S.C. Mathur, J.@mdashBoth these petitions are directed against the order dated 1971989 whereby the Returning Officer for elections of Nagar Mahapalika, Lucknow has cancelled the symbol of tractor with farmer allotted to the petitioners who are candidates for the office of member from two different constituencies.
2. Notification for holding the election was issued by the State Government on 871989 which mentions the schedule for the various steps in the election. 1371989 was the date for filing nomination and 1571989 was the date for scrutiny of nominations. The last date for withdrawal of condidature was 1871989. 3071989 is the date for poll if necessitated.
3. There is no dispute that the petitioners filed their nomination papers and sought allotment of the symbol of tractor and farmer. This symbol was allotted to them. At the time of scrutiny of their nomination papers, no error was detected. Thereafter on 1971989, the impugned order was passed in which it was stated that the symbol allotted had not been notified and, therefore, choice in respect thereof could not have been given and the allotment of the said symbol is also illegal. It is on this basis that the symbol allotted to the two petitioners has been cancelled. The cancellation has been assailed by the learned counsel for the petitioner as being without jurisdiction, arbitrary and contrary to law.
4. The learned Chief Standing Counsel has opposed the admission of the writ petitions and has submitted that the symbol for which choice had been given by the two petitioners was not a notified symbol and, therefore, choice thereof could not be given. The submission is that the choice given by the petitioners was itself contrary to law and, therefore, it became obligatory for the Returning Officer to correct the error. He has not disputed the fact that earlier the symbol of tractor with farmer proposed by the two petitioners had been accepted by the Returning Officer.
5. Section 45 of the U.P. Nagar Mahapalika Adhiniyam, 1959 deals with supervision and conduct of Mahapalika elections. Section 46 provides that the State Government may by order, provide for matters concerning conduct of elections to the offices of Nagar Pramukh and Up Nagar Pramukh and to the seats of Sabhasads. Thereafter it enumerates in clauses (a) to (s) the matters in respect of which the State Government may issue orders. Clause (t) gives general power to issue order in respect of all matters relating to conduct of elections. This is the clause with has been relied upon by the learned counsel for the State in support of the Government Order entitled ''the Uttar Pradesh Nagar Mahapalika (Sabhasadon Ke Nirvachan Ka Sanchalan) Agya, 1965.''
6. Paragraph 18 of this order provides that the Sanchalak shall as soon as may be after the commencement of the order by notification in the official gazette publish a list of symbols and may in like manner add to or vary such list. The learned Chief Standing Counsel has placed before us the orders issued by the Sanchalak under this clause. The first order is dated 24111988 which enumerates 60 symbols which may validly give choice of by a candidate. Admittedly, the symbol of tractor with farmer is not covered by any of the 60 symbols enumerated in this order. This order was amended by orders dated 6121988 and 24121988 and more symbols were added to the list of symbols but it is admitted that symbol of tractor with farmer was not notified by any of the orders issued by the Sanchalak.
7. The order issued by the Sanchalak in exercise of the powers conferred under paragraph 18 of the order referred to above is a statutory order and its compliance is obligatory. Neither the petitioner can act in violation of it nor the Returning Officer. If in violation of the order, the Returning Officer allots a symbol and the candidate contests the election on that symbol and thereafter his election is challenged through an Election petition, there will hardly be any defence available to him. As such, we are of the opinion that the Returning Officer did comit an initial error in accepting the petitioners'' choice in respect of �Tractor with farmer� but since his order was invalid, he has acted correctly in amending the same.
8. The thrust of the argument of the learned counsel for the petitioners was that having accepted the symbol proposed by the petitioners, the Returning Officer was estopped from cancelling his earlier order. There can be no estoppel against law and, therefore, the Returning Officer cannot be said to be estopped from correcting his order which was patently illegal.
9. The scheme of the provisions of paras 18, 19 and 25 shows that the Returning Officer has power to allot to a candidate, one of the symbols specified in the list of symbols notified by the Sanchalak and has no power to allot a symbol arbitrarily. The allotment of a symbol not specified in the list would be arbitrary, because in that case the Returning Officer would be guided by nothing except his own sweet will and pleasure and the provisions of para 18 would also be rendered redundant. Therefore, it is clearly envisaged by law that only that symbol can be allotted to a candidate, which is specified in the list of symbols notified by the Sanchalak under para 18.
10. Much stress was laid by the learned counsel for the petitioners on the fact that considerable amount has been spent by the petitioners in getting the publicity material published and prepared. We can only sympathise with the petitioners at this stage but on this account, we cannot revive through a writ under Article 226 of the Constitution an order which was patently illegal.
11. In his written arguments Sri S.S. Chauhan, counsel in one of the petitions, has submitted that the petitioner cannot be made to suffer on account of the mistake of the Returning Officer. It cannot be gainsaid that before allotting symbol the Returning Officer should have scrutinised that the proposed symbol was a notified one. But thereby the petitioner cannot absolve himself from blame. It was equally his duty also to give choice of only such symbol as had been notified. If the petitioner did not care to find out the notified symbol he did not act in a prudent manner.
12. The same petitioner''s other counsel Sri R.N. Gupta went to the extent of submitting that �Tractor with Farmer� had been mentioned as a symbol in the notice displayed on the Notice Board of the Returning Officer''s office. There is no assertion to this effect in the writ petition. The argument of Sri Gupta is accordingly rejected.
13. Sri S. R. Dwivedi, learned counsel for the petitioner Chhotey Lal submitted that in alloting symbol to the petitioner, the Returning Officer exercised a quasi judicial power and, therefore, the acceptance of petitioner''s symbol cannot be cancelled without giving the petitioner opportunity of hearing. It is not necessary to go into the controversy whether the exercise of power was administrative or judicial because we are of the opinion that by the impugned order, a patent illegality has been cured.
14. We can see the force in the argument of the petitioners that the finality attached to the allotment of symbols under para 25 should bind the Returning Officer also. If it is conceded that the Returning Officer is free to change the allotment of symbols made by him, it may interfere with the fair 4. conduct of election. But at the same time on the pretext of finality, an illegality committed by the Returning Officer cannot be allowed to be perpetuated. So, the provisions of para 25 have to be construed in a reasonable manner. We, accordingly, hold that the Returning Officer has power to correct an error committed by him so as to give effect to the provisions of law in the matter of allotment of symbols. The power is, of course, to be exercised by him at such time and in such manner according to the circumstances of the case that there is no arbitrary exercise of power or abuse of power.
15. In this case the symbol was allotted on 18789 and the change was made the very next day on 19789. We do not think that in the circumstances of this case, there is any justification for interfering with the impugned order of the Returning Officer.
16. Learned counsel for the petitioner Sri S.R. Dwivedi placed reliance upon the observation made by their Lordships in paragraph 15 of AIR 1954 SC 510 Ratan Amol Singh Vs. Chaudhari Atma Ram. This authority has no application on the facts of the present case.
17. Sri Chauhan has also pressed for monetary compensation. The first hurdle in the claim is that the Returning Officer was exercising sovereign state power. The second is that there is no claim for it in the writ petition. In other words, this submission is also beyond pleadings as the submission of Sri R.N. Gupta. The third is that the amount of compensation has not been disclosed either in the petition or in the written arguments. The fourth is that the foundation for the mistake was laid by the petitioner himself. For all these reasons the claim for monetary compensation cannot be entertained.
18. Sri Chauhan invokes Article 14 and presses that if petitioner''s symbol is to be changed, symbols of other candidates should also be changed. There is no parity between the petitioner and other candidates. The other candidates did not give choice for an unnotified symbol.
19. In view of the above, the petitions are dismissed in limine.
