skc 1 WP-10541-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10541 OF 2011 Yallappa Gajrabai Potenavru ..Petitioner versus The State Election Commission, State of Maharashtra & Ors. ..Respondents Mr. S. S. Kanetkar for Petitioner. Mr. S. B. Shetye for Respondent No. 1. Mrs. M. P. Thakur - Assistant Government Pleader for State – Respondent No. 2. CORAM : S. A. BOBDE AND SMT. V. K. TAHILRAMANI, JJ. DATE : DECEMBER 09, 2011 P.C. : Rule, returnable forthwith. Mr. Shetye waives service for respondent no. 1. Mrs. Thakur waives service for respondent no. 2. Heard finally by consent of parties. 2. The only issue raised by the petitioner is regarding allotment of the same symbol to different candidates in the same election i.e. the Maindargi skc 2 WP-10541-11 Municipal Council. Mr. Shetye, learned counsel for the respondent no.1 submits that the matter is governed by Rule 8 of the Maharashtra Election Symbols (Reservation and Allotment) Order, 2009, which reads as follows: “8. Choice of symbols by candidates of registered political parties or other candidates and allotment thereof.- (1) Any candidate at an election to local bodies in the State other than a candidate set up by recognised political party shall choose and shall be allotted in accordance with the provisions hereinafter set out in this paragraph one of the symbols specified as free symbols by the Commission. (2) Where any free symbol has been chosed by only one candidate at such election, the returning officer / election officer shall allot that symbol to that candidate and to no one else. (3) Where the same free symbol has been chosen by several candidates at such election, then, if of those several candidates only one is a candidate set up by registered political party, and all the rest are independent candidates, the returning officer shall allot that free symbol to the candidate set up by the registered political party and to no one else, and if of those several candidates two or more are set up by different registered political parties and the rest are independent candidates, skc 3 WP-10541-11 the returning officer shall decide by lot to which of the two or more candidates set up by the different registered political parties that free symbol shall be allotted and allot that symbol to the candidate on whom the lot falls and to no one else.” The submission on behalf of the petitioner is that the State Election Officer will act according to the said Rules. The learned counsel for the petitioner also brought to our notice Rule 16(2) of The Maharashtra Municipal Council Act, 1965, which reads as under:- “ If more candidates than one indicate their preference for one and same symbol, the Returning Officer, after due notice to the candidates concerned, decide by the lot in the presence of such of those as may be present at the appointed time to which of those candidates, the symbol shall be assigned.” 3. Accordingly, we direct that the respondents shall allot symbols in accordance with the aforesaid two Rules where two candidates have expressed their preference for the same symbol. The Returning Officer shall issue notice as contemplated by Rule 16(2). Mr. Shetye, the learned counsel for the respondent no.1 has stated that the aforesaid compliance will be done by the Returning Officer in relation to the ward which is the subject matter of the petition i.e. Ward No.4 of Maindargi and in other wards the Returning Officer will take action if any defect is brought to their notice skc 4 WP-10541-11 within time. 4. Rule made absolute in above terms. (S. A. BOBDE, J.) (SMT. V. K. TAHILRAMANI, J.)