Holding

The Supreme Court held that the statutory 20‑day period was complied with, and even assuming a breach of Rule 10(5), the petitioner failed to prove a material effect, so the election was not void.

Summary

In the 1985 Bihar Legislative Assembly election, Lata Devi (Mali) was declared elected from Chandan Kyari (SC) constituency. The defeated candidate, Haru Rajwar, filed an election petition alleging that the Returning Officer changed his allotted symbol from "bow and arrow" to "ladder" less than twenty days before polling, violating Section 30(d) of the Representation of the People Act, 1951 and Rule 10(5) of the Conduct of Election Rules, 1961, and that the change materially affected the result. The Patna High Court held the election void, finding a material effect. On appeal, the Supreme Court examined the statutory requirement of a minimum twenty‑day period after withdrawal of nominations and found it satisfied; it also held that a breach of Rule 10(5) alone does not void an election unless the petitioner proves a material effect. The Court concluded that the petitioner failed to produce any positive evidence that the altered symbol caused a loss of at least 430 votes, and therefore set aside the High Court’s order. The appeal was allowed and the election of Lata Devi was upheld.

Issues considered

Whether Section 30(d) of the Representation of the People Act, 1951 requiring a minimum twenty‑day period after withdrawal of nominations was violated.
Whether Rule 10(5) of the Conduct of Election Rules, 1961 was violated by changing the election symbol without Election Commission permission.
Whether the petitioner discharged the burden of proving that the alleged violation materially affected the election result.
Whether the High Court erred in declaring the election void on the basis of the alleged violations.

Legislation cited

Conduct of Election Rules, 1961s. Rule 10(4), s. Rule 10(5)
Representation of the People Act, 1951s. 100(1)(d)(iv), s. 116A, s. 116C(2), s. 30(d)

Subjects

election petitionsymbol changematerial effectRepresentation of the People ActConduct of Election Rulesburden of proofelection voidcampaign period

Judgment

·' -;'·'

SMT. LATA DEVI (MALI)
A
v.
HARU RAJWAR

AUGUST 22, 1989

[N.D. OJHA AND K.N. SAIKIA, JJ.] B

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
c
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 D
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 E
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,

I~
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 F
(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.
G
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.

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
viblatlon of Rule 10(5) of the Conduct of Election Rules; and (iv) even
ll 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.

c 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
provision was clearly complied with. [928G-929A]
F
(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
G (4) The party who wishes to get an election declared void has to
establish by satisfactory evidence that the result of the poll had in fact
been materially affected by the violation of Rule 10(5) of the Rules. For
doing this, it has to be demonstrated that the votes would have been
diverted in such a way that the returned candidate would have been
unsuccessfulL [931B] .
H
SMT. LATA DEVI v. HARU RAJWAR 923

Vashist Narain Sharma v. Dev Chandra & Ors., [1955] 1 SCR
A
509; lnayatullah Khan v. Diwanchand Mahajan & Ors., 15 ELR 219;
S.N. Ba/akrishna v. Fernandes, AIR 1969 SC 1201, (1969) 3 SCR 603;
Shiv Charan Singh v. Chandra Bhan Singh, [1988] 2 SCC Ii and
Chhedi Ram v. Jhilmit Ram & Ors., [1984] 2 SCC 281, referreil io.

~ (5) A decision in an election petition cait be given oiiiy oil positive B
and affirmative evidence and not on mere spetlliatioii iifid stis~ICitiii;
however, strorig they are. in the instarii case; there is no sric.h jlilsi!ive
and affirmative evidence. Mere assertions by the electioii petitioner
were not enough. [9320]

,.- (6) There could be no proposition or contention that a candidate
~- with a particular symbol would always be successful at the hustings or C
( that a particular voter or a number of voters would always vote for a
symbol irrespective of the candidate to whom it is allotted. [932EJ

