Allahabad High Court
Smt. Shanti Devi vs Returning Officer (Constituency ... on 16 January, 2015
Equivalent citations: AIR 2016 ALLAHABAD 73, 2016 (3) ALJ 550, (2015) 2 ADJ 593 (ALL), (2015) 109 ALL LR 186
Author: Dinesh Gupta
Bench: Dinesh Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED In Chamber Case :- ELECTION PETITION No. - 2 of 2012 Petitioner :- Smt. Shanti Devi Respondent :- Returning Officer (Constituency 341,Salempur) Deoria & Ors. Counsel for Petitioner :- Smt. Shanti Devi,Abrar Ahmad Siddiqui,Manoj Kumar Dwivedi,N.K. Pandey,Poonam Dubey,Sanjay Kumar Mishra,Sudha Pandey Counsel for Respondent :- B.N. Singh,K.R. Singh,V. Singh,V.Pandey Hon'ble Dinesh Gupta,J.
This Election Petition is preferred under Section 80, 80A, 81, 82 and 117 of Representation of the People Act 1951 by petitioner Smt. Shanti Devi against Returning Officer (Constituency 341, Salempur), District Deoria, respondent no.1 and private respondent Manbodh Prasad, respondent no.2 and Chief Election Commissioner through its chief Election Commission New Delhi, respondent no.3 (Later on by the order of this Court respondents no.1 and 3 were deleted) for the relief of declaration of the election of the respondent as Member of Legislative Assembly from 341, Salempur Assembly Constituency, District Deoria as null and void and set aside the same by any evidence.
The brief facts which give rise to this petition are that :
By means of notification issued under Section 15 of the Representation of the People Act, 1951 (hereinafter as the "Act") the Governor of the State of U.P. called upon the electors of the state to elect the members of the State Legislative Assembly in which 341, Salempur was one of the Legislative Assembly Constituencies (in District Deoria) reserve for schedule cast for which election was to be held.
After the aforesaid notification by the Governor, the Election Commission notified the dates election was held with the following program:
Last date of notification 19/01/2012 Date of Scrutiny of nomination papers 24/01/2012 Date of withdrawal of nomination papers 27/01/2012 Date of Poll 11/02/12 Result declared on 06/03/12 The petitioner was one of the candidates in the aforesaid election from 341, Salempur, Legislative Assembly Constituencies as Independent candidate with the symbol "Lion" and the respondent no.2 was a candidate set up by Samajwadi Party.
The respondent adopted and committed the corrupt practice as defined under Section 100 (4) of the said Act during the election and it was due to this corrupt practice of the respondent no.2 was declared elected in the election.
As per declaration of the Returning Officer, the respondent no.2 has been shown to have received 47852 votes and the petitioner 495 votes. Thus, there was great margin of votes between the petitioner and the respondent due to only corrupt practice of the respondents.
There was 17 contesting candidates in total including petitioner and the respondent and as per declaration of the Returning Officer, the following was the total number of votes received by the respective candidates:
Manbodh Prasad (respondent no.2) 47852 Ram Adhar 10091 Bali Ram 28597 Vijay Laxmi Gautam 31691 Satish Kumar 3525 Uday Pratap 7549 Kashi 603 Bhagirathi 2708 Rajesh 517 Rama Badan 561 Vibhuti 318 Shiv Chand 2412 Ram Kripal 793 Shanti (petitioner) 495 Shesh Nath 1061 Ram Vriksha 1260 Subhash 1418 The petitioner challenged the election of the respondent treating it to be void and set up the following grounds:
Grounds A. Because the Returning Officer was changed the symbol of the petitioner electoral that is "Lion" to Almirah on the ground that "Lion" symbol was allotted to the other State Political Party, thus, the symbol may not be allowed to the independent candidates, but the new allotted symbol Almirah also allotted to the other State Political Party, namely, Jan Kranti Party. However, the Returning Officer was prejudice to the proposed of the petitioner's election has violation of the Section 100 (1) III and IV to the said Act and conduct of Election Rule, 1961.
B. Because the election of the respondent no.2 is void and liable to be declared void due to Commission of corrupt practice by the Returning Officer has denied as Section 100 (1) III & IV to the said Act and conduct of Election Rule, 1961.
The concise statement of material and particulars with regard to the corrupt practice as stated in the aforesaid grounds "A" and "B" are as follows.
The petitioner is a very popular political leader of Deoria. She always available for the social service to the general public at any time and is serving this constituency in particular since long. It is due to his soft spoken language, good behaviour and all time availability for public service which has made petitioner popular in the entire constituency. The petitioner has not been convicted in criminal case, implicated nor charged with any dacoity, loot, arson, corruption, sedition, anti-national activities or any crime whatsoever.
Looking upon the petitioner's popularity in the constituency, the respondent knew it very well that she (respondent no.2) could not win the election except by adopting unfair means and committing some corrupt practices.
On 10.1.2012, the petitioner filed his nomination paper alongwith all the relevant documents required for the purpose of filing a valid nomination paper. His nomination paper was valid in all respect and she is validly nominated candidate.
