JUDGMENT Surinder Sarup, J.— The present Election Petition has been filed by Shri Dile Ram challenging the election of the respondent Shri Tek Chand from 61-Nachan (S.C. Assembly Constitutency in Himachal Pradesh, elections for which were held as per the following programme : (i) Filing of nomination papers. 28.1.1998 to 4.2.1998 (ii) Scrutiny of nomination papers. 5.2.1998 (iii) Withdrawal of nomination papers. 7.2.1998 as last date for the withdrawal of the candidature (iv) Allotment of symbols 7.2.1998 after 3.00 p.m. (v) Date of polling, if necessary. 28.2.1998 (vi) Counting of votes. 2.3.1998 2. It is pleaded in the Election Petition that various nomination papers were filed by the candidates including the petitioner and the respondent. The petitioner was set-up as a candidate by the Bhartiya Janta Party (B.J.P.) and the respondent was sponsored by the Indian National Congress (I.N.C.). After scrutiny and withdrawal of nomination papers, five candidates were left in the field for the said constituency. Polling as scheduled took place on 28th February, 1998. After the counting of votes had been completed the result of the election was declared by the Returning Officer on 2nd March, 1998, and the five contestants in the fray secured their respective votes as follows: Sr. No. Name of candidate Party affiliation Number of votes polled 1. Sh. Tek Chand Indian National Congress 14,390 2. Sh. Dile Ram Bhartiya Janta Party 13,631 3. Sh. Sohan Lal Janta Dal 328 4. Sh. Damodar Himachal Vikas Congress 9,182 5. Sh. Nikka Ram Independent 2,287 The respondent having secured the highest number of valid votes i.e. 14,390, as against 13,631 valid votes secured by the petitioner, was declared duly elected from the said constituency. 3. The petitioner has laid challenge to the election of the respondent and has sought a declaration to the effect that the same is void and should be set aside inasmuch as one of the five candidates who contested the said election i.e. Shri Nikka Ram was disqualified from contesting the election. As such, his nomination paper was improperly and wrongly accepted by the Returning Officer of the said election, which in turn has materially affected the result of the election insofar as it concerns the returned candidate i.e. the respondent. 4. As such, his nomination paper was improperly and wrongly accepted by the Returning Officer of the said election, which in turn has materially affected the result of the election insofar as it concerns the returned candidate i.e. the respondent. 4. As per the case set-up in the election petition said Nikka Ram was holding office of profit under Government of Himachal Pradesh on the day of filing of his nomination paper as well as on the day of scrutiny thereof. The precise plea is that the Returning Officer ought to have rejected the nomination paper of said Shri Nikka Ram as required under Section 36(2)(a) of the Representation of the People Act, 1951, hereinafter called "the Act". It has been stated that the said Shri Nikka Ram was working as a Junior Engineer in Irrigation and Public Health Department of Himachal Pradesh on the relevant dates, referred to above. He was posted in that capacity in the office of the Superintending Engineer Irrigation and Public Health, Rampur Circle, Rampur, District Shimla. In other words, on the date of filing of the nomination paper as well as on the date of scrutiny, he was holding office of profit under the Himachal Pradesh Government and, as such, was disqualified from contesting the election in view of the bar created under Article 191 (l)(a) of the Constitution of India. 5. For facility of reference the above said two provisions are reproduced here-below: Article 191 (l)(a) of the Constitution of India "191. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State— (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder." 36 (2)(a) of the Representation of the People Act, 1951 "36. Scrutiny of nominations.—(1)............ Scrutiny of nominations.—(1)............ (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necesary, reject any nomination on any of the following grounds : (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :— Articles 84, 102, 173 and 191.....” 6. The petitioner supports the above legal challenge to the election of the respondent on facts which have been pleaded in para 4 of the Election Petition. It would be appropriate and in the fitness of things to reproduce the said pleadings verbatim which are as follows: "That Sh. Nikka Ram was an active worker of the Rashtriya Swayam Sewak Sangh (in short RSS) and was closely associated with the cadre and workers of RSS and Bhartiya Janta Party. Though he was in service as J.E. in Himachal Pradesh Government, yet he actively participated in the programmes of the RSS and Bhartiya Janta Party. He was well acquainted with the workers, supporters and well wishers of Bhartiya Janta Party. He also tried to get the Bhartiya Janta Party ticket to contest the election from 61-Nachan (SC) Assembly Constituency. However, he was not given the ticket and the Bhartiya Janta Party set up the petitioner as a candidate from Nachan Constituency. The vote bank of the petitioner as well as that of said Sh, Nikka Ram was by and large common as both of them were in contact with the Bhartiya Janta party and RSS workers supporters and well-wishers. Feeling frustrated by not finding favour with the BJP High Command and having failed to get the ticket of Bhartiya Janta Party, said Sh.Nikka Ram filed his nomination papers as an Independent Candidate only with an object to cut into the votes of the petitioner and damage his chances of election. On the day of scrutiny the petitioner realising that Nikka Rams candidature would directly affect his vote bank and would be for the advantage of Congress candidate, asked his proposer Sh. Joginder Singh son of Sh. Paras Ram, resident of village Phagyra, Teh. On the day of scrutiny the petitioner realising that Nikka Rams candidature would directly affect his vote bank and would be for the advantage of Congress candidate, asked his proposer Sh. Joginder Singh son of Sh. Paras Ram, resident of village Phagyra, Teh. Sundernagar, who is a practising Advocate at Mandi, to file objections against the nomination papers of said Sh. Nikka Ram as he was working as Jr. Eningeer in the Irrigation & Public Health Department, Himachal Pradesh and his resignation had not yet been accepted. That Sh. Joginder Singh, Advocate, filed written objections against nomination papers of said Sh.Nikka Ram. Copy of the objections filed against the nomination papers of said Sh.Nikka Ram along with the order of the Returning Officer is attached herewith as Annexure P/2 and its typed copy is annexed as Annexure P/2/A. It may be submitted here that the respondent along with his counsel Sh. Lal Singh was present at the time of scrutiny of nomination papers, still they did not object to the nomination papers of said Sh. Nikka Rani, nor they supported the objections made by the petitioners proposer Sh. Joginder Singh, rather they advocated that Sh. Nikka Ram was not in Government service with a clear idea in mind that in case Nikka Rams nomination is accented, he would cut into the voters of the petitioner and would enhance respondents chances of success and in the eventuality of Nikka. Rams nomination papers being rejected, it would directly be advantageous to the petitioner and would diminish his chances of success. As per the directions of Returning Officer, said Sh. Joginder Singh filed his affidavit stating therein that Nikka Ram is still a Government servant and his resignation has not been accepted so far. Copy of the affidavit is attached as Annexure P/3 and its true typed copy is annexed as Annexure P/3/A. However, without there being any evidence regarding acceptance of resignation of said Sh. Nikka Ram, the Returning Officer wrongly and improperly accepted the nomination papers of said Sh. Nikka Ram. It may be submitted here that Sh. Nikka Ram had submitted his application dated 5.12.1994 for voluntary retirement, however, the same has not been accepted so far. Nikka Ram, the Returning Officer wrongly and improperly accepted the nomination papers of said Sh. Nikka Ram. It may be submitted here that Sh. Nikka Ram had submitted his application dated 5.12.1994 for voluntary retirement, however, the same has not been accepted so far. Copy of the application submitted by Nikka Ram for voluntary retirement is annexed as Annexure P/4 and its true typed copy is annexed as Annexure P/4/A. The voluntary retirement application of the petitioner (Nikka Ram) has not so far been accepted by the Government and he is still in Government Service. The copy of letter dated 26.3.1998 issued by Superintending Engineer, Irrigation & Public Health Department, Circle Rampur, District Shimla, Himachal Pradesh certifying that voluntary retirement application of Sh. Nikka Ram has not yet been accepted is attached herewith as Annexure P/5 and its English translation is attached herewith as Annexure P/5/T. So, till date the application of Sh. Nikka Ram, J.E. for voluntary retirement has not been accepted by the competent authority and he is still in service of the Himachal Government and is holding office of profit." 7. On the basis of the above facts contained in the Election Petition it has been pleaded by the petitioner that by the improper acceptance of the nomination paper of said Shri Nikka Ram, the result of the election so far as it concerns the respondent i.e. Tek Chand has been materially affected. This is so, as according to the petitioner, Shri Nikka Ram admittedly secured 2,287 votes whereas margin of difference between the votes secured by the Returned candidate and those secured by the petitioner (who had the next highest number of votes after the respondent) is only 759 in number. Thus the votes secured by said Nikka Ram are disproportionate i.e. three times more than the margin of difference between votes secured by the petitioner and the respondent. According to the petitioner Shri Dile Ram, had the nomination paper of Shri Nikka Ram been rejected as required by law, the votes polled by him would have definitely been polled by the petitioner as those votes were pro-B.J.P. and anti-Congress/anti-establishment votes. 8. According to the petitioner Shri Dile Ram, had the nomination paper of Shri Nikka Ram been rejected as required by law, the votes polled by him would have definitely been polled by the petitioner as those votes were pro-B.J.P. and anti-Congress/anti-establishment votes. 8. It has been specifically stated in para 5 of the Election Petition that the main plank of the compaign of said Shri Nikka Ram was asking for votes in the name of Shri Atal Behari Vajpayee by giving out that votes which would be cast in his favour would in fact be votes going to Shri Atal Behari Vajpayee. It has also been attributed to him that he being a R.S.S. activist would stand by the side of Shri Atal Behari Vajpayee after being elected as an M.L.A. In this manner and by stating these facts, the petitioner has claimed that by improper and wrong acceptance nomination paper of said Shri Nikka Ram the result of the election has been materially affected concerning the Returned candidate i.e. the respondent. The same is thus liable to be declared void and set aside under Section 100(l)(d)(i) of the Act. 9. The respondent Tek Chand i.e. the Returned candidate has contested the Election Petition by filing the written statement. The following preliminary objections have been taken therein : "(a) There has been non-compliance of sub-section 3 of Section 81 of the Act. (b) There has been non-compliance of Section 83(1)(a) as the petition lacks concise statement of material facts on which the petitioner realises. (c) There has been non-compliance of Section 83(1) (c) with regard to verification. (d) There has been non-compliance of sub-section 2 of Section 83 of the Act. (e) That neither the schedule nor the petition has been signed by the petitioner in the manner prescribed under law. (f) That the copy of the petition supplied to the respondent is not true copy. (g) That the document at S.No. 6, as contained in Form-B page 31 has not been supplied to the respondent. (h) That the copies have been signed by the Advocate who could not sign under law. (f) That the copy of the petition supplied to the respondent is not true copy. (g) That the document at S.No. 6, as contained in Form-B page 31 has not been supplied to the respondent. (h) That the copies have been signed by the Advocate who could not sign under law. (i) Taking into consideration the averments made in para-2 of the petition to the effect that "after the counting of votes, the result of election was declared by the Returning Officer on 2.2.1998 and the candidates were shown to have secured the votes as follows..." the petition is time barred. (j) That the petitioner has put certain documents in an envelope without referring to these documents in the petition and without complying with the provisions of law with regard to the verification, attestation and supplying copy to the respondent and hence these papers are mere waste papers and do not help the petitioner at all and are required to be rejected. (k) That the petitioner has not placed any receipt of security of Rs. 2,000/- as is required under Section 117 of the Act and the same receipt or copy thereof is not supplied to the respondent, as such there is non-compliance of Section 117 of the Act and under sub-section 1 of Section 86 the petition is liable to be dismissed. All the Annexures and schedules are integral part of the petition." 