Full Judgment Text
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PETITIONER:
SRI UMA BALLAV RATH
Vs.
RESPONDENT:
SRI MAHESHWAR MOHANTY & ORS.
DATE OF JUDGMENT: 25/02/1999
BENCH:
B.N.Kirpal
JUDGMENT:
DR. A.S. ANAND, CJI
This appeal calls in question the judgment and order
of the High Court of Orissa dated 23rd December, 1997,
dismissing an Election Petition filed by the appellant
herein. Elections to 56 Puri Assembly Constituency of the
Orissa Legislative Assembly were held in the month of March,
1995. The last date for filing of nomination papers was
17th January, 1995. It appears that the appellant and
respondent No.1 filed their nomination papers as official
candidates of Janata Dal. Their nomination papers were
supported by authorisations in Forms A and B under the
signatures of Shri S.R. Bommai, President of the Janata
Dal. Since two candidates had claimed the reserved symbol
of Janata Dal and before the last date fixed for withdrawal
of candidature, no communication was received by the
Returning Officer as to which one out of the two was the
official candidate, the Returning Officer treated both the
appellant and respondent No.1 as independent candidates and
allotted the free symbols of Bi cycle and Boat
respectively to them, by an order dated 20th January, 1995.
The order of the Returning Officer was challenged before the
Election Commission under Rule 10(5) of the Conduct of
Election Rules, 1961 (hereinafter the Rules) by both, the
appellant as well as respondent No.1. Vide order dated 25th
January, 1995, the Election Commission, after examining the
documents and other material on the record, held that the
decision of the Returning Officer was consistent with the
directions, orders and rules relevant to the subject. The
order of the Returning Officer was, consequently, upheld.
While the matters rested thus, it appears that on 30th
January, 1995, Shri S. R. Bommai, President of Janata Dal
submitted a representation to the Election Commission
stating therein that no Form B had been supplied to the
appellant and that the appellant had produced Form B
fraudulently. Respondent No.1 was stated to be the official
candidate of Janata Dal. The Election Commission of India,
without issuing any notice to the appellant and without
granting him any opportunity of hearing opined on February
1, 1995 on a reconsideration of the matter, that there was
no reason to disbelieve that respondent No.1 was the
official candidate of Janata Dal for 56 Puri Assembly
Constituency. A direction was issued by the Commission in
exercise of its powers under Article 324 of the Constitution
read with the Rule 10(5) of the Rules to consider and treat
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respondent No.1 as the official candidate of Janata Dal from
the concerned Assembly Constituency and to allot the
reserved symbol of Janata Dal, a national recognised party
to him. Pursuant to the said direction of the Election
Commission, election symbol of Wheel, a reserved symbol,
was allotted to respondent No.1 while the appellant was
treated as an independent candidate. After the polls were
conducted, respondent No.1 was declared elected on the
Janata Dal ticket. The appellant thereupon filed an
Election Petition challenging the election of respondent
No.1 on various grounds, including the ground that the
result of the election, insofar as it concerns respondent
No.1, had been materially affected by non-compliance with
the Constitution, the Act and the rules made thereunder.
The Election Petition was resisted by the returned candidate
and from the pleadings of the parties, the following Issues
were framed on 20th September, 1995: 1. Whether the
allotment of symbol Wheel in favour of respondent No.1
treating him as an official candidate of the Janata Dal was
valid and legal and if not, whether it materially affected
the result of the election ?
2. Whether the counting was suspended from 6.00 AM to
8.00 AM on 12.3.1995 and if so, whether the agents of the
petitioner were asked to vacate the counting hall and
whether in their absence the ballot papers and other
connected documents were kept in proper custody, and under
seal as per the prescribed rules ?
3. Whether the Election Officer was correct in
rejecting the demand for recounting and if so, whether such
refusal materially affected the result of the election ?
4. Whether respondent No.1 adopted corrupt practice
as provided under section 123(4) of the Representation of
People Act ?
