T. S. DOABIA, J. ( 1 ) THIS Order shall govern the disposal of the two writ petitions preferred under Articles 226 and 227 of the Constitution of India. These are Writ Petition No. 102 of 1995 and Writ Petition No. 104 of 1994. The facts in Writ Petition No. 102 of 1995 be first noticed. ( 2 ) AN election was held to the Gram Panchayat of Gopalpur Taktaiyan, district Guna. The present petitioner won by margin of 9 votes. He was declared elected to the office of Panch. An election petition was filed on the ground that five persons whose names were ordered to be included in the electoral roll were not permitted to cast their votes. The Election Court took notice of this fact and recorded a finding that this has materially affected the result of the election of the present petitioner and accordingly set aside the election. Copy of the Order is Annexure P/ 1. The other ground urged by the respondent election petitioner - is that six persons, whose names were already on the electoral roll were not permitted to cast their votes. This plea however has not been substantiated and no finding has been recorded on this ground. ( 3 ) IN Writ Petition No. 104 of 95, the present petitioner was elected as a Sarpanch to the same Gram Panchayat, i. e. Gopalpur Taktaiyan, district Guna. She won the election by margin of 36 votes. The allegation made are the same as made in the Writ Petition No. 102 of 1995. It is stated that five persons, whose names were directed to be included in the electoral roll were not permitted to cast their votes. The Election Court came to the conclusion that the refusal to permit the five voters to cast their votes has materially affected the result of the election of the present petitioner to the office of Sarpanch. The election was set aside. The order passed is Annexure P/1. The Election Court came to the conclusion that the refusal to permit the five voters to cast their votes has materially affected the result of the election of the present petitioner to the office of Sarpanch. The election was set aside. The order passed is Annexure P/1. ( 4 ) IT is settled law that (i) Onus to prove that on account of breach of the statutory provisions the result of the election has been materially affected is on the election-petitioner; (ii) The election is not to be set aside on the "ipse dixit" of the witnesses; (iii) In order that a ground may be characterised as a ground for setting aside an election solemnly held, it should invariably contain the imperative allegation that the result of the election in so far as it concerns the returned candidate has been materially affected. If it is not so alleged, the cause of action is incomplete and it becomes an incompetent ground on which the challenge to the election cannot be sustained. ( 5 ) IT would be useful here to notice the observations made by the Supreme Court of India in Paokai Haokip v. Rishang ( AIR 1969 SC 663 ). The position of law which obtains in England and India was taken note of. Reference was made to an earlier decision of the Supreme Court in the case of Vashist Narain Sharma v. Dev Chandra ( AIR 1954 SC 513 ). It was observed :"in that case there was a difference of 111 votes between the returned candidate and the candidate who had obtained the next higher number of votes. One candidate by name Dudh Nath Singh was found not competent to stand and the question arose whether the votes wasted on Dudh Nath Singh, if they had been polled, in favour of remaining candidates, would have materially affected the fate of the election. "it was further said "ghulam Hasan, J. observed as under :"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. 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 stand. " ( 6 ) THE observations made in Vashist Narain Sharma's Case (supra) were further noticed. These read as under:"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 or 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 (1) (c) and hold without evidence that the duty has been discharged. " ( 7 ) AFTER taking note of the above position of law, Hidayatullah C. J. proceeded to observe in Paokai Haokip Case (supra) as under at pages 665, 666:"further it is pointed out that the burden of proof in England was the exact reverse of that laid down by the Indian Statutes. There, the returned candidate has to prove that the noncompliance or mistake did not affect the result of the election. In our country, the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected. Therefore, what we have to see is - whether this burden has been successfully discharged by the election petitioner by demostrating to the Court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place, at all the polling stations including those at which it did not. The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticised by this Court. The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticised by this Court. Witnesses have been brought forward to State that a number of voters did not vote because of the change of venue or because of firing and that they had decided to vote en bloc for the election petitioner. This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety. of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates. " ( 8 ) THE Supreme Court reversed the judgment rendered by the Judicial Commissioner of Manipur by observing that at p. 666:-"the learned Judicial Commissioner reached his conclusion by committing the same error which was criticised in Vashist Narain Sharma's case, AIR 1954 SC 513 . He took the statement of the witnesses at their worth and held on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner. For this, there. is no foundation in fact; it is a surmise and it is anybody's guess as to how these people, who did not vote, would have actually voted at p. 667. In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to Section 100 (1) (d) (iv) of the Act. That Section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. 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. " ( 9 ) THE observations made above would apply fully to the facts of this case. 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. " ( 9 ) THE observations made above would apply fully to the facts of this case. As to how the five voters said to have not been permitted to cast their votes would have voted is a matter which is purely based on surmises and would fall in the realm of conjectures. Even if it would be presumed that these five votes would have gone in favour of the other side even then the result of the election is not going to be materially affected because the petitioner in Writ Petition No. 102 of 1995 won by margin of 9 votes and the other petitioner in Writ Petition No. 104 of 1995 won by margin of 36 votes. ( 10 ) IN view of the above factual and legal position, I am of the opinion that view taken by the Election Court setting aside the election of the present petitioner cannot be accepted. The order Annexure P/1 is set aside. Petition is allowed. No order as to costs. Petition allowed.