The petitioner belongs to independent candidates and with the collusion of local MLA from Salempur, the officers were working under the pressure of the local MLA.
When the petitioner filed his nomination paper on 19.1.2012 then she was issued receipt for the same intimating therein that the scrutiny of nomination papers shall be held on 24.1.2012.
On the date of scrutiny, the nomination papers of the petitioner were complete, therefore, the Returning Officer allotted the "Lion" symbol to the petitioner under the Rule 10 of the conduct of the Election Rules, 1961.
On 27.1.2012, the symbol has been allotted to the petitioner by the respondent no.1 for election in Assembly Constituency 341 Salempur, Deoria.
After allotment of symbol, the local news paper has been published the news on 28.1.2002 regarding candidates and their symbols.
On 28.1.2012 at midnight without any information and notice to the petitioner and also without given any opportunity of hearing, the respondent no.1 changed Almirah symbol in place of "Lion" symbol and affixed on the house of the petitioner.
The polling of the aforesaid constituency will be poll on 11.2.2012 and the petitioner is independent candidate of the Assembly Election.
On 29.1.2012, the petitioner sent a representation alongwith the complaint before the respondent no.1 dated 13.1.2012 to the Election Commissioner, U.P. Lucknow and the Chief Election Commissioner, New Delhi regarding the allotted symbol by the respondent no.1.
It may be clear from the order for change of the symbol which may transpires that the petitioner was neither given any information nor notice or opportunity to meet the said symbol. Even the copy of the order for change of the symbol has not been provided to the petitioner.
Neither the petitioner has been given any notice by the respondent no.1 before changing the symbol nor she has been given the copy of any order about the newly allotted symbol.
By changing the "Lion" symbol, the petitioner has illegally been restrained from contesting the election in a manipulating manner.
For the aforesaid reasons, if the petitioner is not permitted to contest the election with the "Lion" symbol, at this stage then she will not behaving are remedy under the law to challenge the election of the candidate after the election.
The action of the respondent no.1 in changing the symbol of the petitioner from the electoral without following the procedure and provisions as contained under the conduct of Election Rules, 1961 is totally illegal.
The petitioner's symbol was changed on the ground that the "Lion" symbol was allotted to the other State Political Party, thus, the symbol was not allow to the independent candidate but other hand new symbol allotted to the petitioner Almirah is already allotted to the U.P. State Party "Jan Kranti Party, this party was a registered in U.P. State Party and Kalyan Singh is the President of this Party.
The petitioner is independent candidate the Assembly Election 2012 in State of U.P. and the symbol may not be allotted to independent candidate, which already allotted to any State Political Party.
On the basis of the new allotted symbol i.e. Almirah, has already allotted symbol of the State Political Party, namely, "Jan Kranti Party", the petitioner was not participated in the election proceeding because she has not approached the member of all over constituency to new allotted symbol.
Thus, the petitioner has filed this petition for declaration of election of respondent no.2 as null and void.
Notices issued to the respondents and respondent no.2 filed its written statement.
In the written statements the respondent denied almost all the allegations made by the petitioners and in the additional plea he has submitted that the provisions of Section of 100(1) (iii) and (iv) of the Representation of the People Act 1951 are not attracted in the facts of the present case, therefore, election petition filed on the said sole ground is not maintainable.
The Lion is the reserved symbol of state recognized political party of All India Forward Block in West Bengal as such the petitioner can not claim any right for allotment of said symbol the same is barred by Para 17 of Section Election Symbol Order, 1968.
The returning officer has rightly allotted Almirah symbol from the free list of the petitioner and rightly cancelled the allotment of Lion, which was the reserved symbol and could not be allotted to any body. As such, the change of symbol to petitioner on the same day is legal, valid and in accordance with law.
The respondent further contended that it is incorrect to say that the respondent no.2 adopted any corrupt practice as defined under Section 100(4) of the Act. During Election it is further incorrect to say that respondent was declared elected due to corrupt practices. The Section 100 (1) (b) of the Representatives of People Act, 1951 provides for declaration of election to be void in case returned candidate or his agent or any other person committed corrupt practice. The petitioner has simply make vague allegation in this regard and has not disclosed the facts which are necessary for levelling the charges of corrupt practice either by the respondent or by his election agent.
The respondent contended that the Election Commission has issued the order namely the Election symbol (Reservation and Allotment Order 1968) relating to specification reservation and allotment of symbol. The aforesaid order makes provision for the recognition of parties as National and State parties. In exercise of power under para 17 of the said Election, Symbol Order 1968 the Commission shall notify:
a) National Parties and Symbol respectively reserved for them,
b) State parties, the States, in which their symbol respectfully reserved for them in state or states.
c) the unrecognized political parties.
In this way, the notification of the Commission, the names of recognised National and State parties and list of symbols respectfully reserved for them. The list of registered unrecognized parties and the list of free symbols approved for each State but no candidate can choose the symbol outside the list. The Lion is symbol of All India Forward Block in West Bengal which is recognized State political party in West Bengal.
