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Madhya Pradesh High Court · body

2009 DIGILAW 983 (MP)

Raju v. Sahab Singh

2009-08-17

DIPAK MISRA, R.K.GUPTA

body2009
Judgment Dipak Misra, J. ( 1. ) In this intra Court appeal preferred under section 2 (1) of the M.P. Uchchha Nayayalaya (Khand Nyaya Peeth Ko Appeal Adhiniyam, 2005, the faultlessness of the order dated 13/7/2007 passed by the learned Single Judge in W.P. No. 7884 of 2007 is called in question. ( 2. ) The factual matrix which is requisite to be exposited is that the appellant and the respondent No. 1, Sahab Singh, contested in the elected for the post of Sarpanch of Gram Panchayat Khiriya Shankar, Tahsil Pathariya, District Damoh in the Panchayat Election of 2005. The appellant was elected as Sarpanch and his election was called in question under section 122 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity the 1993 Act"). It was contended in the election petition that initially the appellant was allotted symbol of Lock and Key. On the basis of the said allotted symbol, he started campaigning in the most sincerest manner but after the counting of votes, he came to know that he was allotted the symbol "Farmer sifting the Grain". At the time of counting, the counting authorities counted the votes which were cast on the symbol of "Lock and Key" in favour of Raju s/o Jhunni Kurmi (Patel). It was contended that 85% people of the said locality were illitrerate and they were aware that the election petitioner was allotted the symbol of "Lock and Key" and on that basis, the votes were cast. It was contended that the symbol was changed and modified without following due procedure of law inasmuch as he had no notice of the same and because of the said change, the entire process of election had been affected and it should be declared void. ( 3. It was contended that the symbol was changed and modified without following due procedure of law inasmuch as he had no notice of the same and because of the said change, the entire process of election had been affected and it should be declared void. ( 3. ) In the said election petition, the Returning Officer filed his reply stating inter-alia that: "On 30.12.2005, when it came to the knowledge after allotment of the election symbols that name of one applicant Dhaniram has been left out of the list of persons contesting election by mistake, then on 31/12/2005, a modified list of contesting candidates was notified in which the name of Dhaniram was included and he was allotted election symbol and the modified list of contesting candidates was immediately supplied individually to the contesting candidates, acknowledgement of which is Exhibit-2 which also bears the signature of the election symbol of Lock and Key printed on the contrary he made canvassing by getting the pamphlets with modified election symbol of "farmer sifting the grain" printed." ( 4. ) Be it noted that the elected candidate had filed his written statement contending that there had been no error in the election process and the election had been held in accordance with law. The contention of the Prescribed Officer was that the election petitioner examined on affidavits five witnesses in support of the said stand and stance. The elected candidate did not file any affidavit of any witness. ( 5. ) The Prescribed Authority, on the basis of the material on record, came to hold that as the election symbol was changed, it had materially affected the results and, accordingly, declared the election to be void. ( 6. ) Being dissatisfied with the aforesaid order, the present appellant invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India questioning the correctness of the order passed by the Election Tribunal. The learned single Judge came to hold that there had been non-compliance of sub-rule (3) of Rule 39 of the M.P. Panchayat Nirvachan Niyam, 1995 (for short the Niyam) and hence, the order passed by the Election Tribunal was absolutely invulnerable. ( 7. ) Challenging the legal propriety of the order passed by the learned single Judge, it is contended by Mr. ( 7. ) Challenging the legal propriety of the order passed by the learned single Judge, it is contended by Mr. V.K. Tripathi, learned counsel for the appellant, that the learned single Judge has erroneously concurred with the order passed by the Election Tribunal inasmuch as the election petitioner was very much aware about the change of the symbol. It is urged by him that there was no material on record that he had canvassed for votes on the basis of the said symbol, and in any case, the result was not materially affected as the appellant secured 295 votes and the respondent No. 1, the election petitioner, secured 148 votes. The learned counsel, to buttress his submissions, has commended us to the decisions rendered in Smt. Lata Devi (Mali) v. Haru Raj war, AIR 1990 SC 19 and Harkirat Singh v. Amarinder Singh, AIR 2006 SC 713. ( 8. ) Mr. Vishal Dhagat, learned counsel appearing for the respondent No. 1, supported the order passed by the learned single Judge. It is put fourth by Mr. Dhagat that there is admission by the Returning Officer that the election symbol was changed but there is no material that the : (i) by the improper acceptance of any nomination; or (ii) by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent;or (iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Act or any rules or orders made thereunder, the specified officer shall declare the election of the returned candidate to be void. " Under the aforesaid rule, it is a permissible that the election can be declared void if there has been non-compliance of the provisions of the Act or any rules or orders made thereunder. Rule 39 of the 1995 Niyam deals with allotment of symbols for election. The said Rule reads as under: " 39. Allotment of Symbols for election - (1) Where a poll becomes necessary the Returning Officer shall assign to each candidates any one of the symbols determined by the Commission in the manner prescribed by it. Rule 39 of the 1995 Niyam deals with allotment of symbols for election. The said Rule reads as under: " 39. Allotment of Symbols for election - (1) Where a poll becomes necessary the Returning Officer shall assign to each candidates any one of the symbols determined by the Commission in the manner prescribed by it. (2) The allotment by the Returning Officer of any symbol to a candidate shall be final, except which is inconsistent with any order or instruction issued by the Commissioner in this behalf in case of election of a Panch or Sarpanch of a Gram Panchayat, the District Election Officer and in case of a Member of Janpad Panchayat and Zila Panchayat, the State Election Commission, may revise the allotment is such manner as it deems fit. (3) Every candidates or his election agent shall be informed forthwith, of the symbol allotted to the candidate and be supplied with the specimen thereof by the Returning Officer. 