9-A. Seven preliminary Issues were framed on the above preliminary objections. By a detailed order dated 3rd August, 1998, all these preliminary issues were disposed of and it was held that the petition does not suffer from any fatal defect so as to entail its dismissal at the threshold, nor is there any non-compliance of the provisions contained in Sections 81 and 117 of the Act. 10. On merits it has been denied that the nomination paper of the said Shri Nikka Ram was wrongly and improperly accepted by the Returning Officer. It has also been controverted that the said nomination paper, has been wrongly accepted and that such acceptance has materially affected the result of the election in so far as it concerns the election of the Returned candidate. It has been denied that said Shri Nikka Ram was disqualified. It has also been controverted that the said nomination paper, has been wrongly accepted and that such acceptance has materially affected the result of the election in so far as it concerns the election of the Returned candidate. It has been denied that said Shri Nikka Ram was disqualified. It has been further stated that it is wrong to say that he was holding any office of profit under the Government of Himachal Pradesh on the date of filing the nomination paper and on the day of scrutiny. It has been denied that Shri Nikka Ram was working as a Junior Engineer in the Irrigation and Public Health Department or that he was posted in the office of the Superintending Engineer Irrigation and Public Health Department, Rampur. Singnificantly, in the very next breath, written statement contains the plea that above facts are neither admitted nor are the same in the knowledge of the respondent. It has been denied that Article 191 of the Constitution and Section 36 of the Act are applicable in the present case. 11. In so far as the facts contained in paras 4 and 5 of the Election Petition are concerned, the same have also been denied in the written statement. It has been denied that Shri Nikka Ram was active or otherwise worker of R.S.S. and was closely associated with cadre and workers of R.S.S. and B.J. P. It has been denied that he actively participated in the programme of both these organisations. All the other material facts have also been denied but it has been admitted that Shri Joginder Singh had filed the objections against the nomination papers of Nikka Ram. At the same time it has been stated that despite being asked to prove his assertion, as contained in the said objections, he could not do so. 12. The stand taken in the written statement is that one Shri Lal Singh was present at the time of scrutiny and opposed the objections raised by Shri Joginder Singh to the nomination paper of Nikka Ram on behalf of the petitioner. Said Lai Singh had stated before the Returning Officer that Shri Nikka Ram was not in Government service. It has further been admitted that an affidavit was filed by Joginder Singh but it has been stated that the same was not accepted by the Returning Officer. Said Lai Singh had stated before the Returning Officer that Shri Nikka Ram was not in Government service. It has further been admitted that an affidavit was filed by Joginder Singh but it has been stated that the same was not accepted by the Returning Officer. According to the written statement, in the absence of evidence that Nikka Ram was still in service, the Returning Officer has no option but to accept his nomination paper and the same was rightly done. 13. As regards the facts contained in para 5 of the Election Petition it has been stated in the written statement that it is wrong that mere margin of votes would determine or would be relevant to determine that the result of election has been materially affected. It has also been denied that the plank of campaign of Nikka Ram was to ask for votes in the name of Shri Atal Behari Bajpayee or that the votes given to him would be votes in favour of the latter. On these pleadings the respondent has prayed for dismissal of the Election Petition, in his written statement. 14. The petitioner has filed replication controverting the stand taken in the written statement and reiterating his case as set-up in the Election Petition. 15. On the pleadings of the parties the following Issues have been framed: "1. Whether the nomination paper of Shri Nikka Ram was improperly and wrongfully accepted by the Returning Officer? OPP 2. If issue No. 1 is proved in favour of the petitioner, whether the result of the election has been materially affected so far as it concerns the election of the respondent? OPP 3. Whether Shri Nikka Rarn was holding an office of profit under the Government of Himachal Pradesh and was disqualified for being chosen as member of Himachal Pradesh Legislative Assembly? OPP 4. Whether Shri Nikka Ram was an active member of the Rashtriya Swayam Sewak Sangh (R.S.S.), as alleged, if so its effect? OPP 5. Relief." 16. Before taking up the discussion of the case issue wise, it would be appropriate to give a brief resume of the evidence led by the parties. 17. The petitioner has examined himself as P.W. 1. He has stated that he knows Nikka Ram who also contested the election as an independent candidate and secured 2287 votes. OPP 5. Relief." 16. Before taking up the discussion of the case issue wise, it would be appropriate to give a brief resume of the evidence led by the parties. 17. The petitioner has examined himself as P.W. 1. He has stated that he knows Nikka Ram who also contested the election as an independent candidate and secured 2287 votes. As per PW 1, said Nikka Ram was a Government employee working as Junior Engineer in the LP.H. Department. He has further stated that at the time of the scrutiny which was held on 5.2.1998, on his behalf Joginder Singh had raised an objection to the nomination of Nikka Ram in writing, in the presence of Tek Chand respondent, Lai Singh, said Nikka Ram and a few other persons. The objection was to the effect that Nikka Ram had not resigned and continued to be a Government employee, thus he could not contest the election. According to PW 1, the Returning Officer however, did not care to the objections and accepted the nomination paper of Nikka Ram illegally. 18. P.W. 1 has stated that Nikka Ram has connection with the R.S.S. and was also associated with the B.J.P. He was equally interested in getting the ticket for the Nachan Contituency, but since he was denied the ticket, he revolted and contested as an independent. PW 1 has stated that Nikka Ram had sent a number of greeting cards to several persons, including the petitioner. The card which the latter received from Nikka Ram has been produced in evidence as Ex. PW1/ 1 subject to the objection of the learned Counsel opposite. PW 1 has further stated that Nikka Ram had canvassed for votes in the name of B. J.P. as also in the name of Shri Atal Behari Vajpayee. He misled the people by telling them that he will join the said party after the elections. In this manner, some of the workers of the petitioner and other persons were persuaded to join Nikka Ram. According to PW 1, had Nikka Ram not contested the election, he i.e. the petitioner had a very fair chance to get elected as the votes which were to be polled in favour of the petitioner were taken away from him by Nikka Ram. 19. In cross-examination PW 1 has stated that Nikka Ram was posted in Pooh area till he filed the nomination. 19. In cross-examination PW 1 has stated that Nikka Ram was posted in Pooh area till he filed the nomination. It has been admitted by PW 1 that Nikka Ram had given an affidavit before the Returning Officer that he is no longer in the employment of the Government and his nomination paper was accepted on that account. He has also admitted that the Returning Officer had asked him to give proof of the fact that Nikka Ram was in Government employment but it was not possible to produce any such proof during the very short period of two hours which was allowed by the Returning Officer. It has further been stated by PW 1 in his cross-examination that the card Ex. PW 1/1 was received by him through post, 20. PW 2 Shri Rajinder Singh. Naib Tehsildar (Election), District Election Office, Mandi, produced summoned record and also had brought the nomination papers of the candidates who had contested the Assembly Election from Nachan Constituency. On the basis of the original documents produced by this witness copy of the nomination paper of Nikka Ram has been taken in evidence as Ex. PW 2/1. Similarly, the objections raised in respect of the nomination of Nikka Ram have been produced by this witness, copy of which is Ex. PW 2/2. In the same manner, copy of the affidavit in support of these objections has been taken on record as Ex. PW 2/3, In cross-examination this witness has been confronted wth the affidavit of Nikka Ram on the basis of which copy of the same has been taken on record as Ex.PW 2/R1. 21. PW 3, Shri H.K. Anand, Superintending Engineer, Irrigation and Public Health, Rampur Bushehar, has deposed that he know Nikka Ram who is a Junior Engineer in their Department. According to PW 3, who also brought the summoned record, Nikka Ram had applied for premature retirement vide his application Ex, PW 3/1, to which areply was sent which is Ex. PW 3/2. This witness has also proved the letter Ex. PW 3/3, purported to have been written by him. He has categorically stated that the resignation sent by Nikka Ram has not so far been accepted. 22. In cross-examination this witness has stated that the letter of resignation of Nikka Ram was diarised in their Department on 16.12.1994. The Department had written a letter to Nikka Ram Ex. PW 3/3, purported to have been written by him. He has categorically stated that the resignation sent by Nikka Ram has not so far been accepted. 22. In cross-examination this witness has stated that the letter of resignation of Nikka Ram was diarised in their Department on 16.12.1994. The Department had written a letter to Nikka Ram Ex. PW 3/R1 intimating that the resignation had not been accepted. Even earlier, he was informed by letter Ex. PW 3/R2, which was written to the Executive Engineer, with copy to Nikka Ram and is dated 29.12.1994. According to PW 3, a departmental inquiry against Nikka Ram has taken place and the Department had been writing to him off and on in this respect. PW 3 has further stated that the resignation was not accepted for want of certain formalities, namely, Nikka Ram did not hand over the charge of his office and also that there was a departmental inquiry pending against him. PW 3 has produced the report of the Executive Engineer to the effect that the charge was not handed over by Nikka Ram which is Ex. PW 3/R3. According to PW 3, the departmental inquiry was initiated against Nikka Ram on 8.12.1996. He also stated that he has in his record letter dated 2nd April, 1998, intimating that the resignation cannot be accepted. 23. PW 4, Ranvir Singh, has stated that he knows Nikka Ram and has filled up his membership form for BJP. He has produced the original form on the basis of which copy thereof has been admitted in evidence as Ex. PW 4/1. He has further stated that entries to this effect had also been made in the register. 24. PW 5, Ram Swarup, stated that he is the General Secretary of B.J.P., District Mandi, and knows both the petitioner Dile Ram as well as Nikka Ram, whom he knows being the General Secretary of the party for the last four years. According to PW 5, Nikka Ram is one of the activists of the B.J.P. and belongs to Nachan. He was aspiring for the B.J.P. ticket from that Constituency and he sent a lot of deputations for getting the ticket. PW 5 has further stated that no formal application is needed for seeking ticket. According to PW 5, Nikka Ram is one of the activists of the B.J.P. and belongs to Nachan. He was aspiring for the B.J.P. ticket from that Constituency and he sent a lot of deputations for getting the ticket. PW 5 has further stated that no formal application is needed for seeking ticket. According to this witness, he is associated with R.S.S. so also Nikka Ram who had undergone training in the camp of R.S.S. 25. In cross-examination this witness has stated that they have a list of the membership of the B.J.P. and the name of Nikka Ram appears in it. The same was received from Mandi Mandal, as is the usual practice. PW 5 has stated that the membership has not been conferred upon him. He has further stated that Nikka Ram used to participate in all the programmes and functions of the B.J.P. Both this witness and Nikka Ram were in each others company on several such occasions. PW 5 has stated that in the last parliamentary elections Nikka Ram used to associate hmself actively with the election campaign of B.J.P. candidate. PW 5 has further stated that Nikka Ram has been taking deputations to meet Mr. Modi, Mr. Shanta Kumar and several other leaders. This witness lastly stated that he had undergone training of the R.S.S. Camp in 1987. 26. PW 6, Joginder Singh, is the witness who had objected to the nomination filed by Nikka Ram before the Returning Officer who, however, directed him to produce evidence to the effect that Nikka Ram was in active service. PW 6 has stated that an affidavit was also filed by him on the same day in support of his objection which is Ex. PW 2/3. According to him, the time granted was too short to find out and place such evidence on record. PW 6 has stated that Nikka Ram was associated with the activities of R.S.S. as well as B.J.P. In one such camp of R.S.S. held in the recent past, Nikka Ram had been attending the activities of the said camp regularly. 27. PW 6 has further stated that Nikka Ram being associated with the activities of the Sangh and the B.J.P., he had been requesting and canvassing for votes in his favour. This witness has identified the signatures of the concerned bank officials and also deposed that the signatures encircled red on Ex. 27. PW 6 has further stated that Nikka Ram being associated with the activities of the Sangh and the B.J.P., he had been requesting and canvassing for votes in his favour. This witness has identified the signatures of the concerned bank officials and also deposed that the signatures encircled red on Ex. PW 1/1 are those of Nikka Ram. 28. In cross-examination PW 6 has stated that the Superintending Engineer had informed this witness telephonically that the resignation of Nikka Ram had not been accepted. In the concluding portion of his cross-examination this witness has deposed that Nikka Ram had requested him over the telephone as well as met him personally asking this witness to vote for him. He has further stated that Nikka Ram requested for votes from the family of this witness, Chamaru Ram and Nandu Ram. 29. P.W. 7, Shri Nand Lal, has stated that he is associated with the B.J.P. and was the Vice-President of the Mandal till 1997. He states that he knows both. the petitioner and respondent as well as Nikka Ram who used to come and meet him with the request to vote for B.J.P. According to P.W. 7, Nikka Ram had contested the recent Assembly election and had also sent this witness one greeting card. He met this witness several times during the election and gave out that he was also a candidate of the B.J.P., therefore, vote should be given to him. When he was unable to get the ticket, he again met this witness and told that he was the worker of the B.J.P., therefore, the votes should be given to him. According to P.W. 7, Nikka Ram also gave a feast in his village where the workers of the B.J.P. were also called. He claimed himself to be the man of Shri Atal Behari Vajpayee and solicited votes on the ground that he belongs to the party. According to P.W. 7, this influenced the people of the Constituency. 30. P.W. 8, Shri Uma Datt, stated that he knows the petitioner, the respondent and Nikka Ram who was a Junior Engineer in his Circle. He claimed himself to be the man of Shri Atal Behari Vajpayee and solicited votes on the ground that he belongs to the party. According to P.W. 7, this influenced the people of the Constituency. 30. P.W. 8, Shri Uma Datt, stated that he knows the petitioner, the respondent and Nikka Ram who was a Junior Engineer in his Circle. P.W. 8 has stated that he has known and seen Nikka Ram as an active member of the B.J.P. and also contested the Assembly election and prayed them to vote for him on the ground that he belongs to the party and he has been a worker. If he wins, he will formally join the party. 31. P.W. 9, Shri Prem Chaudhary, has also stated as knowing both the parties as well as Nikka Ram who belongs to R.S.S. This witness received a greeting card from Nikka Ram and has stated that he also belonged to R.S.S. and is an activist of the B.J.P. This witness has stated that Nikka Ram has contested the Assembly election and during electioneering he was soliciting votes being member of the B.J.P. In cross-examination this witness has stated that he also helped Nikka Ram during election as he was one of them. 32. The last witness examined on behalf of the petitioner is Shri Dhameshwar Dutt (P.W. 10) who stated that he is the Pradhan of Jhungi Gram Panchayat since 1993. He claimed that he knew all the candidates who contested the Assembly election from Nachan Constituency, including Nikka Ram. The latter deputed him during the election. A meeting was held in the Panchayat in which this witness was the Pradhan. In that meeting Nikka Ram said that he belongs to B.J.P. and is a follower of Shri Atal Behari Vajpayee. This speech made by Nikka Ram had its impact on the members of the Panchayat. In cross-examination he has stated that there are 1400 voters in the area of Gram Panchayat, Jhungi. This witness stated that he supported Nikka Ram in the election and also asked several persons to vote for him, including S/Shri Moti Ram, Dola Ram, Devinder Kumar and others. 