The Election Commissioner vs P. Kakkan, President, Tamil Nadu Congress Committee and Others

Ramanujam, J.—Writ Petition No. 327 of 1970 has been filed by the Election Commissioner, the second Respondent in Writ Petition No. 1287 of 1970, against the view expressed by Alagiriswami J., that the Election Commissioner cannot issue directions to the Returning Officer or the Chief Electoral Officer of the State in relation to the bye-election held in the State, not to allot the symbol of two bullocks with yoke on to the group headed by the first writ-Petitioner, while dismissing the writ petition on the ground that, the election process having started in relation to Colachel Assembly Constituency, the proper remedy for the candidate set up by the Petitioners, if he is not successful is by means of an election petition u/s 80 of the Representation of the People Act and that it is not open to the Court, in exercise of the powers under Article 226 of the Constitution of India, to interfere with the process of election once started.

Writ Appeal No. 345 of 1970 has been filed by the Petitioners in Writ Petition No. 1287; of 1970 against the order of the learned Judge dismissing the writ petition on the above ground, without deciding the case on the merits.

Writ Petition No. 1513 of 1970, has been filed by the same Petitioners as in writ Petition No. 1287 of 1970, seeking a writ of mandamus directing the Electoral Officer, Madras, the Election Commissioner, New Delhi and the Returning Officer. Cheranmahadevi Assembly Constituency, to allot to the candidates set up by the Tamil Nadu Congress Committee, of which the first Petitioner is the president and the second Petitioner is one the three secretaries, the symbol of two bullocks with yoke on, which is the reserved symbol for the Indian National Congress.

In Writ Petition No. 1513 of 1970 the Petitioners filed Civil Miscellaneous Petition No. 7145 of 1970 for an interim injunction from the Court, restraining the Election Commissioner from giving any directions, either oral or in writing, to the Returning Officer of Cheranmahadevi Assembly Constituency not to allot the symbol of two bullocks with yoke on to the official candidate set up by the Tamil Nadu Congress Committee of which the first writ-Petitioner is the president. There was an interim direction by this Court to the Election Commissioner not to issue directions to the Chief Electoral Officer or to the Returning Officer, Cheranmahadevi Assembly Constituency, not to allot the symbol of two bullocks with yoke on unless in the meanwhile a decision is taken under paragraph 15 of the Election Symbols (Reservation Allotment) Order, 1968 (hereinafter referred to as symbols order) issued under Rule 5 of the Conduct of Election Rules, 1961 (hereinafter referred as Election Rules) made under the Representation of the People Act, 1951.

As the questions arising in all the above proceedings are common, they were heard together and common judgment is being rendered.

Before we consider the merits of the rival contentions of the parties in these proceedings, it is necessary to set out the facts leading up to the above proceedings.

A notification u/s 150(1) of the Representation of the People Act, 1951 calling upon the Colachel Assembly Constituency to elect a person for the purpose of filling up a vacancy in the Tamil Nadu'' Legislative Assembly, was issued by the Election Commissioner, New Delhi, on 17th April 1970. The last date for filing nominations for the election was 24th April 1970. The date for scrutiny of nominations was 25th April 1970. The last date for withdrawal of candidatures was 27th April 1970. The date of poll, if any, was fixed as 21st May 1970. On 24tb April 1970, the Election Commissioner issued the following directions by telegram, to the Chief Electoral Officer, Madras and the Returning Officer for Colachel Assembly Constituency.

In view of the dispute now pending before Election Commission between two groups of Indian National Congress, each claiming to be the Congress please do not allot reserved Symbol two bullocks with yoke on to any contesting candidates even if there is only one contesting candidate claiming that Symbol. But allot to a contesting candidate or each contesting candidate claiming to be sponsored by Indian National Congress a free Symbol out of list of free Symbols available in the State of Tamil Nadu according to his choice. If ha does not make any such choice allot a free Symbol to each candidate according to your discretion. As regards postal ballot papers for service voters below name of candidate sponsored by group headed by Shri Nijalingappa description of the party will be Congress Nijalingappa group and below name of candidate sponsored by group headed by Shri Jagjivan Ram, the description of the party will be Congress Jagjivan Ram group. You will determine party affiliation of respective candidates by reference to the president, secretary or any other office bearer by whom notice under paragraph thirteen of Election Symbols (Reservation and Allotment) Order, 1968 has been signed.

Shri P. Kakkan and Shri P. Ramachandran claiming to be president and one of the secretaries of the Tamil Nadu Congress Committee, respectively, filed Writ Petition No. 1287 of 1970 on 21st April 1970, seeking a writ of mandamus directing the Election Commission, not to conduct any election to the Parliament or to ''the State Legislative Assembly, without allotting the symbol of two bullocks with yoke on, reserved for the official candidate of the Indian National Congress (hereinafter referred to as the Reserved Symbol), to the candidate sponsored by the organization represented by them. In that writ petition, they also sought an interim direction from the Court to the Respondents not to proceed with the bye-election to Colachel Assembly Constituency, which had been notified as above. Alagiriswami J., considered both the writ petition and the petition for in-term directions, and by his judgment, dated 27th April 1970, dismissed the writ petition on the ground that, the election process having commenced by the issue of a notification by the Election Commission u/s 150(1) of the Representation of the People Act on 17th April 1970, it was not open to the Court acting under Article 226 of the Constitution of India, to interfere with the process of election already started and that if the candidate set up by the Petitioners was not successful, he might, by way of an election petition u/s 80 of the Representation of the People Act, question the result of the election. The learned Judge, however, in the course of the judgment, considered the propriety of the Election Commission issuing the telegram referred to above directing the Returning Officer of Colachel Assembly Constituency not to allot the Reserved Symbol to any contesting candidate pending the dispute before the Election Commission between the two groups of the Indian National Congress, one headed by Shri Nijalingappa and the other headed by Shri Jagjivan Ram, as to which was entitled to the reserved symbol. The learned Judge expressed the view that the Election Commission had no jurisdiction to issue the instruction contained in the telegram directing the Returning Officer not to allot the Reserved Symbol to either faction, that it has got to decide ''the question as to which faction is the Indian National Congress, entitled to the Reserved Symbol under paragraph 15, that, if necessary, after deciding! the question, it might issue another notification under Rule 5 of the Election rules, after due publication directing that a certain symbol should or should not be allotted to either party, and that the instructions issued by the Election Commission in the form of a telegram referred to above ran contrary to the Election Rules as well as the Symbols Order, 1968.

While the writ Petitioners are challenging the order of the learned Judge dismissing the writ petition on the ground that it is not maintainable after the election process had commenced, in Writ Appeal No. 345 of 1970, the Respondents in the writ petition have filed Writ Appeal No. 327 of 1970 taking exception to the view expressed by the learned Judge that the Election Commission had no jurisdiction to issue the instructions referred to above not to allot the Reserved Symbol to any faction.

Taking advantage of the observations made by the learned Judge, that the Election Commission cannot issue such directions as are contained in the telegram referred to above, the Petitioners in the writ petition, Writ Petition No. 1287 of 1970 filed another petition for writ of mandamus directing the Election Commission, the Chief Electoral Officer and the Returning Officer of Cheranmahadevi Assembly Constituency to allot the Reserved Symbol to a candidate set up by the Tamil Nadu Congress Committee represented by the Petitioners, and they also sought an interim injunction restraining the Election Commission from giving any instruction, either oral or in writing, to the third Respondent not to allot the Reserved Symbol to the official candidate set up by them. The said petition for interim injunction was heard by the same learned Judge (Alagiriswami J.) who following the view he had expressed in the earlier petition Writ Petition No. 1287 of 1970, relating to Colachel Assembly Constituency, issued an interim direction to the Election Commission not to give any instructions to the Chief Electoral Officer or the Returning Officer, Cheranmahadevi Assembly Constituency, not to allot the Reserved Symbol unless in the meanwhile a decision is taken under paragraph 15 of the Symbols Order. Aggrieved against the said interim direction, the Election Commission has filed a counter affidavit complaining that it has got the effect of fettering him in the exercise of his normal statutory powers.

