Patna High Court
Mani Lal Yadava vs Budhinath Jha on 11 May, 1961
Equivalent citations: AIR1962PAT18, AIR 1962 PATNA 18
JUDGMENT U.N. Sinha, J.
1. This appeal has been filed by Sri Mani Lal Yadav under Section 116-A of The Representation of the People Act, 1951 (Act No. XLIII of 1951). It is directed against the order of the Election Tribunal of the Santhal Parganas, dated the 19th September, 1960, by which, order the Election Tribunal has declared the election of Sri Mani Lal Yadav, the returned candidate, to be void under Sectiion 100(1) (d) (iv) of the Representation of the People Act, 1951 (to be called hereinafter as the Act). The tacts are as follows; There was a constituency in the district of the Santhal Parganas known as Godda Constituency, which was a double member constituency. In the general election held in 1957, for election of members to the Bihar Legislative Assembly, there were two seats in this constituency, one a general seat, and another, a reserved seat for scheduled tribes. There were four candidates for the general seat and three for the reserved seat. The following persons were the candidates for the general seat:
1. The respondent in this appeal, Sri Budhi Nath Jha 'Kairava'.
2. The appellant, Sri Mani Lal Yadav,
3. Sri Ratneshwar Jha, and,
4. Sri Pradhan Kisku.
The following persons were the candidates for the reserved seat:
1. Sri Chunka Hembrom,
2. Sri Barka Hansda, and,
3. Sri Prithwi Chandra Kisku.
The Respondent was a candidate of the Indian National Congress Party for the general seat. According to the respondent, the appellant got himself declared to be a candidate of the Jharkhand Party, although he was not a candidate of that party. The last date for withdrawal of the nomination papers was the 4th February, 1957. On that date, in due course, the Returning Officer declared the seven candidates named above as validly nominated candidates. The allotment of symbols to the candidates could not, however, be made on that date as the Returning Officer was running temperature and was unable to remain in the Court any longer. Therefore, 6th February, 1957, was fixed for the allotment of symbols. On the 6th February, 1957, Sri Budhinath Jha 'Kairava' was recognised as a candidate on behalt of Congress, but the appellant, Sri Manilal Yadav could not be accepted as the official candidate of the Jharkhand Party, for the reasons given by the Returning Officer in his order of the 6th February, 1957. He was declared to be an independent candidate and allotted the symbol of an 'elephant'. Shortly speaking, the reasons for which the appellant was not recognised as a candidate for the Jharkhand Party on the 6th of February, 1957, were these: Although one Sanat Raut, calling himself the Secretary of the Jharkhand Party, Santhal Parganas, had sent an information stating that Mani Lal Yadav was one of the official candidates of the Jharkhand Party, as it happened, Sanat Raut was not one of the persons authorised by the Jharkhand Party for sending such information to the Returning Officer.
A telegram dated the 23rd February, 1957, addressed to the Returning Officer had been received in his office on the 4th February, 1957, purporting to have been sent by Shri Ignaice Beck, General Secretary of the Jharkhand Party. In the telegram an information had been conveyed that the appellant was the official candidate of the Jharkhand Party for the Godda General Constituency. But as it happened, no letter confirming this information was sent to the office of Returning Officer, and so the signature of Sri Ignaice Beck could not be compared with the specimen signatures kept in the office of the Returning officer.
It appears that a petition had also been filed before the Returning Officer on the 6th February, 1957, by one Durga Murmu, as the Local Secretary of the Jharkhand Party, reiterating that the appellant was a candidate of the Party for the general seat of the Assembly. It was prayed that the appellant he allotted the symbol of a 'Cock' assigned to the Jharkhand Party, or that, in the alternative, the allotment of symbols be postponed until 12 noon of the 7th February, 1957 until Sri Devi Soren arrived. It may be mentioned that both Sri Ignaice Beck and Sri Devi Soreh were authorised to convey to the Returning Officer the names of the official candidates of the Jharkhand Party but Sri Durga Murmu was not. As no action could be taken by the Returning Officer on the letter sent by Sanat Raut or on the telegram sent by Ignaice Beck or on the application filed by Durga Murmu, the Returning Officer declared the appellant to be an independent candidate, and, instead of allotting him the symbol of 'Cock' assigned to the Jharkhand Party, allotted him the symbol of an 'Elephant'.
