A. Banerji, J.
1. This election petition has been filed by an elector Sri Ram Autar. He seeks to challenge the election of the returned Candidate Kunwar Satyabir from 22 Bijnor Assembly Constituency held in June 1977. The election has been challenged on the ground that the result of the election in so far as it concerns the returned candidate has been materially affected by a non-compliance with the provisions of the Representation of the People Act, 1951, the Conduct of Election Rules and the Provisions of the Election Symbols (Reservation and Allotment) Order, 1968. In other words, he seeks the election of the respondent to be declared void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951 (hereinafter referred to as the Act).
2. The petitioner's case very briefly stated is as follows:
That the Respondent who had filed his nomination seeking the symbol of the Janta Party, had not been able to file a notice in writing signed by the President of the Janta Party by 3 p. m. on the 21st May, 1977 which was the last date for the withdrawal of the candidatures and he was allotted the symbol of a horse and a rider. Sri Kranti Kumar who had also filed his nomination as a candidate for the Janta Party had heen able to do so and was allotted the official symbol of the Janta Party by the returning officer after the time for the withdrawal was over. The returning officer having allotted the symbols to the contesting candidates could not alter the same thereafter. Subsequently, however, the symbol of Kunwar Satyabir was interchanged with that of Shri Kranti Kumar. The respondent was allotted the official symbol of the Janta Party namely 'Haldhar within wheel.' This could not be done. This act was in breach of the provisions of Section 38 ' and Rules 5 and 10 of the Conduct of Election Rules, 1961 read with Paragraphs 8 and 13 (b) of the Election Symbols (Reservation and Allotment) Order, 1968. The result of the election had been materially affected inasmuch as if this had not been done Kranti Kumar would have contested as the official candidate of the Janta Party. He would have lost the election as his public image was not good. The Congress candidate would have won the election. Kunwar Satyabir would not have won the election as an independent candidate. Since Kunwar Satyabir had not filed the authorisation by the President of the Janta Party by 3 P. M. on 21st May, 1977 the returning officer could not recognise Kunwar Satyabir as the candidate set up by the Janta Party and the provisions of Paragraph 18 of the Election Symbols (Reservation and Allotment) Order, 1968 does not empower the Election Commission to permit a political party to change its symbol after the last date of withdrawal of the candidatures. Under Paragraph 13 (b) of the Election Symbols (Reservation and Allotment) Order, 1968 Kunwar Satyabir could not have been recognised as the official candidate of the Janta Party. Farther the Election Commission of India had no power to issue any direction or instructions to the Chief Electoral Officer after the last date of withdrawal was over and the returning officer had no jurisdiction or power to modify or alter the list of contesting candidates after 3 P.M. on 21st May, 1977. On these grounds the petitioner sought a declaration that the election of the returned candidate Kunwar Satyabir had been materially affected and it be declared void.
3. The case of the respondent Kunwar Satyabir was that he was the official candidate of the Janta Party from the very beginning being the convener of the Party in the district. Since the authorisation by the president of the Party could not reach the returning officer by 3 P. M. on the last date of withdrawal, the returning officer had allotted the symbol to Shri Kranti Kumar. The correct position had been disclosed to the Election Commission of India within time and had been communicated to the Chief Electoral Officer Lucknow and the returning officer of the constituency. The returning officer accordingly corrected the position. Shri Kranti Kumar was not the official candidate of the Janta Party from this constituency. He had also issued a statement to that effect and in favour of the respondent after the last date of withdrawal. The allotment of the symbol 'a horse and a rider' was inconsistent with the directions of Election Commission. The Election Commission had jurisdiction to revise the symbol. He denied that the result of the election had been materially affected in this process. He had won by an overwhelming majority. He denied that there was any breach of any provision of law as claimed by the petitioner. He prayed for the dismissal of the election petition with special costs.
4. The following 3 Issues were framed :--
1. Whether the result of the election of the Respondent has been materially affected by the non-compliance with the provisions of Section 38 of the Representation of the People Act and Rule 10 of the Conduct of Election Rules and also the provisions of Paragraphs 8 and 13 (b) of the Election Symbols (Reservation and Allotment) Order, 1968?