Two main contentions that were raised by the Petitioners in both the writ petitions, are (i) The Tamil Nadu Congress; Committee, of which the first Petitioner is the president and the second Respondent is one of the secretaries, is entitled to the allotment of the Reserved Symbol to its candidate, and (ii) The Election Commission had no right to issue such a direction as is contained in the telegram, dated 21st April 1970, set out above, not to allot the Reserved Symbol.

The dispute relating to the Reserved Symbol arose under the following circumstances: The Indian National Congress is an All-India Political organization established in or about 1885. Its constitution envisaged various territorial divisions knowing as Pradesh Congress Committees. The Tamil Nadu Congress Committee was one of such territorial divisions. The Election Commission in or about August 1951, decided that the Indian National Congress should be assigned the symbol two bullocks with yoke on and by a notification, dated 1st December 1966, issued under Rule 5(1) of the Conduct of Election Rules, 1951, allotted the said symbol to the Indian National Congress and communicated the same to the General Secretary of the All-India Congress Committee. In pursuance of the said notification of the Election Commission, allotting the Reserved Symbol to the Indian National Congress the said Reserved Symbol was being allotted to the candidates set up by the Indian National Congress either for the Parliamentary Constituency or for the State Assemblies, and who have been duly authenticated by the All-India Congress Committee or by the Pradesh Congress Committee as the case may be. On 7th December 1967 Shri Nijalingappa is said to have been elected President of the Indian National Congress for a period of three years according to the Petitioners but two years according to the Respondents and the Tamil Nadu Congress Committee was headed by one Shri R. Krishnaswami Naidu. In or about November 1969, a split has, however, occurred in the Indian National Congress, and there are two groups of the organization now in existence, one led by Shri S. Niljalingappa and the other by Shri Jagjivan Ram, each of these two groups claiming to be the Indian National Congress. It appears that there was a requisition by some members of the All-India Congress Committee to convene a meeting of the Indian National Congress. But, such a meeting was not convened by the then President, Shri Nijalingappa. It is said that he was bound to call for such a meeting under the Constitution of the Indian National Congress. It is also said that a special meeting was actually convened by the requisitions and in that meeting Shri C. Suhramaniam has been elected as interim President of the Indian National Congress. Shri Jagjivan Earn is said to have been elected as the President sometime later. In view of this split, of the Indian National Congress into two groups one headed by Shri S. Nijalingappa and the other by Shri Jagjivan Earn, the question has now arisen as to which faction is entitled to the Reserved symbol.

Shri Kakkan, the first Petitioner in both the writ petitions, claims to be the President of the Tamil Nadu Congress Committee functioning as a territorial division of the faction, viz., the Indian National Congress headed'' by Shri S. Nijalingappa. His case is that the candidate set up by the group headed by him in Tamil Nadu is entitled to the allotment of the said Reserved Symbol, that there is no question of the Returning Officer taking any decision as to the allotment of symbols, that he has no alternative except to allot the Reserved Symbol to a candidate set up by the Indian National Congress as its official candidate and that he has no jurisdiction to refuse to allot the same to the candidate set up by his group. It is urged by the Petitioners that the Election Commission cannot and is not bound to take note of any rival claim being put forward by any other group as representing the Indian National Congress. The Petitioners further urge that the Election Commission, the Chief Electoral Officer and the Returning Officers concerned have throughout recognized the All-India Congress Committee headed by Shri Nijalingappa as President and the Tamil Nadu Congress Committee headed by the first Petitioner as the president, as entitled to the Reserved Symbol allotted to the Indian National Congress, and there is no justification for ignoring such existing recognition merely because some rival group puts forward a claim to the Reserved Symbol on the ground that it represents the Indian National Congress, so long u they do not establish their claim in a Court of law.

As against the Petitioners claim of entitlement to the Reserved Symbol to the candidate set up by that group of the Tamil Nadu Congress Committee headed by the first Petitioner, the Election Commission state in its counter affidavit filed in Writ Petition No. 1513 of 1970, that the Indian National Congress was, of course, recognized by the Election Commission as t national party and the symbol of two bullocks with yoke on was reserved for the candidates set up by that party at elections to Parliament and State Legislative Assemblies in all the States and Union Territories, that a split had, however, occurred in the Indian National Congress from November 1969 that there are two groups of the party now in existence, one led by Shri S. Nijalingappa and the other by Shri Jagjivan Ram, each of these two groups claiming to be the Indian National Congress and seeking the allotment of the said Reserved Symbol to the candidates set up by them, that in view of the dispute arising out of the claims made by the rival groups of the Indian National Congress for the allotment of the Reserved Symbol to their respective candidates, the Commission has to decide the dispute under paragraph 15 of the Symbols Order, which enables the Commission to decide which one of the two rival groups is the Indian National Congress for the purpose of the allotment of the Reserved Symbol and that the enquiry into the dispute between the two rival groups had already commenced before the Commission from 26th January 1970 and is actually proceeding from day to day from 13th May 1970 after the preliminary, hearing on 7th March 1970. It is also said that in the meantime, large number of bye-elections have to be held in the various States and Onion, Territories, that as each of the two rival groups of the Indian National Congress is claiming the Reserved Symbol for allotment to its candidates, would seriously prejudice one party if the symbol is allotted to the other in any bye-election and that will also lead to this anomaly, viz., that one faction may have to contest one bye-election with the Reserved Symbol while in another bye-election it may have to oppose the same symbol if it is allotted to the candidate set up by the rival group. In order to avoid the said difficulties and confusion, the Commission is said to have decided from the very commencement of the dispute that the Reserved Symbol should not be allotted to either of the two factions even if it is the only faction contesting a bye-election, till the dispute is decided by the Election Commission. As a matter of fact, the Commission had conducted two bye-elections to the House of the People and twelve bye-elections to the State Legislative Assemblies in various States, and in all these bye-elections, the Reserved Symbol was not allotted to the candidates set up by either of the two rival groups. According to the Election Commissioner, the direction not to allot the Reserved Symbol to the candidates set up by either of the two rival groups is eminently reasonable, just and lair in view of the dispute between them. It is only in the light of these facts, the Commission issued the direction contained in the telegram, dated 21st April 1970 referred to above, addressed to the Be turning Officer, Colachel Constituency.

