Writ Petition No. 154 (M/B) of 2014. Case: Natik Party Vs Union of India. High Court of Allahabad (India)
| Case Number | Writ Petition No. 154 (M/B) of 2014 |
| Counsel | For Appellant: C.B. Pandey and Maria Kirmani, Advs. and For Respondents: Manish Mathur and Akhilesh Misra, Advs. |
| Judges | Rajiv Sharma and Mahendra Dayal, JJ. |
| Issue | Constitution of India - Articles 14, 143, 226, 301, 324; Maharashtra Control of Organised Crime Act, 1999 - Section 2(10)(e); Representation of The People Act, 1951 - Sections 169, 29A |
| Judgement Date | March 14, 2014 |
| Court | High Court of Allahabad (India) |
Judgment:
(Lucknow Bench)
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Short counter-affidavit filed today on behalf of opposite parties Nos. 2 and 3, counter-affidavit as well as additional affidavit filed today on behalf of opposite party No. 4 and rejoinder-affidavit to the short counter-affidavit filed on behalf of opposite party Nos. 2 and 3, are admitted to record. With the consent of learned Counsel for the parties, we proceed to hear the matter finally.
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Heard Mr. C.B. Pandey, assisted by Ms Mariya Kirmani, Counsel for the petitioner, Mr. Manish Mathur, Counsel for the opposite parties Nos. 2 and 3 and Mr. Akhilesh Kalra, assisted by Mr. Piyush Agarwal, Counsel for the opposite party No. 4.
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The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner, which is an unrecognized registered political party in the State of U.P., for declaring Para 9 and 10 of the Election Symbols (Reservation and Allotment) Order, 1968 as ultra vires the Constitution and Rules of the Representation of the People Act, 1951. It has also been prayed that Election Commission of India may be directed to allot the symbol "Broom" to the petitioner for contesting Lok Sabha Election/2014.
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Shorn off unnecessary facts of the case are as under:
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Pursuant to Section 29-A of the Representation of People Act, 1953 [hereinafter referred to as the "Act"], the petitioner-Natik Party applied for registration to the Election Commission of India [hereinafter referred to as the "Commission"] vide letter dated 3.2.2010, the Commission, while exercising the powers conferred under Section 29-A of the Act, registered the petitioner as a political party. Since then, the petitioner is an unrecognized registered political party.
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For contesting the General Election to the Legislative Assembly of Uttar Pradesh, 2012, the petitioner applied under the provision of Para 10-B of the Election Symbols (Reservation and Allotment) Order, 1968 [hereinafter referred to as the "Symbol Order"] for allotment of symbol to its candidates. This application was accepted by the Commission and election symbol "broom" was allotted to the petitioner for contesting all 403 Assembly Constituencies in the State of U.P. In the election of Legislative Assembly of Uttar Pradesh, 2012, since the petitioner-Natik Party could not secure the required percentage of vote for recognition as State Party, therefore, it was not recognized and remained as a registered unrecognized party, vide Notification No. 56/2013/PPS-II dated 10.7.2013, Para 10B of the Symbol Order was amended by the Commission. On 9.12.2013, the petitioner requested the Commission to allot free symbol "broom" for the ensuing Lok Sabha Election, 2014.
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According to the petitioner, on 10th July, 2013, without the consent of the petitioner, the Commission allotted "broom" as a symbol to the Aam Aadmi Party for contesting Delhi Legislative Assembly Election, 2013. In the said Delhi Legislative Assembly, result of election was declared, in which, Aam Aadmi Party succeeded to secure 28 seats in the Assembly and on 19.12.2013, the party was recognized as a State party for the State of Delhi and the symbol "broom" was reserved for the Aam Aadmi Party in the State of Delhi.
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Mr. C.B. Pandey, Counsel for the petitioner submits that Para 9 of the Symbol Order provide that a symbol reserved for a State Party in any State shall not be included in the list of free symbols for any other State or Union Territory. Since symbol "broom" has now been reserved for Aam Aadmi Party in Delhi, it would not be excluded from the list of free symbols, therefore, neither in Uttar Pradesh nor in any other State, it would be allotted to the petitioner. Thus, the provision relating to exclusion of symbol reserved for a particular State from the list of free symbols is totally arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
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Mr. Pandey has further submits that Para 10 of the Symbol Order, which provide that the excluded free symbol would be made available to State party in other States, is wholly arbitrary and discriminatory for the reason that the State party, which is recognized in one State is unrecognized registered political in other State and, therefore, all unrecognized political party should be treated equally. Submission is that granting special status to a State party in other State has no rationality and is against the principle of level playing which is essential for fair election under Article 324 of the Constitution of India and Representation of People Act.
