# Sheshmani Nath Tripathi v. E.C.I., New Delhi & Anr

- **Citation:** (2022) 1 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-05
- **Case number:** P.I.L. Civil No. 28404 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheshmani-nath-tripathi-v-e-c-i-new-delhi-anr-48028
- **Pages:** 12

## Headnote

1 All. Sheshmani Nath Tripathi Vs. E.C.I., New Delhi & Anr.
205
A.S.G., Vijay Vikram Singh

A.
Interpretation
of
Statute
-
The
Representation of People Act, 1951 -
Section 29A - The Election Symbols
(Reservation and Allotment) Order, 1968 -
The Election Symbols (Reservation and
Allotment) (Second Amendment) Order,
1989 - The Court rejected the contention of the
petitioner that the Election Commission does not
have any authority t recognize a political party
or to reserve an election symbol. (Para 28)
Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

_Characters 0–39,998 of 40,237. This is a partial read: ask again with offset=39998 for what follows._

204 INDIAN LAW REPORTS ALLAHABAD SERIES
in a given case, may direct to change the
custody of the child or decline the same
keeping in view the attending facts and
circumstances. For the said purpose it
would be required to examine whether the
custody of the minor with the private
respondent, who is named in the petition, is
lawful or unlawful. In the present case, the
private respondent is none other than the
biological mother of the minor child. This
being the fact, it may be presumed that the
custody of the child with his mother is not
unlawful. It would only be in an
exceptional situation that the custody of a
minor may be directed to be taken away
from the mother for being given to any
other person-including father of the child,
in exercise of writ jurisdiction. This would
be so also for the reason that the other
parent, in the present case, the father, can
take resort to the substantive statutory
remedy in respect of his claim regarding
custody of the child.

22. In a child custody matter, a writ of
habeas corpus would be entertainable where
it is established that the detention of the
minor child by the parent or others is illegal
and without authority of law. In a writ court,
where rights are determined on the basis of
affidavits, in a case where the court is of a
view that a detailed enquiry would be
required, it may decline to exercise the
extraordinary jurisdiction and direct the
parties to approach the appropriate forum.
The remedy ordinarily in such matters would
lie
under
the
Hindu
Minority
and
Guardianship Act, 195613 or the Guardians
and Wards Act, 189014, as the case may be.

23. Counsel for the petitioners has not
disputed the aforesaid factual position and
the only grievance, which is sought to be
raised, is with regard to a claim for
visitation rights on behalf of the father.

24. The contention which has been
sought to be raised by the counsel for the
petitioner with regard to the father's claim
for custody and/or visitation rights, are
matters which are to be agitated in
appropriate proceedings. This would be
more so for the reason that in the case at
hand proceedings under the HMA are
pending between the parties before the
Family Court and all ancillary reliefs and
claims are open to be raised before the said
forum or in other appropriate proceedings.

25. Having regard to the aforestated
facts and circumstances, the rule nisi issued
earlier is not required to be made absolute.
It is discharged.

26. The petitioner no. 1-corpus is at
liberty to go back alongwith the respondent
no.4, his mother to the place from where
they have come.

27. The petition stands accordingly,
dismissed.
----------
(2022)01ILR A204
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

P.I.L. Civil No. 28404 of 2021

Sheshmani Nath Tripathi ...Petitioner
Versus
E.C.I., New Delhi & Anr. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondents:
1 All. Sheshmani Nath Tripathi Vs. E.C.I., New Delhi & Anr.
205
A.S.G., Vijay Vikram Singh

A.
Interpretation
of
Statute
-
The
Representation of People Act, 1951 -
Section 29A - The Election Symbols
(Reservation and Allotment) Order, 1968 -
The Election Symbols (Reservation and
Allotment) (Second Amendment) Order,
1989 - The Court rejected the contention of the
petitioner that the Election Commission does not
have any authority t recognize a political party
or to reserve an election symbol. (Para 28)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. Shraddha Tripathi, Advocate Vs the Election
Commission of India & ors. Misc. Bench No.
12092 of 2016

2. Desiya Murpokku Dravida Kazhagam & anr. Vs
Election Commission of India (2012) 7 SCC 340
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. These proceedings under Article
226 of the Constitution of India have
ostensibly been instituted in public interest
challenging paragraphs 3 of an order issued
on 19th September, 1989 by the Election
Commission of India (hereinafter referred
to as "Election Commission"), whereby it
has been observed that Bhartiya Janta Party
shall be recognized as a National Party, for
which symbol "Lotus" shall be reserved for
it in terms of the provisions contained in
sub paragraph 2 of paragraph 7 of the
Election
Symbols
(Reservation
and
Allotment) (Second Amendment) Order
1989 (hereinafter referred to as "Second
Amendment Order, 1989).

