of Corruption Act had no application to the facts of the case, that Madan Lal was not a public servant within the meaning of the Act and, lastly, that the laying of the trap was an invitation to commit the crime and afforded a good reason for reduction of the sentences.
Held, that the contentions were untenable and must be rejected.
That the word "obtains" occurring in clause (d) to sub section (1) of section 5 of the Prevention of Corruption Act does not exclude the idea of acceptance of a bribe on offer, and a public servant, whether he simply accepts a bribe, or solicits or extorts it, thereby obtains a pecuniary advantage by abusing his position as a public servant and commits an offence under that section, any consideration as to motive or reward for showing favour or disfavour being altogether irrelevant.
That as a result of the amendment of section 137 of the Indian Railways Act by the Amendment Act of 1955 all railway servants have become public servants not only for the limited purposes of Ch.
IX 183 of the Indian Penal Code but generally under the Prevention of Corruption Act.
That it cannot be laid down as an absolute rule that the laying of traps, especially in cases of this nature, should be deprecated as constituting an invitation to commit an offence and an offence thus detected does not lose its gravity thereby so as to call for a lenient sentence.
Where, however, proper limits are exceeded and the money to be given as bribe is supplied by the Police, it must be severely condemned.
Brennan vs Peek ([1947] 2 All E.R. 572), considered.
Rao Shiv Bahadur Singh and another vs The State of Vindhya Pradesh ([1954] S.C.R. 1098) and Bamjanam Singh vs The State of Bihar, (Cr.
Appeal No. 81 of 1953), referred to.


judgement:
Civil Appeal No. 341 of 1988.
From the Judgment and order dated 2.4.1986 of the Bombay High Court in W.P. No. 1946 of 1984.
D.N. Devedi.
C. Ramesh and P. Parmeshwaran for the Appellants.
R.K. Garg and D.K. Garg for the Respondents.
The Judgment of the Court was delivered by OZA, J.
Leave granted.
This appeal has been filed by the Union of India against a judgment passed by High Court of Bombay in Misc.
Petition No. 1946/84 decided on 2.4.1986.
A Writ petition before the High Court was filed by M.T.S.S.D. Workers ' Union, Pune and two of the employees in the establishment in which this union is functioning.
In this Writ Petition an order was sought quashing the decision of the 827 authorities concerned of the petitioner who by their order dated 31.1.1984 informed the union about the scheme of the election to the Works Committee on the basis of the division in different constitutencies.
This order of the Commandant was conveyed to the respondent union.
These Works Committees were to be constituted for the period 1984 86.
The question that was considered by the High Court was as to whether such a distribution was permissible under the Rules framed under .
The Bombay High Court by the impugned judgment came to the conclusion that such a distribution of constituencies is not permissible in view of the scheme of the Rules especially Rules 39,41,42 and 43 of the Central Rules framed under the .
Learned counsel appearing for the appellants contended that Rule 39 when it talks of representation to the various categories and groups and class of workmen it contemplates that such constituencies be divided so that various sections, groups and categories of workers skilled, unskilled, clerical and otherwise may get appropriate representation.
Learned counsel also relied on the proviso to Rule 43 to justify the division of the constitutencies which was done by the impugned order which was set aside by the High Court of Bombay.
Learned counsel for the respondent on the other hand contended that the Works Committees are expected to go into day to day problems and they are expected to be so constituted that they bring harmony and better functioning of the industry and it is for this purpose.
According to the learned counsel Rule 42 contemplates only division in two constitutencies that is those who are members of a registered trade union and those who are not members of the registered trade union and even while providing for such a distribution in Rule 42 it has been further provided that where more than half the workers belong to one registered trade union then there is no need for any division of constituencies and election will only be by general vote of the workers in the industry.
It was contended by learned counsel that this scheme of these Rules contemplates that where there is a union representing the majority of workers there is no occasion for any distribution of constituencies so that the union and the management with the help of the Works Committee may resolve day to day problems and the industry may run smoothly in the interest of production and industrial peace.
He, therefore, contended that the order passed by the Bombay High Court in the scheme of the Rules is justified.
828 The constitution of the Works Committees has been provided for in Section 3 of the which reads as under: "3.
Works Committee:(1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer.
The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the India (XVI of 1926).
(2) It shall be the duty of the Works Committee to pro mote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters.
" It is clear from the language used in this Section that the representatives of workmen shall be chosen in the prescribed manner and it shall be so done in consultation with their trade union if there is any registered under the Indian .
It is because of this that the Rules have prescribed the manner in which the Works Committees will be constituted.
In Chapter 7 of the Rules framed under Industrial Disputes (Central) Rules 1957 it has been provided for a constitution of the Works Committee.
Rule 39 on which much emphasis was laid by learned counsel for the appellants reads: "Number of members The number of members constituting the Committee shall be fixed so as to afford representation to the various categories, groups and class of workmen engaged in, and to the sections, shops or departments of the establishment: 829 Provided that the total number of members shall not exceed twenty: Provided further that the number of representatives of the workmen shall not be less than the number of representatives of the employer." This Rule talks of the number of members to constitute a Works Committee and it has been provided that the number shall be so fixed keeping in view that representation could be made in the Committee of workers engaged in different sections, shops, departments of the establishment.
It was contended by learned counsel for the appellant that it was because of this that the management in this industry chose to distribute the constituencies in such a manner that there may be representatives in the Works Committee of different sections and departments of the industry.