Para 17 of the Election Symbol Order clearly prohibits for allotment of reserved symbol of all recognised State parties to an independent candidate in other states. Thus the Lion which was reserved symbol of All India Forward Block in West Bengal could not be alloted to an independent candidate in the State of U.P. The returning Officer initially allotted reserved symbol to three independent candidates namely, the petitioner, Mr Sadabriksha and Mr. Subhash. The symbols which were allotted to them were not from the list of free list when the Returning Officer noticed about the same on same day i.e. 27.1.2012, he immediately cancelled the allotment of symbols to the aforesaid three independent candidates including the petitioner and also immediately informed them on the same day. The two candidates other than the petitioner accepted the change of symbol immediately but the petitioner without accepting the same went to the house. Thereafter she was informed on telephone that she has been allotted Almirah from the list of free symbol and information was also sent to her at her house by Naib Tehsildars but she refused to accept the same then it was affixed on her door in the presence of witness. The Returning Officer immediately informed the Observer of Salempur Legislative Assembly Constituency, in District Deoria in respect of change of symbol to three independent candidates by the order dated 27.1.2012.
There is a procedure also prescribed for change of symbol in case of any mistake committed by Returning Officer in allotment of symbols. No independent candidate can be allotted the symbol which are to the provision of Election Symbol (Reservation and Allotment) Order 1968. The Symbol Almirah which was opted by Jan Kranti Party which was neither a recognised National Party nor recognised State Party. The Symbol Almirah was not reserved for any recognised State or States party. The Almirah was a Symbol in the free list of election symbol which can be opted by any unrecognized party and the Symbol Almirah was not within the category of reserved Symbol and it can be rightly allotted to the petitioner.
The petitioner filed replication and reiterated the allegation made by her in her Election Commission and also denied the averment made in the written statement.
The petitioner submitted that Section 100(1)(C) of R.P. Act 1951 provides that the Election of Returned candidate can be challenged on the ground of improper rejection of any nomination paper while Section 100(1)(b) of R.P. Act, 1951 provides ground of corrupt practices. It is further submitted that after counting of votes the petitioner has scored 495 votes and returned candidates has scored 47852 votes. It was further made clear that Section 100(1)(d)(iv) of R.P. Act 1951provides that an Election of Returned Candidate can be challenged on the grounds of non compliance of provisions of constitution in R.P. Act 1951. Since the Election Symbols (Reservation and Allotment) Order 1968 has been issued by Election Commissioner of India by exercising the provisions conferred under Article 324 of Constitution of India read with Section 29 A of R.P. Act 1951 and rule 5 and 10 of conduct of Election Commission Symbol Order 1968 provides a ground to challenge the Election of returned candidate under Section 100(1)(d)(IV) of R.P. Act, 1951.
The petitioner further submitted that since Returning Officer acted in contravention of provisions of Election Symbol Order 1968 and illegally changed the Symbol of Election petition from 'Lion' to 'Almirah' which materially affect the Election of Returned candidate.
The petitioner further submitted that petitioner's case comes under the purview of Section 100(1)(d)(iv) as Returning Officer illegally and arbitrarily changed the petitioner Symbol 'Lion' to 'Almirah' after issuing the list of contesting candidates and after the allotment of Symbol 'Lion' to the petitioner, thus acted in contravention of the Election Symbol Order 1968 which materially affect the Election of Return candidate.
On the basis of the pleadings of the parties following issues were framed on 18.12.2013 which are reproduced as below:
(1) Whether Returning Officer illegally changed the Symbol of petitioner from "Lion" to "Almirah" if so its effect?
(2) Whether Returning Officer acted in contravention of Symbol order 1968 and illegally changed the petitioner Symbol "Lion" to "Almirah" if so its effect?
(3) Whether the election petition disclosed any ground for rejection of the election or whether election petition is legally not maintainable?
(4) Whether the petitioner is entitled to get any relief? "
Again the issues were also framed on 30.5.2014 which are reproduced as below:
"1. Whether returning officer illegally change the symbol of petitioner from 'Lion' to 'Almirah' if so its effect?
2. Whether returning officer acted in contravention of symbol order 1968 and illegally change the petitioner symbol 'Lion' to 'Almirah' its effect?
3. Whether the copy of the Election Petition filed by the petitioner can be dismissed under Section 86(1) since the copy of the Election Petition was supplied to contesting respondent no.2 does not bear signature of petitioner and does not bear seal and true copy and date on each page in the provisions of Section 81(3) of Representative of People,1951? "
The parties vide Order dated 20.8.2014 agreed that the issues framed on 30.5.2014 are based on the pleadings of the parties and the parties were directed to lead evidence on the issues framed on 30.5.2014.
In support of the petition the petitioner filed copy of list of documents filed by the petitioner as follows:
The applicant/election petitioner has filed following documents alongwith an application, which are reproduced below:
1.Copy of the Receipt of Nomination Paper of Election Petitioner issued by Returning Officer on 19.1.2012 at 02.07 P.M.
2.Copy of the Certificate issued by competent authority by which Oath was administered to Election Petitioner on 19.1.2012.
