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PETITIONER: SRI UMA BALLAV RATH

       Vs.

RESPONDENT: SRI MAHESHWAR MOHANTY & ORS.

DATE OF JUDGMENT:       25/02/1999

BENCH: B.N.Kirpal

JUDGMENT:

DR. A.S. ANAND, CJI

     This  appeal calls in question the judgment and  order of  the  High  Court of Orissa dated  23rd  December,  1997, dismissing  an  Election  Petition filed  by  the  appellant herein.   Elections to 56 Puri Assembly Constituency of  the Orissa Legislative Assembly were held in the month of March, 1995.   The  last date for filing of nomination  papers  was 17th  January,  1995.   It appears that  the  appellant  and respondent  No.1 filed their nomination papers as  official candidates  of  Janata Dal.  Their nomination  papers  were supported  by  authorisations  in Forms A and  B  under  the signatures  of  Shri S.R.  Bommai, President of  the  Janata Dal.   Since two candidates had claimed the reserved  symbol of  Janata Dal and before the last date fixed for withdrawal of  candidature,  no  communication   was  received  by  the Returning  Officer  as to which one out of the two  was  the official  candidate, the Returning Officer treated both  the appellant  and respondent No.1 as independent candidates and allotted  the  free  symbols  of   Bi  cycle  and   Boat respectively  to them, by an order dated 20th January, 1995. The order of the Returning Officer was challenged before the Election  Commission  under  Rule 10(5) of  the  Conduct  of Election  Rules, 1961 (hereinafter the Rules) by both, the appellant as well as respondent No.1.  Vide order dated 25th January,  1995, the Election Commission, after examining the documents  and  other material on the record, held that  the decision  of  the Returning Officer was consistent with  the directions,  orders and rules relevant to the subject.   The order  of  the Returning Officer was, consequently,  upheld. While  the  matters  rested thus, it appears  that  on  30th January,  1995, Shri S.  R.  Bommai, President of Janata Dal submitted  a  representation  to   the  Election  Commission stating  therein  that  no Form B had been supplied  to  the appellant  and  that  the  appellant  had  produced  Form  B fraudulently.  Respondent No.1 was stated to be the official candidate  of Janata Dal.  The Election Commission of India, without  issuing  any  notice to the appellant  and  without granting  him any opportunity of hearing opined on  February 1, 1995 on a reconsideration of the matter, that there was no  reason  to  disbelieve that respondent  No.1  was  the official  candidate  of  Janata  Dal for  56  Puri  Assembly Constituency.   A direction was issued by the Commission  in exercise of its powers under Article 324 of the Constitution read  with the Rule 10(5) of the Rules to consider and treat

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respondent No.1 as the official candidate of Janata Dal from the  concerned  Assembly  Constituency   and  to  allot  the reserved  symbol of Janata Dal, a national recognised  party to  him.   Pursuant  to the said direction of  the  Election Commission,  election symbol of Wheel, a reserved  symbol, was  allotted  to  respondent No.1 while the  appellant  was treated  as an independent candidate.  After the polls  were conducted,  respondent  No.1  was declared  elected  on  the Janata  Dal  ticket.   The   appellant  thereupon  filed  an Election  Petition  challenging the election  of  respondent No.1  on  various  grounds, including the  ground  that  the result  of  the election, insofar as it concerns  respondent No.1,  had  been materially affected by non-compliance  with the  Constitution,  the Act and the rules  made  thereunder. The Election Petition was resisted by the returned candidate and  from the pleadings of the parties, the following Issues were  framed  on  20th September, 1995:   1.   Whether  the allotment  of  symbol Wheel in favour of  respondent  No.1 treating  him as an official candidate of the Janata Dal was valid  and legal and if not, whether it materially  affected the result of the election ?

     2.  Whether the counting was suspended from 6.00 AM to 8.00  AM  on 12.3.1995 and if so, whether the agents of  the petitioner  were  asked  to  vacate the  counting  hall  and whether  in  their  absence  the  ballot  papers  and  other connected  documents were kept in proper custody, and  under seal as per the prescribed rules ?

     3.   Whether  the  Election  Officer  was  correct  in rejecting  the demand for recounting and if so, whether such refusal materially affected the result of the election ?

     4.   Whether respondent No.1 adopted corrupt  practice as  provided  under section 123(4) of the Representation  of People Act ?

     5.   Whether  the petitioners result in the  election has  been  materially affected because of illegal  reception and rejection of the ballot papers ?

     After  trial,  the  Election  Petition  filed  by  the appellant  was  dismissed.   Shri   B.N.   Singhvi,  learned counsel  appearing  for  the appellant in  this  appeal  has confined  his submissions to challenge the findings on Issue No.1  and has not contested any of the findings recorded  by the  learned  single  Judge  on  Issues 2  to  5.   We  are, therefore,  relieved  of  the necessity to deal  with  those Issues  and shall confine ourselves to the determination  of the  correctness or otherwise of the findings on Issue No.1. 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  Ist  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

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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.   The above  finding,  however, does not end the matter.  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 different 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.   In  this view of the matter, the finding recorded  by the  learned  single Judge of the High Court on  Issue  No.1 against  the  appellant  cannot be found  fault  with.   We, therefore, do not find any merit in this appeal.  The appeal consequently  fails and is hereby dismissed but without  any order as to costs.

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