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Eknath Shankar Lonkar Vs. Gorakh Krishna Patil - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 280 of 1962
Judge
Reported in(1964)66BOMLR584; 1964MhLJ691
AppellantEknath Shankar Lonkar
RespondentGorakh Krishna Patil
DispositionPetition allowed
Excerpt:
.....voters, illiterate or literate, and which in turn had materially affected the result of the election, then an arguable case may have been made out by the defeated candidates. but no evidence was led on any of these matters and when they preferred to rest their case in a somewhat speculative arena, it is difficult to uphold the finding of the learned judge that the election was bad because rules 16 and 17 were not, according to his interpretation, complied with. we must, therefore, hold that in this case the respondents have failed to show either that there was a material irregularity in the assignment of symbols or that the manner in which the symbols have been assigned has in any manner affected the result of the election......them provided they were different from symbols assigned to candidates of the opposing group. the learned judge has considered the effect of assignment of similar symbols in paragraph 10 of his order. according to him, perusal of rules 16 and 17 made it clear that each candidate was to be allotted a distinguishing symbol and symbols are allotted for distinguishing between different candidates. thereafter the learned judge observes as follows:most of the voters being illiterate they are bound to vote by looking to symbols allotted to the candidates. if distinguishing symbols are not allotted the voters will not be able to distinguish as to which of the particular symbol is allotted to which of the particular candidate.... for this purpose distinguishing symbols are to be allotted to each.....
Judgment:

Abhyankar, J.

1. This is a petition under Article 227 of the Constitution, by which the petitioners, who were originally returned as elected members in a Gram Panchayat election, have challenged the order of the Election Tribunal under the Bombay Village Panchayats Act declaring their election to be invalid.

2. Petitioners Nos. 1 and 2 were candidates for election to two general seats in ward No. 1 in elections held for constitution of a Panchayat for village Shegaon Buzruk. Respondents Nos. 2 to 6 were also candidates for the same seats. In all three seats were to be filled, two general seats and one reserved. Respondents Nos. 1 and 7 contested the election to the reserved seat as also petitioner No. 3 Doma. All the three petitioners were declared elected to the respective seats for which they contested at a poll held on January 10, 1961. The results were declared on January 11, 1961. Thereafter respondents Nos. 1 to 3 filed election petition No. 10 of 1961 and respondent No. 5 filed election petition No. 12 of 1961 before the Tribunal constituted under Section 15 of the Bombay Village Panchayats Act, challenging the election of the present petitioners on various grounds. These petitions were filed on January 27, 1961. Though the petitioners' election was challenged on various grounds, the only ground on which the respondents succeeded before the Election Tribunal was that the election was vitiated because of the Election Officer allotting identical symbols to several candidates and not allotting separate and distinguishing symbol to each of the contesting candidates. The petitions were resisted in the lower Court by the present petitioners on several grounds, amongst which was raised a ground of limitation. The Tribunal held that the petitions could not be said to have been filed beyond limitation.

3. As the election was declared invalid, the present petitioners have challenged that order in this application. They also challenged the order of the Election Tribunal on the ground that the original election petitions were themselves barred by time. Under Section 15(1) of the Bombay Village Panchayats Act the validity of election of a member of a Panchayat can be brought into question by any person duly qualified to vote at election by making an application to the Civil judge, Senior Division, at any time, 'within 15 days after the date of declaration of the result of the election'. In this case the result of the election was declared on January 11, 1961, and the petitions challenging the validity of the elections were filed on January 27, 1961. It is, therefore, contended that the applications were filed one day beyond limitation and should not have been entertained. It is an admitted position that January 26, 1961, was a public holiday on which Courts and offices were closed, and no application could have been filed on that date. According to the petitioners, however, the limitation of time fixed by the phrase 'at any time within 15 days after the date of the declaration of result' means not on the 15th day but one day short of 15th day. It is not possible for us to accept this contention. When a thing is required to be done within a particular time, it can certainly be done either up to or on the last date ending the period. Applying this principle, an application required to be filed within 15 days of the declaration of result could be filed within 15 days of January 11, 1961. In other words, the applications could have been filed on or before January 26, 1961. As January 26 was a holiday the petitioners were entitled to file it on the next opening day i.e. on January 27, 1961. In view of this position, this objection does not survive and must be rejected.