3.Certified copy of order dated 27.1.2012 passed by Returning Officer, 341-Salempur Legislative Assembly Constituency of District Deoria by which symbol "Lion" was allotted to petitioner and cop[y of sample of Symbol distributed in the public by petitioner.
4.Copy of the news item dated 29.1.2012 published in Hindi daily news paper namely "Amar Ujala" (Gorakhpur Edition).
5.Certified copy of Form 7-A.
6.Photocopy of the news item published in Hindi daily newspaper "Rastriya Sahara" dated 28.1.2012.
7.Photocopy of the representation dated 13.1.2012 and 29.1.2012 filed by Election Petitioner before Chief Electoral Officer, U.P., Lucknow and Chief Election Commissioner of India.
8.Copy of the list of political parties' symbol in India as issued by Election Commission of India valid after September, 2009.
9.Any other documents to prove the pleadings of Election Petition.
The said documents were not admitted except paper no.5 which has been accepted by respondent no.2 In support of defence the respondents filed following papers and the same were not admitted by the petitioners:
The respondent no.2 has filed following documents alongwith an application, which are reproduced below:
1.Certified copy of the order dated 27.1.2012 passed by Returning Officer of 341 Salempur Legislative Assembly Constituency of District Deoria by which symbol "Lion" has been allotted to petitioner.
2.Certified copy of the order dated 27.1.2012 passed by Returning Officer of 341 Salempur Legislative Assembly Constituency of District Deoria informing the observe of Legislative Assembly Constituency 341 Salempur of District Deoria in respect of change of symbol of Smt. Shanti Devi, petitioner, Mr. Sadabiksha and Mr. Subhash three independent candidates since they were not allotted the symbol. Two persons Mr. Sadabiksha and Mr. Subhash accepted the same and they were satisfied. The petitioner left the place. She was informed through telephone but in spite of information on telephone, she did not come and then information was sent to her house and after information to her it was affixed.
3.Certified copy of the order dated 27.1.2012 passed by Returning Officer of 341 Salempur Legislative Assembly Constituency of District Deoria informing the petitioner that she had given above for three symbols "Lion", "Chair" and "Horse". Since all those three symbols does not come within the unreserved category of symbols. They are unreserved symbols of state level political parties of other states which cannot be allotted. Due to mistake, "Lion" symbol cannot be allotted under Election Symbol Reservation and Election Order, 1968 as such, she is being allotted unreserved symbol "Almirah" alongwith information given to petitioner by the Naib Tehsildar and on the basis of order dated 27.1.2012 passed by the Returning Officer in respect of change of symbol and refusal by the petitioner, therefore, affixation of same on her house.
4.Certified copy of the order dated 27.1.2012 passed by Returning Officer of 341 Salempur Legislative Assembly Constituency of District Deoria by which the symbol of "Almirah" was allotted to petitioner.
5.Certified copy of the order dated 27.1.2012 passed by Returning Officer of 341 Salempur Legislative Assembly Constituency of District Deoria by which the allotted reserved symbvol "Chata" to Mr. Sadabriksha son of Swami Nath was changed by "Seizure", a symbol from unreserved category.
Both parties were asked to lead oral evidence if any and both the parties agreed that they do not want lead oral evidence and submitted their arguments on their respective contentions.
Heard learned counsel for the parties.
Learned counsel for the petitioner submitted that although he has set up two grounds in his petition in para 7, however, he is not pressing the ground no. B which is in respect of corrupt practice by the elected candidate or by its agents etc. and he is addressing his argument only in respect of the ground no.A. The counsel further submitted that while filing her nomination papers the petitioner was required to give the options of three elections symbols and she in respond to the said requirement give options of "Lion", "Chair" and "Horse", three election symbols and on declaring the nomination paper of the petitioner as valid she was also allotted elections symbol of Lion and the said allotment of the Symbol were also published in the news paper. However on next day i.e. on 28.1.2012 without any information and notice to the petitioner or and also without giving any opportunity of hearing the returning Officer changed the Election Symbol from "Lion" to the "Almirah" and the order was not communicated to her and was only affixed on the house of the petitioner. The petitioner immediately on the next day sent a representation along with the complaint before the Returning Officer and also to the Election Commissioner Uttar Pradesh Lucknow and Chief Election Commissioner New Delhi regarding the Change of Symbol allotted by the Returning Officer. No information of such change was even given to the petitioner and by change of symbol the petitioner has been illegally restrain from contesting the Election in the manipulating manners.
That action of the returning Officer in changing the Symbol of the petitioner without following the procedure and provision as contained in the conduct of Election Rules was totally illegal. On one ground the petitioner's symbol was changed from "Lion" to "Almirah" that the "Lion" symbol has already allotted to State Political Party, and could not be allotted to the independent candidate but on the other hand new symbol "Almirah" which was allotted to the petitioner has already been allotted to the U.P. State Party "Jan Kranti Party, this party was a registered in U.P. State Party and Kalyan Singh was the President of this Party thus the Symbol of Almirah could not be allotted to the petitioner.
