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Case Number

Election Petn. No. 18 of 1977

Attorney(S)

R. Dwivedi and V. Bahuguna
Girdhar Malaviya. Ashok Mohaley
V.K.S. Chaudhary
Ramesh Singh and Yatendra Singh

Judges

A. Banerji, J.

Acts

provisions of Sea 38 of the Representation of the People Act and Rule 10 of the Conduct of Election Rules
provisions of the Representation of the People Act, 1951, the Conduct of Election Rules
provisions of Section 38 and Rules 5 and 10 of the Conduct of Election Rules, 1961
S. 100(1)(d)(iv) of the Representation of the People Act, 1951 (hereinafter referred
Rule 5 of the Conduct of Election Rules. Sub-rule (4) of the Rule 10
provisions of Sec. 38, Rule 10 of the Conduct of Election Rules
sub-rule (5) of Rule 10 of the Conduct of Election Rules, 1961,
prescribed.10. Rule 10 of the Conduct of Election Rules
Rule 10(4) of the Conduct of Election Rules 1961
provisions of the Constitution or of this Act,
Rule 10 of the Conduct of Election Rules
Section 100 by the 1956 Amending Act,
sub-section (1) of Section 37,
sub-section (1) of Section 38
Rule 10(4) of the Rules.
Sub-rule (5) of Rule 10
Sub-rule (5) of R. 10
Section 100(1)(c)
Rule 47(1)(c).
sub-rule (5)

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Smart Summary

Structured Summary — Election Petition Relating to 22 Bijnor Assembly Constituency (June 1977)

Factual and Procedural Background

This election petition was filed by an elector, Sri Ram Autar, challenging the election of the returned candidate Kunwar Satyabir from the 22 Bijnor Assembly Constituency (poll held 14 June 1977). The petitioner sought a declaration that the respondent's election be declared void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951, on the ground that the result was materially affected by non‑compliance with provisions of the Act, the Conduct of Election Rules and the Election Symbols (Reservation and Allotment) Order, 1968.

Key chronological and factual points (as stated in the opinion):

Nomination papers could be filed up to 3:00 P.M. on 18 May 1977; scrutiny was on 19 May 1977; last date for withdrawal was 21 May 1977 (3:00 P.M.); poll was on 14 June 1977.
Twenty nominations were filed by 18 May 1977; nine candidates withdrew on 21 May 1977.
The returning officer initially allotted the Janata Party reserved symbol (“Haldhar within wheel”) to Shri Kranti Kumar (supported by an authorisation from Janata Party president Chandra Shekhar filed before 3 P.M on 21 May), and allotted the symbol “a horse and a rider” to Kunwar Satyabir because no authorisation for Satyabir had been filed with the returning officer by that time.
On 22 May 1977 the Central Election Officer, Lucknow sent a letter (said to be under directions of the Election Commission) instructing that Satyabir be given the Janata Party symbol and Kranti Kumar the horse-and-rider; that letter was received in Bijnor on 24 May 1977; the returning officer subsequently interchanged the symbols.
Result (announced 15 June 1977): Kunwar Satyabir — 39,936 votes; Kesho Saran Sharma (Congress) — 19,361 votes; Kranti Kumar — 2,372 votes; the remaining eight candidates together — 4,720 votes. Kunwar Satyabir was declared elected.
The High Court considered three issues framed and ultimately dismissed the election petition, awarded costs to the respondent and ordered payment from the security deposit.

Legal Issues Presented

Whether the result of the election of the respondent was materially affected by non‑compliance with Section 38 of the Representation of the People Act, Rule 10 of the Conduct of Election Rules, and Paragraphs 8 and 13(b) of the Election Symbols (Reservation and Allotment) Order, 1968?
Whether the Election Commission had power to modify or alter the symbol allotted by the returning officer to contesting candidates after the period for withdrawal had expired?
Whether the change of symbol rendered the election of the respondent void under Section 100(1)(d)(iv) of the Representation of the People Act?

Arguments of the Parties

Petitioner's Arguments

The returning officer could not alter symbols after the last date and time for withdrawal (3 P.M. on 21 May 1977); respondent had not filed the required written notice signed by the party president by that time and therefore could not be recognised as the Janata Party candidate.
Allotment of the Janata Party reserved symbol to the respondent after that deadline breached Section 38, Rule 5 and Rule 10 of the Conduct of Election Rules and Paragraphs 8 and 13(b) of the Election Symbols Order; any subsequent change by the Election Commission or returning officer was impermissible.
The respondent’s later recognition as the official Janata candidate materially affected the result — had Kranti Kumar remained the official Janata candidate, the petitioner argued Kranti Kumar (having a poor public image) would have lost and the Congress candidate would have won.
Reliance was placed on timing/finality principles from authorities to argue that changes after statutory cut‑offs (nominations/withdrawals) are invalid.