But it is clear that Rule 39 does not talk of any distribution of constituencies.
The relevant Rule which provides for group of workmen 's representatives is Rule 42 but Rule 41 contemplates consultation with the trade unions and where there is a registered trade union the management is expected to ask the registered trade union to give information as to how many of the workmen are members of the union and how their membership is distributed among the sections, shops and departments of the establishment.
Rule 41 reads as under: "Consultation with trade unions: (1) Where any workmen of an establishment are members of a registered trade union the employer shall ask the union to inform him in writing (a) how many of the workmen are members of the union; and (b) how their membership is distributed among the sections, shops or departments of the establishment.
(2) Where an employer has reason to believe that the information furnished to him under sub rule (1) by any trade union is false, he may, after informing the union, refer the matter to the Assistant Labour Commissioner (Central) concerned for his decision; and the Assistant Labour Commissioner (Central), after hearing the parties, shall decide 830 the matter and his decision shall be final.
" Rule 42 reads thus: "Group of workmen 's representatives: on receipt of the information called for under Rule 41, the employer shall provide for the election of workmen 's representative on the Committee in two groups: (1) those to be elected by the workmen of the establishment who are members of the registered trade union or unions, and (2) those to be elected by the workmen of the establishment who are not members of the registered trade union or unions.
bearing the same proportion to each other as the union members in the establishment bear to the non members: Provided that where more than half the workmen are members of the union or any one of the unions, no such division shall be made: Provided further that where a registered trade union neglects or fails to furnish the information called for under sub rule (1) of Rule 41 within one month of the date of the notice requiring it to furnish such information such union shall for the purpose of this rule be treated as if it did not exist: Provided further that where any reference has been made by the employer under sub rule (2) of Rule 41, the election shall be held on receipt of the decision of Assistant Labour Commissioner (Central. )" This Rule clearly provides that the workers ' representatives in the Committee will be in two groups:(1) those who are elected by the workmen who are members of the registered trade union or unions and (2) other those who will be elected by the workmen of the establishment who are not members of the registered trade union or unions and it is further provided that this number would bear the same proportion to each other as the union members in the establishment bear 831 to the non members.
That clearly shows that if in an industry there is or are registered trade unions and they have their membership as the management will know under the scheme of Section 41, the management will fix the number of seats in the Works Committee to be elected by the members of the union and by those who are not the members of the union and the ratio between the members representing the union members and the members representing those who are not union members will be the same as membership of the union vis a vis non members in the establishment.
There is yet another proviso which provides that where more than half the workmen are members of the union or any one of the unions no such division will be made.
This clearly goes to show that where in an industry or an establishment the majority of the workers are in one union the distribution as provided in Rule 42 will not be necessary, it will only be one constituency.
This scheme of Rule 42 read with this proviso clearly goes to show that where there is any registered trade union representing the majority of workers (more than 50%) the question of distribution of constituencies does not arise.
Learned counsel for the appellant also contended that proviso to Rule 43 contemplates division of the constituencies into various sheds, departments and sections as was done by the management which was quashed by the High Court.
Rule 43 reads as under: "43.
Electoral constituencies: Where under Rule 42 of the workmen 's representatives are to be elected in two groups, the workmen entitled to vote shall be divided into two electoral constituencies, the one consisting of those who are members of a registered trade union and the other of those who are not: Provided that the employer may, if he thinks fit, subdivide the Electoral constituency or constituencies, as the case may be and direct that workmen shall vote in either by groups, sections shops or departments.
" This Rule starts with a situation where under Rule 42 the workmen 's representatives are to be elected in two groups and where such a situation exists.
The proviso further provides that if the employer thinks fit may sub divide the electoral constituencies in a manner so that the workers may vote either by groups or by sections or by departments.
But it is clear from the language of this Rule that this sub division of constituencies only could be done if Rule 43 comes into 832 operation.
Admittedly in the present case in this industry the respondent trade union represents the majority of the workers that it has more than SO per cent as its members and the occasion for distribution of the works committee into two constituencies as contemplated in Rule 42 does not arise and if it is not so then Rule 43 does not come into operation at all as Rule 43 itself clearly states that this Rule only comes into operation "where under Rule 42 the workers representatives are to be elected in two groups".
It is therefore clear that this proviso to Rule 43 is not an independent substantive provision and therefore on this basis the contention advanced by learned counsel for the appellants is of no substance.
It is therefore clear that the scheme of these Rules for constitution of Works Committees clearly provide:(a) where there is a registered trade union having more than SO per cent membership of the workers in that establishment the total number of members of the Works Committee will be elected without distribution of any constituencies:(b) if in an industry no trade union registered under the represents more than 50 per cent of the members then only the election will be held in two constituencies, one from the members of the registered trade union or unions and the other from non members of the trade unions and it is only in this contingency it is further provided that if the employer thinks proper may further sub divide the constituency into department, section or shed.
This clearly indicates that there may be a situation in an particular establishment where some section may have no membership of any trade union at all whereas in other sections there may be membership of trade unions then if under Rule 42 it has to divide in two constituencies that is members of the registered trade union and non members.
It may further sub divide in order to provide for representation to any section of workmen who have no representation in any trade union at all.
It is therefore clear that when there is a registered trade union in an establishment having more than SO per cent membership this exercise under Rule 43 is futile and is not called for as in this case as admittedly the respondent unions membership is more than 50 per cent.