33. The respondent in turn has examined Shri K.D. Lakhanpal (RW 1), S.D.O. (C) Lauhal and Spiti at Keylong. This witness stated that he was the Returning Officer for 61-Nachan Assembly Constituency during the General Vidhan Sabha elections held in 1998. 33. The respondent in turn has examined Shri K.D. Lakhanpal (RW 1), S.D.O. (C) Lauhal and Spiti at Keylong. This witness stated that he was the Returning Officer for 61-Nachan Assembly Constituency during the General Vidhan Sabha elections held in 1998. One of the candidates in the election to this constituency was Nikka Ram as an independent candidate. On behalf of the petitioner, one Joginder Singh son of Shri Paras Ram had raised an objection to the nomination paper of Nikka Ram. RW 1 had scrutinized the nomination paper at about 11.00 a.m. on 5.2.1998 and as per his record an objection to the nomination paper of Nikka Ram was raised by Joginder Singh at 12.15 p.m. RW 1 had required Joginder Singh to prove his objection by 3.00 p.m. on that very day. According to him, the precise objection of Joginder Singh to the nomination paper of Nikka Ram was that the latter was in Government service, which was denied by Nikka Ram who in turn had submitted an affidavit deposing that he was no longer in Government service. Since the objector failed to furnish any proof even though RW 1 waited for him for this purpose upto 6.25 p.m., and since no extension of time was asked beyond that, RW 1 accepted the nomination paper of Nikka Ram by rejecting the objection of Joginder Singh on the ground of lack of proof. Exts. R-l and R-2 are the certified copies of the lists of polling agents and the counting agents respectively of Shri Nikka Ram, admitted in evidence subject to objection of the opposite side on the ground of admissibility. 34. In cross-examination this witness deposed that he has brought the original affidavit of Joginder Singh attested copy of which is Ex. PW 2/3. RW 1 has admitted that objection of Joginder Singh was that Nikka Ram was still in Government service as a Junior Engineer in the Irrigation and Public Health Department. RW 1 further stated in cross-examination that he had asked Nikka Ram to furnish acceptance of resignation or of voluntary retirement in response to which he had only furnished an application addressed to the Superintending Engineer I.P.H. Department, Rampur, dated 5.12.1994 to the effect that he wanted to seek voluntary retirement. RW 1 further stated in cross-examination that he had asked Nikka Ram to furnish acceptance of resignation or of voluntary retirement in response to which he had only furnished an application addressed to the Superintending Engineer I.P.H. Department, Rampur, dated 5.12.1994 to the effect that he wanted to seek voluntary retirement. Nikka Ram had submitted before RW 1 an attested copy of the original application, but admittedly there is no date of attestation, as stated by RW 1. He has denied the suggestion that before rejecting the objection of Joginder Singh, he had not made any inquiry to satisfy himself about it. 35. RW 2 is Shri Tek Chand, the respondent himself. He has deposed that Nikka Ram had contested the election as an independent candidate. At that time he used to say that although he was earlier in service but he had left the same four years earlier. According to RW 2, both Nikka Ram and he belong to the same Panchayat, namely, Chhatar Panchayat. Nikka Rams wife Smt. Rajkumari is the Pradhan of the said Gram Panchayat. RW 2 has stated that prior to the election, Shri Nikka Ram was engaged in the business of kilns. During the election he had been canvassing for votes as an independent candidate and not appealed for votes on behalf of any political party, nor was he a member of any such party. In cross-examination he has admitted that while being an M.L.A. from 1985 to 1990 he had not been instrumental in getting any college started in his Constituency. He has further admitted that Nikka Ram remained posted as Junior Engineer in the Irrigation and Public Health Department at Sundernagar but has denied the suggestion that he was an active worker of the R.S.S. He has also denied that he had been instrumental in getting Nikka Ram transferred from Sundernagar to Haripur Dhar on account of his being an active worker of the R.S.S. RW 2 has stated in cross-examination that Nikka Ram had not shown him any written proof or document in support of his claim that he was no longer in Government service at the time when he filed his nomination paper for 1998 Assembly elections and that he had also not personally informed RW 2 about having left service. The respondent as RW 2 has further stated that he had not sought any confirmation from the I.P.H. Department as to whether Shri Nikka Ram was still in Government service or not. RW 2 has admitted that he has no personal knowledge as to ,on what grounds Shri Nikka Ram was canvassing for votes, nor he has any knowledge whether Nikka Ram had applied for B.J.P. ticket to contest 1998 elections. He immediately again said that in fact Nikka Ram had not so applied. 36. RW 2 has denied the suggestion that the family members of Nikka Ram, including his wife, are active B.J.P. supporters; that while canvassing for votes Nikka Ram had been saying that he is a B.J.P. worker and an active R.S.S. supporter and that his leader is Shri Atal Behari Vajpayee and that if elected he would support the B.J.P. that on account of this propaganda by Nikka Ram the votes of B.J.P. supporters which would, in normal course, have been polled by the petitioner were polled by Nikka Ram. Towards the close of his cross-examination RW 2 has denied the further suggestion, namely, that in case the nomination paper of Nikka Ram had not been accepted the petitioner would have been successful from Nachan Assembly Constituency in the 1998 Assembly elections and that he had put up Nikka Ram as a candidate in the said election by financing him so as to cut into the votes of petitioner Dile Ram. Lastly, he has denied that he did not raise any objection to the nomination paper of Nikka Ram being his dummy candidate. 37. RW 3 Shri Raju, RW 4, Shri Hem Raj, RW 5, Smt. Kamla Devi & RW 7, Shri Dharam Dass have been examined by the respondent in order to state that all the four of them had compaigned for Nikka Ram in the Nachan Assembly Constituency, out of whom RW 3 Raju has stated that he had been appointed by Nikka Ram as his Polling Agent at Chacheot Polling Station. Similarly, RW 4 Hem Raj has stated that being a worker of Nikka Ram he was also his Polling Agent at Khanet-II Polling Station. All the four of them have stated that during the election campaign Nikka Ram had not canvassed for votes on account of being an active member of any political party. 38. Similarly, RW 4 Hem Raj has stated that being a worker of Nikka Ram he was also his Polling Agent at Khanet-II Polling Station. All the four of them have stated that during the election campaign Nikka Ram had not canvassed for votes on account of being an active member of any political party. 38. During the course of his cross-examination Shri Hem Raj (RW 4) has stated that during the election campaign he had pasted posters at prominent places in favour of Nikka Ram and has deposed that Ex. RW 4/1 to Ex. RW 4/5 are such posters and hand-bills which are pasted in support of the election campaign of Nikka Ram. It may be stated that the production of these posters and hand-bills in evidence has been objected to by the petitioner on the ground of mode of proof. 39. RW 6, Shri Charan Dass, has stated that he knows Nikka Ram who had visited his village during the 1998 Assembly elections and had asked for votes by saying that he was a person from the same Constituency and that he would give a better account if elected than the petitioner and the respondent. According to RW 6, Nikka Ram had put in himself as an independent candidate. He had not canvassed for votes in the name of B.J.P. nor he proclaimed that in case being elected he would join B.J.P., or that his leader was Shri Atal Behari Vajpayee. Somewhat similar is the statements of Shri Dayal Singh (RW 8) and Shri Nand Lal (RW 9). 40. Shri Lal Singh (RW 10) has stated that he was the election agent of the respondent and was present at the time of scrutiny of the nomination paper. Objections were raised on behalf of the petitioner. The Returning Officer asked the objector to furnish proof in support of the objections, for which they sought time but since no proof was received by the Returning Officr till 6.00 p.m., he accepted the nomination paper as valid. According to RW 10, he knows Nikka Ram who was an independent candidate in that election and had asked for the vote of this witness as an independent candidate and had not asked for support as a candidate of any political party. In cross-examination this witness has admitted that Nikka Ram had remained posted as a Junior Engineer in the IPH Department at Sundernagar. In cross-examination this witness has admitted that Nikka Ram had remained posted as a Junior Engineer in the IPH Department at Sundernagar. He has also stated that since both of them were known intimately to each other, they were on good terms. He has also stated that Nikka Ram had not shown this witness any document or writing as to whether he had sought voluntary retirement from service or had resigned from service. 41. Shri Hem Raj (RW 11) has deposed that he was working for Nikka Ram as also his counting agent during his election. He used to accompany Nikka Ram and others from village to village during his campaign. According to this witness, Nikka Ram had not asked for votes in the name of any political party nor in his presence he had stated that in case being elected he would join any political party. However, in cross-examination this witness has admitted that Nikka Ram is his relation. He has expressed ignorance of the fact that if before the said election whether Nikka Ram was a R.S.S. activist. He also does not know whether Nikka Ram was supporting any political party before the election. He has stated that Nikka Ram might have been voting or supporting the B.J.P. prior to the Assembly elections in question. In the concluding portion of his cross-examination this witness has contradicted himself by admitting that on being denied the ticket by the B.J.P. to which he was aspirant, Nikka Ram contested the election as an independent candidate. 42. RW 12, Shankar Dass, has deposed that he was the Counting Agent of Nikka Ram during the Assembly elections. 43. RW 13, Gauri Datt, has stated that Nikka Ram had come to him during the 1998 Assembly elections and requested for his vote and support. This witness accompanied Nikka Ram for canvassing in his favour at a few places. 44. In the light of the above evidence of the parties, the discussion of the case issue wise is now taken up as follows: Issue No. 1 and 3. 45. Both these issues being inter-connected, are being taken up together. This witness accompanied Nikka Ram for canvassing in his favour at a few places. 44. In the light of the above evidence of the parties, the discussion of the case issue wise is now taken up as follows: Issue No. 1 and 3. 45. Both these issues being inter-connected, are being taken up together. With reference to Issue No. 1 Section 100(l)(d) provides that if the High Court is of opinion that the result of the election in so far as it concerns the returned candidate has been materially affected, by the improper acceptance of any nomination, it shall declare the election of the returned candidate to be void. The case of the petitioner as spelt out above is that one of the candidates for the 61-Nachan (S.C.) Assembly Constituency in the election was Nikka Ram who was in service of the State Government, being a Junior Engineer in the Irrigation and Public Health Department. In other words, he was disqualified from contesting the election in view of the bar created under Article 191 (l)(a) of the Constitution of India inasmuch as he was holding an office of profit under the Government of the State of Himachal Pradesh as envisaged in the said provision. 46. In order to support the above ground the petitioner has appeared in support of his petition as PW 1 and has categorically stated that said Nikka Ram was a Government employee working as a Junior Engineer in the I.P.H. Department. He has also specifically stated that at the time of scrutiny of the nomination papers held on 5.2.1998 an objection in writing was raised to the nomination paper of Nikka Ram, on the ground, being a Government employee, and not having resigned, he could not contest the election but the Returning Officer did not care about it and accepted the nomination paper of Nikka Ram illegally. The petitioner has also stated as PW 1 that although respondent Tek Chand along with Lal Singh were present at that time, they raised no objection. 47. The matter does not rest there. PW 6 Joginder Singh has stated on oath that Nikka Ram was Junior Engineer in I.P.H. Department and he had objected to the nomination filed by him. The Returning Officer had directed him to produce evidence to that effect, for which he had filed his affidavit on the same day which is Ex. 47. The matter does not rest there. PW 6 Joginder Singh has stated on oath that Nikka Ram was Junior Engineer in I.P.H. Department and he had objected to the nomination filed by him. The Returning Officer had directed him to produce evidence to that effect, for which he had filed his affidavit on the same day which is Ex. PW 2/3 on the record. 48. The statements of these two witnesses in so far as this aspect of the case is concerned, have been corroborated by PW 2 Rajinder Singh, Naib Tehsildar (Election). District Election Officer, Mandi, who produced the summoned record, along with the nomination papers of the candidates who had contested the Assembly election from 61-Nachan (S.C.) Assembly Constituency. Nomination paper of Nikka Ram is Ex. PW 2/1 on the record and the objections to his candidature and nomination are Ex. PW 2/2. The affidavit filed in support of the application by PW 6 Joginder Singh is Ex. PW 2/3. 49. In this connection the statement of RW 1, Shri K.D. Lakhanpal is also relevant. He was the Returning Officer in the said election. As per his statement one of the candidates for the election to the 61-Nachan (S.C.) Assembly Constituency was Nikka Ram, being an independent candidate. Joginder Singh son of Shri Paras Ram (PW 6) has raised an objection to his nomination paper which was scrutinized at about 11.00 a.m. on 5.2.1998 by RW 1, who has stated that the precise objection of Joginder Singh was that Nikka Ram was in Government service. According to RW 1, since the objector failed to furnish any proof in support of his objection by 3.00 p.m. as required and he even waited for him upto 6.25 p.m., since no such proof was produced before him and since no extension of time was asked on behalf of the objector, RW 1 had accepted the nomination paper of Nikka Ram by rejecting the objection of Joginder Singh on the ground of lack of proof. 