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PETITIONER: SMT. LATA DEVI (MALl)

       Vs.

RESPONDENT: HARU RAJWAR

DATE OF JUDGMENT22/08/1989

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) OJHA, N.D. (J)

CITATION:  1990 AIR   19            1989 SCR  (3) 921  1989 SCC  (4) 773        JT 1989 (3)   470  1989 SCALE  (2)355

ACT:     The  Representation of the People Act,  1951/Conduct  of Election Rules,  1961: Sections 30 and 100/Rule 10--Election Petitioner-Candidate   for  election--Complaint  that   main reason  for  defeat at election was change  of  symbol--That voters  were misled and could not be apprised of the  change of symbol--High Court judgment set aside-Election petitioner failed to discharge burden of proof that result of  election was materially affected.

HEADNOTE:     In  the election to the Bihar Legislative Assembly  held in  1985,  the appellant was declared elected from  the  286 Chandan Kyari (S.C.) Constituency. The respondent, a sitting M.L.A., who secured 430 votes less than the appellant, filed an election petition in the Patna High Court (Ranchi  Bench) calling  in  question  the election of  the  appellant.  The respondent’s  main grievance was that the Returning  Officer re-allocated his ’bow and arrow’ symbol to another candidate Murura Dasi, and instead allotted the symbol of ’ladder’  to him,  and  this sudden change of symbol left him  with  less than  20 days time for campaign which resulted in  confusion amongst his supporters as a result of which his election was materially affected. On this premise the respondent contend- ed  that the election was liable to be declared void on  the ground of (i) violation of section 30(d) of the  Representa- tion of People Act, 1951, which according to him  prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and (ii) 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. The  respond- ent-election  petitioner  examined himself. Evidence  of  no other witness appears on record.     The  High  Court allowed the petition and  declared  the appellant’s  election to be void holding that the result  of the  election in so Tar as it concerned the returned  candi- date  was materially affected by violation of Rule 10(5)  of the Conduct of Election Rules, 1961. Before this Court, it was contended on behalf of the  appel- lant that

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922 (i) the appellant did not receive any notice of the election petition  against her and the trial had proceeded  ex-parte; (ii) there was no breach of section 30(d) of the Representa- tion of the People Act Inasmuch as the minimum 20 days  time was  available  after the date of withdrawal  of  nomination paper  to the date of poll; (iii) there was no violation  of Rule  10(5) of the Conduct of Election Rules; and (iv)  even assuming that there was violation of this rule, the election petitioner  dismally  failed to prove by evidence  that  the result  of  the election was  materially  affected  thereby, inasmuch  as no sufficient evidence was adduced in proof  of his  claim, and he himself could not have proved  his  aver- ments. Allowing the appeal, this Court,     HELD: (1) Under s.30 of the Representation of the People Act,  1951, as soon as the notification calling upon a  con- stituency  to  elect the member or members  is  issued,  the Election  Commission shall, by notification in the  Official Gazette appoint, amongst others, under clause (d), the  date or  dates  on which a poll shall, if  necessary,  be  taken, which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal  of candidature. [928F]     (2) In the instant case, the last date for the withdraw- al  of  nomination  was 9.2.1985 and the date  of  poll  was 5.3.1985.  There was, therefore, clear compliance  with  the requirement of s. 30(d). The respondent himself stated  that on 14.2.1985 he received notice of intention of the  Return- ing Officer to change his election symbol and the symbol was actually  changed on 15.2.1985. This Court agrees  with  the High Court that only the spirit of s. 30(d) was not complied with.  In terms, this provision was clearly  complied  with. [928G-929A]     (3) 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, in so far  as it concerns the returned candidate, was materially affected. [934A-B]     (4)  The  party who wishes to get an  election  declared void  has  to establish by satisfactory  evidence  that  the result  of the poll had in fact been materially affected  by the violation of Rule 10(5) of the Rules. For doing this, it has  to be demonstrated that the votes would have  been  di- verted in such a way that the returned candidate would  have been unsuccessfull. [931B] 923     Vashist  Narain Sharma v. Dev Chandra & Ors.,  [1955]  1 SCR  509; lnayatullah Khan v. Diwanchand Mahajan & Ors.,  15 ELR  219; S.N. Balakrishna v. Fernandes, AIR 1969  SC  1201, (1969)  3 SCR 603; Shiv Charan Singh v. Chandra Bhan  Singh, [1988] 2 SCC 12 and Chhedi Ram v. Jhilmit Ram & Ors., [1984] 2 SCC 281, referred to.     (5) A decision in an election petition can be given only on positive and affirmative evidence and not on mere  specu- lation  and  suspicion,  however, strong they  are.  In  the instant  case,  there is no such  positive  and  affirmative evidence.  Mere assertions by the election  petitioner  were not enough. [932D]     (6)  There could be no proposition or contention that  a candidate with a particular symbol would always be  success- ful  at the hustings or that a particular voter or a  number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted. [932E]     (7)  There  is no dispute about the  importance  of  the

