R.S. Chauhan ORDER
R.S. Chauhan, J.
1. The petitioner, the Bhararatiya Janata Party, is aggrieved by the notice dated 16.08.2015 issued by the Office of the Election Officer/Assistant Election Officer whereby, the Election Officer has directed the party for "closing of the party symbol and for vacating of the office flag on 21.08.2015 and 22.08.2015 respectively".
2. The brief facts of the case are that the petitioner had established their Head Quarters in 2011, at No. 48. Temple Street, 11th Cross, Malleshwaram, Bengaluru. Since it is the State Head Quarter of a political party, it has not only adorned the building with the symbol of the party, but also has a party flag hoisted on a pole in front of the building.
3. The election for the Bruhat Bengaluru Mahanagara Palike (for short 'BBMP') is scheduled to be held on 22.08.2015. Since according to Section 46 of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act') and according to the Model Code of Conduct, it is not permissible for the political parties to carry out 'prachar' within hundred meters of the polling booth and since the Head Quarter building of the petitioners fall within hundred meters of polling booth, therefore, on 14.08.2015 the petitioners had filed a representation before the Chief Election Commissioner, requesting that the polling booth at the Kodandaramapuram Government School, Malleswaram should be shifted. However, instead of shifting the polling booth from the said Government School, by notice dated 16.08.2015, the Election Officer has directed the petitioners to remove their party symbol, and to remove the party flag from the petitioner's building on 21.8.2015 and 22.8.2015. Hence, this petition before this court.
4. Mr. Vivek S. Reddy, the learned Senior Counsel for petitioners, has raised following contentions before this court:--
"Firstly, according to Section 46 of the Act, no person shall commit certain acts within the polling station or in any public or private place within a distance of one hundred meters of the polling station-one of the prohibited acts is "exhibiting any notice or sign (other than an official notice) relating to the election". In case the prohibition is violated by any person, according to Sub-clause (2), of section 46 of the Act, the person is punishable with fine which may extend to Two Hundred and Fifty rupees. According to the learned Senior Counsel since Section 46 of the Act is a penal provision, the acts that are prohibited have to be interpreted in a very narrow sense. For, a penal provision has to be interpreted strictly and not liberally.
Secondly, both the title of the heading of Section 46 of the Act and the Model Code of Conduct use the word 'canvassing'. According to the learned Senior Counsel 'canvassing' would mean, and would be limited to only, oral persuasion by a person of a potential voters. Therefore, it does not include a display, or visual image, or symbol of the party or the flag of the party. Therefore, the learned Election Officer is not justified in issuing the notice dated 16.08.2015.
Thirdly, relying on the case of Subramanian Swamy v. Election Commission of India [MANU/SC/4126/2008 : (2008) 14 SCC 318], the learned counsel has vehemently contended that the flag of a political party symbolises the party itself. It has an emotional bonding with the people at large. Therefore, the emotional bonding and the identity of th........