The distribution of constituencies under Rule 42 is not contemplated and therefore there is no occasion for Rule 43 or proviso therein to come into operation.
In this view of the matter, in our opinion, the judgment of the High Court is correct and we see no reason to interfere with it.
The appeal is therefore dismissed.
In the Circumstances of the case, parties are directed to bear their own costs.
N. P V. Appeal dismissed.

summary:
% The respondents filed a writ petition in the High Court for quashing the order dated 31.1.1984 of the authorities, informing the respondent Union about the scheme of election to the Works Committee to be constituted for the period 1984 86, on the basis of division in different constituencies under the Industrial Disputes (Central) Rules, 1957, framed under the .
The High Court held that such a distribution of constituencies was not permissible in view of the scheme of the Rules, especially Rules 39, 41.
42 and 43.
In the appeal by special leave, on behalf of the appellants it was contended that such a division of constituencies to give appropriate representation to various sections, groups and categories of workers, skilled, unskilled, clerical and otherwise, was justified under Rule 39 and proviso to Rule 43.
On behalf of the respondents, it was contended that while Rule 42 contemplated only division in two constituencies, that is, those who were members and those were not, of a registered trade union, it further provided that where more than half the workers belonged to one registered trade union, there was no need for any division of constituencies, and election will be only by general vote of workers of the industry and, therefore, the High Court was right in holding that the division of constituencies as contemplated in the aforesaid order was not permissible.
Dismissing the appeal, 826 ^ HELD: The scheme of the Industrial Disputes (Control) Rules, 1957 for the constitution of Works Committee clearly provides that (a) where there is a registered trade union having more than SO per cent membership of the workers in that establishment, the total number of members of the Works Committee will be elected without distribution of any constituencies; and (b) if in an industry, no trade union registered under the Trade Unions Act represents more than 50 per cent of the members, then only the election will be held in two constituencies, one from the members of the registered trade union or unions and the other from non members of the trade unions and it is only in this contingency, it is further provided that, if the employer thinks proper, may further sub divide the constituency into department, section or shed.
[832C E] When there is a registered trade union in an establishment, having more than 50 per cent membership, the exercise under Rule 43 of the Industrial Disputes (Control) Rules, 1957 is futile and is not called for.
[832F G] In the instant case since the respondent union 's membership is more than 50 per cent, the distribution of constituencies under Rule 42 is not contemplated and, therefore, there is no occassion for Rule 43 or proviso therein to come into operation.
[832G ]


judgement:
ivil Appeal Nos.
4 132 4 133 (NCE) of 1986.
From the Judgment and order dated 22.10.1986 of the Rajas : than High Court in S.B. Election Petition Nos. 1 and 9 of 1985.
N.M. Ghatate, B.R. Dutta and S.V. Deshpande for the Appellant.
Dr. Y.S. Chitale, M.R. Calla and Jitendra Sharma for the Respondents.
The Judgment of the Court was delivered by SINGH,J.
These two appeals under Section 116 A of the Rep resentation of the People Act, 1951 (hereinafter referred to as the Act) are directed against the judgment and order of the High Court of Rajasthan at Jaipur dated 22nd October 1986 setting aside the appellant 's election to the Legislative Assembly of the State of Rajasthan.
Election to the Rajasthan Legislative Assembly Constituency No. (80 Karauli) was held in 1985.
The appellant and 10 other candidates contested the election from the aforesaid assembly constituency.
The Returning officer declared the appellant duly elected on his having obtained majority of valid votes.
Chandra Bhan Singh, Respondent No. 1, filed Election Petition No. 1 of 1985 as an elector and another Election Petition No. 9 of 1985 was filed by Mukand Ram, Respondent No. 2, also an elector before the High Court of Rajasthan under Section 80 of the Act, challenging the validity of the appellant 's election to the legislative assembly on the ground that Kanhaiya Lal a contesting candidate was not qualified to contest election under Article 173(b) of the Constitution as he was below 25 years of age on the date of scrutiny of nomination papers and his nomination paper was improperly accepted by the Returning officer which materially affected the result of the election of the returned candidate.
The appellant appeared and contested both the election petitions? and pleaded before the High Court the Kanhaiya Lal was qualified to be a candidate at the election as he had completed 25 years of age on the date of scrutiny of nomination papers and there was no improper acceptance of his nomination paper.
He further pleaded that in any view, his election was not materially affected by the acceptance of Kanhaiya 717 Lal 's nomination paper.
Both the election petitions were consolidated and tried jointly by the High Court.
The issues framed were almost identical in the two election petitions and the election petitioners and the appellant produced evidence in support of their cases before the High Court.
The High Court by its order dated 22nd October, 1986 held that Kanhaiya Lal was not qualified to be a candidate as he had not completed 25 years of age and that his nomination paper was improperly accepted by the Returning officer.
The High Court further held that since the difference between the votes polled by the appellant and Roshan Lal an unsuccessful candidate who had obtained the next highest votes was only 4497 votes, the result of the election was materially affected.
On these findings the High Court declared the appellant 's election void and directed the Election Commission to hold fresh election.
Learned counsel for the appellant raised only one submission before us in challenging the correctness of the order of the High Court.
He urged that the finding recorded by the High Court that the improper acceptance of the nomination paper of Kanhaiya Lal had materially affected the result of appellant 's election was based on conjectures and surmises and not on any legal evidence.
