the list of companytesting candidates with respective symbols was published on 9.2.1985 the election petitioners symbol bow and arrow was reallotted to candidate murura dasi and the symbol of ladder in place of bow and arrow was re allotted to the respondent the poll took place on 5.3.1985 and the result was annumbernced on 6.3.1985.
it was urged in the petition that he companytested and won the earlier elec tion from the same companystituency with the same bow and arrow symbol the sudden change of his symbol left him with less than 20 days time for campaign and it resulted in 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 representation of the people act which according to him prescribed atleast 20 days time for election campaign which he did number have after change of the symbol and that the election was void also for viola tion of rule 10 5 of the companyduct of election rules 1961 under which according to him the election symbol companyld number be changed without permission of the election companymission.
the trial proceeded ex parte.
the high companyrt by its impugned order dated 16.11.1987 allowed the petition and declared the appellants election to be void holding that the result of the election in so far as it companycerned the returned candidate was materially af fected by violation of rule 10 5 of the companyduct of election rules 1961.
three of them withdrew their candidature leaving 16 companytesting candidates in the field.
lotus mahindri rajwar independent bicycle murura dasi jharkhand a woman carrying a mukti morcha basket on her head.
8231 mahandri rajwar independent 2500 marura dasi jharkhand 2228 mukti morcha yogendra bawri indian companygress j 1163 ramdas ram independent 195 lata devi mali indian national 8659 congress i shankar bawri independent 486 haru rajwar independent 8229 the appellant lata devi mali was declared elected.
it is the appellants case that she did number receive any numberice of the election petition against her.
the elec tion of my companystituency was held in march 5 1985.
the respondent haru rajwar filed an election petition in the patna high companyrt 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 numberice of the intention of the returning officer to change his allotted election symbol and though through companynsel he objected on 15.2.1985 the returning officer re allotted the respondents bow and arrow symbol to murura dasi and instead allotted the symbol of ladder to him.
sangama air 1977 sc 2 155 and roop lal sathi 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 company stituency of backward voters the symbol was very important and change thereof had disastrous companysequences to the re spondent candidate.
the respondent election petitioner examined himself at the trail.
from the judgment and order dated 16.11.1987 of the patna high companyrt in election petition number 4 of 1985.
the returning officer prepared and published the following list of companytesting candidates with the allot ted symbols number name party symbol ayodhya rajak independent boat uma bawri horse kokil rajwar cultivator cutting crops kiriti bhusan das fish tilakdhari bawri two leaves dulal das independent spade stroker nakul chandra rajak independent rising sun panchanan rajak ladder padam lochan rajwar b.j.p.
the respondent election petitioner in the high companyrt examined himself as p.w.
yogendra bawri indian scale congress j ramdas ram independent camel lata devi mali indian hand national congress i shankar bawri independent swastik within the circle haru rajwar marxist bow and arrow coordination the poll was held according to schedule on 5.3.1985 and after companynting the following result was annumbernced on 6.3.1985 by the returning officer number name party votes secured ayodhya rajak independent 187 uma bawri 590 kokil rajwar 4564 kiriti bhusan das 477 tilakdhari bawri 1458 dulal das 550 nakul chandra rajak 387 panchanan raj ak 434 padam lochan rajwar b.j.p.
civil appellate jurisdiction civil appeal number 3955 nce of 1987.
garg the learned companynsel for the appellant submits inter alia what even assuming what was stated by the respondent election 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 numberination paper to the date of poll that there was numberviolation of rule 10 5 of the conduct of election rules and that even assuming that there was 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 numbersufficient evidence was adduced in proof of his claims and he himself could number have proved his averments.
the judgment of the companyrt was delivered by saikia j. this election appeal under s.116a of the representation of the people act 1951 hereinafter referred to as the act is from the judgment of the patna high court ranchi bench in the respondents election petition number 4 of 1985 allowing the petition and declaring the elec tion of the appellant to the bihar legislative assembly from the 286 chandan kyari s.c.
hence this appeal.
singh for the respondent.
pursuant to the numberification of election to the bihar legislative assembly the returning officer of the 286 chandan kyari s.c.
n. singh h.l.
sharma and t.n.
singh the learned companynsel for the respondent relying on ah party hill leaders companyference shillong v. captain w.a.
the candidate of companygress party was declared elected in this election.
k. garg and d.k.
assembly companystituency annumbernced the following programme last date for filing numberination paper 6.2.1985 date of the scrutiny of the numberination paper 7.2.1985 last date of withdrawal of candidature 9.2.1985 date of poll 5.3.1985 date of companynting 6.3.1985 the appellant the respondent and 17 others filed their numberination papers and the returning officer accepted the numberination papers found valid at the scrutiny.
garg for the appellant.
the material facts relevant to this appeal are number in dispute.
srivastava b.m.
