Parikshitraj vs Returning Officer, Raichur and Another

In this petition filed under S. 81 of the Representation of the People Act 1951 (hereinafter called the Act) the election held on 25-2-1978 for representing Raichur (21 Constituency) in the Karnataka state Assembly is called in question.

The petitioner, the 2nd respondent, and five others had contested the elections. The 2nd Respondent has been declared elected.

The petitioner had contested the election as an Independent. The 2nd respondent had stated in his nomination paper filed on 1-2-1978 that he was a candidate sponsored by the "Indian National Congress (I) led by Smt. Indira Gandhi," and had sought for, in order of preference, the symbols (i) two bullocks with a. farmer behind (ii) Elephant and (iii) Cart. His nomination paper was accepted and he was permitted to contest the election as a candidate sponsored by "The Indian National Congress (I)" and was allotted that party''s symbol HAND.

The election of the 2nd respondent is sought to be set aside on two grounds, namely, (i) that the, acceptance of his nomination paper by the returning officer (respondent-1 herein) was improper; and (ii) that the allotment of Symbol HAND to him was not in accordance with the Act, the rules and orders issued in this behalf, and therefore, there was noncompliance with the relevant provisions of law by the returning officer, and this had materially affected the result of the election.

What is stated in the petition in this behalf is; that the 2nd respondent had filed his nomination paper on 1-2-1978, the last date prescribed for filing the nomination paper; that in the said nomination paper he had described himself as a candidate sponsored by the "Indian National Congress (1) led by Smt. Indira Gandhi"; no such party had been registered with the Election Commission (Commission) as on that day: that the Commission registered a Party called "The Indian National Congress (I)" as a National Party, allotting to it the symbol HAND, only on 2-2-1978: but that decision had not been duly notified by the time the returning officer took a decision recognising the 2nd respondent as a candidate set up by that party (Indian National Congress (I); also that the 2nd respondent had not made a proper declaration to that effect in his nomination. paper and no notice in writing to that effect had been delivered to the returning officer of the constituency as contemplated by paras 13(a), (b) and (c) of the Election Symbols (Reservation and Allotment) Order, 1968 (the order) and that, therefore, the returning officer had committed an error in law in considering the 2nd respondent as a candidate set up by the Indian National Congress (I) and allotting him the symbol HAND.

In their written statements both the 1st and 2nd respondents, while denying the afore said allegations made in the petition, have, stated that the acceptance of the nomination paper of the, 2nd respondent was proper; that the returning officer had not violated any rules in allotting the symbol HAND to him; and that, therefore, there are no grounds to set aside the election, and the petition should be dismissed with costs.

In view of these contentions the following issues were framed:

(1) Was the nomination paper of Nazir Ahmed Siddiqui (respondent-2) improperly accepted by the returning officer (Respondent-1)?

1(a). If so, had it materially affected the result of the election within the meaning of S. 100(1)(d)(i) of the Representation of the People Act, 1951?

Was the allotment of the symbol handto Nazir Ahmed Siddiqui (respondent-2) contrary to the provisions of the Election symbols (Reservation and Allotment) Order, 1968?

2(a). If so, has it materially affected the result of the election within the meaning of S. 100(1)(d)(iv) of the Representation of the People Act, 1951?

In the event of the ejection of Nazir Ahmed Siddiqui (respondent-2) being set aside, is the petitioner entitled to be declared as duly elected under S. 101 of the Representation of the People Act, 1951?

What Order?

On behalf the petitioner examined himself (P.W. 1) and onewitness, S.P. Deshpande (P.W. 2). Respondents 1 and 2 have examined themselves.

As per calender of events published by the Commission (Ext. P. 3) the last date for making nominations was 1-2-1978, the date for the scrutiny of nominations was 2-2-1978 the last date for withdrawal candidatures was 4-2-1978, the Poll was fixed to take place if necessary on 25-2-1978 and 27-2-1978 was the date before which the elections had to be completed.

Of the issues framed, the third issue does not call for any finding at all. The petitioner has not sought for any declaration under S. 101 of the Act that in the event of the election of the 2nd respondent being set aside he should be declared as elected.

10A. The only two questions that arise for our consideration are:

(i) Whether there was improper acceptance of the nomination paper of the 2nd respondent? and (ii) Was there any non-compliance with the provisions of the Constitution, the Act, or the Rules or Orders made under the Act in the matter of allotment of the symbol handby respondent-1 in favour of respondent-2?