Learned counsel further submitted that none of the two election petitioners had produced any cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of Kanhaiya Lal but on the other hand the appellant had produced large number of witnesses in support of his case, but the High Court had failed to consider the evidence of those witnesses.
Dr. Chitale appearing on behalf of the Respondents urged that on the material on record and having regard to the number of votes polled by Kanhaiya Lal and the difference between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal the findings recorded by the High Court are sustainable in law and the same are in accordance with the law laid down by this Court in Chhedi Ram vs Jhilmit Ram & others.
; , In all eleven candidates contested the election.
After counting, it was found that the total number of votes polled were 60815 out of which 821 votes were rejected being invalid by the Returning officer.
Thus the total number of valid votes were 59994.
The total valid.
number of votes polled by each of the candidates was as under: H 718 1.
Shiv Charan Singh (appellant) 21443 2.
Kanhaiya Lal.
17341 3.
Asphak.
275 4.
Narayan.
1310 5.
Prahlad 252 6.
Puran Chandra Sharma.
1308 7.
Mana Lal 198 8.
Ram Swaroop.
102 9.
Roshan Lal.
16946 10.
Samanta.
271 11.
Heera Lal 40 The High Court has held that Kanhaiya Lal 's nomination paper was improperly accepted, as he was not competent to contest the election for the reason of his being below 25 years of age.
Since there was difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal who had polled 16946 votes the High Court held that if Kanhaiya Lal had not contested the election the aforesaid number of votes polled by him could have gone in favour of Roshan Lal and other candidates, as a result of which Roshan Lal would have polled the majority of valid votes.
In this view the High Court concluded that the result of the appellant 's election was materially affected and it accordingly declared the appellant 's election void.
Since the learned counsel for the appellant did not challenge the finding recorded by the High Court that Kanhaiya Lal was not qualified to be a candidate on the date of his nomination as he was below 25 years of age and his nomination paper was improperly accepted by the Returning officer the said finding must be accepted as correct.
The only question which survives for consideration is whether improper acceptance of Kanhaiya Lal 's nomination paper materially affected the result of the appellant 's election.
Section 100 confers power on the High Court to declare the election of the returned candidate void if the grounds set out therein are made out.
Section 100 (1) relevant for our purpose is as under: "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) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Govern 719 ment of Union Territories Act, 1963 (20 of 1963)or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected: (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or (iii) by the 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.
" Section 100(1)(d)(i) provides for setting aside the election of the returned candidate on the ground of improper acceptance of any nomination paper provided the result of the election of the returned candidate is materially affected by reason of such improper acceptance of nomination of a candidate other than the returned candidate.
Improper acceptance of nomination paper of any contesting candidate (other than the contesting candidate) does not ipso facto render the election of the returned candidate void.
The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance.
The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate.
Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void.
720 The question as to how and in what manner the burden of Providing that the result of election was materially affected should be discharged is a vexed question which has been considered by this Court in a number of cases.
In the leading case of Vashist Narain Sharma vs Dev Chandra and others; , this Court considered this question at length.
In that case the nomination paper of one Dudh Nath a contesting candidate who had polled 1983 votes was found to have been improperly accepted.
The returned candidate had polled 12860 votes while Vireshwar Nath Rai had polled 10996 votes being the next highest number of votes.
There was thus difference of 1864 votes bet ween the votes polled by the returned candidate and the next unsuccessful candidate.
The Election Tribunal set aside the election of the returned candidate on the finding that improper acceptance of the nomination paper of Dudh Nath had materially affected the result of the election.
This Court set aside the order of the Tribunal on the ground that the election petitioner had failed to discharge the burden of proving that the result of the election had been materially affected.
The Court observed as under: "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes bet ween the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected.
That is a matter which has to be proved and the onus of proving it lies upon the petitioner.
It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
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 of which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(l)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
" Section 100 (l)(c) of the Act as it stood in 1952 was in pari materia with the present Section 100(l)(d)(1) of the Act.
The 721 interpretation of Section 100 (1)(c) of the Act as given by the Court in Vashist Narain Sharma 's, case fully applies to the interpretation of Section 100(1)(d)(1) of the Act.
In Vashist Narain Sharma 's, case this Court has categorically held that the result of the election of the returned candidate cannot be materially affected merely for the reason that the number of votes polled by the candidate whose nomination paper was improperly accepted was greater than the margin of votes polled by the returned candidate and the candidate securing the next highest number of votes, because it could not be predicated in what manner or proportion the voters would have exercised their choice in the absence of the improperly nominated candidate from the election contest.
Proceeding further the Court considered the question whether any speculation, or conjecture could be made in a case where the number of votes secured by the candidate whose nomination paper was improperly accepted was higher than the difference between the votes polled by the returned candidate and the candidate who may have polled the next highest number of votes.
The Court observed that in such a case it was impossible to foresee what the result would have been if the improperly nominated candidate had not been in the field.
Since it was not possible to anticipate the result, the election petitioner must discharge the burden of proving that fact, and on his failure to prove that fact the election of the returned candidate must be allowed to stand.
Then the question arose as to how and in what manner the burden could be discharged by the election petitioner.
On behalf of election petitioner an attempt had been made to discharge burden 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 in the absence of the improperly nominated candidate and he would have polled majority of valid votes.
The Court 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: "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 ground.
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 722 stand.
Such 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.
(Underlining by us) Tn Paokai Haokip vs Rishang Ors.
