The High Court dismissed a writ petition challenging the allotment of an independent symbol to a contestant after his sponsoring party withdrew its nomination on the last permissible date to favor an alliance candidate.
Notice discharged; the petitioner is permitted to contest the election on the allotted symbol 'KITE'.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
Writ Petition No.513/2012 Vilas Dadarao Kamble Vs. The Returning Officer, Z.P. and Panchayat Samiti, Wardha.
----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders.
Mr. F. T. Mirza, Adv. for the petitioner. Mr. N. W. Sambre, Government Pleader for respondent no.1.
CORAM : P. B.MAJMUDAR & P. B. VARALE, JJ. DATE : 2nd FEBRUARY, 2012.
1] Heard Mr. Mirza, learned counsel for the petitioner and Mr. Sambre, learned Government Pleader for respondent no.1.
2] This is absolutely misconceived petition filed by the petitioner, who has submitted his nomination paper for contesting the Zilla Parishad Elections. The Returning Officer has allotted a symbol “KITE” to the petitioner in the light of his choice for contesting the election.
3] It is the case of the petitioner that since he was a sponsored candidate by the Indian National Congress Party, he should have been given a symbol “Hand” which is a symbol allotted to the candidate contesting the election as candidate of the said Indian National Congress Party. The competent person on behalf of the sponsoring political
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party, who is authorized to issue Form 2B, has informed the Returning Officer that the Indian National Congress Party had initially given permission to the petitioner to contest the election as its candidate but subsequently, it has decided to offer the said constituency to the alliance party, meaning thereby the said Indian National Congress Party has not given candidature to the petitioner to contest the election on its symbol. Therefore, the Returning Officer has accepted the nomination of the petitioner and allotted the symbol “KITE”. Thus, the petitioner is required to contest the election on that symbol. Being aggrieved by the decision of the Returning Officer, the petitioner is before this Court.
4] Mr. Mirza, learned counsel for the petitioner, has vehemently argued that the Returning Officer has no right to ignore the candidature of the petitioner, as he belongs to the Indian National Congress Party. It is submitted by Mr. Mirza that the information about authorized candidature is to be given in Form 2B. It is further submitted that the Returning Officer had no authority to change the symbol of the petitioner. Thus, it is submitted by Mr. Mirza that the Returning Officer be directed to allot a symbol “Hand” to the petitioner.
5] Mr. Sambre, learned Government Pleader, submits that the last date of withdrawal of nomination is 30th January, 2012 and on that date, on behalf of the Maharashtra State Congress Committee, a letter was given to the Returning Officer, pointing out that since the
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Congress Party has decided to give the seat to the alliance party, the petitioner's candidature as a party candidate may not be accepted and it be rejected. A copy of the said letter was shown to the learned counsel for the petitioner.
6] Learned counsel for the petitioner has, however, argued that as per the order dated 31st March, 2009 passed by the State Election Commission, Maharashtra, a candidate set up by a recognised National Party at any election to the local bodies in the State shall choose, and shall be allotted, the symbol reserved for that party by the Election Commission of India and no other symbol.
7] The point raised by Mr. Mirza is devoid of merit. It is required to be noted that initially the Indian National Congress Party has allowed the petitioner to contest the election in question as its party candidate, but subsequently, it has decided to give the seat in favour of the alliance party. At this stage, a reference is also required to Clause 11 of the Order dated 31st March, 2009, which provides that the State Election Commission may issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of any such provision of the Order or even in relation to any matter with respect to the reservation and allotment of the symbols to the recognized political parties, for which this Order makes no provision or makes insufficient provision, and the provision, in the opinion of the Commission, is necessary for smooth and orderly conduct of elections.
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8] In our view, before last date of withdrawal of nomination, a party through which the candidate is contesting the election can always take a particular stand of cancelling the candidature of its candidate not to contest the election on its symbol. There is nothing in the Election Rules, which prohibit any party even to withdraw the sponsorship in favour of a particular candidate before the last date of withdrawal of nomination form. Simply because, initially the Party has decided to field the petitioner as its candidate in the election and has given Form 2B in his favour to the Returning Officer, it cannot be taken as a basis and the Party, even before the last date for withdrawal of the nomination paper, can withdraw the sponsorship of its candidate and there is nothing in law which suggests that the party cannot withdraw Form 2B before the last date for withdrawal of the nomination paper. In a given case, a Party may nominate 2-3 candidates, in which one may be a candidate of the party and the rest may be dummy candidates, but ultimately on or before the last date of filing of nomination paper, the Party may ask the other candidates to withdraw their nomination papers. It is surprising that though the Party has decided not to contest the particular seat, yet the petitioner wants to contest the election on the symbol of the Party. On the last date for withdrawal of nomination paper, the Party had intimated the Returning Officer not to consider the form of the petitioner as its candidate and since the Returning Officer has already allotted the symbol “KITE” the petitioner is permitted to contest the election on the said symbol of his choice.
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9] Considering the aforesaid aspect, we do not find any substance in the petition. The Returning Officer has not committed any error by not allotting the symbol “Hand” and that symbol has to be allotted only to the sponsored candidate of the Indian National Congress Party.
10] At the beginning of hearing of this petition, the Court has suggested Mr. Mirza, the counsel for the petitioner, to take out appropriate proceedings after the election is over, but he has submitted that he would like to argue the matter on merits and this Court can examine the merits of the petition. We have examined the merits of the petition. In view of the decision of the Supreme Court in the case of Election Commission of India Vs. Ashok Kumar and others ((2000) 8 SCC 216 wherein it is held that petition under Article 226 of the Constitution of India is maintainable even when a election programme is notified.
11] Considering the case on merits, we do not find any substance in the petition in any manner. The petitioner has already allotted a symbol “KITE” and his nomination is not rejected and he can contest the election on the same symbol. Learned Government Pleader argued that the Party had initially sponsored the petitioner as its candidate and on the last date for withdrawal of the nomination paper, it has decided not to contest the election, as the seat is given to the alliance party. But still the petitioner is fighting the petition and wants to contest the election on the symbol of the Congress Party, viz. “Hand”.
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12] In view of the above observations, we are of the opinion that the petition is absolutely misconceived and the same is accordingly dismissed. Notice is discharged.
JUDGE JUDGE
Ambulkar
2 issues framed by the court
Whether a candidate sponsored by a political party but whose candidature is withdrawn by the party before the last date for withdrawal of nomination can be allotted the party's symbol.
Whether the Returning Officer was justified in allotting an independent symbol instead of the party symbol after the party decided to offer the seat to an alliance partner.
Colour shows how this judgement treated each authority
Election Commission of India Vs. Ashok Kumar and othersReferred¶27
Election Commission of India Vs. Ashok Kumar and others ((2000) 8 SCC 216 · Who else cites this
Vilas Dadarao Kamble
The Returning Officer, Z.P. and Panchayat Samiti, Wardha
P. B. Majmudar
P. B. Varale
As recorded by the court registry
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