Both the grounds of attack are sought to be sustained on the same set of facts. Therefore, while examining the rival contentions touching the questions involved, repetition of facts is inevitable.

Now, to take up the first question. While elaborating his submission that the acceptance of the nomination paper of the 2nd respondent by the 1st respondent was improper, the learned Counsel for the petitioner argued thus: The 2nd respondent had filed his nomination paper on. 1-2-1978; therein he had mentioned that he was a candidate set up by "The Indian National Congress (I) led by Smt. Indira Gandhi"; he had sought for symbols (i) Two bullocks with a farmer behind, (ii) Elephant and (iii) Cart in order of preference; either on the date when he filed his nomination paper or at the time of the scrutiny (on 2-2-1978), there did not exist any political party called "the Indian National Congress (I) led by Smt. Indira Gandhi"; thus the 2nd respondent had, in his nomination paper, wrongly described himself to be a candidate sponsored by a political party not in existence, in the eye of law on the relevant date: and that therefore, his nomination paper was liable to be rejected.

I will have occasion later, while examining the second question, to consider the question of registration of political parties by the Commission and the purpose behind such registration and other connected masters. The learned Advocate General, and the learned Counsel for the 2nd respondent, while countering the above arguments of the learned Counsel for the petitioner, submitted that no nomination paper could be rejected merely because a candidate mentions therein that he was sponsored by a political party not registered with the Commission. According to them this is not one of the grounds in the Election Law to reject a nomination paper.

Part V Chapter I of the Act contains the provisions relating to the nomination of candidates. They are Ss. 30 to 39. S. 30 provides for the publication of calender of events by the Commission under S. 31 the Returning Officer is required to give public notice of the intended election inviting nominations and specifying the place at which the said papers are to be delivered. Under S. 32 any person who is qualified to be chosen to till a seat in the Legislature may be nominated as a candidate for election to fill that seat. Guide lines in detail in the matter of presentation of nomination papers and requirements for valid nominations are given in S. 33. Ss. 35 and 36 deal with scrutiny of nominations, and of them S. 36 lays down the grounds on which the returning officer could reject a nomination paper. The nomination paper in the instant case had to be in Form 2B of the Conduct of Election Rules, 1961 (Rules). It is not in dispute that the 2nd respondent had filed his nomination in the form prescribed. Immediately on the presentation of the nomination paper the returning officer is required to satisfy himself that the names and the electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls (see sub-sec. (4) of S. 33). At that stage the returning officer is only required to see as to whether the names and the electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the lectoral rolls. The proviso to sub-sec. (4) provides that any misnomer or inaccurate description in regard to the name of the candidate or his proposer or in regard to any place mentioned in the electoral roll or in the nomination paper shall not affect the full operation of the electoral roll or the nomination paper with respect to such person or place. The proviso also confers powers on the returning officer to permit such misnomer and inaccurate description to be corrected and where necessary he can also direct that the same (misnomer or inaccurate description in regard to the name of the candidate or his proposer or in regard to the place) shall be over-looked. The examination of the nomination papers in depth and in all detail is required to be done at the time of the scrutiny of the same. Sub-secs. (2) and (4) of S. 36 of the Act which are relevant read as follows:

"36. Scrutiny of nominations: (1) .................

(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objections or on his own motion after such summary inquiry, if any, as he thinks necessary reject any nomination on any of the following grounds:

(a) that on the date fixed for the scrutiny of the nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: Articles 84, 102, 173 and 191 Part II of this Act, and Ss. 4 and 14 of the Government of Union Territories Act 1963 (20 of 1963); or (b) that there has been a failure to comply with any of the provisions of S. 33 or S. 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine.

(3) ................

(4) The raturing officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character."