(7) There is no dispute about the importance of the symbol in a
backward constituency. This will however, not absolve the election D
petitioner of his burden of proving that the result of the election has
been materially affected. [933B J

---( All Party Hill Leaders' Conference, Shillong v. Captain W.A.
Sangama, AIR 1977 SC 2155 and Roop Lal Sathi v. Nachhattar Singh
Gill, [1982] 3 SCC 487, referred to. E

(8) The election petitioner has not stated and proved that more
than 430 voters would have voted for him, had the symbol of 'bow
and arrow' not been changed, and that they voted for Murura Dasi
·..:. . only for her having the symbol of 'bow and arrow'; Row could that
r be proved would, of course, depends· on the facts and circumstances F
of the case. [929F] ·

(9) In the instant case, the election petitioner dismally failed to
discharge the burden of proving that the result of the election, in so far
as it concerned the appellant, who has been the returned candidate, was
materially affected. The High Court was in error in holding, without G
sufficient evidence, that it was materially affected. [934CJ
t
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3955
(NCE) of 1987.

From the Judgment and Order dated 16. 11. 1987 of the Patna H
High Court in Election Petition No. 4of 1985.
924 SUPREME COURT REPORTS (1989] 3 S.C.R.

R.K. Garg and D.K. Garg for the Appellant.
A
S.N. Singh, H.L. Srivastava, B.M. Sharma and T.N. Singh for
the Respondent.

The Judgment of the Court was delivered )Jy
B
SAIKIA, J. This election appeal under S. 116A of the Represen-
tation of the People Act 1951, hereinafter referred to as 'the Act', is
from the Judgment of the Patna High Court (Ranchi Bench) in the
respondent's Election Petition No. 4 of 1985 allowing the petition and
declaring the election of the appellant to the Bihar Legislative Assem-
C bly from the 286 Chandan Kyari (S.C.) Constituency to be void.

Pursuant to the Notification of Election to the Bihar Legislative
Assembly, the Returning Officer of the 286 Chandan Kyari (S.C.)
Assembly Constituency announced the following programme:

D A. Last date for filing nomination paper 6.2.1985
B. Date of the Scrutiny of the nomination paper 7.2.1985
C. Last date of withdrawal of candidature 9.2.1985
)'
D. Date of Poll 5.3.1985 I

E E. Date of counting 6.3.1985

The appellant, the respondent and 17 others filed their nomina-
tion papers; and the Returning Officer accepted the nomination
papers found valid at the scrutiny. Three of them withdrew their candi-
dature, leaving 16 contesting candidates in the field. The Returning "
F Officer prepared and bublished the following list of contesting candi- 1
dates with the allotted symbols:

S.No.Name Party Symbol

1. AyodhyaRajak Independent Boat
G 2. UmaBawri " Horse
3. Kokil Rajwar " Cultivator cutting crops
4. Kiriti Bhusan Das " Fish·
5. Tilakdhari Bawri " Two leaves
H
6. DulalDas Independent Spade & Stroker
SMT. LATA DEVI v. HARU RAJWAR !SAIKIA, J.) 925

f 7. Nakul Chandra Rajak Independent Rising Sun A
8. Panchanan Rajak " Ladder
9. Padam Lochan RajwarB.J.P. Lotus
10. Mahindri Ra jwar Independent Bicycle
"\ 11. MururaDasi Jharkhand A Woman carrying a B
Mukti Morcha basket on her head.
12. Yogendra Bawri Indian Scale
Congress (J)

t 13.
14:
Ramdas Ram
Lata Devi (Mali)··
Independent
Indian
National
Congress(!)
Camel
Hand c

15. Shankar Bawri Independent Swastik within
the circle
D
16. HaruRajwar Marxist Bow and arrow
coordination

'-( The poll was held according to schedule on 5.3.1985; and, after
counting, the following result was announced on 6.3.1985 by the
Returning Officer: E
S. No.Name Party Votes secured

1. Ayodhya Rajak Independent 187
'
~ 2. UmaBawri "
,,
590
F
3. Kokil Rajwar 4564
4. Kiriti Bhusan Das " 477
5. Tilakdhari Bawri 1458
6. DulalDas " 550
,, G
7. Nakul chandra Rajak 387
..;..
8. Panchanan Rajak 434
9. Padam Lochan Rajwar B.J.P. 8231
10. Mahandri Rajwar Independent 2500
H
926 SUPREME COURT REPORTS (1989] 3 S.C.R.

