@JUDGMENTTAG-ORDER
1. As similar questions of law and facts are involved in the above three cases,, they were clubbed and heard together. The learned Counsel for the Petitioner, and learned Counsel for the contesting Respt. (Advocate General for Respt-1, and Counsel for Respt-2) have also filed a joint memo stating that these three cases may be clubbed, heard together, and disposed of by a common order.
2. These are petitions filed under S. 81 of the Representation of the People Act, 1951 (the Act).
3. Sri S. Revanna, petitioner in E.P. No. 29 of 78, calls in question the, election of Sri Ghatti Chandrasekhar, Respt-2, from No. 61 Gubbi Constituency. Respt-3 to 5 Sri Javaregowda, Sri Basavaraj, and Sri Muniappa were the other contested candidates.
4. Sri D.M. Nanjappa the Petitioner in E.P. No. 54 of 1978, has challenged the election of the 2nd Respt, Sri K.H. Ramakrishnaiah, from no. 61 Turuvekere Constituency. Respt-3 and 4, Sriyuthus Byrappaji and K.N.N. Murthy, were, the other contested candidates.
5. Sri M.R. Ramanna, who had contested from No. 62 Tiptur constituency, is challenging the election of the 2nd Respt, Sri V.L. Shivappa. The 3rd Respt, Sri Choudri Shankar was one of the contested candidates.
6. The elections were held in the aforesaid constituencies during the General Assembly Elections held in the Karnataka State in the month of Feb-1978, to constitute a new Legislative Assembly.
7. The 1st Respt. in all the 3 cases was the concerned Returning Officer of the constituency. Sri P. Krishnan was the common Returning Officer to Gubbi and Turuvekere Constituencies. Therefore, by consent of parties Sri. Krishnan was examined in E.P. No. 54 of 1978 as R.W. 1 as a common witness in that case and in E.P. No. 29 of 1978 (vide order sheet dated 17-7-1979 in the said two cases). By consent of parties the evidence given by the Chief Electoral Officer in EP.No. 8 of 1978 was treated as evidence in the above three cases and that evidence was read and recorded in these three cases (vide order sheet dated 5.3.79 in these three cases).
8. The petitioners have been challenging the elections in their respective constituencies only on two grounds namely, (i) that the concerned Returning Officer had improperly accepted the nomination papers of the respective returned candidates; and (ii) there was on his part (on the part of the Returning Officer) noncompliance with the provisions of the Constitution, the Act, Order or rules made under the Act in the matter of allotment of symbol ''Hand'' to the respective returned candidates.
9. The three returned candidates have been elected as candidates sponsored by the political party, the Indian National Congress (I)''and each of them had been allotted the symbol ''Hand''.
10. According to the petitioners the concerned returned candidates had not complied with the provision of S. 33 of the Act and had not supplied the relevant materials in their nomination papers and thereby the said papers had defects of a substantial character and the Returning Officer had erred in accepting the said nomination papers as valid ones. It is also their case that the said candidates were not entitled to the allotment of the symbol ''Hand'' and the concerned Returning Officers had violated the rules while allotting the said symbol to each of them. The averments made in this connection by the petitioners have been denied by the Returning Officers and the returned candidates. In E.Ps. 29 and 57 it was further contended by the returned candidates that the copies of the election petitions served on them were not true copies and therefore the said petitions were liable to the dismissed'' under Sec. 86 of the Act.
11. In view of these rival contentions the following issues were framed in E.Ps. 29, 54 and 57/78:
In E.P. No. 29 of 1978. 1. Was the nomination paper of Sri Gatti Chandrasekhar (respondent-2) improperly accepted by the Returning Officer (respondent-1)? 1(a) If so, has it materially affected the result of the election within the meaning of S. 100(1)(d)(i) of the Act? 2. Was the allotment of the symbol ''Hand'' to Gatti Chandrasekhar (respondent-2) contrary to the provisions of the Election Symbols (Reservation and Allotment) Order, 1968? 2(a) If so, has it materially affected the result of the election within the meaning of S. 100 (1)(d)(iv) of the Act? 3. In the event of the election of Gatti Chandrasekhar (respondent-2) being set aside is the petitioner entitled to be declared as duly ejected, under S. 101 of the Act? 4. Is the copy served upon the respondent-2 not a true copy of the original election petition? and therefore is the election petition liable to be dismissed under Sec. 86 of the Act? 5. What Order?