As can be seen from sub-sec. (2) of S. 36 the returning officer can reject a nomination paper if he finds that the candidate concerned either was not qualified or disqualified for being chosen under any of the, relevant articles of the Constitution Arts. 84, 102, 173 and 191-or did not have the requisite qualifications enumerated at Part II of the Act, or, was suffering from any disqualifications enumerated therein. He can also reject the nomination paper if there is a failure on the part of the candidate, to comply with any of the provisions of. Ss. 33 or 34 of the Act, or, if he finds that the signature of the candidate or his proposer on the nomination paper is not genuine. It is not the case of the petitioner that the 2nd respondent was not qualified, or, was disqualified under any of the Articles of the Constitution referred to above or, provisions contained in Part II of the Act (Ss. 5 and 8 to 10A of the Act.) It is also not his case, that the signature of the candidate or his proposer on the nomination paper was not genuine. There is no complaint that Sec. 34 of the Act, which provides for the deposit of certain specified sums along with the nomination paper, had not been complied with. The only complaint is that the nomination papers filed by the 2nd respondent had mentioned that he was a candidate sponsored by a political party not registered with the Commission either on the date when the nominations were filed, or, on the date of scrutiny, and had sought for symbols which were not, admittedly according to the candidate himself, the symbols of that imaginary party. It is true that in the nomination form prescribed (Form 2B) under the Rules there is a column meant to note, if the candidate, was a candidate set up by a political party, the name of that party. There is also a column to mention three, symbols chosen by the candidate in order of preference. Rule 4 of the Rules provides that"every nomination paper presented under sub-section (1) of S. 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate". In this connection he places reliance on a decision of the Supreme Court in Dharram Singh Rathi v. Hari Singh, AIR 1975 SC. 1274. The facts of that case are different. The allegatin was of improper rejection of the nomination papers of two candidates. One of the candidates had not given the name of his father and his full address in both the nomination papers. On scrutiny of the same the returning officer felt they were technical defects fit to be rectified and wanted them to be rectified by the candidate. But, neither the candidate not anybody on his behalf were present to rectify the same. Therefore, he rejected the nomination papers. In the other case the defects were more serious. The name of the Constituency of the proposer had not been given. The thumb mark of one of the two Proposers had not been authenticated in the manner prescribed by law. The High Court upheld the rejections of the nominations and the Supreme Court refused to interfere with the decision of the High Court. The ratio of that decision cannot be applied to the facts of the present case.

One need not make much of the defects in completing the Form in the matter of symbols. As observed by the Supreme Court K.S. Abdul Azeez v. Ramanathan Chettiar, AIR 1967 SC. 85"symbols can be assigned by political parties till the date for withdrawal.....". It is also further observed therein that "no nomination paper should be cancelled during the interval". In that case one of the candidates who had contested for an assembly seat in Madras State as an Independent had shown in his nomination paper only one symbol leaving blank the space meant to note the, two other symbols. The only symbol he had sought for was the symbol ''Star'' which had been reserved for the, Swatantra Party. He was not a candidate sponsored by that party. It was argued before their Lordships that this was a, defect of a substantial character. The Court, by holding that this case falls within the proviso to Rule 4 of the Rules, has observed as follows at paragraph-6:

"The phrase ''defect in completing the declaration as to symbols'' would obviously cover such a case and there is no difference, between that case and this where the star is shown in the first space and the rest of the space is left blank. The intention seems to be that the question of symbols should not play an important part because symbols can be assigned by political Parties till the date for withdrawal and nomination paper should not be cancelled during the interval." (underlining italics supplied)

Sub-section (4) of S. 36 of the Act is extracted above. Rule 4 of the Rules and its proviso read as follows:

"4. Nomination Paper.-Every nomination paper presented under sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate: Provided that a failure to complete, or defect in completing, the declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of Section 36."

If a declaration by a candidate, seeking for symbols not in any way connected with the political party said to have sponsored him as a candidate can be construed as a defect, that defect in my view, is not a defect of a substantial character and is clearly saved by the proviso to Rule 4 of the Rules referred to above.

