- (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 S. 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 been 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. 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. 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 Sec. 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 Sec. 100 (1) (d) (iv) of the Representation of the People Act? Issues Nos. 1 and 2.
(3.) 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. 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.;