4. But the crucial question that falls for consideration in this case is whether the view taken by the Tribunal as regards the provisions of Rules 16 and 17 of the Election Rules under the Bombay Village Panchayats Act have been followed by allotment of identical symbols to more than one candidate, and further, whether even if there is an infraction of these rules it could be said that the whole election was liable to be set aside only on that account.

5. Provision has been made in the Bombay Village Panchayats Election Rules for allotment of symbols in Rules 16 and 17, to be found at p. 18 of the revised volume of the Compilation of Rules under the Bombay Village Panchayats Act, which are as follows:

16. Assignment of symbols.-(1) In the case of every contested election, the Returning Officer shall assign to each candidate any one of the following symbols, namely:

(1) Flower (11) Fish(2) Bullock (12) Bicycle(3) Sword (13) Man(4) Two leaves (14) Moon(5) Scale (15) Sun(6) Hand (16) Tiger(7) Lion (17) Umbrella(8) Horse (18) Motor Car(9) Snake (19) Dog(10) Bird (20) Ship.(2) If the list of symbols in Sub-rule (1) is exhausted, the Returning Officer may in his discretion allot to the candidate or candidates concerned any symbol other than those specified in the list.

17. Form of voting paper.-The voting paper shall be printed in Form 'B' appended to those rules and shall contain the names of all the candidates in alphabetical order, together with the distinguishing symbol assigned to each candidate by the Returning Officer under Rule 16:

Provided that the names of candidates declared by the Returning Officer to be elected under Rule 15 shall not be entered in the voting paper.

It will be seen that under Rule 16(1) it is the duty of the Returning Officer to assign to each candidate any one of the enumerated symbols. As many as 20 symbols are indicated in that sub-rule, but further power is given to the Returning Officer to allot any other symbols if all these symbols are exhausted. Then follows Rule 17 which prescribes the form for the voting paper given by way of appendage, and that rule requires that the voting paper shall contain the names of all the candidates in alphabetical order together with distinguishing symbol assigned to each candidate by the Returning Officer under Rule 16.

6. A bare scrutiny of the rules will show that the rules do not require that the same symbol may not be given to more than one candidate, though in practice it may be a desirable thing. It is also unlikely that candidates contesting elections independently may agree to have a symbol already allotted or selected by another candidate. So far as distribution of symbols in the instant election is concerned it is an admitted position that all the candidates, namely, the petitioners as well as the respondents, agreed to assignment of identical symbols to candidates of their own party. In other words, it appears that the elections were fought on party basis, or at least on group basis, and candidates though contesting for more than one seat in the ward agreed to have the same symbols assigned to them provided they were different from symbols assigned to candidates of the opposing group. The learned Judge has considered the effect of assignment of similar symbols in paragraph 10 of his order. According to him, perusal of Rules 16 and 17 made it clear that each candidate was to be allotted a distinguishing symbol and symbols are allotted for distinguishing between different candidates. Thereafter the learned Judge observes as follows:

Most of the voters being illiterate they are bound to vote by looking to symbols allotted to the candidates. If distinguishing symbols are not allotted the voters will not be able to distinguish as to which of the particular symbol is allotted to which of the particular candidate.... For this purpose distinguishing symbols are to be allotted to each of the candidates. In my view the Returning Officer has committed an illegality in allotting one symbol to more than one candidate. As stated by me above, the voters are bound to be confused and the election is bound to be materially affected.

7. Now, the petitioners challenge this finding of the learned Civil Judge, principally on the ground that there is no evidence whatever either that the majority of voters in this ward were illiterate or that any of them was in fact confused. The petitioners also challenge the interpretation put by the learned Judge on the requirement regarding assignment of symbols under Rules 16 and 17 which deal with them. The learned Counsel for the petitioner has contended that neither of these rules in terms require that a separate symbol shall be allotted to each candidate. So far as the mention in Rule 17 of distinguishing symbols is concerned, it is contended that Rule 17 requires the printing or denoting of the distinguishing symbol assigned to each candidate against his name, and not that each symbol will be distinguishable from other symbols given to other candidates. In this context, according to the petitioners, the words 'distinguishing symbol' means a symbol which distinguishes the particular candidate.

8. After hearing both parties, it is not possible to accept the view taken by the learned Civil Judge as to the requirements of Rules 16 and 17 that a separate symbol must he given in all cases to each contesting candidate. We have put it to the learned Counsel appearing for the respondents in support of the order, whether it is not possible in a multi-member constituency for candidates set up by the same party or group to ask for and to be allotted same symbols. In fact, wherever elections are held in a multi-member constituency and are contested by persons belonging to identical groups or parties, it is usual to find allotment of identical symbols to candidates of a particular party, whatever be the number of seats for which the party may have put up candidates in the constituency. Thus, there is nothing inherently wrong in allotment of identical symbols to different candidates provided they agree and the elections are fought on party or group basis. In a sense, it may facilitate the work of electioneering of the candidates if the same symbol is obtained for the candidate of a particular party or group.

