Returning Officer-cum-Project Officer, Khammam and another vs Vooka Abbaiah

B. Subhashan Reddy, J.—This petition has been filed to review our order dated 31-8-1999 passed in Writ Petition No.18522 of 1999. The writ petition was filed aggrieved by the order refusing to accept Form-B, which is to be submitted under the provisions of Election Symbols (Regulation and Allotment) Order, 1968.

The petitioner belongs to Scheduled Tribe and filed his nomination from 288-Yellandhu (ST Assembly Constituency of Khammam District) in the ensuing Assembly Elections. The Telugu Desam Party has nominated him to contest as a candidate of that party and issued From-A as also Form-B. These forms are prescribed under the Election Symbols (Regulation and Allotment) Order, 1968, hereinafter referred to as "the Symbols Order". While Form-A is addressed to the Chief Electoral Officer by the Party, Form-B is given to the candidate to be submitted along with the nomination paper. The fact that Form-A was communicated is not disputed. But, Form-A does not contain the name of the nominee of the party who is seeking to contest and Form-A has been prescribed merely for authenticity of the signature of the functionary of the Political Party. So far as Form-B is concerned, it is a certification by the Political Party that a particular candidate was set-up on its behalf to contest the election.

The nomination for the instant election to the Assembly was to be filed by 3.00 p.m. on 28-8-1999 and the election is scheduled to 18-9-1999. The fact that nomination papers by the petitioner were submitted on time is not disputed. It is also not disputed that the petitioner did not file Form-B along with his nomination paper. But, his complaint is that since Fonn-B was left at Hyderabad, there was a delay in getting the same and the application which was filed before the Returning Officer seeking extension of time of two hours to file the same, was rejected arbitrarily by his proceedings RC No.6/3459/99 dated 28-8-1999.

Basing on the unamended Para 13 of Symbols Order, the learned Counsel for the writ petitioner had submitted that, time was still available even as on 31-8-1999 to submit Form-B while the teamed Counsel appearing for Election Commission had argued that this Court had no jurisdiction to interfere in the matter in view of the judgments of the Supreme Court in Election Commission of India Vs. Shivaji and Others, , and S.T. Muthusami Vs. K. Natarajan and Others, . In the said judgments rendered by the Supreme Court, in the circumstances stated therein, it was held that since election process had already begun, the Court cannot interfere at that stage and that grievance can be ventilated only in the Election Petition. But, since the nomination has not been rejected in the instant case, which is a ground enumerated in Section 100 of Representation of People Act, 1951, hereinafter referred to as "the RP Act" and in view of the latest judgment of the Supreme Court in K. Venkatachalam Vs. A Swamickan and Another, , we held that, as the time was still available upto 3 p.m. of 1-9-1999, we directed the Returning Officer to receive Form-B.

This Review petition has been filed stating that on 31-8-1999, the learned Counsel for the Election Commission could not apprise us of the amended Rules which were notified only on 21-5-1999 and sought to review the order.

We have re-heard the matter. In WPMP No.23435 of 1999, impleadment petition was filed by the Telugu Desam Party Central Election Monitoring Committee and the same has been allowed. Mr. C.B. Rammohan Reddy, the learned Counsel for the petitioner submitted that when the argument was heard on 31-8-1999, he was unaware of the amended Para 13 of Symbols Order and he read from the book containing the unamended Symbols Order. Now, he submits that there was valid reason for not submitting Form-B on time and that the Returning Officer had arbitrarily rejected the plea for extension of time by only two hours i.e., till 5 p.m. on 28-8-1999. Alternatively, he pleads that the provision relating to the filing of Form-B is only directory and not mandatory and even if it was not filed on time, the Returning Officer ought to have received the Form-B. Mr. K. Ramakrishna Reddy, the learned senior Counsel appearing for the impleaded respondent No.3 has also submitted that substantive provisions are contained in the statute i.e., RP Act and the statutory rules made thereunder and that Symbols Order is not traceable to any of the provisions of the RP Act and as it clashes with the statutory rule i.e., Conduct of Election Rules, 1961, hereinafter referred to as "the Election Rules", Symbols Order cannot survive and even if it survives, it has to be read as only directory and not mandatory. Both the learned Counsel have relied upon the judgments of the Supreme Court in Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, , K.S. Abdul Azeez Vs. Ramanathan Chettiar and Others, , and Birad Mal Singhvi Vs. Anand Purohit, , in support of their arguments.