Respondent's Arguments

The respondent asserted he was the Janata Party's official candidate from the beginning (convener in the district) but authorisation had not reached the returning officer by 3 P.M. on 21 May; nevertheless the correct position was disclosed to the Election Commission in time and communicated to the Chief Electoral Officer and the returning officer.
The returning officer corrected the symbol allotment in accordance with directions from the Election Commission; Kranti Kumar was not the official Janata candidate and had issued a statement to that effect after the last date of withdrawal.
The allotment of the symbol initially to Kranti Kumar was inconsistent with Election Commission directions and the Commission had jurisdiction to revise the allotment; the respondent denied any breach of law and denied that the result was materially affected, pointing to his large margin of victory and prayed for dismissal with special costs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baidyanath v. Sita Ram, (AIR 1970 SC 314) (also reported as (1969) 2 SCC 447)	Finality of the electoral roll entries as at the last date for nominations; limits on correction/registration after statutory cut‑offs.	The petitioner relied on this case to argue that post‑deadline changes are invalid. The court reviewed and cited it to explain the petitioner’s point about finality but did not accept that the present case amounted to lack of jurisdiction analogous to the electoral‑roll context.
Ramji Prasad Singh v. Ram Bilas Jha, ((1977) 1 SCC 260 : AIR 1976 SC 2573)	Principle that entries or actions done after the prescribed time (for electoral roll changes) may be without jurisdiction and cannot confer rights.	Referred to by petitioner to support the argument of finality; the court noted the decision but distinguished the facts and did not permit the petitioner to prevail on that basis.
Hari Vishnu v. Ahmad Ishaq, (AIR 1955 SC 233)	That alteration of a prescribed distinguishing mark on ballot papers must be made before the commencement of the poll; post‑poll approval cannot validate ballots lacking the prescribed mark.	Petitioner cited this to contend that any directive changing symbol allocation must be issued before the withdrawal deadline. The court considered the authority but found it did not preclude the Election Commission’s power to direct or revise symbol allotments under the Rules and the Symbols Order.
Sadiq Ali v. Election Commission of India, ((1972) 4 SCC 664 : AIR 1972 SC 187)	Confirmed plenary power of the Election Commission to specify symbols and to issue directions; Rule 10(4) and Rule 10(5) empower the Commission to issue directions and revise allotments inconsistent with those directions.	The court relied heavily on this Supreme Court authority as establishing that the Election Commission has complete/plenary power to revise a returning officer's symbol allotment and to issue general or special directions even where two rival claimants or competing claims exist.
Vashishta Narain v. Deo Chandra, (AIR 1954 SC 513)	Burden on the election petitioner to prove that the alleged irregularity materially affected the result; speculative assertions are insufficient.	The court applied this principle to emphasize that the petitioner must provide satisfactory evidence that the breach materially affected the result; the court found the petitioner’s evidence speculative and inadequate and therefore rejected the material‑effect claim.
Paokai v. Rishang, (AIR 1969 SC 663)	Affirmation of the petitioner’s burden to demonstrate material effect on result (followed Vashishta Narain).	The court cited this case as an authoritative follow‑up confirming the burden on the petitioner; used it to support the finding that the petitioner failed to discharge the burden.

Court's Reasoning and Analysis

The court proceeded in a structured legal analysis addressing first whether any non‑compliance with law occurred and then whether any such non‑compliance materially affected the result (the two‑fold test under Section 100(1)(d)(iv)).

Step 1 — Determine whether a non‑compliance occurred:

The court identified the specific statutory and regulatory provisions relied upon by the petitioner: Section 38 of the Act (publication of list of contesting candidates immediately after expiry of withdrawal period), Rule 10 of the Conduct of Election Rules (preparation of list; allotment of symbols; Rule 10(5) allowing commission to revise allotment inconsistent with its directions), and Paragraphs 8, 13(b), and 18 of the Election Symbols Order (allocation of reserved symbols and power of the Commission to issue instructions/directions).
Facts established that no notice in favour of Satyabir signed by the party president had been filed with the returning officer by 3 P.M. on 21 May, whereas a notice in favour of Kranti Kumar had been so filed; accordingly, the returning officer initially allotted the Janata Party reserved symbol to Kranti Kumar and the horse‑and‑rider to Satyabir — an allotment consistent with Paragraph 13 and Rule 10 insofar as the returning officer followed then‑available authorisations.
The Election Commission (via the Central Election Officer) then instructed that the allocation be interchanged and the returning officer complied; petitioner argued that such a direction, if issued after the deadline, was invalid.

Step 2 — Whether the Election Commission could lawfully revise the allotment after the returning officer's allotment:

The court examined Rule 10(4)–(5) and Paragraph 18 of the Order. Rule 10(5) states the returning officer’s allotment is final except where inconsistent with directions of the Election Commission, in which case the Commission may revise the allotment. Paragraph 18 expressly empowers the Commission to issue instructions or directions for clarification, removal of difficulty, or matters necessary for smooth conduct of elections.
Relying principally on the Supreme Court decision in Sadiq Ali v. Election Commission of India, the court concluded the Election Commission possesses plenary power to revise symbol allotments and to issue general or special directions. The court read Rule 10(5) as an express exception to finality and held that such electoral‑administration power necessarily includes the ability to resolve competing claims to party symbols and, where necessary, change an allotment even after a returning officer had acted.
The court rejected the petitioner’s contention that any Commission direction must have existed prior to the withdrawal deadline. The petitioner had not proven that the Commission’s directive was issued after the permissible time; only a transmission letter dated 22 May from the Chief Electoral Officer to the returning officer was on record. The court held that transmission delay did not divest the Commission of jurisdiction to revise an allotment and that the burden lay on the petitioner to prove the directive’s timing rendered it invalid.
The court also addressed the petitioner’s policy concern — that allowing post‑deadline change permits political maneuvering — and found no evidence that the Commission had acted improperly; the court relied on the presumption (noted in Sadiq Ali) that a high authority would exercise such power fairly.

Step 3 — Whether the petitioner proved material effect on the result:

The court reiterated the established principle (Vashishta Narain and Paokai) that the election petitioner bears the burden of proving that the alleged breach materially affected the result and that speculative assertions are insufficient.
The petitioner’s sole theory was speculative: that had Kranti Kumar retained the Janata symbol he would have attracted more votes (despite his alleged poor image) and that the Congress candidate would thereby have won. The court found no direct evidence (such as voter testimony or reliable quantitative proof) to support this causal claim.
The court noted the electoral context of 1977 (a Janata wave) and observed that the petitioner himself admitted a significant political trend favoring Janata candidates; the court concluded it would be speculative to infer from the symbol change alone that the result would have been altered.
Numerical results were considered: Satyabir’s margin (39,936 votes) was substantially larger than the votes for Kranti Kumar (2,372) and the combined votes of other candidates; the court found the petitioner failed to establish that the re‑allotment of the symbol materially affected this outcome.