Now, it is a fact that no political party called the "Indian National Congress I led by Smt. Indira Gandhi" had been registered with the Commission on 1-2-1978, the date on which the 2nd respondent had filed his nomination papers. It is well known that soon after the parliamentary elections held in 1977 differences arose amongst Congress men and that party came to be divided into two groups. One group was headed by Smt. Indira Gandhi. This group was recognised by the Commission as a separate National party called the Indian National Congress (I), and was allotted the symbol HAND. The Commission arrived at this conclusion on on 2-2-1978, and published a notification to that effect in the, Gazette of India (Extry) Part II Section 3 sub-section (ii) on 3-2-1978. These facts will have, to be again referred to later while considering the second point. But the question is, was the nomination paper of the 2nd respondent liable to be rejected because he had mentioned therein that he was a candidate sponsored by a political party which had not been recognised or registered with the Commission? There is no specific provision in the Act, the Rules, or Orders referred to above providing for the rejection of a nomination paper on that ground. Besides this the registration or recognition at a political party by the Commission has significance only in the matter of allotment of symbols. If a candidate is found to be not one sponsored by a registered party he would not be entitled to the symbol of that party. Merely because a candidate mentions in his nomination paper that he had been set up by a certain political party not registered with the Commission, that would be no ground to reject his nomination paper. The Election Law envisages the existence of even un-recognised political parties, and in the matter of allotment of symbols to such candidates guide lines are given by the Commission in Paragraph 12 of the Order. Even if a candidate mentions in his nomination paper the name of a political party not in existence, let alone it being an unrecognised political party, even then that would not be a ground to reject his nomination paper, because, as already stated, this fact as to whether a candidate was one set up by an unrecognised political party or recognised political party would have relevance only while allotting the symbol to him. If any failure to complete or defect in completing the declaration as to symbols in a nomination paper is not a defect of a substantial character as provided in the proviso to R. 4 of the Rules, we should say that an alleged defect like the one with which we are, presently concerned, that is to say, mentioning by the candidate that he was set up by a political party which was not registered with the Commission or not even in existence would also be not a defect of a substantial character within the meaning of sub-sec. (4) of S. 36. Therefore, such a defect, even if any, does not warrant the rejection of his nomination paper.

This is my answer to the first question raised above. In view of of this finding, the 1st issue raised in the case is answered in the negative.

While urging that the Returning Officer (respondent-1) had not complied with the provisions of the Act, the Rules, and Orders made thereunder while allotting the symbol Handto the 2nd, respondent, the learned Counsel for the petitioner submitted thus: that the 2nd respondent had not sought for the symbol Hand; he had not stated in his nomination, paper that he was a candidate sponsored by the Indian National Congress (I) which had been later assigned by the Commission the symbol Hand; that even otherwise that party-Indian National Congress (I)-was not a party registered with the Commission according to law either on 2-2-1978 or 4-2-1978; and that, besides this the candidate (2nd respondent) and the office bearers of the party which is said to have set him up as, its candidate had not complied with the requirements of Paragraph 13 of the Order, and therefore, the order of the 1st respondent allotting the symbol Hand was in violation of the provisions of the Order.

The relevant provisions of law touching this question are: S. 38 of the Act, Rules 5 and 10 of the Rules, and Paragraphs 3, 4, 5, 6, 8, 13, 15, 17 and 18 of the Order.

S. 38 of the Act provides for the publication of list of contesting candidates. That section reads as follows:

"38. Publication of list of contesting candidates.-(1) Immediately after the expiry of the period, within which candidatures may be withdrawn under sub-sec. (1) of S. 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) The said list shall contain the names 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."

This list containing the names of the contesting candidates is required to be published by the returning officer immediately after the expiry of period of withdrawal of candidatures. The form and the manner in which the said list has to be published is provided for in Rule 10 of the Rules, and the relevant sub-rules in this connection are subrules (1), (4), (5) and (6) of Rule 10. They read as follows:

"10. Preparation of List of Candidates-(1) The list of contesting candidates referred to in sub-section (1) of Section 38 shall be in Form 7A or Form 7B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or languages as the Election Commission may direct.

(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 candidal 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 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.

(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."

So far as Legislative Assembly constituencies are concerned the prescribed form in which the, list of contesting candidates has to be published is Form 7A. It has four columns. The first column is meant to note serial numbers, the second column is meant to note the name of candidate, the, third column to note the address of candidates, and the fourth column to note the symbol allotted to them. As can be seen from sub-rule (4) the returning officer is required to consider the choice of symbols expressed by the contesting candidates only at that stage-at the stage of preparing the list of contesting candidates and the decision he takes in this connection is subject to any general or special directions issued in this behalf by the Election Commission.

Rule 5 of the Rules confers powers on the Commission to specify by notifications issued in the Gazette of India and the official Gazette of each State the symbols that may be chosen by the candidates at election in parliamentary or assembly constituencies and the restrictions to which their choice should be subjected to.