2. Whether the Election Commission had power to modify or alter the symbol that had been allotted by the returning officer to the contesting candidates after the period of with-drawal had expired?
3. Whether the change of the symbol renders the election of the respondent void under the provisions of Section 100(1)(d)(iv) of the Representation of the People Act? Issues Nos. 1 and 2.
5. There is no dispute between the parties that the questions involved in this election petition are principally questions of law. The questions are whether the symbols once allotted by the returning officer could be changed subsequently and whether the Election Commission had any power to issue any direction to the returning officer after the last date of the withdrawal of the candidates. Before I take up these questions it would be necessary to set down the relevant facts which are not disputed.
6. In regard to the election to the U. P. Legislative Assembly from 22 Bijnor Constituency the nomination papers could be filed up to 3 P. M. on the 18th May, 1977. The date of scrutiny was fixed for the 19th May, 1977 and the 21st May, 1977 was fixed as the last date of withdrawal of candidatures. The date of poll was fixed for the 14th June, 1977 between 7.30 A.M. to 4.30 P. M.
7. Twenty candidates filed their nomination papers by the 18th May, 1977. The names of these candidates were put up on the notice board by the returning officer. On the 21st of May, 1977 nine of the 20 candidates withdrew from the contest. Shri Kranti Kumar who had also filed his nomination and preferred the symbol of 'Haldhar within wheel' was allotted that symbol by the returning officer, An authorisation by the president of the Janta Party Shri Chandra, Shekhar had been filed with the returning officer showing the name of Shri Kranti Kumar as the candidate of the party. Kunwar Satyabir who had also asked for the same symbol in his nomination paper was, however, allotted the symbol of 'a horse and a rider'. The Central Election Officer, Lucknow sent a letter dated 22nd May, 1977 to the District Magistrate, Bijnor intimating that under the direction of the Election Commission of India Kunwar Satyabir should be given the symbol of 'Haldhar within wheel' and Shri Kranti Kumar the other contesting candidate ' should be given the symbol of the horse and the rider. This letter was received by the Election officer of the District Bijnor on 24th May, 1977. Subsequently, the returning officer interchanged the symbol of respondent Satyabir with that of Kranti Kumar, The result of the election was announced on the 15th June. 1977. Kunwar Satyabir received 39,936 votes whereas Shri Kesho Saran Sharma his nearest rival secured 19,361 votes. He was the Congress Candidate. Shri Kranti Kumar secured 2372 votes. The total number of votes secured by the remaining 8 candidates was 4720 votes. Kunwar Satyabir was declared elected to the U. P. Legislative Assembly from 22 Bijnor Constituency.
8. The provisions under which the election of Kunwar Satyabir has been challenged is Section 100(1)(d)(iv) of the Act which reads as follows:
'Section 100. Grounds for declaring election to be void: --
(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-
(d) that the result of the election, in so far as it concerns a returned candidate, has been materally 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.'
In other words, if the High Court is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non-compliance of the law, the High Court shall declare the election of such a candidate to be void. The High Court must be satisfied firstly that there has been a non-compliance with the provisions of law and secondly, that the result of the election, in so far as it concerns a returned candidate, has been materially affected thereby. Therefore, the first question to be seen is whether there has been any non-compliance with the provisions of law. Sub-clause (iv) refers to the 'non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made thereunder'. It is nobody's case that there has been a non-compliance with any provisions of the Constitution. The specific allegation is that there has been a non-compliance with the provisions of Section 38 of the Act, Rule 10 of the Conduct of Election Rules and Paragraph 8 and 13 (b) of the Election Symbol (Reservation and Allotment) Order, 1968. It will, therefore, be proper to refer to these provisions. Section 38 of the Act reads as follows:
'Section 38. Publication of list of contesting candidates :--
(1) immediately after the expiry of the period within which candidatures may be withdrawn under Sub-section (1) of Section 37, the Returning Officer shall prepare and publish in such form and manner as may be prescribed, a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.
(2) The said list shall contain the names in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed.
