( 1 ) THE facts relevant to the issue on which we propose to base our decision lie within a very moderate compass. On 27th of October, 1966, the Election Commission of India addressed a letter to Shri Khem Chandra. who claimed to be the General Secretary of Republican Party of India, Uttar Pradesh, stating i am directed to state that the Commission is satisfied that the party which is recognised by it for the purpose of allotment of symbol is the Republican party under the presidentship of Shri B. K. Gaikwad. As such, that authority only will be recognised by the Commission for allotment of symbol to the candidates of the Republican party in the elections to be held in Uttar Pradesh. " ( 2 ) THIS was followed by a notification dated 1st December. 1966 in which names of certain parties were specified in clause 1 (b) as multi State party. Name of the Republican party of India was not included. By this notification reserved symbol was defined to mean" in relation to any recognised party specified in column 4 of the Table below, the symbol specified against that party in column 3 thereof. " recognised party is also defined in the notification to mean "any policital party for which 0a symbol is reserved in one or more States according to the Table below". Clause 4 of the notification which has a considerable hearing on the question raised may be reproduced- - FOR the prupose of paragraph 2 of this notification, a candidate shall be deemed to be sponsored by a particular recognised party if and only if, (a) The candidate has made a declaration to that effect in his nomination paper. Clause 4 of the notification which has a considerable hearing on the question raised may be reproduced- - FOR the prupose of paragraph 2 of this notification, a candidate shall be deemed to be sponsored by a particular recognised party if and only if, (a) The candidate has made a declaration to that effect in his nomination paper. (b) a notice in writing to that effect has, not later than 3 p. m on the last date for withdrawal of candidatures been delivered to the returning officer of the constituency, and (c) the said notice is signed by the president secretary or other office-bearer of the party who is authorised by the party to send such notices and whose name and specimen signature have been communicated in advance to the said returning officer and to the Chief Electoral officer of the State " According to clause 4, therefore, a candidate is to be deemed to be sponsored by a particular recognised party if and only if the notice mentioned therein is signed by the President. Secretary or other office-bearer of the party. In the Table given at the foot of the notification the symbol of elephant was reserved for the Republican party of India in the States of Maharashtra, Punjab and Himchal Pradesh. ( 3 ) IT if the common case of the parties that name of the Republican party of India was, by mistake, omitted in the notification of 1st December, 1966, and, therefore, another notification was issued on 14th December, 1966, including inter alia the name of the Republican party of India in paragraph 1 (b) of the notification dated 1st December, 1966. as a multi-State party. In the meantime, on 30thaugust, 1966, Shri Khem Chandra, claiming to be the General Secretary of the Republican party, had written to the Election Commissioner requesting that "the symbol of the elephant may kindly be allotted to the R. P. I. U. P. under the authority of Shri Hailmuddin Rahat Maolaey M. I. A. President and Shri Khem Chandra, M. L. A. , General Secretary. " A copy of this representation was forwarded by the Election Commission to Shri B. D. Khobragade who is described as General Secretary of the Republican party of India, for comments, if any. " A copy of this representation was forwarded by the Election Commission to Shri B. D. Khobragade who is described as General Secretary of the Republican party of India, for comments, if any. The comments were duly sent and by letter dated 20th December, 1966 (Annexure V to the petition) the Election Commission wrote to Shri Khem Chandra. "as regards the office bearers for the State of Uttar Pradesh mentioned by you in para 5 of your above-mentioned letter a reference is invited to the Commission s letter, No. 56/11/65/27113 , dated the 27th October 1966 (copy enclosed) for your information. " In the above-quoted paragraph the reference was to the letter of Shri Khem Chandra dated 9th December, 1966 ( 4 ) THE main attack on the park of the petitioner is to the letter dated 20th December, 1966, and it has been contended that the Election Commissioner had no jurisdiction to limit the recognition beyond what was contained in the notification dated 1st December 1966 read with the notification dated 11th December. 1966 and therefore to the Republican Party under the presidentship of Shri B. K. Gaikwad Mr Garg, the learned counsel for the petitioner has raised the following five contentions : (1) Rule 5 of the Conduct of Election Rules, 1961, does not authorise the Election Commission to impose restrictions arbitrarily on the choice of symbols reserved for parties: (2) whenever the Election Commission requires a candidate to have the authority from an individual before he gets a symbol allotted to a party it must come to a conclusion in a quasi-judicial manner that the person named has authority to sponsor the candidate: (3) on a finding that split has taken place in a political party the Election Commission must recognise both the groups and reserve symbols in a way that it does not result in discrimination or in a manner that it does not confer advantage on one group over the other. (4) restrictions imposed in the choice of symbols must conform to the factual position and the Election Commission is duty bound to investigate facts: and (5) under Rule 5 of the said Rules symbols can be reserved for candidates and not for parties ( 5 ) MR. (4) restrictions imposed in the choice of symbols must conform to the factual position and the Election Commission is duty bound to investigate facts: and (5) under Rule 5 of the said Rules symbols can be reserved for candidates and not for parties ( 5 ) MR. Garg, in the course of the arguments, also emphasized the point that even if symbols could he reserved for the parties and thereby for candidates accredited So the parties, the restrictions regarding the choice of symbols could in view of the said rule 5. be imposed only by a notification in the Gazette of India and in the official Gazette of each State. It has not been disputed that the two letters namely the letter dated 27th October 1966. and the letter dated 20th December 1966, were not notified in any Gazette. In elaboration of this contention Mr Garg says that imposing a condition for allotment of a symbol to a party in the manner in which it has been done by the said two letters, namely, under the presidentship of Shri B. K. Gaikwad. " is a restriction within the meaning of Rule 5 and therefor could be imposed only by a notification in the Gazette. Unfortunately, we did not have the benefit of any assistance an behalf at the Election Commission although the points raised are of