KALKAPRASAD Vs. ELECTION OFFICER, GWALIOR

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India.

(2.) THE petitioner's case is this: -The petitioner Kalka Prasad and the respondent No. 3 Badamsingh were candidates for the office of the Panchas to Devri Kalan Gram Panchayat. The election was scheduled to take 'place' on 17 -5 -1970 for which the petitioner was allotted the symbol of Bullock and the respondent No. 3 Badamsingh the symbol of scales (annexure A -1). According to sub -rule (5) of Rule 30 of Madhya Pradesh Gram Panchayats Election and Co -option Rules, 1963, the allotment of symbol is final. The petitioner and the respondent No. 3 Badamsingh canvassed on the basis of these symbols. The pamphlet distributed by the respondent No. 3 Badamsingh was as per Annexure A -2. In the election, the symbol of Bullock polled 46 votes while the symbol of scale 32 votes. The petitioner who was allotted the symbol of bullock ought to have been declared elected but the Election Officer, respon -dent No. 1 declared respondent No. 3 Badamsingh elected treating his symbol as bullock, which was wholly illegal, unwarranted and ultra vires of the provisions of law. Hence this petition for writ of certiorari for quashing the election of the respondent No. 3 Badamsingh.

(3.) ELECTION Officer, respondent No. 1 and the Collector, respondent No. 2 admitted that the petitioner and the respondent No. 3 Badamsingh were allotted the symbols of bullock and scale respectively but denied that the election officer effected any change or unauthorisedly declared the respondent No. 3 Badamsingh elected treating his symbol as bullock. They contended that the Polling and the Presiding officers were necessary parties to the petition and since they have not been joined, the petition was incomplete. They contended that the petitioner raised no objection nor lodged any complaint with the Polling or Presiding officer before or after the election. They a serted that the petitioner had an alternative remedy of filing an election petition and since he did not avail of that remedy, he was not entitled to invoke the writ jurisdiction of this Court.