The requirement to prove that the misprinting of the election symbol materially affected the election result under Section 100(i)(d)(iv) of the Representation of People Act, 1951.

Ghanshyam Prasad, J.

1. This application under the provisions of Representation of People Act, 1951 has been filed to declare the election of sole respondent- Ajit Choudhary, member of Bihar Legislative Assembly from Bhrampur Assembly Constituency (2000) as void.

2. The petitioner No. 1- Sudhakar Pandey was one of the contesting candidates in the said election for member of Bihar Legislative Assembly from Bhrampur Constituency which was held in the month of October 2005. As per the programme schedule of election notified by the returning officer of the constituency, petitioner No. 1, respondent and others filed nomination papers before the Returning Officer, Buxar. After scrutiny on 1.10.2005, the Returning Officer accepted the nomination papers of all the candidates as valid. The Returning Officer after expiry of date of withdrawal allotted symbols to the candidates according to their respective party affiliation. Accordingly, as alleged, the petitioner No. 1 being authorized candidate of Samajwadi Janta Party (Rashtriya), was allotted symbol of tree (Baniyan). Ultimately, election was held on 18.10.2005. After completion of counting on 22.11.2005, the Returning Officer declared the sole respondent as elected by the margin of 6800 votes. Petitioner No. 1 secured only 568 valid polled votes.

3. The petitioners have challenged the election of respondent on the ground of wrong printing of the symbol of petitioner No. 1 on the ballot papers including Electronic Voting Machine. It has been alleged that the petitioner No. 1 was candidate of Samajwadi Janta Party (Rashtriya) of which election symbol was Baniyan tree and accordingly the returning officer allotted him the above symbol. But in ballot papers palm tree was printed instead of Baniyan tree. The petitioner No. 1 during his compainging prorogated amongst the voters that he had been allotted election symbol of Baniyan tree but on account of wrong printing of election symbol a great confusion amongst the voters was created as such petitioner No. 1 lost his election. According to him, about 20,000 illiterate voters were misled on account of wrong printing of election symbol and thus the result of election in question was materially affected. In support of the aforesaid averments, names of some voters have been given in paragraph 15 of the election petition.

4. The further case of the petitioners is that when the above fact of misprinting was known to him on 18.10.2005, petitioner No. 1 without any loss of time on the same day sent an application through fax to District Election Officer, Buxar as well as Chief Election Officer Bihar, Patna and also Chief Election Commissioner of India. Under the aforesaid ground, according to the petitioners, the election of respondent is void and illegal and fit to be set aside.

5. Written statement has been filed on behalf of respondent No. 1. Apart from other grounds, respondent has raised the point of maintainability of the election petition on the ground of non-compliance of mandatory provision of Sections 81, 82, 83 and 117 of the Representation of People Act, 1951. It has been averred that since the allegations are vague and frivolous, it is hit by mandatory clause of Sections 83 & 87 of the Act read with Order VI, Rule 16 and Order VII, Rule 11 of the C.P.C. However, the main defence of respondent is that the petitioner No. 1 was never allotted the symbol of Baniyan tree nor there was any misprinting of symbol in ballot papers. The petitioner No. 1 was the candidate of Samajwadi Janta Party (Rashtriya) which was admittedly an unrecognized registered party and as such there is no question of any reserved symbol for that party. The petitioner was entitled for only free symbol available at the time of election.

6. It has further been averred that had the voters in mass been misled they would have filed any written objection before the authority. Such allegation has been alleged only with view of supporting his false cause. It has fu