50. As regards the documentary evidence on this aspect, Ex. PW 2/1 contains the brief order of the Returning Officer dated 5.2.1998 at the bottom of the said document which is as follows : "I have examined this nomination paper in accordance with Section 36 of the Representation of the People Act, 1951, and decide as follows : Sr. No. 7 Nomination paper of Sh. PW 2/1 contains the brief order of the Returning Officer dated 5.2.1998 at the bottom of the said document which is as follows : "I have examined this nomination paper in accordance with Section 36 of the Representation of the People Act, 1951, and decide as follows : Sr. No. 7 Nomination paper of Sh. Nikka Ram after hearing the objections and giving adequate time by adjournment upto 6.25 p.m. is found valid and accepted as the objector Shri Joginder Singh could not substantiate his objection by providing authentic proof in support thereof." 51. Ex. PW 2/2 is the objection in writing raised by said Joginder Singh (PW 6) to the nomination paper of Nikka Ram. It has been mentioned therein that he is Junior Engineer and posted in the office of the Superintending Engineer, I.P.H. Circle Rampur, in I.P.H. Division, Pooh and his resignation has not been yet accepted and being a Government employee, no one can apply for the candidature of Assembly Constituency. It has further been mentioned in the said objection application Ex. PW 2/2 that the resignation of Nikka Ram has not been yet accepted and still he is a Government employee in the official record, without "submitting any acceptance letter or resignation and official clearance, his candidature cannot be held proper and he is not entitled to contest any election. Ex. PW 2/ 3 is the affidavit of said Shri Joginder Singh in support of the said objection. 52. It is manifest from the statement of PW 3, Shri H.K. Anand, Superintending Engineer, Irrigation and Public Health Rampur, that Nikka Ram is the Junior Engineer in their Department. He had applied for premature retirement vide Ex. PW 3/1, to which a reply was sent by the Department vide Ex. PW 3/2. This witness has also proved the letter written by him vide Ex. PW 3/3 and has stated that the resignation sent by Nikka Ram has not so far been accepted. 53. The cross-examination of this witness makes it abundantly clear that a departmental inquiry was pending against Nikka Ram and they had been writing to him off and on in this respect. PW 3 also stated in cross-examination that he had brought the record of the departmental inquiry. He has stated that his department had written a letter to Nikka Ram Ex. PW 3/R1 intimating that the resignation has not been accepted. PW 3 also stated in cross-examination that he had brought the record of the departmental inquiry. He has stated that his department had written a letter to Nikka Ram Ex. PW 3/R1 intimating that the resignation has not been accepted. Earlier also, he was informed by letter Ex. PW 3/R2, original of which was written to Executive Engineer with a copy to Nikka Ram and the same is dated 29.12.1994. In the later part of the cross-examination PW 3 has stated that the resignation was not accepted for want of certain formalities, namely, he did not hand over the charge and there was a departmental inquiry pending against him. PW 3 further stated in cross-examination that he had brought the report of the Executive Engineer to the effect that the charge was not handed over and the said report is Ex. PW 3/R3. As per PW 3, the departmental inquiry was initiated against Nikka Ram on 8.12.1996. The department has been asking him to clarify certain things and in this connection there is on the record letter dated 2.4.1998 that resignation cannot be accepted. 54. As against the above pleadings and evidence of the petitioner, the case of the respondent is of a mere denial about the fact that Shri Nikka Ram was working as a Junior Engineer in the IPH Department or that he was posted in the office of the Superintending Engineer of the said Department at Rampur. Not only that, the written statement contained the plea that the above facts are neither admitted nor are the same in the knowledge of the respondent. In other words, the respondent has not been able to specifically deny the categorical assertion of the petitioner that Nikka Ram was disqualified from contesting the election on account of being an employee of the State Government. 55. In so far as the evidence of the respondent on this aspect is concerned, the respondent, Tek Chand, while appearing as RW 2 has not said a word controverting the fact that Nikka Ram was in Government service at the time of filing the nomination paper. All that he has said is that at the time of contesting the election Nikka Ram used to say that although he was earlier in service but he had left the same four years earlier. All that he has said is that at the time of contesting the election Nikka Ram used to say that although he was earlier in service but he had left the same four years earlier. In his cross-examination he has admitted that Nikka Ram remained posted as Junior Engineer in the I.P.H. Department at Sundernagar. He has also stated that Nikka Ram had not shown him any written proof or document in support of his claim that he was no longer in service at the time when he filed his nomination paper. He was also not informed about Nikka Ram having left service. 56. Apart from the above glaring omission and failure of the respondent to controvert the pleadings and evidence of the petitioner with regard to Nikka Ram being in Government service at the relevant time, there is no sugestion put to the petitioner Dile Ram in his statement as PW 1 while being cross-examined that Nikka Ram was not in Government service and that the petitioner was wrong to depose to the contrary. As far as petitioners case is concerned, apart from the oral evidence produced by him in this behalf, the objection raised to the nomination of Nikka Ram Ex. PW 2/2 and affidavit in support thereof Ex. PW 2/3 are clear indicators of the veracity of the case set up by the petitioner at the very threshold with regard to the eligibility or to put it in other words, disqualification of said Nikka Ram to contest the election. As against this documentary evidence, there is only self-serving affidavit of Nikka Ram Ex. PW 2/R1. It has been deposed therein that Nikka Ram had served notice on his employer seeking voluntary retirement and that since during the period of the said notice served in terms of Pension Rule 48-A(2) proviso, the employer did not refuse to grant permission for retirement, the retirement had become effective. 57. The petitioners case does not rest here only. Ex. PW 3/ Rl is office order of the I.P.H. Department purported to be signed by the Superintending Engineer, Rampur Circle, District Shimla, dated 18.12.1996. It speaks of an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, being held against Nikka Ram, Junior Engineer. By the said office order one Om Prakash Chauhan, Executive Engineer, I.P.H. Division, Pooh, was appointed as the Inquiring Authority. It speaks of an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, being held against Nikka Ram, Junior Engineer. By the said office order one Om Prakash Chauhan, Executive Engineer, I.P.H. Division, Pooh, was appointed as the Inquiring Authority. It is pertinent to mention that a copy of the said office order was endorsed to Nikka Ram, as mentioned therein. 58. Ex. PW 3/R2 is letter dated 29.12.1994 from the Superintending Engineer, I.P.H. Circle Rampur, to the Executive Engineer, I.P.H. Division, Pooh, District Kinnaur, on the subject of the application for voluntary retirement submitted by Nikka Ram. It is stated in the said letter that before further action in the matter is taken the Executive Engineer has been requested to examine the case properly, as required under the Rules and send demand/ no demand certificate as well as clearance certificate along with his comments for taking further necessary action. As indicated in that letter, copy of the same has been endorsed to Nikka Ram. 59. Ex. PW 3/R-3 is another letter dated 2nd April, 1998, from the Superintending Engineer, Rampur Circle, directly addressed to Nikka Ram at his home address. It has been specifically stated therein that voluntary retirement as sought by him by his letter dated 5.12.1994 with effect from 28.2.1995 with five years benefit after the completion of twenty years service cannot be accepted (emphasis supplied). The reason for this non-acceptance, as contained in the said letter, is that the total length of his service has been counted as 19 years 10 months and 6 days which is less than 20 years, which is the requirement i.e. completion of twenty years qualifying service under Rule 18-A(1) of the Pension Rules. Additionally, the said letter states that the Executive Engineer, I.P.H. Division, Pooh, has intimated that the Executive Engineer, I.P.H. Division Sundernagar, has informed vide his letter dated 31.1.1998 that Nikka Ram has not handed over complete charge of Rohanda Section as well as some other record on his transfer from that Division to I.P.H. Division, Pooh. 60. Ex. PW 3/2 is a letter dated 26.3.1998 from the Superintending Engineer, I.P.H. Circle Rampur, to the petitioner Dile Ram in reply to his letter dated 25.3.1998. 60. Ex. PW 3/2 is a letter dated 26.3.1998 from the Superintending Engineer, I.P.H. Circle Rampur, to the petitioner Dile Ram in reply to his letter dated 25.3.1998. It is stated therein that Nikka Ram Junior Engineer in the Department at Pooh Division had applied for voluntary retirement but the matter concerning his voluntary retirement has not been finalized due to some departmental formalities and his request for voluntary retirement has not been accepted till date. 61. Ex. PW 3/3 is another letter from the same office dated 7.8.1998 addressed to Dile Ram petitioner with reference to his application dated 6.8.1998. After giving various details of the departmental formalities and hurdles in the way of the voluntary retirement, after twenty years, as sought by Nikka Ram, the said letter concludes that his request for voluntary retirement cannot be accepted. 62. During the course of arguments the learned counsel for the parties have in their respective perception invoked Rule 48-A of the Central Civil Services Pension Rules, hereinafter to be referred as the Pension Rules. For facility of reference the relevant part of the said Rule is reproduced as follows: "48- A. Retirement on completion of 20 years qualifying service.— (1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service : Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is— (1) on assignments under the Indian Technical and Economic Co-operation (ITEC) Programme of the Ministry of External Affairs and other aid programmes, (ii) posted abroad in foreign based offices of the Ministries/ Departments, (iii) on a specific contract assignment to a Foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. ………………………………….” On behalf of the returned candidate i.e. the respondent, his learned counsel has vehemently argued that in view of the proviso to sub-rule (2) of Rule 48-A of the Pension Rules, on the assumption that Nikka Rain was a Government servant at the time of filing his nomination paper, since there was no communication to mm from the Appointing Authority refusing to grant permission for retirement within the period specified in the notice in the form of an application dated 5.12.1994, submitted by Nikka Ram seeking voluntary retirement from Government service with effect from 28.2.1995 by giving three months notice, the retirement had become effective from the date of expiry of the said period i.e. 5.2.1995 in terms thereof. On the other hand, it has been submitted by the learned counsel for the petitioner that there is ample proof in the shape of evidence on the record that the permission for voluntary retirement was not granted to Nikka Ram by the Appointing Authority and, therefore, the said proviso to sub-rule (2) of Rule 48-A of the Pension Rules is not applicable. 63. There is force in the submission of the learned counsel for the petitioner. As is clear from the document Ex. PW 3/R1, a departmental inquiry under Rule 14 of the CCS. (CCA.) Rules, 1965, was pending against Nikka Ram towards the end of the year 1996, in view of the date which is borne on the document i.e. 18.12.1996. It is also clear that the pendency of that departmental inquiry was notified to Nikka Ram by endorsing a copy of the said document to him. Further, the document Ex. PW 3/2 dated 29.12.1994 clearly indicates that the case for permission to seek voluntary retirement of Nikka Ram was being processed in the concerned Department. Then there is the clinching evidence in the shape of Ex. Further, the document Ex. PW 3/2 dated 29.12.1994 clearly indicates that the case for permission to seek voluntary retirement of Nikka Ram was being processed in the concerned Department. Then there is the clinching evidence in the shape of Ex. PW 3/R3 dated 2nd April, 1998 which shows that the voluntary retirement as sought by Nikka Ram by his letter dated 5.12,1994 cannot be accepted inasmuch as the total length of his service has been computed as 19 years 10 months and 6 days which is less than 20 years of the qualifying service as required under Rule 18-A(l) of the Pension Rules. The date of this communication i.e. 2.4.1998 is significant for the reason that it is after the date of filing the nomination paper and scrutiny thereof i.e. 5.2,1998. 64. Apart from the above pieces of evidence, there is Ex. PW 3/2, a letter dated 26.3.1998 intimating to the petitioner with reference to his letter dated 25.3.1998 that the matter concerning the voluntary retirement of Nikka Ram has not been finalised due to departmental formalities and thus his request has not been acceded till date. Then again, Ex. PW 3/3 is another letter dated 7.8.1998 whereby the petitioner has been intimated by the concerned Department that the request of Nikka Ram for voluntary retirement cannot be accepted due to departmental formalities and other hurdles in his way. 65. When all this evidence is read together, as indeed it must be so read, there is no other conclusion possible except that although Nikka Ram had applied for voluntary retirement and before the date of contesting the election in question by him i.e. on 5.12.1994, till the date he filed his nomination paper on 5.2.1998, he continued to be in Government service, because his request for voluntary retirement had not been accepted by the Appointing Authority in terms of Rule 48-A of the Pension Rules. Not only that, as is apparent from the evidence on the record referred to above, he was being periodically informed that his request had not been acceded to by the Appointing Authority. Thus, viewed from any angle, the proviso to sub-rule (2) of Rule 48-A of the Pension Rules is not applicable in the case of Nikka Ram as is sought to be argued by the learned Counsel for the respondent. 65. Thus, viewed from any angle, the proviso to sub-rule (2) of Rule 48-A of the Pension Rules is not applicable in the case of Nikka Ram as is sought to be argued by the learned Counsel for the respondent. 