The Election Commission also denies that the averment of the Petitioners that Shri Nijalingappa had been recognized as the President of the Indian National Congress by the Commission and states that it was not at any time made aware of the election of Shri Nijalingappa, Shri R. Sadiq Ali and Shri Venkatasubbiah as office bearers of the Indian National Congress in the year 1967. It is said that after the issue of the notification, dated 16th December 1966, regarding the allotment of symbols to political parties and independent candidates, where under the Election Commission reserved the symbol of two bullocks with yoke on to the Indian National Congress, the Commission called upon all the recognized political parties, by its circular, dated 28th September 1967, to give the names and addresses of their office-bearers both in their Central office and in their branch offices, if any, for reference by the Commission from time to time. In reply to the said circular from the Election Commission, Shri T. Manean, the then General Secretary of the All India Congress Committee, sent a list of names of the office bearers of the Congress Party in the Centre and in the States, with his letter, dated 19th October 1967, and the said list showed Shri K. Kamaraj as the President, and Shri Sadiq Ali and Shri T. Manean as the General Secretaries of the All India Congress Committee. As far as the Tamil Nadu Congress Committee was concerned, Shri R.K. Naidu was shown as its resident. The Election Commission was proceeding on the basis of this list in the matter of allotment of symbols, till the 21st December 1969, when by a letter of even date Shri C. Subramaniam, styling him self as the President of the Indian National Congress, wrote to the Chief Election Commissioner, giving new list of names of the office-bearers of the Indian National Congress in the Centre and in the States, for the purpose of allotment of symbols. The list enclosed by him with his letter showed Shri C. Bubramaniam as the President and Shri K. Bhankar Dayal Sharma and Shri H.N. Bahhuguna as the General Secretaries of the Indian National Congress at the Centre, and Shri R.V. Saminathan as the president of the Tamil Nadu Congress Committee. That letter gave the address of the central office of All Indian Congress Committee as 15, Windsor Place, New Delhi, as against its prior address viz., No. 7, Jantar Mantar Road, New Delhi. The list of officers submitted by Shri C. Subramaniam was, therefore, sent to the General Secretary of the All Indian Congress Committee at 7, Jantar Mantar Road, New Delhi, which has been given as its registered office, calling for his comments on the above letter. Even in that letter, the Commission has expressed that it proposes to hear both parties before taking a decision in the matter. To this Shri Sadiq Ali, styling himself as the General Secretary of All India Congress Committee at 7, Jantar Mantar Road, New Delhi-1, replied by his letter, dated 14th January 1970, stating that Shri C. Subramaniam is not in fact the President of the Indian National Congress, that the duly elected President of the Indian National Congress was Shri S. Nijalingappa, and that the persons listed out by Shri C. Subramaniam in his letter are not the office-bearers of the Indian National Congress, but they are persons expelled from or otherwise ceased to be members of the Indian National Congress. He also stated that the group headed by Shri C. Subramaniam have formed a new party consisting of persons who were expelled from or who have ceased to be members of the Indian National Congress, and that they are neither a splinter group nor a rival section of the Indian National Congress. In his turn, he sent a list of names of the office-bearers of the Indian National Congress, showing Shri S. Nijalingappa as the President and Shri Sadiq Ali and Shri P. Venkatasubbiah as the General Secretaries. Thus according to Election Commission it is for the first time through Shri Sadiq Ali''s letter, dated 14th January 1970, it was put on notice of the election of Shri S. Nijalingappa at the President and the other two as the General Secretaries of the Indian National Congress. It is in these circumstances the Election Commission considered it necessary to decide the dispute between the two groups, one headed by Shri C. Subramaniam, as interim President and later by Shri Jagajivan Earn as President and the other headed by Shri S. Nijalingappa, putting forward a claim to the Reserved Symbol.

One other point which was not raised before Alagiriswami J., in Writ Petition No. 1287 of 1970, has been raised in Writ Petition No. 1513 of 1970 by way of an additional ground by the writ Petitioners and that is this: As already stated, the Election Commission is proceeding to decide the dispute between the two rival groups of the Indian National Congress for the purpose of the allotment of the Reserved Symbol, under paragraph 15 of the Symbols Order. The writ Petitioners contend that the Election Commission cannot validly embark on any enquiry regarding the symbol of the National Congress and that paragraph 15 does not confer jurisdiction on the Election Commission to decide party disputes. They also contend that paragraph 15 of the Symbols Order, as far as it confers power on the Election Commission to decide as to which of two groups really represent the Indian National Congress, is ultra vires and void and that the Election Commission has no option except to allot the Reserved Symbol to the persons properly authorized by the President Shri S. Nijalingappa and, Shri Sadiq Ali, Secretary of the All India Congress Committee, as the recognized body of the Indian National Congress. This contention that paragraph 15 of the Symbols Order is ultra vires and void, in so far as it confers power on the Election Commission to decide party disputes, was not raised before the learned Judge. But, being a legal submission, we allowed the writ Petitioners to raise the said contention at this stage. Thus, there are three contention to be considered at this stage.

Before we deal with the merits of the above contentions, we would like to refer to the relevant-statutory provisions, which will be helpful to appreciate the said contentions raised by the writ Petitioners.

The Constitution of India, by Article 334 had vested the Superintendence, direction end control of the preparation of the electoral rolls for and the conduct of all elections to the Parliament and to the Legislature of every State in the Election Commission. Under Article 327 it enabled the Parliament to make laws in relation thereto. The Parliament enacted the Representation of the People Act, 1951, and u/s 169 thereof enabled the Government to make rules in consultation with the Election Commission for the conduct of the election. The Government, in consultation with the Election Commission, promulgated the Conduct of Election Rules, 1961 under the said Section 169. Rule 5 of the Election Rules makes a provision for specification of the symbols in Parliamentary and Assembly elections and the restrictions to which their choice shall be subject. It may be noted here that the Representation of the People Act, 1951, by itself does not contain any provision dealing with symbols. It appears that the system of allotting symbols to the candidates was adopted in India to enable illiterate persons to vote easily without committing any breach of the rules of secrecy of voting. Originally, the system of allotting a separate symbol to such candidate and specifying a separate ballot box for each candidate was tried. But, that was found to be somewhat unsatisfactory and the present system of voting by making a mark in the ballot paper with the help of the symbols printed against the candidates names in the ballot paper, was adopted. Though the recognition of political parties was in vogue even prior to 1961, that was dealt with as a matter of policy. But even under the Election Rules of 1961, the recognition of political parties, was non-statutory, while the allotment of symbols to them continued to be on a statutory basis as before Rule 5 of the Election Rules read as follows:

(1) The Election Commission shall, by notification in the Gazette of India and in the Official Gazette of each State, specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject.

(2) Where at any such election, more nomination papers than one are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered, and not other declaration as to symbols, shall be taken into consideration under Rule 10 even if that nomination paper has been rejected.

Rule 10 of the Election Roles is set oat here-under:

(1) The list of contesting candidates referred to in Sub-section (1) of Section 38 shall be in Form 7A or Form 7B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language as the Election Commission may direct.

(2) . . .

(3) . . .

(4) At an election in a parliamentary or assembly constituency, where a poll becomes necessary, the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission.

(a) allot a different symbol to each contesting candidate in conformity, as far us practicable, with his choice; and

(b) if more contesting candidates than one than have indicated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted.

(5) The allotment by the returning officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which ease the Election Commissioner may revise the allotment in such manner as it thinks fit.

(6) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer.

Rule 10 provides for the preparation of the list of candidates in form 7-A or form 7-B as the case may be, and states that if a poll becomes necessary, the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in their behalf by the Election Commission, allot a different symbol to each contesting candidate in conformity with bit choice. Under Rule 10(5) the allotment by the Returning Officer of any symbol to a candidate is made final except where it is inconsistent with any directions issued by the Election Commission in this behalf, in which case the Election Commission may revise the allotment in such manner as it thinks fit. Form 7-A referred to in Rule 10(1) shows the symbol allotted to the candidate by the Returning Officer. In pursuance of the power given to the Election Commission under Rule 5(1) to impose restrictions on the choice of the symbol by the candidates, the Election. Commission promulgated on 31st August 1968, an order called the Election Symbols (Reservation Allotment) Order, 1968. Paragraph 3 of the said order is to the following effect:

(1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Order shall make an application to the Commission for its registration as a political party for the purposes of this order.

(2) Such application shall be made-

(a) if the association or body is in existence at the commencement of this order, within sixty days next following the commencement.

(b) if the association or body is formed after the commencement of this order, within sixty days next following the date of its formation.

Provided that no such application for registration shall be necessary on the part of any political party which immediately before the commencement of this order is either a multi-State party or a recognized party other than a multi-State party and every such party shall be deemed to be registered with the commission as a political party for the purposes of this Order.

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) . . .