In E. P. No. 54 of 1978. 1. Was the nomination paper of K.H. Ramakrishnaiah (respondent-2) improperly accepted by the Returning Officer (respondent-1)? 1(a) If so, has it materially affected the result of the election within the meaning of S. 100 (1)(d)(i) of the Act? 2. Was the allotment of the symbol ''Hand'' to Ramakrishnaiah (respondent-2) contrary to the provisions of the Election symbols (Reservation and Allotment) Order, 1968? 2(a) If so, has it materially affected the result of the election within the meaning of S. 100(1)(d) (iv) of the Act? 3. In the event of the election of Ramakrishnaiah (respondent-2) being set aside, is the petitioner (Nanjappa) entitled to be declared as duly elected under S. 101 of the Act? 4 What Order?
In E.P. No. 57 of 1978. 1. Was the nomination paper of Sri V.L. Shivappa (respondent-2) improperly accepted by the Returning Officer (respondent-1)? 1(a) If so, has it materially affected the result of the election within the meaning of S. 100 (1)(d)(i) of the Act? 2. was the allotment of the symbol ''Hand'' to Sri V.L. Shivappa (respondent-2) contrary to the provisions of Election Symbols (Reservation and Allotment.) Order, 1968? 2(a) If so, has it materially affected the result of the election within the meaning of S. 100(1)(d)(iv) of the Act? 3. In the event of the election of Sri V.L. Shivappa (respondent-2) being set aside, is the petitioner entitled to be declared as duly elected under S. 101 of the Act? 4. Is the copy served upon the 2nd respondent not a true copy of the original election petition? And, therefore, is the election petition liable to be dismissed under S. 86 of the Act? 5. What Order?
12. In all these three cases apart from the evidence of the Chief Electoral Officer and the concerned Returning Officer referred to above, the following witnesses have been examined:
In E.P. No. 29 of 1978 1. Shivanandiah P.W. 2. 2. K.C. Basavaraju P.W. 3. 3. Basavalingahi P.W. 4. 4. Channaiah P.W. 5.
In E.P. No. 54 of 1978 1-Basavaraju P.W. 1. 2. Nazir Ahmed P.W. 2. 3. K. Chandraiah P.W. 3. 4 Bore Gowda P.W. 4. 5. T.M. Mahalingaiah P.W. 5. 6. D.M. Nanjappa (Petr) P.W. 7.
In E.P. No. 57 of 1978 1. K.H. Ramakrishnaiah (himself) R.W. 2 2. K.L. Rame Gowda R.W. 3.
In E.P. No. 57 of 1978, apart from the evidence of the Chief Electoral Office and the Returning Officer, no other witness has been examined. Neither has the petitioner examined himself-
13. The non-official witnesses who have been examined by the petitioners in these cases have been examined to show as to how prejudice had been caused to the concerned candidates and how the result of the election in so far as it concerns the returned candidates had been materially affected by the non-compliance on the part of the Returning Officer with the provisions of the Constitution, the Act, the Order and Rules made under the Act in allotting the symbol ''Hand'' to them.
14. As per calender of events issued by the Commission in all these cases, the last Gate for filing nominations was 1.2.1978; the last date for withdrawal of candidatures was 4.2.1978; and the date of poll was 25.2.1978.
5. The concerned 2nd Respt. in the two cases, E.P. Nos. 29 and 57 of 1978, have not let in any evidence to show that the copies of the election petitions served respectively on them were not the true-copies of the original election petition. Therefore, issue No. 4 in both those petitions is held against the respective 2nd respondent.
16. The two questions that arise for our consideration in all these three cases are:
(i) Whether there was improper acceptance of the nomination papers of the returned candidate in each of these cases; and (ii) Was there non-compliance with the provisions of the Constitution, the Act, the Rules or Orders made under the Act in the allotment of the symbol ''hand'' to the concerned returned candidate by the concerned Returning Officer?