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Mr. Pandey submits that Para 6 of the Symbol Order provides only two classes of political parties i.e. (1) recognized political party; and (2) other unrecognized political party. A recognized party shall either be a National or a State Party. A national recognized party has symbol reserved for all the States, whereas the State recognized party has reserved symbol for a particular State only, where it is recognized. He further submits that from perusal of Para 5 of the Symbol Order, it is evident that it classified into two groups i.e. (1) reserved; (2) free. A symbol, which is not reserved are free symbol. His submission is that in case of State party, the symbol is reserved for that State only where it is recognized and so far as other State, it is not reserved symbol, therefore, it is free symbol in other States. Therefore, by excluding such symbol from the list of free symbols and make it available to State party in other States also is like giving national recognition to a State party indirectly. Thus, para 9 of the Symbol Order is liable to be struck down.
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Elaborating his submission, Mr. Pandey submits that as provided in para 10 of the Symbol Order, the State recognized party only get an entitlement to use its reserved symbol over the unrecognized party in other State, which may be refused also under Para 10(e) by the Commission. But the Aam Aadmi Party is misleading the people by showing that "broom" has been allotted to it for all the States. He submits that Para 10B (A) of the Symbol Order provide for the procedure for allotment of symbol to a political party for Legislative Assembly and Para 10B (B) for Parliamentary Election. Clause IV of the explanation of Para 10B provide that the concession of allotment of common symbol for the candidates of registered unrecognized party shall be only one time facility either at general election for the House of People or to a State Legislative Assembly, as the party may choose, and a party that has availed of this concession once shall not be eligible for the concession in any subsequent general election. Therefore, Aam Aadmi Party, which has already chosen to avail the concession of common symbol in general election i.e. Delhi Legislative Assembly has no right to choose common symbol for general election to the House of People (Lok Sabha Election 2014). Therefore, Aam Aadmi Party should not be permitted to use "broom" as its symbol.
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Lastly, Mr. Pandey submits that since the petitioner-Naitik Party and Aam Aadmi Party are unrecognized registered party for Lok Sabha Election, 2014 and further the petitioner has given the intimation to the Election Commission with regards to its intention to contest the general election of Lok Sabha, 2014 under Para 10B (B) and it has already contested the Election of Legislative Assembly in the State of U.P. on symbol "broom", it should be allotted to the petitioner-Naitik Party for contesting Lok Sabha Election, 2014.
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To strengthen his arguments, Mr. Pandey has placed reliance upon the judgment of the Hon'ble Supreme Court in Desiya Murpokku Dravida Kazhagam (DMDK) and another v. Election Commission of India, 2012 (7) SCC 340, Subramanian Swamy v. Election Commission of India, 2008 (10) JT 486, Kanhiya Lal Omar v. R.K. Trivedi and others, AIR 1986 SC 111, Noida Entrepreneurs Associations v. Noida and others, 2011(6) SCC 508, Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and others, 2010(5) SCC 246, Sadiq Ali and another v. The Election Commission of India, New Delhi and others, AIR 1972 SC 187, and J. Jayalalithaa and others v. State of Karnataka and others, 2014(2) SCC 401.
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Refuting the aforesaid submissions of the Counsel for the petitioner, Mr. Manish Mathur, Counsel for the Commission submits that the facility of allotment of common symbol to registered unrecognized political parties was originally provided under the provisions of Symbol Order w.e.f. 16.9.2011. The said facility was a one-time facility provided to all unrecognized registered political parties under the said paragraph 10B. The petitioner was granted this facility of allotment of common symbol of "broom" vide commission's letter No. 56/symbol/2011/PPS-II dated 13.1.2012 for the general election to the Legislative Assembly of Uttar Pradesh in the year 2012 as per the application made by the petitioner for such allotment. However, on contesting the election availing itself of that facility, the petitioner could not show the poll performance which would have entitled it to be recognized as a State party in Uttar Pradesh under Para 6A of the Symbol Order. He submits that the petitioner has set up 19 candidates and polled only 0.01% votes and did not win any seat in the said Assembly election in Uttar Pradesh.
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Mr. Mathur submits that vide Notification No. 56/2013/PPS-II dated 10.7.2013, the provisions of para 10B of the Symbol Order were amended, which came into force w.e.f. 15.7.2013. As per the amended provisions of para 10B, a registered unrecognized party can apply for the one-time concession of common symbol at a general election during the period of six month prior to the date of expiry of the House concerned. Under this provision, Aam Aadmi Party, which was then a registered unrecognized party, applied for the "broom" symbol as its common symbol for the general election to the Legislative Assembly of Delhi. The said party submitted its...
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