On the 7th February, 1957 another petition was filed before the Returning Officer by Chunka Hembrom, Lakhan Mahton and Babu Ram Hembrom on behalf of the appellant praying, amongst others, that the appellant should be allotted the official symbol of the Jharkhand Party, namely, a 'Cock'. In the alternative, it was prayed that the case might be referred to the Election Commission for allotment of the symbol of a 'Cock' to the official candidates of the Jharkhand Party. The prayers made on the 7th February, 1957, were rejected by the Returning Officer. The order, however, indicates that on the 6th February, 1957 at about 11-30 p.m. the Returning Officer had received a communication from Sri Devi Soren, one of the persons authorised on behalf of the Jharkhand Party to convey the names of the official candidates, that the appellant was an official candidate of that party. The letter had, of course, been received by the Returning Officer much after the actual allotment of the symbols on the 6th February, 1957.
What happened thereafter has been stated in paragraph 62 of the order under appeal. On the 11th February, 1957, a telegram was sent by the Election Commission addressed to Ramchandra Prasad Verma, who was then the Assistant Returning Officer. The contents of the telegram may be quoted as follows:
"Election (.) 56/2/57(3)/1892-93. It has been represented to Commission that Jharkhand Party candidates for election to Godda and Mahagama Constituencies were not repeat not allotted symbol Cock reserved for party (.) Presume intimation from authorised representative of party not received by you timely and hence your inability to allot party symbol (.) Commission has decided to ignore this defect (.) Under Sub-rule (2) of Rule 10 of Representation of People Conduct of Elections and Election Petitions Rules, 1956 Commission has revised allotment made by you and allotted symbol cock to each of them (.) This revision is subject to conditions (1) that candidates desire to have symbol allotted by you revised to Cock (2) that you are satisfied that candidates are in fact official candidates of Party concerned (3) that candidates acknowledge same in writing while the authorised representative of Party also states so in writing through (though?) such acknowledgement and statement might have reached you after last date for withdrawal of candidatures and (4) that postal ballot papers for constituency have not yet been printed showing symbol allotted by you (.) If these conditions are not fulfilled revision made by Commission will be withdrawn and no change should be made in allotted symbol (.) Formal order posted."
In pursuance of the direction given by the Election Commission, the Returning Officer revised the allotment of the symbol to the appellant on the 13th February, 1957, and allotted him the symbol of a 'Cock' assigned to the Jharkhand Party. The relevant portion of the order of the Returning Officer, dated the 13th February, 1957, may be quoted as follows:
"I am satisfied that they are in fact official candidates of Jharkhand Party.
Sri Debi Soren, one of the persons authorised by Jharkhand Party to communicate to the Returning Officer the names of the official candidates ot Jharkhand Party has already forwarded the names of the above named candidates as the official candidates of the Jharkhand Party for seats as indicated above. This is contained in Memo. No. 692 dated 6-2-57 from Sri Debi Soren and addressed to the Returning Officer.
The postal ballot papers for the constituencies in question have not yet been printed.
Conditions laid down by the Election Commission respecting the allotment of Jharkhand Party symbol 'Cock' are satisfied in favour ot the candidates named above. Accordingly, it is ordered that the respective symbol already allotted to the abovenamed candidates be changed to cock in each case with proviso that Cock allotted to Sri Chunka Hembrom shall be within a thick black circle.
This matter was heard in open court today. No one offered any objection.
Let a copy of this order be posted on the official notice board and appropriate action taken in respect of Gazette Notification etc. and information to the contesting candidates".