considerable importance Mr Sinha, the learned counsel for the respondents has no objection if it is held that (I)THE notifications, dated 1st December, 1966 and 14th December, 1966 are valid and the specification of the symbols thatcan he chosen by candidates at elections can be properly made in the manner in which it has been done by the said notifications, namely, by reserving symbols for recognised parties and leaving free symbols for other candidates; and (II) modifying the notifications in the way in which it has been done by the letter dated 27th October, 1966, that the Republic- the presidentship of Shri B. K Gaikwad is bad but under clause 4 of the notification dated 1st December, 1966, the Election Commission can in exercise of under rule 10 of the said Rules, issue necessary directions saying as to who shall be the president and/or the seceretry an the office bearer authorised to send notices mentioned in the said clause ( 6 ) IN shri Mr. Sinha hasa no objection to the quashing of the directions contained in the letters dated 27th October 1966. and 20th December, 1966. provided the powers of the Election Commision to issue directions under rule10 as mentioned herein above are preserved. Notwithstanding this concession by Mr. Sinha. it does not absolve us from deciding the question whether the directions contained in the said two letters are valid or not. I may make it clear at the very outset that in the view that we are taking it is unnecessary to pronounce on the powers of the Election Commission to issue directions under dent and/or the Secretary and/or the office bearer of the party to send notices, mentioned in clause 4 of the notification dated 1- 12 -1966 or office-bearer of a particular party recognised by the notification is. ( 7 ) AT this stage it may be appropriate deal with a preliminary objervation raised by Mr. Sinha as to the maintainability of this petition He says that the decision of the direction contained in the said two letters may at the most be based on erroneous interpretation of law and, therefore, the jurisdiction of this Court is barred under Art. 329 (b) of the Constitution. Mr. Sinha, however, concedes that in case the order is outside the purview of an act and is without jurisdietion or is patently erroneous. the powers of this Court under Art. 226 are not affected. In the view that we have taken the orders or directions in the said two letters are clearly outside the purview of the Act and are without jurisdiction and, therefore, the preliminary objection can have no merit. The real question therefore, that confronts us is whether the directions contained in the said two letters are without jurisdiction and are outside the purview of the statute. Under R. S of the said Rules, the Election Commission is compelent to specify the symbols that may be chosen by candidates juridiction. It world therefore in my opinion, be open to the Election Commission to recognize parties and say that candidates accredited to a particular recognised party shall be entitled to choose the symbol reserved for such party. Recognition of parties for reservation of symbols is therefore within the competence of the Election Commission under rule 5. It world therefore in my opinion, be open to the Election Commission to recognize parties and say that candidates accredited to a particular recognised party shall be entitled to choose the symbol reserved for such party. Recognition of parties for reservation of symbols is therefore within the competence of the Election Commission under rule 5. I am also of the opinion that clause (iv) of the notification dated 1-12-1966 is a restriction covered by the words "the restrictions to which their choice shall be subject" in the said rule 5. Expression of the office hearers of a party who would be competent or authorised to send notices mentioned in clause (iv) of the notification would certainly be a restriction to which the choice of symbol is made subject. This restriction could. Therefore be imposed by a notification as has been done in the present case. By the notification the Election Commission having recognised the. Republican party of India. It has by the said two letters in a way destroyed that recognition instead of the Republican party as recognised in the notification the said letters have in substance the effect of according recognition to another party, namely the Republican party under the presidentship of Shri B. K. Gaikwad In substance, therefore, a different entity seems to have been recognised by the said two letters in so far as the allotment of symbol to the party is concerned. Under the notification the President. Secretary or other office bearer could send such notices. The effect of the letters s not merely to confine the sending of notices by the president and that too Mr. B. K Gaikwad, but also recognising the Republican party under the presidentship of Shri B K Gaikwad. Such direction would in my opinion relate to specification of symbols that may be chosen by candidates within the meaning of Rule 5 and could be done only by a notification as provided in the said rules. The contention in defence of these directions that they could be issued under rule 10 (4) has no merit because such a direction cannot destroy the effect of specification of symbols based on recognition of parties as notified under Rule 5 A suggestion was made at the bar on behalf of the respondents that the said directions were merely clarificatory of the expressions republican party of India in the notification dated 1st December. 1966. 1966. read with notification dated 14th December, 1966. That contention can have no merit as It over-looks the fact that what was recognised by the notification was the Republican party of India and the direction has the effect of substituting another entity which could be done only by notification as provided by rule 5. As I have said earlier, it may possibly be within the competence of the Election Commission to issue directions either after or before a notice under clause (iv) of the notification dated 1-12-1966 is sent as to who would be the President. Secretary or the office bearer to send the notices. But that is different from changing the entire reeognised. While issuing directions the recognition of a party under Rule 5 by a notification must be kept infact and cannot be changed except under rule 5. In this view it must be held that the direction contained in the letter dated 27th October. 1966, read with letter dated 20th December, 1966, was beyond the competence of the Election Commision Consequently the words "that the party which is recognised by it for the purpose of allotment of symbol is the Republican party under the presidentship of Shri B. K Gaikwad. As such that party only will be recognised by the Commission for allotment of symbols to the candidates of Hie Republican party in the Election to he held in Uttar-Pradesh" must be quashed. It is in the circumstance: unnecessary to resolve the the controversy covered by other points raised at the bar. The parties will bear their own costs. A copy of the judgment must be sent forthwith to the Election Commission of India