A
11: Murura Dasi Jharkhand 2228
Mukti Morcha
12. Yogendra Bawri Indian Congress (J) 1163
13. Ramdas Ram Independent 195
14. Lata Devi (Mali) Indian National 8659
B
Congress (I)
15. Shankar Bawri Independent 486
16. Haru Rajwar Independent 8229

The appellant Lata Devi (Mali) was declared elected. The
C r.espondent Haru Rajwar filed an election petition in the Patna High
Court (Ranchi Bench) calling in question the election of the appellant
to the Bihar Legislative Assembly on the ground, inter alia, that on
14.2.1985, he received a notice of the intention of the Returning
Officer to change his allotted election symbol and though, through
D counsel, he objected on 15.2.1985, the Returning Officer re-allotted
the respondent's 'bow and arrow' symbol to Murura Dasi and instead
allotted the symbol of 'ladder' to him. It was urged in the petition that
he contested and won the earlier election from the same constituency
with the same 'bow and arrow' symbol; the sudden change of his
1

y
symbol left him with less than 20 days time for campaign and it resulted
E ip confusion amongst his supporters as a result of which his election
was materially affected by the change; that the election was liable to be
declared void on the ground of violation of S. 30(d) of the Representa-
tion of the People Act which, according to him, prescribed atleast 20
days time for election campaign, which he did not have after change of
the symbol; and that the election was void also for violation ofRule
!0(5) of the Conduct of Election Rules, 1961 under which, according
F to him, the election symbol could not be changed without permission
of the Election Commission.

It is the appellant's case that she did not receive any notice of the
election petition against her. The trial proceeded ex parte. The
respondent-election petitioner examined himself at the trail.
G
I
The High Court by its impugned order dated 16. 11. 1987 allowed ·-4wi
the petition and declared the appellant's election to be void holding
that the result of the election in so far as it concerned the returned
candidate was materially affected by violation of Rule 10(5) of the
H Conduct of Election Rules, 196~. Hence this appeal.
SMT. LATA DEVI v. HARU RAJWA!l ISAIKIA, !.] 927

Mr. R.K. Garg, the learned counsel for the appellant submits,
inter alia, what even assuming what was stated by the respondent-elec-
tion petitioner to be true, there was no breach of section 30(d) of the
Representation of the People Act inasmuch as the minimum 20 days
time was available after the date of withdrawal of nomination paper to
the date of poll; that there was no violation of Rule 10(5) of the
Conduct of Election Rules; and that even assuming that there was B
•• violation of this rule, the election petitioner dismally failed to prove by
evidence that the result of the election was materially affected thereby,
inasmuch as no sufficient evidence was adduced in proof of his claims,
and he himself could not have proved his averments.

Mr. S.N. Singh, the learned counsel for the respondent, relying
on All Party Hill Leaders' Conference, Shillong v. Captain W.A. c
Sangama, AIR 1977 SC 2155, and Roop Lal Sathi v. Nachhattar Singh
Gill, [1982] 3 SCC 487, strenuously argues that the violation of Rule
10(5) is itself sufficient to have materially affected the result of the
election particularly in view of the fact that in the instant constituency
of backward voters, the symbol was very important, and change D
thereof had disastrous consequences to the respondeilt candidate.