Memo No. 692, dated the 6th February, 1957, mentioned above, has been exhibited in this case and has been marked as Exhibit D. The memo, contained an information, amongst other matters, given to the Returning Officer, to the effect that the appellant, Mani Lal Yadav, was one of the official candidates of the Jharkhand Party. Probably this memo was referred to by the Returning Officer in his order dated the 7th February, 1957, as having been received at about 11.30 p.m.
2. The polling thereafter took place from the the 25th February, 1957, up to the 12th of March, 1957. On the 16th March, 1957, the results were announced after counting of the votes, and the appellant was declared elected to the general seat from Godda Constituency as a member of the Bihar Legislative Assembly. The appellant had received 22,084 votes as compared with the respondent, who had received 18,633 votes. The other two contestants for the general seat, namely, Ratneshwar Jha and Pradhan Kisku had obtained 9,866 and 1,967 votes respectively. The three candidates for the reserved seat had obtained votes as follows:
1. Chunka Hembrom (Jharkhand Party)
-- 19,037 votes
2. Barka Hansda (Praja Socialist Party)
-- 6,483 votes
3. Prithwi Chandra Kisku 13,879 votes On the 29th April, 1957, the respondent, Budhinath Jha 'Kairava' presented a petition to the Election Commission of India, Delhi, praying that the election of the appellant Mani Lal Yadav from Godda Assembly Constituency may be declared to be void and that he himself may be declared to have been duly elected from the said constituency to the Bihar Legislative Assembly. The prayers made in the petition fell within the purview of Sections 81 and 84 of the Act.
3. As mentioned in paragraph 5 of the order under appeal, the election of the appellant was challenged mainly on the grounds that he had indulged in corrupt practices and that he had been illegally allotted the symbol of a 'Cock' which was the accepted symbol of the Jharkhard Party.
4. The Election Tribunal, in this case, framed as many as eleven issues, which were as follows :
1. Is this Electron petition maintainable?
1(a). Has there been deposit of security according to law? If not, is the Election petition liable to be dismissed for the same?
1(b). Is the Election petition maintainable in the absence of a prayer for declaration that the election of the respondent No. 4 is also void?
2. Were the Nomination papers of respondent No. 1 improperly accepted? Is the petitioner entitled to raise this point in Election petition?
3. Whether the amendment sought by the petitioner after the period of limitation is justifiable under the law?
4. Was the allotment of the symbol of "Elephant" to respondent No. 1 made by the Returning Officer on 6-2-57, final and if so, had the Election Commissioner jurisdiction to revise the allotment of symbol to respondent No. 1 and if so, what is the legal effect of the same?
5. Is the order of the Returning Officer dated 13-2-57 re-allotting the symbol of the Jharkhand Party to the Jharkhand Party candidate respondent No. 1 illegal, ultra vires, without jurisdiction and void?
6. Wether the respondent No. 1 and his agents and supporters with his consent committed corrupt practice as stated in Para 12 of the Election petition and, if so, is the election of respondent No. 1 void on that ground?
7. Is the election of respondent No. 1 or respondent No. 4 void and liable to be set aside?
8. Is the petitioner entitled to be declared as a duly elected candidate from Godda Assembly Constituency? To what other relief or reliefs is the petitioner entitled?
9. Whether the change in symbol in favour of respondent No. 1 materially affected the elec tion of the petitioner and whether on such ground the election of respondent No. 1 may be set aside? The fourth, fifth, sixth and the ninth issues were the main issues and they have been answered by Election Tribunal substantially thus: It has held that the allotment of the symbol of an 'Elephant' to the appellant by the Returning Officer on the 6th of February, 1957 was, in this case, final, and the Election Commission had no jurisdiction to revise the allotment. It has held that the re-allot ment of the symbol by the Returning Officer on the 13th February, 1957, was illegal. It has held that the re-allotment of the symbol to the appellant had materially affected the election of the returned candidate, namely, Mani Lal Yadav. It may be mentioned here that the ninth issue was not framed quite accurately, in so far as it stated that the change in the symbol had materially affected the election of the "petitioner". Be that as it may, the conclusion of the Tribunal appears to be that the election of the returned candidates was mate rially affected by the re-allotment of the symbol. So far as issue No. 6 is concerned, all the findings of the Election Tribunal are in favour of the returned candidate. This matter has not been reagitated in this appeal in this Court.
