SMT. LATA DEVI (MALI) v. HARU RAJWAR

·' -;'·' I~ SMT. LATA DEVI (MALI) _v._ HARU RAJWAR AUGUST 22, 1989 [N.D. OJHA AND K.N. SAIKIA, JJ.] _The Representation of the People Act, 1951/Conduct of Election_ _Rules,_ _1961:_ _Sections 30 and 100/Rule JO-Election Petitioner-_ _Candidate for election-Complaint that main_ _reason for defeat at elec-_ _tion 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._ 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 contended that the election was liable to be declared void on the ground of (i) violation of section 30(d) of the Representation of People Act, 1951, which according to him prescribed a.tleast 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 respondent-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 'far as it concerned the returned candidate was materially affected by violation of Rule 10(5) of the Conduct of Election Rules, 1961. A B c D E F G Before this Court, it was contended on behalf of the appellant that H 921 922 SUPREME COURT REPORTS [ 1989] 3 S.C.R. A (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 Representation of the People Act inasmuch as the mlttimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; (iii) there was no ll c viblatlon of Rule 10(5) of the Conduct of Election Rules; and (iv) even iissumllig that thefe was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the elecilon was materially affected thereby, inasmuch as no sufficient evidence was atidticed in proof of his diam, and he himself could not have proved his · averments. Allowing the appeal, this Court, HELD: (1) Under s.30 of the Representation of the People Act, 195 f, as soon as the notification calling upon a constituency to elect the member or members is Issued, the Rlectioii Commission shall, by notifi· D cation 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 tia!e for tbe withdrawal of candidature. [928F] (2) In the instant case, the last date for the withdrawal of nomina_'r_ lion was 9.2.1985 and the date of poll was 5.3.1985. There was, thereE fore, clear compliance with the requirement ofs. 30(d). The respondent himself stated that on 14.2.1985 he received notice of intention of the Returning 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 F G H provision was clearly complied with. [928G-929A] (3) The violation of sub-rule (5) of Rule IO _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-Bj ( 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 diverted in such a way that the returned candidate would have been unsuccessfulL [931B] . SMT. LATA DEVI _v._ HARU RAJWAR 923 _Vashist Narain Sharma_ v. _Dev Chandra_ & _Ors.,_ [1955] 1 SCR 509; _lnayatullah Khan_ v. _Diwanchand Mahajan_ & _Ors.,_ 15 ELR 219; _S.N. Ba/akrishna_ v. _Fernandes,_ AIR 1969 SC 1201, (1969) 3 SCR 603; _Shiv Charan Singh_ v. _Chandra Bhan Singh,_ [1988] 2 SCC Ii and _Chhedi Ram_ v. _Jhilmit Ram_ & _Ors.,_ [1984] 2 SCC 281, referreil io. A ~ (5) A decision in an election petition cait be given oiiiy oil positive B and affirmative evidence and not on mere spetlliatioii iifid stis~ICitiii; however, strorig they are. in the instarii case; there is no sric.h jlilsi!ive and affirmative evidence. Mere assertions by the electioii petitioner were not enough. [9320] ,.- ( 6) There could be no proposition or contention that a candidate ~- with a particular symbol would always be successful at the hustings or C ( that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted. [932EJ (7) There is no dispute about the importance of the symbol in a backward constituency. This will however, not absolve the election D petitioner of his burden of proving that the result of the election has been materially affected. [933B J ---( _All_ _Party Hill Leaders' Conference, Shillong_ v. _Captain W.A._ _Sangama,_ AIR 1977 SC 2155 and _Roop Lal Sathi_ v. _Nachhattar Singh_ _Gill,_ [1982] 3 SCC 487, referred to. E (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'; Row could that _r_ be proved would, of course, depends· on the facts and circumstances F of the case. [929F] _t_ (9) In the instant case, the election petitioner dismally 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 affected. The High Court was in error in holding, without G sufficient evidence, that it was materially affected. [934CJ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3955 (NCE) of 1987. From the Judgment and Order dated 16. 11. 1987 of the Patna H High Court in Election Petition No. 4of 1985. A B 924 SUPREME COURT REPORTS (1989] 3 S.C.R. 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 )Jy **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 election of the appellant to the Bihar Legislative AssemC bly 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: D A. Last date for filing nomination paper B. Date of the Scrutiny of the nomination paper C. Last date of withdrawal of candidature D. Date of Poll E E. Date of counting 6.2.1985 7.2.1985 9.2.1985 5.3.1985 6.3.1985 )' _I_ 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 candi dature, leaving 16 contesting candidates in the field. The Returning " F Officer prepared and bublished the following list of contesting candi- 1 dates with the allotted symbols: S.No.Name Party Symbol Independent Boat Independent Spade & Stroker AyodhyaRajak UmaBawri Kokil Rajwar Kiriti Bhusan Das Tilakdhari Bawri DulalDas G **H** 1. 