Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1376 (JHR)

AJSU Party v. Election Commission of India

2009-11-05

D.N.PATEL

body2009
Order The present petition has been preferred mainly against the order passed by the Election Commission of India dated 28th October, 2009 (Annexure-8 to the memo of the petition) whereby the Election Commission of India has refused to allot any specific symbol to the petitioner party for the reasons that the said party is a registered unrecognised party. 2. Learned counsel for the petitioners vehemently submitted that Order No. 6-A(i) of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the Order, 1968, for sake of brevity) is under challenge especially for the provision of the percentage of total valid votes must have been secured by the petitioner-party. The fixation of the percentage of total votes under the aforesaid order is an arbitrary fixation of the percentage. The same is unreasonably excessive so as to thwart the rights vested in the petitioner. Nonetheless, the petitioner-party is already having two candidates, who were elected in the last State Legislative Assembly Election. Relevant part of the Order, 1968 viz. Order Nos. 5 and 6(A) read as under:- "5. Classification of symbols.-(1) For the purpose of this Order symbols are either reserved or free. (2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. (3) A free symbol is a symbol other than a reserved symbol. 6A. Conditions for recognition as a State Party.-A political party shall be eligible for recognition as a State party in a State, if, and only if, any of the following conditions is fulfilled. (i) At the last general election to the Legislative Assembly of the State. (3) A free symbol is a symbol other than a reserved symbol. 6A. Conditions for recognition as a State Party.-A political party shall be eligible for recognition as a State party in a State, if, and only if, any of the following conditions is fulfilled. (i) At the last general election to the Legislative Assembly of the State. the candidates set up by the party have secured not less than six percent of the total valid votes polled in the State: and, in addition, the party has returned at least five members to the Legislative Assembly of that State at such general election; or (ii) At the last general election to the House of the People from that State, the candidates set up by the party have secured not less than six per cent of the total valid votes polled in the State; and, in addition, the party has returned at least one member to the House of the People from that State at such general election; or (iii) At the last general election to the Legislative Assembly of the State, the party has won at least three per cent of the total number of seats in the Legislative Assembly, (any fraction exceeding half being counted as one), or at least three seats in the Assembly, whichever is more; or (iv) At the last general election to the House of the People from the State, the party has returned at least one member to the House of the People for every 25 members or any fraction thereof allotted to that State." 3. Learned counsel for the petitioners has also submitted that various petitions have been preferred under Article 32 as well as under Article 136 of the Constitution of India before Hon'ble Supreme Court by various registered unrecognised parties from different States of the country, who were similarly situated like the petitioner party. They were also not allotted specific symbols by the Election Commission of India on similar ground upon which petitioner's claim is rejected and the Hon'ble Supreme Court is pleased to f.)ass an interim order in favour of similarly situated petitioner-party in SLP(C) No. 21965 of 2009 as well as in W.P.(C) No. 422 of 2009 as well as in SLP(C) No. 23494 of 2009 and in W.P.(C) No. 426 of 2009. All these interim orders are dated 14th September, 2009 (Annexure-10 to the memo of the petition). All these interim orders are dated 14th September, 2009 (Annexure-10 to the memo of the petition). Learned counsel for the petitioners has also submitted that one more similarly situated party, which is registered unrecognised party had preferred a petition before the Hon'ble High Court at Bombay and detailed order has been passed wherein also interim relief has been granted in favour of registered unrecognised party in Writ Petition No. 8248 of 2009 dated 24th September, 2009 (Annexure-11 to the memo of the petition). The said order is passed by the Division Bench of the Hon'ble High Court at Bombay. 4. In view of these orders, it is submitted by learned counsel for the petitioners that let the matter be admitted looking to the contentious issues raised in this petition and looking to the. prima facie case, balance of convenience and irreparable loss, which may be caused to the petitioners, let a similar interim relief may be granted, which has been granted by the Hon'ble Supreme Court as well as by Hon'ble High Court at Bombay in various matters. 5. I have heard learned counsel for respondent no. 1, who has submitted that no error has been committed by the Election Commission of India in discarding the claim of the present petitioners for allotment of specific symbol to the petitioner party mainly for the reason that the petitioner-party is a registered unrecognised party and there is no provision for grant of specific symbol to such type of registered unrecognised party and, therefore, a detailed order has been passed by the Election Commission of India at Annexure8 dated 28th October, 2009, otherwise, it will be tantamount to recognition to the unrecognised party. It is also contended by learned counsel for respondent no. 1 that the Court should not interfere with the election matter at this stage, looking to the catena of decisions rendered by Honoble Supreme Court and the petitioners can prefer an election petition after the election is over. It is also submitted by learned counsel for respondent no. 1 that none of the interim orders, cited by learned counsel for the petitioners, are applicable to the facts of the present case, therefore, the order passed by the Election Commission of India at Annexure-8 is true, correct, legal, valid and in consonance with the facts of the present case and, therefore, the present petition deserves to be dismissed. 