2. Similar prayer has been made
challenging paragraph 3 of another order
dated 23rd September, 1989 issued by the
Election Commission, whereby it has
been
observed
that
Indian
National
Congress shall be a National Party for
which symbol "Hand" shall be reserved.

3. Heard Shri Sheshmani Nath
Tripathi, petitioner in person and Shri Vijay
Vikram Singh, learned counsel representing
the Election Commission.

4. At the outset, we may observe that
though this petition has purportedly been
filed in "public interest", however, from the
pleadings available on record, it can very
well be inferred that the petitioner has
attempted to espouse a personal cause as
well. In this regard, it is noted that in
paragraph 6 of the petition it has been
stated that the petitioner is a primary
member of Samajwadi Party in U.P. which
is a registered political party under section
29A of the Representation of People Act,
1951 (hereinafter referred to as the "Act")
and plea of discrimination in issuance of
Letters of Registration under section 29A
of the Act has been raised by stating that
paragraph 3 in the impugned orders dated
19th September, 1989 and 23rd September,
1989 issued by the Election Commission in
respect of two political parties, namely,
Bhartiya Janta Party and Indian National
Congress, it has been provided that these
parties shall be National Parties and their
election symbols shall also be reserved,
however, similar provision is missing in the
registration letter issued in respect of
Samajwadi Party on 21st May, 1993. Thus
a cause on behalf of the Samajwadi Party
has also been attempted to be pleaded in
this writ petition. In the same breath,
however, the petitioner also states in the
writ petition that he does not have any
personal or private interest in this writ
206 INDIAN LAW REPORTS ALLAHABAD SERIES
petition in any manner whatsoever and that
the petition has been filed in public interest
and also that the entire cost of litigation is
being borne by the petitioner himself. The
petitioner has also stated that he is a public
spirited person and that the matter raised
herein carries immense importance as such
he has filed this petition. In paragraph 4 of
the writ petition, it has also been averred by
the petitioner that the result of this
litigation will not lead to any undue gain to
himself or to any one associated with him
or any undue loss to any one, body of
persons or the State, though the petitioner,
admittedly, is a member of another political
party, namely, Samajwadi Party.

5. The writ petition also, in our
considered opinion, suffers from nonjoinder of necessary parties. In this regard,
it is noticeable that though it has been
prayed in the writ petition that paragraph 3
of the letters of recognition dated 19th
September, 1989 and 23rd September, 1989
may be quashed and struck down, however,
the political parties, which are likely to be
affected in case the prayer made in this
petition
is
granted,
have
not
been
impleaded as respondents.

6. As noticed above, letters of
registration
issued
by
the
Election
Commission way back in the year 1989 are
now being challenged after a lapse of about
32 years offering an explanation that in case
of violation of fundamental rights conferred
on the citizenary of this country in part III of
the Constitution of India, delay is not
material. Further explanation which has been
sought to be given is that the impugned letters
of registration have been challenged as the
petitioner received reply to a query made by
him under the Right to Information Act from
the Election Commission by its letter dated
12.05.2021 enclosing therewith the impugned
letters of registration in response to his
application dated 15.04.2021. The said reply,
it has been stated, was received by the
petitioner on 27.10.2021. The explanation
offered for such inordinate delay in instituting
this petition though is not satisfactory,
however, we are entertaining the petition for
the reasons given hereinafter.

7. Having observed as above, we have,
nonetheless, entertained this writ petition and
proceed to decide the same as an important
issue has been raised in the petition pertaining
to scope and ambit of section 29A of the Act
and also the powers and jurisdiction of
Election Commission under Article 324 of
the Constitution of India.

8. It has been argued by the petitioner
that the letters of registration dated 19th
September, 1989 and 23rd September, 1989
have
been
issued
by
the
Election
Commission in exercise of its power vested
in it under section 29A of the Act which
clearly does not empower the Election
Commission either to declare a political party
as a National Party or to reserve its election
symbol, therefore paragraph 3 of the said
letters of registration are bad in law.

