Punjab-Haryana High Court
Pargat Singh vs State Of Punjab And Others on 24 November, 1994
Equivalent citations: AIR1959P&H221, (1995)109PLR429, AIR 1995 PUNJAB AND HARYANA 221, (1995) 109 PUN LR 429, (1995) 1 CURLJ(CCR) 236, (1995) 1 LANDLR 416, 1995 REVLR 1 170
ORDER Jawahar Lal Gupta, J.
1. Can an election be said to be valid in spite of the fact that the symbol allotted to a candidate is not clearly decipherable? This is the short question that arises for decision in this petition under Art. 226 of the Constitution. A few facts, as averred in this petition, may be briefly noticed.
2. The petitioner was a candidate for election as member of the Panchayat Samiti, Naushehra Pannuan in District Amritsar, which is a reserved constituency. The petitioner filed his nomination paper on Sept. 14, 1994. After security etc. different election symbols were allotted to all the six candidates, including the petitioner, on Sept. 20, 1994. The petitioner was allotted the symbol of 'Tractor Trolly'. The elections were held on Sept. 30, 1994. The petitioner secured 1323 votes. As against this respondent Karaj Singh polled 1540 votes. Accordingly, Respondent No. 4 was declared as elected.
3. The petitioner avers that one of the voters conveyed to him that the symbol of 'Tractor Trolley' was not at all visible on the .ballot paper. This fact was affirmed when the petitioner went to cast his own vote and found "that in the place of symbol against his name only a black spot is printed and nothing is visible ..... " The petitioner claims that he brought this fact to the notice of the Returning Officer by filing an application. However, no action was taken. Accordingly he has filed the present writ petition. He complains that no fair election can be said to have taken place as the symbol allotted to him was not clearly visible. It has been highlighted that 80 per cent of the voters in the block are illiterate persons. They cast their votes by recognising the symbols allotted to different candidates.
4. At the time of preliminary hearing, we had issued notice of motion to the respondents and directed them to produce the ballot papers. In response to the notice, a written statement was filed hy Mr. G.S. Brar, the Returning Officer on behalf of Respondents Nos. 1 to 3. As for Respondent No. 4, it was reported that he had received the summons along with a copy of the petition, but had refused to acknowledge the receipt thereof. Accordingly, we had ordered ex parte proceedings against him. In the written statement filed by the Returning Officer on behalf of Respondents Nos. I to 3 the contents of which have not been verified, it was inter alia averred that the petitioner had an effective alternative remedy by way of an election petition. The petitioner's allegation that the symbol was not visible on the ballot paper was denied. According to the respondent, the fact that the petitioner had polled a good number of votes shows that the ballot paper has been correctly printed. On this basis, it was stated that the election was fair and proper.
5. Mr. Gurjant Singh Brar, the Returning Officer, was present in Court and produced ail the used and unused ballot papers and we had recorded his statement on October 28, 1994. During the course of his examination, Mr. Brar stated that the petitioner had been allotted the symbol of Tractor Trolley' while Respondent No. 4 was assigned the symbol of 'Open hand'. He stated that the election symbol of Harbhfljan Singh (another candidate) was 'Road Roller'. He produced five of the unused ballot papers as Ex. C.I to C.5. The witness admitted that the used as well as the unused ballot papers were identical. He also admitted that "the election symbols printed against the names of Harbhajan Singh and petitioner Pargat Singh are not decipherable."
6. We have heard learned counsel for the parties. Mr. Ranjit Sharma, learned counsel for the petitioner, submitted that the symbols allotted to the petitioner and another candi-*date Harbhajan Singh being clearly indecipherable, it cannot be said that there has been any proper or valid election. On the other hand, Mr. R.K. Joshi, learned Additional Advocate General, Punjab, appearing for Respondents Nos. 1 to .1 submitted that the petitioner should be relegated to the remedy of an election petition.
7. As a sequal to the 73rd amendment of the Constitution, the State Legislature enacted the Punjab Panchayat Raj Act, 1994 and replaced the Punjab Gram Panchayat Act, 1952 so as to establish "a three -- tier Panchayati Raj System in the State of Punjab with elected bodies at the village, Block and District levels ....." It also enacted the Punjab State Election Commission Act, 1994 to "provide for the constitution of the State Election Commission and for vesting the superintendence, direction and control of the prepapation of electoral rolls for, and the conduct of all elections to the Panchayats and Municipalities in the State of Punjab and to provide for all matters relating to, or ancillary or in connection with the elections to the Panchayats and Municipalities, in terms of the provisions of Parts IX and 1X-A of the Constitution of India." This Act replaces the ordinance which had been initially issued in this behalf. The State Government had also framed the Punjab Panchayal Election Rules. 1994. Rules 8, 12 and 13 provide as under:
"Rule 8. Notification of symbols. -- The, Commission shall by Notification in the Official Gazette publish lists of symbols for use in the Panchayat Election, and may amend or vary such lists."
"Rule 12. Allocation of Symbols. The Returning Officer shall, on the expiry of the time fixed for withdrawal of nomination papers, allocate by draw of lot to each validly nominated candidate hereinafter called contesting candidate a symbol out of the approved list of symbols:
Provided that if a candidate opts to contest the election on the basis of his party symbol he may do so; Provided further that a symbol which is controversial or gives rise to communal feelings shall not be used."
"Rule 13. Publication of the list of validly nominated candidates (Section 43).
Particulars of the validly nominated candidates shall be displayed outside the office of the Returning Officer in Form. V and will contain the names in alphabetical order along with the particulars of the candidates and symbols allotted to each of the candidates."
8. A perusal of the above provisions shows that the Commission has to publish a list of symbols for use in the Panchayat elections. Under Rule 12, the Returning Officer is required to allocate a symbol to every contest ing candidate. The names of the , validly nominated candidates along with the symbols allotted to each of them have to be duly displayed. The purpose of these rules is obvious. A large section of the electorate in our country and more particularly in the Rural areas is illiterate. Even if they are not able to read the.names of different candidates, it is possible for them to identify the candidates or parties by looking at the symbols. The provisions in these rules, thus, serve an essential purpose and mandatory in nature. Have the rules been followed in the present case?
9. We have looked at the used and the unused ballot papers. Five of these have been placed on record as Ex. C.1 to C.5, of these Ex. C.1 is appended herewith to this judgment. A perusal of this ballot paper shows that it is impossible to make out as to what symbol had been allotted to the petitioner or to Mr. Harbhajan Singh. No one can say that the symbol of 'Tractor Trolley' had been allotted to the petitioner. In such a situation, we are of the opinion, that the provisions of the Rules have not been followed. Consequently, no fair election can be said to have taken place. We, accordingly, answer the question posed at the outset in the negative and hold that no fair election can be said to have taken place when the symbol printed on a ballot paper is not at all decipherable.
10. It is true that election disputes can be normally decided by the forum provided by law. However, in the peculiar facts of the case, we are satisfied that it would not be in the interest of justice to relegate the petitioner to this remedy under the Statute. It would only result in delaying the course of justice.
11. Accordingly, we hold that no fair election had taken place. The writ petition is allowed and the election of Respondent No. 4 is hereby set aside. Let fresh election be held in accordance with law. The parties are left to bear their own costs.
12. Petition allowed.