Sub-paragraphs (3) and (4) of paragraph 3 of the Symbols Order provide that every application by a political party for allotment of a symbol should be signed by the Chief Executive Officer of the association and that it should contain the various particulars set out in sub-paragraph (4) including the name of its president, secretary and all other office-bearers. Paragraph 4 states that in every contested election a symbol shall be allotted to a contesting candidate in accordance with the provisions of the Symbols Order, and that different symbols should be allotted to the different contesting candidates at an election in the same constituency. Paragraph 5 classifies the symbols as either reserved or free. A reserved symbol is defined as a symbol which it reserved for a recognized political party for exclusive allotment to contesting candidates set up by that party, and a free symbol is defined as a symbol other than a reserved symbol. Paragraph 6 makes a classification of political parties into two groups viz. (1) recognized political parties and (2) unrecognized political parties. Paragraph 7 provides for two categories National party and State party even within the category of recognized political parties. Paragraph 8 provides for the choice of symbols by candidates of National and State parties and the allotment thereof. Paragraph 8 reads as follows:

(1) A candidate set up by a National party at any election in any constituency in India shall choose, and shall be allotted, the symbol reserved for that party and no other symbol.

(2) A candidate set up by a State party as an election in any constituency in a State in which such party is a State party shall choose, and shall be allotted the symbol reserved for that party in that State and no other symbol.

(3) A reserved symbol shall not be chosen by, or allotted to, any candidate in any constituency than a candidate set up by a National party for whom such symbol has been reserved or a candidate set up by a state party for whom such symbol has been reserved in the State in which it is a State party even if no candidate has been set up by such National or State party in that constituency.

Paragraph 13 states that a candidate shall be deemed to be set up by a political party if, and only If (a) the candidate has made a declaration to that effect in his nomination paper as provided in Rule 4 of the Election Rules, (b) a notice in writing to that effect has, not later than 3 p.m. on the last date of withdrawal of candidatures, been delivered to the returning officer of the constituency, and (c) the said notice is signed by the president, the secretary or my other office-bearer of the party and the president, secretary or such other office-bearer is authorized by the party to tend such notice and the name and specimen signature of the president, the secretary or such other office-bearer arc communicated in advance to the Returning Officer of the constituency and to the Chief Electoral Officer of the State. Paragraph 15 of the Symbols Order, the validity and scope of which are in controversy is as follows:

When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognized political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups it that recognized political party and the decision of the Commission shall be binding on all such rival sections or groups.

Paragraph 17 enables the Commission to issue one or more notifications specifying the national parties and the symbols respectively reserved for them. Paragraph 18 enables the Commission to issue instructions and directions (a) for the clarification of any of the provisions of the Symbols Order, (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions and (c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties for which this Order makes no provision or makes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections. It is in the light of the above provisions, the three contentions of the Petitioners have to he considered.

Shri V.K. Thiruvenkatachari, learned Counsel appearing for the writ Petitioners, submitted that the group of the Tamil Nadu Congress Committee headed by the first writ Petitioner, is entitled to the allotment of the Reserved Symbol to the candidate sponsored by it. The learned Counsel places reliance on the proviso to paragraph 3(2) of the Symbols Order and states that notwithstanding the absence of any specific application for registration, the Indian National Congress is deemed to be registered with the Commission as a political party for the purpose of the Symbols Order, that the names of the Petitioners as the president and the secretary of the Tamil Nadu Congress Committee are available with the Commission and that as such as per paragraph 8 a candidate set up by the Tamil Nadu Congress Committee represented by the Petitioners at any election in any constituency in Tamil Nadu has to be allotted the symbol reserved for the Indian National Congress and no other symbol, provided the conditions set out in paragraph 13 are complied with. It is said that there is no option but to allot the reserved symbol to the candidate set up by the Petitioners. The argument is that once a party is recognized as a political party and a symbol has been allotted to it under the Symbols Order, there is no discretion left to the Returning Officer in the allotment of the Reserved Symbol to the candidates sponsored by such recognized political party, provided the conditions set out in paragraph 3 are complied with; and that so long as the registration of that political party stands and the names of its president and its secretary are known to the Election Commission and the Returning Officer, they have to be guided only by the materials in their possession in the allotment of symbols and are in fact not bound to take note of any new faction claiming to be such recognized political party. It is said that so long as the registration of a political party with the names of its president and secretary standing without any modification on the file of the Election Commission, it cannot take note of any rival claim to the offices of such registered political party. It is also argued that the letter, dated 21st December 1969 from Shri C. Subramaniam, giving a fresh set of names of office-bearers of the Indian National Congress, cannot be taken seriously by the Election Commission and that a dispute should not be taken as arising therefrom as to the allotment of Reserved Symbol. The learned Counsel also submits that the letter of Shri C. Subramaniam does not on the face of it show as to what happened to the officers elected previously, whether their term had expired or whether they had been removed from their offices and that therefore Shri S. Nijalingappa''s term as president, not having expired by November 1969 he should be deemed to continue as the president of the Indian National Congress for the purpose of the Symbols Order. As regards the Tamil Nadu Congress Committee, the Counsel for the Petitioner states that the records of the Chief Electoral Officer show that the Tamil Nadu Congress Committee had been registered for the purpose of the Symbols Order with the first Petitioner as its president that in view of such registration the Returning Officer has no other alternative except to allot the Reserved Symbol to the candidate sponsored by the group headed by him and that whatever may be the position in relation to the All India Congress Committee, Shri Kakkan''s position as the president of the Tamil Nadu Congress Committee, which fact has been registered with the Election Commission, cannot be ignored in the allotment of the Reserved Symbol.

As regards this contention, Mr. Mohan, learned Counsel appearing for the Respondents in the writ petition, submits that it is true that under paragraph 3(2) proviso, the Indian National Congress is deemed to have been registered with the Commission as a political party for the purpose of the Symbols Order, but states that so far as the records of the Election Commission go, it is seen that the names of Shri K. Kamaraj and Shri Sadiq Ali had been notified as the president and secretary of the Indian National Congress, by a letter, dated 19th October 1967 received from its general secretary, that thereafter the election of Shri S. Nijalingappa and the other office-bearers had not been notified to the Election Commission and that only on 21st December 1969 Shri C. Subramaniam''s letter notified a list of names of the office-bearers of the Indian National Congress to the Commission. When this letter was sent to Shri Sadiq Ali, whose name was found as the, secretary of the Indian National Congress in the records of the Election Commission, he repudiated the claims made by Shri C. Subramaniam and stated that the group headed by Shri S. Nijalingappa truly represented the Indian National Congress and not the group headed by Shri C. Subramaniam. A dispute having thus arisen, where two groups claim the Reserved Symbol, the Commission has to necessarily decide under paragraph 15 as to which of the rival groups is the Indian National Congress, a recognized political party. Even in respect of Tamil Nadu Pradesh Congress Committee disputes had arisen. Shri C. Subramaniam''s letter, dated 21st December 1969 stated that Shri R.V. Swaminathan was its president, while Shri Sadiq Ali''s letter, dated 23rd January 1970 indicated that Shri P. Kakkan, the first writ Petitioner, was its president. In the face of these rival claims, the Commission was unable ten accept the demand of the Tamil Nadu Congress Committee of which the first writ Petitioner claims to be the president, to allot the reserved symbol to the candidate set up by that group in Tamil Nadu.