Rule 10 of the Conduct of Election Rules reads as follows :
'Rule 10. Preparation of List of contesting candidates:--
(1) The list of contesting candidates referred to in Sub-section (1) of Section 38 shall be in Form 7-A or Form 7-B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or languages as the Election Commission may direct.
(3) If the list is prepared in more languages than one, the names of the candidates therein shall be arranged alphabetically according to the script of such one of those languages as the Election Commission may direct.
(4) At an election in a parliamentary or Assembly constituency, where a poll becomes necessary, the Returning officer shall consider the choice of symbol 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 contesing candidate in conformity, as far as practicable with his choice; and
(b) if more contesting candidates than one have indicated their preferences for the same symbols, decide by lot to which of such candidate the symbol will be allotted.
(5) 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.
(6) Every candidate or his electien agent shall forthwith be informed cf the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer.'
Paragraphs 8 and 13 (b) of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the Order), read as follows:
'Paragraph 8: Choice of symbols by candidates of National and State parties and allotment thereof :--
(1) A candidate set up by a National party at any election in any constituency in India shall choose, and shall be allotted, the symbol reserved for that party and no other symbol.
(2) A candidate set up by a State party at an election in any constituency in a State in which such party is a State party, shall choose and shall be allotted the symbol reserved for that party in that State and no other symbol.
(3) A reserved symbol shall not be chosen by, or allotted to any candidate in any constituency other than a a candidate set up by a National party for whom such symbol has been reserved or a candidate set up by a State party for whom such symbol has been reserved in the State in which it is a State party even if no candidate has been set up by such National or State Party in that constituency.'
'Para. 13: When a candidate shall be deemed to be set up by a Political Party for the purposes of this order a candidate shall be deemed to be set up by a political party if, and only, if:--
(a) the candidate has made a declaration to that effect in his nomination paper;
(b) a notice in writing to that effect has, not later than 3 P. M. on the last day of withdrawal of candidatures, been delivered to the returning officer of the constituency;
(c) the said notice is signed by the president, the secretary or any other office-bearer of the party and the president, secretary or such other office-bearer is authorised by the party to send such notice and the name and specimen signature of the president, the secretary of such other office-bearer are communicated in advance to the Returning officer of the constituency and to the Chief Electoral officer of the State.'
9. Since both the parties have referred to the provisions of Paragraph 18 of the above Order it will be relevant to quote the same also.
'18. Power of Commission to issue instructions and directions.-- The commission may issue instructions and directions-
(a) for the clarification of any of the provisions of this order;
(b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and
(c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this order makes no provision or makes insufficient provision and provision is in the opinion of the commission necessary for the smooth and orderly conduct of elections.'
10. The contention of the learned counsel for the petitioner is that in view of the mandatory provisions of Section 38 of the Act, Rule 10 of the Conduct of Election Rules and Paragraphs 8 & 18 of the Order any Symbol once allotted by the returning officer to a candidate cannot be changed subsequently. It was further contended that there is no power even in the election commission to order for the change of the allotment of symbol even under the provisions of Paragraph 18 of the Order. It was urged that by ordering a change of the symbol of the returned candidate after the last date of withdrawal there has been a breach of the provisions of Section 38, Rule 10 of the Conduct of Election Rules and Paragraphs 8 and 13 of the Order.
11. Reference was made by the learned counsel to the specification of time and date in Section 33 in regard to the presentation of the nomination paper before the returning officer. He also referred to the limited power of adjournment in the matter of scrutiny to be found in Section 36(5) of the Act. He also referred to the specific mention of time in regard to the withdrawal of candidature. A reference was also made to the mandatory nature of the direction in Section 38 of the Act for the publication of the list of contesting candidates immediately after the expiry of the period of withdrawal. From all these provisions it was contended that the Act sets down very specifically not only the dates but the timings of doing of certain acts. Anything done beyond the specified period is of no significance. If a nomination paper is filed after 3 P. M. on the last date fixed for the receipt of nomination papers that is not to be accepted. Similarly, a candidate can only withdraw upto 3 P. M. on the last date fixed for the withdrawal of the candidature. If he is late in withdrawing his candidature even by a minute after 3 P. M. his withdrawal cannot be permitted for there is no power in the returning officer to permit him to do so. It is true that the Act lays down specific timings for doing of certain acts like filing of nominations and withdrawals.