2. 3. 4. 5. 6. " " " " Horse Cultivator cutting crops Fish· Two leaves SMT. LATA DEVI _v._ HARU RAJWAR !SAIKIA, J.) 925 _f_ 7. Nakul Chandra Rajak Independent Rising Sun A 8. Panchanan Rajak " Ladder 9. Padam Lochan RajwarB.J.P. Lotus 10. Mahindri Ra jwar Independent Bicycle B "\ 11. MururaDasi Jharkhand A Woman carrying a Mukti Morcha basket on her head. 12. Yogendra Bawri Indian Scale Congress (J) 13. Ramdas Ram Independent 14: Lata Devi (Mali)·· Indian Hand National ## t Congress(!) Congress (J) 13. Ramdas Ram Independent Camel 14: Lata Devi (Mali)·· Indian Hand c National Congress(!) 15. Shankar Bawri Independent Swastik within the circle D 16. HaruRajwar 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: E S. No.Name Party Votes secured 1. Ayodhya Rajak Independent 187 ' ~ 2. UmaBawri " 590 ,, F 3. Kokil Rajwar 4564 4. Kiriti Bhusan Das " 477 5. Tilakdhari Bawri 1458 6. DulalDas " 550 ,, G ..;.. 7. Nakul chandra Rajak 387 8. Panchanan Rajak 434 9. Padam Lochan Rajwar B.J.P. 8231 10. Mahandri Rajwar Independent 2500 H 926 SUPREME COURT REPORTS (1989] 3 S.C.R. 2228 1163 195 8659 486 8229 A B 11: Murura Dasi 12. Y ogendra Bawri 13. Ramdas Ram 14. 15. 16. Lata Devi (Mali) Shankar Bawri Haru Rajwar Jharkhand Mukti Morcha Indian Congress (J) Independent Indian National Congress (I) Independent Independent The appellant Lata Devi (Mali) was declared elected. The C r.espondent 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 D 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 with **he contested and won the earlier election** the same 'bow and arrow' symbol; the sudden change **from** **the same constituency** of his 1 _y_ symbol left him with less than 20 days time for campaign and it resulted E _ip_ 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 violation ofRule !0(5) of the Conduct of Election Rules, 1961 under which, according F to him, the election symbol could not be changed without permission of the Election Commission. G 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. 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 affected by violation of Rule 10(5) of the H Conduct of Election Rules, 196~. Hence this appeal. I **·-4w** •• SMT. LATA DEVI _v._ HARU RAJWA!l ISAIKIA, !.] 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 _All_ _Party Hill Leaders' Conference, Shillong_ v. _Captain_ _W.A._ _Sangama,_ AIR 1977 SC 2155, 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 constituency of backward voters, the symbol was very important, and change thereof had disastrous consequences to the respondeilt candidate. B c D 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 E '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. land 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 February 15, 1985. The Returning Officer changed my symbol and allottted 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 **.** l. symbol inJhe 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 96 p 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 F G H 928 SUPREME COURT REPORTS [1989] 3 S.C.R. j could not be apprised of this change. I could not canvass A for my votes with the symbol of 'ladder' in that const: tuency and in that area. I was kriown 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 electiolll, The dection of my constituency B was held in March 5, 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 1 February 9, 1985. By the change of symbol 'bow and arrow', I was c materially affected and it affected the course of election and the voters _-4_ 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 electi?n was materially affected and in D [declaring the appellant's election to be void on that ground. ] Section 100 of the Representation of the People Act, 1951 states the grounds for declaring an election to be void. Sub-section l(d)(iv) ' says: (1) subject to the provisions of sub-section (2) if the High Court t; is of opinion (d) that the result of the election, in so far as it concerns a E [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 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 violalion of S. 30(d)? Under S. 30 of the Representation of the People Act, -~ F [1951, as soon as the notification calling upon a constituency 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. In G [the instant case the last date for the withdrawal of nomination ] [was ] 9.2.1985 and the date of poll was 5.3.1985. Thert was, therefore, clear compliance with the requirement of S. 30(d). The respondent himself _J_ stated that on 14.12.1985'he received notice of intention of the Returning 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 H [spirit ][of ][S.30( d) ] [was ] [not complied with. In terms, this provision ] [was ] SMT. LATA DEVI _v._ HARU RAJWAR ISAIKIA, J.) 