65. To sum up the oral testimony of the petitioner Dile Ram as PW 1, Joginder Singh (PW 6) and Rajinder Singh (PW 2), taken along with the documentary evidence already referred to above in detail, clearly goes to show that said Nikka Ram was in Government service at the time he filed his nomination paper on 5.2.1998 for the election in question. That an objection was raised on behalf of the petitioner to his nomination paper is established by the testimony of the petitioner as PW 1, the objector Joginder Singh (PW 6) and Shri K.D. Lakhanpal (RW 1) who is none other than the Returning Officer. 66. The question that now crops up for consideration is whether in view of the above established facts, Nikka Ram was disqualified from contesting the election in terms of Article 191 (l)(a) of the Constitution of India read with Section 36 (2)(a) of the Act. Admittedly, in view of the evidence on the record, Nikka Ram being still in the service of the State Government of Himachal Pradesh on the date of filing the nomination paper by him i.e. 5.2.1998, he was holding an office of profit under the Government of State of Himachal Pradesh in terms of Article 191 (l)(a) of the Constitution of India. It necessarily follows that in view of Section 36(2)(a) of the Act, objection was raised to his nomination paper which was wrongly rejected by the Returning Officer which in turn resulted in the nomination paper being improperly accepted in terms of Section 100 (l)(d)(i) of the Act. 67. In fairness to the learned Counsel for the respondent he has submitted that the status of Nikka Ram as a civil servant cannot be determined by this Court while trying the Election Petition under the Act, which is the domain only of the competent Government or authority or civil court. This argument has only to be noted in order to be rejected. The precise question herein is not the status of Nikka Ram as a civil servant per se. This argument has only to be noted in order to be rejected. The precise question herein is not the status of Nikka Ram as a civil servant per se. What is required to be considered and is being considered is the factum of his being in Government service on the relevant date and being thus disqualified from contesting the election. The answer to the same has to be emphatically in the affirmative. 68. It has next been submitted by the learned Counsel for the respondent that since the disqualification of Nikka Ram on account of being in Government service on the relevant date is linked with the non-compliance of Article 191 (l)(a) of the Constitution, it was mandatory for the petitioner to incorporate in his election petition that there had been non-compliance with the said provision of the Constitution, which has not been done. Reliance for this submission has been placed on the case of S.M. Banerji v. Sri Krishna Agarwal, (A.I.R. 1960 Supreme Court 368). There is no force in this argument also. It has been pleaded in para 3 of the Election Petition that Nikka Ram was holding the office of profit under the Government of Himachal Pradesh on the day of filing his nomination paper and on the day of scrutiny of nomination. Further, the plea is that the Returning Officer ought to have rejected his nomination paper as required under Section 36 (2)(a) of the Act. It has also been pleaded that on the date of scrutiny of nomination paper he was holding office of profit under the Government of Himachal Pradesh and, as such, he was disqualified from contesting the election as provided under Article 191 (l)(a) of the Constitution of India. In view of these specific pleadings one fails to see what more was required to be pleaded to invoke the ground under Section 100 (l)(d) (iv) of the Act on the basis of which the election of the respondent has been challenged in the present case. 69. It would be stating a legal truism to say that the Court has to see the substance and not the form of pleadings while considering whether the cause of action is based on proper pleadings or not. Moreover, it is also established law that the pleadings have to be, read as a whole and not in a compartmentalised manner. 69. It would be stating a legal truism to say that the Court has to see the substance and not the form of pleadings while considering whether the cause of action is based on proper pleadings or not. Moreover, it is also established law that the pleadings have to be, read as a whole and not in a compartmentalised manner. Adopting this yardstick it will be seen that apart from the specific pleadings in para 3 of the petition referred to above, it has been clearly stated in para 5 thereof that by improper and wrong acceptance of nomination paper of Nikka Ram the result of the election has materially been affected so far as it concerns the Returned Candidate, hence it is liable to be declared void and set-aside under Section 100 (l)(d)(i) of the Act. The authority of the Apex Court on which reliance has been placed by the learned Counsel for the respondent is not at all applicable in the present case. Indeed it has been held in that decision that if the ground of non-compliance with the provision of the Constitution or of the Act etc. is taken in substance in the petition, substance being more important than form, the pleadings would not be defective. 70. The concluding part of para 5 of the petition states that by improper and wrong acceptance of nomination papers of Nikka Ram, the result of the election has materially been affected, so far as it concerns the Returned candidate, so the election of the respondent is liable to be declared void and set-aside under Section 100 (1) (d) (i) of the Act. In the face of this specific pleading, one fails to see what more was required to be pleaded by the petitioner. Moreover, it is well settled by now that law has not to be pleaded in a given cause, the material facts on which the said cause is based are mandatory and have to be pleaded. In other words, the cause of a person moving the court comprises a bundle of facts so stated in the pleadings on the basis of which the relief is sought from the Court for infringement of the law of the land and/or the provisions of the Constitution of India. In other words, the cause of a person moving the court comprises a bundle of facts so stated in the pleadings on the basis of which the relief is sought from the Court for infringement of the law of the land and/or the provisions of the Constitution of India. That legal test is fully satisfied in the present case inasmuch as the petitioner has specifically pleaded that on the relevant date Nikka Ram was disqualified from contesting the election, being a Government servant, and thus holding an office of profit and despite objections having been raised before the Returning Officer, his nomination was improperly accepted by the Returning Officer. He has also pleaded that the result of the election in so far as it concerns the Returned candidate i.e. the respondent has been materially affected by the non-compliance of the provision of Article 191 (l)(a) of the Constitution, which in the election petition has been pleaded to the effect that he was disqualified from contesting the election as provided therein, which is substantial compliance in so far as the pleadings are concerned. 71. Before parting with this aspect of the case it would not be out of place to state that resignation from service of the State takes effect only when the same is accepted by the competent/ appointing authority. The law laid down with regard to this proposition is contained in the decision of a Constitution Bench of the Apex Court reported as Union of India etc. v. Gopal Chandra Misra and others, etc. (A.I.R. 1978 S.C. 694 ). It has been laid down in that decision that in the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/ or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the present case, it has been established beyond the pale of doubt that the resignation tendered by Nikka Ram had not been accepted on the date he filed his nomination paper for the election in question and also on the date of scrutiny thereof and the objection raised to his nomination on behalf of the petitioner was wrongly rejected by the Returning Officer. 72. As a result of the above discussion. 72. As a result of the above discussion. I have no hesitation in holding that the nomination paper of Shri Nikka Ram was improperly and wrongfully accepted by the Returning Officer inasmuch as he was holding an office of profit under the Government of Himachal Pradesh on the date of filing his nomination paper as well as on the date of the scrutiny thereof by the Returning Officer and was disqualified for being chosen as a Member of the Himachal Legislative Assembly, Consequently, both these Issues are answered affirmatively in favour of the petitioner. Issues No. 2 and 4 : 73. These two issues are also inter-connected and are thus being taken up together. At the out-set it has to be stated that the onus in so far as Issue No. 2 is concerned, is very heavy on the petitioner and has to be discharged by him not only through specific and proper pleadings but also conclusive evidence. Now it remains to be seen whether he has been able to do so. 74. In para 4 of the petition it has been stated that Nikka Ram was an active worker of the Rashtriya Swayam Sewak Sangh (R.S.S.) and was closely associated with the cadre and workers of R.S.S. and Bhartiya Janta Party (B.J.P.). Though he was in service as J.E. in Himachal Pradesh Government, yet, he actively participated in the programme of R.S.S, and B.J.P. He was well acquainted with the workers, supporters and well-wishers of B.J.P. He also tried to get the B.J.P. ticket to contest the election from 61-Nachan (SC) Assembly Constituency. However, he was not given the ticket and the B.J.P. set-up the petitioner as a candidate from that Constituency. The vote bank of the petitioner as well as that of said Nikka Ram was by and large common as both of them were in contact with B.J.P. and R.S.S. workers (emphasis supplied). It has further been pleaded that feeling frustrated by not finding favour with the B.J.P, High Command and having failed to get the ticket of B.J.P., Nikka Ram filed his nomination paper as an independent candidate only with an object to cut into the votes of the petitioner and damage his chances of election. It has further been pleaded that feeling frustrated by not finding favour with the B.J.P, High Command and having failed to get the ticket of B.J.P., Nikka Ram filed his nomination paper as an independent candidate only with an object to cut into the votes of the petitioner and damage his chances of election. Realising this, on the day of scrutiny of nomination papers, the petitioner asked his proposer Joginder Singh to file objections against the nomination paper of Nikka Ram as he was working as a Junior Engineer in the Irrigation and Public Health Department, Himachal Pradesh, and his resignation had not yet been accepted. Joginder Singh filed written objections against the nomination paper of Nikka Ram. At that time the respondent, along with his counsel Lal Singh, was present, but they did not object to the nomination of Nikka Ram, nor they supported the objections raised on behalf of the petitioner. Rather they advocated that Nikka Ram was not in Government service with a clear idea in mind that on the acceptance of Nikka Rams nomination, he would cut into the votes of the petitioner. It would thus enhance the respondents chances of success. In case Nikka Rams nomination paper was rejected, it would directly be advantageous to the petitioner and would diminish the chances of success of the respondent. 75. In para 5 of the Election Petition it has been stated that by improper acceptance of nomination paper of Nikka Ram the result, of the election in so far as it concerns the Returned Candidate has materially been affected, which is also evident from the fact that Nikka Ram has secured 2287 votes whereas the margin of difference between the votes secured by the Returned Candidate i.e. the respondent and those secured by the petitioner is only 759 votes. It has been pleaded further that the number of votes secured by Nikka Ram is disproportionately large i.e. three times more than the margin of difference between the votes secured by the Returned Candidate and, the votes secured by the petitioner. Had the nomination paper of Nikka Ram been rejected as required by law, the votes polled by him would have definitely been polled in favour of the petitioner as those were pro-BJP and anti-Congress/anti-establishment votes. Had the nomination paper of Nikka Ram been rejected as required by law, the votes polled by him would have definitely been polled in favour of the petitioner as those were pro-BJP and anti-Congress/anti-establishment votes. The pleadings further goes to state that the main plank of the campaign of Nikka Ram was asking for votes in the name of Shri Atal Behari Vajpayee and the votes given to him would be votes to the latter as he being R.S.S. worker would stand by the side of latter after being elected as an M.L.A. 76. The corresponding reply by the respondent to the above pleadings is one of denial. It has been denied that Nikka Ram was active or otherwise worker of R.S.S. and was closely associated with the cadre and workers of R.S.S. and B.J.P. or that he actively participated in the programmes of R.S.S. and B.J.P. It has also been denied that he was well acquainted with the workers, supporters and well-wishers of B.J.P. It has further been denied that he tried to get the B.J.P. ticket to contest the election in question. Singnificantly the alleged denial of the B.J.P. ticket to Nikka Ram has been pleaded to the effect that it is wrong to say that he was not given the ticket and instead of him the petitioner was set-up as a candidate from Nachan Constituency, although it is established on record that the petitioner was the official B.J.P. candidate in the said election. 77. In the reply it has been denied that the vote bank of the petitioner and Nikka Ram was by and large common and they were in contact with the B.J.P. and R.S.S. workers, supporters and well-wishers. It has also been denied that Nikka Ram was feeling frustrated with the High Command having failed to get party ticket, he filed his nomination paper as an independent candidate only with the object to cut into the votes of the petitioner and damage his chances of election. However, it has been admitted that said Joginder Singh filed the objections which were rejected by the Returning Officer. 78. It has been stated in the reply that Shri Lal Singh was present at the time of scrutiny and raised objection to oppose the objections raised by Joginder Singh on behalf of the petitioner and that said Lai Singh had stated that Nikka Ram was not in Government service. 78. It has been stated in the reply that Shri Lal Singh was present at the time of scrutiny and raised objection to oppose the objections raised by Joginder Singh on behalf of the petitioner and that said Lai Singh had stated that Nikka Ram was not in Government service. 