Conclusion of the reasoning: The court held there was no non‑compliance of the Act, Rules or Order sufficient to void the election (finding the Commission had power to revise allotments), and the petitioner failed to discharge the burden of showing material effect; accordingly the petition was dismissed.

Holding and Implications

Holding:

DISMISSED — The Election Petition fails and is dismissed with costs.

Direct consequences for the parties:

The election of Kunwar Satyabir is upheld; his return as the elected representative for 22 Bijnor stands.
The petitioner’s challenge under Section 100(1)(d)(iv) was rejected in full; the respondent is entitled to his costs (special costs denied; ordinary costs awarded), to be paid from the security deposit kept in court.

Broader implications:

The court applied existing Supreme Court authority (notably Sadiq Ali) to confirm the Election Commission’s plenary power to issue directions and to revise a returning officer’s allotment of symbols where inconsistent with Commission directions. The opinion does not purport to establish a new precedent beyond applying and reaffirming that established principle. No broader legal rule contrary to the cited authorities was laid down by this opinion.

Disposition

The Election Petition was dismissed. Costs were awarded to the respondent and to be paid from the amount deposited as security for costs in the court. The petition for special costs was refused.

Note: This summary is confined to the materials and reasoning expressly contained in the provided opinion and does not add or infer facts or legal conclusions beyond that text.

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Sri Ram Autar v. Kr. Satyabir .

1. This election petition has been filed by an elector Sri Ram Autar. He seeks to challenge the election of the returned Candidate Kunwar Satyabir from 22 Bijnor Assembly Constituency held in June 1977. The election has been challenged on the ground that the result of the election in so far as it concerns the returned candidate has been materially affected by a non-compliance with the provisions of the Representation of the People Act, 1951, the Conduct of Election Rules and the Provisions of the Election Symbols (Reservation and Allotment) Order, 1968. In other words, he seeks the election of the respondent to be declared void under S. 100(1)(d)(iv) of the Representation of the People Act, 1951 (hereinafter referred to as the Act).

2. The petitioner's case very briefly stated is as follows:

3. That the Respondent who had filed his nomination seeking the symbol of the Janta Party, had not been able to file a notice in writing signed by the President of the Janta Party by 3 p.m on the 21st May, 1977 which was the last date for the withdrawal of the candidatures and he was allotted the symbol of a horse and a rider. Sri Kranti Kumar who had also filed his nomination as a candidate for the Janta Party had been able to do so and was allotted the official symbol of the Janta Party by the returning officer after the time for the withdrawal was over. The returning officer having allotted the symbols to the contesting candidates could not alter the same thereafter. Subsequently, however, the symbol of Kunwar Satyabir was interchanged with that of Shri Kranti Kumar. The respondent was allotted the official symbol of the Janta Party namely “Haldhar within wheel.” This could not be done. This act was in breach of the provisions of Section 38 and Rules 5 and 10 of the Conduct of Election Rules, 1961 read with Paragraphs 8 and 13(b) of the Election Symbols (Reservation and Allotment) Order, 1968. The result of the election had been materially affected inasmuch as if this had not been done Kranti Kumar would have contested as the official candidate of the Janta Party. He would have lost the election as his public image was not good. The Congress candidate would have won the election. Kunwar Satyabir would not have won the election as an independent candidate. Since Kunwar Satyabir had not filed the authorisation by the President of the Janta Party by 3 P.M cm 21st May, 1977 the returning officer could not recognise Kunwar Satyabir as the candidate set up by the Janta Party and the provisions of Paragraph 18 of the Election Symbols (Reservation and Allotment) Order, 1968 does not empower the Election Commission to permit a political party to change its symbol after the last date of withdrawal of the candidatures. Under Paragraph 13(b) of the Election Symbols (Reservation and Allotment) Order, 1968 Kunwar Satyabir could not have been recognised as the official candidate of the Janta Party. Further the Election Commission of India had no power to issue any direction or in structions to the Chief Electoral Officer after the last date of withdrawal was over and the returning officer had no jurisdiction or power to modify or alter the list of contesting candidates after 3 P.M on 21st May, 1977. On these grounds the petitioner sought a declaration that the election of the returned candidate Kunwar Satyabir had been materially affected and it be declared void. The case of the respondent Kunwar Satyabir was that he was the official candidate of the Janta Party from the very beginning being the convener of the Party in the district. Since the authorisation by the president of the Party could not reach the returning officer by 3 P.M on the last date of withdrawal, the returning officer had allotted the symbol to Shri Kranti Kumar. The correct position had been disclosed to the Election Commission of India within time and had been communicated to the Chief Electoral Officer Lucknow and the returning officer of the constituency. The returning officer accordingly corrected the position. Shri Kranti Kumar was not the official candidate of the Janta Party from this constituency. He had also issued a statement to that effect and in favour of the respondent after the last date of withdrawal. The allotment of the symbol “a horse and a rider” was inconsistent with the directions of Election Commission. The Election Commission had jurisdiction to revise the symbol. He denied that the result of the election had been materially affected in this process. He had won by an overwhelming majority. He denied that there was any breach of any provision of law as claimed by the petitioner. He prayed for the dismissal of the election petition with special costs.

4. The following 3 Issues were framed:—

1. Whether the result of the election of the Respondent has been mate-daily affected by the non-compliance with the provisions of Sea 38 of the Representation of the People Act and Rule 10 of the Conduct of Election Rules and also the provisions of Paragraphs 8 and 13(b) of the Election Symbols (Reservation and Allotment) Order, 1968?