The material facts relevant to this appeal are not in dispute. The
list of contesting candidates with respective symbols was published on
9.2.1985; the election petitioner's symbol 'bow and arrow' was re-
allotted to candidate Murura Dasi and the symbol of ladder in place of E
'bow and arrow' was re-allotted to the respondent; the poll took place
on 5.3.1985; and the result was announced on 6.3.1985.

The respondent-election petitioner in the High Court examined
,... himself as P.W. land deposed to the following effect:
F
" ......... I was given the symbol of 'bow and arrow'. I
canvassed for my votes with the symbol of 'bow and arrow'
till February 15, 1985. The Returning Officer changed my
symbol and allottted to me the symbol of 'Sirhi' (ladder).
The symbol of 'bow and arrow' was given to Murura Dasi,
the another candidate. I was the sitting MLA and my G
. l. symbol inJhe last election was also 'bow and arrow'. I lost
~ the election this time by a margin of 430 votes. In the
election held in the year 1980, I won the election by a
margin of 96 p votes. This time the main reason of my
defeat in the election is the change of my symbol. Due to
change of my symbol, the voters were misled and they H
928 SUPREME COURT REPORTS [1989] 3 S.C.R.
j

A
could not be apprised of this change. I could not canvass
for my votes with the symbol of 'ladder' in that const:-
-
tuency and in that area. I was kriown largely and properly
in the areas as the MLA with the symbol of 'bow and
arrow'. The candidate of Congress party was declared
elected in this electiolll, The dection of my constituency
B was held in March 5, 1985. I did not get 20 days time as ~
provided in law after the change of my symbol."

When recalled, he added that the symbol was a free symbol
which had been allotted to him earlier i.e. the symbol of 'bow and
arrow'. "The last date of withdrawal of the nomination paper was 1
February 9, 1985. By the change of symbol 'bow and arrow', I was
c materially affected and it affected the course of election and the voters -4
were misled and they wrongly voted for Murura Dasi." Evidence of no
other witness appears on record. The question before us is, whether on
the basis of the above evidence on record the High Court was justified
in holding that the result of the electi?n was materially affected and in
D declaring the appellant's election to be void on that ground.

Section 100 of the Representation of the People Act, 1951 states
the grounds for declaring an election to be void. Sub-section l(d)(iv) '
says: (1) subject to the provisions of sub-section (2) if the High Court t;
is of opinion (d) that the result of the election, in so far as it concerns a
E returned. candidate, has been materially affected (iv) by any non-
compliance with the provisions of the Constitution or of this Act or of
any rules or orders made under this Act, the High Court shall declare
the election of the returned candidate to be void: Sub-section (2) is not
relevant for the purpose of this case. Was there in this case. any viola-

F
lion of S. 30(d)? Under S. 30 of the Representation of the People Act,
1951, as soon as the notification calling upon a constituency to elect -~
the member or members, is issued, the Election Commission shall, by
notification in the Official Gazette appoint, amongst others, under
clause (d) the date or dates on which a poll shall, if necessary, be
taken, which or the first of which shall be a date not earlier than the
twentieth day after the last date for the withdrawal of candidature. In
G the instant case the last date for the withdrawal of nomination was
9.2.1985 and the date of poll was 5.3.1985. Thert was, therefore, clear
compliance with the requirement of S. 30(d). The respondent himself J
stated that on 14.12.1985'he received notice of intention of the Return-
ing Officer to change his election symbol and the symbol was actually
changed on 15.2.1985. We agree with the High Court that only the
H spirit of S.30( d) was not complied with. In terms, this provision was
SMT. LATA DEVI v. HARU RAJWAR ISAIKIA, J.) 929.

clearly complied with. The submission that it was violated, has, there-
A
fore, to be rejected.