On a due consideration of the matter we are not in a position to accept the contention put forward on behalf of the writ Petitioners in this regard. Even if a political party with certain office-bearers had been recognized by and registered with the Election Commission, or is deemed to have been registered under the proviso to paragraph 3 of the Symbols Order, if another group comes forward and questions the competency of the office-bearers so registered to represent the recognized political party and asserts in itself the right to represent the said party, the Election Commission cannot ignore the claim put forward by the rival group. It has to naturally and necessarily find which of the two groups that recognized political party is and whose sponsoring and authentication of a candidate should be accepted. The mere fact that a political party stood registered with its office-bearers on the files of the Election Commission, will not enable the office-bearers so registered to continue to sponsor and authenticate the candidature of candidates for the purpose of the allotment of the symbol, notwithstanding the dispute raised by a group of persons questioning the status or competency of such office-bearers to sponsor a candidate and authenticate his candidature. Once there is a splitting up of a recognized political party and two rival sectional thereof claim the same Reserved Symbol, the Election Commission has to decide the dispute under paragraph 15 of the Symbols Order. To say that notwithstanding the pendency of the dispute, the candidates sponsored by the group of the Indian National Congress headed by Shri S. Nijalingappa should be allotted the Reserved Symbol, would mean that the Election Commission had considered one rival group as the recognized political party, which fact he has to decide under paragraph 15 after hearing the representations of both the groups, and all other persons as desire to be heard. We are not in a position to accept the learned Counsel''s contention that under the Symbols Order the group headed by Shri S. Nijalingappa at the centre and the group headed by Shri P. Kakkan in Tamil Nadu are entitled to the allotment of the Reserved Symbol notwithstanding the disputed raised by the other rival group. An ancillary contention was put forward by the learned Counsel for the Petitioners, that the Election Commission should have directed the other group headed by Shri Jagivan Ram to establish their claim to represent the Indian National Congress, in a civil Court, and that until the decision is rendered by a civil Court, declaring the right of the group headed by Shri Jagjivan Earn to represent the Indian National Congress, the registration of the Indian National Congress with the office bearers on record of the Election Commission should be accepted and acted upon for the purpose of the allotment of the Reserved Symbol, thus allowing the status quo to continue. We are not in a position to agree. The Election Commission has to tentatively decide as to which of the rival groups represents the political organization registered in his books as being entitled to the Reserved Symbol. It as not abdicate its functions under paragraph 15 of the Symbols Order and drive the parties to a Court of law and continue the status quo by allotting the reserved symbol to one of the rival groups-till a final decision is rendered by a Court which is likely to take considerable time. Further, if, without deciding the dispute itself, it directs the rival group to go to a Court of law and get a declaration in their favour, and in the meanwhile allows the existing registration to operate, it will clearly work hardship on the rival group, which may ultimately succeed in establishing its right to represent the political party. We are of the view that the Election Commission has quite rightly chosen to decide the dispute between the two rival groups, itself, without driving them to a Court of law to establish their respective claims.

The learned Counsel for the writ Petitioners also refers to a suit filed by Shri C. Subramaniam in Original Suit No. 9 of 1970 on the Original side of this Court, wherein certain reliefs are asked for in regard to the Tamil Nadu Congress Committee Charitable Trust. In the plaint filed in that suit, he has" set out the various circumstances under which the All India Congress Committee as also the Tamil Nadu Congress Committee were reconstituted. Reference was also made to a suit said to have been filed by the writ Petitioners in Original Suit No. 2178 of 1970 in the City Civil Court, Madras, wherein they seek a declaration that they are the president and secretary of the Tamil Nadu Congress Committee and that they are solely entitled to use the name and style of the Indian National Congress and the Tamil Nadu Congress Committee in Tamil Nadu with the necessary right of using the tricolor flag with charka and the symbol of Double Bullocks with Yoke on which is the Reserved Symbol of the Indian National Congress and. pray for an injunction restraining the other group of the Tamil Nadu Congress Committee headed by Shri R.V. Swaminathan from using the name Indian National Congress and the Tamil Nadu Congress Committee and the tri-colour flag as also the Reserved Symbol. It is argued that in view of the pendency of the above two suits, which are comprehensive in nature, wherein the claims of rival groups will be considered and decided, the Election Commission should have allowed the status quo to continue and allotted the Reserved Symbol to the group headed by the first Petitioner, as was done hitherto. We are not in a position to accept the learned Counsel''s submission that the Election Commission should not decide the symbol disputes itself, but await the decision of a civil Court and that in the meanwhile it should allow the statue quo to the continue by allotting the Reserved Symbol to the group headed by persons who art registered as the office-bearers in the records.

The learned Counsel them contends that paragraph 15 of the Symbols Order is ultra vires and invalid in so far as it confers power on the Election Commission to decide the dispute between the two factions of a political party. Firstly it is urged that the Election Coin mission cannot confer on itself the jurisdiction to determine which of the two rival groups is entitled to the Reserved Symbol, its only right being to specify the symbols for reach political party and the conditions subject to which the Reserved Symbol has to be allotted, under Rule 5 of the Election Rules. Secondly, it was said that paragraph 15, of Symbols Order in effect enables the Election Commission to decide in constitution of the party and the party disputes between various factions and that the said paragraph on the face of it does not deal with any symbol dispute as such. It was pointed out that the dispute two factions of a party has to be decided by the application of the law relating to corporate or unincorporated bodies as the case may be, as reflected by their constitution that the question as to which of the two reactions of the Indian National Congress, which is an unincorporated body, truly and legally represents the same, has to be decided on an interpretation of the constitutional provisions of the Indian National Congress and that such party disputes cannot properly form the subject-matter of an enquiry before the Election Commission. Thirdly, it was submitted that the power of the Election Commission under paragraph 15 is not made subject to any decision by a Court of law, that on the other hand the decision of the Election Commission is made final as between the parties and that there is no remedy provided for in the Symbols order to the aggrieved party to canvass the correctness of the decision of the Election Commission in any higher forum or in a Court of law. It is said that such a wide and arbitrary power given to the Election Commission under paragraph 15 to decide a party dispute between two rival factions and to give a binding decision between the parties without providing for any recourse to a Court of law, cannot be valid. It is also pointed out that paragraph 15 is very wide in its terms and decision of the Election Commission need not necessarily be confined to the symbol dispute, but may cover the property rights of rival parties also. The argument is that in the circumstances of this case, the Election Commission has to decide as to which of the two factions represents the Indian National Congress, that once such a decision is given by it, one way or the other, the successful faction will claim on the basis thereof, all the properties, rights and privileges of the Indian National Congress and that the decision is final under paragraph 15 notwithstanding an order of a civil Court to the contrary,

As regards the contention that paragraph 15 of the Symbols Order is void in that one cannot confer jurisdiction en himself and that the Election Commission in issuing the Symbols Order constituted himself as an authority to decide a dispute between two rival factions, which it is not authorized to do either under the Representation of the People Act or under the Election Rules, we see no point in the above submission. Rule 5 of the Election Rules framed u/s 169 of the Representation of the People Act, 1951, enables the Election Commission to specify the symbols that may be chosen by candidates at elections in Parliamentary or Assembly constituency and the restrictions to which their choice shall be subject. Rule 10(4) also provides that where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall allot symbols, subject to any general or special directions issued in this behalf by the Election Commission. Sub-rule (5) of Rule 10 states that the allotment by the Returning Officer of any symbol to a candidate shall he final except where it is inconsistent with any directions issued by the Election Commission in this behalf, in which case the Election Commission may revise the allotment in such manner as it thinks fit. Thus the Election Commission is empowered to issue any general or special directions regarding the allotment of symbols and revise any allotment made by the Returning Officer in such manner as it thinks fit. The specification of symbols and the restrictions, to which their choice shall be subject and the allotment thereof, are all matters for the Election Commission. But, by the Symbols Order it has empowered the Returning Officer to allot the symbol in accordance with any general or special direction issued by it in, that behalf, taking upon itself the power to revise in, case the allotment made by the Returning Officer is inconsistent with any directions issued by it. In the same Symbols Order it provides for a contingency where two rival factions claim the same Reserved Symbol. In case of such rival claims, the Election, Commission has thought fit to provide for a decision by itself resolving such a dispute, and such a power cannot be said to be void as being outside the scope of Rule 5 or Rule 10 of the Election Rules. The rule which have been framed by the Central Government u/s 169 of the Representation of the People Act, confer on the Election Commission, the power to impose restrictions as to the choice of symbols and also to issue directions for the allotment of symbol. The Election Commission by issuing the Symbols Order, has effectuated the rules by imposing certain restrictions in the matter of allotment of symbols. The Constitution in fact vests conduct of elections the Election Commission and only leave to Parliament the power to make laws. The Parliament in its wisdom has made the law that the Central Government in consultation with the Election Commission, may make rules for effectuating the purpose of the Representation of People Act. The Central Government in consultation with the Election Commission has framed rules in relation to the specification of symbols and their allotment to contesting candidates. It has also laid down that these rules shall be subject to such restrictions or conditions as the Election Commission may think fit to impose. While prescribing the restrictions and conditions for the allotment of symbols, the Election Commission has reserved to itself the power to decide a dispute where two rival factions claim the same Reserved Symbol. All that paragraph 15 of the Symbols Order says, is that where there is a dispute between the rival factions in relation to a reserved symbol, the matter has to be decided by the Election Commission. We do not see any justification for the complaint that the Election Commission has arrogated to itself the function of deciding a civil dispute. Having been entrusted with the task of the conduct of elections by the Constitution and the rules relating to elections framed by the Central Government, the Election Commission has the responsibility and duty to decide, though only incidentally and summarily, rival claims made by factions of a political party to a reserved symbol. In paragraph 10(4)(b), it is provided that where more than one contesting candidate claim the same symbol, the decision has to be made by lot. But, there is no provision in the Election Rules as to what should be done when two rival groups claim the same Reserved Symbol. As a person entrusted by the Constitution with the conduct of the elections, the Election Commission most be deemed to have the power to pass all incidental and necessary orders which would sub serve the proper conduct of elections, and such cower would extend to the resolution of any electoral dispute between rival groups of the same political party claiming the Reserved Symbol allotted to that party. It is, therefore, not possible for us to accept the contention of the learned Counsel that paragraph 15 is ultra vires, for the reason that the Election Commission has constituted itself as an authority to decide the dispute when two factions claim the same symbol.