12. The returning officer is to allot the symbols to the contesting candidates immediately after the time fixed for the withdrawal of the candidature expires. Basically a candidate can only be allotted the symbol of his choice but if he is the candidate of a National or State political party then he can be allotted no other symbol than the one which is reserved for that party. In the present case I need not go into the question of the allotment of symbols for independent candidates, for I am not really concerned with it. The allotment in the present case is of the reserved symbol reserved for a political party. Rule 10 (4) of the Conduct of Election Rules 1961 provides that the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination paper and shall, subject to any general or special direction issued in this behalf by the Election Commission, allot a different symbol to each contesting candidate. It, therefore, refers to the power of the Election Commission to issue general or special directions in this behalf. Some directions are contained in the order. In Paragraph 8 of the order a direction has been given for the allotment of the symbol reserved for a National party to a candidate set up by the National party and he cannot be allotted any other symbol. In paragraph 13 a direction has been issued that a candidate shall be deemed to be set up by a political party if the candidate has made a declaration to that effect in his nomination paper and has filed a notice in writing to that effect by 3 P. M. on the last date of withdrawals with the returning officer of the constituency and further that the said notice is signed by the president or the secretary or any other office-bearer of the party and the party has authorised such an office-bearer to do so and this has been communicated in advance to the returning officer of the constituency and the chief electoral officer of the State. Thus in the case of a political party the reserved symbol meant for that political party can only be allotted to a candidate who has indicated in his nomination paper that he is a candidate of that party and has given a notice to that effect to the returning officer duly signed by the official of the party who is empowered to do so. In the present case there is no dispute that Shri Chandra Shekhar, the president of the Janta Party, was authorised by the party to give the notice and it was his authenticated signature which had been sent to the returning officer and the Chief Electoral Officer of the State. Consequently, a candidate claiming to be the candidate of the Janta Party could only be allotted the symbol of that party by the returning officer provided he had filed before the last date of withdrawal with the returning officer the notice signed by the president of the party as envisaged in Paragraph 13 (c) of the Order. It is not disputed that no such notice on behalf of the respondent had been filed before the returning officer by 3 P. M. on 21st May, 1977 which was the last date of withdrawal of the candidatures. Further, it is undisputed that such a notice signed by the president of the Janta party had been filed before the Returning officer, before 3 P. M. on the 21st May, 1977 indicating that Kranti Kumar was the candidate of the Janta Party. It was, therefore, rightly urged that the Returning Officer had acted in accordance with law in allotting the reserved symbol of 'Haldhar within Wheel' to Shri Kranti Kumar. However, the said allotment would be not in accordance with law if the Election Commission issued any direction or instruction to the contrary. That direction or instruction could be general or special, as contemplated under Rule 10 (4) of the Rules. In that event the allotment of symbol had to be amended or changed.
