1999 Supreme(SC) 255

1999(2) Supreme 336
Supreme Court of India
(From Orissa High Court)
Dr. A.S. Anand, CJI., B.N. Kirpal, J.
Sri Uma Ballav Rath -Appellant
versus
Sri Maheshwar Mohanty & Ors. -Respondents
Civil Appeal No. 552 of 1998
Decided on 25-2-1999
Counsel for the Parties :
For the Appellant : B.N. Singhvi and Vinay Kumar Garg, Advocates.
For the Respondents : J.R. Das, K.N. Tripathy, Debasish Mohanty, Advocates.

Important Points
1. Review of revisional order passed under Rule 10(5) of Conduct of Election Rules by the Election Commission is without any jurisdiction especially when affected candidate is not put on notice.
2. 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.

Headnote:(i) Conduct of Election Rules, 1961-Rule 10(5)-Constitution of India-Article 324-Revision petition against allotment of symbol-Review of revisional order-Validity of-Two official candi­dates of a recognised party for same constituency-Non-withdrawal by anyone-Both treated as independent candidates and free symbols allott­ed-Revision-Order of returning officer upheld-Subsequent represen­tation to Election Commission by President of party that one of the candidates produced Form B fraudulently-Review of earlier order with­out notice to affected candidate and allotment of reserved symbol to other candidate - Not justified-Review of revisional order without any jurisdiction-Order also illegal as principles of natural justice violated.

       Held : The learned single Judge held that the Election Commission, having decided the revision petitions on 25th January, 1995, in exercise of its jurisdiction under Rule 10(5) of the Rules, had on February 1, 1995, exceeded its jurisdiction by “reconsidering” the matter again, on a representation made by Shri S.R. Bommai, to treat respondent No. 1 as the official candidate, in exercise of the powers under Article 324 of the Constitution read with Rule 10(5). It was, accordingly, found that order of the Election Commission dated 1st February, 1995, was `illegal” and `without any jurisdiction’. We are in agreement with the view taken by the High Court in that behalf. Apart from the reasons given by the High Court with which we agree, we are of the opinion that the order of the Election Commission dated 1st February, 1995 is not sustainable for yet another reason also. In the communication made by Shri S.R. Bommai, he had levelled an allegation against the appellant to the effect that the Form B pro­duced by him was ‘fraudulent’ and that respondent No. 1 was the official candidate. The charge made to the Election Commission against the appellant by Shri S.R. Bommai was a serious charge. The least that was expected of the Election Commission, before passing the order on 1.2.1995 was that the appellant be put on notice. That was not done. The Election Commission was exercising its quasi-judicial powers and was obliged to follow the principles of natural justice. The revision­al order dated 25th January, 1995 was “review­ed” by the Election Commission on 1st February, 1995, behind the back of the appellant, without putting him on notice or giving him any opportunity to have his say. It was not a proper course to adopt. In dealing with a matter like this, the Election Commission is obliged to follow the principles of natural justice, to the extent applicable, before passing any order. There has been clearly a breach of fair play in action in this case. This is yet another reason for us to agree with the High Court that the order of the Election Commission dated 1st February, 1995 was illegal and without jurisdiction. (Paras 4 & 5)

       (ii) Representation of People Act, 1951-Section 100(1)(d)(iv)-Condition precedent to avoid an election-Clear and cogent proof in support of allegation essential-Two official candidates of a party-No withdrawal on last date-Treatment of both as independents and allot­ment of free symbols-Rejection of revision-Subsequent representation by President of party that respondent returned candidate was official candidate-Allotment of reserved symbol to returned candidate without notice to appellant-Challenge to election-There was non-compliance with provi­sions of Constitution and Rules and Orders made under Act-Evidence, however, does not show that result of election had been materially affected by allotment of reserved symbol to returned candidate-Elec­tion cannot be avoided.

       Held : For the appel­lant to succeed in the election petition, under Section 100(1)(d)(iv) of the Act, he had to establish that the result of the election, in so far 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 petition falls absolutely short of establishing that the result of the election in so far 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 symbol “Wheel” to respondent No. 1. The appellant, failed to establish, the allegation that the result of the election had been materially effected in so far as the returned candidate is concerned by action of the Election Commission and the Returning Officer. The learned single Judge found that the statements of the witnesses were vague, general and conjectural in nature and did not establish the charge made by the appellant. We have been taken through the evidence of the witnesses by learned counsel for the parties and we are not persuaded to take a diferent view than the one taken by the High Court either. 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. (Para 6)