, ; the Judicial Commissioner Manipur had set aside the election of the returned candidate to Lok Sabha on the ground that there was gross violation of the Act and the Rules framed thereunder in conducting the election as a result of which the result of the election was materially affected under Section 100(1)(d)(iv) of the Act on the findings that on the polling date a number of polling centres were changed without notice to voters and there was firing and riots at some polling stations, as a result of which a number of voters could not exercise their right to vote.
In rendering the aforesaid findings the Judicial Commissioner had placed reliance upon the statement of witnesses who had testified before the Tribunal that if they had opportunity to cast their votes, they would have voted for the unsuccessful candidate.
This Court, placing reliance on the decision in Vashist Narain Sharma 's case held that the statement of witnesses could not be taken at their word and it was a surmise and anybody 's guess as to how those people, who did not vote, would have actually voted.
Then the question arose if witnesses could not be relied upon, in what manner the election petitioner, could discharge the burden.
Referring to the decision in Vashist Narain Sharma 's case the Court observed as under: "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 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.
We are satisfied that in this case this burden has not been discharged." (Underlining by us) 723 We are in respectful agreement with the view taken by this Court in the aforesaid decisions.
The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination of a candidate materially affected the result of the election of the returned candidate.
The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes.
In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes.
In the absence of any such proof the result cannot be held to have been materially affected.
The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof.
But the difficulty in proving this fact does not alter the position of law.
The legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void.
The difficulty of proving the material effect was expressly noted by this Court in Vashist Narain Sharma 's and Paokai Haokip 's, cases and the Court observed that the difficulty could be resolved by the Legislature and not by the Courts.
Since then the Act has been amended several times, but Parliament has not, altered the burden of proof placed on the election petitioner under Section 100(1)(d) of the Act.
Therefore the law laid in the aforesaid decisions still hold the field.
It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates.
Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question.
In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures.
In the instant case Shiv Charan Singh the appellant had polled 21443 votes and Roshan Lal had polled 16496 the next highest number 724 Of votes.
There was thus a difference on 4497 votes between the votes polled by the appellant and Roshan Lal.
Kanhaiya Lal whose nomination paper had improperly been accepted, had secured 17841 votes which were wasted.
The election petitioners did not produce any evidence e to discharge the burden that improper acceptance of the nomination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate.
On the other hand the appellant who was the returned candidate produced 21 candidates representing cross section of the voters of the constituency.
All these witnesses had stated before the High Court that in the absence of Kanhaiya Lal in the election contest, the majority of the voters who had voted for Kanhaiya Lal would have voted for Shiv Charan Singh the appellant.
The High Court in our opinion rightly rejected the oral testimony of the witnesses in view of this Court 's decision in Vashist Narain Sharma 's, case.
The High Court however having regard to the votes polled by the appellant Roshan Lal and Kanhaiya Lal held that the result of the election was materially affected.
The High Court held that in view of the fact that difference between Shiv Charan Singh the appellant and Roshan Lal was only 4497 and Kanhaiya Lal, whose nomination was improperly accepted had secured 17841 votes therefore it could reasonably be concluded that the election was materially affected.
In our opinion the High Court committed error declaring the appellant 's election void on speculations and conjectures.
Indisputably, the election petitioners had failed to discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason of improper acceptance of the nomination paper of Kanhaiya Lal.
In the absence of any positive evidence produced by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected.
The High Court 's findings relating to the material effect on the result of the election are based on conjectures and surmises and not on any evidence.
The Legislature has, as noted earlier placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate (other than the returned candidate) and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this Court in Vashist Narain Sharma 's and in Paokai Haokip 's case.
It is true that the burden placed on the election petitioner in such circumstances is almost impossible to discharge.
But in spite of the fact that this Court had highlighted this question on more than one occasion, Parliament has not amended the relevant provisions although the Act has been 725 subjected to several amendments.
It is manifest that law laid down by this Court in Vashist Narain Sharma 's case and Paokai Haokip 's case holds the field and it is not permissible to set aside the election of a returned candidate under Section 100(1)(d) on mere surmises and conjectures.
If the improperly nominated candidate had not been in the election contest, it is difficult to comprehend or predicate with any amount of reasonably certainty the manner and the proportion in which the voters who exercised their choice in favour of the improperly nominated candidate would have exercised their votes.
The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate.
Any speculation made by the Court in the this respect would be arbitrary and contrary to the democratic principles.
It is a matter of common knowledge that electors exercise their right of vote on various unpredictable considerations.
Many times electors cast their vote on consideration of friendship, party affiliation, local affiliation, caste, religion, personal relationship and many other imponderable considerations.
Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate.
No inference on the basis of circumstances can successfully be drawn.
While in a suit of proceedings it may be possible for the Court to draw inferences or proceed on probabilities with regard to the conduct of parties to the suit or proceedings, it is not possible to proceed on probabilities or draw inferences regarding the conduct of thousands of voters, who may have voted for the improperly nominated candidate.
In the instant case there were 11 contesting candidates.
If Kanaiya Lal whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates.
There is possibility that many voters who had gone to the polling station to cast their votes in favour of Kanaiya Lal may not have gone to exercise their vote in favour of the remaining candidates.
It is probable that in the absence of Kanaiya Lal in the election contest, many voters would have voted for the returned candidate as he appeared to be the most popular candidate.
It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanaiya Lal would have voted for the next candidate Roshan Lal.
It is not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates.