16a. Before considering the above questions on merits, a preliminary objection raised by the learned Counsel for the 2nd respondent in all these cases, as to the maintainability of these petitions on the ground that the same were barred by time, is required to be dealt with. There is no plea in any of these three cases that the petition was barred by time, and therefore no issue has been raised. Consequently no evidence has been let in on this question. It was for the first time in his arguments the learned Counsel raised this question.
16b. In the three cases the results of the elections were declared on 26.2.1978. Under Sec. 81 of the Act an election petition calling in question the election of the returned candidate is required to be filed within 45 days from the date of election. The learned Counsel for the 2nd respondent submitted that though these petitions had been filed on the last date i.e., 12-4-1973 the same had not been presented to the Registrar of the High Court at any time during the Court hours as required by Rule 7 of the Election Procedure Rules, Karnataka, tut had been presented to him at his residence at 10.30 p.m., in the night on that day. The learned Counsel submitted that, in the circumstances, the petitions cannot be said to have been filed in time and therefore was barred by time. He drew my attention to the sharas made on each of these original petitions re. the presentation of the papers. As per those sharas the three petitions appear to have been presented at 10.30 p.m., during that night. In answer to this preliminary objection the learned Counsel for the petitioners submitted that on that day i.e., 12.4-1978 the Registrar was on casual leave; that the Joint Registrar also was not available; and that, in the circumstances, after searching for the concerned officer a good-deal and having found him at his residence in the night the petitions were presented. She also submitted that the question now raised by the learned Counsel for the 2nd respondent was not a pure question of law, but, in the circumstances of the case, it has to be taken as a mixed question of law and facts, and that there being no proper plea the preliminary objection need not be considered. It cannot be said that there is no force in this contention. In the circumstances, I proceed to consider these election petitions on merits on the assumption that they had been filed in time.
17. In E.P. No. 29 of 1978 Ext R-8, R-9 and R-10 were the nomination papers filed by Sri Gatti Chandrasekhar (R-2) They are dated 1.2.1978. In the second part of the nomination papers the declaration made is that he had been set up at that election by the "Congress (C)" party. So far as the symbol is concerned, he has left the column (C) completely blank in all these three nomination papers. Ex-R-11 is said to be the notice given by the General Secretary of the Karnataka, Pradesh Congress Committee (I) to the Returning Officer as required by the Election Symbol (Reservation and Allotment) Order, 1968 (the Order). Ex R-12 is an annexure to R-11 and is said to contain the specimen signatures of Sri D.M. Siddaiah, General Secretary of that party, and Ex- R-12 is said to have been signed by Sri Bhuta Singh, General Secretary of the Indian National Congress, and, according to the Returning Officer of these Constituencies (R.W. 1 P. Krishnan) both Ext-R-11 and R-12 had been presented by the candidate Sri Gatti Chandrasekhar himself to the Assistant Returning Officer of that constituency at 2 p.m., on 4-2-1978. The Returning Officer has stated that after 3 p.m., on 4-2-1973 i.e., the time fixed for withdrawal of candidatures he had taken the decision in the matter of allotment of symbols.
18. According to this witness i.e., R.W. 1, P. Krishnan, Exts. 3(a) and 3(b) were the nomination papers presented by the returned candidate in E.P. No. 54 of 1978. This candidate also has stated that he had been sponsored the political party "Congress (C)". He too has not sought for any symbol and has leftthat column blank. This witness (R.W. 1) has further stated that the returned candidate Sri Ramakrishnaiah had also presented Exts. R-5 and R-6 at 2 p.m., on 4-2-1978. Ex. R-5 is the notice said to have been given by Sri D.M. Siddaiah, the General Secretary of the Karnataka Pradesh Congress Committee (I) to the Returning Officer sponsoring Sri Ramakrishnaiah as that party''s candidate. Ext. R-6 is an annexure to Ext. R-5 containing Sri D. M. Siddaiah''s specimen signatures and also Ext. R-6 is signed by the General Secretary of the Indian National Congress Sri Bhuta Singh. On the basis of these documents, the Returning Officer is said to have allotted the symbol ''HAND'' to the concerned candidates. In cross-examination he has denied of his having committed any violation of the Rules or Order in allotting the symbol ''HAND'' to the said candidates.