13. The question therefore is whether the election commission had any power to order for the change of the symbol after it had been allotted by the Returning Officer. Learned counsel for the petitioner contended that in Sub-rule (5) of Rule 10 of the Conduct of Election Rules, 1961, the words used are 'the allotment by the Returning Officer of any symbol to a candidate shall be final, ... ............... ............' He argued that this allotment of symbol could not be altered or changed except as provided under the law. He urged that the very Sub-rule (5) indicated the case where it would not be final. If it is inconsistent with any direction issued by the Election Commission, it would not be final. It postulated, according to the learned counsel, a direction issued prior to 3 P. M. on the last date of withdrawal. A direction issued subsequent to the expiry of period of time for the withdrawal of the candidature is not visualised. In other words, his contention was that an order allotting a symbol to a candidate could only be set aside if it was inconsistent with any existing direction issued by the Election Commission, otherwise it would be final. The finality would be reached, according to him, at the moment when the allotment was made. Learned counsel was not able to cite any direct authority in support of his contention, but cited certain decision to emphasise the point of finality. In the case of Baidyanath v. Sita Ram (AIR 1970 SC 314), it was held that the power to correct entries in the Electoral Roll or to include new names could not be exercised after the last date for making nomination and before the completion of election. The electoral Roll in Section 62(1) of the Act meant the electoral roll that was in force on the last date for making nomination for the election. It was further held that the names of persons entered as electors after that date was not permissible for the purposes of election. Referring to Section 27(2) of the Act, their Lordships observed (at p. 317):
'A fair reading of the various clauses in Section 27(2) will make it clear that the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency, should be considered as final for the purpose of that election. Learned counsel contended that where there was a finality attached to an act, it could not be subsequently altered. In Ramji Prasad Singh v. Ram Bilas Jha, (AIR 1976 SC 2573), their Lordships were considering an appeal Under Section 116A of the Act.' One of the questions was whether forty new members entered on the electoral roll after the last date of making nominations could vote in the election. After considering the provisions of Section 23(3) and Section 62(1) of the Act, their Lordships held (at p. 2580):
'If the name of a person is entered in the electoral roll in violation of the mandate contained in this section, he can have no right to vote by reasons merely of the entitlement conferred by Section 62(1) of the Act of 1951.' Their Lordships further observed:
'If, as here, the electoral roll is amended after the time-limit set down in Section 23(3) of the Act of 1950, the amendment would be without jurisdiction conferring no right to vote on the persons whose names are thus included in the roll. As held by this Court in Baidyanath v. Sitaram, (1970) 1 SCR 839 : AIR 1970 SC 314 the provision contained in Section 23(3) is mandatory not merely because of the language employed in that sub-section but more so in view of the purpose behind the particular provision. The sub-section does not deal with any mode or procedure in the matter of registering voters. It interdicts the concerned officer from interfering with the electoral process under the prescribed circumstances. Therefore, when there is a breach of Section 23(3), the question is not of an irregular exercise of power but of the lack of power itself.'
Learned counsel laid emphasis on the above observations and urged that similarly in the present case, it was not a case of irregular exercise of power but a case of lack of power. Reference was made to a decision of the Supreme Court in the case of Hari Vishnu v. Ahmad Ishaq (AIR 1955 SC 233). In that case, it was found that some of the ballot papers had a different distinguishing mark than the one prescribed. The Election Commission passed an order subsequent to the actual polling, but before the votes were counted that the ballot papers bearing brown bar would also be a valid ballot paper. Their Lordships held: 'If a distinguishing mark had been prescribed under Rule 28, the ballot paper to be delivered must bear that mark. Therefore, if any change or alteration of the original distinguishing mark is made, it must be made before the commencement of the poll, and the ballot paper should contain the new distinguishing mark. The approval by the Election Commission subsequent to the polling therefore cannot render valid the 301 ballot papers which did not bear the distinguishing mark prescribed for the election and they were liable to be rejected under Rule 47 (1) (c).' Learned counsel emphasised on the above observations to urge that if a general or special order had to be issued, it had to be done prior to 3 P. M. on the date fixed as the last date for withdrawal of candidature. If this was not done, it could not subsequently be done by any directive issued by the Election Commission.
14. As regard the question of finality, I am unable to agree with the contention of the learned counsel for the petitioner. Sub-rule (5) of Rule 10 itself provides for an exception. The provision does not stop after the word 'final' but specifically provides that it would not be so where it is inconsistent with any general or special directive of the Election Commission. It is apparent that if there is a directive by the Election Commission and if that directive is contrary to the decision of the Returning Officer the directive of the Election Commission would prevail. I would in this context refer to a passage from the decision of the celebrated case of allotment of symbol, Sadiq All v. The Election Commission of India (AIR 1972 SC 137). In paragraph 37 their Lordships observed:
'It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation, choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by Rule 5 of the Conduct of Election Rules. Sub-rule (4) of the Rule 10 gives a power to the commission to issue general or special directions to the Returning officers in respect of the allotment of symbols. The allotment of symbols by the Returning officers has to be in accordance with those directions. Sub-rule (5) of Rule 10 gives a power to the commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would there-fore, follow that Commission has been clothed with plenary power by the above mentioned Rules in the matter of allotment of symbols. The validity of the said rules has not been challenged before us. If the commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. (Emphasis is laid on the portion underlined by me.