In this view, the result of the returned candidate could not be declared void on the basis 726 of surmises and conjectures.
The High Court placed reliance on the decision of this Court in Chhedi Ram 's case in holding that the result of the election was materially affected in view of the margin of difference between the appellant and Roshan Lal and the votes secured by Kanaiya Lal.
The decision in Chhedi Ram 's case does not over rule earlier decisions of this Court in Vashist Narain Sharma and Paokai Haokip 's case and it does not lay down any different law.
Instead the decision of the case turned upon the facts of that case.
In Chhedi Ram 's case there were four contesting candidates.
Jhilmit Ram the returned candidate had polled 17822 votes while Chhedi Ram had polled the next highest number of votes being 17449 votes.
Thus the difference between the successful candidate and the candidate who had secured the next highest number of votes was 373 votes only.
While Moti Ram whose nomination paper was found to have been improperly accepted had polled 6710 votes.
The High Court had dismissed the election petition on the finding that the result of the election had not been materially affected as a result of the improper acceptance of the nomination paper of Moti Ram.
This Court allowed the appeal and set aside the election of the returned candidate on the finding that if the number of votes secured by the candidate whose nomination was improperly accepted was not disproportionately large as compared with the difference between the number of 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, there was a reasonable probability that the result of the election had been materially affected and one may venture to hold that fact as proved.
After making these observations the Court noted that in that case the candidate whose nomination was improperly accepted had obtained 6710 votes i.e. 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, in that situation the result of the election was held to have been materially affected.
The decision in Chhedi Ram 's case rests on its own facts.
Applying the principle laid down in Chhedi Ram 's case to the facts of the instant case it is not possible to hold that the result of the election of the appellant was materially affected.
As already noted the appellant had polled 21443 votes while Roshan Lal had polled the next highest number of votes 16946 and the difference between the two was only 4497 votes while the votes polled by the improperly nominated candidate Kanaiya Lal was 17841 thus the proportion of difference was only four times, while 727 the difference in Chhedi Ram 's case was 20 times.
Further in Chhedi Ram 's case there were only 4 contesting candidates while in the instant case there were 11 contesting candidates and in the absence of Kanaiya Lal other remaining 10 would have shared the wasted votes.
On these facts even on the basis of Chhedi Ram 's case it is not possible to draw any inference or act on probability and to record a finding that the majority of wasted votes would have gone to Roshan Lal in such a way as to affect the result of the appellant 's election.
In the circumstances, the findings recorded by the High Court that the result of the election of the appellant was materially affected is not sustainable in law.
In the result, we hold that the election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper of Kanaiya Lal.
Therefore, the election of the returned candidate could not be declared void.
We accordingly allow the appeals, set aside the judgment and order of the High Court, uphold the appellant 's election and dismiss the election petitions with costs throughout.
N.P.V. Appeals allowed.

summary:
% The validity of the appellant 's election to the Legislative Assembly was challenged by two electors, Respondent Nos. 1 and 2, on the ground that improper acceptance by the Returning officer, of the nomination paper of one of the contesting candidates who was not qualified to contest the election under article 173(b) of the Constitution, had materially affected the result of the election of the returned candidate.
The appellant contested the election petitions, contending that there was no improper acceptance of nomination paper of the candidate in question and that the appellant 's election was not materially affected.
The High Court held that there was improper acceptance of the nomination paper, as the candidate in question was not competent to contest election for the reason that he was below 25 years of age.
It also held that the election of the appellant was materially affected, because there was a difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate and if the candidate whose nomination paper had been improperly accepted had not contested, the votes polled by him would have gone in favour of the next unsuccessful candidate and other candidates, in which case the next unsuccessful candidate could have polled the majority of valid votes.
It accordingly declared the appellant 's election void.
In the appeals before this Court it was contended on behalf of the appellant that the finding recorded by the High Court that the improper acceptance of the nomination paper of the candidate in question had materially affected the result of the appellant 's election was based on conjectures and surmises and not on any legal evidence and that none of 714 the two election petitioners had produced by cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of the candidate in question.
On behalf of the respondents, it was urged that on the material on record and having regard to the number of votes polled by the candidate whose nomination was improperly accepted and the difference between the votes polled by the appellant and the next unsuccessful candidate, the findings recorded by the High Court were sustainable in law and the same were in accordance with the law laid down by this Court.
in Chhedi Ram vs Jhilmit Ram & ors.
, [ ; Allowing the appeals, ^ HELD: l.
The election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper.
Therefore, the election of the returned candidate could not be declared void.
[717C D] 2.1 Improper acceptance of nomination paper of any contesting candidate (other than the contesting candidate) does not ipso facto render the election.
Of the returned candidate void.
The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance.
The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate.
Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void.
[719F H] 2.2 The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidates (other than the returned candidate) would have polled the highest number of valid votes.
In the absence of any such proof, the result cannot be held to have been materially affected.
[732C D] The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof.
But the difficulty in proving this fact does not alter the position of law.
The 715 legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void.
[719G H] 2.3 It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates.
[723F] Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question.
In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures.
[723F G] Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate.
No inference on the basis of circumstances can successfully be drawn.
[725D El The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate.
Any speculation made by the Court in this respect would be arbitrary and contrary to the democratic principles.
[725B C] In the instant case, the election petitioners had failed to discharge the burden of proving the fact that the result of the election of the appellant had been materially by reason of improper acceptance of the nomination paper of the candidate in question.