The petitioner could not approach the public at large through the new Symbol and lost the Election.
The counsel further submitted that the returning officer has no power to change the election Symbol and it was only the prerogative of the Election Commissioner who can change the symbol once allotted and also relied upon Sub Rule 4 and 5 of the Rule 10 of the Conduct of Elections Rule 1961 and the Rule of 38 of Representation of the People Act 1951 and Rule 5, 17, 18 of Election Symbol (Reservation and Allotment) Order 1968.
The counsel also referred to the Rule 17(d) and Rule 18(c) of the People Representation Act and also Section 100 of Conduct of Election Rules 1961. The counsel further submitted that returning officer acted in contravention of provisions of Election Symbol Order 1968 and illegal change of symbol of election from 'Lion' to 'Almirah' which materially affected the election of returned candidate.
The counsel further submitted that petitioner's case comes under the purview of Section 100(1)(d)(iv) as returning officer illegally and arbitrarily change the election symbol of the petitioner.
The counsel further submitted that since the returning officer illegally changed the symbol without giving any opportunity to the petitioner and further returning officer has no authority to change the symbol once alloted and it was the only the Election Commissioner who can pass any needful order in this regard.
The counsel further relied upon Sri Ram Autar Vs. Satyabir AIR 1978, 201.
The learned counsel for the respondent submitted that petitioner is legally not maintainable as it has not disclosed any cause of action to file the petition.
It is further submitted that Section 100(1)(d)(iv) applied only where the result of the Election is materially affected by the violation of the Rules and provisions of the Act. The petitioner has not mentioned in her petition that the violation of the Rules has materially affected the result of the Election which was a mandatory provision and the petitioner must plead the same and also lead evidence to prove the same. While in the present petition the petitioner neither pleaded that her election has been materially affected by the violation of the Rule nor she led any evidence in support therein.
The counsel further submitted that the Symbol which was allotted to the petitioner initially was a Symbol for the State recognised party in West Bengal and the returning Officer immediately realising its mistake change the Symbol from 'Lion" to Almirah and the petitioner was immediately intimated regarding the same and when the petitioner refused to take the intimation the same was affixed on her house. The petitioner immediately sent a representation to the Election Commissioner which proves that the change of Symbol was immediately intimated to her. The counsel further submitted that the result of the Election itself shows that the petitioner was not a popular candidate as she received only 495 votes while the answering respondent received 47852 votes. Thus the petitioner has miserably fail to prove that in violation of Rules and conditions of the Act materially affected hr Election.
The counsel further cited series of judgments in this regard:
1.AIR 1976 SC 744 Udhav Singh vs. Madhav Rao.
2.AIR 1982 SC 983 Jyoti Basu vs. Debi Ghosal.
3.AIR 1958 ALL 663 Ram Abhilash Tewari vs. Election Tribunal.
4.1989 (4) SCC 773 Lata Devi vs. Haru Rajwar.
5.1995 Supp. (3) SCC 318 Charan Das vs. Surinder Kumar.
6.2009 (1) SCC 541 Ram Sukh vs. Dinesh Agrawal.
7.1991 (1) SCC 666 L.R. Shvramgodwa vs. T.M. Chandrashekhar.
8.AIR 1969 SC 663 Paokip Haokip vs. Rishang.
9.AIR 1988 Sc 637 Shiv Charan Singh vs. Chandra Bhan Singh.
10.Election Petition No. 5 of 2007 (Louise Khurshid vs. Kuldeep Gangwar).
11.2009 (11) SCC 398 G.S. Iqbal vs. K.M.Khadar.
12.AIR 1978 All 201 Ram Autar vs. Satyabir.
13.2001 (8) SCC 233 Hari Shankar Jain vs. Sonia Gandhi.
The counsel for the petitioner in reply to the argument raised by the respondent further submitted that in the replication filed by them the petitioner has categorically stated that by violation of the rules election of the returned candidate has been materially affected and the replication is also a part of the pleadings. The counsel further submitted that he has confined his argument only in respect of change of Symbol by the Returning Officer illegally without affording any opportunity to the petitioner thus materially affected the result of the Election.
Before going through the arguments advanced by both the parties it is necessary to go through relevant provisions referred by the rival parties:
Article 324 of Constitution of India lays down, inter-alia, that the elections to the House of People (Lok Sabha) shall be on the basis of adult suffrage, that is, every person who is citizen of India and not being less than 18 years of age and is not otherwise disqualified under the Constitution or any law made by appropriate legislature on any of the specified grounds, shall be entitled to be registered as a voter (elector) at any such election.
Under Article 329 (b) of the Constitution of India it is provided that no election to either House of Parliament or of the State Legislature shall be called in question except by an election petition presented to such authority and in such a manner as may be provided for by or under any law made by the appropriate Legislature.
Under Article 327 of the Constitution of India the Parliament is empowered subject to provisions of the Constitution, to make provisions with respect to all matters relating to, or in connection with, elections to either House of Parliament or State Legislature.
The Representation of the People Act, 1951 has been enacted by the Parliament in exercise of power conferred by Article 327. This law is subject to the provisions of Constitution as laid down under Article 327 itself.