79. It would be seen from the pleadings in the Election Petition as well as the reply thereto, that the specific facts pleaded in the former have been merely denied in the latter, without anything more. On the other hand the respondent has taken a contradictory stand in the reply in so far as Nikka Ram being a Government servant at the relevant time is concerned. On the one hand the case of the respondent in the reply is that Nikka Ram was not in Government service at the relevant time, on the other hand reliance has been placed by him on Rule 5 of the Central Civil Services (Conduct) Rules, 1964, and it has been stated in the reply by the respondent that the same applies in the present case and is attracted. This Rule relates to prohibiting a Government servant from being a member of, or be otherwise associated with, any political party or any organisation which takes part in politics. In other words, the respondent is blowing hot and cold in the same breath in view of the contradictory stand taken by him in his reply. 80. Now coming to the evidence on this aspect of the case, the petitioner as PW 1 has stated that Nikka Ram has connection with the R.S.S. and was associated with B.J.P. He has further stated that he was also interested in getting the ticket for the seat, since he was denied the ticket, he revolted and contested as an independent. According to the petitioner, Nikka Ram requested for votes in the name of B.J.P. as well as in the name of Shri Atal Behari Vajpayee. He misled the people by telling them that he will join the party after the elections. Some of the workers of the petitioner and men also were persuaded to join him. According to the petitioner, had Nikka Ram not contested, the petitioner had a very fair chance to get elected as the votes which were to come to him were taken by Nikka Ram. Some of the workers of the petitioner and men also were persuaded to join him. According to the petitioner, had Nikka Ram not contested, the petitioner had a very fair chance to get elected as the votes which were to come to him were taken by Nikka Ram. The above has been culled from the examination-in-chief of the petitioner as PW 1. His cross-examination reveals that although a large number of suggestions have been put to him on behalf of the respondent, but it has nowhere been suggested that Nikka Ram was not in the B.J.P. and that he did not revolt when he was refused the ticket by that party to contest the election in question. Not only that, it has not at all been suggested to PW. 1 that contrary to what has been stated by him in his examination-in-chief, the votes polled by Nikka Ram would not have gone to the petitioner even in the absence of Nikka Ram, being a candidate in the said election. 81. PW 4 Ranvir has stated that he is the President of the B.J.P. of Mandi Sadar. He knows Nikka Ram and had filled up his membership form for B.J.P, On the basis of the original form brought by him, copy of the same has been admitted in evidence as Ex. PW 4/1. He has further stated that entries to that effect have also been made in the register. Here again, there is no suggestion to this witness in cross-examination that Nikka Ram was not a member of the B.J.P. or that he had not applied for membership of the said party. In fact, there is no suggestion to the contrary to this witness to the deposition made by him in examination-in-chief. 82. P.W. 5, Ram Swarup, has stated that he knows Nikka Ram being the General Secretary of the B.J.P., District Mandi, and that Nikka Ram is one of the activists of his party. PW 5 has further stated that Nikka Ram was aspiring for B.J.P. ticket from Nachan Constituency and he sent a lot of deputations for getting the ticket. He has further stated that he and Nikka Ram are associated with the R.S.S. and that the latter had undergone training in the Camp of that organisation. PW 5 has further stated that Nikka Ram was aspiring for B.J.P. ticket from Nachan Constituency and he sent a lot of deputations for getting the ticket. He has further stated that he and Nikka Ram are associated with the R.S.S. and that the latter had undergone training in the Camp of that organisation. No doubt, it has come out in his cross-examination that though Nikka Ram had applied for membership of the B.J.P., the same had not been conferred upon him. At the same time he has stated in cross-examination that Nikka Ram used to participate in all the programmes as well as in the functions of the B.J.P. He has further stated in cross-examination that in the last Parliamentary elections (this witness was examined on 12.10.1998) Nikka Ram used to associate himself actively with the election campaign of the B.J.P. candidate. 83. PW 6, Joginder Singh has stated that Nikka Ram associated himself with the activities of the R.S.S. as well as B.J.P. One Camp of R.S.S. had been held recently and Nikka Ram had been coming regularly in that Camp. According to PW 6, Nikka Ram was associated with the activities of the Sangh and the B.J.P., he was requesting that they should vote for him. There is no suggestion to the contrary in his cross-examination to the above statement made by PW 6. 84. PW 7, Nand Lal, has stated that he was President of Gram Panchayat, Bara, from 1990 to 1995 and has been associated with the B.J.P. According to PW 7, Nikka Ram used to come and meet with the request to vote for B.J.P. During the last elections he met this witness several times and said that he was also a candidate of the B.J.P., therefore, vote should be given to him. PW 7 has stated that when he was unable to get the ticket he again met this witness and told that he was the worker of the B.J.P,, therefore, the votes should be given to him. He claimed himself to be the man of Shri Atal Behari Vajpayee and solicited votes on the ground that he belongs to the party. In cross-examination this witness admitted that he has no proof to the effect that Nikka Ram was an active member of the B.J.P. 85. He claimed himself to be the man of Shri Atal Behari Vajpayee and solicited votes on the ground that he belongs to the party. In cross-examination this witness admitted that he has no proof to the effect that Nikka Ram was an active member of the B.J.P. 85. PW 8 Uma Dutt has stated that he has known and seen Nikka Ram as an active member of the B.J.P., this witness himself being one such member after his retirement from service. There is no suggestion to the contrary in his cross-examination. 86. PW 9, Shri Prem Chaudhary, has stated that Nikka Ram belongs to R.S.S. and both of them so belong and are activists of the B.J.P. According to PW 9, Nikka Ram contested the recent Assembly election and during electioneering he was soliciting votes, being member of the B.J.P. There is no suggestion to the contrary in the cross-examination to this witness also. What has, in fact, come out therein is that PW 9 also helped Nikka Ram during the election as he was one of them. 87. PW 10 Dhameshwar Datt has stated that he is the Pradhan of Gram Panchayat Jhungi since 1993. According to him, Nikka Ram had contacted him during the election, being known to him. A meeting was held in the Panchayat in which this witness was the President. Therein Nikka Ram gave out that he belongs to B.J.P. and is a follower of Shri Atal Behari Vajpayee. PW 10 has stated that the speech made by Nikka Ram did have an impact on the members of the Panchayat. Here again, there is no suggestion, to the contrary in the cross-examination of this witness- It has come out in the same that this witness supported Nikka Ram in the election and asked several persons to vote for him. He has given the names of some persons i.e. Moti Ram, Dola Ram, Devinder Kumar and others. 88. As against this evidence led by the petitioner, the respondent i.e. the Returned and successful candidate in the election in question Shri Tek Chand has stepped into the witness box as RW 2. All that he has stated is that during the elections Nikka Ram had been canvassing for votes as an independent candidate and had not appealed for votes on behalf of any political party. He was also not a member of any political party. All that he has stated is that during the elections Nikka Ram had been canvassing for votes as an independent candidate and had not appealed for votes on behalf of any political party. He was also not a member of any political party. In cross-examination he has denied the suggestion that Nikka Ram was an active worker of the R.S.S. At one portion of his cross-examination he has denied any knowledge whether Nikka Ram had applied for a B.J.P. ticket to contest the 1998 Assembly elections, but he thought better of it and then corrected himself by stating that he had not so applied. Specific suggestions have been to RW 2 i.e. the respondent in cross-examination which, of course, he has denied that in case the nomination paper of Nikka Ram had not been accepted the petitioner would have been successful from the Nachan Assembly Constituency in the 1998 Assembly elections; that RW 2 i.e respondent Tek Chand had put up Nikka Ram as a candidate for the said election by financing him so as to cut into the votes of petitioner Dile Ram; and that RW 2 did not raise any objection to the nomination paper of Nikka Ram on account of the latter being his dummy candidate. 89. RW 3 Raju has stated that Nikka Ram had appointed him as his Polling Agent at Chachyot Polling Station and he had accompanied him for canvassing votes in his favour. On this occasion this witness heard Nikka Ram saying to the voters that they all had seen what Dile Ram had done and also what Tek Chand had done and they should now cast their votes for him as he is an educated person. According to R.W. 3, he had not canvassed for votes on the ground of being an active member of any political party nor he had asked for votes in the name of any political party. But in the cross-examination of this witness the cat is out of the bag. He has admitted that he reached Shimla in a vehicle i.e. jeep which belongs to the respondent in order to give his evidence in Court in the present case. But in the cross-examination of this witness the cat is out of the bag. He has admitted that he reached Shimla in a vehicle i.e. jeep which belongs to the respondent in order to give his evidence in Court in the present case. He also admitted that during the night prior to his deposition as a witness in the Court in this case he had stayed in the M.L.A. hostel with the respondent, He has also admitted that although he had received summons from the court to appear on 28.5.1999, he appeared in Court to give his statement as a witness a day earlier on the asking of the respondent (he was examined on 27.5.1999). Not only this, he has contradicted himself in cross-examination by admitting that during the days of the election he had not accompanied Nikka Ram. He has also expressed his inability to say as to in the name of which political party Nikka Ram had canvassed for support and votes during the election in the Nachan Constituency. 90. RW 4 Hem Raj has stated that he was a worker of Nikka Ram as well as a Polling Agent at Khanet-II Polling Station. According to RW 4 Nikka Ram asked for votes by holding out a promise to the voters that he would get minor work done for example repair of roads etc. He did not announce that he would join any political party in case he is elected. According to RW 4, he did not canvass for or seek votes in the name of any political party. In cross-examination this witness has stated that during the entire period of about 15 days that he accompanied Nikka Ram in door to door campaign, the latter had never told the prospective voters that he was a man of B.J.P. and that if elected he would join that party. 91. The statement of RW 5 Kamla Devi is to the same effect i.e. that during the election campaign in her presence Nikka Ram had not announced himself to be a worker of the B.J.P. nor did he say that his leader was Shri Atal Behari Vajpayee. In cross-examination this witness has also admitted that she was summoned to appear as a witness in this case for 28.5.1999. She further stated that in the Court the respondent had told her that she should give her statement today i.e. 27.5.1999. 92. In cross-examination this witness has also admitted that she was summoned to appear as a witness in this case for 28.5.1999. She further stated that in the Court the respondent had told her that she should give her statement today i.e. 27.5.1999. 92. RW 6 Charan Dass has deposed that Nikka Ram had asked for their votes by saying that he was a person from the same Constituency and that he would give a better account if elected than the petitioner and the respondent and had not canvassed for votes in the name of the B.J.P. nor he had stated that in case of being elected he would join that party. In cross-examination this witness has admitted that he had not gone for canvassing with Nikka Ram outside the Ward of his own Panchayat and, therefore, he cannot say what canvassing Nikka Ram had done in other places. 93. RW 7 Dharam Dass has stated that in his presence Nikka Ram had not asked for votes in the name of the B.J.P. nor he has stated that in case of being elected, he would join that party. RW 8 Dayal Singh has also stated that Nikka Ram had not canvassed for votes in the name of B.J.P. He had also not said that he would join that party. In cross-examination he has not been able to tell the date of Nikka Rams visit to his village nor the names of the persons who accompanied him on that occasion. 94. RW 9 Nand Lal has also stated that Nikka Ram had not asked for votes in the name of the B.J.P. Similarly, RW 10 Lai Singh has stated that Nikka Ram was an independent candidate in the election and had canvassed for votes as such. He had not asked for votes as a candidate of any political party. This witness has contradicted himself in cross-examination inasmuch as towards the earlier part of the same he has categorically stated that since both Nikka Ram and he are known intimately to each other and that this winess has been on good terms with him. Towards the later part of the same, he had denied the suggestion that Nikka Ram and this witness are friends. Towards the later part of the same, he had denied the suggestion that Nikka Ram and this witness are friends. This speaks volumes about the credibility of this witness who otherwise was the Election Agent of the respondent at the time of the election and was present before the Returning Officer at the time of scrutiny of the nomination papers. 95. RW 11 Hem Raj has stated that Nikka Ram had not asked for votes in the name of any political party but only as an independent candidate. In cross examination he has admitted that Nikka Ram is his relation. He has expressed ignorance whether Nikka Ram was supporting any political party before the elections. He has also expressed ignorance if before the elections in question Nikka Ram was an R.S.S. activist. According to RW 11, prior to the Assembly elections, Nikka Ram had not asked him to vote or support the B.J.P. He might have been doing so himself. In the last part of his cross-examination this witness has come out with reality by admitting that on being denied the ticket by the B.J.P. to which he was an aspirant, Nikka Ram then contested the election as an independent candidate. 96. The statement of RW 12 Shankar Dass is to the same effect i.e. that during the election campaign Nikka Ram had not said that in case he is elected, he would join any political party nor he had asked for votes in the name of any such party. RW 13 Gauri Datt has also stated that Nikka Ram did not ask for votes in the name of any political party. 