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symbol  in a backward constituency. This will  however,  not absolve  the  election petitioner of his burden  of  proving that the result of the election has been materially  affect- ed. [933B]     All Party Hill Leaders’ Conference, Shillong v.  Captain W.A.  Sangama, AIR 1977 SC 2155 and Roop Lal Sathi v.  Nach- hattar Singh Gill, [1982] 3 SCC 487, referred to.     (8)  The election petitioner has not stated  and  proved that more than 430 voters would have voted for him, had  the symbol  of ’bow and arrow’ not been changed, and  that  they voted for Murura Dasi only for her having the symbol of ’bow and  arrow’.  How  could that be proved  would.  of  course, depends on the facts and circumstances of the case. [929F]     (9) In the instant case, the election petitioner dismal- ly failed to discharge the burden of proving that the result of  the election, in so far as it concerned  the  appellant, who has been the returned candidate, was materially  affect- ed.  The High Court was in error in holding, without  suffi- cient evidence, that it was materially affected. [934C]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  3955 (NCE) of 1987.     From  the  Judgment and Order dated  16.11.1987  of  the Patna High Court in Election Petition No. 4 of 1985. 924 R.K. Garg and D.K. Garg for the Appellant.     S.N. Singh, H.L. Srivastava, B.M. Sharma and T.N.  Singh for the Respondent. The Judgment of the Court was delivered by     SAIKIA,  J.  This election appeal under  S.116A  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 respondent’s Election  Petition No. 4 of 1985 allowing the petition and declaring the  elec- tion of the appellant to the Bihar Legislative Assembly from the 286 Chandan Kyari (S.C.) Constituency to be void.     Pursuant  to the Notification of Election to  the  Bihar Legislative  Assembly,  the  Returning Officer  of  the  286 Chandan  Kyari  (S.C.) Assembly Constituency  announced  the following programme: A.  Last date for filing nomination paper           6.2.1985 B.  Date of the Scrutiny of the nomination paper    7.2.1985 C.  Last date of withdrawal of candidature          9.2.1985 D.  Date of Poll                                    5.3.1985 E.  Date of counting                                6.3.1985     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  allot- ted symbols: S. No. Name               Party        Symbol 1.  Ayodhya Rajak      Independent Boat 2.   Uma Bawri              "       Horse 3.    Kokil Rajwar            "     Cultivator cutting crops 4.    Kiriti Bhusan Das       "     Fish 5.  Tilakdhari Bawri         "       Two leaves 6.   Dulal Das           Independent Spade & Stroker 925 7.   Nakul Chandra Rajak Independent   Rising Sun 8.   Panchanan Rajak       "           Ladder