5. As it has been held by the Election Tribunal that the result of the election was materially affected by the re-allotment of the symbol on the 13th February, 1957, in contravention of Rule 10, Sub-rule (2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956 (to be hereinafter called the Rules), it will be convenient to quote here Section 100(1) (d) (iv) of the Act and Rule 10 of the Rules:
"(Section) 100. Grounds for declaring election to be void. (1) Subject to the provisions of Sub-section (2), if the Tribunal is of opinion:
... ... ... ...
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected:
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any other rules or orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void."
(Rule) 10. Allotment of symbols.--(1) If in any constituency other than a Council constituency a poll becomes necessary under Sub-section (1) of Section 53, the returning officer shall, simultaneously with the preparation of the list of contesting candidates under Sub-section (1) of Section 38 consider the choice as respects symbols expressed by the contesting candidates in, their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission,--
(a) allot a different symbol to each contesting candidate in conformity as far as practicable with his choice; and
(b) If more contesting candidates than one have indicated their preference for the symbol, decide by lot to which of such candidates the symbol will be allotted, (2) 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.
(3) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidates and be supplied with a specimen thereof by the returning officer."
6. Learned counsel for the appellant has submitted that the conclusions of the Tribunal to the effect that the Election Commission had acted without jurisdiction in directing re-allotment of the symbol to the appellant and that the re-allotment of the symbol by the Returning Officer on the 13th of February, 1957, involved a breach of Sub-rule (2) of Rule 10 of the Rules, are erroneous. It has further been contended that in any case, the Tribunal has erroneously held that the result of the election, in so far as it had concerned the returned candidate, had been materially affected by the allotment of the Jharkhand Party symbol to the appellant on the 13th February, 1957. Learned counsel for the respondent, Budhinath Jha 'Kairava', has supported the reasons and the conclusions of the Election Tribunal in this connection and has further supported the order of the Election Tribunal on other grounds which will be considered in due course.
7. In my opinion, the conclusions of the Election Tribunal that the. Election Commission had acted without Jurisdiction in issuing its directions by the telegram (quoted above) and that the Returning Officer had acted in contravention of Sub-rule (2) of Rule 10 of the Rules in allotting the Jharkhand Party symbol to the appellant, on the 13th February, 1957, are wrong. Under Sub-rule (1) of Rule 10 of the Rules, it was the duty of the Returning Officer to allot a different symbol to each of the contesting candidates, subject to any general or special direction issued in this behalf by the Election Commission. There is no dispute that under Rule 5 of the Rules, the Election Commission had allotted the symbol of a 'Cock' to the Jharkhand Party of Bihar. If, therefore, the Election Commission was satisfied that in spite of the fact that the Returning Officer had refused to allot the party symbol to the appellant On the 6th February, 1957, the matter required re-consideration, it 13 not possible to held that the Election Commission had no power either to issue a special direction in this behalf to the Returning Officer or to revise the order of the Returning Officer, dated the 6th February, 1957, in the manner indicated in the telegram in question.
In connection with the expression, "special direction", used in Sub-rule (1) of Rule 10, learned counsel for the respondent has contended that the power of issuing special direction conferred on the Election Commission is ultra vires, inasmuch as, Section 169 of the Act, under which the Rules were framed, contemplates conferment of the power of issuing general directions only on the Election Commission. In my opinion, this contention cannot be accepted. If, under Section 169 of the Act, rules can be framed conferring power on the Election Commission to issue general directions, there is no reason to hold that the Election Commission could not have been vested with the power of issuing special directions also.