97. It is clear from an appraisal of the evidence led by both the parties that whereas the petitioner has not only pleaded his case against the respondent in a positive and forthright manner, he has also led positive and reliable evidence that the said Nikka Ram had contested the election by holding forth that he was a B. J.P. activist and that the electorate should plump for him, as he was a man of Shri Atal Behari Vajpayee. It is clear from the statement of the petitioner as PW-1 that had the said Nikka Ram not contested the election, the votes which were polled by Nikka Ram would have come to him, being the official candidate of the B.J.P. The testimony of PW-4 Ranvir reveals that Nikka Ram had applied for the membership of the B.J.P. (copy of the membership form being Ex. PW-4/1). PW-5 Ram Swarup, has stated that being the General Secretary of the B.J.P. District Mandi, he is acquainted with Nikka Ram, who is one of the activists of his party. The testimony of PW-5 further shows that Nikka Ram was aspiring for B.J.P. ticket from Nachan Constituency. His testimony further reveals that both this witness and Nikka Ram are R.S.S. workers and that Nikka Ram had undergone training in the camp of that organisation. 98. The statement of PW-6 Joginder Singh goes to show that Nikka Ram associated himself with the activities of the R.S.S. as well as B.J.P. and he had attended one camp organised by the R.S.S. It has come also in the statement of this witness that Nikka Ram had requested for votes on the ground of being an activist of the Sangh and the B.J.P. Nand Lai, PW-7, has deposed that Nikka Ram used to come and meet him with the request to vote for B.J.P. and in the election in question he had told this witness that he was also a candidate of the B.J.P. According to PW~7, Nikka Ram claimed himself to be the man of Shri Atal Behari Vajpayee and had solicited votes on the ground that he belongs to the party. The testimony of PW-8 Uma Dutt is to the effect that he himself being a member of the B.J.P. after his retirement from services, he has known and seen Nikka Ram as an active member of that party. PW-9 Shri Prem Chaudhary has stated that Nikka Ram belongs to R.S.S., as also the said witness, and both are the activists of B.J.P. He has further stated that Nikka Ram contested the Assembly election during which he was soliciting votes as a member of the B.J.P. 99. PW-9 Shri Prem Chaudhary has stated that Nikka Ram belongs to R.S.S., as also the said witness, and both are the activists of B.J.P. He has further stated that Nikka Ram contested the Assembly election during which he was soliciting votes as a member of the B.J.P. 99. It has come in the statement of PW-10 Dhameshwar Datt that a meeting was held in the Panchayat of which this witness is the Pradhan in which Nikka Ram gave out that he belongs to B.J.P. and is a follower of Atal Behari Vajpayee. Not only that, it has come in the statement of this witness that he had supported Nikka Ram in the said election and had also asked several persons to vote for him, the names of some of them being Moti Ram, Dola Ram, Devinder Kumar etc. 100. As against the above positive and reliable evidence of the petitioner, there is no effective rebuttal in the evidence of the respondent. For example, while appearing in the witness box as RW-2, the respondent has nowhere stated that Nikka Ram was not a member of the B.J.P. or its activist, nor he has stated that Nikka Ram did not apply for the B,J.P. ticket for the election in question. Not only that, RW-2 has nowhere stated that in the absence of Nikka Ram being a candidate in the election, the votes polled by him would not have gone to the petitioner. 101. RW-3 Raju although has stated in his examination-in-chief that Nikka Ram had not canvassed for votes on the ground of being an active member of the political party, in cross-examination, he has contradicted himself by stating that he does not know to which political party Nikka Ram belonged before 1998 Assembly election and that he cannot say as to the name of which political party Nikka Ram had canvassed for support and votes during the election in Nachan Constituency. As regards RW-3, there is another glaring fact in his statement, whereas in his examination-in-chief, he has stated that he had accompanied Nikka Ram for canvassing votes, in cross-examination he has stated that he had not accompanied. As regards RW-3, there is another glaring fact in his statement, whereas in his examination-in-chief, he has stated that he had accompanied Nikka Ram for canvassing votes, in cross-examination he has stated that he had not accompanied. Not only that, the cross-examination of RW-3 further reveals that he is a procured witness of the respondent inasmuch as he was brought to the Court for giving his evidence in a vehicle belonged to the respondent and had also stayed during the night previous to his appearance in the Court for his evidence in M.L.A. Hostel with the respondent. Then again, although summons from the Court was sent to this witness to appear on 28.5.1999, he has admitted in the cross-examination that he appeared as a witness on a day earlier i.e. 27.5.1999 on the asking of the respondent. This speaks volumes about the credibility of this witness. 102. RW-4 Hem Raj does not say anything about his testimony, which would go to rebut the positive evidence led by the petitioner in this behalf. 103. The cross-examination of RW-5 Kamla Devi reveals that she has been examined as tutored witness. The statements of RW-6, RW-7 and RW-8 are also contradictory to each other. For example, whereas RW-7 Dharam Das has stated that he had accompanied Nikka Ram for canvassing the votes in his village i.e. village Bara, the cross-examination of RW-8 Dayal Singh, also a resident of the same village Bara, reveals that he does not know the person, who accompanied Nikka Ram when the latter came to ask for votes in the said village, although he has admitted that both he and RW-7 Dharam Dass are from the same village. This gave the lie to the veracity of their testimony. RW-10 Lai Singh being the election agent of the respondent would naturally depose in his favour. One thing which is striking about this witness is that although an agent and being present at the time of the scrutiny of the nomination papers, he did not raise any objection to the candidature of Nikka Ram on the ground that the latter was in Government service and was thus disqualified. One thing which is striking about this witness is that although an agent and being present at the time of the scrutiny of the nomination papers, he did not raise any objection to the candidature of Nikka Ram on the ground that the latter was in Government service and was thus disqualified. Moreover, in the earlier part of the his cross-examination, RW-10 has stated that Nikka Ram and this witness are known intimately to each other and have been on good terms, at a later portion of his cross-examination, he has denied the suggestion that Nikka Ram and this witness are friends. 104. The testimony of RW-11 Hem Raj reveals in his cross-examination that he is a relation of Nikka Ram, yet he has denied knowledge whether Nikka Ram was a R.S.S. activist or whether he was supporting any political party. But the cat has come out of the bag in the last line of the cross-examination of this witness RW-11 when he admits that on being denied the ticket by the B.J.P. to which he was an aspirant, Nikka Ram contested the election as an independent candidate. Similarly, RW-12 Shankar Dass has also admitted in his cross-examination that Nikka Ram is related to him, which would make him an interested witness. 105. On the basis of the evidence led by the petitioner, his learned Counsel has vehemently argued that the margin of votes between the returned candidate i.e. respondent and the petitioner, who polled the next highest number of votes, being 759 and the wasted votes polled by Nikka Ram being 2287, which would be more than three times the difference between the margin of 759 votes, coupled with the evidence led by the petitioner clearly goes to show that the result of the election in so far as it concerns the returned candidate i.e. the respondent has been materially affected. For this submission, he has placed reliance on the case reported in Chhedi Ram v. Jhilmit Ram and others, AIR 1984 S.C. 146. For this submission, he has placed reliance on the case reported in Chhedi Ram v. Jhilmit Ram and others, AIR 1984 S.C. 146. It has been laid down therein as follows: "Where the candidate whose nomination was improperly accepted had obtained 6710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, and the number of votes secured by the candidates whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate-it was a little over one-third, the result of the election might safely be said to have been affected. Decision of Allahabad High Court reversed. Under Section 100(l)(d) the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate has been materially affected by the improper acceptance of any nomination. True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself. On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations, the answers are obvious. The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes. In both these situations, the answers are obvious. The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes. The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only. In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the candidate whose nomination was improperly accepted is 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, it would be next to impossible to conclude that the result of the election has been materially affected. But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and it would have to be concluded that that fact was proved. Under the Evidence Act, a fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down impossible standards of proof and hold a fact as not proved." 106. On a thoughtful consideration of the evidence on the record, as analysed and discussed threadbare above, and in the light of the law laid down in Chhedi Rams case (supra), in the considered view of this Court, there is no escape from the conclusion that by the improper acceptance of the nomination papers of Nikka Ram, who was disqualified from contesting the election on the relevant date, and the number of votes polled by him, namely, 2287,which would be in the nature of wasted votes, the substantial majority of the said wasted votes would have been polled by the petitioner, had Nikka Ram not been in the electoral fray. It necessarily follows that the result of the election in so far as the respondent Tek Chand is concerned has been materially affected to the detriment of the petitioner, who would have been the successful candidate. 107. It has been submitted by the learned Counsel for the respondent that in case the nomination papers of Nikka Ram had been rejected on account of his disqualification, it is not necessary that all votes polled by him would have gone only to the petitioner and not the other candidate. There is no merit in this argument inasmuch as the petitioner had led positive and cogent evidence to show that Nikka Ram cut deeply into the votes of the petitioner by contesting the election as a parallel B.J.P. candidate. Rather the conduct of the respondent, as has been brought on the evidence on the record, goes to show that it was within his knowledge that the said Nikka Ram was disqualified from contesting the election because he continued to be a J,E. in the I.P.H. Department of the State of Himachal Pradesh not only on the date of the scrutiny of the nomination papers, but also on the date of polling. Another significant fact in this behalf is that having this knowledge, the election agent of the respondent Lai Singh, RW-10 did not support the objection raised on behalf of the petitioner by his agent Joginder Singh, PW-6 to the nomination papers of Nikka Ram. 108. It has been strenuously argued by the learned counsel for the respondent that in order to succeed on the ground that the result of the election has been materially affected in so far as it concerns the returned candidate by the improper acceptance of the nomination papers of Nikka Ram, the petitioner has to establish by positive evidence that the wasted votes polled by Nikka Ram would otherwise have been polled successfully by the petitioner. In support of this submission, he has placed reliance on case law. In Vashist Narain Sharma v. Dev Chandra and others, AIR 1954 SC 513, it was laid down that it cannot be held that the mere fact that the wasted votes are greater than the margin of votes between 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 petitioner. It was further laid down that where the finding of the Tribunal that the result of the election has been materially affected is speculative and conjectural, the Supreme Court will interfere with the finding in special appeal. In the present case, the petitioner has adduced satisfactory and positive evidence to show that the wasted" votes polled by Nikka Ram would in substantial majority have been polled otherwise by the petitioner. So, the question of finding being speculative or conjectural does not arise on the facts of this case. Moreover, the above observations in Vashist Narains case were not approved in the later judgment of the apex court in Chhedi Rams case (supra). The learned counsel for the respondent has then placed reliance upon Paokai Haokip v. Rishang and others, AIR 1969 SC 663. Moreover, the above observations in Vashist Narains case were not approved in the later judgment of the apex court in Chhedi Rams case (supra). The learned counsel for the respondent has then placed reliance upon Paokai Haokip v. Rishang and others, AIR 1969 SC 663. The facts in that case were that in the election petition therein, it was proved that by change of certain polling centres and owing to firing by certain hostile elements a number of voters probably failed to record their votes which they would have done if polling had gone on smoothly and according to rules, but the election petitioner failed to prove that by such circumstances the election had been materially affected, it was, therefore, held that the election of the returned candidate could not be avoided. It is manifest that the facts of that case are different from the facts of the case in hand. 109. In Samant N. Balakrishna etc. v. George Fernandez and others etc., AIR 1969 SC 1201, the ground for challenging the result of the election of the returned candidate was the commission of corrupt practice at the election. On the facts of that case, it was held that the petitioner had failed to establish in any manner laid down by law as interpreted by the apex court that the result of the election was materially affected in so far as the returned candidate was concerned. However, in view of the pleadings and the evidence on the record of the present case, the ratio and observations contained in S.N. Balakrishnas case are not applicable. 