2. Whether the Election Commission had power to modify or alter the symbol that had been allotted by the returning officer to the contesting candidates after the period of withdrawal had expired?

3. Whether the change of the symbol renders the election of the respondent void under the provisions of Sec. 100(1)(d)(iv) of the Representation of the People Act?

Issues Nos. 1 and 2.

5. There is no dispute between the parties that the questions involved in this election petition are principally questions of law. The questions are whether the symbols once allotted by the returning officer could be changed subsequently and whether the Election Commission had any power to issue any direction to the returning officer after the last date of the withdrawal of the candidates. Before I take up these questions it would be necessary to set down the relevant facts which are not disputed.

6. In regard to the election to the U.P Legislative Assembly from 22 Bijnor Constituency the nomination papers could be filed up to 3 P.M on the 18th May, 1977. The date of scrutiny was fixed for the 19th May, 1977 and the 21st May, 1977 was fixed as the last date of withdrawal of candidatures. The date of poll was fixed for the 14th June, 1977 between 7.30 A.M to 4.30 P.M

7. Twenty candidates filed their nomination papers by the 18th May, 1977. The names of these candidates were put up on the notice board by the returning officer. On the 21st of May, 1977 nine of the 20 candidates withdrew from the contest. Shri Kranti Kumar who had also filed his nomination and preferred the symbol of “Haldhar within wheel” was allotted that symbol by the returning officer. An authorisation by the president of the Janta Party Shri Chandra Shekhar had been filed with the returning officer showing the name of Shri Kranti Kumar as the candidate of the party. Kunwar Satyabir who had also asked for the same symbol in his nomination paper was, however, allotted the symbol of “a horse and a rider”. The Central Election Officer, Lucknow sent a letter dated 22nd May, 1977 to the District Magistrate, Bijnor intimating that under the direction of the Election Commission of India Kunwar Satyabir should be given the symbol of “Haldhar within wheel” and Shri Kranti Kumar the other contesting candidate should be given the symbol of the horse and the rider. This letter was received by the Election officer of the District Bijnor on 24th May, 1977. Subsequently, the returning officer interchanged the symbol of respondent Satyabir with that of Kranti Kumar. The result of the election was announced an the 15th June, 1977. Kunwar Satyabir received 39,936 votes whereas Shri Kesho Saran Sharma his nearest rival secured 19,361 votes. He was the Congress Candidate. Shri Kranti Kumar secured 2372 votes. The total number of votes secured by the remaining 8 candidates was 4720 votes. Kunwar Satyabir was declared elected to the U.P Legislative Assembly from 22 Bijnor Constituency.

8. The provisions under which the election of Kunwar Satyabir has been challenged is Section 100(1)(d)(iv) of the Act which reads as follows:

“S. 100. Grounds for declaring election to be void:—

(1) Subject to the provisions of sub-sec. (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 maternally 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 Act, the High Court shall declare the election, of the returned candidate to be void.”

9. In other words, if the High Court is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non-compliance of the law, the High Court shall declare the election of such a candidate to be void. The High Court must be satisfied firstly that there has been a non-compliance with the provisions of law and secondly, that the result of the election, in so far as it concerns a returned candidate, has been materially affected thereby. Therefore, the first question to be seen is whether there has been any non-compliance with the provisions of law. Sub-clause (iv) refers to the “non-compliance with the provisions at the Constitution or of this Act or of any rules or orders made thereunder”. it is nobody's case that there has been a non-compliance with any provisions of the Constitution. The specific allegation is that there has been a non-compliance with the provisions of Sec. 38 of the Act, Rule 10 of the Conduct of Election Rules and Paragraphs 8 and 13(b) of the Election Symbol (Reservation and Allotment) Order, 1968. It will, therefore, be proper to refer to these provisions. Section 38 of the Act reads as follows:

“S. 38. Publication of list of contesting candidates:—

(1) immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of Section 37, the Returning Officer shall prepare and publish in such form and manner as may be prescribed, a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.

(2) The said list shall contain the names in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed.

10. Rule 10 of the Conduct of Election Rules reads as follows:

“R. 10. Preparation of List of contesting candidates:—

(1) The list of contesting candidates referred to in sub-section (1) of Section 38 shall be in Form 7-A or Form 7-B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or languages as the Election Commission may direct.

(3) If the list is prepared in more languages than one, the names of the candidates therein shall be arranged alphabetically according to the script of such one of those languages as the Election Commission may direct.

(4) At an election in a parliamentary or Assembly constituency, where a poll becomes necessary, the Returning officer shall consider the choice of symbol 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 preferences for the same symbols, decide by lot to which of such candidate the symbol will be allotted.

(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.

(6) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer.”

Paragraphs 8 and 13(b) of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the Order), read as follows:

“Paragraph 8: Choice of symbols by candidates of National and State parties and allotment thereof:—

(1) A candidate set up by a National party at any election in any constituency in India shall choose, and shall be allotted, the symbol reserved for that party and no other symbol.

(2) A candidate set up by a State party at an election in any constituency in a State in which such party is a State party, shall choose and shall be allotted the symbol reserved for that party in that State and no other symbol.

(3) A reserved symbol shall, not be chosen by, or allotted to any candidate in any constituency other than a candidate set up by a National party for whom such symbol has been reserved or a candidate set up by a State party for whom such symbol has been reserved in the State in which it is a State party even if no candidate has been set up by such National or State Party in that constituency.”