Learned counsel for the respondent has further contended that the Election Commission could not have revised the order of the Returning Officer dated the 6th February, 1957, allotting the symbol of an "Elephant" to the appellant, without hearing all the candidates for the election. It has been urged that there is an implied obligation to hear the other competing candidates before the Election Commission could revise any order of the Returning Officer. According to learned counsel, the expression "revise" contemplates exercise of a power of a quasi-judicial nature and no order of a quasi-judicial return should have been passed by the Election Commission without hearing the other competing candidates. In this connection learned counsel for the respondent has drawn an analogy between a symbol allotted to a candidate and the trade mark of a merchandise. It is argued that a symbol has the same value as a trade mark and that the allotment of the symbol of a 'Cock' to the appellant, increased his value in the eye of the electorate and proportionately decreased the chances of a competing candidate.
In my opinion, the contention raised by learned counsel to the effect that the Election Commission had no power to revise the order of the Returning Officer without hearing other candidates, is not a valid contention. Even if it be assumed that in revising the allotment made by the Returning Officer of any symbol to any candidate, the Election Commission acting under Sub-rule (2) of Rule 10, was acting in a quasi-judicial capacity, it cannot be concluded that the Election Commission was bound to hunt for the other candidates and consider their views. The allotment of symbols was a matter between the Returning Officer and the candidate concerned, in this case, the appellant. Whether a 'Cock' or an 'Elephant' was allotted as a symbol was a question with which only the appellant was concerned. This was not a case in which the respondent had also claimed the symbol of a 'Cock'. Therefore, the order of revision of the allotment of symbols was in no way adverse to the respondent, and it was not necessary for the Election Commission to hear the respondent. It appears that, after a proper consideration, the Election Commission had left the final order to be passed, to the discretion of the Returning Officer. The latter was bound to act under the instructions and direction of the Election Commission in this connection. In my opinion, it cannot be held that the Election Commission in this case had no power to revise the order of allotment of the symbol to the appellant by the Returning Officer.
The argument of learned counsel for the respondent with reference to a "trade mark", although attractive, cannot be of any avail in this context. In connection with trade in general, a mark used for denoting that the goods are the manufacture or merchandise of a particular person is known as a trade mark. Similarly, a party symbol in an election matter denotes the fact that a person, who has been allotted a particular party symbol, represents that party in an ensuing election. But it is difficult to hold, as has been argued, that the allotment of the symbol of a 'Cock' to the appellant, increased his chances of his election, decreasing proportionately the chances of other competing candidates. In my opinion, the allotment of the symbol of a 'Cock' to the appellant merely impressed him with the seal of a party candidates.
It is not challenged that the appellant was, as an official candidate of the Jharkhand Party, entitled to a 'Cock' as his symbol. The only objection is that, once an 'Elephant' was allotted to him as a symbol, it could not be later changed to a 'Cock'. If the appellant was, in fact, a candidate of the Jharkhand Party even before the 6th February, 1957, the allotment of the Jharkhand Party symbol to him on the 13th February, 1957, did nothing but officially recognise him as the party candidate. In my opinion, it neither increased the chances of the appellant for an election nor did it decrease the chance of any other candidate for election to the general seat.
After challenging the power of the Election Commission, in revising the allotment of the symbol to the appellant, learned counsel for the respondent has contended that, when the Returning Officer re-allotted the symbol of a 'Cock' to the appellant on the 13th February, 1957, the Returning Officer should also have heard the other candidates before passing his final order of re-allotment. To my mind, this contention is also not valid. The other candidates had no interest in this matter that the Returning Officer was bound to hear them before re-allotting the symbol to the appellant on the 13th February, 1957.
