Bombay High Court
Hitendra Ramesh Deshmukh And ... vs The Returning Officer Jalgaon And ... on 17 November, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11228 OF 2016
Hitendra Ramesh Deshmukh and Others ..PETITIONERS
VERSUS
The Returning Officer and Others ..RESPONDENTS
....
Mr. A.B. Kale, Advocate for petitioners.
Mr. R.B. Bagul, A.G.P. for State.
Mr. S.T. Shelke, Advocate for Respondent No.1.
ig ....
CORAM : T.V. NALAWADE, J.
DATED : 17th NOVEMBER, 2016
ORDER :
1. The petition is filed to challenge the order made by the
Returning Officer for the election of Municipal Council, Chopda, District
Jalgaon. Both sides are heard.
2. The petitioner had prayed for giving common symbol to the
candidates of their registered political party and they had requested for
giving 'Road Roller' as symbol to all candidates of the registered political
party. They have registered their political party under the name as
'Shahar Vikas Aghadi, Chopda' and it was registered in the year 2007.
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The Returning Officer has rejected the application by holding that
Annexures I and II which were required to be supplied before 04.00 p.m.
of 29th October, 2016 i.e. the time given for filing the nomination form
were not supplied and so common symbol cannot be given to the
petitioners.
3. Learned Counsel of both sides took this Court through various
provisions of Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Election Rules, 1966 and Maharashtra Election
Symbols ( Reservation and Allotment ) Order, 2009. Learned Counsel for
Returning Officer placed reliance on the Rules as amended in the year
2009.
4. The Rules as amended by Order of 2009 by the State Election
Commission, Maharashtra show that separate provisions are made for
allotment of symbols to recognised political party, to registered political
party and to independent candidates. Rule 8 runs as under:-
"8. Choice of symbols by candidates of registered
political parties or other candidates and allotment thereof.-
(1) Any candidate at an election to local bodies in the
State other than a candidate set up by recognised political
party shall choose and shall be allotted in accordance with
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the provisions hereinafter set out in this paragraph one of
the symbols specified as free symbols by the Commission.
(2) Where any free symbol has been chosed by only
one candidate at such election, the returning officer/election
officer shall allot that symbol to that candidate and to no
one else.
(3) Where the same free symbol has been chosen by
several candidates at such election, then, if of those several
candidates only one is a candidate set up by registered
political party, and all the rest are independent candidates,
the returning officer shall allot that free symbol to the
candidate set up by the registered political party and to no
one else, and if of those several candidates two or more are
set up by different registered political parties and the rest are
independent candidates, the returning officer shall decide by
lot to which of the two or more candidates set up by the
different registered political parties that free symbol shall be
allotted and allot that symbol to the candidate on whom the
lot falls and to no one else."
5. Rule 9 of the same order gives the procedure for getting
allotment of symbol as provided under Rule 8(3) and it runs as under:-
"9. When a candidate shall be deemed to be set up
by a registered 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,-
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(1) the candidate has made a declaration to that
effect in his nomination paper;
(2)(a) a notice in writing to that effect has been
delivered to the Returning Officer of the constituency and the
concerned Collector or Municipal Commissioner, as the case
may be-
(i) the political party setting up
candidate at any election to Zilla Parishad shall
communicate the names of the authorised persons in Form
II-A prescribed under rule 15A of the Maharashtra Zilla
Parishads (Electoral Divisions and Conduct of Election)
Rules, 1962. Such authorised persons shall give notice of
intimation of names of candidates in Form II-B of the said
rules;
(ii) the political party setting up
candidate at any election to Panchayat Samiti shall
communicate the names of the authorised persons in Form
II-A prescribed under rule 15A of the Maharashtra
Panchayat Samities (Electoral Colleges and Conduct of
Election) Rules, 1962. Such authorised persons shall give
notice of intimation of names of candidates in Form II-B of
the said rules;
(iii) such notice and communication shall
be sent to the Municipal Commissioner or, as the case may
be, the Collector for the purpose of elections to the Municipal
Corporations, Municipal Councils and Nagar Panchayats in
the form prescribed in Annexure - I and Annexure - II
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respectively.
(b) The said notice shall be signed in ink pen or ball
point pen by the President, Secretary or any other officer
who is authorised by the party to send such notice. A notice
signed on behalf of the President, Secretary or the authorised
person, or bearing a counter signature, or rubber stamp
signature or signed in any other manner, or a notice sent by
fax, shall not be permissible. A notice, which is not so
permissible, shall not be accepted by the Collector or the
Returning Officer."
6. The aforesaid rule shows that candidate shall be deemed to be
set up by the political party ( registered political party ) if and only if
intimation as provided above to that effect has been delivered to the
Returning Officer of the constituency and the concerned Collector or
Municipal Commissioner as the case may be as required in Rule 9(2)(a)
(iii).
7. Annexure I is applicable to national parties, state parties and
registered unrecognised political parties and Annexure II is applicable to
other political parties. Learned Counsel for petitioner submitted that the
term political party is not defined in Order of 2009 and so supply of
Annexure II before the time fixed for filing nomination form cannot be
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asked from present registered political party. He submitted that
definitions of recognised political party and registered political party are
only given in Order of 2009, but Annexure II is in respect of political party
and so annexures cannot be used against the petitioner. This submission
is not at all acceptable. If Annexure I and II are read together, the only
inference possible is that to other political party, which is not included in
Annexure I, Annexure II is applicable.
8.
Admittedly, the petitioners had not given the list of candidates
as required in Annexure II to the authorities mentioned in Annexure II. In
view of this circumstance, this Court holds that it is not possible to
interfere in the order made by the Returning Officer.
9. Learned Counsel for petitioner submitted that the Rules which
were in existence at the time of registration of political party of the
petitioners, need to be used and parent rules like Rules of 1966 and Rules
of 2004 can be used. He submitted that in the Rules of 2004 definitions
of all three like political party, registered political party and recognised
political party were given but there is no such clarification in Order of
2009. This submission is not at all acceptable. A political party comes
into existence even before registration but for getting rights like getting
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common symbol, the party needs to be registered and so the definition of
registered political party is given in Order of 2009.
10. Thus it is not possible to interfere in the order made by the
Returning Officer. In the result, petition stands dismissed.
( T.V. NALAWADE, J. )
SSD
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