Rule 10 of the Conduct of Election Rules, 1961 deals with pre-
paration of list of contesting candidates. Sub-rule (4) thereof requires
that at an election in an assembly constituency, where a poll becomes
necessary, the Returning Officer shall consider the choice of symbols B
expressed by the contesting candidates in their nomination papers and
shall, subject to any general or special direction issued in ibis behalf by
the Election Commission (a) allot a different symbol to each contest-
ing candidate in conformity, as far as practicable, with his choice; and

r (b) if more contesting candidates than one have indicated their prefer-
ence for the same symbol decide by lot to which of such candidates the
symbol will be allotted. Under sub-rule (5) the allotment by the
Returning Officer of any symbol to a candidate shall be final except
where it is inconsistent with any directions issued by the Election
Commission in this behalf in which case the Election Commission may
c

revise the allotment in such manner as it thinks fit. ·
D
The change of symbol has not been proved to be violative of
Rule 10(5). Even assuming violation, as Mr. Garg submits, was there
enough evidence to show that the result of the election, in so far as it
concerned the returned candidate, was materially affected? The elec-
tion petitioner before the High Court deposed that he lost the election
by a margin of 430 votes. From the result sheet it appears that the E
appellant secured 8659 votes and the respondent secured 8229 votes.

,
The difference is, therefore, of 430 votes. Murura Dasi despite the
'bow and arrow' symbol secured 2228 votes. The election petitioner
has not stated and proved that more than 430 voters would have voted )
for him, had the symbol of 'bow and arrow' not been changed, and that
they voted for Murura Dasi only for her having the symbol of 'bow and F
arrow'. How could that be proved would, of course, depend on the
facts and circumstances of the case.

The result of election, in so far as it concerns a returned can<Ai-
date, may be affected in various ways by various factors stated under
S. lOO(l)(d). So far as the burden and measure of proof of such G
material effect is concerned, the law has been enunciated by several
decisions of this Court. What is required to be demonstrated by evi-
dence will vary according to the way in which the result of the election
in so far as it concerns the returned candidate is alleged to have been
materially affected. It is to be noted that in an election petition what is
called in question is the election and what is claimed is that the election H
930 SUPREME COURT REPORTS (1989] 3 S.C.R.

A
of all or any of the returned candidates is void, with or without a 1
farther declaration that the election petitioner himself or any other
candidate has been duly elected. Declaring the election of the returned
candidate void does not, by itself, entitle the election petitioner or any
other candidate to be declared elected.

.B Vashit Narain Sharma v. Dev Chandra and Ors., (1955] 1 SCR ~·
509, was a case of improper acceptance or rejection of nomination
paper and .the manner of proving that the result of the election had

c
been materially affected was slightly different from that of the instant
case as that involved the question of possible distribution of wasted
votes. However, this Court has stated that the result of the election
being materially affected is a matter which has to be proved and the
onus of proving it lies upon the petitioner. Their Lordships observed:
1
"It will not do merely to say that all or a majority of the
wasted votes might have gone to the next highest candi-
dates. The casting of votes at an election depends upon a
D variety of factors and it is not possible for any one to predi-
cate how many or which proportion of the votes will go to
one or the other of the candidates. While it must be recog-
nised that the petitioner in such a case is confronted with a
difficult situation, it is not possible to relieve him of the r
duty imposed upon him by Section !OO{l){c) and hold with-
out evidence that the duty has been discharged. Should the
petitioner fail to adduce satisfactory evidence to enable the
court to find in his favour on this point, the inevitable result
would be that the Tribunal would not interfere in his favour
and would allow the election to stand."

F In lnayatullah Khan v. Diwanchand Mahajan & Ors, 15 ELR
219, where a nominated candidate was found to have been disqualified
under S. 7{d) of the Act the question arose as to what had happened to
the election as a result. It was contended that the margin of votes was
small and .. that the result of the election must be taken to have been
materially affected because Nandlal, a disqualified candidate, got
G 8 ,000 odd votes, which in the event of his not contesting would have
gone to Mahajan. Evidence was led to show how the votes which went
to Nandlal would have been divided and both sides claimed that if
N andlal had not contested the election, the votes would have gone to
them. The Madhya Pradesh High Court observed that the evidence on
this part of the case was exceedingly general and apart from the state-
H ment by the witnesses who came forward as to their opinion, there was
SMT. LATA DEVI v. HARV RAJWAR [SAIKIA, J.] 931