“Para. 13: When a candidate shall be deemed to be set up by a Political Party for the purposes of this order a candidate shall be deemed to be set up by a political party if, and only, if:—

(a) the candidate has made a declaration to that effect in his nomination paper;

(b) a notice in writing to that effect has not later than 3 P.M on the last day of withdrawal of candidatures, been delivered to the returning officer of the constituency;

(c) the said notice is signed by the president, the secretary or any other office-bearer of the party and the president, secretary or such other office-bearer is authorised by the party to send such notice and the name and specimen signature of the president, the secretary of such other office-bearer are communicated in advance to the Returning officer of the constituency and to the Chief Electoral officer of the State.”

11. Since both the parties have referred to the provisions of Paragraph 18 of the above Order it will be relevant to quote the same also.

“18. Power of Commission to issue instructions and directions.— The commission may issue instructions and directions—

(a) for the clarification of any of the provisions of this order;

(b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions: and

(c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this order makes no provision or makes insufficient provision and provision is in the opinion of the commission necessary for the smooth and orderly conduct of elections.”

12. The contention of the learned counsel for the petitioner is that in view of the mandatory provisions of Section 38 of the Act, Rule 10 of the Conduct of Election Rules and Paragraphs 8 & 18 of the Order any Symbol once allotted by the returning officer to a candidate cannot be changed subsequently. It was further contended that there is no power even in the election commission to order for the change of the allotment of symbol even under the provisions of Paragraph 18 of the Order, it was urged that by ordering a change of the symbol of the returned candidate after the last date of withdrawal there has been a breach of the provisions of Sec. 38, Rule 10 of the Conduct of Election Rules and Paragraphs 8 and 13 of the Order.

13. Reference was made by the learned counsel to the specification of time and date in Sec. 33 in regard to the presentation of the nomination paper before the returning officer. He also referred to the limited power of adjournment in the matter of scrutiny to be found in Sec. 36(5) of the Act. He also referred to the specific mention of time in regard to the withdrawal of candidature. A reference was also made to the mandatory nature of the direction in Sec. 38 of the Act for the publication of the list of contesting candidates immediately after the expiry of the period of withdrawal. From all these provisions it was contended that the Act sets down very specifically not only the dates but the timings of doing of certain acts, Anything done beyond the specified period is of no significance. If a nomination paper is filed after 3 P.M on the last date fixed for the receipt of nomination papers that is not to be accepted, Similarly, a candidate can only withdraw upto 3 P.M on the last date fixed for the withdrawal of the candidature. If he is late in withdrawing his candidature even by a minute after 3 P.M his withdrawal cannot be permitted for there is no power in the returning officer to permit him to do so. It is true that the Act lays down specific timings for doing of certain acts like filing of nominations and withdrawals.

14. The returning officer is to allot the symbols to the contesting candidates immediately after the time fixed for the withdrawal of the candidature expires. Basically a candidate can only be allotted the symbol of his choice but if he is the candidate of a National or State political party then he can be allotted no other symbol than the one which is reserved for that party. In the present case I need not go into the question of the allotment of symbols for independent candidates, for I am not really concerned with it. The allotment in the present case is of the reserved symbol reserved for a political party. Rule 10(4) of the Conduct of Election Rules 1961 provides that the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination paper and shall, subject to any general or special direction issued in this behalf by the Election Commission, allot a different symbol to each contesting candidate. It, therefore, refers to the power of the Election Commission to issue general or special directions in this behalf. Some directions are contained in the order. In Paragraph 8 of the order a direction has been given for the allotment of the symbol reserved for a National party, to a candidate set up by the National party and he cannot be allotted any other symbol. In paragraph 13 a direction has been issued that a candidate shall be deemed to be set up by a political party if the candidate has made a declaration to that effect in his nomination paper and has filed a notice in writing to that effect by 3 P.M on the last data of withdrawals with the returning officer of the constituency and further that the said notice is signed by the president or the secretary or any other office-bearer of the party, and the party has authorised such an office-bearer to do so and this has been communicated in advance to the returning officer of the constituency and the chief electoral officer of the State. Thus in the case of a political party the reserved symbol meant for that political party can only be allotted to a candidate who has indicated in his nomination paper that he is a candidate of that party and has given a notice to that effect to the returning officer duly signed by the official of the party who is empowered to do so, in the present case there is no dispute that Shri Chandra Shekhar, the president of the Janta Party, was authorised by the party to give the notice and it was his authenticated signature which had been sent to the returning officer and the Chief Electoral Officer of the State. Consequently, a candidate claiming to be the candidate of the Janta Party could only be allotted the symbol of that party by the returning officer provided he had filed before the last date of withdrawal with the returning officer the notice signed by the president of the party as envisaged in Paragraph 13(c) of the Order. It is not disputed that no such notice on behalf of the respondent had been filed before the returning officer by 3 P.M on 21st May, 1977 which was the last date of withdrawal of the candidatures, Further, it is undisputed that such a notice signed by the president of the Janta party had been filed before the Returning officer, before 3 P.M on the 21st May, 1977 indicating that Kranti Kumar was the candidate of the Janta Party, it was, therefore, rightly urged that the Returning Officer had acted in accordance with law in allotting the reserved symbol of “Haldhar within Wheel” to Shri Kranti Kumar, However, the said allotment would be not in accordance with law if the Election Commission issued any direction or instruction to the contrary. That direction or instruction could be general or special, as contemplated under Rule 10(4) of the Rules. In that event the allotment of symbol had to be amended or changed.