Mr. C.P. Sarathy, the learned Senior Counsel appearing for the Election Commission, counters the argument of both the learned Counsel appearing for the writ petitioner and the impleaded respondent No.3 and submits that the validity of the Symbols Order was upheld by the Supreme Court in Kanhiya Lal Omar Vs. R.K. Trivedi and Others, , and that the provisions contained in the Symbols Order are mandatory and the limitation prescribed for filing Form-B cannot be extended and that the Returning Officer did not act arbitrarily and cited a judgment of the Supreme Court in Sharif-ud-din Vs. Abdul Gani Lone, .

Insofar as the time-frame for filing nomination and the annexures are concerned, the Parliament did not leave anything to the discretion Election Officers and has specified everything in the statute itself. u/s 30(a) of the RP Act, seven days time is prescribed for filing nominations from the date of election notification. Under sub-section (b), the date for scrutiny of nominations is prescribed as the succeeding working day of the last day of nominations, under sub-section (c), two days thereafter for withdrawal of candidatures and under sub-section (d) to conduct the poll, if it is necessary having regard to the withdrawal of candidatures, not earlier than 14 days after the last date for withdrawal of the candidatures. Section 33 of the RP Act prescribes the time for filing nominations as between 11 a.m. and 3 p.m. The nomination paper has to be filed in the prescribed form. The intention of the Parliament that the above requirements under Sections 30 and 33 had to be scrupulously followed without any exceptions is, thus, clear. That being the mandate, it is clear and unambiguous that nothing can be read into the said provisions authorising the Returning Officer or any other authority including the Judicial authority like the High Court to enlarge the time for complying the requirements of nomination. May be, in form prescribed, the annexures to be filed regarding symbol is not mentioned, but the said requirement is clearly stated in the Symbols Order. With regard to the source of power for promulgating the Symbols Order and the validity thereof, the matter is no more res integra in view of the judgment of the Supreme Court in Kanhiya Lal Omar v. R.K. Trivedi (supra). The Supreme Court held that the power to issue the Symbols Order is comprehended in the power of superintendence, direction and control of elections vested in the Election Commission and even if it was assumed that Symbols Order is not traceable to the Representation of Peoples Act or the Conduct of Election Rules, the power of the Commission under Article 324(1) of the Constitution which is plenary in character encompasses all such provisions and that Article 324 of the Constitution operates in areas left unoccupied by the Legislation and the words "superintendence", "direction" and "control" as well as "conduct of all elections" are the broadest terms which would include the power to make all su.h provisions. As such, we cannot countenance the argument of the learned Counsel appearing for the writ petitioner and the respondent No.3 that ''Symbols Order'' is either invalid or inoperative.

Now, we come to the last argument i.e., the nature of the Symbols Order, as to whether the same is mandatory or directory.