19. Sri B.K. Nayak, R.W. 1, We Returning Officer in E.P. No. 57 of 1978, has stated in his evidence that Ext. R-1 to R-4 were the nomination papers filed by the 2nd respondent in that case, Sri V.L. Shivappa. In all these nominations Sri Shivappa has stated that he was a candidate sponsored by the political party, "Congress (C)". He has sought for, in order of preference, three symbols i.e., (i) Elephant; (ii) Rising Sun; and (iii) Lion. Ex. R-8 is the notice said to have been given by Sri D.M. Siddaiah, the General Secretary of the Karnataka Pradesh Congress Committee (I) approving Sri Shivappa''s name as their party candidate. Ex R-9 is the letter of the General Secretary of the Indian National Congres Sri Bhuta Singh, and contains the specimen signatures of Sri D/M. Siddaiah. According to the Returning Officer Exs. R-8 and R-9 were handed over to him at 2.45 p.m., on 4-2-1978. Ex R-8 bears that endorsement. It is his evidence that on the basis of this Ex-R-8 and also in view of the instructions given by the Election Commission to which he has made reference in the evidence, he had allotted the symbol ''Hand'' to Sri Shivappa.
20. Let me now consider the first point. The facts in all these three cases are almost similar to the facts in Parikshitaraj v. Returning Officer, Raichur, (1979) 2 Kar. L.J. 138. In Parikshitraj''s case to doubt the returned candidate had stated that he was a candidate sponsored by the Indian National Congress (I) led by Smt. Indira Gandhi and had sought for symbols (i) two bullocks with a farmer behind; (ii) Elephant; and (iii) Cart. The argument advanced on behalf of the election petitioner in that case was that on the date when the nomination paper had been filed the political party Indian National Congress (I), had not been registered with the Commission, and therefore, the nomination paper of the returned candidate ought to have been rejected. It is a fact that the Indian National Congress (1) came to be registered by the Commission as a political party only on 2.2.1978, and a notification to that effect was issued and published in the Gazette of India only on 3.2.1978. But the argument advanced on behalf of the election petitioner in Parikshitraj case to the effect that the nomination paper should have been rejected for having mentioned the name of a political party not in existence on the date of the filing of the nomination paper was rejected, and this Court has observed as follows: (Head-Note: Para-1)
"Whore the nomination paper filed by a candidate mentioned that he was a candidate sponsored by a political party, not registered with the Election Commission either on the date when the nomination paper was filed or on the date of scrutiny, and had sought for symbols which were not the symbols of that party, held the defect was not a defect of substantial character and was saved by the proviso to Rule 4 of the Conduct of Election Rules, 1961. Such defect did not warrant rejection of the nomination. Registration or recognition of a political party by the Commission has significance only in the matter of allotment of symbols."
21. As already stated, in EP.No. 57 of 1978, the returned candidate has sought for three symbols, whereas in the other two petitions the columns meant to note the symbols are left blank. The learned Counsel for the petitioners tried to distinguish the facts in Parikshitraj''s case (supra) from these two latter cases and submitted that the concerned candidate having left wholly blank the column meant to note the symbols, the said nominations had defects of a substantial nature and the candidates cannot be said to have merely failed to complete, or had comitted defects in completing, as contemplated in the proviso to Rule 4 of the Conduct of Election Rules, 1961 (the Rules), and therefore, the nomination papers were liable to be outright rejected and that the ratio of the decision in Parikshitraj''s case cannot be applied to the facts of these two cases (E.Ps. Nos. 29 and 54/78). I am unable to agree with this submission. Following the ratio of the decision in Parikshitraj''s case, I hold that the Returning Officer had not committed any error in accepting the nomination papers of the concerned returned candidates. Therefore, I answer Issue No. 1 in all the three cases in the negative and against the petitioners.