6. 1 that none of the interim orders, cited by learned counsel for the petitioners, are applicable to the facts of the present case, therefore, the order passed by the Election Commission of India at Annexure-8 is true, correct, legal, valid and in consonance with the facts of the present case and, therefore, the present petition deserves to be dismissed. 6. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case and the decisions, which are referred by learned counsel for the petitioners and respondent no. 1 and looking to the various interim orders, passed by Hon'ble Supreme Court as well as by Hon'ble High Court at Bombay and looking to the contentious issues raised in this petition, Rule. 7. So far as interim relief is concerned, it has been observed by Hon'ble Supreme Court in SLP(C) No. 21965 of 2069 vide order dated 14th September, 2009 that a similarly situated another petitioner-party namely Maharashtra Navnirman Sena proposed to contest next assembly election of the State of Maharashtra and intends to contest 65% of the seats and they pray for a particular symbol of 'Railway Engine' mentioned at serial no. 43 of the list of free symbols and conditional order has been passed in favour of said registered unrecognised political party. The said order reads as under: "SLP(C) No. 21965/09: The petitioner-Maharashtra Navnirman Sena proposes to contest next assembly elections of the State of Maharashtra and intends to contests on 150 constituencies out of 228 constituencies. They pray that the candidates sponsored by this registered unrecognized political party may be given symbol of 'Railway Engine' mentioned at serial no. 43 of the list of free symbols be allotted to all the candidates. This is subject to the conditions that if any other candidate has won the last assembly election on this symbol, he shall take preference and subject to the general conditions given in paragraph 12(b) of the Order, 1968. This is only an interim order specially for the ensuing Assembly Election." Similar orders have been passed in W.P.(C) No. 422 of 2009 as well as in SLP(C) No. 23494 of 2009 and in W.P.(C) No. 426 of 2009. 8. Looking to the order passed by the Division Bench of Hon'ble High Court at Bombay in Writ Petition No. 8248 of 2009 vide order dated 24th September. 8. Looking to the order passed by the Division Bench of Hon'ble High Court at Bombay in Writ Petition No. 8248 of 2009 vide order dated 24th September. 2009, it has been observed in the said order in paragraphs 6, 7 and 8:- "6. Since the main question involved in this Writ Petition is pending before the Apex Court in vanous Writ Petitions which are referred to above, Office is directed to list all these matters only after the Writ Petitions pending before the Apex Court are disposed of by the Apex Court. Parties are at liberty to move for final hearing after disposal of the Writ Petitions which are pending before the Apex Court. 7. In so far as interim relief is concerned, our attention has been drawn to the interim Orders passed by the Apex Court in the matter of Maharashtra Navnirman Sena and also other similarly situated unrecognized registered political parties, in Special Leave Petition (C) No. 21965 of 2009, Writ Petition (C) No. 422 of 2009, Special Leave Petition (C) No. 426 of 2009. 8. We. therefore, pass the following Order in terms of the Orders passed by the Apex Court. (i) The petitioner, who is a political party (Lok Bharati) proposes to contest in the ensuing Assembly Election of the State of Maharashtra and the constituency intends to contest on 100 constituencies out of 288 constituencies. It prays that a candidate sponsored by this unrecognized registered political party may be given symbol of Cup and Saucer mentioned at Sr. No. 21 of the list of free symbols to be allotted to all the candidates. This is subject to a condition that, if any, election on this symbol, he shall take preference subject to general conditions mentioned in paragraph 12(2) of the Election Symbols (Reservation and Allotment) Order, 1968. No. 21 of the list of free symbols to be allotted to all the candidates. This is subject to a condition that, if any, election on this symbol, he shall take preference subject to general conditions mentioned in paragraph 12(2) of the Election Symbols (Reservation and Allotment) Order, 1968. (ii) We make it clear that this is only an interim Order specially passed for the ensuing Assembly elections." Looking to the aforesaid orders and also keeping in mind that the petitioner-party is similarly situated, registered unrecognised party and is also claiming symbol of 'Banana', which is at Serial No.3 in the list of free symbols as per notification issued by the Election Commission of India dated 14th September, 2009 (Annexure-1 to the memo of the petition) and as the main question, involved in this writ petition is also pending before Hon'ble Supreme Court in various writ petitions, Office is directed to list this matter after the writ petitions, pending before Hon'ble Supreme Court, are disposed of. Party is at liberty to move for final hearing after the disposal of the Writ Petitions, which are pending before Hon'ble Supreme Court. 10. I, therefore, pass the following orders in terms of the order passed by the Hon'ble Supreme Court:- (a) The petitioner, who is a political party (AJSU) proposes to contest in the ensuing Assembly Election of the State of Jharkhand and in tends to contest election on all the seats of 81 constituencies. It prays that a candidate sponsored by this registered unrecognised political party may be given a symbol of 'Banana' mentioned at Serial No. 3 of the list of free symbols to be allotted to all the candidates. This is subject to a condition that, if any, candidate has won the last Assembly Election on this symbol, he shall take preference subject general conditions mentioned in paragraph 12(2) of the Election Symbols (Reservation and Allotment) Order, 1968. (b) This Court makes it clear that this is only an interim Order especially passed for ensuing Assembly Election of the State of Jharkhand.