> nothing definite about it. All the evidence which had been brought to
Court's notice was not decisive of the matter under S. 100 of the Act in A
view of the test laid down in Vashit Narain Sharma's case (supra). It
can, therefore, be taken as settled that the party who wishes herein to
get an election declared void has to establish by satisfactory evidence
that the result of the poll had in fact been materially affected by the
violation of Rule 10(5) of the Rules. For doing this, it has to be demon- B
strated that the votes would have been diverted in such a way that the
returned candidate would have been unsuccessful. In the instant case
there was no evidence to demostrate the returned candidate having

r
derived any benefit from the change of symbol of the election
petitioner. Murura Dasi, to whom the 'bow and arrow' symbol was
later allotted, was not the successful candidate. The election petitioner
was required to show that such number of votes had gone in favour of c
the successful candidate instead of in favour of the petitioner, simply
because of the change of symbol as would, without that number of
votes, make the successful candidates unsuccessful. The petitioner,
besides making bare statement, had not produced any other satis-
factory evidence in support of such a proposition. D

In S.N. Balakrishna v. Fernandes, AIR 1969 SC 1201: (1969) 3
i SCR 603, which was a case under S. lOO(l)(d)(ii) and S. 123(4) corrupt
practice charged against an agent other than election agent, on the
question of the result of the election, in so far it concerned the·
returned candidate, being materially affected, Hidayatullah, C.J. E
observed at para 58:

.. In our opinion the matter cannot be considered on possi-
bility. Vashit Narain's case insists on proof. If the margin
of votes were small something might be made of the points
mentioned by Mr. Jethmalani. But the margin is large and F
the number of votes earned by the remaining candidates
also sufficiently huge. There is no room, therefore, for a
reasonable judicial guess. the law requires proof. How far
that proof sliould go or what it should contain is not pro-
vided by the legislature. In Vashit's. case, 1955 (1) SCR
509: AIR 1954 SC 513, and in Jnayaidllah v. Diwanchand G
Mahajan, [1958] 15 Ele LR 219 at pp. 235-246 (MP) the
}-- provision was held to prescribe ao :mpossible burden. The
law has however remained as before. We are bound by the
rulings of this Court and must say that the burden has not
been successfully discharged. We cannot overlook the rul-
ings of this Court and follow the English rulings cited to H
us.!\
'132 SUPREME COURT REPORTS [1989] 3 S.C.R.

A
In Chhedi Ram v. Jhilmit Ram and Ors., [1984] 2 SCC 28 l which .J.
was also a case of . improper acceptance of nomination paper,
Chinnappa Reddy, J. observed that the answer to the question
whether the result of the election could be said to have been materially
affected must depend on the facts, circumstances, and reasonable
probabilities of the case. Under the Indian Evidence Act, a fact is said
B to be proved when after considering the matters before it, the Court
either believes it to exist or considers its existence so probable that a
prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it exists. If having regard to the facts and
circumstances of the case, a reasonable probability is all one way, the
Court must not lay down an impossible standard of proof and hold a
fact as not proved.
c
As was reiterated in Shiv Charan Singh v. Chandra Bhan Singh,
[ 1988] 2 sec 12, in the absence of any proof the result of an election
can not be held to be materially affected; and it is not permissible in
law to set aside the election of the returned candidate on mere
D surmises and conjectures. A decision in election petition can be given
only on positive and affirmative evidence and not on mere speculation
and suspicious, however strong they are. Indeed, in the instant case
there is no such positive and affirmative evidence. 1'1ere 1ssertions by
the election petitioner were not enough. Nothing was alleged and j
proved against the successful candidate. There could be no proposition
E or contention that a candidate with ·a particular symbol would always
be successful at the hustings or that a particular voter or a number of
., voters would always vote for a symbol irrespective of the candidate to

t whom it is allotted.

