SMT. LATA DEVI (MALI) versus HARU RAJWAR

Citation: [1989] 3 S.C.R. 921 · Decided: 22-08-1989 · Supreme Court of India · Bench: N.D. OJHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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 elec-
tion 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-elec-
tion 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, there-
E 
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 invali-
date 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 res

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