UMA BALLAV RATH Vs. MAHESHWAR MOHANTY

JUDGEMENT

(1.) -This appeal calls in question the judgment and order of the High Court of Orissa dated 23rd December, 1997, dismissing an Election Petition filed by the appellant herein.

(2.) Elections to 56 Puri Assembly Constituency of the Orissa Legislative Assembly were held in the month of March, 1995. The last date for filing of nomination papers was 17th January, 1995. It appears that the appellant and respondent No. 1 filed their nomination papers as "official candidates" of Janata Dal. Their nomination papers were supported by authorisations in Forms A and B under the signatures of Shri S. R. Bommai, President of the Janata Dal. Since two candidates had claimed the reserved symbol of Janta Dal and before the last date fixed for withdrawal of candidature, no communication was received by the Returning Officer as to which one out of the two was the official candidate, the Returning Officer treated both the appellant and respondent No. 1 as independent candidates and allotted the free symbols of "Bi cycle" and "Boat" respectively to them, by an order dated 20th January, 1995. The order of the Returning Officer was challenged before the Election Commission under Rule 10(5) of the Conduct of Election Rules, 1961 (hereinafter "the Rules") both, the appellant as well as respondent No. 1. vide order dated 25th January, 1995, the Election Commission, after examining the documents and other material on the record, held that the decision of the Returning Officer was consistent with the directions, orders and rules relevant to the subject. The order of the Returning Officer was, consequently, upheld. While the matters rested thus, it appears that on 30th January, 1995, Shri S.R. Bommai, President of Janta Dal submitted a representation to the Election Commission stating therein that no Form B had been supplied to the appellant and that the appellant had produced Form B fraudulently. Respondent No. 1 was stated to be the official candidate of Janata Dal. The Election Commission of India, without issuing any notice to the appellant and without granting him any opportunity of hearing opined on February 1, 1995 on a "reconsideration of the matter," that there was "no reason to disbelieve" that respondent No. 1 was the official candidate of Janata Dal for 56 Puri Assembly Constituency. A direction was issued by the Commission in exercise of its powers under Article 324 of the Constitution read with the Rule 10(5) of the Rules to consider and treat respondent No. 1 as the official candidate of Janata Dal from the concerned Assembly Constituency and to allot the reserved symbol of Janata Dal, a national recognised party to him. Pursuant to the said direction of the Election Commission, election symbol of "Wheel", a reserved symbol, was allotted to respondent No. 1 while the appellant was treated as an independent candidate. After the polls were conducted, respondent No. 1 was declared elected on the Janata Dal ticket. The appellant thereupon filed an Election Petition challenging the election of respondent No. 1 on various grounds, including the ground that the result of the election, insofar as it concerns respondent No. 1, had been materially affected by non-compliance with the Constitution, the Act and the rules made thereunder. The Election petition was resisted by the returned candidate and from the pleadings of the parties, the following Issues were framed on 20th September, 1995:

(3.) Shri B.N. Singhvi, learned counsel appearing for the appellant in this appeal has confined his submissions to challenge the findings on Issue No. 1 and has not contested any of the findings recorded by the learned single Judge on Issues 2 to 5. We are, therefore, relieved of the necessity to deal with those Issues and shall confine ourselves to the determination of the correctness or otherwise of the findings on Issue No. 1.