15. The question therefore is whether the election commission had any power to order for the change of the symbol after it had been allotted by the Returning Officer, Learned counsel for the petitioner contended that in sub-rule (5) of Rule 10 of the Conduct of Election Rules, 1961, the words used are “the allotment by the Returning Officer of any symbol to a candidate shall be final, … ………………………” He argued that this allotment of symbol could not be altered or changed except as provided under the law. He urged that the very sub-rule (5) indicated the case where if would not be final if it is inconsistent with any direction issued by the Election Commission, if would not be final. It postulated, according to the learned counsel, a direction issued prior to 3 P.M on the last date of withdrawal. A direction issued subsequent to the expiry of period of time for the withdrawal of the candidature is not visualised. In other words, his contention was that an order allotting a symbol to a candidate could only be set aside if it was inconsistent with any existing direction issued by the Election Commission, otherwise it would be final. The finality would be reached, according to him, at the moment when the allotment was made. Learned counsel was not able to cite any direct authority in support of his contention, but cited certain decision to emphasis the point of finality. In the case of Baidyanath v. Sita Ram (AIR 1970 SC 314), it was held that the power to correct entries in the Electoral Roll or to include new names could not be exercised after the last date for making nomination and before the completion of election. The electoral Roll in Sec. 62(1) of the Act meant the electoral roll that was in force on the last date for making nomination for the election. It was further held that the names of persons entered as electors after that date was not permissible for the purposes of election. Referring to Section 27(2) of the Act, their Lordships observed (at p. 317)

“A fair reading of the various clauses in Section 27(2) will make it clear that the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency, should be considered as final for the purpose of that election. Learned counsel contended that where there was a finality attached to an act, it could not be subsequently altered, in Ramji Prasad Singh v. Ram Bilas Jha, ((1977) 1 SCC 260 : AIR 1976 SC 2573), their Lordships were considering an appeal u/S. 116A of the Act. One of the questions was whether forty new members entered on the electoral roll after the last date of making nominations could vote in the election. After considering the provisions of Sec. 23(3) and Section 62(1) of the Act, their Lordships held (at p. 2580)

“If the name of a person is entered in the electoral roll in violation of the mandate contained in this section, he can have no right to vote by reasons merely of the entitlement conferred by Section 62(1) of the Act of 1951.”

16. Their Lordships further observed:

“If, as here, the electoral roll is amended after the time-limit set down in Section 23(3) of the Act of 1950, the amendment would be without Jurisdiction conferring no right to vote on the persons whose names are thus included in the roll. As held by this Court in Baidyanath v. Sitaram, (1970) 51 SCR 839 : (1969) 2 SCC 447 : AIR 1970 SC 314 the provision contained in Section 23(3) is mandatory not merely because of the language employed in that sub-section but more so in view of the purpose behind the particular provision. The sub-section does not deal with any mode or procedure in the matter of registering voters, it interdicts the concerned officer from interfering with the electoral process under the prescribed circumstances. Therefore, when there is a breach of S. 23(3), the question is not of an irregular exercise of power but of the lack of power itself.”

17. Learned counsel laid emphasis on the above observations and urged that similarly in the present case, it was not a case of irregular exercise of power but a case of lack of power. Reference was made to a decision of the Supreme Court in the case of Hari Vishnu v. Ahmad Ishaq (AIR 1955 SC 233). In that case, it was found that some of the ballot papers had a different distinguishing mark than the one prescribed. The Election Commission passed an order subsequent to the actual polling, but before the votes were counted that the ballot papers bearing brown bar would also be a valid ballot paper. Their Lordships held: “If a distinguishing mark had been prescribed under Rule 28, the ballot paper to be delivered must bear that mark. Therefore, if any change or alteration of the original distinguishing mark is made, it must be made before the commencement of the poll, and the ballot paper should contain the new distinguishing mark. The approval by the Election Commission subsequent to the polling therefore cannot render valid the 301 ballot papers which did not bear the distinguishing mark prescribed for the election and they were liable to be rejected under Rule 47(1)(c).” Learned counsel emphasised on the above observations to urge that if a general or special order had to be issued, it had to be done prior to 3 P.M on the date fixed as the last date for withdrawal of candidature. If this was not done, it could not subsequently be done by any directive issued by the Election Commission.

18. As regard, the question of finality, I am unable to agree with the contention of the learned counsel for the petitioner. sub-rule (5) of R. 10 itself provides for an exception, The provision does not stop after the word ‘final’ but specifically provides that it would not be so where it is inconsistent with any general or special directive of the Election Commission. It is apparent that if there is a directive by the Election Commission and if that directive is contrary to the decision of the Returning Officer the directive of the Election Commission would prevail. I would in this context refer to a passage from the decision of the celebrated case of allotment of symbol, Sadiq Ali v. The Election Commission of India ((1972) 4 SCC 664 : AIR 1972 SC 187). In paragraph 37 their Lordships observed:

“It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation, choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by Rule 5 of the Conduct of Election Rules. Sub-rule (4) of the Rule 10 gives a power to the commission to issue general or special directions to the Returning officers in respect of the allotment of symbols. The allotment of symbols by the Returning officers has to be in accordance with those directions. sub-rule (5) of Rule 10 gives a power to the commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would therefore, follow that Commission has been clothed with plenary power by the above mentioned Rules in the matter of allotment of symbols. The validity of the said rules has not been challenged before us. If the commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. (Emphasis is laid on the portion underlined by me.)

19. The law on the point has been clearly laid down by the Supreme Court. The power of the Election Commission in the matter of allotment of symbol is complete. In my opinion, the weighty observations made in the above case gives an absolute power to the Election Commission to revise the allotment of a symbol made by the Returning officer. Further, Election Commission has power to issue general or special directive in the matter of allotment of symbols not only in respect of political parties or rival groups claiming the symbol of a political party, but also as between the individuals claiming the symbol of a political party. The power is, therefore, in the Election Commission to revise the order of allotment of symbol, and it can in appropriate cases issue directives for changes or alteration in the allotment of symbol.