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9.   Padam Lochan Rajwar B.J.P.        Lotus 10.  Mahindri Rajwar    Independent    Bicycle 11.  Murura Dasi        Jharkhand      A Woman carrying a                         Mukti Morcha   basket on her head. 12.  Yogendra Bawri     Indian         Scale                         Congress (J) 13.  Ramdas Ram         Independent    Camel 14.  Lata Devi (Mali)   Indian         Hand                         National                         Congress(I) 15.  Shankar Bawri      Independent    Swastik within                                        the circle 16.  Haru Rajwar        Marxist        Bow and arrow                         coordination   The poll was held according to schedule on 5.3.1985;  and, after  counting,  the  following  result  was  announced  on 6.3.1985 by the Returning Officer: S. No. Name               Party               Votes secured 1.   Ayodhya Rajak        Independent        187 2.   Uma Bawri               "               590 3.   Kokil Rajwar            "              4564 4.   Kiriti Bhusan Das       "               477 5.   Tilakdhari Bawri        "              1458 6.   Dulal Das               "               550 7.   Nakul chandra Rajak     "               387 8.   Panchanan Raj ak        "               434 9.   Padam Lochan Rajwar B.J.P.             8231 10.  Mahandri Rajwar     Independent        2500 926 11. Marura Dasi       Jharkhand             2228                       Mukti Morcha 12. Yogendra Bawri    Indian Congress (J)   1163 13. Ramdas Ram        Independent            195 14. Lata Devi (Mali)  Indian National       8659                       Congress (I) 15. Shankar Bawri     Independent            486 16. Haru Rajwar       Independent           8229     The appellant Lata Devi (Mali) was declared elected. The respondent  Haru  Rajwar 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 14.2.1985, he received  a notice  of the intention of the Returning Officer to  change his allotted election symbol and though, through counsel, he objected on 15.2.1985, the Returning Officer re-allotted the respondent’s  ’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  elec- tion  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 S. 30(d) of the Representation of  the  People Act which, according to him, prescribed atleast 20 days time for election campaign, which he did not have after change of the  symbol; and that the election was void also for  viola- tion  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.     It is the appellant’s case that she did not receive  any notice  of  the  election petition against  her.  The  trial proceeded  ex  parte.  The  respondent-election   petitioner examined himself at the trail.

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   The  High Court by its impugned order  dated  16.11.1987 allowed  the petition and declared the appellant’s  election to be void holding that the result of the election in so far as  it concerned the returned candidate was  materially  af- fected by violation of Rule 10(5) of the Conduct of Election Rules, 1961. Hence this appeal. 927     Mr.  R.K.  Garg, the learned counsel for  the  appellant submits,  inter alia, what even assuming what was stated  by the respondent--election petitioner to be true, there was no breach of section 30(d) of the Representation of the  People Act inasmuch as the minimum 20 days time was available after the  date of withdrawal of nomination paper to the  date  of poll;  that  there  was no violation of Rule  10(5)  of  the Conduct of Election Rules; and that even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the  election was  materially affected thereby, inasmuch as no  sufficient evidence was adduced in proof of his claims, and he  himself could not have proved his averments.     Mr. S.N. Singh, the learned counsel for the  respondent, relying  on AH Party Hill Leaders’ Conference,  Shillong  v. Captain W.A. Sangama, AIR 1977 SC 2 155, and Roop Lal  Sathi v.  Nachhattar  Singh Gill, [1982] 3  SCC  487,  strenuously argues that the violation of Rule 10(5) is itself sufficient to  have  materially  affected the result  of  the  election particularly  in view of the fact that in the  instant  con- stituency of backward voters, the symbol was very important, and  change thereof had disastrous consequences to  the  re- spondent candidate.     The  material facts relevant to this appeal are  not  in dispute.  The list of contesting candidates with  respective symbols was published on 9.2.1985; the election petitioner’s symbol  ’bow and arrow’ was reallotted to  candidate  Murura Dasi  and the symbol of ladder in place of ’bow  and  arrow’ was  re-allotted to the respondent; the poll took  place  on 5.3.1985; and the result was announced on 6.3.1985.     The  respondent--election petitioner in the  High  Court examined  himself  as P.W. 1 and deposed  to  the  following effect:                  "   .........   I was given the  symbol  of               ’bow  and  arrow’.  I canvassed for  my  votes               with the symbol of ’bow and arrow’ till Febru-               ary 15, 1985. The Returning Officer changed my               symbol  and  allotted  to  me  the  symbol  of               ’Sirhi’  (ladder).  The  symbol  of  ’bow  and               arrow’  was given to Murura Dasi, the  another               candidate. I was the sitting MLA and my symbol               in the last election was also ’bow and arrow’.               I  lost the election this time by a margin  of               430  votes. In the election held in  the  year               1980,  I won the election by a margin of  9611               votes. This time the main reason of my  defeat               in  the election is the change of  my  symbol.               Due  to change of my symbol, the  voters  were               misled and they               928               could not be apprised of this change. I  could               not  canvass for my votes with the  symbol  of               ’ladder’  in  that constituency  and  in  that               area. I was known largely and properly in  the               areas  as the MLA with the symbol of ’bow  and               arrow’.  The candidate of Congress  party  was               declared  elected in this election. The  elec-               tion  of my constituency was held in March  5,

