(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1.0 The matter was mentioned yesterday i.e. 9th April 2012 for urgent circulation. The permission was granted. The matter is listed today for 'Admission Hearing' at serial No. 1.
2.0 The matter was again mentioned today for priority. The matter is taken up for hearing.
3.0 Heard learned advocate Ms. Dimple A. Thaker for the petitioners. The learned advocate for the petitioners vehemently submitted that the election authority has failed to follow Sub-rule (3) of Rule 11 of the Gujarat Panchayats Election Rules, 1994 (hereinafter referred to as 'the said Rules'), which provides for 'Symbols of election in the electoral divisions'. Sub-rule (1) of Rule 11 reads as under:
"(1) The Election Commission shall by notification in the Official Gazette specify the symbols that may be chosen by candidates at election in the electoral divisions and the restrictions to which such choice shall be subject." (emphasis supplied) 3.1 Sub-rule (3) of Rule 11 reads as under:
"(3) At all elections where a poll becomes necessary, returning office shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall subject to any general or special directions issued by the Election Commission on this behalf.
(a) allot a different symbols to each contesting candidate in confirmity, as as as practicable with his/her choice, and
(b) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot, to which of such candidates the symbol shall be allotted...
3.2 The learned advocate for the petitioners also invited attention of the Court to Rule 18 of the said Rules, which pertains to 'List of contesting candidates and their symbols', wherein also Sub-rule (3) reads as under:
"(3) If more than one candidates show their preference for one and the same symbol, the Returning Officer shall decide by lot to which of those candidates the symbols shall be assigned. The decision of the returning officer in assigning any symbol to a candidate under this sub rule shall be final..."
3.3 The learned advocate for the petitioners also invited attention of the Court to Annexure 'B', wherein, the list of the candidates and the symbol allotted to various candidates are annexed. Page 10 of Annexure 'B' is the list of the candidates contesting for the post of 'Sarpanch', whereas, the other lists are of the candidates, who are contesting from different Wards for being Member.
3.4 The submission of the learned advocate for the petitioners is that, the authority has allotted same symbol to a candidate, who is contesting for the post of 'Sarpanch' and also to a candidate, who is contesting for being 'Member' of a Panchayat. The learned advocate for the petitioners submitted that this is likely to cause confusion in the mind of a voter, who is not literate enough to differentiate in two sets of EVM, which will be placed at the same place as to which machine is meant for electing 'Sarpanch' and which machine is meant for electing 'Member'. The learned advocate submitted that it may happen that going by a symbol, he may vote for 'Sarpanch' candidate, who may be having the same symbol and he may vote for a 'Member', who may be having same symbol. The learned advocate for the petitioners submitted that, a letter was addressed to the authority on 28th March 2012 requesting that the same symbol be not allotted to the candidates contesting for the post of 'Sarpanch' and candidates contesting for the post of 'Member' in different Wards. The authority has not paid any heed to that request and has allotted same symbols to the candidates contesting for the post of 'Sarpanch' and also for being 'Member'. The learned advocate for the petitioners invited attention of the Court to name at serial No. 3 in the list of candidates of 'Sarpanch', who is allotted symbol of 'Kite' (Patang); similarly, the candidate at serial No. 7, who is allotted symbol of 'Cup-saucer' (Kap Rakabi). The candidates in Ward No. 1 are also allotted the same symbol of 'Kite' (Patang) and 'Cup-saucer' (Kap Rakabi). Incidentally, these two symbols seem to be very popular in the candidates and therefore, almost in every Ward, either both or at least one of these symbol is allotted by the authority to the candidates.
3.5 The learned advocate for the petitioners could not point out any provision which prohibits allotting same symbol in different ' electoral divisions'.
4.0 There cannot be any doubt, that when a candidate contests for the post of 'Sarpanch', it constitutes one 'electoral division' and when a candidate is contesting for being 'Member' of a Panchayat, it constitutes another 'electoral division'. That being so, the authority has not committed any error in allotting the same symbol to different candidates for different 'electoral divisions'.
4.1 The action of the authority is not found to be contrary to law and therefore, it does not warrant an interference at the hands of this Court.
4.2 However, at the request of the learned advocate for the petitioners, learned advocate Ms. Reeta Chandarana, appearing for respondent Nos. 2, 3 and 4 to convey to the authorities to make necessary arrangement to make it known to the voters as to which EVM machine is meant for electing the 'Sarpanch' and which EVM machine is meant for electing the 'Member' of the panchayat.
4.3 Once that is done, the interest of justice will stand served. The petition is dismissed with no order as to costs.
[ Ravi R. Tripathi, J. ] [ G. B. Shah, J. ] hiren Top