22. Now to consider the second point. The learned Counsel for the petitioners submitted that after the election process had started in several States the Commission had no power to recognise a new political party and to direct the authorities concerned to give effect to its decision, and this, according to the learned Counsel, amounted to an interference in the election process which was beyond the scope of the powers of the Commission. Secondly it was submitted that the Notification issued in the Central Gazette recognising the Indian National Congress (I) as a National Party and allotting to it the the symbol ''HAND'' did not confer powers on the election authorities in this State to allot that symbol to any candidate claiming to contest on behalf of that party. Thirdly, it was submitted that the order of the Commission recognising the Indian National Congress (I) and allotting to it the symbol ''HAND'' and particularly the latter part of that Order relating to the allotment of symbol cannot be said to have come into effect in Karnataka State since that order had not been published in the Karnataka Gazette as required by Rule 5 of the, Rules. Lastly, it was submitted that that order of the Commission stands on the footing of a subordinate Legislation, and therefore, it could not have been made with retrospective effect, nor could it have any retrospective effect. With particular reference to the cases on hand it was further submitted that even otherwise, there was no proper authorisation by the party officials of the Indian National Congress (I) choosing the 2nd respondent in all the cases as the candidate of that party, and therefore, also the Returning Officers had committed an error in alloting to them the symbol ''HAND''
23. Soon after the Parliamentary Elections held during 1977 differences arose in the Indian National Congress and the party came to be split up into two groups, one of the groups was headed by Smt. Indira Gandhi. Each group started claiming that it alone represented the entire party and thus laid its claim for the symbol of that party. The dispute reached the Commission. The Commission took a decision, on 2.2.78 recognising that group of Congressmen headed by Smt. Indira Gandhi as a National Party called the ''Indian National Congress (I)''and reserved to it the symbol ''HAND''. In accordance with that order the Commission issued a Notification and published it in the Gazette of India (Exy.) dated 3-2-1978 Part II (may see para-23 of Parikshitraj''s case wherein the Notification is extracted). The Commission''s powers to recognise political parties, to allot symbols, and to make suitable orders in that regard are not in dispute (The observation of this Court in para-26 of Parikshitraj''s case may be noted). After issuing that Notification the Commission gave further directions in the matter to all its subordinate authorities stating therein as to how they should act in the matter of allotment of the symbol ''Hand''. The instructions, issued by the Commission had reached the Returning Officers in all these cases through the Chief Electoral Officer, Karnataka State, and as well as other sources. Ex. R-4 referred to in the evidence of Returning Officer in E.P. Nos. 29 and 54 of 1978 is similar to Ex. R. 7 in Parikshitraj''s case (supra). Ex. R-4 was received, by the Returning Officer on 4-3-1978 between 10.30 a.m., and 11 a.m., as spoken to by the Returning Officer. It contained instructions of the Commission in the matter of allotment of symbol ''Hand''. Ex. R-7 referred to in the, evidence of R.W. 1, B.K. Naik (Returning Officer) in E.P. No. 57 of 1978 is similar in terms to Ex. R-7 in Parikshitraj''s case (page 149 end) and according to the Returning Officer, Sri. Nayak, he received Ex. R-7 on 4-2-1973 itself and his case is that on the oasis of the letter or intimation of the party officials of the Indian National Congress (I) and also in view of the instructions contained in Ex. R-7, and other earlier messages, Ex. R-5 and R-6, issued by the Commission in this connection'' he had allotted the symbol ''Hand'' to the returned candidate Sri. Shivappa.
24. There is no substance in the contention of the learned Counsel for the petitioners that the Commission had interfered in the process of election in the Karnataka State by recognising the Indian National Congress (I), alloting it the symbol ''Hand'' and sending instructions to its officers in the matter of allotment of that symbol to the candidates who were already in the field and while the election had started.
25. On the other hand, it was argued by the learned Advocate General that the allotment of a symbol in any election would become necessary only in the event of a poll becoming necessary and that that will be known at the expiry of the time prescribed for withdrawal of nominations. According to the learned Advocate General there was no bar in law for the Election Commission to accord recognition to a political party seeking such recognition and to allot a symbol to it at any time before the expiry of the time for the withdrawal of the nominations. As rightly contended by him any restrictions on the Commission''s powers to effectuate its directions and instructions would be subversive of the democratic process and would be impermissible in law. It cannot be said that by issuing instructions in the manner it has been done the Commission had interfered with the process of elections in the State.