9. Drawing attention of the Court to the
language used in section 29A of the Act, it has
vehemently been submitted by the petitioner that
the said provision empowers the Election
Commission only to decide either to register an
association or a body as a political party or not so
to register it on consideration of the particulars
and other relevant factors as required by the said
section. It has, thus, been urged that as per the
scheme envisaged in section 29A of the Act, an
association or a body of individuals is required to
make an application for its registration as a
political party giving particulars/information
required under sub sections 2, 3, 4 and 5 of
section 29-A of the Act and the Election
1 All. Sheshmani Nath Tripathi Vs. E.C.I., New Delhi & Anr.
207
Commission after receiving the particulars/
information, is mandated to consider the same
and take a decision either to register the applicant
as a political party or not to register it. The
petitioner has thus, submitted that section 29-A
of the Act does not in its ambit encompass the
powers of recognizing a political party as a
National Party or a State Party or to reserve the
Election Symbol for such a political party.

10. On the strength of the aforesaid
submission, it has thus, been argued that the
impugned paragraph 3 of the letters of
registration dated 19th September, 1989 and
23rd September, 1989 whereby the political
parties concerned have been recognized as
National Parties and election symbols have
also been reserved, is unlawful, without
jurisdiction and amounts to transgression of
its authority and power by the Election
Commission as vested in it under section 29A
of the Act. It has further been argued that the
impugned stipulation contained in paragraph
3 of the letters of registration dated 19th
September, 1989 and 23rd September, 1989
is not available in the letters of registration
issued by the Election Commission in respect
of other political parties, such as Samajwadi
Party, Rashtriya Rashtrawadi Party, Bahujan
Samajwadi Party and Vikas Party. The letters
of registration of these parties issued by the
Election Commission have been annexed as
annexures 2, 3, 7 and 8 to the writ petition
which are dated 21.05.1993, 02.04.2014,
30.09.1989 and 06.11.1996 respectively. It
has, thus, been argued that the impugned
stipulation in paragraph 3 in the letters of
registration of two parties is missing in the
letters of registration issued under section
29A of the Act in respect of other political
parties, which is violative of Article 14 of the
Constitution of India. The petitioner has also
pleaded
that
stipulation
of
impugned
paragraphs in the letters of registration in
respect of aforementioned two political
parties is violative of Articles 19(1)(C) , 19(4)
and 21 of the Constitution of India. It has also
been stated by the petitioner that the
impugned paragraphs of the letters of
registration are non-est in view of the
provisions contained in Article 13 of the
Constitution of India.

11. Shri Tripathi has also submitted that
it is not only that under section 29A of the Act
the Election Commission is not allowed to
allot symbols and grant recognition but also
that there is no other authority available to the
Election Commission to grant recognition or
grant symbol to any political party. Reference
in this regard has been made by the petitioner
to the Election Symbols (Reservation and
Allotment) Order, 1968 (hereinafter referred to
as "Allotment Order, 1968") who has stated
that if a field is already covered by the
statutory provisions (in this case section 29A
of the Act), the Election Commission has to
act within its bounds as circumscribed by the
said statute and even Article 324 of the
Constitution of India does not permit the
Election Commission to travel beyond the
scope of section 29A of the Act.

12. On the other hand, Shri Vijay Vikram
Singh, learned counsel representing the
Election Commission, has stated that the
instant petition does not espouse the cause of
any public interest and that the petition has
been filed as Public Interest Litigation only as
a camouflage for serving personal interest. He
has also argued that delay of about 32 years in
filing this petition has not been explained. On
the merit, learned counsel representing the
Election Commission has submitted that the
impugned paragraph 3 contained in the letters
of registration dated 19th September, 1989 and
23rd September, 1989 does not suffer from
208 INDIAN LAW REPORTS ALLAHABAD SERIES
any illegality and as a matter of fact, the same
are only a communication of the fact that these
political parties were National Parties and that
their symbols were reserved. He has, thus,
argued that even though paragraphs 3 of these
two letters of registration are not referable to
section 29A of the Act, however, the same
being only a communication of an existing
fact, cannot be faulted with on any count. On
behalf of Election Commission, it has also
been argued that Article 324 of the
Constitution of India vests plenary powers in
the
Election
Commission
so
far
as
superintendence, direction and control of the
elections are concerned. His submission, thus,
is that recognition of a political party as a
National Party or a State Party and reservation
of symbols are the matters related to control of
elections as such the Election Commission is
fully empowered to issue Allotment Order,
1968 and that the impugned paragraphs 3 of
the letters of registration are referable to the
said Order, 1968.

