C PARASURAM Vs. M VENKATARAMI

JUDGEMENT

(1.) This is an Election Petition presented under 80 of the Representation of People Act, 43 of 1951 (hereinafter called the Act). In this petition the election of the 1st respondent Mariserla Venkatarami Naidu as a Member of the A.P. Legislative Assembly from No. 9 Parvatipuram Assembly Constituency is challenged. The petitioner is one of the unsuccessful candidates in the said election.

(2.) The averments of the petition are as follows :- It is stated as per the Election programme to the said Assembly Constituency, the last date for filing nominations was 11-12-1982, the date of scrutiny was 13-12-1982, the date for withdrawal of nominations was 15-12-1982, the date for poll was fixed on 5-1-1983 and the declaration of the results was fixed on 6-1-1983. The petitioner, the 1st respondent, Sarvasri Yalla Sasibhushana Rao, Dwarapureddi Suryanarayana, Doddi Parasuram and Chamala Surayya and some others filed their nomination papers. The Returning Officer i.e. the 2nd respondent herein rejected the nomination of Sri Chamala Surayya and upheld the nominations of the petitioner, the 1st respondent and Sarvasri Yalla Sasibhushana Rao, Dwarapureddi Suryanarayana, Doddi Parasuram and others and after withdrawal of nominations by some of the candidates, there remained the petitioner, the 1st respondent and the above three candidates in the contest. The Returning Officer had to allot symbols on 15-12-1982. The symbol of elephant was allotted to the petitioner. Sri Yalla Sasibhushana Rao filed three nominations giving his choices of symbols-Bicycle, Lion and Flaming torch claiming to be the candidate of Telugu Desam Party whereas the 1st respondent also filed three nominations but in his first nomination he claimed to be an independent candidate expressing the choice of symbols as elephant, bicycle and the flaming torch in the order of preference and in the other two nomination papers he claimed to be the Telugu Desam candidate. In view of the fact that both of them claimed to be the Telugu Desam candidates the Returning Officer treated both of them as independent candidates but allotted the symbol lion to Yalla Sasibhushana Rao instead of bicycle and flaming torch to the 1st respondent and accordingly notified the respective symbols of the candidates. It is further averred that the 1st respondent contrary to the allotment of symbols began to exhibit his symbol as bicycle on 17th evening and the petitioner brought the same to the notice of the Returning Officer on 18th morning at 7-30 A.M. but he pleaded ignorance about the situation. But in the evening of 18th the Returning Officer sent a revised list of candidates and symbols to the Agent of the petitioner showing that bicycle symbol was allotted to the 1st respondent. Thus three illegalities are alleged in allotment of symbols. (1) Not allotting symbol of bicycle to Yalla Sasibhushana Rao, (2) Not drawing lots when both petitioner and the 1st respondent claimed elephant as a first preference. (3) Having allotted flaming torch to the 1st respondent the same was changed to that of a bicycle on 18-12-1982 and consequently it is urged the ballot papers used at the said election are invalid and void and the votes were improperly received and the entire election is vitiated and liable to be set aside. It is also urged that the 1st respondent did not invoke the revisional jurisdiction of the Election Commission and the Election Commission cannot revise the symbols in the manner it was done without giving opportunity to the candidates. The second illegality alleged in the Election Petition is the Returning Officer rejected the nomination of Chamala Surayya on the ground that he was a fair price shop dealer appointed by the Revenue Divisional Officer, Parvathipuram and was getting pecuniary gain and hence he was holding an office of profit within the meaning of Art.191 of the Constitution of India and the said order is illegal and consequently the improper rejection of the nomination has vitiated the election as a whole and has become void as the said Chamala Surayya is only a retail dealer holding an authorisation and not holding any office of profit and hence it is prayed that the election of the 1st respondent as a member of the A.P. Legislative Assembly from No. 9 Parvathipuram Constituency shall be declared as void and be set aside and the court should direct the holding of a fresh election to the membership of the A.P. Legislative Assembly from No. 9 Parvathipuram Assembly Constituency.

(3.) The 1st respondent who is the successful candidate and also the Returning Officer, the 2nd respondent filed their counters opposing the petition.