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             1985.  I did not get 20 days time as  provided               in law after the change of my symbol."     When  recalled,  he  added that the symbol  was  a  free symbol  which  had  been allotted to him  earlier  i.e.  the symbol  of ’bow and arrow’. "The last date of withdrawal  of the nomination paper was February 9, 1985. By the change  of symbol  ’bow  and arrow’, I was materially affected  and  it affected  the course of election and the voters were  misled and  they  wrongly voted for Murura Dasi."  Evidence  of  no other witness appears on record. The question before us  is, whether  on  the basis of the above evidence on  record  the High  Court was justified in holding that the result of  the election was materially affected and in declaring the appel- lant’s election to be void on that ground.     Section 100 of the Representation of the People Act, 195 1  states the grounds for declaring an election to be  void. Sub-section 1(d)(iv) says: (1) subject to the provisions  of sub-sectiOn (2) if the High Court is of opinion (d) that the result of the election, in so far as it concerns a  returned candidate, has been materially affected (iv) by any  noncom- pliance  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: Sub-section (2) is not relevant for the  purpose of  this case. Was there in this case. any violation  of  S. 30(d)? Under S. 30 of the Representation of the People  Act, 1951, as soon as the notification calling upon a constituen- cy  to elect the member or members, is issued, the  Election Commission  shall, by notification in the  Official  Gazette appoint, amongst others, under clause (d) the date or  dates on which a poll shall, if necessary, be taken, which or  the first of which shall be a date not earlier than the  twenti- eth  day after the last date for the withdrawal of  candida- ture.  In the instant case the last date for the  withdrawal of  nomination  was  9.2.1985  and  the  date  of  poll  was 5.3.1985.  There was, therefore, clear compliance  with  the requirement  of S.30(d). The respondent himself stated  that on 14.12.1985 he received notice of intention of the Return- ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985. We agree with the High  Court that  only the spirit of S.30(d) was not complied  with.  In terms, this provision was 929 clearly complied with. The submission that it was  violated, has, therefore, to be rejected.     Rule  10  of the Conduct of Election Rules,  1961  deals with preparation of list of contesting candidates.  Sub-rule (4)  thereof  requires that at an election  in  an  assembly constituency, where a poll becomes necessary, the  Returning Officer  shall consider the choice of symbols  expressed  by the  contesting  candidates in their nomination  papers  and shall, subject to any general or special direction issued in this behalf by the Election Commission (a) allot a different symbol to each contesting candidate in conformity, as far as practicable,  with  his choice; and (b) if  more  contesting candidates than one have indicated their preference for  the same  symbol decide by lot to which of such  candidates  the symbol will be allotted. Under sub-rule (5) the allotment by the Returning Officer of any symbol to a candidate shall  be final  except where it is inconsistent with  any  directions issued  by the Election Commission in this behalf  in  which case  the  Election Commission may revise the  allotment  in such manner as it thinks fit.     The change of symbol has not been proved to be violative of Rule 10(5). Even assuming violation, as Mr. Garg submits,

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was  there  enough evidence to show that the result  of  the election, in so far as it concerned the returned  candidate, was materially affected? The election petitioner before  the High Court deposed that he lost the election by a margin  of 430 votes. From the result sheet it appears that the  appel- lant  secured  8659 votes and the  respondent  secured  8229 votes.  The difference is, therefore, of 430  votes.  Murura Dasi despite the ’bow and arrow’ symbol secured 2228  votes. The election petitioner has not stated and proved that  more than 430 voters would have voted for him, had the symbol  of ’bow  and arrow’ not been changed, and that they  voted  for Murura  Dasi  only  for her having the symbol  of  ’bow  and arrow’. How could that be proved would. of course, depend on the facts and circumstances of the case.     The  result  of  election, in so far as  it  concerns  a returned  candidate,  may  be affected in  various  ways  by various  factors  stated under S. 100(1)(d). So far  as  the burden  and  measure  of proof of such  material  effect  is concerned, the law has been enunciated by several  decisions of  this Court. What is required to be demonstrated by  evi- dence will vary according to the way in which the result  of the election in so far as it concerns the returned candidate is  alleged  to have been materially affected. It is  to  be noted  that in an election petition what is called in  ques- tion  is the election and what is claimed is that the  elec- tion 930 of  all or any of the returned candidates is void,  with  or without  a further declaration that the election  petitioner himself  or any other candidate has been duly  elected.  De- claring  the  election of the returned candidate  void  does not, by itself, entitle the election petitioner or any other candidate to be declared elected.     Vashit  Narain Sharma v. Der Chandra and Ors., [1955]  1 SCR  509, was a case of improper acceptance or rejection  of nomination  paper and the manner of proving that the  result of  the election had been materially affected  was  slightly different from that of the instant case as that involved the question of possible distribution of wasted votes.  However, this Court has stated that the result of the election  being materially  affected is a matter which has to be proved  and the  onus  of  proving it lies upon  the  petitioner.  Their Lordships observed:               "It  will not do merely to say that all  or  a               majority  of the wasted votes might have  gone               to the next highest candidates. The casting of               votes at an election depends upon a variety of               factors and it is not possible for any one  to               predicate how many or which proportion of  the               votes  will  go  to one or the  other  of  the               candidates.  While it must be recognised  that               the  petitioner in such a case  is  confronted               with a difficult situation, it is not possible               to relieve him of the duty imposed upon him by               Section  100(1)(c) and hold  without  evidence               that the duty has been discharged. Should  the               petitioner  fail to adduce  satisfactory  evi-               dence  to  enable  the court to  find  in  his               favour  on this point, the  inevitable  result               would be that the Tribunal would not interfere               in his favour and would allow the election  to               stand."     In Inayatullah Khan v. Diwanchand Mahajan & Ors, 15  ELR 2  19,  where a nominated candidate was found to  have  been disqualified under S. 7(d) of the Act the question arose  as