Now, let us consider the Order. In fact it is the Order which contains in detail the guidelines in matters of registration of political parties with the Commission and allotment of symbols. The Order has been issu. by the Commission in exercise of the, powers conferred on it by Article 324 of the Constitution of India, read with Rule 5 and Rule 10 of the Rules. As can be seen from the preamble to the Order the same is issued to provide for specification, reservation, choice and allotment of symbols at elections in parliamentary and assembly constituencies, for the recognition of the political parties in relation thereto and for masters connected therewith. (underlining (italics) supplied).

Paragraph 3 of the Order deals with the registration with the Commission of associations and bodies as political parties for the purposes of the Order. Paragraph 4 says that the allotment of symbols shall have to be made in accordance with the provisions of the Order. Paragraph 5 provides for classification of symbols, and accordingly the symbols are classified into two categories reserved and free. A symbol allotted to a recognised political party is called a reserved symbol. A free symbol is a symbol other than a reserved symbol. Paragraphs 6 and 7 envisage classification of political parties into recognised political parties and unrecognised political parties and National political parties, and the State parties. Under Paragraph-8 a candidate set up by a, National party is entitled to the symbol reserved to that party and to no other symbol. The conditions requisite to consider a candidate as a candidate set up by a political party are enumerated in Paragraph 13 and since emphasis is laid on this paragraph it is extracted below:

"13. When a Candidate shall be deemed to be set up by a political Party.-

For the purposes of this Order a candidate shall be deemed to be set up by a Political party if, and only if.- (a) the candidate has made a declaration to that effect in his nomination paper;

(b) a notice in writing to that effect has, not later than 3 p.m., on the last day of withdrawal of candidatures, been delivered to the returning officer of the constituency; and (c) the said notice is signed by the president, the secretary or any other office bearer of the party and the president, the secretary or such other office bearer is authorised by the party to send such notice and the name and specimen signature, of the president, the secretary or such other office bearer are communicated in advance to the returning officer of the constituency and to the Chief Electoral Officer of the State."

In any dispute arising between rival groups of a recognised political party each claiming itself to represent that party, the Commission is conferred with powers under Paragraph 15 to take appropriate decisions in the matter. Paragraph-15 reads as follows:

"15. Power of Commission in Relation to Splinter Groups or Rival Sections of a Recognised Political Party.-When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and heading such representatives of the sections or groups and other persons as desired to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups."

Paragraph 17 provides for the manner in which the orders and directions issued by the Commission allotting symbols is required to be made known. That Paragraph reads as follows:

"17. Notification Containing Lists of Political Parties and Symbols.-(1) The, Commission shall by one or more notifications 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 symbols respectively reserved for them in such State or States;

(c) the unrecognised political parties and the State or States in which they function;

(d) the free symbols for each State.

(2) Every such list shall, as far as possible, be kept up-to-date."

Paragraph-18 gives plenary powers to the Commission to issue instructions and directions clarifying any of the provisions of the Order and for the removal of any difficulty that may arise in relation to the implementation of the provisions of the Order. Paragraph-18 reads thus:

"18. Powers 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 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 no provision or makes insufficient provision and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections."

The powers of the Commission in the matter of recognition of political parties or of issuing orders or directions allotting symbols to them has not been called in question. Under Art. 324 of the Constitution of India the superintendence, direction, and control of elections is vested in the Commission. This has been done, with the object of ensuring free and fair elections which is a bed-rock of a free Democratic Society. The Rules have been framed by the Central Government in consultation with the Commission in exercise of its powers conferred under S. 169 of the Act, and as referred to above, the Commission has made the Order in exercise of the powers conferred on it by Art. 324 of the Constitution read with Rules 8 and 10 of the Rules. Symbols have been introduced in elections to facilitate the voters to easily identify the candidates and the parties, if any, they represent. It was found more convenient to educate the voters in exercising their franchise power that way as majority of our voters are not literate. The following observations of the Supreme Court in Sadiq Ali v. Election Commission of India, (1972) 2 SCR 318, 332, 333, may be noted:

"Before discussing the scope and ambit of paragraph-15, it may be pertinent to find out the reasons which led to the introduction of symbols. It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of the illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a, peculiar feature of the election of law of India. In some countries, details in the form of letters of alphabets or numbers are added against the names 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. Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired a great value because the bulk of the electorate associated the political party at the time of elections with its symbol. If is, therefore, no wonder that in case of a split in a political party, there is a keen contest by each rival group to get the symbol of that party.