26. Also, there is no substance in the contention of the learned Counsel for the petitioners that the decision and instructions of the Commission are in the nature of subordinate Legislation, had retrospective effect, and it was beyond the powers of the Commission to issue such instructions. In this connection I may refer to the following observations of the Supreme Court in Sadiq Ali v. Election Commission of India, (1972) 2 SCR 318, at pages 341 and 342 may be noted:
"It would follow from what has been discussed earlier in this judgment that the symbols order makes detailed provisions for the reservation, choice, and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by rule 5 of the Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission to issue general or special directions to the Retaining Officers in respect of the allotment of symbols. The allotment of symbols by the Returning Officers has to be in accordance with those directions. Sub-rule (5) of rule 10 gives a power to the Commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would therefore, follow that the Commission has been clothed with plenary powers by the above mentioned Rules in the matter of allotment of symbols. The validity of the said Rules has not been challenged before us. If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case it is a dispute between two individuals, the method for the settlement of that dispute is provided by para-13 of the Symbol Order. If on the other hand a dispute arises between two rival groups for allotment of a symbol of a political party on the ground that each group professes to be that party, the machinery and the manner of resolving such a dispute is given in paragraph 15. Para 15 is intended to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserved for the political party is not set at naught. The fact that the power for the settlement of such a dispute has been vested in the Commission would not constitute a valid ground for assailing the vires of and striking down para-15. The Commission is an authority created by the Constitution and according to the Article 324, the superintendence, direction and control of the electoral roll for and the conduct of elections to Parliament and to the Legislature of every State and of the elections to the office of the President and Vice-President shall be vested in the Commission. The fact that power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would raise a presumption, though not absolute but to a considerable extent that the power would not be misused but would be exercised in a fair and reasonable manner."
27. I may further refer to the observations of the Supreme Court in a recent decision in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851. The Court has observed at para-91 as follows:
"2(a). The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or otherwise, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in a violation of such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play-in-action in a most important area of the constitutional order, viz. elections. Fairness does import an obligation to see that no wrong doer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal''s adjudication,"
As observed by their Lordships in Mohinder Singh Gill''s case, AIR 1978 SC 851, (supra) the Commission is vested with comprehensive powers and responsibilities in the matter of conducting elections. Its responsibility "may cover powers, duties, and functions of many sorts, adminstrative or other depending on the circumstances." If viewed in the light of the observations of the Supreme Court referred to above, it cannot be said that the Commission had exceeded its powers in any manner in issuing the aforesaid instructions.
28. The argument of the learned Counsel for the petitioners that the Symbol Allotment Order of the Commission had not taken effect at all in the Karnataka State, and therefore the Returning Officer could not have allotted that symbol to the 2nd respondent in each case has also no force. In this connection reliance is placed on Rule 5 of the Rules which reads as follows:
"5. Symbols for Elections in Parliamentary and Assembly Constituencies, (1979) 2 Kar.L.J. 138. The Election Commission shall, by notification in the Gazette of each State, specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject.
(2) Subject to any general or special directions issued by the Election Commission either under under sub-rule (4) or sub-rule (5) of rule 10, where at any such election more nomination papers than one are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered and no other declaration as to symbols shall be taken into consideration under rule 10 even if that nomination paper has been rejected."
But that rule is required to be read along with sub-rules (4) and (5) of Rule 10 which read like this:
"10. Preparation of List of Contesting Candidates.-(4) At an election in a parliamentary or assembly constituency, where a poll becomes necessary, the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to, any general or special direction issued in this behalf by the Election Commission,- (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice, and (b) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidate the symbol will be allotted.
(5) The allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit."
And, what is further contended is that that notification, though had been published in the Gazette of India, to be effective in Karnataka State, ought to have been re-published in the State Gazette well in time for the Returning Officer to act. It is in this connection reliance is placed by the learned Counsel for the petitioners on sub-rule (3) of Rule 2 of the Rules which reads as follows:
"2. Interpretation.-(3) Any requirement under these rules that a notification, order, declaration notice or list issued or made by any authority shall be published in the Official Gazette shall, unless otherwise expressly provided in these rules, be construed as a requirement that it shall be published in the Gazette of India if it relates to an election to, or membership of, either House of Parliament or an electoral college and in the official Gazette of the State, if it relates to an election to, or membership of, the House or either House of the State Legislature)."