110. The next case on which reliance has been placed on behalf of the respondent is Smt. Lata Devi (Mali) v. Haru Rajwar, AIR 1990 SC 19. The facts in that case are that the election petitioner was required to show that such number of votes had gone in favour of the successful candidate instead of the petitioner simply because of the change of symbol as would, without that number of votes, make the successful candidate unsuccessful. However, in that case, the petitioner, besides making bare statement, had not produced any other satisfactory evidence in support of such a proposition. It was in these circumstances that the apex court came to the conclusion that it cannot be said that the result of the election in so far as it concerned the returned candidate was materially affected. However, in that case, the petitioner, besides making bare statement, had not produced any other satisfactory evidence in support of such a proposition. It was in these circumstances that the apex court came to the conclusion that it cannot be said that the result of the election in so far as it concerned the returned candidate was materially affected. Therefore, this authority also does not apply in the instant case. 111. Reliance has next been placed on Mahadeo v. Babu Udai Pratap Singh and others, AIR 1966 SC 824. While interpreting the provision of material effect on election due to improper rejection and improper acceptance of nomination papers, the distinction between the presumption and proof was explained. In, the facts of that case, it was held that the result of the election has not been materially affected, which is not the case here. 112. The learned counsel for the respondent has then cited Uma Ballav Rath (Smt) v. Maheshwar Moharity (Smt) and others, (1999) 3 SCC 357. In particular, he has laid great stress on the following observations of this decision: "However, for the appellant to succeed in the election petition under Section 100(l)(d)(iv) of the Act, he had to establish that the result of the election insofar as it concerns the returned candidate had been materially affected by non-compliance with any of the provisions of the Constitution or of the Act or of any rules or orders made under the Act. Indeed, there has been non-compliance with the provisions of the Constitution and of the Act and the Rules and Orders made under the Act but the evidence led by the appellant at the trial of the election insofar as it concerns the returned candidate had been materially affected thereby. The evidence on the record does not show that the result of the election had been materially affected by allotment of the symbol Wheel to respondent 1. To avoid an election, it is necessary that cogent evidence is led in support of the charge. An election cannot be set aside on presumptions, surmises or conjectures. Clear and cogent proof in support of the allegations is essential. In the instant case, the evidence led by the appellant runs hopelessly short of establishing the charge under Section 100(1)(d)(iv) of the Act." 113. An election cannot be set aside on presumptions, surmises or conjectures. Clear and cogent proof in support of the allegations is essential. In the instant case, the evidence led by the appellant runs hopelessly short of establishing the charge under Section 100(1)(d)(iv) of the Act." 113. The above observations in Uma Ballav Raths case (supra) are only reiteration of what has been laid down in the earlier decisions of the apex court. The fact, however, remains that at the cost of repetition, it must be stated that in the present case, the challenge laid to the election of the respondent at the instance of the petitioner on the ground of the result of the election in so far as it concerns the respondent has been materially affected by the improper acceptance of the nomination papers of Nikka Ram has been established by clear and cogent proof in the shape of the evidence led by the petitioner. Indeed, the appraisal of the evidence leaves no scope or any presumptions, surmises or conjectures to be taken as steps in aid to prove the case of the petitioner. 114. In fairness to the learned counsel for the respondent, he has submitted that Nikka Ram, the person on whom the whole controversy revolves has not been produced or examined as witness by the petitioner, nor there is anything on the record to show why this has not been done. This submission of the learned counsel for the respondent appears to be one of despair. As rightly countered by the learned counsel for the petitioner, this submission is without any basis inasmuch as it was not necessary for the petitioner to produce or examine the said Nikka Ram in view of the evidence already at his command and led by him during the trial of this petition. On the other hand, there was nothing to prevent the respondent from producing or examining him. 115. However, there is force in the submission of the learned-counsel for the respondent that the document Ex. PW-1/1 is not admissible in evidence. This document was taken on the record subject to the objection raised at the time of its production on behalf of the respondent. 115. However, there is force in the submission of the learned-counsel for the respondent that the document Ex. PW-1/1 is not admissible in evidence. This document was taken on the record subject to the objection raised at the time of its production on behalf of the respondent. It has so come on the record during the course of the statement of the petitioner as PW-1 to the effect that Nikka Ram had sent number of greeting cards to several persons and the petitioner had also received it. Since the person, who is purported to have sent this greeting card by Nikka Ram has not stepped into the witness box to prove the contents of the same, and since the printer and publisher of this greeting card has not been examined, it does not meet the test of admissible documentary evidence, as laid down in Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865, according to which mere marking of document as an exhibit does not dispense with its proof. At the same time, it is made clear that the non-production of Nikka Ram as a witness by the petitioner is only with respect to proving the document Ex. PW-1/1 and the same is not to be deemed as accepting the submission raised on behalf of the respondent that it was necessary for the petitioner to examine Nikka Ram as a witness to prove the merits of his case. 116. At the same time, as rightly submitted by the learned counsel for the petitioner, the election posters Ex. RW-4/1 to Ex. RW-4/5, are also not admissible in evidence on the same yard stick as applied to the admissibility of Ex. PW-1/1. These election posters Ex.RW-4/1 to Ex. RW-4/5 were objected to at the time they came on the record during the statement of RW-4 Hem Raj. All that he has stated that he has pasted these posters at prominent places in favour of Nikka Ram. In cross-examination, RW-4 has admitted that he had not got any poster printed or prepared. If that be so, then in the absence of the fact being proved as to how these election posters originated and from what source, in view of the law laid down in AIR 1971 SC 1865 (supra) they cannot be treated as admissible documentary evidence. In cross-examination, RW-4 has admitted that he had not got any poster printed or prepared. If that be so, then in the absence of the fact being proved as to how these election posters originated and from what source, in view of the law laid down in AIR 1971 SC 1865 (supra) they cannot be treated as admissible documentary evidence. Resultantly, the respondent cannot derive any benefit from these posters to show that Nikka Ram contested the election as an independent candidate and not as an activist or member of the B.J.P. 117. The last, but at the same time crucial question that now remains to be considered is whether the petitioner has been able to conclusively establish from the evidence led by him that by improper acceptance of nomination paper of Nikka Ram (which of course has been proved by the petitioner), the result of the election in so far as it concerns the respondent has been materially affected. As rightly submitted by the learned counsel for the petitioner, there cannot ever be a case of any direct evidence to show whether the wasted votes polled by a candidate whose nomination has been improperly accepted would have in the normal course gone to the person securing the next highest number of votes than the returned candidate in the election. This is only possible if the secrecy of ballot enshrined in the electoral law and system in this country is infringed. This is not legally permissible as is the settled law in this behalf. However, as laid down by the apex Court in Chhedi Rams case (supra), in such a situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the diference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the candidate whose nomination was improperly accepted is 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, the reasonable probability is that the result of the election has been materially affected and it would have to be concluded that the fact was proved. 118. Applying the above test laid down in Chhedi Rams case (supra) to the present case, it would be seen that the difference in the margin of votes between the petitioner and the respondent i.e. 759 when juxtaposed with the total number of votes secured by Nikka Ram i.e. 2287 clearly indicates that the latter is more than three times the margin of difference between the returned candidate i.e. the respondent and the candidate securing the next higher number of votes i.e. the petitioner. Moreover, in the light of the cogent and positive evidence led by the petitioner as regards Nikka Ram having canvassed for and secured votes in the name of the B.J.P., the reasonable probability is that the substantial majority of the wasted votes secured by Nikka Ram would have gone to the petitioner being the official B.J.P. candidate, had the nomination of Nikka Ram been not improperly accepted. 119. The law laid down in Chhedi Rams case came up for consideration in a later decision of the apex court in the case of J. Chandrasekhara Rao v. V. Jagapathi Rao and others, 1993 Supp (2) SCC 229. Along with Chhedi Rams case, the apex court also considered the subsequent decisions rendered by it on the point in issue. Thereafter, their Lordships reiterated the settled legal position that it is for the election petitioner to prove by positive and reliable evidence that either improper acceptance of the nomination of the candidate or on account of the non-compliance with the provisions of the Constitution, the Act, Rules or orders etc. the wasted votes have been distributed in such a manner among the remaining candidates that a candidate other than the returned candidate would have secured the highest number of votes. While doing so, Chhedi Rams case was impliedly approved as laying down the correct law. the wasted votes have been distributed in such a manner among the remaining candidates that a candidate other than the returned candidate would have secured the highest number of votes. While doing so, Chhedi Rams case was impliedly approved as laying down the correct law. However, the apex Court in J. Chandrasekhara Raos case (supra) went on to record the observation that the burden of proof on this aspect of the electoral law may be difficult, say impossible, but the Courts cannot set aside the election of the returned candidate on surmises and conjectures unless established by positive evidence that the election of the returned candidate has been materially affected. As I have already held above, the petitioner has successfully discharged the burden of proof by positive and reliable evidence led by him. Now, the matter can be looked at from another angle. The Legislature has provided a ground to the aggrieved party/candidate in the election to challenge the election of a returned candidate on the ground that the result of the same in so far as it concerned the returned candidate has been materially affected by the improper acceptance of any nomination, and if both these legal ingredients are proved in a given case, the Court has no option but to declare the election of the returned candidate to be void. It is by now settled law that the Courts while interpreting a legal provision have to give effect to the intention of the Legislature, otherwise the legal provision in question would be rendered academic and nugatory. As held by the apex Court in Dinesh Chandra Sangma v. State of Assam and others, (1977) 4 SCC 441, it is a cardinal rule of construction that no words should be considered redundant or surplus in interpreting the provisions of a statute or a rule. As held by the apex Court in Dinesh Chandra Sangma v. State of Assam and others, (1977) 4 SCC 441, it is a cardinal rule of construction that no words should be considered redundant or surplus in interpreting the provisions of a statute or a rule. No doubt, the secrecy of the ballot is to be and has to be complied with, except as provided by law, but at the same time, in order to show that by improper acceptance of nomination the result of the election so far as it concerns the returned candidate has been materially affected, the petitioner can be said to have proved his case on the basis of positive and reliable evidence, as in the present petition, which has to be analysed and appraised on the facts, circumstances and reasonable probabilities of the case, in view of the law laid down by the apex Court in Chhedi Rams case (supra). 120. It has lastly been submitted by the learned counsel for the respondent that in view of the fact that one of the candidates in the election, namely, Shri Damodar of the Himachal Vikas Congress polled 9182 votes, the possibility that some of the wasted votes polled by Nikka Ram would have gone to the said Shri Damodar cannot be ruled out. This argument is untenable inasmuch as it is a matter of common knowledge and this Court can take judicial notice of the fact that the party known as Himachal Vikas Congress was a break away group of the Indian National Congress, formed on the end of the Assembly election of 1998. It stands to reason therefore that the votes which were polled by the candidate of the said Himachal Vikas Congress i.e. Shri Damodar were predominantly from the vote Bank of the party on whose ticket the respondent successfully contested the election, from Indian National Congress. 121. As a result of the above discussion, there is no hesitation in holding and it is so held that the petitioner has proved that Nikka Ram was an active member of the R.S.S., as alleged. The petitioner has also successfully proved that by the improper and wrongful acceptance of the nomination paper of the said Nikka Ram, the result of the election has been materially affected so far as it concerns the election of the respondent. The petitioner has also successfully proved that by the improper and wrongful acceptance of the nomination paper of the said Nikka Ram, the result of the election has been materially affected so far as it concerns the election of the respondent. Both these issues are accordingly decided in favour of the petitioner. 5. RELIEF: 122. For the reasons recorded above and in view of the findings under the Issues No. 1 to 4 above, the present petition is allowed and the election of the respondent, the returned candidate, from 61-Nachan (S.C.) Assembly Constituency of Himachal Pradesh is set aside and is thus declared void under Section 100(l)(d)(i) of the Act. Consequently, it is directed that the substance of the decision be communicated by the Registrar General of this Court to the Election Commission of India, New Delhi and the Speaker of the Himachal Pradesh Legislative Assembly immediately and authenticated copy of the judgment be also sent to the Election Commission of India, New Delhi, as required under Section 103 of the Act. The petitioner shall be entitled to costs of this Election Petition from the respondent, which are quantified at Rs. 3,000/~. Petition allowed.