In the absence of any positive evidence provided by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected.
There were ll contesting candidates.
If the candidate whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates.
Therefore, the result of the returned candidate could not be declared void on the basis of surmises and conjectures.
[724E; 725E H] Vashist Narain Sharma vs Dev Chandra and others; , and Paokai Haokip vs Rishang & Ors., ; , relied on.
716 Chhedi Ram vs Jhilmit Ram 2 others, [1984] t SCR 966 distinguished and explained.


judgement:
Civil Appeal No. 280 of 1988.
From the Judgment and order dated 20.5.1987 of the Calcutta 820 High Court in Civil order No. 1344 of 1987.
Somnath Chatterjee and Rathin Dass for the Appellants.
S.N. Kacker, Badar Durrez Ahmed and Parijat Sinha for the Respondents.
The Judgment of the Court was delivered by OZA, J.
Leave granted.
This appeal has been filed aggrieved by the judgment of the High Court of Calcutta dated 20th May 1987 wherein the learned Judge allowed a petition under Article 227 and quashed suo moto proceedings under Sec. 44(2a) of the West Bengal Estates Acquisition Act, 1953 ( 'Act ' for short) and also the appeal which was pending before the lower appellate court under the Act.
The proceedings under Article 227 reached the High Court rather in an interesting situation.
Suo moto proceedings in 1968 were started by the Revenue officer Tollygunj under Sec. 44(2a) of the Act.
There were also proceedings under Sec.
6 clause 5 read with Sec.
47 of the same Act started by Revenue officer and the case was registered as Case No. 22 of 1968.
A suit filed in 1969 between parties to which the State of West Bengal was not a party ended in a compromise decree on 6.8.70 and a decree in terms of compromise was drawn up.
It was title suit No. 67 of 1969.
After the final orders were passed by the Revenue officer in Case No. 22 of 1968 wherein the respondent Ashit Nath Das did not participate and against these final orders a petition was filed in the High Court of Calcutta where rule was issued and by orders of the High Court dated 1.4.81 the rule was made absolute quashing the orders in the said revenue case directing the settlement officer to issue proper notice to Ashit Nath Das as he claimed to be an interested party and dispose of the matter after giving him opportunity of hearing.
As a result of this order passed by the High Court on 22.1.82 the proceedings under Sec. 44(2a) of the Act was re opened according to the orders passed by the High Court and on 9.2.82 final orders were passed in these proceedings by the special revenue officer.
Against this order Ashit Nath Das preferred an appeal before the 9th Additional District Judge, Alipore who is the competent authority to hear an appeal under this Act which was registered as EA Appeal No. 2 of 1982.
On 1.12.83 it appears that Ashit Nath Das obtained an opinion 821 Of the Advocate General of West Bengal regarding the aforesaid proceedings pending in Appeal No. 2 of 1982 before the 9th Additional District Judge, Alipore and filed that opinion with an application in the Court of Additional District Judge.
The Additional District Judge passed an order on 25.2.86 rejecting the prayer of the respondent by saying that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the appellant and the prayer of the appellant before the Additional District Judge the present respondent that the appeal be disposed of in accordance with the opinion of the Advocate General was rejected.
It is interesting to note that such a strange prayer was made and the learned Additional District Judge by his order rejected that prayer.
The relevant part of the order reads as under: "It is his case that after the order of the R.O. now impugned in this appeal, his client had made a reference of the matter to the Adv.
General, Govt.
Of West Bengal and sought for his opinion.
It is alleged that the Adv.
General had given his opinion that the order of the R.o. was wrong on the basis of this the appellants now want that the appeal should be disposed of as per opinion of the Adv.
General because all relevant papers were submitted to him and copy of his opinion and the copy of the petition and copies of the papers were handed over to the State lawyer.
" As the learned Judge observed that it could only be considered as a ground.
The date of hearing of the appeal was fixed on 19.4.86 to suit the convenience of the advocates of parties.
It is against this order that a petition under article 227 was filed before the High Court.
Learned counsel appearing for the appellants read through the petition which was filed before the High Court to contend that in fact there was nothing in the order of the Additional District Judge which could be said to be an order against the respondent of which a grievance could be made in a petition under article 227.
As regards the date of hearing the learned Additional District Judge had observed in his order that to suit the convenience of advocates appearing in the case 19.4.86 is fixed as the date of hearing Learned counsel for the appellants referred to us paragraph No. 14 of the petition under article 227 in which a ground was specifically raised saying.
"It was further contended that the Advocate General had 822 given his opinion that the order of the Revenue officer was wrong and as such on the basis of the said opinion the petitioner wanted that the appeal should be disposed of as per opinion of the Advocate General.
" A grievance also was made in this petition that the learned Additional District Judge refused to look into the opinion of the Advocate General except as a ground of appeal on behalf of the appellants.
In the grounds in this petition under article 227 one ground urged was that the learned Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General and that should have fixed an early date for the hearing of the appeal and it is significant that nothing on the merits or the validity of the proceedings under Sec. 44(2a) of the Act were challenged in this petition under article 227.
The manner in which the petition was entertained in the High Court and the impugned order was passed also is rather interesting.
on 18.4.86 it appears that this petition was presented and orders were passed.
The presence of the counsel of both the parties is mentioned, thereafter it is stated that further proceedings before the appellate tribunal be stayed and it is further stated that Advocate General is also directed to appear on Friday next (25.4.86) at the first sitting of the Court.
