NIRMALENDU BANIKYA Vs. RETURNING OFFICER

JUDGEMENT

(1.) The election petitioner was a candidate for 35-Abhayapuri North Constituency in the General Election held on 8/06/1991 in pursuant to a notification issued by the Governor of Assam. 25-4-91 was fixed as last day for filing nomination and 27-4-91 was the date fixed for scrutiny. At the time of counting it was found that petitioner got 1,303 votes, the returned candidate namely respondent No. 2 got 22,311 votes. As the petitioner was defeated, the present election petition has been filed praying, inter alia, that the election of respondent No. 2 be declared void. I shall state the relevant facts stated in the election petition at the appropriate time.

(2.) The respondent No. 2 has filed the present petition under O. VII, R. 11, C.P.C. read with Ss. 86 and 87 of the Representation of the People Act, 1951 praying, inter alia, that the election petition may be dismissed/rejected.

(3.) From the election petition it appears that the above constituency was a reserved constituency for Scheduled Caste and according to election petitioner he was a nominee of the recognised All India Political Party viz Samajbadi Janata Party having the authorised symbol (Chakra Haladhar). The election petitioner has stated in para 2 of the election petition that he could not submit Forms A and B issued by the party Head Office along with his nomination and the Returning Officer on 26-4-91 called and informed him as per decision of the Election Commission vide letter dated 20-4-91, the symbol "a woman carrying a pot on her head" may be given to the petitioner as his election symbol and he was directed to change his symbol in the nomination paper. Petitioner demanded the symbol "Chakra Haldhar", but it was refused and accordingly petitioner changed his symbol in the nomination paper. On 27-4-91 during scrutiny by the Returning Officer, the nomination paper of the election petitioner was found valid. According to election petitioner, on 29-4-91, the petitioner submitted the Forms A and B issued under para 13(c) and (b) of the Election Symbol (Reservation and Allotment) Order, 1968 to the Returning Officer and requested him for reallocating the said party symbol. Petitioner has also alleged that the Returning Officer assured that the change will be made and also issued identity card showing him as a candidate sponsored by the said political party for the above constituency. But the Returning Officer did not change the symbol in respect of the petitioner and issued the list of contesting candidates showing the symbol "a woman carrying a pot on her head" against the petitioner mentioning his party as Samajbadi Janata Party. Thereafter, on 9th and 11th May, petitioner had discussed with the Returning Officer regarding allotment of symbol. But the prayer of the petitioner was rejected. Again on 17-5-91, the Returning Officer issued a notice wherein it was stated that the symbol allotted to the petitioner was cancelled and he was directed to appeal before the Returning Officer on 18-5-91 for giving him preference in writing for any available free symbol listed for Assam. Petitioner duly appeared before the Returning Officer, but he was not allotted any of the symbol stated above and the symbol 'A Cultivator Winowing Grain" was allotted to him and it was duly published against his name in the list of contesting candidates and the petitioner was shown in an independent candidate. The grievance of the petitioner is that although tie was a nominee of the recognised National Party, Samajbadi Janata Party, he was denied the allotted symbol of the said political party. It has been stated that in the constituency, the total number of electorates were 86, 191 and valid votes polled in the election were 68,479 and 36, 18 numbers of votes were rejected. In para 13, these facts have been stated and a vague statement has been made that there were quite a good number of postal ballotes and surprisingly enough, in the said ballotes papers, petitioner was shown as a candidate sponsored by Samajbadi Janata Party. A general statement has been made in para 14 of the petition that refusal of the allotted symbol of the party to the petitioner has materially affected the result of the election. It has been alleged that the refusal to allot the said symbol amounts to non-compliance of the provision of S. 100(d) (iv) of the Representation of the people Act, and as such the election of the respondent No. 2 is liable to be declared void. According to petitioner due to fighting of election as an independent candidate with a free symbol unknown to the party workers, petitioner was deprived of the votes legitimately due to him and has also caused prejudiced.