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to  what  had happened to the election as a result.  It  was contended  that the margin of votes was small and  that  the result of the election must be taken to have been materially affected  because  Nandial, a  disqualified  candidate,  got 8,000  odd votes, which in the event of his  not  contesting would have gone to Mahajan. Evidence was led to show how the votes which went to Nandial would have been divided and both sides  claimed that if Nandial had not contested  the  elec- tion, the votes would have gone to them. The Madhya  Pradesh High  Court observed that the evidence on this part  of  the case was exceedingly general and apart from the statement by the  witnesses who came forward as to their  opinion,  there was 931 nothing  definite about it. All the evidence which had  been brought  to  Court’s notice was not decisive of  the  matter under  S.  100 of the Act in view of the test laid  down  in Vashit  Narain Sharma’s case (supra). It can, therefore,  be taken as settled that the party who wishes herein to get  an election  declared  void has to  establish  by  satisfactory evidence that the result of the poll had in fact been  mate- rially affected by the violation of Rule 10(5) of the Rules. For  doing  this, it has to be demonstrated that  the  votes would  have  been diverted in such a way that  the  returned candidate would have been unsuccessful. In the instant  case there was no evidence to demonstrate the returned  candidate having derived any benefit from the change of symbol of  the election  petitioner.  Murura  Dasi, to whom  the  ’bow  and arrow’  symbol  was later allotted, was not  the  successful candidate. The election petitioner was required to show that such  number of votes had gone in favour of  the  successful candidate  instead  of in favour of the  petitioner,  simply because  of  the  change of symbol as  would,  without  that number  of votes, make the successful candidates  unsuccess- ful. The petitioner, besides making bare statement, had  not produced any other satisfactory evidence in support of  such a proposition.     In  S.N.  Balakrishna v. Fernandes, AIR  1969  SC  1201: (1969)  3 SCR 603, which was a case under  S.  100(1)(d)(ii) and  S.  123(4) corrupt practice charged  against  an  agent other than election agent, on the question of the result  of the election, in so far it concerned the returned candidate, being  materially affected, Hidayatullah, C.J.  observed  at para 58:               "In  our opinion the matter cannot be  consid-               ered  on  possibility.  Vashit  Narain’s  case               insists on proof. If the margin of votes  were               small  something might be made of  the  points               mentioned by Mr. Jethmalani. But the margin is               large  and the number of votes earned  by  the               remaining  candidates also sufficiently  huge.               There is no room, therefore, for a  reasonable               judicial  guess. The law requires  proof.  How               far  that  proof should go or what  it  should               contain is not provided by the legislature. In               Vashit’s  case, 1955 (1) SCR 509: AIR 1954  SC               513, and in Inayatullah v. Diwanchand Mahajan,               [1958] 15 Ele LR 219 at pp. 235--246 (MP)  the               provision was held to prescribe an  impossible               burden.  The law has however remained  as  be-               fore.  We  arc bound by the  rulings  of  this               Court  and  must say that the burden  has  not               been  successfully discharged. We cannot  over               look the rulings of this Court and follow  the               English rulings cited to us."