12. On a perusal of the said Rule, it is clear as day that allotment of the symbol is final subject to revision of such allotment in such manner as the competent authority thinks fit. Thus, the grant of symbol has its sanctity. There it is, it can be changed but the procedure provided in the said change was communicated to the candidate. It is urged by him that such a violation of the rule which is mandatory in nature affects the election in entirety in the facts and circumstances of the case and, therefore, the finding of the Prescribed Authority, which has been given the stamp of approval by the learned single Judge, cannot be found fault with. The learned single Judge has drawn inspiration from the decision rendered in Usha Bai v. Sub-Divisional Officer, Ganj Basoda, 1997 (1) Vidhi Bhaswar, 44. ( 9. ) Mr. Kaurav, learned Deputy Advocate General for the State, submitted that though the Returning Officer has admitted that there has been change in the symbol yet he has also categorically stated that the same was done a day after the election symbols were allotted and the election petitioner was aware of the same. ( 10. ( 9. ) Mr. Kaurav, learned Deputy Advocate General for the State, submitted that though the Returning Officer has admitted that there has been change in the symbol yet he has also categorically stated that the same was done a day after the election symbols were allotted and the election petitioner was aware of the same. ( 10. ) In the course of hearing of tins appeal, this Court thought it appropriate to requisition the record of the Returning Officer by which the change of symbol had taken place and the same had been produced by Mr. Kaurav, learned Dy A.G ( 11. ) Before we prodeuced to advert to the facts discernible from the records, it is apposite to refer to section 122 of the 1993 Act. The said provisions enables a person having the locus standi to call in question an election. Rule 21 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership). Rules, 1995 stipulates the grounds for declaring an deletion to be void. Sub-rule 1 (d) of the said Rule being relevant for the present purpose, is reproduced below: "(1) Subject to the provisions of sub-rule (2) if the specified Officer is of opinion- (d) that the result of the election in so far as it concerned returned candidate has been materially affected - Rules has to be religious followed. From sub-rule (3) Rule 39 of the 1995 Niyam, it is demonstrable that every candidate or his election agent has to be informed forthwith of the symbol allotted to the candidate and be supplied with the specimen thereof by the Returning Officer. ( 12. ) On a scrutiny of the record which has been produced before us, we find that the election petitioner was really not informed about the change of the symbol. What has been relied upon it that he has signed a document and on a perusal of the said document, we are not convinced that the same tantamounts to information and the giving of specimen there of by the Returning Officer. Thus, there is non-compliance of the provision. ( 13. ) In this context, we may refer with profit to the decision rendered in Sadiq Ali and another v. The Election Commission of India, New Delhi and others, AIR 1972 SC 187 wherein it has been held thus: "It is well known that overwhelming majority of the electorate are illiterate. Thus, there is non-compliance of the provision. ( 13. ) In this context, we may refer with profit to the decision rendered in Sadiq Ali and another v. The Election Commission of India, New Delhi and others, AIR 1972 SC 187 wherein it has been held thus: "It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there are some pictorial representation on the ballot paper itself whereby such votes might identify the candidates of their choice. Symbols were accordingly brought into use. Symbols or emblem are not a peculiar feature of election law of India. In some countries, details in the form of letters of alphabet or numbers are added against the name of each candidate while in others resort is made to symbols or emblems. The object is to ensure that the process of election is as genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice." ( 14. ) In Roplal Sathi (supra) the Apex Court expressed thus : "The symbols order made by the Election Commission in exercise of its power under Article 324 of the Constitution read with rules 5 and 10 of the Conduct of Election Rules and all other powers enabling it in that behalf are in the nature of general directions issued by the Election Commission to regular the mode of allotment of symbols to the contesting candidates. It is a matter of common knowledge that election in our country are fought on the basis of symbols. It must but logically follow as a necessary corollary that the Symbols Order is an order made under Act. Any other view would be destructive of the very fabric of our system of holding parliamentary and assembly constituency elections in the country on the basis of adult suffrage." ( 15. ) In view of the aforesaid enunciateion of law there is no shadow of doubt that grant of symbol has its own sacrosanctity and is meant for identification of a candidates of choice. The identification through symbol gets immense signification especially due to prevailing illiteracy. ) In view of the aforesaid enunciateion of law there is no shadow of doubt that grant of symbol has its own sacrosanctity and is meant for identification of a candidates of choice. The identification through symbol gets immense signification especially due to prevailing illiteracy. In the case at hand, it has been borne out in the evidence, which has gone un-assaulted that 85% of the voters are illiterate. It is also demonstrable from the material brought on record that the election petitioner had campaigned on the basis of the said symbol. Tested on the aforesaid prism of reason, we are of the considered opinion that finding recorded by the Prescribed Authority which has been concurred by the learned signle Judge cannot be found fault with. ( 16. ) Consequently, we perceive no merit in this writ appeal and accordingly, the same stands dismissed, without any order as to costs.