8. Learned counsel for the respondent has also relied upon the finding of the Election Tribunal to the effect that the postal ballot papers had already been printed before the symbols were re-allotted on the 13th February, 1957. Our attention has been drawn to the fourth contingency mentioned in the telegram sent by the Election Commission, to the effect that the revision made by the Commission was to be withdrawn if the postal ballot papers had already been printed showing the first allotment of the symbol of an 'Elephant' to the appellant. It is contended that as the postal ballot papers had already been printed before the 11th February, 1957, on which date the telegram was sent by the Election Commission, the revision by the Election Commission was not effective. In my opinion, the answer to this question is to be found in the direction of the Election Commission itself and in the ordersheet of the Returning Officer dated the 13th February, 1957. The direction of the Election Commission, given in the telegram was to the effect that the "revision made by the Commission will be withdrawn" if the postal ballot papers had already been printed showing the first allotment of symbols. The ordersheet of the Returning Officer, dated the 13th February, 1957, quoted above, expressly mentions that the postal ballot papers had not then been printed.
The evidence given by the Returning Officer as P. W. 48 is to the effect that although on an enquiry from R. C. Verma (the Assistant Returning Officer) he had come to know that the postal ballot papers had not been printed before the 13th February, subsequent to the order of changing the symbol, he came to know that the postal ballot papers had, in fact, been printed showing the symbol of an 'Elephant' having been given to the appellant. Although the Returning Officer has deposed that he had seen the postal ballot papers, which had been printed before the change of symbols, no such ballot paper showing allotment of the symbol of an 'Elephant' to the appellant has been produced. The evidence of Ram Chandra Prasad Verma (court witness), who was then the Assistant Returning Officer, does not support the evidence of P. W. 48.
The Assistant Returning Officer has deposed that on the 13th February, the Returning Officer had no talk with him about the postal ballot papers. Actually, the printed postal ballot papers were received by the Assistant Returning Officer on the 13th February, and these postal ballot papers showed the Jharkhand symbol. According to him he must have got the sample for print at Dumka on the night between the 12th and 13th February, 1957, on verbal instructions of the Deputy Commissioner. The Assistant Returning Officer himself had no information that postal ballot papers with the symbol of an 'Elephant' had already reached the office before the 12th February, 1957. He has categorically stated that he had no knowledge at all that postal ballot papers were printed before the 12th February, 1957, and, therefore, there was no occasion for him to give such information to the Returning Officer. He has Categorically denied the fact that postal ballot papers were reprinted on the 13th February.
In view of this clear evidence given by the Assistant Returning Officer, it is difficult to accept the evidence of Banwari Lal Singhania (P. W. 6) and Harihar Prasad (P. W. 49) upon which learned counsel for the respondent has relied. According to P. W. 6, the order for printing of postal ballot papers had been placed on the 9th February, 1957, and the probable date of delivery had been given as 10th February, 1957. He has deposed that delivery had actually been given on the 9th February, 1957. In support of this evidence, P. W. 6 relied upon a bill (exhibit 3), dated the 11th February, 1957. In my opinion, it is not possible to accept the evidence of P. W. 6, that although the date of delivery had been fixed as 10th February, 1957, the postal ballot papers had been printed and delivered on the same date on which the order had been placed, namely, the 9th of February 1957.
Learned counsel for the respondent has drawn our attention to Exhibit 5 showing receipt of postal ballot papers by one Ramchandra Singh on the 11th February. This exhibit, on the other hand, contradicts the evidence of P. W. 6 regarding delivery of postal ballot papers on the 9th February. In my opinion, the evidence adduced on behalf of the respondent is not sufficient for a finding that the postal ballot papers had already been printed before the symbol had been re-allotted on the 13th February, 1957. Furthermore, if the Returning Officer had come to know of the previous printing of the postal ballot papers, he would surely have withdrawn the re-allotment made by him or informed the Election Commission for the withdrawal of the revision made by it. In my opinion, the fourth and fifth issues framed by the Election Tribunal should have been answered in favour of the appellant and against the respondent.
