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SUPREME COURT OF INDIA
K.N. Saikia, N.D. Ojha
LATA DEVI (MALI), APPELLANT
VERSUS
HARU RAJWAR, RESPONDENT.
Civil Appeal No. 3955 (NCE) of 1987 (From the Judgment and Order dated November 16, 1987 of the Patna High Court in Election Petition No. 4 of 1985.), decided on August 22, 1989.
Representation of the People Act, 1951 - Section 116-A - Conduct of Election Rules, 1961 - Rule 10(5) - Indian Evidence Act – Constitution of India, 1950 - Article 324 - Permission of Election Commission - Change of symbol - Declaring the election - Respondent filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant to the Bihar Legislative Assembly on the ground, inter alia, that on February 14, 1985 he received a notice of the intention of the Returning Officer to change his allotted election symbol and though, through counsel, he objected on February 15, 1985, the Returning Officer re-allotted the respondents bow and arrow symbol to Murura Dasi and instead allotted the symbol of ladder to him. It was urged in the petition that he contested and won the earlier election from the same constituency with the same bow and arrow symbol; the sudden change of his symbol left him with less than 20 days time for campaign and it resulted in confusion amongst his supporters as a result of which his election was materially affected by the change; that the election was liable to be declared void on the ground of violation of section 30(d) of the Representation of the People Act which, according to him, prescribed at least 20 days time for election campaign, which he did not have after change of the symbol; and that the election was void also for violation of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission – Held, It is also relatable to Rules 5 and 10 of the Conduct of Elections Rules framed by the Central Government in exercise of their powers under Section 169 of the Act. Rule 4 of the Conduct of Elections Rules provides that every nomination paper presented under Section 33 of the Act shall be in Forms 2-A to 2-E, as may be appropriate. Forms 2-A and 2-B require the candidate to choose symbol. Under Rule 5(1) the Election Commission by notification may specify the symbols that may be chosen by candidates at elections to Parliamentary and Assembly constituencies. Under Rule 10(4) the Returning Officer shall consider the choice of symbols expressed by contesting candidates and subject to any general or special direction issued by the Election Commission allot different symbols to different candidates. The allotment of symbols by the Returning Officer is final under sub-rule (5) of Rule 10 except where it is inconsistent with any directions issued by the Election Commission in that behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit - Submission is as if the violation of sub-rule (5) of Rule 10 would ipso facto make an election void. That, however, is not the legal position as would be clear from the provision itself. Section 100(1)(d)(iv) of the Act clearly says that subject to the provisions of sub -section (2) if the High Court is of opinion that the result of the election, insofar as it concerns a returned candidate, has been materially affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. The violation of sub-rule (5) of Rule 10 per se will not invalidate the election. The election petitioner has also to prove that the result of the election, insofar as it concerns the returned candidate, was materially affected - Appeal is allowed
JUDGMENT
SAIKIA, J. - The election appeal under Section 116-A of the Representation of the People Act, 1951, hereinafter referred to as the Act, is from the judgment of the Patna High Court (Ranchi Bench) in the respondents Election Petition No. 4 of 1985 allowing the petition and declaring the election of the appellant to the Bihar Legislative Assembly from the 286 Chandan Kyari (SC) constituency to be void.
2. Pursuant to the Notification of Election to Bihar Legislative Assembly, the Returning Officer of the 286 Chandan Kyari (SC) Assembly Constituency announced the following programme :
A. Last date for filing nomination paper February 6, 1985
B. Date of the scrutiny of the nomination paper February 7, 1985
C. Last date of withdrawal of candidature February 9, 1985
D. Date of poll March 5, 1985
E. Date of counting March 6, 1985
3. The appellant, the respondent and 17 others filed their nomination papers; and the Returning Officer accepted the nomination papers found valid at the scrutiny. Three of them withdrew their candidature, leaving 16 contesting candidates in the field. The Returning Officer prepared and published the following list of contesting candidates with the allotted symbols :
S. No. Name Party Symbol
1. Ayodhya Rajak Independent Boat
2. Uma Bawri Independent Horse
3. Kokil Rajwar Independent Cultivator cutting
crops
4. Kiriti Bhusan Das Independent Fish
5. Tilakdhari Bawri Independent Two leaves
6. Dulal Das Independent Spade and Stroker
7. Nakul Chandra Rajak Independent Rising sun
8. Panchanan Rajak Independent Ladder
9. Padam Lochan Rajwar BJP Lotus
10 Mahindri Rajwar Independent Bicycle
11. Murura Dasi Independent A woman carrying
a basket on her
head
12. Yogendra Bawri Indian Congress (J) Scale
13. Ramdas Ram Independent Camel
14. Lata Devi (Mali) Indian National Hand
Congress (I)
15. Shankar Bawri Independent Swastik within the
circle
16. Haru Rajwar Marxist coordination Bow and arrow
4. The Poll was held according to scheduled on March 5, 1985; and, after counting, the following result was announced on March 6, 1985 by the Returning Officer :
S. No. Name Party Votes secured
1. Ayodhya Rajak Independent 187
2. Uma Bawri Independent 590
3. Kokil Rajwar Independent 4564
4. Kiriti Bhusan Das Independent 477
5. Tilakdhari Bawri Independent 1458
6. Dulal Das Independent 550
7. Nakul Chandra Rajak Independent 387
8. Panchanan Rajak Independent 434
9. Padam Lochan Rajwar BJP 8231
10. Mahandri Rajwar Independent 2500
11. Murura Dasi Jharkhand Mukti 2228
Morcha
12. Yogendra Bawri Independent 1163
13. Ramdas Ram Independent 195
14. Lata Devi (Mali) Indian National 8659
Congress (I)
15. Shankar Bawri Independent 486
16. Haru Rajwar
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