13. The Parliament has enacted
Representation of People Act, 1951 to
provide for conduct of elections to the
Houses of Parliament and to the House or
the Houses of Legislature of each State and
the matters connected thereto. Part IV A
was inserted in the Representation of
People Act by way of enacting Act 1 of
1989 by the Parliament, whereby section
29A was added. Section 29A of the Act
which came into force w.e.f.15.06.1989, is
extracted herein below:-

"29A.
Registration
with
the
Election Commission of associations and
bodies
as
political
parties.--(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 Part shall make an application to the
Election Commission for its registration as
a political party for the purposes of this Act.

(2) Every such application shall
be made,--

(a) if the association or body is in
existence at the commencement of the
Representation of the People (Amendment)
Act, 1988 (1 of 1989), within sixty days next
following such commencement;

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

(3) Every application under subsection (1) shall be signed by the chief
executive officer of the association or body
(whether such chief executive officer is
known as Secretary or by any other
designation) and presented to the Secretary
to the Commission or sent to such Secretary
by registered post.

(4) Every such application shall
contain the following particulars, namely:--

(a) the name of the association or
body;

(b) the State in which its head
office is situate;

(c) the address to which letters
and other communications meant for it
should be sent;

(d) the names of its president,
secretary, treasurer and other officebearers;

(e) the numerical strength of its
members, and if there are categories of its
members, the numerical strength in each
category;

(f) whether it has any local units;
if so, at what levels;

(g) whether it is represented by
any member or members in either House
of
Parliament
or
of
any
State
Legislature; if so, the number of such
member or members.
1 All. Sheshmani Nath Tripathi Vs. E.C.I., New Delhi & Anr.
209

(5) The application under subsection (1) shall be accompanied by a copy of
the memorandum or rules and regulations
of the association or body, by whatever name
called, and such memorandum or rules and
regulations shall contain a specific provision
that the association or body shall bear true
faith and allegiance to the Constitution of
India as by law established, and to the
principles of socialism, secularism and
democracy,
and
would
uphold
the
sovereignty, unity and integrity of India.

(6) The Commission may call for
such other particulars as it may deem fit
from the association or body.

(7) After considering all the
particulars as aforesaid in its possession and
any other necessary and relevant factors and
after giving the representatives of the
association or body reasonable opportunity
of being heard, the Commission shall decide
either to register the association or body as a
political party for the purposes of this Part,
or not so to register it; and the Commission
shall communicate its decision to the
association or body:

Provided that no association or
body shall be registered as a political party
under
this
sub-section
unless
the
memorandum or rules and regulations of
such association or body conform to the
provisions of sub-section (5).

(8)
The
decision
of
the
Commission shall be final.

(9) After an association or body
has been registered as a political party as
aforesaid, any change in its name, head
office, office-bearers, address or in any other
material matters shall be communicated to
the Commission without delay.]

Registration of political partyScope and effect

Registration of political party is
not compulsory, but optional. However,
registration enables a political party
to claim certain benefits under law such
as accepting of a contribution from any
person or company. Similarly, under
Election Symbols Order, certain symbols
are reserved fo a recognized political
party for the exclusive allotment to the
candidate seet up by such political party;
Jeevan
Chandrabhan
Idnani
v.
Divisional
Commissioner,
Konkan
Bhavan, AIR 2012 SC 1210: (2012)(2)
SCC 794: 2012 (2)JT 134: 2012(2)
SCALE 48: 2012 (1) SLT 78."

14. A perusal of the aforequoted
section 29A of the Act reveals that the said
provision was added for the purposes of
registration of political parties. It provides
that an association or body of individual
citizens of India which intends to avail
itself of the provisions of part IVA of the
Act shall make an application to the
Election Commission for its registration as
a political party. Sub section 2 of section
29A provides for time period within which
such association or body may make an
application
seeking
registration
as
a
political party. Sub sections 3, 4 and 5
stipulate the information and other material
to be furnished for registration. Sub section
6 permits the Election Commission to call
for such other particulars as may be
deemed fit from the association or the body
seeking its registration as a political party.
Sub
section
7
provides
that
the
Commission on consideration of the
application and after giving reasonable
opportunity
of
being
heard
to
the
representative of the applicant shall decide
either to register the applicant as a political
party or not so to register it for the purposes
of Part IVA of the Act. Section 29B and
Section 29C were inserted later in the
Principal
Act
w.e.f.
11.09.2003
and
210 INDIAN LAW REPORTS ALLAHABAD SERIES
01.04.2017 respectively, which entitle a
registered
political
party
to
accept
contributions and require such political
party to declare the donation received by it.
Accordingly, registration of an association
or a body of citizens of India as a political
party enables it to claim certain benefits
under law, such as accepting contributions.
It also obligates the political party to
declare
donations
received
by
it.
Registration of a political party under
section 29A, as is apparent from a bare
reading of the said provision, is for the
purposes of availing such political party of
the provisions of Part IVA of the Act.

