LexSRI UMA BALLAV RATH versus SRI MAHESHWAR MOHANTY AND ORS.
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SRI UMA BALLA V RATH
IA
v.
SRI MAHESHW AR MOHANTY AND ORS.
FEBRUARY 25, 1999
[DR. A.S. ANAND, CJ. AND B.N. KIRPAL, JJ.]
B
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Election:
'Representation of Peoples Act, 1952--Conduct of Election Rules,
1961--Rule 10(5)-Appellant and Respondent filing nominations for the c
same parf)r-Respondent declared official candidate-On the basis of letter
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 E
election from 56, Puri Assembly constituency as official candidates' of
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
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under Rule 10(5) of the Conduct of Election Rules, 1961. The order of the F
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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 G
hearing, issued a direction to treat Respondent No. 1 as the official
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
c
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.
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]
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