It is next contended that paragraph 15 of the Symbols Order on its terms and on the face of it deals with a dispute as to the constitution of the party and not as to symbols as such. It is true that the determination of the right to the reserved symbol will naturally depend upon the incidental or ancillary question as to which of the factions properly and validly represents the organization to which the symbol has been reserved. But that will not mean that the Election Commission has taken upon itself the) exclusive power to decide a party dispute. Its decision on such an ancillary question will be only summary in nature and is liable to be set aside by a civil Court in a properly constituted action, though its action in allotting the symbol cannot be questioned in view of Section 170 of Representation of People Act. The allotment of symbols being a matter exclusively entrusted to the Election Commission by the Election Rules, it has to tentatively decide as to which of the rival factions represents the party to which the Reserved Symbol has been allotted and for deciding that dispute, it may be that it considers the question of the constitution of the party. Having regard to Rules 5 and 10 of the Election Rules and the preamble to the Symbols Order, it seems to us that paragraph 15 seeks merely to effectuate the object and purposes mentioned in Rules 5 and 10 and to facilitate the smooth conduct of the elections. The Election Commission has to decide as to which of the rival claims has to be upheld for the allotment of symbols. Though paragraph 15 does not specifically refer to the symbol dispute between parties, construed in the light of Rules 5 and 10 of the Election Rules and the preamble to the Symbols Order, its scope is very restrictive in character. Any decision rendered by Election Commission under paragraph 15 can only bind the parties so far as it relates to the Reserved Symbol and it cannot have any effect in respect of the property, rights of each of the groups. The Symbols Order is only intended to regulate the allotment of symbols to political parties and it has nothing to do with any of their civil rights. If paragraph 15 is read restrictively so as to confine its scope to the symbol dispute and not to any other dispute between the rival parties, as we propose to do, the complaint of the Petitioners that the power under paragraph 15 is so wide as to be outside the scope of the Election Commission''s power, cannot be accepted.

The further submission of the learned Counsel is that paragraph 15 is arbitrary as it does not provide for any remedy for an aggrieved party to question any decision rendered thereunder. Reference is made to the decision in Thakur Raghubir Singh Vs. Court of Wards, Ajmer and Another, where the learned Judges of the Supreme Court, while dealing with the validity of Section 112 of Ajmer Tenancy and Land Records Act, 1950 expressed (head-note).

When a law deprive a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer such a law can on no construction of the word ''reasonable'' be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the more pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a Civil Court.

But, the said decision cannot be of assistance to the Petitioners in this case for the reason that paragraph 15 in our opinion, only provides for a tentative decision by the Election Commission for the purpose of resolving a symbol dispute and not for any other purpose. We are not concerned here with the reasonableness or otherwise of paragraph 15 in the light of Article 19 of the Constitution of India. Though paragraph 15 gives finality to the decision of the Election Commission, as between parties, it can only be tin relation to the symbol and even in relation thereto if there is a decision of a Court of law to the contrary the decision under paragraph 15 will be subject thereto. Reference was also made to a decision of the Supreme Court in The The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., in support of the contention that paragraph 15 is arbitrary. There again the Supreme Court, while construing the scope of Section 58 of the Madras Hindu Religious and Charitable Endowments Act, 1951 expressed thus:

It is true, that it is a Government officer and not the Court who is given the power to settle the scheme, but we think that ample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section 61 provides for an appeal to the Commissioner against the order of the Deputy Commissioner and there is a right of suit given to a party who is aggrieved by the order of the Commissioner with a further right of appeal to the High Court.

The argument of the learned Counsel is that the validity of Section 58 relating to the framing of the scheme by the Deputy Commissioner has been upheld only because there was a provision for an aggrieved party to have the decision scrutinized by a higher forum and that such a provision is not there in the Symbols Order. This decision also cannot have application to the facts of this case. Section 58 relates to the framing of a scheme by the Deputy Commissioner. It is likely to affect the property rights of the contesting parties and sufficient safeguards have to be necessarily provided for in the statute itself for rectifying any unjust decision rendered by the Deputy Commissioner. We construe paragraph 15 as being limited to a symbol dispute and not to the property disputes between rival parties. The allotment of symbols is a matter exclusively within the jurisdiction of the Election Commission and its decision as to who is entitled to have the reserved symbol can, in the nature of things only be tentative subject to any decision on by a Court of law, we, therefore, see no force in the attack made against paragraph 15 on the ground that an arbitrary and unreasonable power has teen conferred on the Election Commission. The decision in Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, was also referred to by the learned Counsel for the writ Petitioners. There, while holding Section 5(a) of the Travancore-Cochin Land Act unconstitutional, the Supreme Court has states as follow. (head-note).

The Act thus proposes to impose a liability on landholders to pay a tax which is not to be levied on a judicial basis, because (1) the procedure to be adopted does not require a notice to be given to the proposed Assessee, (2) there is no procedure for rectification of mistakes committed by the assessing authority, (3) there is no procedure prescribed for obtaining the opinion of a superior civil Court on questions of law, as is generally found in all taxing statutes, and (4) no duty is cast upon an assessing authority to act judicially in the matter of assessment proceedings; nor is there any right of appeal provided to such Assessees as may feel aggrieved by the order of assessment.

Relying on the said passage, the learned Counsel Contends that paragraph 15 is bad for the reason that any decision made thereunder is not made subject to any decision of a civil Court and that the aggrieved party has not been given any remedy. A right to a symbol is not a common law right, but a grant made by the Election Rules framed by the Government in consultation with the Commission and is subject under these rules to revision or cancellation by directions of the Commission. Such a right conferred by the order is made subject to a decision by the Election Commission as to which of the rival groups is entitled to the symbol reserved for a party. If either of the rival groups establishes its rights, in a civil Court, to represent the party to which the symbol is reserved, that will supersede the tentative decision rendered by the Election Commission under paragraph 15 of the Symbols Order, for the allotment of a Symbol. Reference was also made to a decision in Commissioners of Customs and Excise v. Cure and Deeley Limited 1961) All. E.R. 641 ( which in turn referred to the following passage in the judgment of ROMEL L. J. in Lee v. Showmen''s Guild of Great Britain (1952) 1 All. E.R. 188:

The proper tribunals for the determination of legal disputes in this country are the Courts and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates are fitted for the task. The Courts jealously uphold and safeguard the prima facie privilege of every man to resort to them for the determination and enforcement of his legal rights.