I Mr. S.N. Singh relies on paragraph 29 of the Judgment in All ~
F Puny Hill Leaders' Conference, Shillong v. Captain W.A. Sangma, l
(supra) wherein Goswami, J. observed:

"For the purpose of holding elections, allottment of symbol
will find a prime place in a country where illiteracy is still
very high. It has been found from experience that symbol
G as a device for casting votes in favour of a candidate of
one's choice has proved an invaluable aid. Apart from this, J
just as people de_velop a sense of honour, glory and - ·
patriotic pride for a flag of one's country, similarly great
fervour and emotions are generated for a symbol repre-
senting a political party. This is particularly so in a
H parliamentary democracy which is conducted on party
SMT. LATA DEVI v. HARU RAJWAR [SAIKIA, J.I 933

lines. People after a time identify themselves with the A
'symbol and the flag. These are great unifying insignia
which cannot all of a sudden be effaced.,,

There is no dispute about the importance of the symbol in a backward
I constituency. This will, however, not absolve the election petitioner of
~-\ his burden of proving that the result of the election has been materially
B
affected. In Roop Lal Sathi v. Nachhattar Singh Gill, (supra) in the
facts of that case, this Court observed that:

"The symbols order was issued by the Election Commis-

r sion under Article 324 of the Constitution in exercise of its
undoubted powers of superintendence, direction and con-
trol of the conduct of all elections to Parliament and Legis-
lature of every State. It is also relatable to Rules 5 and 10 of
c

the Conduct of Elections Rules framed by the Central
Government in exercise of their powers under S. 169 of the
Act. Rule 4 of the Conduct of l;llections Rules provides that
every nomination paper presented under S. 33 of the Act D
shall be in Forms 2-A to 2-E, as may be appropriate. Forms
2-A and 2-B require the candidate to choose symbol.
Under Rule 5(1) the Election Commission by notification
may specify the symbols that may be chosen by candidates
at elections to Parliamentary and Assembly constituencies.
Under Rule 10(4) the Returning Officer shall consider the E
choice of symbols expressed by contesting candidates and
"subject to any general or special direction issued by the
Election Commission" allot different symbols to different
candidates. The allotment of symbols by the Returning
Officer is final under sub-rule (5) of Rule 10 except where
it is inconsistent with any directions issued by the Election F
Commission in that behalf in which case the Election Com-
mission may revise the allotment in such manner as it
thinks fit."

Mr. Singh's submission is as if the violation of sub-rule (5) of
Rule 10 would ipso facto make an election void. That, however, is not G
' the legal position as would be clear from the provision itself. Section
} iOO( l)(d)(iv) of the Act clearly says that subject to the provisions of
sub-section (2) if the High Court is of opinion that the result of the
election, in so far as it concerns a returned candidate, has been mate- ~
rially affected (iv) by arty non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under this H
934 SUPREME COURT REPORTS [1989) 3 S.C.R.
A 1
Act, the High Court shall declare the election of the returned candi-
date to be void. The violation of sub-rule (5) of Rule 10 per se will not
invalidate the election. The election petitioner has also to prove that
the result of the election, in sci far as it concerns the returned candi-
date, was materially affected.
B
From the evidence on record considered in light of the law enun-
ciated above, we have no doubt that the election petitioner dismally
failed to discharge the burden of proving that the result of the election,
in so far it concerned the appellant, who has been the returned candi-
date, was materially affected. The High Court was in error in holding,
without sufficient evidence, that it was materially affected.
c
In the result, the impugned Judgment of the High Court is set
aside and this appeal is allowed with costs which we quantify 'It
Rs.3,000 (Rupees three thousand). Let steps be taken under Section
116C(2) of the Act.
1
D
R.S.S. Appeal allowed.