Holding

The Election Commission’s order was illegal for violating natural‑justice principles, and the appellant did not establish a material effect on the election result, so the appeal was dismissed.

Summary

In the 1995 Puri Assembly election, both the appellant, Sri Uma Ballav Rath, and respondent No. 1 filed nomination papers as Janata Dal's official candidates. The Returning Officer, unable to determine the official candidate, treated both as independents and allotted different symbols. After a representation by Janata Dal President S.R. Bommai alleging the appellant's Form B was fraudulent, the Election Commission, without giving the appellant notice or a hearing, re‑considered its earlier decision and directed that respondent No. 1 be treated as the party's official candidate and allotted the reserved "Wheel" symbol. The appellant challenged the election on the ground that this breach of natural justice materially affected the result. The Supreme Court held that the Commission’s order was illegal for violating principles of natural justice and that the appellant failed to produce cogent evidence that the symbol allotment materially affected the election outcome. Consequently, the appeal was dismissed.

Issues considered

Whether the Election Commission’s allotment of the "Wheel" symbol to respondent No. 1, treating him as Janata Dal’s official candidate, was valid and, if invalid, whether it materially affected the result of the election.

Legislation cited

Conduct of Election Rules, 1961s. Rule 10(5)
Constitution of Indias. Article 324

Subjects

election lawnatural justiceElection Commissionsymbol allotmentmaterial effectRepresentation of the People ActConduct of Election Rulesquasi‑judicialjurisdiction

Judgment

SRI UMA BALLAV RATH IA
v.
SRI MAHESHWAR MOHANTY AND ORS.

FEBRUARY 25, 1999

[DR. A.S. ANAND, CJ. AND B.N. KIRPAL, JJ.] B
~

Election:

'Representation of Peoples Act, 1952--Conduct of Election Rules,
1961--Rule 10(5)-Appellant and Respondent filing nominations for the
same parf)r-Respondent declared official candidate-On the basis of letter
c
from party president-No notice to appellant-Held, there is no fair play in
action-Election Commission is obliged to fallow principles of natural justice
before passing any order.

Section 100(1)(d)(iv)-Challenge to election of Respondent-Allotment D
of party symbol without notice to appellant-Single Judge holding that charges
not established-Evidence did not show election materially affected-Held,
election cannot be set aside on presumptions.

Appellant and Respondent No. 1 filed their nomination forms, for
election from 56, Puri Assembly constituency as official candidates' of E
Janata Dal. The Returning Officer treated both of them as independent
candidates and allotted separate symbols since it was not possible to
ascertain as to who was the official candidate. Both the candidates chal-
lenged the Order of the Returning Officer, before the Election Commission
~ under Rule 10(5) of the Conduct of Election Rules, 1961. The order of the F
~
Returning Officer was upheld by the Election Commissfon. Subsequently,
on a representation made by the President of Janata Dal to the effect that
Respondent No. 1 was the official candidate and that the Appellant had
produced the Form B fraudulently, the Election Commission without any
notice to the Appellant and without granting him any opportunity of
hearing, issued a direction to treat Respondent No. 1 as the official
G
candidate of Janata Dal and to allot him the reserved symbol of Janta Dal.

'It' After the elections the Appellant filed an Election Petition challeng·
ing the election of Respondent No. 1 on the ground that result of election
had been materially affected by non· compliance with the Constitution, the H
895
-{

896 SUPREME COURT REPORTS [1999] 1 S.C.R.
A Act and the rules made thereunder. The Single Judge of the High Court
found that the Election Commission had exceeded its jurisdiction by
'reconsidering' its earlier decision, on a representation made by the party
President \\ithout notice to the appellant. The order of Election Commis-
sion was held to be illegal.