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932     In Chhedi Ram v. Jhilmit Ram and Ors., [1984] 2 SCC  281 which  was also a case of improper acceptance of  nomination paper,  Chinnappa Reddy, J. observed that the answer to  the question whether the result of the election could be said to have  been  materially affected must depend  on  the  facts, circumstances,  and  reasonable probabilities of  the  case. Under  the Indian Evidence Act, a fact is said to be  proved when  after  considering the matters before  it,  the  Court either  believes it to exist or considers its  existence  so probable  that a prudent man ought, under the  circumstances of the particular case, to act upon the supposition that  it exists.  If having regard to the facts and circumstances  of the case, a reasonable probability is all one way, the Court must not lay down an impossible standard of proof and hold a fact as not proved.     As  was reiterated in Shiv Charan Singh v. Chandra  Bhan Singh,  [1988]  2 SCC 12, in the absence of  any  proof  the result  of  an  election can not be held  to  be  materially affected; and it is not permissible in law to set aside  the election  of  the returned candidate on  mere  surmises  and conjectures.  A decision in election petition can  be  given only  on positive and affirmative evidence and not  on  mere speculation and suspicious, however strong they are. Indeed, in  the instant case there is no such positive and  affirma- tive  evidence. ,Mere assertions by the election  petitioner were not enough. Nothing was alleged and proved against  the successful  candidate.  There  could be  no  proposition  or contention  that a candidate with a particular symbol  would always  be successful at the hustings or that  a  particular voter  or a number of voters would always vote for a  symbol irrespective of the candidate to whom it is allotted.     Mr. S.N. Singh relies on paragraph 29 of the Judgment in All Party Hill Leaders’ Conference, Shillong v. Captain W.A. Sangma, (supra) wherein Goswami, J. observed:               "For the purpose of holding elections,  allot-               ment  of symbol will find a prime place  in  a               country  where illiteracy is still very  high.               It has been found from experience that  symbol               as  a device for casting votes in favour of  a               candidate of one’s choice has proved an inval-               uable  aid.  Apart from this, just  as  people               develop a sense of honour, glory and patriotic               pride  for a flag of one’s country,  similarly               great fervour and emotions are generated for a               symbol representing a political party. This is               particularly  so in a parliamentary  democracy               which is conducted on party               933               lines. People after a time identify themselves               with the symbol and the flag. These are  great               unifying insignia which cannot all of a sudden               be effaced." There is no dispute about the importance of the symbol in  a backward  constituency. This will, however, not absolve  the election petitioner of his burden of proving that the result of  the election has been materially affected. In  Roop  Lal Sathi v. Nachhattar Singh Gill, (supra) in the facts of that case, this Court observed that:               "The symbols order was issued by the  Election               Commission under Article 324 of the  Constitu-               tion  in exercise of its undoubted  powers  of               superintendence, direction and control of  the               conduct  of  all elections to  Parliament  and               Legislature of every State. It is also relata-

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             ble to Rules 5 and 10 of the Conduct of  Elec-               tions  Rules framed by the Central  Government               in  exercise of their powers under S.  169  of               the  Act. Rule 4 of the Conduct  of  Elections               Rules  provides  that every  nomination  paper               presented  under S. 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  Commis-               sion  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."     Mr.  Singh’s 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, in so far as it concerns a returned candidate, has been materially affected (iv) by any non-compliance with the provisions  of  the Constitution or of this Act  or  of  any rules or orders made under this 934 Act,  the High Court shall declare the election of  the  re- turned  candidate to be void. The violation of sub-rule  (5) of  Rule  loper  se will not invalidate  the  election.  The election petitioner has also to prove that the result of the election,  in so far as it concerns the returned  candidate, was materially affected.     From  the evidence on record considered in light of  the law  enunciated  above, we have no doubt that  the  election petitioner dismally failed to discharge the burden of  prov- ing that the result of the election, in so far it  concerned the  appellant,  who has been the  returned  candidate,  was materially affected. The High Court was in error in holding, without sufficient evidence, that it was materially  affect- ed.     In  the result, the impugned Judgment of the High  Court is set aside and this appeal is allowed with costs which  we quantify  at Rs.3,000 (Rupees three thousand). Let steps  be taken under Section 116C(2) of the Act. R.S.S.                                   Appeal allowed. 935