Let us now go back to paragraph-15. The occasion for making an order under this paragraph arises when the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party. The Commission in such an event decides the matter after taking into account all available facts and circumstances of the case and hearing such representatives of the Sections or groups and other persons as desired to be heard. The Commission may decide that one such rival section or group is that party. The aforesaid decision has been made binding on all the rival sections or groups who claim to be the political party in question."

There is no force in the contention of the learned Counsel for the petitioner that respondent-1 had violated the provisions of the Rules and the Order by allotting to respondent-2 the symbol Handrecognising him as a candidate sponsored by the Indian National Congress (I). As already stated that party came to be recognised or registered as a, National party on 2-2-1978 and a notification to that effect was issued in the Gazette of India (Extry). on 3-2-1978. Even if we construe 3-2-1978 as the date on which it was officially made known that that party had been registered with the Commission allotting to it the symbol Hand, the decision of the returning officer (respondent-1), in the circumstances, allotting that party''s symbol to respondent-2 cannot be found fault with.

As noted above, the date for withdrawal in the instant case was 4-2-1978. As observed in Abdul Azeez''s case (supra) (2) this would be the relevant date for the returning officer to consider the, choice, of symbols and to make appropriate orders in this behalf. The notification issued by the Commission in the Gazette of India (Extry.) dated 3-2-1978 Part II, S. 3, Sub-sec. (ii) (A copy of the same is kept in the file) reads as follows:

"Election Commission of India Notification.

New Delhi, the 2nd February, 1978.

S.O. 62(E).-Whereas by its order dated, 2 February, 1973 in exercise of the powers conferred on the Election Commission by Art. 324 of the Constitution read with Rules 5 and 10 of the Conduct of Election Rules, 1961, paragraphs 3, 6, 7, 8 and 18 of the Election Symbols (Reservation and Allotment) Order, 1968, and all other powers enabling it in this behalf the Election Commission of India has decided to recognise ''Indian National Congress (I)'' as a National Party and to reserve the symbol ''Hand'' to it;

And whereas the symbol ''Hand'' hitherto included in the list of tree symbols for the States of 1. Andhra Pradesh, 2. Haryana, 3. Jammu and Kashmir, 4. Karnataka, 5. Manipur and 6. Sikkim and the Union Territory of Arunachal Pradesh, shall have to be deleted as a consequence of the said order;

Now, therefore in pursuance of clauses (a) and (d) of subparagraph (1) and sub-paragraph (2) of paragraph 17 of the Election Symbols (Reservation and Allotment) Order, 1968, the Commission hereby makes the following amendments in its notification No. 56/78 dated 25 January 1978, published as S.O. 40(E) in the Gazette of India, Extrordinary, Part II, S. 3(ii), dated 25th January, 1978, and as amended from time to time, namely;-

In Table I appended to the said notification, the following entries shall be made in columns 1 and 2:

''5. Indian National Congress (I). Hand'' ....."

The rest of the notification containing the consequential changes into the previous notification, not being relevant are omitted. This decision, apart from it being published in the Gazette of India as required, by the Order, was also made known to all concerned through Press and Radio. Instructions in detail were also issued to all the returning officers in the State of Karnataka by the Chief Electoral Officer as to how they should proceed in the matter of allotment of the symbol Hand. I may in this connect refer to the evidence of the returning officer respondent-1 who has been examined as R.W. 1. The, instructions of the Chief Electoral Officer had been conveyed to this witness through the District Election Officer. The witness has stated, producing the wireless massage he had received from the the District Election Officer (Ext. R. 7), that he had received the same at 3-15 p.m., on 3-2-1978. That message reads as follows:

"Election Commission decided to recognise Indian, National Congress led by Smt. Indira Gandhi as National party and to reserve the symbol. Hand for this party. The party is known as Indian National Congress (I). Commission therefore direct that the returning officer should allot to such candidate who bring proper authority letter from the authorised persons of the above party and who indicate that they would like to get the symbol Hand allotted to them irrespective of whether the said symbol has been indicated in the first nomination papers already filed. In case any such candidate had declared in his first nomination papers as belonging to Indian National Congress (C) it should be deemed to be Indian National Congress (I). Consequently the symbol ''Hand'' reserved for the Indian National Congress (I) will be deleted from the list of free symbols. It should not be allotted to any candidate, other than the candidates set up by that party."