The learned Counsel submitted that unless that notification is published in the Karnataka Gazette it will have no force in this State. It is a fact that that Central Notification was published in the Karnataka State for the first time on 6-2-1978. But to say until then it had not come into force in Karnataka, State is not correct. What sub-rule (3) of Rule 2 says is that any requirement that a notification or order shall be published in the Official Gazette be construed as a requirement that it shall be published in the Gazette of India if it relates to an election, to the Parliament or any House of the Parliament, and in the State Gazette, if it relates to an election or to membership of the House or either House of the State Legislature. It does not say that unless it is so published the. notification, order, declaration, notice etc., issued or made will not come into effect at all. Sub-rule (4) of Rule 2 of the Rules makes the General Clauses Act, 1897 (Central Act No. 10 of 1897) applicable to the interpretation of these rules. S. 5 of this Act says "where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the date on which it receives the assent,........in the case of an act of Parliament, of the President." The rules do not say that unless the order of the Commission re: the symbols or recognition of parties are published in the Official Gazette, it shall not come into effect. The provision requiring the publication of the order in the Official Gazette is only for the information of the public. In fact, a careful reading of sub-rule (1) of Rule 5 makes this more clear. It says that the symbols that may be chosen by the candidate at elections may be specified and published in the Official Gazette. In this respect the learned Advocate General drew my attention to the following observations of the learned Author Sir Garleton Kemp Allen in his book "Law and Orders" 3rd Edn-at page-111:
"With regard to the statute, it is now a settled rule (after many variations in the course of history) that an Act takes effect from the earliest moment of the day on which it receives a Royal assent unless a future date is fixed by the statute itself or by a statutory instrument made under its authority, for its commencement."
Besides this, the argument of the learned Counsel that the Notification dated 2.2.1978 of the Election Commission published in the Gazette of India on 3-2-1978 had not come into effect in the Karnataka State, the same (having not been published in the Karnataka Gazette as required by Rule 5of the Rules is also not available to her, in view of the fact that that Notification does not appear to have been published under Rule 5 of the Rules, but. more appropriately under Para-17 of the Order. The 3rd para of the Notification itself makes that clear. And under para 17 of the Order such a Notification is required to be published only in the Gazette of India. Thus, looked at from any angle, it has to be said that the Notification issued by the Commission was applicable to the whole of India including the Karnataka State, and that that Notification, the moment it was issued by, the Commission, had taken effect in this State also.
29. While examining the powers of the Commission under the Constitutution, Act, Rules and Order, (the Election Symbols (Reservation & Allotment) Order, 1968) and, in particular, under para-18 of the Order in the, matter of issuing instructions to the Returning Officers re: the allotment of symbols to the candidates contesting in the elections, this Court has observed in Parikshitraj''s case (supra) at para-29 (Page 151 in the end) as follows:
"There in no doubt that the Commission bad powers to issue such instructions. Para-18 of the Order, extracted above, may be seen. The Commission is clothed with powers to issue instructions and directions in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this Order makes no provision or makes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections".
But, according to the learned Counsel for the petitioners, the instructions issued by the Commission in all these cases cannot be construed as one issued under Para-18 of the Order. While saying so, she relied on the evidence of Sri R. Sampath Kumaran, Chief Electoral Officer (examined as p.w. 1 in E.P No. 8 of 1978). When examined in this Court he, who was the Special Secretary to the Government of Karnataka, was also the Chief Electoral Officer. But, at the relevant time, when these instructions were received it was his predecessor-in-office who was functioning as the Chief Electoral Officer. According to this witness in the directions issued by the Election Commission in the matter of allotment of symbol ''Hand'', there was no mention that the some had been issued under Para-18 of the Order. Merely because in its communication the Commission had not stated that it has issued the instructions either under Para-18 of the Order or other relevant provisions investing it with powers to issue such instructions, it cannot be said that the instructions issued had been issued without any authority. It is for us to see whether the Commission had any such powers, and, if so, to trace that power to the source. Viewed from this angle, it has to be stated that the Commission, in exercise of the plenary powers vested in it under the Constitution and as well as the powers conferred on it by the various provisions referred to above, had issued those instructions.
