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2003 DIGILAW 464 (PAT)

Raj Kishore Sharma v. State Of Bihar

2003-04-22

R.S.GARG

body2003
Judgment 1. Heard learned counsel for the petitioner, counsel for the State, counsel for the Election Commission and counsel for respondent no. 6 (election petitioner). 2. After the election results were declared, the respondent no. 6 Rajendra Nath Sharma filed an election petition, inter alia submitting that publication of the symbol in ballot papers has materially affected the election and the election results, therefore, the election results be set aside, the votes cast against Banglow we counted in favour of the said Rajendra Nath Thakur and he be declared elected. The learned election tribunal after recording evidence and hearing the parties recorded a finding that the election symbol Banglow was allotted to the petitioner but in ballot papers it was shown to have been allotted to the returned candidate Rajendra Nath Thakur who was originally allotted Bucket as the election symbol. After marshalling the evidence and granting the election petition it directed that all the the votes cast against the election symbol Bunglow be counted in favour of the election petitioner. It accordingly allowed the application and declared the election petitioner as returned candidate. 3. Being aggrieved by the said judgment, returned candidates has come to this Court, inter alia, submitting that change of the symbol simpliciter would not affect the election results nor has affected the election process substantially, therefore, neither the election results could be interfered with nor the election petitioner could be declared elected candidate. Placing reliance upon section 144(1)(d)(iv) of Bihar Panchayat Raj Act, 1989, it was contended that unless the non-compliance of the provisions of the Act or Rules made thereunder or the instruction so issued by the Election Commission are to adversely affect the election process and election result the election cannot be set aside. In alternative, it was submitted that if the election results were adversely affected then the whole election has to go and the election petitioner could not be declared to be a returned candidate. Learned counsel for the election petitioner submitted that the court below was absolutely justified in setting aside the election results and making a declaration in favour of the election petitioner. 4. I have heard the parties at length. 5. Section 144 of the Act provides grounds for declaring election void. Learned counsel for the election petitioner submitted that the court below was absolutely justified in setting aside the election results and making a declaration in favour of the election petitioner. 4. I have heard the parties at length. 5. Section 144 of the Act provides grounds for declaring election void. Section 144 material for disposal of the present petitioner would read that "subject to the provisions of sub-section 2 if the prescribed authority is of the opinion that the result of the election, insofar as it concerns the returned candidate, has been materially affected by non-compliance with the provisions of the Act or of any rules or orders made thereunder the prescribed authority shall declare the election of the returned candidate to be void. 6. The undisputed facts are that the election petitioner was allotted the election symbol of Banglow while the returned candidate was allotted Bucket as the election symbol. It is not disputed before me that after allotment of such symbols each of the party went in election campaign and required the illiterate voters to affix their seal on a particular symbol. It is commonly known that one symbol is allotted to the contesting candidates so that they may inform the illiterate persons that they have to affix their seal on a particular symbol. People who can read and write would certainly read the names of the candidate but where the population living in villages is illiterate to the extent of 65 per cent as per the census the election symbol would certainly assume importance. If the elected candidate requires his supporters and the other voters to affix their seat on a particular election symbol and abruptly that election symbol is changed then obviously a serious prejudice occasions to him. No- body knows that the person who had cast his vote in favour of the persons or a person having a particular symbol. The change of the symbol in ballot papers in the opinion of this Court has materially affected the election. The court below was certainly justified in observing that this change has caused a serious prejudice to the election petition. The Court was certainly justified in interfering with the results. 7. So far as declaration of the election petitioner as returned candidates is concerned, that authority could not be exercised by the election tribunal in favour of the election petitioner. The court below was certainly justified in observing that this change has caused a serious prejudice to the election petition. The Court was certainly justified in interfering with the results. 7. So far as declaration of the election petitioner as returned candidates is concerned, that authority could not be exercised by the election tribunal in favour of the election petitioner. As already observed that nobody knows who cast his vote in favour of which particular man whether the votes were cast in favour of the candidate or in favour of a person having a particular symbol. If the election and election results were adversely affected for the election petitioner then certainly the same ground would be available to the returned candidate to say that the election petitioner cannot be declared returned candidate. The part of the order of declaring that the election petitioner as returned candidate is set aside. The order passed by the learned tribunal relating to setting aside the election result is maintained but the later direction declaring the election petitioner as returned candidate is quashed. 8. As the results have already been set aside and the election process have been quashed, it is hereby directed that the State and the election authority shall take proper steps to take up fresh election process. The petition is partly allowed.