15. No doubt section 29A or any other
provision contained in Part IVA of the Act,
1951 does not empower the Election
Commission either to recognize a political
party or to reserve the election symbols.
However, the power to recognize a
National Party or a State Party and to
reserve the election symbol is in terms of
the provisions contained in the Allotment
Order, 1968 which has been issued by the
Election Commission in exercise of its
power conferred by Article 324 of the
Constitution of India and Rules 5 and 10 of
the Conduct of Elections Rule, 1961 and all
other powers enabling it in that behalf.
Clause 4 of the Allotment Order, 1968
provides that a symbol shall be allotted to a
contesting party in accordance with the
provisions of the said order in every
contested election. Clause 5 classifies the
election symbols into two categories,
namely, (i) reserved symbol which is a
symbol reserved for a recognized political
party for exclusive allotment to the
contesting candidates set up by that party
and (ii) a free symbol which is a symbol
other than a reserved symbol. Clause 6
classifies recognized political parties either
as a National Party or a State Party. Clause
6A and 6B of the said Allotment Order
provides for eligibility for recognition as a
State Party or a National Party. Clause 6C
provides for conditions for continued
recognition as a National Party or State
Party. Clause 8 provides for choice of
symbols and allotment thereof, according
to which a candidate set up by a National
Party or State Party in an election shall be
allotted the symbol reserved for that party
and no other symbol. The Allotment Order,
1968 also contains the provisions for
allotment of free symbols as well. Clause
17 mandates the Election Commission to
publish list in the Gazette of India
specifying the National Parties, State
Parties and symbols reserved for them.

16. Thus, so far as recognition of
political parties as a National Party or a
State Party is concerned, the Allotment
Order,
1968
contains
provisions
empowering the Election Commission to
do so.

17. When we examine the impugned
paragraphs 3 of the letters of registration
dated 19th September, 1989 and 23rd
September, 1989, what we find is that the
same owes its existence not to section 29A of
the Act but to the provisions contained in the
Second Amendment Order, 1989 issued on
11.08.1989 by the Election Commission.
Though the Second Amendment Order, 1989
is specifically mentioned the impugned
paragraph 3 of the letters of registration dated
19th September, 1989 and 23rd September,
1989 issued with regard to two different
political parties, however, it appears that the
said
provision
has
completely
been
overlooked by the petitioner. The entire basis
of the instant writ petition, in our considered
opinion, is misreading of paragraph 3 of the
letters of registration dated 19th September,
1989 and 23rd September, 1989. It appears
1 All. Sheshmani Nath Tripathi Vs. E.C.I., New Delhi & Anr.
211
that the said paragraphs 3 has been
understood by the petitioner as if the same
has been issued by the Election Commission
in exercise of its power vested in section 29A
of the Act and is thus referable to the said
provision. The provisions of the Second
Amendment Order, 1989 have completely
been overlooked by the petitioner.

18. In order to properly appreciate the
issue, it would be appropriate to quote the
entire Second Amendment Order, 1989
notified on 11.08.1989 which is extracted
herein below:

"ELECTION COMMISSION OF INDIA

 NEW DELHI, the l lth August, 1989

THE
ELECTION
SYMBOLS
(RESERVATION AND ALLOTMENT)
(SECOND AMENDMENT) ORDER, 1989.

O. N.73(E):- In exercise of the
powers conferred by article 324 of the
Constitution, read with section 29A of the
Representation of the People Act, 1951 (43 of
1951), and rules 5 and 10 of the Conduct of
Elections Rules, 1961, and all other powers
enabling it in this behalf, the Election
Commission of India hereby makes the
following Order further to amend the
Election
Symbols
(Reservation
and
Allotment) Order 1968, namely:-

1. Short title and commencement.-
(1) This Order may be called the Election
Symbols
(Reservation
and
Allotment)
(Second Amendment) Order, 1989.

(2) It shall come into force on the
date of its publication in the Gazette of India.