Section 32 of the Representation of the People Act, 1951 lays down that any person may be nominated for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of Constitution and the Representation of the People Act, 1951.
Section 33 of the Representation of the People Act, 1951 prescribes the procedure for presentation of nomination paper and requirements for a valid nomination.
Section 38. Publication of list of contesting candidates.-- (1) Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period. 2[(2) For the purpose of listing the names under sub-section (1), the candidates shall be classified as follows, namely:-- (i) candidates of recognised political parties;
(ii) candidates of registered political parties other than those mentioned in clause (i);
(iii) other candidates.
(i) candidates of recognised political parties;
(ii) candidates of registered political parties other than those mentioned in clause (i);
(iii) other candidates.
(3) The categories mentioned in sub-section (2) shall be arranged in the order specified therein and the names of candidates in each category shall be arranged in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed.
Section 81 of the Act provides that an election petition can be presented on one or more of the grounds specified in Section 100 of the Act by any candidate at such election or any elector.
Section 81 (3):- Petition to be accompanied by requisite number of copies to be attested to be true copy under the signatures of the petitioner.
Section 83:- Contents of the petition.
Petition to contain a concise statement of material facts on which the petitioner relies and set forth full particulars of any corrupt practice including as full a statement as possible of the names of the parties alleged to have committed the corrupt practice and the date and place of commission of each such corrupt practice.
It is mandatory to plead material facts. If material facts are not pleaded, the election is liable to be dismissed at the threshold.
Section 100 of the Representation of the People Act, 1951 lays down the grounds for setting aside an election. This section, in so far as it is material for the present case, is as under:
"100.- Grounds for declaring election to be void:-
(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-
(a) ......
(b) ......
(c) .....
(d) that the result of the election, in so far as it concerns the returned candidate, has been materially affected-
(i) ......
(ii)......
(iii).......
(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."
The relevant rule of the Election Symbols (Reservation and allotment) Order, 1968 is quoted below:
4. Allotment of symbols:
In every contested election a symbol shall be allotted to a contesting candidate in accordance with the provisions of this Order and different symbols shall be allotted to different contesting candidates at an election in the same constituency.
5. Classification of symbols:
(1) For the purpose of this Order symbols are either reserved or free.
(2) Save as otherwise provided in this Order a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by the party.
(3) A free symbol is a symbol other than a reserved symbol .
(1) For the purposes of this Order and for such other purposes as the Commission may specify as and when necessity therefore arises, political parties are either recognized political parties or unrecognised political parties.
(2) A recognised political party shall either be a National party or a State party.
8. Choice of symbols by candidates of National and State parties and allotment thereof:
(1) A candidate set up by a National party at any election in any constituency in India shall choose , and shall be allotted , the symbol reserved for that party and no other symbol.
(2) A candidate set up by a State party at an election in any constituency in a State in which such party is a State party , shall choose and shall be allotted the symbol reserved for that party in that State and no other symbol.
(3) A reserved symbol shall not be chosen or allotted to any candidate in any constituency other than a candidate set up by a National party for whom such symbol has been rese4rved or a candidate set up by a State party for whom such symbol has been reserved in the State in which it is a State party even if no candidate has been set up by such national or State party in that constituency.
9. Restriction on the allotment of symbols reserved for State parties in States where such parties are not recognized:
A symbol reserved for a State party in any State.
(a) shall not be included in the list of free symbols for any other State or Union Territory and
(b) shall not be reserved for any other party which subsequently becomes eligible on fulfilment of the candidates specified in paragraph 6(B) for recognition as a State Party in any other State.
Provided that nothing contained in clause (b) shall apply in relation to a political party for which the Commission has immediately before the commencement of Election Symbols:
Substituted by Notification No.56/97 Judl III dated 15.12.1997 Substituted notification No.56/99 Judl III dated 8.6.1999 Substituted by notification No. 56/2000 Judl III dated 1.12.2000 (Reservation and allotment) ( Amendment Order 1997 already reserved the same symbol which it has also reserved for some other State Party or Parties in any other State or States.).
12. Choice of symbols by other candidates and allotment thereof:
(1) Any candidate at an election in a constituency in any State or Union territory, other than
(a) a candidate set up by a National party , or
(b) a candidate set up by a political party which is a State party in that State or
(c) a candidate referred to in paragraph 10 of paragraph 10A, shall choose , and shall be allotted, in accordance with the provisions hereafter set out in the paragraph, one of the symbols specified as free symbols for that State or Union territory by notification under paragraph 17.
(2) Where any free symbol has been chosen by only one candidate at such election, the returning officer shall allot that symbol to that candidate, and to no one else.
