Back
2018 Supreme(Mad) 4492
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAJA, J.
Tamil Manila Congress (Moopanar) rep. by its President G.K. Vasan, Alwarpet, Chennai - Petitioner
Versus
The Election Commission of India rep. by its Secretary, Nirvachan Sadan, New Delhi & Another - Respondents
W.P. No. 35410 of 2016 & W.M.P.Nos.30479 to 30481 of 2016
Decided On : 19-12-2018
For the Petitioner:B.S. Gnanadesikan, Senior Counsel for M/s. B.S.G. Firm, Advocates.
For the Respondents: Niranjan Rajagopalan, Standing Counsel, B. Nedunchezhiyan, Standing Counsel.
Headnote:
Representation of the People Act, 1951 - Section 29A - Challenge - Quashing of order - An application seeking recognition of party and for Bicycle Symbol - Recognising Tamil Maanila Congress as a State Party also allotted Bicycle Symbol - With said symbol petitioner party has taken part in Election in year and also won out of Parliamentary seats contested and won out of seats contested in Tamil Nadu Legislative Assembly Election besides seats in Puducherry Legislative Assembly - Thereafter even in year petitioner party also won seats in Tamil Nadu Legislative Assembly and seats in Puducherry Legislative Assembly - With all these contributions made to party Founder President of Tamil Maanila Congress died in year and thereafter present petitioner was elected as President of party - After some time they decided to merge with Indian National Congress and said merger function took place in Madurai in presence of President of All India Congress Committee before large gathering - Party MLAs from Tamil Nadu and MLAs from Puducherry and member of Rajya Sabha had also merged with Indian National Congress Party - However questioning said merger one of then Sitting Legislatures belonging to petitioner party in Puducherry Legislative Assembly approached respondent - Election Commissioner of India respondent herein also accepting his case passed an order holding that said merger would not wipe off party and remaining surviving group of parent party can represent party but will not continue as a recognized political party and said order further stated that petitioner party would not be entitled to allotment of Bicycle Symbol but it was entitled to benefit of Para Symbol Order - However again certain difference of opinion arose in as a result petitioner as a President and large number of his followers including sitting M.L.As Former Mayors Former Union Chairman and Councilors of Local Body including Sitting President of Tamil Nadu Congress Committee left party and joined Tamil Maanila Congress - Finally petitioner was once again elected as President in General Council Meeting at Chennai and petitioner party also constituted Executive Committee Political Affairs Committee State Office Bearers District Presidents Presidents of various wings and constituted Village Level Committees throughout State of Tamil Nadu - Whether such party was earlier recognised in that State or Union Territory or not - Held, Merger will not wipe off party and remaining surviving group of parent party can represent party but will not continue as a recognized political party petitioner has once again approached respondent to consider their case in light of Explanation vi of Para of Election Symbols Order 1968 which was introduced by amendment and one another amendment took place - But respondent without considering case of petitioner in light of legal position adumbrated in Explanation vi of Para of Election Symbols Order 1968 wrongly passed impugned order hence same is liable to be quashed Senior Counsel pleaded - It is not in dispute that Tamil Maanila Congress was founded by who was in month of March applied to respondents to recognise said party and for allotment of Bicycle Symbol in their application - Election Commission of India accepting said application recognising Tamil Maanila Congress as a State Party allotted Bicycle Symbol - Using said symbol when elections were in State of Tamil Nadu in year petitioner party contested and won parliamentary seats contested and also won seats contested in Tamil Nadu State Legislative Assembly Election besides seats in Puducherry Legislative Assembly - It is also stated that in year also petitioner party won seats in Tamil Nadu Legislative Assembly and seats in Puducherry Legislative Assembly - Later on having some difference of opinion with All India Congress Party they parted with and moved an application for allotment of same symbol - Whereas Election Commission of India by its order inter alia has that petitioner party will hereafter be treated only as a registered-unrecognized party under Section 29A of Representation of People Act however party can avail of benefit under para 10A of Symbols Order subject to fulfilment of requirements thereunder - -If a Political Party which is unrecognised at present but was a Recognised National or State Party in any State or Union Territory not earlier than six years from date of notification of election sets up a candidate at an election in a constituency in any State or Union Territory whether such party was earlier recognised in that State or Union Territory or not then such candidate may to exclusion of all other candidates in Consultancy be allotted symbol reserved earlier for that party when it was a Recognised National or State Party notwithstanding that such symbol is not specified in list of free symbols for such State or Union Territory on fulfilment of each of following conditions namely that an application is made to Commission by said party for exclusive allotment of that symbol to candidate set up by it not later than third day after publication in Official Gazette of notification calling election - That said candidate has made a declaration in his nomination paper that he has been set up by that party at election and that party has also fulfilled requirements of clauses of paragraph read with paragraph in respect of such candidate and - That in opinion of Commission there is no reasonable ground for refusing application for such allotment Provided that nothing contained in this paragraph shall apply to a candidate set up by said party at an election in any constituency in a State or Union Territory where same symbol is already reserved for some other National or State Party in that State or Union Territory - Petition Allowed
JUDGMENT :
Challenging the correctness of the Proceedings No.56/Symbol/2016/PPS-II/Vol.I/154, dated 5.2.2016 and Proceedings F.No.56/Symbol/2016/PPS-II/Vol.I/279 dated 4.3.2016 of the 1st respondent, namely, the Secretary, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110 001 and to quash the same and for further direction, directing the respondents to allot Bicycle Symbol to the petitioner, the present Writ Petition has been filed.