30. Though it was argued by the learned Counsel for the petitioners that there was no proper intimation by the office bearers of the Indian National Congress (I) choosing or sponsoring the 2nd respondent in all these cases as their candidate, and the Returning Officers concerned had wrongly allotted the symbol ''HAND'' to them, no foundation has been laid in this respect by proper averments in the petitioners'' election petitions. I have referred to the evidence of the Returning Officers wherein they have clearly stated that they had allotted the symbol ''HAND'' to the returned candidates after taking into consideration the instructions they had received from the Commission and also taking note of the intimations of the Party Officials. They cannot be said to have committed any error in this respect also.
31. For the reasons mentioned above my findings on issue No. 2 in all these three cases are in the negative and against the petitioners. In view of my finding on the issues already referred to, issues 1(a), 2(a) and 3 in all these cases do not call for any finding.
32. However, I would like to say something on issues 1(a) and 2(a) in all these cases. These issues were framed in view of the contention of the learned Counsel for the petitioners that the improper acceptance of the nomination papers of the 2nd respondent in each of these cases and the allotment of symbol ''Hand'' to them contrary to Rules had materially affected the results of the elections in so far as it concerns the returned candidates (2nd respondent in each of these cases). As stated by me in para-12, in E.P. No. 57 of 1978, we have only the evidence of the Chief Electoral Officer and the Returning Officer. No evidence is let in on issues 1(a) and and 2(a). The non-official witnesses who have been examined in the other two cases on behalf of the petitioners (details at para-12 above) have no doubt stated that if the 2nd respondent ineach of those cases had not been treated as a candidate sponsored by a political party and if they had not been allotted the symbol ''Hand'', they would have tailed in the elections, and that, on the other hand, the petitioners would, have been successful. P.W. 2 Shivanandiah, P.W. 3 Basavaraju, P.W. 4 Basavalingaiah, and P.W. 5 Channaiah in E.P. No. 29 of 1978 were all admittedly the supporters of the petitioner and had canvassed for him in this election. Naturally they are interested in him. Likewise p.w. 1 Basavaraju, p.w. 2 Nazir Ahmed, p.w. 3 Chandraiah, and p.w. 5 Mahalingaiah in E.P. No. 54 of 1978 were admittedly the members of the Janata Party and had canvassed for the petitioner, and, of them, p.w. 1, Basavaraju was the Secretary of the local unit of that Party. No doubt, p.w. 4 Bore Gowda in this case has stated that during the month of February, 1&78 he had worked for the 3rd respondent in that case, Sri Byrappaji, who had been sponsored by the Reddy Congress as its candidate. In examination in-chief the witness has stated that subsequent to 1972 Assembly Elections he had joined Janata Party and had contested the Taluka, Development Board election also on that party''s ticket. Therefore, it, cannot be said that when he gave evidence in Court he was not interested in the petitioner who belonged to Janata Party at that time. In the first place, as already stated, the evidence is highly interested. Further, even if the Returning Officer had not allotted the symbol ''Hand'' to the 2nd respondent treating him as a candidate sponsored by the Indian National Congress (I), would it not have been possible for that political party, if it wanted to back up this candidate, to have subsequently adopted him as its nominee, though with a different symbol, and help him in the election? There have been instances where candidates contesting as Independents having been subsequently adopted by political parties. In the circumstances, it cannot be said that the result of the election had been materially affected in so far as it concerned the 2nd respondent by his having been treated as candidate sponsored by a political party and alloting to him the symbol ''Hand'' assuming, but not admitting, that the Returning Officer had done so wrongly and contrary to law.
33. In the result, all the three election petitions fail and they are dismissed with costs of respondents 1 and 2 only. Advocates'' fee in eachofthese cases is fixed at Rs. 500/-.
