S.M Sikri, J.:— This appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as “the 1951 Act”) is directed against the judgment of the Patna High Court (G.N Prasad, J.) dismissing the election petition filed by G.K Samal, the appellant before us. The election sought to be challenged is the election of Shri R.N Rao, Respondent 1, to the Bihar Legislative Council from the Singhbhum Local Authorities Constituency held in April 1968.
2. A seat in the Legislative Council was due to fall vacant in May 1968, and the Governor issued a Notification under Section 16 of the 1951 Act published in the Official Gazette on 27-3-1968, calling upon the electors of the constituency concerned to elect a member in accordance with the provisions of the 1951 Act and the Rules and order made thereunder. On that very day also issued a Notification of the Election Commission under Section 30 of the 1951 Act, and the following dates were fixed for various purposes in connection with the conduct of the election:
(a) The last date for making nominations 3-4-1968 (b) The last date for the scrutiny of nominations 4-4-1968 (c) The last date for the withdrawal of candidature 6-4-1968 (d)The date of poll 28-4-1968 (e) The date before which the election was to be completed 6-5-1968
3. Fourteen candidates filed their nomination papers and all the nomination papers were declared to be valid. One of the candidates, Shri Dwarika Prasad, withdrew his candidature thus leaving 13 contesting candidates in the field, including the petitioner and Respondent 1.
4. The constituency in question comprised of seven local authorities, namely, (1) municipalities of (a) Chaibassa, (b) Chakradharpur, and (c) Seraikella; and (2) the notified area committees of (a) Jamshedpur, (b) Jugsalai, (c) Adityapur, and (d) Kharswangarh. On 3-4-1968, according to the electoral roll of the constituency the total number of electors was 116, as shown in Column 1 of the statement given below, but according to the electoral roll as it stood amended on 27-4-1968, the total number of electors was 169, as shown in the second column of the statement.
(a)
The last date for making nominations
3-4-1968
(b)
The last date for the scrutiny of nominations
4-4-1968
(c)
The last date for the withdrawal of candidature
6-4-1968
(d)
The date of poll
28-4-1968
(e)
The date before which the election was to be completed
6-5-1968
5. It will be notified that the changes occurred only in the electoral rolls as far as three notified areas committees were concerned, namely, Jamshedpur, Jugsalai and Adityapur. The electoral roll was amended because the membership of the notified area committees of Jamshedpur, Jugsalai and Adityapur had been changed as a result of the Notification issued on 13-4-1968, under clause (c) of Section 389 of the Bihar and Orissa Municipal Act, 1922. The notification is not printed on the record but the High Court summarises the notification as follows:
“By virtue of the said notification, 40 persons were appointed as members of the Jamshedpur Notified Area Committee, out of whom 10 were its original members and 30 were appointed as such for the first time. In Jugsalai Notified Area Committee, 8 new members were appointed in addition to those who were there from before. In Adityapur Notified Area Committee, 13 new members were appointed, in addition to those who were members of the Committee from before, and 9 of whom were also registered electors of the constituency.”
6. The High Court further noticed the changes made in the electoral roll thus:
“According to the amendment of the electoral roll made in the evening of 27-4-1968, there were 39 electors from Jamshedpur Notified Area Committee, 10 of whom were registered from before, and the remaining 29 were added for the first time by virtue of their appointment as members of the said notified area committee under the Notification (Ext. 1) dated 13-4-1968.
In respect of Jugsalai Notified Area Committee the electoral roll was amended by including therein the names of 9 persons who were members of the said notified area committee from before, but whose names had not been included in the electoral roll as it originally stood.”
7. Thus, in respect of Jugsalai Notified Area Committee there were 31 electors from this Committee 22 of whom were electors from before. In the electoral roll relating to Adityapur Notified Area Committee the name of one out of the original nine electors was deleted, the names of eight others were retained and the name of 30 new electors were added out of whom 18 were members of the notified area committee from before and 12 persons newly appointed as members of the committee under the Notification dated 13-4-1968. The result of these amendments was that the electorate which consisted originally of 116 electors was expanded into an electorate of 169 electors by deleting the names of 15 of the former electors and adding 68 fresh electors.
8. The poll was held on 28-4-1968, as notified, at different polling booths fixed for the purpose and the counting was made by the Returning Officer at Chaibasa on the following day. Six of the ballot papers were rejected as invalid and 151 ballot papers were held to be valid. The first count showed the following results:
(i)
Chaibassa Municipality
19
19
(ii)
Chakradharpur Municipality
18
18
(iii)
Seraikella Municipality
9
9
(iv)
Jamshedpur Notified Area Committee
23
39
(v)
Jugsalai Notified Area Committee
23
31
(vi)
Adityapur Notified Area Committee
9
38
(vii)
Kharswangarh Notified Area Committee
15
15
116
169
9. In the election petition various grounds were taken but the only ground which now survives before us is that the election of Respondent 1 has been materially affected by reasons of illegal omission and illegal inclusion of names in the electoral roll of the constituency and the amendment of the entries therein made after the expiry of the last date for making nominations.
10. We may mention that the High Court upheld the contention of the appellant that “electoral roll should not have been amended until the completion of the election, and that if it was amended, as the evidence shows that it was, during this period then the amended electoral roll should have been ignored for the purpose of conducting the impugned election”. The High Court, however, came to the conclusion that it had not been proved that the result of the election insofar as Respondent 1 was concerned was materially affected.
11. We may mention that this Court has held in Vashist Narain Sharma v. Dev Chandra AIR 1954 SC 513, 1955 SCR 509, Mahadeo v. Babu Udai Pratap Singh AIR 1966 SC 824 and Paokail Haokip v. Rishang AIR 1969 SC 663 that the burden is on the petitioner to prove that the result of the election has been materially affected by (1) the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (2) by any non-compliance with the provisions of the Act.