(3) Where the same fee symbol has been chosen by several candidates at such election, then
(a) if, of those several candidates, only one is a candidate set up by an unrecognised political party and all the rest are independent candidate, the returning officer shall allot that free symbol to the candidate set up by the unrecognised political party and to no one else, and, if of those several candidates, two or more are set up by different unrecognised political parties and the rest are independent candidates, the returning officer shall decide by lot to which of the two or more candidates set up by the different unrecognised political parties that free symbol shall be allotted and allot that free symbol to the candidate on whom the lot fals and to no one else. Provided that whereof the two or more such candidates set up by such different unrecognised political parties, only one is, or was, immediately before such election, a sitting member of the House of the People, or as the case may be, of the Legislative Assembly (irrespective of the fact as to whether he was allotted that free symbol or any other symbol at the previous election when he was chosen as such member), the returning officer shall allot that free symbol to that candidate , and to no one else.
(b) if, of those several candidates, no one is et up by any unrecognised political party and all are independent candidates, but one of the independent candidates is , or was, immediately before such election a sitting member of the House of the People, or , as the case may be , of the Legislative Assembly, and was allotted that free symbol at the previous election when he was chosen as such member), the returning officer shall allot that free symbol to that candidate, and to no one else; and
(c) if, of those several candidates , being all independent candidates, no one is, or was, a sitting member as aforesaid, the returning officer shall decide by lot to which of those independent candidates that free symbol shall be allotted and allot that free symbol to the candidates on whom the lot falls and to no one else.
17. Notification containing lists of political parties and symbols:
(1) The Commission shall by one or more notifications in the Gazette of India publish lists specifying -
(a) the National parties and the symbols respectively reserved for them.
(b) the State Parties , the State or States in which they are State Parties and the symbol respectively reserved for them in such state or States.
(c) the un-recognised political parties and the addresses of their headquarters registered with the Commission; and
(d) the free symbols for each State and Union Territory.
(e) Every such list shall , as far as possible be kept upto date.
18. Power of commission to issue instructions and directions:
The Commission may issue instructions and directions-
(a) for the clarification of any of the provisions of this Order.
(b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and
(c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this Order makes provision or makes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections.
The only relevant Section 100 of Representation of People Act which deals with the declaration of result as null and void clearly provides that if the result of the Election in his favour it concern the return candidate has been materially affected by any non compliance with the provisions of the Constitution of India or of this Act or of any Rules or orders made there under this Act the High Court shall declare the Election of the Returning candidate to be void.
The petitioner has challenged by way of this petition the conduct of returning Officer who changed the election Symbol from 'Lion' to 'Almirah' without any authority and thus violated the power of elected symbol (Reservation and Allotment Order 1968) and also the relevant Rules of Code of Election Rules 1961 and thus the Election of the Returning candidate is materially affected.
I am unable to accept the contention raised by the learned counsel for the petitioner. First of all the petitioner must plead and prove that non compliance with the provisions of Constitution or pleas of representation Act and the Rules made thereunder the result of the returning candidate is materially affected in the petition. The pleadings of materially affected are lacking however in the replication filed by the petitioner the petitioner has also added that by none compliance of the provisions of Act and Rule has materially affected the Election but the petitioner has miserably failed to prove the same by any evidence.
The number of decisions cited by the respondent clearly establish that in order to attract the provisions of Section 100 of Representation of People Act 1951 it is mandatory for the petitioner to plead and to prove that by non compliance of the provision the result of the Election has been materially affected. Even if the Court considered the ground of materially affected taken in the replication has the part of pleadings but the petitioner has miserably fail to prove the same. The petitioner has not lead any evidence in this regard. Thus the argument raised by the learned counsel for the respondent that in the absence of any such proof of the fact that the result of the returning candidate is materially affected by non compliance of provisions of constitutional or representation of Peoples Act has force and petition can be dismissed for want of such proof even if assuming that the pleadings of materially affected result are given in the petition or by way of replication.
Admittedly there is no doubt that initially the petitioner was allotted symbol of 'Lion' however the same was immediately changed by the Returning officer realising that 'Lion' Symbol was a Symbol allotted to recognised State party.
The petitioner has not also denied this fact that 'Lion' has been allotted to the State recognised party that is Forward Block Party in West Bengal.
While realising its mistake Returning Officer immediately change the same and also informed the Election Commissioner. The petitioner has founded its petition only on this ground of change of Election Symbol and thus he was under the obligation to plead and prove that the change of Election Symbol has materially affected the result of the Returning candidate but the petitioner has miserably fail to prove the same by any cogent evidence.
It is also not disputed that petitioner was informed regarding the change of her Symbol from the 'Lion' to 'Almirah' and she contested the same and the petitioner received the same votes 495 while the returning candidate received 47852 votes.
Lata Devi Vs. Haru Rajwar 1989(4) SCC 773 clearly deals with the similar situation and Apex Court held that:
"Mr. S.N. Singh relies on paragraph 29 of the Judgment in All Party Hill Leaders' Conference, Shillong v. Captain W.A. Sangma, (supra) wherein Goswami, J. observed:
"For the purpose of holding elections, allot- ment of symbol will find a prime place in a country where illiteracy is still very high. It has been found from experience that symbol as a device for casting votes in favour of a candidate of one's choice has proved an inval- uable aid. Apart from this, just as people develop 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 representing a political party. This is particularly so in a parliamentary democracy which is conducted on party lines. People after a time identify themselves with the 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 constituency. This will, however, not absolve the election petitioner of his burden of proving that the result of the election has been materially 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 Commission under Article 324 of the Constitution in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and Legislature of every State. It is also relatable to Rules 5 and 10 of 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 Elections Rules provides that every nomination paper presented under S. 33 of the Act 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 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 Commission in that behalf in which case the Election Commission 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 the legal position as would be clear from the provision itself. Section 100(1)(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 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 re- turned candidate to be void. The violation of sub-rule (5) of Rule loper se will not invalidate 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."