20. An argument was raised in the alternative that this alteration or change could only be done prior to the ultimate time fixed for the withdrawal of the candidature. The alteration of the allotment of symbol could be done provided it was inconsistent with some order, special or general, issued by the Election Commission, and not otherwise. It, therefore, postulated the existence of a special or general order at the time when the symbol was allotted by the Returning officer. It was, therefore, necessary that the special or the general order should have been issued prior to 3 P.M on the last date of withdrawal of the candidature. If the general or special order had not been issued prior to that period of time, there was no power in the Election Commission to issue a directive after the aforesaid time fixed for the withdrawal of the candidature. Even if this argument were to be accepted, it may be stated here that no material has been brought on the record and nothing has been shown that the said directive was not issued by the Election Commission before the appointed time. The petitioner has failed to show that the direction issued by the Election Commission was made subsequently. All that he has brought on the record is a letter sent by the Chief Electoral Officer, Lucknow to the Returning Officer on the 22nd May, 1977. There is nothing on the record to show that the original order was passed by the Election Commission not on the 21st May, but on the 22nd May, 1977. The burden to establish this lay on the petitioner, who has challenged the election. The time taken in transmission of the direction would not take away the jurisdiction and the power of the Election Commission from revising the order of the allotment of symbols.

21. Learned counsel for the petitioner then contended that the power to issue general or special order is not contained in Paragraph 18, which provides for the clarification of any provision of the order or for the removal of any difficulty in regard to implementation of any such provision and in relation to any matter with respect of reservation and allotment of symbols recognised by the political parties for which the order makes no provision or makes insufficient provision or for which the provision is necessary in the opinion of the Commission for the smooth and orderly conduct of election. Learned counsel contended that the order passed by the Election Commission, in the present case, does not fall under any of the three clauses of Paragraph 18. In other words, he contended that the scope and ambit of paragraph 18 is very limited. It is for the furtherance of the objects and matters provided for under the order itself and does not envisage the passing of a special or general order in regard to alteration of the allotment of symbols to a particular candidate. He argued that the order envisaged under paragraph 18 must be consistent with the scheme and essential provisions of the order itself and not for interfering with an order of the Returning Officer which had become final. It is not possible to accept this contention of the learned counsel for the reasons already Indicated above. The Supreme Court in the case of Sadiq Ali v. The Election Commission of India ((1972) 4 SCC 664 : AIR 1972 SC 187) (supra) made it abundantly clear that the Election Commission of India has plenary power to revise the allotment of symbols. Rule 10 of the Conduct of Election Rules gives power to the Election Commission to issue special or general order. The exercise of such power would squarely come under Cl. (b) of paragraph 18. The Commission is empowered to issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of any such provision which means the provisions of the order. The question in regard to the matter of allotment of a symbol to a candidate of a political party comes within the ambit of paragraph 13 of the order. A letter had been issued to the Election Commission by Shri Ram Krishna Hegde. General Secretary of the Janata Party indicating that the respondent No. 1 was the candidate of the Janata Party from 22-Bijnor Assembly Constituency. It appears that in pursuance of the above letter, an instruction or direction was Issued by the Election Commission.

22. Paragraph 18 uses the word ‘instructions’ or ‘directions’. The Election Commission could, therefore, very well Issue either an instruction or direction accordingly to the Returning officer either directly or through the chief electoral officer. I am, therefore, of the opinion that the Election Commission had power to issue instructions or directions even in the matter of alteration of allotment of symbols.

23. Learned counsel then contended that if this power is conceded to the Election Commission, then it is open to the Election Commission to change an official candidate of any political party even after the time fixed for the withdrawal of the candidature. In other words, he urged that an official candidate of a party could be changed even subsequently as a result of political manoeuvrings. I am mentioning this argument merely because great emphasis was laid on this, but I have no hesitation in rejecting this argument, for there is no basis either in the Election Petition or in the evidence led in this case to warrant a contention that such change happened because of the political manoeuvrings to which the Election Commission was a party. I would again refer to the case of Sadiq Ali ((1972) 4 SCC 664 : AIR 1972 SC 187) (supra) where their Lordships have said (at p. 201):

“The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner.”

24. The same observation would hold good in the matter of issuing instructions or directions by the Election Commission.

25. Learned counsel then contended about the effect of symbols in election. He relied on paragraph 18 and the reported decision in the case of Sadiq Ali v. The Election Commission of India ((1972) 4 SCC 664 : AIR 1972 SC 187) (supra). it was stated there that because of the overwhelming majority of electorate being illiterate, some pictorial representation on the ballot paper itself was necessary so that the voters might identify the candidate of their choice. It was further observed (at p. 195):

“Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired a great value because the bulk of the electorate associated the political party at the time of elections with its symbol. It is, therefore, no wonder that in case of a split in a political party, there is a keen contest by each rival group to get the symbol of that party.”

26. There can be no dispute with the original and the value of the symbols in the elections in this country. Learned counsel for the petitioner laid great emphasis on the allotment of symbol in this case, as the electorate were well acquainted with the symbol, but a perusal of the Election Petition and the evidence of the petitioner himself gives a different picture altogether. The petitioner has stated that half the electorate in this Assembly constituency were literate and that they were well acquainted with the issue involved. They knew the candidates and were oppressed by the excess committed during the Emergency. Consequently, the symbol did not assume the importance as it did in previous elections.

27. It is significant to note in this context that the petitioner has nowhere stated that Shri Kranti Kumar was the official candidate of the Janata Party. This has not been stated either by the petitioner or any of his witness. Every one has accepted that Kr. Satyabir was the Janata party candidate, as a number of candidates hoping to get the Janata party ticket had filed their nominations. It is also common knowledge that the Janata Party had not been able to decide upon the final list of candidates for the various constituencies, and the list was published quite late. A belated attempt was made to bring a newspaper on the record to show that the name of Kr. Satyavir was not included in the list released to the press on the 19th May, 1977. I have given reasons for the rejection of that prayer separately. I have already held that the Returning officer lad given the symbol reserved for the Janata Party to Kranti Kumar but then it had been refused at the instance of the Election Commission. Great emphasis was laid on the use of the words “undermentioned changes” in the letter dated 21st May, 1977, Ex. R-4, said to have been written by the General Secretary of the Janata Party. Item No. 6 in the letter reads as follows:

“6. Constituency No. 22 Bijnor. Our candidate is Satyavir.”