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 ibis 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 # r 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. A B c D The change of symbol has not been proved to be violative of Rule 10(5). Even assuming violation, as Mr. Garg submits, 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 E appellant 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 F 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 can<Aidate, may be affected in various ways by various factors stated under S. lOO(l)(d). So far as the burden and measure of proof of such G material effect is concerned, the law has been enunciated by several decisions of this Court. What is required to be demonstrated by evidence 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 question is the election and what is claimed is that the election H A .B c D 930 SUPREME COURT REPORTS (1989] 3 S.C.R. of all or any of the returned candidates is void, with or without a _1_ farther declaration that the election petitioner himself or any other candidate has been duly elected. Declaring 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. _Dev 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 1 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 r duty imposed upon him by Section !OO{l){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." F In _lnayatullah Khan_ v. _Diwanchand Mahajan_ _&_ _Ors,_ 15 ELR 219, where a nominated candidate was found to have been disqualified under S. 7{d) of the Act the question arose as 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 Nandlal, a disqualified candidate, got G 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 Nandlal would have been divided and both sides claimed that if N andlal had not contested the election, 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 stateH ment by the witnesses who came forward as to their opinion, there was ###### _>_ A SMT. LATA DEVI _v._ _HARV_ RAJWAR [SAIKIA, J.] 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 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 diverted in such a way that the returned candidate would have been unsuccessful. In the instant case there was no evidence to demostrate the returned candidate having violation of Rule 10(5) of the Rules. For doing this, it has to be demon- B strated 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 demostrate 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 c the successful candidate instead of in favour of the petitioner, simply # r 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 c 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 unsuccessful. The petitioner, besides making bare statement, had not produced any other satisfactory evidence in support of such a proposition. D In _S.N._ _Balakrishna_ v. _Fernandes,_ AIR 1969 SC 1201: (1969) 3 SCR 603, which was a case under S. lOO(l)(d)(ii) and S. 123(4) corrupt i 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. E observed at para 58: _}--_ .. In our opinion the matter cannot be considered 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 F 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 sliould 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 _Jnayaidllah_ v. _Diwanchand_ G _Mahajan,_ [1958] 15 Ele LR 219 at pp. 235-246 (MP) the provision was held to prescribe ao :mpossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully discharged. We cannot overlook the rulings of this Court and follow the English rulings cited to H **us.!\** '132 SUPREME COURT REPORTS [1989] 3 S.C.R. In _Chhedi Ram_ v. _Jhilmit Ram and Ors.,_ [1984] 2 SCC 28 l which .J. 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 sec 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 affirmative evidence. 1'1ere 1ssertions by the election petitioner were not enough. Nothing was alleged and _j_ 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_ ~ _Puny_ _Hill Leaders' Conference, Shillong_ v. _Captain W.A. Sangma,_ l (supra) wherein Goswami, J. observed: "For the purpose of holding elections, allottment 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 invaluable aid. Apart from this, _J_ just as people de_velop 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 t ., I A B c D E F G H SMT. LATA DEVI _v._ HARU RAJWAR [SAIKIA, J.I 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 _I_ 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 Constitution in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and Legis##### **r** "The symbols order was issued by the Election Commission under Article 324 of the Constitution 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 relatable to Rules 5 and 10 of the Conduct of Elections Rules framed by the Central Government in exercise of their powers under S. 169 of the Act. Rule 4 of the Conduct of l;llections 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 Commission 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." A B c D E F 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 G ' the legal position as would be clear from the provision itself. Section _}_ iOO( l)(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 mate-** ~ rially affected (iv) by arty non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this H A B c D 934 SUPREME COURT REPORTS [1989) 3 S.C.R. Act, the High Court shall declare the election of the returned candidate to be void. 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 sci 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 proving 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 affected. In the result, the impugned Judgment of the High Court is set aside and this appeal is allowed with costs which we quantify _'It_ Rs.3,000 (Rupees three thousand). Let steps be taken under Section 116C(2) of the Act. R.S.S. Appeal allowed. _1_ ### 1