As we have already expressed, the right to a symbol is not a common law right and the determination of the dispute involving such a right has been entrusted to the Election Commission. The jurisdiction of the common law Courts to decide the civil disputes between the two rival groups is not taken away. The Courts can always decide the disputes between two rival groups as to which of them represents the organization, and such a decision will naturally, have the effect at upholding its right to get the reserved symbol under the Symbols Order. In the way we construe paragraph 15 as providing for a tentative decision only in relation to a symbol and not to property disputes, the lack of any provision for appeal or for resort to a civil Court against the decision rendered by the Election Commission, cannot vitiate the validity of paragraph 15.

The learned Counsel for the writ Petitioners also submitted that paragraph 15 is bad as being arbitrary and vague. It was said that there are no objective standards, nor guidelines set out therein to enable the Election Commission to decide the dispute, and that a decision without any objective standard or guidelines would have to be arbitrary. We see no point here also. Paragraph 15 directs the Election Commission to decide as to which of the rival groups represents the organization to which the Reserved Symbol is allotted and for finding it out he has naturally to apply the law relating to companies or registered societies or unincorporated companies, as the case may be. It is not possible to lay down any definite guideline as circumstances may vary widely depending upon the fact whether the organization is incorporated under the Companies Act or is registered under the Societies Act or is an unincorporated body. In this case, the Indian National Congress is neither a company incorporated under the Companies Act nor it society registered under the Societies Act. So, the case has to be decided only on the application of the general principles of the law of associations. It is true that there is no law of association as such, bat the problems relating to associations have to be worked out by applying the law of contract or of trusts.

The learned Counsel appearing for Election Commission submitted that the right to a symbol is not a vested or inherent right either in a candidate or in a party and that it is purely a concession given by the statute. He goes to the extent of saying that even that concession was only given to a candidate And no to a party as such. According to him, the symbol is only a device adopted by the Election Commission to assist the illiterate voter in casting his vote; it is only part of a voting procedure, the allotment of symbol depends upon the choice expressed by the candidate in his nomination paper and the grant is to be made by the Returning Officer depending on such choice. It is also said that even though a symbol is reserved to a party, it is the right of the candidate to claim that symbol and not that of the party as such and that no faction of any party can claim the symbol for its candidate unless the whole party sets up a candidate and claims the symbol. According to the learned Counsel for the Election Commission, the right to a symbol being a creature of the statute, the statute can itself put an end to that right and that cannot be questioned in a Court of law, and having regard to the nature of the right to symbol the dispute before the Election Commission cannot be said to be a civil dispute as to require a provision in regard to the rectification of the same by the higher forums. The learned Counsel also states that the decision of the Election Commission can be challenged either under Article 136 or under Article 226 of the Constitution, or by filing an election petition u/s 100(1)(d)(iv) of the Representation of the People Act, 1951 and that as such the provision cannot be said to be arbitrary.

After giving our due consideration to the rival contentions, we hold that paragraph 15 is neither void nor ultra vires for all the reasons put forward by the writ Petitioners before us.

This leads us to the last contentions of the Petitioners viz. that even if paragraph 15 is valid and the Election Commission is empowered to decide the dispute between the rival group as to the Reserved Symbol, the Election Commission had no right to issue the impugned interim direction to the Returning Officers not to allot the Reserved Symbol to any of the rival factions pending its decision on the dispute under paragraph 15.

We have already referred to Rules 5 and 10 of the Election Rules, which enable the Election Commission to issue any general or special directions in regard to the choice of a symbol and the allotment thereof and it cannot be disputed that it has power to issue such directions as it thinks fit in regard to the allotment of symbols. The argument is that any direction given by the Election Commission can be only by way of a notification and not by a telegram as in this case. It is said that the Election Commission has already issued a notification promulgating the Symbols Order in exercise of his powers to issue general or special directions, conferred on him under Rules 5 and 10 of the Election Rules, and that it is not open to him to give any direction not contemplated by the Symbols Order, except by a fresh notification duly published in the Official Gazette modifying the provisions contained in the earlier notification. The learned Counsel for the writ Petitioners refers to the decision in Arjun Singh Vs. Mohindra Kumar and Others, and states that the usual method of issuing general directions has been in the form of a notification and that the issue of any special direction should be in accordance with the notification already issued. In that case, the Supreme Court held that the Court cannot, in exercise of its inherent powers u/s 151 of the Code of Civil Procedure, over-ride the express provisions of the law and that if there are specific provisions of the Code dealing with a particular topic, the inherent power of the Court cannot be invoked in order to cut across the power conferred by the Code. ''Based on the above decision, the learned Counsel contends that the Election Commission has no inherent power to issue a direction contrary to its own earlier notification and that so long as the symbol notification stands, it cannot issue the impugned direction except by way of a fresh notification. It is also said that under the Symbols Order, the Election Commission cannot issue any such direction to the Returning Officer. This contention of the learned Counsel that any direction issued by the Election Commission can be only by way of a notification and that the impugned direction not having been made by way of a fresh notification is bad, has been accepted by ALAGIKISWAMI J. The learned Judge has expressed the view that the Election Commission has no jurisdiction to issue the impugned telegram directing the Returning Officer not to allot the Reserved Symbol to any of the rival factions, as it has not been done by way of a fresh notification under Rule 5 of the Election Rules. With respect, we are not in a position to agree with that view. The impugned direction does not run counter to the provisions in the Symbols Order and it is only in relation to a matter not provided for in tie Symbols Order Notification. The said notification does not say as to what is to happen during the pendency of the dispute before the Election. Commission under paragraph 15. The allotment of the Reserved Symbol to one of the factions during the pendency of the dispute will result in giving an advantage to one faction over the other. As pointed out by the Supreme Court Samyukta Socialist Party Vs. Election Commission of India and Another, 901, 902, political parties set great store by their reserved symbols probably because the symbol gets identified with the party and helps it in maintaining election appeals and propaganda. The Supreme Court in the said decision has expressed the view thus:

The Election Commission is required to give effect to restrictions of its own making but that does not restrict its own powers so long as what it does is in consonance with facts and the action is dictated by them. It must not, of course, favour one party so as to harm another....

the importance of the symbols to our system of elections needs no exaggeration. Symbols are its very soul and without them the exercise of franchise by the majority of our citizens would be impossible. No doubt elections are fought on party lines but even if there is a plebiscite between parties, the symbols play a key role by identifying the parties. Slogans, placards, appeals all invoke the symbol''s and not the candidates. In fact, the voters are asked to vote for this symbol or that symbol. The Election Commission can allot symbols as desired by parties and candidates but, in a case such as this, it has to decide who is to have which symbol without of course, putting a hurdle in the way of any party.

Since the Election Commission hag to act in a fair and efficient manner in the conduct of elections, it has to see whether the allotment of a symbol to one of the rival groups is fair or desirable in the circumstances. The Election Commission has found it reasonable not to allot the reserved symbol to any of the rival groups till a decision is rendered under paragraph 15. The learned Counsel for the Petitioners concedes that the Election Commission has got the right to issue any special directions to the Returning Officer, but states that it should be done only by way of a fresh notification under Rule 5 of the Election Rules after due publication and not by way of a telegram as has been done in this case. On a due consideration of the provisions in Rules 5 and 10 of the Election Rules, we feel that the contention that any direction by the Commission should be only by way of a notification, cannot be accepted. Rule 5 requires that the specification of the symbols that may be chosen by candidates and the restrictions to which their choice may be subject, is to be notified in the Gazette of India and the Official Gazettes of the States. But, the directions contemplated under Rule 10(4) are not required to be by way of a notification in the Official Gazette. The directions of the Election Commission are contemplated in various circumstances under Rule 10, and it is difficult to comprehend that the Election Commission is expected to issue of notification in the Official Gazette on each and every occasion when it issues a direction to the Returning Officers. The requirement as to notification is only in relation to the specification of the symbols and the restrictions to which their choice is subject. But, in relation to other matters, it is not obligatory on the part of the Commission to notify each and every direction in the Official Gazette.