9. The more substantial point that arises in this appeal,, is the question covered by the ninth issue, that is to say whether the result of the election, in so far as it concerned the returned candidate (and not of the "petitioner" as mentioned in the ninth issue) had been materially affected by any breach of or any non-compliance with the provisions of Rule 10 of the Rules. In this connection, it may be noticed that the substance of the order of the Election Tribunal is to the effect that the appellant had no real chance of success in the election as an independent candidate and that the voters acting under party influence had given the largest number of votes to the appellant, after he had obtained the Jharkhand symbol. In my opinion, in this aspect of the matter, the Election Tribunal was led on a wrong track altogether. Initially, the case made out by the respondent in his petition filed before the Election Commission was that the appellant was not a member of the Jharkhand Party at all and that somehow, he had manoeuvred to get himself declared as a member of the Jharkhand Party. It appears that this stand Was abandoned by the respondent before the Election Tribunal. There was no doubt that the appellant was in fact a candidate on behalf of the Jbarkhand party. This is clearly established by Exhibit D, and by the order of the Returning officer dated the 13th February, 1957. It appears that in view of this circumstance, She respondent attempted to make out a case, that the appellant had been allotted the symbol of a 'Cock' on' the loth February, 1957, wrongly and in contravention of Rule 10 of the Rules. If, therefore, the appellant was, in fact, a candidate of the Jharkhand Party, then it is difficult to appreciate how the election of the appellant was materially affected by the allotment of the party symbol to him on the 13th February, 1957. It is difficult to understand what difference it would have made if the appellant had been allotted tbc party symbol on the 6th February and not on the 13th February, 1957, as was done in this case. The Election Tribunal has stated in paragraph 81 of its order that the appellant had not done any canvassing during the period between the 6th and the 13th February, 1937, with his original symbol as an independent candidate, and that no evidence has been adduced to the effect that even as an independent candidate he had any chance of success against the respondent ard others. This approach is entirely erroneous, inasmuch as the appellant never made out a case that he was an independent candidate at any time and that he became a Jharkhand Party candidate on the 13th February or that he was put forward as a Jharkhand Party candidate only on the 13th February, 1957.
In order to prove the advantage obtained by the appellant, after the allotment of the Jharkhand Party symbol to him, the respondent made out the following case: He has himself deposed as P. W. 56 that he had toured round his constituency before the symbols were changed. He met the Santals and they told him that they would vote for him as there was no candidate of the Jharkhand Party. The Musalmans also had assured him to that effect. He again toured round his constituency after the symbols had been changed and the Santals were then saying that now they would vote tor the candidate with the symbol of a 'Cock'. He has further deposed that, if the symbol had not been changed, he would have got all the votes of the Santals. He would have also got the Muslims and the Yadav votes, but for the wrong propaganda of a communal and religious character made in the meetings held. In my opinion, the assertion of the respondent that he would have got all the Santal votes, but for the change of symbol, is merely a case of wishing. So far as he has deposed that he would have got all the Muslim and the Yadav votes, but for the wrong propaganda, it is now established that the respondent has failed to make out a case of any corrupt practice having been indulged in by the appellant.
In this connection, the evidence of Baldeo Shanna (P. W. 8), may be noted. He has deposed that the Muslim voters had turned against the Congress Party saying that the Congress was going to enforce a ban on cow-slaughter, P. W. 8 has also deposed in the widest of terms that at first the Santals and the Mohammadans were in favour of voting for the Congress Party and then, later on, after the symbol had been changed, the Santal and the Muslim voters differed from the Congress Party candidate. The Santals were saying that if the Jharkhand Party was not on the scene, they would have voted for the Congress. In my opinion, it is difficult to accept such broad evidence, to the effect that all the Santals were of one view at one time and that all of them had changed their views after the re-allotment of the symbol. In any event, the change in the attitude of the Santal voters cannot he held to be due solely to the fact that the appellant had been allotted the Jharkhand Party symbol of a 'Cock' in breach of Rule 10 of the Rules.