15. The law on the point has been clearly laid down by the Supreme Court. The power of the Election Commission in the matter of allotment of symbol is complete. In my opinion, the weighty observations made in the above case gives an absolute power to the Election Commission to revise the allotment of a symbol made by the Returning officer. Further, Election Commission has power to issue general or special directive in the matter of allotment of symbols not only in respect of political parties or rival groups claiming the symbol of a political party, but also as between the individuals claiming the symbol of a political party. The power is, therefore, in the Election Commission to revise the order of allotment of symbol, and it can in appropriate cases issue directives for changes or alteration in the allotment of symbol.
16. An argument was raised in the alternative that this alteration or change could only be done prior to the ultimate time fixed for the withdrawal of the candidature. The alteration of the allotment of symbol could be done provided it was inconsistent with some order, special or general, issued by the Election Commission, and not otherwise. It, therefore, postulated the existence of a special or general order at the time when the symbol was allotted by the Returning officer. It was, therefore, necessary that the special or the general order should have been issued prior to 3 P. M. on the last date of withdrawal of the candidature. If the general or special order had not been issued prior to that period of time, there was no power in the Election Commission to issue a directive after the aforesaid time fixed for the withdrawal of the candidature. Even if this argument were to be accepted, it may be stated here that no material has been brought on the record and nothing has been shown that the said directive was not issued by the Election Commission before the appointed time. The petitioner has failed to show that the direction issued by the Election Commission was made subsequently. All that he has brought on the record is a letter sent by the Chief Electoral Officer, Lucknow to the Returning Officer on the 22nd May, 1977. There is nothing on the record to show that the original order was passed by the Election Commission not on the 2lst May, but on the 22nd May, 1977. The burden to establish this lay on the petitioner, who has challenged the election. The time taken in transmission of the direction would not take away the jurisdiction and the power of the Election Commission from revising the order of the allotment of symbols.
17. Learned counsel for the petitioner then contended that the power to issue general or special order is not contained in Paragraph 18, which provides for the clarification of say provision of the order or for the removal of any difficulty in regard to implementation of any such provision and in relation to any matter with respect of reservation and allotment of symbols recognised by the political parties for which the order makes no provision or makes insufficient provision or for which the provision is necessary in the opinion of the Commission for the smooth and orderly conduct of election. Learned counsel contended that the order passed by the Election Commission, in the present case, does not fall under any of the three clauses of Paragraph 18. In other words, he contended that the scope and ambit of paragraph 18 is very limited.' It is for the furtherance of the objects and matters provided for under the order itself and does not envisage the passing of a special or general order in regard to alteration of the allotment of symbols to a particular candidate. He argued that the order envisaged under paragraph 18 must be consistent with the scheme and essential provisions of the order itself and not for interfering with an order of the Returning offificer which had become final. It is not possible to accept this contention of the learned counsel for the reasons already indicated above. The Supreme Court in the case of Sadiq Ali v. The Election Commission of India (AIR 1972 SC 187) (supra) made it abundantly clear that the Election Commission of India has plenary power to revise the allotment of symbols. Rule 10 of the Conduct of Election Rules gives power to the Election Commission to issue special or general order. The exercise of such power would squarely come under Clause (b) of paragraph 18. The commission is empowered to issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of any such provision which means the provisions of the order. The question in regard to the matter of allotment of a symbol to a candidate of a political party comes within the ambit of paragraph 13 of the order. A letter had been issued to the Election Commission by Shri Ram Krishna Hegde, General Secretary of the Janata Party indicating that the respondent No. 1 was the candidate of the Janata Party from 22-Bijnor Assembly Constituency. It appears that in pursuance of the above letter, an instruction or direction was issued by the Election Commission.