The only ground taken by the petitioner is that the Election has been materially affected by the change of election Symbol.
The election petitioner 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 unsuccessful. In the instant case there was no evidence to demonstrate the returned candidate having derived any benefit from the change of symbol of the election petitioner. The candidate to whom the 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 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 candidate unsuccessful. The petitioner, besides making barer statement, had not produced any positive and affirmative evidence in support of such a proposition. Mere assertions by the election petitioner were not enough. The great significance of election symbol in backward area will by itself not absolve the election petitioner of his burden. Nothing was alleged and proved against the successful candidate. There could be no proposition 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 whom it is allotted. Thus the election petitioner dismally failed to discharge the burden of proving that the result of the election, insofar it concerned the appellant, who has been the returned candidate, was materially affected.
So far as the compliance of Rule 10 is concerned Section 100 of the Representation of the People Act, 1951 states the grounds for declaring an election to be void. Sub-section 1(d)(iv) says:
(1)subject to the provisions of sub-section (2)if the High Court is of opinion (d) that the result of the election, in so far as it concerns a 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 Rule 10 of the Conduct of Elections Rules,1961 is quoted below:
The Preparation of list of contesting candidates
1. ....
2. .....
3. .....
4. At an election in a parliamentary or assembly constituency, where a poll becomes necessary, the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission,-
(a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and
(b) if more contesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted.
(5) The allotment by the returning officer of any symbol to a candidate shall be final except where it is inconsistent with any direction issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit.
(6) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer."
Rule 10 of the Conduct of Election Rules, 1961 deals with preparation 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 expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference 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 revise the allotment in such manner as it thinks fit.
The counsel for the petitioner has emphasised his argument on Rule of the Conduct of Elections Rules,1961 which although provides that the allotment by Returning Officer of any Symbol to candidate shall be final except where it is inconsistent with any direction issued by Election Commission in this behalf. The contention of the petitioner's counsel that once Symbol allotted to the candidate can not be changed except by the Election Commission who may revise the allotment in such manner as it thinks fit.
I am unable to accept the contention raised by the counsel for the petitioner for the reasons that the Rule 10(5) clearly provides that allotment shall be final only if it is consistent with the direction issued by the Election Commissioner and if such allotment is inconsistent with the directions of the Election Commissioner the allotment shall not remain final and the Returning Officer has ample power to change the allotted Symbol.
In the present case allotment of symbol of 'Lion' to petitioner was inconsistent with the direction of Election Commissioner and thus the allotment was not final and returning officer can change the symbol.
Therefore, the change of Symbol has not been proved to be violative of any Rules and provisions of the conduct of Elections Rule 1961 or Constitution of India or Representatives of Peoples Act. Thus the change of Symbol could not be said to be violative of Rule 10(5) even if the assuming violation of Rule the petitioner was under an obligation to plead and prove that the result of the election was materially affected by such violation.
In the present case the petitioner has miserably fail to prove that by change of Symbol has materially affected the result of the election.
In Lata Devi (supra) the Apex court held:
"As was reiterated in Shiv Charan Singh v. Chandra Bhan Singh, [1988] 2 SCC 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 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. Mere assertions by the election petitioner were not enough. Nothing was alleged and proved against the successful candidate. There could be no proposition 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 whom it is allotted."
The Apex court also held that there is dispute about the importance of the symbol in a backward constituency. The allotment of symbol will find a place where illiteracy is still high.
In Roop Lal Sasthi V. Nachhattar Singh Gill 1982(3) SCC 487 the Apex Court held that:
"The symbols order was issued by the Election Commission under Article 324 of the Constitution in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and Legislature of every State. It is also relatable to Rules 5 and 10 of 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 Elections Rules provides that every nomination paper presented under S. 33 of the Act 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 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 Commission in that behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit."
From the above discussion it is clear that mere change of election symbol will not be a violative of Rule 10(5) of the Conduct of Election Rules 1961 and the returning officer was well within his competency to change the allotment of symbol since the issuance of the symbol was inconsistent with the direction of the election commissioner.
In the present case even if mere violative of any rule will not automatically amount to give power to court to declare election void unless the petitioner plead and prove that the violation of rules or provisions of Act materially affect the result of the elections.
In the present case, the petitioner has miserably failed to prove that the result of the election materially affect by merely violation of any rules or by change of election symbol.
In view of the above discussion, the election petition lacks merit and deserves to be dismissed.
The election petition is accordingly dismissed. There will be no order as to costs.
Order Date :- 16 .1.2015 vkg