12. The High Court dealt with this point under two heads. It first dealt with the situation arising from the deletion of the names of 15 of the former electors. In this connection the High Court held that out of 15, in regard to at least three of them it was manifest that they could not have voted for the petitioner. The High Court observed:
“One of these three is Respondent 1 himself, another is Shri Dwarka Prasad who has deposed as RW 1 and in regard to whom it has transpired in evidence that he had withdrawn from the contest since he was a dummy candidate for Respondent 1 (vide RW 2). The third person falling in this category is Premchand (RW 2) whose evidence shows that he was a proposer of Dwarka Prasad (RW 1) and no suggestion has been made to him that after Dwarka Prasad had withdrawn his candidature, he had transferred his allegiance to the petitioner.”
13. As regards the remaining 10 former electors of Jamshedpur, the High Court observed:
“The petitioner has led no evidence whatsoever in support of his case that they would have voted for him if their names had been retained in the electoral roll, or that they were his political supporters. There is also no evidence on record that any of them had sought to exercise their right of vote but were prevented by the presiding officer from doing so. The petitioner has, therefore, failed to substantiate his case that the majority of the old electors of Jamshedpur were his supporters or that their votes were denied to the petitioner by reason of the deletion of their names from the electoral roll.”
14. Regarding the remaining two former electors, one of Adityapur and the other of Jugsalai, the High Court observed:
“Likewise, there is no evidence that the other two former electors, one of Adityapur and the other of Jugsalai, were either supporters of the petitioner or had sought to exercise their right to vote, but were not permitted to do so. The petitioner has, therefore, failed to prove that his prospects in the election were adversely affected by reason of deletion of the names of 15 former electors from the electoral roll.”
15. The High Court accordingly concluded that “the result of the election, so far as Respondent 1 is concerned, was not materially affected on account of the deletion of the names of some of the original electors from the electoral roll”.
16. The High Court then dealt with the question regarding the material effect on the election on account of the inclusion of new electors in the electoral roll. The High Court assumed in favour of the petitioner that the total number of new electors brought on the roll after 3-4-1968, was 68. The High Court gave the following reasons for holding that the result of the election had not been materially affected:
(1) There can be no justification for thinking that all or a substantial number of the votes counted in favour of Respondent 1 were void while those counted in favour of the petitioner were the votes of the original electors.
(2) There is neither any averment in the election petition nor evidence before it to indicate how many of these 44 votes were polled in favour of Respondent 1 at Jamshedpur, Adityapur or/and Jugsalai respectively.
17. The learned counsel for the appellant contends that under the circumstances he could allege no more than he did in the petition. He had asked for the ballot papers to be inspected but the High Court had refused inspection. We may mention that the High Court refused inspection on the ground that the election petition did not contain adequate statement of the material facts on which the petitioner relied in support of his case, and secondly, that there was no evidence on the record to indicate that void votes were polled to such an extent as to suggest that by reason thereof the result of the election of Respondent 1 was materially affected.
18. The learned counsel at one stage pressed for inspection of the ballot papers but he said that he opposed inspection of ballot papers of the petitioner. He said that this would be illegal under Section 97 of the 1951 Act. It seems to us that the objection is based not so much on the ground that it would be illegal than that if an inspection was taken it would show that void votes had also been polled in favour of the petitioner. We are not inclined to order inspection of the ballot papers of the respondent as no ground has been shown that the High Court was wrong in disallowing the inspection.
19. On the material on record we agree with the High Court that it has not been shown that the result of the election had been materially affected by the casting of votes by persons whose names were added to the electoral roll on 27-4-1968 and the alleged non-voting of 15 former electors whose names had been deleted. We have carefully gone through the election petition and it only contains vague allegations such as in para 38 which reads:
“That if the Electoral Registration Officer had not modified the electoral roll for the constituency in contravention of sub-section (3) of Section 23 and, even if he did so, had not excluded the names of the persons appointed as additional members of Jugsalai Notified Area Committee on 13-4-1968, and if the Returning Officer had not committed the aforesaid irregularities in the counting of votes, the petitioner would have secured a larger number of votes than Respondent 1 in the final count, if not earlier, and would have been declared elected as a member of the Bihar Legislative Council from the Singhbhum Local Authorities’ Constituency.”
20. Para 39 reads:
“That the result of the election of Respondent 1 has thus been materially affected by:
(i) Non-compliance with the provisions of the Act and the Rules framed thereunder and the contravention of the provisions thereof;
(ii) Improper reception, rejection and refusal of votes and reception of votes which were void;
(iii) Improper acceptance of nomination paper; and
(iv) Illegal inclusion and exclusion of names in the electoral roll in the evening of 27-4-1968.”
21. In para 40 it is alleged that “but for the illegal inclusion and exclusion of names in the electoral roll and improper reception of void votes and improper refusal of votes, the petitioner would have secured highest number of votes and would have been elected to the Bihar Legislative Council”.
22. The High Court was rightly impressed by the omission of any allegation that all or majority of the persons whose names were included in the electoral roll for the first time in the evening of 27-4-1968, were the supporters of Respondent 1 in the election. The learned counsel has not been able to show us any evidence which might indicate how many of the first preference votes counted in favour of Respondent 1 were polled at Jamshedpur, Adityapur or Jugsalai respectively.
23. On the facts and the pattern of voting it is impossible to say that there was any substantial number of votes counted in favour of Respondent 1 which were void while those counted in favour of the petitioner were of the original electors. In the result the appeal fails and is dismissed with costs.