In my opinion, it is impossible to accept the oral evidence adduced on behalf of the respondent that all the voters, especially the Santal voters, had agreed at first to vote for the Congress Party candidate and that thereafter they changed their mind en masse and decided to vote for the Jharkhand Party member after re-allotment of the symbol to the appellant. The evidence at the appellant as witness No. 35 for respondent No. 1 is to the effect that ho had filed five nomination papers in all of which he had given the first preference of a 'Cock' as the symbol. In none of these papers he had shown any preference for an 'Elephant' as a symbol. He had taken part in the election campaign on behalf of the Jharkhand Party. It is well-settled that the onus is on the respondent to prove that, on the facts of the instant case, the result of the election, in so far as it had concerned the returned candidate, had been materially affected by the breach of or non-compliance with Rule 10 of the Rules. Reference may be made to the case of Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513. Their Lordships of the Supreme Court in Vashist Narain's case, AIR 1954 SC 513, interpreted Section 100 (1) (c) of the Act, as it then stood, by stating that the language of Section 100 (1) (c) clearly placed a burden upon the objector to substantiate the objection that the result of the election had been materially affected. Section 100 (1) (c) of the Act, as it then stood, read thus:
"If the Tribunal is of opinion
(a) ... .. .. ... .. .. ..
(b) .. .- .. .. .. .. .
(c) that the result of the election has been materially affected by improper acceptance or rejection of any nomination, the tribunal shall declare the election to be wholly void."
Vashist Narain's case, AIR 1954 SC 513 was followed by a Bench of this Court in the case of Karu Lall v. Fida Hussain, AIR 1960 Pat 556. Upon the principles laid down in the two cases mentioned above, I am of the opinion that the respondent has signally failed to discharge the onus cast upon him under Section 100 (1) (d) ot the Act.
10. Learned Counsel for the appellant has drawn our attention to the order of the Election Tribunal upon the 8th issue. It has been submitted that the conclusions of the Election Tribunal with respect to the 9th issue are inconsistent with its conclusion under the 8th issue. The 8th issue involved the question as to whether the respondent was entitled to be declared as a duly elected candidate. In this connection, the Election Tribunal has stated thus:
"The next question that would arise in this case is as to whether the petitioner should be declared duly elected to the Assembly from the general seat of the Godda Constituency. This relief, in my opinion, is not open to him as from the circumstances to which I have referred there can be no inference that on the respondent No. 1 contesting the election as an independent candidate there would have necessarily been a re-distribution of the votes in such a manner as to ensure a majority in support of the petitioner. The inference in this respect cannot be carried farther beyond the conclusion that the irregularity complained of had materially affected the result of the election so far as the respondent No. 1 is concerned and that there was chance of the petitioner securing a larger number of votes than the respondent No. 1 if the latter had contested the election as an independent candidate."
11. The election Tribunal has further stated as follows:-
'In the instant caso there were other parties to the election as well as it cannot be foreseen what the reaction of the voters would have been had not the respondents 1 and 4 been allotted the Jharkhand Party symbol. The respondent No. 1 had polled over 22,000 votes and it would be unsafe, and unfair as well to the large body of Electorate, to held on the circumstances to which I have referred that such voters, or a sufficient majority of them would have gone in favour of the petitioner. On these considerations I find that the petitioner cannot be declared to have been duly elected to the Assembly from the general seat of Godda Constituency."
The argument of learned counsel for the appellant in this connection is not without force. In any event, it appears that the conclusion of the Election Tribunal with respect to the appellant was that on the facts of this case, there was a mere chance of the respondent's obtaining a large number of votes than the votes obtained by the appellant if the latter had contested the election as an independent candidate. This conclusion itself refutes the finding that the breach of Rule 10 of the Rules had in fact materially affected the result of the election, so far as the returned candidate was concerned. In my opinion, the election of the appellant has been wrongly declared to be void. The order of the Election Tribunal in question must, therefore, be set aside, and the election of the appellant upheld.
12. The, appellant is entitled to his costs of this Court, as well as to the costs incurred before the Election Tribunal. The cost of the proceedings before the Election Tribunal is assessed at a sum of Rs. 200/- and so far as the hearing fee in this Court is concerned, it is assessed at Rs. 250/-.
Sahai, J.
13. I agree.