28. It was argued by the learned counsel for the petitioner that this showed that there was a change of the candidate made by the General Secretary of the Janata Party. Even assuming they had made a change in their official candidates. It has to be considered that the political party was entitled to change its official candidates well within time allowed by law. This letter was not written after the last date of withdrawal but on the last date of withdrawal. No one has produced any material to show as to what specific order was passed by the Election Commission on his letter. If the entry in respect of item No. 6 is contrasted in respect of item No. 1, it would at once be obvious that there is a difference. In respect of item No. 1, the entry reads as follows:

“1. Constituency 188 Paniara our candidate in the constituency will be Smt. Kamla Sahai and not Smt. Savita Saxena.”

29. It is obvious from the above that a change was proposed in place of Smt. Savita Saxena, but the same is not the position in respect of constituency No. 22-Bijnor.

30. Having given the matter the consideration it deserves I am satisfied that the Election Commission had power to revise the allotment of symbol and the instructions issued by it were not contrary to the law and did not violate any provisions of the Act. Rule or the order.

31. I now come to the second question viz., as to whether the result of the election so far as respondent No. 1 is concerned has been materially affected. The burden to establish this rests entirely on the petitioner. Learned counsel for the petitioner argued that if the allotment of symbol had not been revised by the Election Commission, then Kr. Satyavir would not have got the symbol reserved for the Janata Party and Shri Kranti Kumar would have contested the election on that Symbol. Since the image of Shri Kranti Kumar was not good, he would Saw lost the election, and the congress candidate, Kesho Saran would have succeeded. This is a speculative argument. Speculative arguments have no place in an Election Petition. There is no question of a particular candidate losing an election merely because his image was bad. The petitioner admitted that there was a Janata wave and that was the trend of popular voting in this election. It was evident that whichever candidate was adopted by the Janata Party had a greater chance of getting elected. I can quite visualise the situation in the context of 1977 Election to the Parliament and to the Legislative Assembly in the Uttar Pradesh that a person, who contested the election on the Janta party ticket had a very good chance of winning the election because of the trend of popular voting. It would be entirely in the realm of speculations to hold that congress party would have succeeded here because the image of Shri Kranti Kumar was said to be not good.

32. It must be remembered that the petitioner is an elector only and not a candidate in this election, Shri Kesho Saran Sharm, who got the second largest number of votes in this election, has not filed this election petition. The other person, who could be aggrieved, is Shri Kranti Kumar. He has not filed any Election petition. Of course, an elector can file an election petition, but he has to show that the result of the election has been materially affected.

33. The Supreme Court in the case of Vashishta Narain v. Deo Chandra (AIR 1954 SC 513), had laid down the law on the above point:

“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 his 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 evidence 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.” This was a decision prior to the amendment of Section 100 by the 1956 Amending Act, what was Section 100(1)(c) in the above section is now 100(1)(d) after amendment. This case was followed by the Supreme Court in the case of Paokai v. Rishang (AIR 1969 SC 663), and Chief Justice Hidayatullah made the point clear in the following words (at pp. 665-666):

“In our country, the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected.

Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not.”

34. It is clear from the above that the petitioner has to demonstrate either positively or even reasonably that the poll would have gone against the returned candidate. The question is whether the petitioner has been successful in discharging this burden cast upon him. I answer this question emphatically against the petitioner. The evidence led by the petitioner is speculative, conjectural and inadequate. There is no allegation much less any evidence to show that people would have voted for the Congress candidate and not for the Janata Party candidate. No evidence of any voter in this respect was produced. The entire arguments were based on the reasoning that Shri Kranti Kumar enjoyed a bad image and therefore would not have collected as many votes as the respondent No. 1, Shri Kranti Kumar was a candidate in this election and secured a little over 2700 votes but that was a stage when he had told the people both orally and by publication that he was not contesting the election.

35. The learned counsel for the petitioner contended that Kr. Satyavir would have lost the election if he had contested as an independent candidate. This contention, in my opinion, is only academic, in view of the finding that there has been no breach of any provision of law, the question of the election having been materially affected does not arise. I would have examined the question in detail, if there was non-compliance of any provision of the law. However, I am satisfied from the material on the record that the petitioner has miserably failed to establish that the result of the election has been materially affected.

36. I hold that there has been no non-compliance of provision of the Act. Rules or order and the result of the election has not been materially affected in this case. I further hold that the Election Commission had power to alter or modify the symbol allotted by the Returning Officer by a special or general order. Consequently, I answer issue No. 1 in the negative and issue No. 2 in the affirmative.

Issue No. 3

37. In view of my finding under issues 1 and 2 this issue is also answered in the negative and against the petitioner. The election of the respondent cannot be declared to be void under Section 100(1)(d)(iv) of the Act.

CONCLUSION

38. In view of my answers on Issues, 1, 2 and 3, the Election Petition must fail.

39. The respondent has prayed for special costs but I do not think this to be a fit case to award special costs. He will be entitled to his costs.

40. In the result, therefore, the Election Petition fails and is dismissed with costs. The amount of the costs shall be paid out of the amount kept in deposit as security for costs in this court.

41. Petition dismissed.

Sri Ram Autar v. Kr. Satyabir .

Structured Summary — Election Petition Relating to 22 Bijnor Assembly Constituency (June 1977)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Sri Ram Autar v. Kr. Satyabir .

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