1986 Supreme(All) 307

IN THE HIGH COURT OF ALLAHABAD
OM PRAKASH
PREM PAL SHASTRI - Appellant
Versus
RAMESH CHANDRA YADAV - Respondents
ELECTION PETITION 23 Of 1985
Decided On : 10/15/1986

The Election Commission cannot issue a direction in derogation of the provisions of the Election Symbols (Reservation and Allotment) Order, 1968.

Headnote:

ELECTION LAW - SYMBOL - ALLOTMENT - POWER OF ELECTION COMMISSION - REVIEW OF DIRECTION - MATERIAL AFFECTING RESULT OF ELECTION - CAUSE OF ACTION:

Fact of the Case:

The petitioner, a candidate in the general elections to the U. P. Legislative Assembly, held in February-March, 1985, from 349 Nidhauli Kalan Assembly Constituency, district Etah, filed an election petition challenging the election of the respondent on the ground that the result of the election, in so far as, it concerns the respondent was materially affected because of the non-compliance with the provisions of the Constitution, of the Act, 1951, of the Conduct of Elections Rules, 1961 (the Rules 1961) and of the Election Symbols (Reservation and Allotment) Order, 1968 (the Order 1968).

Finding of the Court:

1. The Election Commission was not empowered to issue a direction in derogation of the provisions as contained in para 13 of the Order 1968. 2. The direction (Ext. P-6) being conditional depending on the contingency of the ballot papers having been printed, in the Court's view that could not have been given effect to, as substantial printing had been done. 3. The Commission, which issued invalid direction at the inception, was fully justified in having reviewed or withdrawn the direction (Ext. P-6) on 18-2-1985 by means of a telex message (Ext. P-7), sent to the Chief Electoral Officer and the Returning Officer that a large number of ballot papers having been printed, there was no need to disturb the symbol, allotted to the respondent and that the petitioner be treated as independent candidate. 4. The respondent won by the margin of 7412 votes and the petitioner received only 911 votes. The petitioner also contested the previous general election, held in the year 1980 on Lok Dal symbol and then he had secured only 2835 votes as against the returned candidate, who had secured 27,637 votes. There is no convincing evidence on record that the petitioner had secured 2835 votes in 1980 election, without any effort and canvassing, because of his name and image only, and that in fact he supported the Congress (S) candidate on account of the directive of his party. 5. No material facts having been given to show as to how the result of the election, in so far as it concerned to the respondent, was materially affected, the Court held that no cause of action was disclosed in the petition.

Issues: 1. Whether the revised authurisation of symbol in favour of the petitioner by the Lok Dal parm was filed by the petitioner with the Election Commission before 3 p. m. on 9-2-1985 ? If so, its effect ? 2. Whether filing of revised authurisation with the Election Commission is valid ? If not, its effect ? 3. Whether any direction was given by the Election Commission to the Returning Officer to accept the revised authurisation of symbol and allot the symbol of Lok Dal party to the petitioner ? If so, its effect ? 4. Whether the Election Commission is empowered to interfere with the allotment of symbol by the Returning Officer ? 5. Whether the result of the election, in so far it concerns the respondent, has been materially affected due to non-allotment of the Lok Dal symbol to the petitioner ? 6. Whether the petition discloses any cause of action ? 7. To what relief, if any, is the petitioner entitled ?

Ratio Decidendi: 1. The Commission having issued general directions by way of Order 1968 in the exercise of powers, conferred by Art. 324 of the Constitution and by Rr. 5 and 10 of the Rules 1961 to regulate the allotment of symbols the Commission cannot exercise jurisdiction for issuing any more special direction in contravention of the provisions, as made in the Order 1968. 2. The direction (Ext. P-6) having been given by the Commission in derogation of the express provisions made in Para 13 of the Order 1968, it cannot be said that the power to issue such a direction can be identified with or can be traced to any provision either of the Act or the Rules or the Order 1968. So the direction (Ext. P-6) cannot be any thing better than an administrative instruction, the breach of which will not attract S. 100 (1) (d) (iv ). 3. The direction being conditional depending on the contingency of the ballot papers having been printed, in the Court's view that could not have been given effect to, as substantial printing had been done. 4. The election of the respondent has been challenged on ground of non- compliance with the provisions of the Order 1968, the petitioner is under obligation to establish that the result of the election, in so far as it concerned to the respondent, was materially affected. The question is whether the respondent would have been defeated, if Lok Dal symbol had been refused to him? In short the question is whether the respondent won the election merely on the strength of symbol. 5. No material facts having been given to show as to how the result of the election, in so far as it concerned to the respondent, was materially affected, the Court held that no cause of action was disclosed in the petition.

Final Decision: The election petition was dismissed with costs.