18. Paragraph 18 uses the word 'instructions' or 'directions'. The Election Commission could, therefore, very well issue either an instruction or direction accordingly to the Returning officer either directly or through the chief electoral officer. I am therefore, of the opinion that the Election Commission had power to issue instructions or directions even in the matter of alteration of allotment of symbols.
19. Learned counsel then contended that if this power is concedea to the Election Commission, then it is open to the Election Commission to change an official candidate of any political party even after the time fixed for the withdrawal of the candidature. In other words, he urged that an official candidate of a party could be changed even subsequently as a result of political manoeuvring. I am mentioning this argument merely because great emphasis was laid on this, but I have no hesitation in rejecting this argument, for there is no basis either in the Election Petition or in the evidence led in this case to warrant a contention that such change happened because of the political manoeuvring to which the Election Commission was a party. I would again refer to the case of Sadiq AH (AIR 1972 SC 187) (supra) where their Lordships have said (at p. 201):
'The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner.'
The same observation would hold good in the matter of issuing instructions or directions by the Election Commission,
20. Learned counsel then contended about the effect of symbols in election. He relied on paragraph 18 and the reported decision in the case of Sadiq Ali v. The Election Commission of India (AIR 1972 9C 187) (supra). It was stated there that because of the overwhelming majority of electorate being illiterate, some pictorial representation on the ballot paper itself was necessary so that the voters might identify the candidate of their choice. It was further observed (at p. 195):
'Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of tune acquired a great value because the bulk of the electorate associated the political party at the time of elections with its symbol. It is, therefore, no wonder that in case of a split in a political party, there is a keen contest by each rival group to get the symbol of that party.'
There can be no dispute with the ori-ginal and the value of the symbols in the elections in this country. Learned counsel for the petitioner laid great emphasis on the allotment of symbol in this case, as the electorate were well acquainted with the symbol, but a perusal of the Election Petition and the evidence of the petitioner himself gives a different picture altogether. The petitioner has stated that half the electorate in this Assembly constituency were literate and that they were well acquainted with the issue involved. They knew the candidates and were oppressed by the excess committed during the Emergency. Consequently, the symbol did not assume the importance as it did in previous elections.
21. It is significant to note in this context that the petitioner has nowhere stated that Shri Kranti Kumar was the official candidate of the Janata Party. This has not been stat ed either by the petitioner or any of his witness. Every one has accepted that Kr. Satyabir was the Janata party candidate, as a number of candidates hoping to get the Janata party ticket had filed their nominations. It is also common knowledge that the Janata Party had not been able to decide upon the final list of candidates for the various constituencies, and the list was published quite late. A belated attempt was made to bring a newspaper on the record to show that the name of Kr. Satyavir was not included in the list released to the press on the 19th May, 1977. I have given reasons for the rejection of that prayer separately. I have already held that the Returning officer had given the symbol reserved for the Janata Party to Kranti Kumar but then it, had been refused at the instance of the Election Commission, Great emphasis was laid on the use of the words 'undermentioned changes' in the letter dated 21st May, 1977, Ex. R-4, said to have been written by the General Secretary of the Janta Party. Item No. 6 in the letter reads as follows:
'6. Constituency- No. 22 Bijnor. Our candidate is Satyavir.'
It was argued by the learned counsel for the petitioner that this showed that there was a change of the candidate made by the General Secretary of the Janta Party. Even assuming they had made a change in their official candidates, it has to be considered that the political party was entitled to change its official candidates well within time allowed by law. This letter was not written after the last date of withdrawal but on the last date of withdrawal. No one has produced any material to show as to what specific order was passed' by the Election Commission on his letter. If the entry in respect of item No. 6 is contrasted in respect of item No. 1, it would at once be obvious that there is a difference. In respect of item No. 1, the entry reads as follows :
'1. Constituency 138 Paniara our candidate in the constituency will be Smt. Kamla Sahai and not Smt. Savita Sexena.
It is obvious from the above that a change was proposed in place of Smt. Savita Saxena, but the same is not the position in respect of constituency No. 22-Bijnor.
22. Having given the matter the consideration it deserves I am satisfied that the Election Commission had power to revise the allotment, of symbol and the instructions issued by it were not contrary to the law and did not violate any provisions of the Act. Rule or the order.