B The court on appre~iating the evidence of Appellant's witnesses
were found their statemerits vague, general and conjectural in nature
and did not establish the charge made by the Appellant, that the result
of the election was materially affected and therefore dismissed the
election petition.
c
Dismissing the appeal, this Court

HELD : 1. The view taken by the High Court that the order of the
Election Commission by reconsidering the matter again was 'illegal' and
D 'without any jurisdiction' is correct. The Election Commi:;sion was exer-
cising its quasi-judicial powers and was obliged to follow the principles of
natural justice. The revisional order was "reviewed" by the Election Com-
mission behind the back of the Appellant, mthout putting him on notice
or giving him any opportunity to have his say. It was not a proper course
to adopt. In dealing mth a matter like this, the Election Commission is
E 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. [899-E-H; 900-A]

2. The evidence on record does not show that the result of the election
F 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 affected in so far as the returned candidate
is concerned by action of the Election Commission and the Returning
Officer. The view taken by the High Court that the statements of the
mtnesses did not establish the charge made by the Appellant is correct.
G 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 lOO(l){d)(iv) of
H the Act. [900-D-G]
UMABALLAVRA1Hv. MAHESHWARMOHANfY (DR. AS.ANAND, CJ.] 897

. 1998.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 552 of A

From the Judgment and Order dated 23.12.97 of the Orissa High
Court in E.P. No. 15 of 1995.

B.N. Singhvi and Vinay Kumar Garg for the Appellant. B
~
J. R. Das, K.N. Tripathy and Debasish Mohanty for the Respondents.

The Judgment of the Court was delivered by

DR. A.S. ANAND, CJ. This appeal calls in question the judgment and c
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 D
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 J anata Dal. Since two candidates had claimed the reserved symbol of
J anata Dal and before the last date fixed for withdrawal of candidature, no E
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.l 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 cha!- F
"' lenged 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 G
Returning Officer was, consequently, upheld. While the matters rested
thus, it appears that on 30th January, 1995, Shri S. R. Bommai, President
-y of J anata 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 H
~

898 SUPREME COURT REPORTS [1999) 1 S.C.R.

A 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 "recon-
sideration 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
B exercise of its powers under Article 324 of the Constitution read with the
Rule 10(5) of the Rules to consider and treat respondent No.1 as the ...
official candidate of J anata 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
c 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
D
been materially affected by non- compliance with the Constitution, the Act ..
and the rules made thereunder. The Election Petition was resisted by the
.0:::
returned candidate and from the pleadings of the parties, the following
Issues were framed on 20th September, 1995:
J

E "l. Whether the allotment of symbol "Wheel" in favour of respon-
dent 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
F +
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 ?

G 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 ? ....
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4. Whether respondent No.l adopted corrupt practice as provided
H under section 123(4) of the Representation of People Act ?
UMABALLAVRATHv.MAHESHWARMOHANTYIDR.A.S.ANAND,CJ.] 899

5. Whether the petitioner's result in the election has been material- A
ly 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 B
-1 appeal has confined his subm.issions 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.
c
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 repre-
... sentation made by Shri S.R. Bommai, to treat respondent No.1 as the D
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
'withou{ 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
E
Commission dated 1st February, 1995 is not sustainable for yet another
reason also.

In the communication made by Shri S.R. Bommai, he had levelled
an allegation against the appellant to the effect that the Form B produced F
by him was 'fraudulent' and that respondent No.1 was the official can-
didate. 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 Commis-
sion was exercising its quasi- judicial powers and was obliged to follow the G
principles of natural justice. The revisional order dated 25th January, 1995
was "reviewed" by the Election Commission on 1st February, 1995, behind
-t 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 H
900 SUPREME COURT REPORTS [1999] 1 S.C.R.
A 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.

B
The above finding, however, does not end the matter. For the appel-
lant 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-com-
pliance with any of the provisions of the Constitution or of the Act or ilf
C any rules or orders made under the Act. Indeed, there has been non-com-
pliance 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 ab~olutely short of establishing that
the result of the election in so far as it concerns the returned candidate
D had been materially affected thereby. The evidence on the record does noL
show that the result of the election had been materially .affected by allot-
ment of symbol "Wheel" to respon~ent No.I. The appellant, failed to
establish, the allegation that the result of the election had been materially
affected in so far as the returned candidate is concerned by action of the
Election Commission and the Returning Officer. The learned single judge
E found that the statements of the witnesses were vague, general and conjec-
tural 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
F 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 lOO(l)(d)(iv) of the Act. In this view of the matter,
G 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.
+

V.M. Appeal dismissed.