5. Whether the petitioners result in the election
has been materially affected because of illegal reception
and rejection of the ballot papers ?
After trial, the Election Petition filed by the
appellant was dismissed. Shri B.N. Singhvi, learned
counsel appearing for the appellant in this appeal has
confined his submissions to challenge the findings on Issue
No.1 and has not contested any of the findings recorded by
the learned single Judge on Issues 2 to 5. We are,
therefore, relieved of the necessity to deal with those
Issues and shall confine ourselves to the determination of
the correctness or otherwise of the findings on Issue No.1.
The learned single Judge held that the Election Commission,
having decided the revision petitions on 25th January, 1995,
in exercise of its jurisdiction under Rule 10(5) of the
Rules, had on February 1, 1995, exceeded its jurisdiction by
reconsidering the matter again, on a representation made
by Shri S.R. Bommai, to treat respondent No.1 as the
official candidate, in exercise of the powers under Article
324 of the Constitution read with Rule 10(5). It was,
accordingly, found that order of the Election Commission
dated Ist February, 1995, was illegal and without any
jurisdiction. We are in agreement with the view taken by
the High Court in that behalf. Apart from the reasons given
by the High Court with which we agree, we are of the opinion
that the order of the Election Commission dated 1st
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February, 1995 is not sustainable for yet another reason
also. In the communication made by Shri S.R. Bommai, he
had levelled an allegation against the appellant to the
effect that the Form B produced by him was fraudulent and
that respondent No.1 was the official candidate. The charge
made to the Election Commission against the appellant by
Shri S.R. Bommai was a serious charge. The least that was
expected of the Election Commission, before passing the
order on 1-2-1995 was that the appellant be put on notice.
That was not done. The Election Commission was exercising
its quasi- judicial powers and was obliged to follow the
principles of natural justice. The revisional order dated
25th January, 1995 was reviewed by the Election Commission
on 1St February, 1995, behind the back of the appellant,
without putting him on notice or giving him any opportunity
to have his say. It was not a proper course to adopt. In
dealing with a matter like this, the Election Commission is
obliged to follow the principles of natural justice, to the
extent applicable, before passing any order. There has been
clearly a breach of fair play in action in this case. This
is yet another reason for us to agree with the High Court
that the order of the Election Commission dated 1st
February, 1995 was illegal and without jurisdiction. The
above finding, however, does not end the matter. For the
appellant to succeed in the election petition, under Section
100(1) (d) (iv) of the Act, he had to establish that the
result of the election, in so far as it concerns the
returned candidate, had been materially affected by
non-compliance with any of the provisions of the
Constitution or of the Act or of any rules or orders made
under the Act. Indeed, there has been non-compliance with
the provisions of the Constitution, and of the Act, and the
rules and orders made under the Act but the evidence led by
the appellant at the trial of the election petition falls
absolutely short of establishing that the result of the
election in so far as it concerns the returned candidate had
been materially affected thereby. The evidence on the
record does not show that the result of the election had
been materially affected by allotment of symbol Wheel to
respondent No.1. The appellant, failed to establish, the
allegation that the result of the election had been
materially effected in so far as the returned candidate is
concerned by action of the Election Commission and the
Returning Officer. The learned single Judge found that the
statements of the witnesses were vague, general and
conjectural in nature and did not establish the charge made
by the appellant. We have been taken through the evidence
of the witnesses by learned counsel for the parties and we
are not persuaded to take a different view than the one
taken by the High Court either. To avoid an election, it is
necessary that cogent evidence is led in support of the
charge. An election cannot be set aside on presumptions,
surmises or conjectures. Clear and cogent proof in support
of the allegations is essential. In the instant case, the
evidence led by the appellant runs hopelessly short of
establishing the charge under Section 100(1)(d)(iv) of the
Act. In this view of the matter, the finding recorded by
the learned single Judge of the High Court on Issue No.1
against the appellant cannot be found fault with. We,
therefore, do not find any merit in this appeal. The appeal
consequently fails and is hereby dismissed but without any
order as to costs.
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