The learned Counsel appearing for the Commission also seeks to justify its action in issuing the impugned direction, under Article 324(1) of the Constitution. Reference has been made to the decision in Amin Ahmad Vs. Nand Lal Sinha, therein it has been expressed thus (page 294):

Parliament enacted the Representation of the People Act by virtue of the legislative authority conferred by Article 327 of the Constitution. Article 327 is, however, made expressly subject to "other provisions of the Constitution". Article 324 therefore, confers executive authority on the Election Commission to superintend direct and control all elections to Parliament and to the Legislatures of every State.

The executive authority of the Election Commission under Article 324 cannot be limited by any law passed by Parliament under the provisions of Article 327.... In the absence of any provision of the Constitution it must be taken the Constitution makers intended that the Election Commission should follow the procedure laid down by itself and considered necessary for the proper and efficient performance of its duties.

The above decision holds that in matters of internal arrangement, the Election Commission has full competence and control. Though we agree with the ultimate decision in that case, with respect, we are not inclined to endorse the view taken by the learned fudges that:

The executive authority or the Election Commission under Article 324 cannot be limited by any law made by Parliament under Article 327.

In this connection, it may be relevant to note the decision in Motilal v. Manga Prasad 15 ELR 425. In that case, the power of the Election Commission to direct a re-poll was upheld under Article 324(1). After dealing with the scope of Articles 324 and 327 of the Constitution, the learned Judges in that case expressed that the power contained in Article 324(1) is a general power and the Election Commission, therefore, would be bound to carry out the specific provisions contained in any Act passed by the Parliament, but that where the Act itself omits to provide for a contingency and does not contain any provision for meeting a situation, the general power conferred upon the Election Commission by Article 324(1) of the Constitution would come into play and the Commission would have a right to pass the necessary orders, if they fall within the ambit of its powers enumerated in Article 324(1). Reference was also'' made by the learned Counsel appearing for the Election Commission to a decision of the Patna High Court in Mani Lal Yadava Vs. Budhinath Jha, . In that case, a candidate, declaring himself to be an official candidate of Jharkhand Party of Bihar, filed his nomination before the Returning Officer, claiming the reserved symbol of Cock allotted to the party, but as no official confirmation from the party could reach the Returning Officer in time, the candidate was allotted the symbol of an Elephant instead of the party symbol of a cock. Later on, the Election Commission was moved in the matter and it issued a special direction by way of telegram to the Returning Officer to allot the party symbol to the candidate, on receipt of which the Returning Officer set aside his previous order and allotted the Reserved Symbol to the party candidate. The validity of the said special direction given by the Election Commission was questioned and the Court held that it wag not possible to hold that the Election Commission had no power to issue a special direction in this behalf to the Returning Officer or to revise his order, and that Rule 10(1) of the Election Rules conferring the power on the Election Commission, of issuing general or special directions in the matter of allotment of symbols, was not ultra vires the rule making power u/s 169 of the Representation of the People Act, 1951. In that case also, a special direction had been issued by way of telegram to the Returning Officer, and the Court had held that the Election Commission had acted within its jurisdiction in issuing the direction in question. In Prabhu Charan v. Shiv Dutt 14 ELR 108 the Court upheld the validity of certain directions issued by the Election Commission in the form of press-notes, holding that the Election Commission issued the press-notes in question under that power to impose restrictions conferred under Rule 5, and the power to issue general or special directions conferred by Rule 10 of the Election Rules; that in investing the Election Commission with the power to impose such restrictions on the choice of symbols as it might think fit. and to issue genera] or special directions in the matter of allotment of symbols, the Central Government had not delegated its rule making power to the Election Commission; that Rules 5 and 10 of the Election Rules, 1961 are not ultra vires or void or beyond the power of the Central Government u/s 169 and that though framed like rules, the press-notes issued by the Commission were merely restrictions and directions, which it was authorized by Rules 5 and 10 of the Election Rules, to impose on the choice and allotment of the symbols.

The learned Counsel Mr. Mohan also invokes the aid of paragraph 15 of the Symbols Order in supporting the validity of the impugned interim direction given by the Election Commission not to allot the Reserved Symbol to any of the two rival groups. Paragraph 18 of the Symbols Order enables the Election Commission to issue such instructions and directions as are considered necessary for the removal of any difficulty arising in relation to implementation of any of the-provisions of the Symbols Order or in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties for which the Symbols Order makes no provision or makes insufficient provision and the provision in that behalf is considered necessary by the Commission for the smooth and orderly conduct of elections. It is said that even if Rules 5 and 10 of the Election Rules are held not to empower the Election Commission to issue such a direction as in this case, paragraph 18 will enable the Commission to issue an interim direction to the Returning Officer as it had considered it necessary to issue such a direction for the smooth and orderly conduct of elections, pending the dispute which it is enquiring under paragraph 15 of the Symbols Order. We are inclined to agree with the above sub-mission of the learned Counsel based on the scope of paragraph 18 of the Symbols Order. Even according to the Petitioners, there is no specific provision in the Symbols Order, enabling the Election Commission to issue the direction in question as an interim measure pending the decision of the dispute between the two rival groups under paragraph 15. In the absence of any specific provision enabling the Election Commission to give an interim direction, we are of the view that paragraph 18(c) will empower the Election Commission to issue the impugned direction which is considered necessary for the smooth and orderly conduct of elections. The Petitioners Counsel does not question the power of the Commission to issue a direction of the kind in question, but only contends that it should be by way of a notification published in the Official Gazette and not by way of telegram. Once the Commission''s power to issue a direction is conceded, then it is not possible for us to say that all directions issued by the Commission should be only by way of a notification in the Official Gazette. We have already expressed the view that it is only in respect of matters dealt with by Rule 5 of the Election rules, a notification in the Official Gazette is necessary and such a requirement cannot be fastened to every special direction issued under Rule 10 of the Election rules. We are, therefore, of the view that the impugned direction given by way of telegram by the Election Commission to the returning Officer is quite within his jurisdiction and that it cannot be said to be illegal.

In Writ Petition No. 1513 of 1070, the prayer is for the allotment of the Reserved Symbol to the group headed by the first Petitioner. To grant this prayers this Court has necessarily to decide the dispute between the rival groups. Further, the prayer is not with reference to any particular election, but is in a general way. As the allotment of a symbol has to depend upon the choice to be made by the candidates in their nominations in respect of particular elections, it is not possible for this Court to give a general direction to the returning Officer to allot the Reserved Symbol to the group headed by the first Petitioner in all bye-elections. Further, the allotment of a symbol has to depend upon the proper compliance of the provisions of the Symbols Order. When there are two rival groups claiming the same reserved symbol, it is also not possible for this Court to decide the dispute in the absence of the other group which is likely to be affected by any decision. In this writ petition, the other rival group claiming the same reserved symbol has not been made a party, and when this was pointed out to the learned Counsel for the writ-Petitioners, he stated that he is not pressing the prayer for allotment of the reserved symbol; but he would confine the relief to a direction to the Election Commission not to allot the Reserved Symbol to any of the factions, so that the Returning Officer may be left free to allot the Reserved Symbol to any faction he considers to be entitled. We have already held that the Election Commission is entitled to give a direction such as the one impugned herein. Hence, the writ petition claiming a general direction from this Court to the Election Commissioner not to issue any similar direction to the Returning Officers, has to fail.

In the result, the Writ Appeal No. 327 of 1970 is allowed and Writ Petition No. 345 of 1970 as well as Writ Petition No. 1513 of 1970 are dismissed. There will be no order as to costs in any of these proceedings.