Usha Bai vs Sub Divisional Officer, Ganj, Basoda

T.S. Doabia, J.

The brief facts for the purposes of this petition under Article 226 of the Constitution of India are as under :-

Election was held to the office of Sarpanch of Gram Panchayat, village Bharankheda, Tahsil Nateran, District Vidisha. The present petitioner Usha Bai was declared elected. Her election was challenged by respondent No. 3. Kamla Bai. This was done basically on the ground that there was some intermingling of the symbols allocated to the returned candidate and the election petitioner. It was contended that the returning officer has allotted symbol of GLASS to election petitioner Kamla Bai and her name was placed at serial No. 3 in the ballot paper. It was further pleaded that symbol of CHASHMA was allotted to respondent No. 4 Kapooribai. It is further stated that at the time of printing of ballot papers the name of respondent No. 3 Kapooribai was wrongly placed at serial No. 2 and the symbol of CHASHMA was printed against the entry. The symbol of GLASS was printed before the name of Kapooribai. It was on the basis of this intermingling of the symbols and names of candidates plea of material effect on the result of election was pleaded. The respondent No. 1, Sub Divisional Officer who was to decide the election petition came to the conclusion that this intermingling in the ballot papers would lead to the setting aside of the election of the returned candidate. Ultimately, he allowed the election petition and declared the election of the petitioner void.

The learned Sub Divisional Officer decided the election petition without framing issues and without recording evidence. As evidence was not recorded, the question of giving opportunity to cross examine the witnesses did not arise. It is this course adopted by the returning officer which is being impugned in the present petition.

I am of the view that there is substance in the contention of the learned counsel for the petitioner. It was incumbent upon the officer deciding the election petition to record evidence and thereafter record a finding of fact that the result of the election was materially affected and the election was vitiated. This has not happened in this case.

Learned counsel, appearing for the respondent, has placed reliance on a decision given by the Supreme Court in the case of Roop Lal Sathi Vs. Nachhattar Singh, . It is sought to be contended that the action of the returning officer allotting symbols is an action which is equally covered by the provisions of section 100 (1) (d) (iv) of the Representation of People Act. It is accordingly, urged that if on account of non-compliance of the rules which deal with allocating of symbols something has happened which affects the result of the election, the same can be made a ground of challenge So far as this abstract proposition of law is concerned, there can be no dispute. What is required to be seen is as to whether it has been established as a fact that the result of the election has been materially effected or not.

The necessity to allocate symbols to various candidates has arisen in this country on account of the fact that overwhelming majority of the voters are not educated. With a view to enable this category of voters to identify the candidate for whom they wish to express their choise, this method of allocating symbols was advised. Commenting upon this the Supreme Court of Shri Sadiq Ali and Another Vs. The Election Commission of India, New Delhi and Others, observed as under:-

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 where by such voters might identify the candidate 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.

Again in Rooplal Sathi''s case (Supra) it was observed :-

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 Elections Rules and all other powers enabling it in that behalf, are in the nature of general directions issued by the Election Commission to regulate the mode of allotment of symbols to the contesting candidates. It is a matter of common knowledge that elections 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 the 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.

It was further observed in para 30 that :-

It must accordingly be held that the High Court was not justified in striking out paragraphs 4 to 18 of the election petition acting presumably under order VI, Rule 16 of the Code of Civil Procedure. 1908 on the gound that the facts stated therein were not sufficient to formulate a complete cause of action u/s 100 (1) (d) (iv) of the Representation of the People Act, 1951 i.e. due to non disclosure of material facts.

It be seen that under the Madhya Pradesh Panchayats Election Petitions Corrupt Practices and Disqualification of Membership Rules, 1991 non-compliance with the provisions of the Actor of any Rules or orders made there under is a ground for setting aside the election of a returned candidate, when it is proved that such result has been materially affected. See Rule 22 (1) (d) (ii). Thus, election is to set aside when there is strict proof. The observations made by the Supreme Court in Paokai Haokip Vs. Rishang and Others, are relevant and be noticed :-

Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the Court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred......

It was precisely for this reason even when there was some infraction of the rules the election was not set aside in Mahadeo Vs. Babu Udai Pratap Singh and Others, . It was held that :-

.... The symbol chosen by respondent No. 1 was correctly shown on the ballot papers, though his name had been misprinted. On these facts, we are satisfied that the High Court was right in holding that R. 56 (2) (g) had not been contravened.

In the other case namely Roop Lal Sathi Vs. Nachhattar Singh, the Supreme Court remanded the matter for adjudication on merits. It was held that the view epressed by the High Court that contention with regard to non-compliance of rules dealing with grant of symbols is a matter which would be covered by section 100 (1) (d) (iv) of the Representation of People Act. 1951.

Following the sam course as was adopted by the Supreme Court in Rooplal Sathi''s case it would be apt to remand the matter back to the Sub Divisional Officer who would redecide the matter after affording opportunity to lead evidence. This opportunity would be given to both the sides so that they may establish as to how and in what manner the result of the election has been materially effected. Evidence would be permitted to be brought on the record and a decision given thereafter. The parties through counsel, are directed to appear before the Sub-Divisional Officer, Ganj Basoda, District Vidisha, on 5th of June, 1995. The petition in allowed with no order as to costs.