Apparently from this what appears is that after asking the Advocate General to remain present the learned Judge kept the matter to be taken up on 25.4.86.
It appears that thereafter the case did not appear in the list for hearing as is apparent from the order dated 18.4.86 when rule was not issued and the matter was kept on 25.4.86.
It is alleged that this was contested by the State Govt.
but neither the parties were called upon to file affidavits nor any rule was issued and subsequently on 13.6.86 this case was shown in the list of the Hon 'ble Judge for judgment but on 13.6.86 the judgment was not delivered and thereafter the case appeared in the list on 20.5.87 for judgment and on this date the judgment was delivered although the file had no number as it appears that rule was not issued and the petition was not even numbered and it is this impugned judgment which is challenged by the State of West Bengal in this appeal in special leave.
In this order the learned Judge has treated this petition under article 227 as a revisional application of the petitioner challenging the order passed by Additional District Judge on 25.2.86 which has been referred to above.
823 The learned Judge has reproduced the contention advanced by the counsel for the respondents that the appellate court i.e. 9th Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General and about this contention the learned Judge of the High Court has made the following observation in his impugned judgment: "It is most regretable to note the stand taken by the State in the matter in disregarding the written opinion given by no loss person that the Advocate General of West Bengal showing such scant respect or no respect at all to such opinion and I hudder to think that if such disrespect is shown to the opinion of the Advocate General of West Bengal what should be the position of the Advocate General before the court and also to the State Government".
However the learned Judge did not agree that the Additional District Judge should have decided in accordance with the opinion of the Advocate General and we are happy that the 9th Additional District Judge, Alipore did not accede to such a prayer but after the above quoted observation the learned Judge has decided matters which were not raised before the High Court in the petition under article 227.
No ground about the validity of 44(2a) proceedings on the basis of Amending Act not getting the assent of President was raised.
When the case was fixed for 25th April Friday next directing the Advocate General to remain present, there after it was never heard and it only ultimately resulted in the impugned order.
It is not contended even by the learned counsel for the respondents that any additional grounds were urged in the petition under article 227 inviting the Court to consider the matter as to the effect of the Amendment Act, 1969 not receiving the assent of the President and the subsequent Amendment Act receiving the assent of the President and the effect thereto.
Unfortunately the learned Judge of the High Court lost sight of the fact that the only grievance against the order of the Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing.
This question about the suo moto proceedings under Sec. 44(2a) and the validity of the Amendment Act and its effect were neither considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of but it appears that the 824 learned Judge of the High Court after examining these legal aspects without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the learned Judge went on without their being proper grounds before it and without giving an opportunity to the present appellant State of West Bengal to have their say in the matter.
Under these circumstances it is apparent that the order passed by the learned Judge of the High Court dated 20.5.87 is completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and therefore the order deserves to be quashed and is quashed.
Apparently therefore the appeal filed by the respondent before the 9th Additional District Judge which was pending when the learned Judge of the High Court passed the impugned order revives and it could not be said that the appeal is disposed of as observed by the learned Judge of the High Court.
Consequently it is directed that the appeal which was pending before the 9th Additional District Judge Alipore shall be heard by the learned Additional District Judge in accordance with law.
The learned Additional District Judge while hearing and disposing of the appeal shall not be bound or obsessed by any observation made by the learned Judge in the impugned order.
In the circumstances of the case parties are directed to bear their own costs.
N. V. K. Appeal allowed.

summary:
% As a result of the order passed by the High Court, proceedings under section 44(2a) of the West Bengal Estates Acquisition Act, 1953 were re opened by the Special Revenue officer and final orders were passed on 9.2.1982.
The Ist respondent preferred an appeal against this order before the 9th Additional District Judge, the competent authority to hear an appeal.
On 1.12.83 the Ist respondent obtained an opinion of the Advocate General regarding the aforesaid proceedings, and filed that opinion with an application.
The Additional District Judge passed an order on 25.2.86 rejecting the prayer of the Ist respondent that the appeal be disposed of in accordance with the opinion of the Advocate General, but observed that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the Ist respondent.
The date of hearing of the appeal was fixed on 19.4.86 to suit the convenience of the Advocates of the parties.
A petition under article 227 was filed in the High Court against the 818 aforesaid order by the Ist respondent.
The High Court treated this petition as a revision application challenging the order passed by the Additional District Judge on 25.2.86, and held that the Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General, and quashed the proceedings under Section 44(2a) as well as the appeal that was pending hearing before the Additional District Judge.
Allowing the Appeal by the State this Court, ^ HELD: l.
The High Court lost sight of the fact that the only grievance against the order of the 9th Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing.
The question about the suo moto proceedings under section 44(2a) and the validity of the Amendment Act, 1969 and its effect were not considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of.
[823G H] 2.
The High Court after examining the legal aspect without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the High Court went on without there being proper grounds before it and without giving an opportunity to the appellant State of West Bengal, to have their say in this matter.
[824A B] 3.
The order passed by the High Court dated 20.5.87 is, therefore, completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and, therefore, deserves to be quashed, and is quashed.
[824B c] 4.
The appeal that was filed by the Ist respondent before the 9th Additional District Judge was pending when the High Court passed the impugned order, revives.
It could not be said that the appeal is disposed of as observed by the High Court.
It is directed that the appeal which was pending before the 9th Additional District Judge shall be heard by the Additional District Judge in accordance with law.
[824C D]