2. Mr. B.S. Gnanadesikan, learned Senior Counsel appearing for the petitioner assailing the reasonings assigned by the 1st respondent in their impugned proceedings submitted that Shri. G.K. Moopanar, being the General Secretary of All India Congress for a period of eight years had difference of opinion due to some political reasons with the All India Congress Committee, therefore, he decided to quit the Congress and finally, floated the regional party called --Tamil Maanila Congress (Moopanar)-- in March, 1996. An application seeking recognition of the party and for Bicycle Symbol was also presented before the 1st respondent on 02.04.1996. The Election Commission of India, the 1st respondent herein, recognising the Tamil Maanila Congress (Moopanar) as a State Party also allotted Bicycle Symbol. With the said symbol, the petitioner party has taken part in the Election held in the year 1996 and also won 20 out of 20 Parliamentary seats contested and won 39 out of 40 seats contested in Tamil Nadu Legislative Assembly Election besides 5 seats in Puducherry Legislative Assembly. Thereafter, even in the year 2001, the petitioner party also won 23 seats in Tamil Nadu Legislative Assembly and 2 seats in Puducherry Legislative Assembly. With all these contributions made to the party, Mr. G.K. Moopanar, the Founder President of the Tamil Maanila Congress (Moopanar) died in the year 2001 and thereafter, the present petitioner Shri. G.K. Vasan was elected as President of the party. After some time, they decided to merge with Indian National Congress and the said merger function took place in Madurai in the presence of Smt. Sonia Gandhi, President of All India Congress Committee before the large gathering.
3. Arguing further, the learned Senior Counsel for the petitioner submitted that 18 out of 23 party MLAs from Tamil Nadu and 1 out of 2 MLAs from Puducherry and 1 member of Rajya Sabha had also merged with the Indian National Congress Party. However, questioning the said merger, one of the then Sitting Legislatures belonging to the petitioner party in Puducherry Legislative Assembly, approached the 1st respondent. The Election Commissioner of India, the 1st respondent herein also accepting his case passed an order dated 22.3.2004 holding that the said merger would not wipe off the party and the remaining surviving group of the parent party can represent the party, but will not continue as a recognized political party and the said order further stated that the petitioner party would not be entitled to the allotment of Bicycle Symbol, but it was entitled to the benefit of Para 10A of the Symbol Order. However, again, certain difference of opinion arose in 2014, as a result, the petitioner as a President and large number of his followers including Ex.M.Ps., Ex.M.L.As., 2 sitting M.L.As., Former Mayors, Former Union Chairman and Councilors of Local Body including the Sitting President of Tamil Nadu Congress Committee left the party and joined Tamil Maanila Congress (Moopanar). Finally, the petitioner was once again elected as President in the General Council Meeting held at Chennai and the petitioner party also constituted Executive Committee, Political Affairs Committee, State Office Bearers, District Presidents, Presidents of various wings and constituted Village Level Committees throughout the State of Tamil Nadu.
4. Continuing his argument, Mr. Gnanadesigan, the learned Senior Counsel for the petitioner also submitted that when the party is effectively functioning in the ground level, the