23. I now come to the second question viz., as to whether the result of the election so far as respondent No. 1 is concerned has been materially affected. The burden to establish thisrests entirely on the petitioner. Learned counsel for the petitioner arguedthat if the allotment of symbol hadnot been revised by the election commission, then Kr. Satyavir would nothave got the symbol reserved for theJanata Party and 'Shri Kranti Kumarwould have contested the election onthat Symbol. Since the image ofShri Kranti Kumar was not good, hewould have lost the election, and thecongress candidate, Kesho Saran wouldhave succeeded. This is a speculativeargument. Speculative argumentshave no place in an Election Petition.There is no question of a particularcandidate losing an election merely because of his image was bad. The petitioner admitted that there was a Janatawave and that was the trend of popular voting in this election. It wasevident that whichever candidate wasadopted by the Janata Party had agreater chance of getting elected. Ican quite visualise the situation in thecontext of 1977 Election to the Parliament and to the Legislative Assembly in the Uttar Pradesh that a person, who contested the election on theJanta party ticket had a very goodchance of winning the election becauseof the trend of popular voting. Itwould be entirely in the realm ofspeculations to hold that congressparty would have succeeded here because the image of Shri Kranti Kumar was said to be not good.
24. It must be remembered that the petitioner is an elector only and not a candidate in this election. Shri Kesho Saran Sharm, who got the second largest number of votes in this election, has not filed this election petition. The other person, w ho could be aggrieved, is Shri Kranti Kumar. He has not filed any Election petition. Of course, an elector can file an election petition, but he has to show that the result of the election has been materially affected.
25. The Supreme Court in the case of Vashishta Narain v. Deo Chandra (AIR 1954 SC 513), had laid down the law on the above point:
'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 duty imposed upon him by Section 100(1)(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 inveitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.'
This was a decision prior to the amendment of Section 100 by the 1956 Amending Act, what was Section 100(1)(c) in the above section is now 100(1)(d) after amendment. This case was followed by the Supreme Court in the case of Paokai v. Rishang (AIR 1969 SC 663), and Chief Justice Hidayatuallah made the point clear in the following words (at pp. 665-666):
'In our country, the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected.
Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not.'
It is clear from the above that the petitioner has to demonstrate either positively or even reasonably that the poll would have gone against the returned candidate. The question is whe-there the petitioner has been successful in discharging this burden cast upon him. I answer this question emphatically against the petitioner. The evidence led by the petitioner is speculative, conjectural and inadequate. There is no allegation much less any evidence to show that people would have voted for the Congress candidate and not for the Janata Party candidate. No evidence of any voter in this respect was produced. The entire arguments were based on the reasoning that Shri Kranti Kumar enjoyed a bad image and therefore would not have collected as many votes as the respondent No. 1. Shri Kranti Kumar was a candidate in this election and secured a little over 2700 votes but that was a stage when he had told the people both orally and by publication that he was not contesting the election.
26. The learned counsel for the petitioner contended that Kr. Satyavir would have lost the election if he had contested as an independent candidate. This contention, in my opinion, is only academic. In view of the finding that there has been no breach of any provision of law, the question of the election having been materially affected does not arise. I would have examined the question in detail, if there was non-compliance of any provision of the law. However, I am satisfied from the material on the record that the petitioner has miserably failed to establish that the result of the election has been materially affected.
27. I hold that there has been no non-compliance of provision of the Act, Rules or order and the result of the election has not been materially affected in this case. I further hold that the Election Commission had power to alter or modify the symbol allotted by the Returning Officer by a special or general order. Consequently, I answer issue No. 1 in the negative and issue No. 2 in the affirmative. Issue No. 3
28. In view of my finding under issues 1 and 2 this issue is also answered in the negative and against the petitioner. The election of the respondent cannot be declared to be void under Section 100(1)(d)(iv) of the Act. Conclusion
29. In view of my answers on Issues, 1, 2 and 3, the Election Petition must fail. The respondent has prayed for special costs but I do not think this to be a fit case to award special costs. He will be entitled to his costs.