The judgment of the Supreme Court in Birad Mal Singhvi v. Anand Purohit (supra) has no application to this case, as the said case dealt with Section 33(5) of RP Act, which warrants an opportunity to be given to a contestant, if he is an elector of different constituency and if the electoral roll of that constituency has not been filed at the time of nomination, an opportunity is given to file the same at the time of scrutiny thereof. But, such an opportunity is not provided for a nomination filed by the candidate, if he is an elector of the same constituency. In Sharif-Ud-Din v. Abdul Gani (supra) the Supreme Court dealt with the nature of the requirement regarding the attestation of the Election Petition by the petitioner himself, as to whether the same is mandatory or directory. After analysing several judgments on the issue, the Supreme Court held that in order to find out the true character of the Legislation, the Court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. The Supreme Court held that: "If the object is to be defeated by non-compliance with it, it has to be regarded as mandatory. But, when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where, however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow". Applying the said principles, the Supreme Court in the said case held that the requirement of attestation by the petitioner on copy of the Election Petition that it is a true copy is mandatory and not directory. Let us now test the present case with the principle laid down by the Supreme Court in the above case. Pratap Singh''s case (supra) will not come in aid to the writ petitioner as the issue was regarding the statement to be made in the nomination as to the occupation for contesting to the Office of President of Municipal Committee, Demoh. The person who was elected had stated in his nomination regarding his caste, which was the original requirement and was substituted with the word "occupation". The Supreme Court held that merely because ''caste'' is stated as against ''occupation'', there was no substantial defect and the defect was insignificant and held that such a requirement of mentioning occupation was only directory. In AbdulAziz''s case (supra), the Supreme Court held that symbols should not play an important part. But, that was said in the context of the practice allowed then to file the authorisation of the party till the date for withdrawal of candidatures, which was on the analogy of unamended Para 13 of Symbols Order 1968, which was read to us when we have heard the writ petition on 31-8-1999. It is apt to extract the same :

"13. When a candidate shall be deemed to be set up by a political party :--For the purpose 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 office of the constituency;

(c) the said notice is signed by the President, the Secretary or any other officer bearer of the party and the President, Secretary or such other officer bearer is authorised by the party to send such notice; and

(d) the name and specimen signature of such authorised person are communicated to the returning officer of the constituency and to the Chief Electoral Officer of the State not later than 3-00 p.m. on the last date for the withdrawal of candidature".

Clause (a) of Para 13 of the Symbols Order requires a declaration to be made by the candidate that he is set-up by a particular political party. The said requirement is intact even in the amended provision. Insofar as clause (b) is concerned, which is very material for the decision in the instant case, in the unamended provision, a notice in writing supporting the declaration signed by the functionary of the political party was to be delivered by not later than 3 p.m. on the last date for withdrawal of candidatures. But, the same has undergone a change in view of the amendment which reads:

"A notice in writing to that effect has not later than 3 p.m. on the last date for making nominations, been delivered to the returning officer of the constituency...."

The above notice is traceable to Form-B prescribed under the Symbols Order and there is a definite object underlying such prescription. Gone are the day of monarchies and monarchial democracies. Ours is a People''s democracy. Free and fair elections are basic features of democracy. Elections are fought by the political parties basing on the principles of democracy. Each political party has got its idealogy. Each political party has to apply for registration as contemplated u/s 29(a) of RP Act, which provision was incorporated by Amending Act 1 of 1989 which came into effect from 15-6-1989. The symbols are allotted basing on the recognition given to a political party and if it is a registered/ recognised political party, free symbol is given and not a symbol which is reserved for such party. It is needless to mention that there cannot be any reservation of symbol in favour of any individual. In so far as the register/recognised political party is concerned, the symbol is reserved. There is lot of sanctity given to the registered/ recognised political party and only one elector is necessary as a proposer, while for a candidate filing nomination on behalf of the unrecognised political party and also individual, there should be 10 electors as proposers. This condition was inserted by Amending Act 21 of 1996 which came into effect from 1-8-1996. The said amendment was inserted as the first proviso to Section 33 of RP Act which reads:

"Provided that a candidate not set-up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by 10 proposers being electors of the constituency".

Such a provision incorporated is not without purpose and that is manifested by amending Para 13(b) of the Symbols Order to be in tune with the above objective and requiring the filing of the Form-B along with nomination within the time allowed for filing such nomination, as without such compliance, the Returning Officer will not be in a position to determine as to whether the candidate is contesting as individual or on behalf of the recognised political party and which has to be reflected while making scrutiny of nominations. As such, the said provision contained in Para 13(b) of Symbols Order has to be construed as mandatory and not directory. Consequently, the writ petitioner cannot get Telugu Desam Party symbol.

In view of what is stated supra, we review our order dated 31-8-1999 passed in the writ petition and consequently dismiss the said writ petition. The interim order passed on the said date stands vacated. No costs.