9. Even assuming, however, that Rule 17 requires that distinguishing symbols in the sense two separate symbols ought to have been assigned to each contesting candidate at this election for three seats, we fail to see what confusion could possibly arise so far as the voting by and subscribing to the ballot paper in the case of reserved seat is concerned. There are only three candidates for this seat and a separate ballot paper was admittedly issued for voting for each seat. In the return filed by the respondents, they have shown in para. 11 that separate symbols were allotted to the three candidates for the reserved seat, namely, Gorakh, Warlu and Doma, who were given the symbols of tree, man and bullock. Thus, so far as any possibility of alleged confusion that could at all be said to arise on account of the identical symbols being printed after assignment of a ballot paper is concerned, that contingency could never arise in the case of an election of a candidate to the reserved seat for which a separate ballot paper was given. We must, therefore, hold that the learned Judge was not entitled to set aside the election of petitioner No. 3 Doma in any case, who was returned to the reserved seat in this constituency on the ground of alleged possibility of confusion among the illiterate voters. The decision of the learned Judge to that extent is liable to be set aside.

10. As regards the election to the two general seats also there is absolutely no evidence either that the majority of voters were illiterate-a fact which seems to have been assumed by the learned Judge-or that in fact any of them were confused in the matter of casting their ballot because of identity of symbols in the ballot paper in respect of more than one candidate. The observation of the learned Judge that most of the voters were illiterate is a mere assumption for which we have not been shown any pleading, much less any proof. In fact, no evidence was led so far as this aspect of the case is concerned, by either parties. It was not, therefore, possible to proceed to decide this issue on the footing that most of the voters were illiterate; probably because the election was held for two seats in a ward in the village the learned Judge might have assumed that most of the voters were illiterate. There is no evidence on record justifying such a conclusion.

11. The further weakness in the finding of the learned Judge is in his observation that the illiterate voters were either bound to be confused or were in fact confused in making use of the ballot paper containing identical symbols for more than one candidate. Merely because there was a possibility of some one being misled in casting vote, that cannot ipso facto lead to an inference that the result of the election has been vitiated or materially affected by an irregularity. Under the terms of Section 15, which indicate the circumstances in which an election may be challenged, violation of the observation of Rules 16 and 17 of the Election Rules is not stated to be one of the grounds which would vitiate election, and in the nature of things, this was not likely to be so provided. At the most, allotment of identical symbols would amount to an irregularity of procedure committed by the Election Officer. Normally, in all cases of irregularity of procedure anyone who challenges the result of an election has to show that the alleged irregularity, or even an illegality, has materially affected the result of the election. In this case no evidence of any kind was led to show the total number of voters in this ward, or the number of votes polled by each candidate. Nor is there any evidence to show whether in fact any one was at all misled on account of the same symbol being allotted to more than one contesting candidate for the general seat. It is interesting to note in this connection that the respondents themselves had agreed to have identical symbols for their own candidates, which obviously showed that the elections were fought on a group or party basis. It could not be predicated, therefore, that allotment of identical symbols to candidates of the same party was per se illegal or improper. If this method of assignment of symbols was shown to have resulted in confusion in the minds of voters, illiterate or literate, and which in turn had materially affected the result of the election, then an arguable case may have been made out by the defeated candidates. But no evidence was led on any of these matters and when they preferred to rest their case in a somewhat speculative arena, it is difficult to uphold the finding of the learned Judge that the election was bad because Rules 16 and 17 were not, according to his interpretation, complied with. Unless non-compliance with these rules could demonstrably be shown to have affected the result of the election which records the verdict of the electorate, the election cannot be lightly interfered with. We must, therefore, hold that in this case the respondents have failed to show either that there was a material irregularity in the assignment of symbols or that the manner in which the symbols have been assigned has in any manner affected the result of the election.

12. Thus, the result is that the petition is allowed. The order of the Civil Judge, dated July 12, 1962, is set aside. The petitioners will be entitled to their costs throughout. Though two applications were filed before the Civil Judge a single order is passed and that will govern the decision in both these cases.


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