The evidence of R.W. 1 shows that subsequent to his receiving Exhibit R. 7 he had received on 4-2-1978 the letter, Exhibit R. 9, from the Chief Electoral Officer. The message at Exhibit R. 7 contained the instructions of the Commission in the matter. This is clear from the reading of Exhibit R. 9. That letter reads as follows:

GOVERNMENT OF KARNATAKA

No. DCA 1 EAS 78

ELECTION-URGENT Office of the Chief Electoral Officer for Karnataka, Bangalore-560001,

Dated: 3rd February, 78.

To

All District Election Officers

All Returning Officers of Assembly Constituencies.

All Assistant Returning Officers

Sir,

Subject: General Election to State Legislative Assembly, 1978 Allotment of symbols of Political parties.

Reference: Commission''s Telex Messages No. 56/25/78 dated 2-2-1978.

I am to state that the Election Commission of India had intimated in the telex messages referred to above that it has decided to recognise Indian National Congress led by Smt. India Gandhi as a National Party and to reserve for that Party the symbol Hand. The party is to be known as ''Indian National Congress (I)''. Consequently, the symbol Handis being deleted from the list of free symbols.

The Commission has directed that such of those candidates sponsored by the Indian National Congress (I) who bring proper authority letters from the persons authorised to set up candidates on behalf of the said party and who indicate that they would like to getthe symbol ''HAND'' allotted to them should be allotted the reserved symbol Hand irrespective of the fact whether they have chosen in the first nomination papers filed by them that symbol or not. If any such candidate has declared in his nomination paper as belonging to Indian National Congress (C), it may be deemed to be Indian National Congress (I) and action taken accordingly.

Since the symbol Hand is being deleted from the list of free symbols and is reserved for Indian National Congress (I) it should not be allotted to any candidate other than the candidates set up by that party in any constituency, the symbol should not be allotted to any other candidate.

Since just a day is left for the last date forwithdrawal of candidates it is doubtful whether this communication would reach the Returning Officers before the time fixed for withdrawal of candidatures i.e., 3 p.m. on 4-2-78. The District Election Officers should, therefore, make arrangement to convey the instructions to all the Returning Officers of Assembly Constituencies in their respective districts either over Phone orby sending special messengers on top priority basis.

Receipt of this letter may kindly be acknowledged.

Yours Faithfully,

Sd.

(D. Balagopalan)

Copy to: All Divisional Commissioners. CHIEF ELECTORAL OFFICER.

Based on the instructions contained in Exhibit R. 9, and as a matter of caution, the Chief Electroal Officer had conveyed that message in substance earlier to all the returning officers as per Exhibit R. 7. After recognising the Indian National Congress (I) as a National party only on 2.2.73 and finding that by then the calender of events had been published for elections to the Karnataka Assembly, the Commission found it necessary to issue suitable directions to the returning officers concerned as to how they should give effect to that notification. Therefore, the Commission''s instructions were that the returning officers should allot the symbol Hand to such candidates who bring proper authority letter from the authorised person of the party, the Indian National Congress (I) and who indicate that they would like to get that symbol allotted to them irrespective of whether the said symbol had been indicated in the first nomination papers already filed by them. Under paragraph 13 of the Order a candidate can be deemed to be set up by a political party only if that candidate had made a declaration to that effect in his nomination paper and a notice in writing to that effect had been delivered to the returning officer of the constituency not later than 3 p.m., on the last date for withdrawal of candidatures and also that that notice was signed by an authorised office. bearer of that party. As defined in the Order, a political party means a political party registered with the Commission. Now, this party was not on the date when the 2nd respondent filed his nomination paper, yet registered. In the circumstances, in this case the condition incorporated in Clause (A) of Paragraph 13 could not have been satisfied. But we should know that the further instructions given by the Commission and referred to above does not insist upon this condition being satisfied. What it says is that the returning officer should allot the symbol Hand to such of the candidates who bring proper authority letter from the authorised persons of the party-I.N.C. (1)-and who (candidates) indicate that they would like to get the symbol Hand allotted to them. There is no doubt that the Commission had powers to issue such instructions. Paragraph 18 of the Order, extracted above, may be seen. The Commission is clothed with powers to issue instructions and directions in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this Order makes no provision or makes in sufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections. In this connection the following observations of the Supreme Court in Sadiq Ali''s case (Supra) at pages 341, 342 may be noted:

"It would follow from what has been discussed earlier in this judgment that the symbols Order makes detailed provisions for the reservation, choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by rule 5 of Conduct of Election Rules. Sub-rule (4) of rule 10 gives a power to the Commission to issue general or special directions to the, Returning Officers in respect of the allotment of symbols. The allotment of symbol by the Returning Officers has to be in accordance with those directions. Sub-rule (5) of rule 10 gives a power to the Commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would therefore, follow that the Commission has been clothed with plenary powers by the above mentioned Rules in the matter of allotment of symbols. The validity of the said Rules has not been challenged before us. If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case it is a dispute between two individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbol Order. If on the other hand a dispute arises between two rival groups for allotment of a symbol of a political party on the ground that each group professes to be that party, the machinery and the manner of resolving such a dispute is given in paragraph 15. Paragraph 15 is intended to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserved for the political party is not set at naught. The fact that the power for settlement of such a dispute has been vested in the Commission would not constitute a valid ground for assailing the vires of and striking down paragraph 15. The Commission is an. authority created by the Constitution and according to Art. 324, the Superintendence direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President shall be vested in the Commission. The fact that power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would arise a presumption, though rebuttable and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner."

Following up the notification issued by it recognising the Indian National Congress (I) as a National Party the Commission thought fit that, in the circumstances and in view of the urgency of the matter, it should issue instructions for the smooth and orderly conduct of elections that were about to take place in the Karnataka State. Extibit R. 7 and R. 9 clearly establish that the Commission had issued the instructions referred to above to the returning officers in the matter of allotment of symbol Handto the candidates set up by the Indian National Congress (I). These instructions did prevail over the other provisions of the order including the guidelines incorporated in paragraph-13. I am satisfied from the evidence on record that the two conditions that the Commission insisted upon in its directions, Extibit R-7, had been complied with in the instant case. Those conditions are: that the candidate should bring proper authority letter from the authorised person of the party, and that they should indicate that they would like to get the symbol Hand. The returning officer, R.W. 1, has stated that on 4-2-1978 at 11 a.m. 2nd respondent had presented to him the notice Extibit R. 10 and the authorisation letter of the General Secretary of the Indian National Congress (I) (Karnataka Unit) Exhibit R-11, and had told him that he was the candidate set up by that party. Satisfying himself that the 2nd respondent was the candidate set up by the Indian, National Congress (I) and following the instructions issued by the Commission, the returning officer had allotted the symbol Hand to the 2nd respondent. In the circumstances it cannot be said that in the matter of allotment of the symbol the returning officer (respondent-1) had not complied with the provisions of the Constitution, the Act, the Rules, and the order made therein. In view of this answer to question No. 2 posed above the second issue framed in the case is also answered in the negative.

In view of my findings on Issues 1 and 2; it may not be necessary to give any findings on Issues 1(a) and 2(a). However, if in the circumstances they are required to be answered, the answers would also be in the negative. These two issues cover the averments made in the petition that the improper acceptance of the nomination paper and the allotment of the symbol Hand to Nazir Ahmed Siddiqui (respondent 2) contrary to law had also materially affected the result of the election within the meaning of Section 100(1)(d) of the Act. The evidence given by the petitioner (P.W. 1) in this connection is that the allotment of the symbol Hand to the 2nd respondent recognising him as a candidate sponsored by the Indian National Congress (I) had affected him in two ways firstly, from the point of view of election expenses; and secondly, by the support the 2nd respondent had from that party. He also says that Smt. Indira Gandhi had visited the constituency. and that because of that large number of voters had voted in favour of respondent-2. The only witness examined on his behalf, Deshpande, (P.W. 2) has also given evidence about the visit of Smt. Indira Gandhi to that constituency, and according to this witness large number of people were also fed on that day. However, the evidence in this connection is quite unsatisfactory.

In view of what is stated above, this petition fails and the same is hereby dismissed with costs.

[1979](2)kar.l.j. 154

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[1979](2)kar.l.j. 158

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