2. Amendment of paragraph 7
:- In the Election Symbols (Reservation
and
Allotment)
Order,
1968,
in
paragraph 7, for sub-paragraphs (2) and
(3) the following sub-paragraphs shall be
substituted, namely:-

"(2)
Notwithstanding
anything contained in sub-paragraph (1),
every political party which, immediately
before the l5th day of June, 1989 is a
National Party, shall, on its registration
under section 29A of the Representation
of the People Act, 1951, be a National
party and shall, subject to the other
provisions of this Order, continue to be
so until it ceases to be a National Party
on the result of any general election held
after the said date.

(3) Notwithstanding anything
contained in sub paragraph (I), every
political party which, immediately before
the l5th day of June, 1989, is a State
party in a State, shall, on its registration
under section 29A of the Representation
of the People Act, 1951 be a State party
in that state and shall subject to the
other provisions of this Order, continue
to be so until it ceases to be a State party
in that State on the result of any general
election held after the said date."

By order

 [No.56/89]

BALWANT SINGH,

SECRETARY,

ELECTION
COMMISSION
OF INDIA."

19. As per clause 1(2) of the Second
Amendment Order, it came into force on
the date of its publication in Gazette of
India. Second Amendment Order was
published on 11.08.1989 in the official
gazette. Thus, the same was enforced w.e.f.
11.08.1989. Clause 2 of the Second
Amendment
Order,
1989
amends
paragraph/(clause) 7 of the principal Order
of 1968. In paragraph 7, sub paragraphs 2
and 3 were substituted. Newly added sub
paragraph 2 of paragraph 7 provides that
every political party which was a National
212 INDIAN LAW REPORTS ALLAHABAD SERIES
Party immediately before the 15th day of
June, 1989, on its registration under section
29A of the Act shall be a National Party
and shall continue to be so until the same is
ceased to be a National Party. Similarly,
newly added sub paragraph 3 of paragraph
7 provides that every political party which
was a State Party immediately before 15th
day of June,1989, on its registration under
section 29A of the Act shall be a State Party
in that State and shall continue to be so
until is ceased to be a State Party.

20. The date 15th June of 1989 in
newly added sub paragraphs 2 and 3 of the
Order is of significance. It is noticeable at
this juncture itself that section 29A which
was inserted in the Representation of
People Act by the Act 1 of 1989 came into
force w.e.f. 15.06.1989. Sub section 2(a) of
section 29A provides that if an association
or a body was in existence at the
commencement of the Act 1 of 1989, such
an association or body shall make an
application seeking its registration within
60
days
next
following
such
commencement. Act 1 of 1989 came into
force on 15th of June, 1989. Thus, from the
said date, within sixty days if any
association or body intended to seek
registration, application could have been
made within sixty days from 15th of June,
1989. The provision contained in newly
added sub clauses 2 and 3 of the Order thus
was made with a purpose which has a
rationale too. The purpose was to maintain
continuity of any association or a body as a
National or State Party, which was in
existence before 15th of June, 1989 even
after its registration as a National Party or a
State Party and to maintain continued
reservation
of
election
symbol. This
provision in the Order vide notification
dated 11.08.1989 appears to have been
made to avoid confusion which, in the
absence of continued recognition as a
National Party or a State Party and also in
absence
of
continued
reservation
of
election symbols, would have arisen once a
political party was registered under section
29 of the Act.

21. As already observed above, clause
3 of the letters of registration dated 19th
September, 1989 and 23rd September, 1989
clearly refer to Second Amendment Order,
1989 dated 11.08.1989. We have,thus, no
doubt in our mind that the impugned clause
3 of these two letters of registration are not
referable to section 29A of the Act, rather
they are referable to the provisions
contained
in
the
newly
added
sub
paragraphs 2 and 3 of Paragraph 7 of the
order
vide
notification
issued
on
11.08.1989 by the Election Commission.

22. Submission of the petitioner that
the
impugned
clause
3
of
the
aforementioned letters of registration are
beyond statutory powers vested in the
Election Commission under section 29A of
the Act may or may not be correct,
however, that in itself will not render these
stipulations contained in paragraph 3 bad or
without jurisdiction for the reason that the
same are referable to Second Amendment
Order, 1989. Submission of the petitioner
that the impugned clause 3 of two letters of
registration are without jurisdiction, is thus,
highly misconceived.

23. We may also note that it is not the
case of the petitioner that prior to issuance
of the letters of registration dated 19th
September, 1989 and 23rd September, 1989
the political parties concerned were not
recognized as National Parties or their
symbols were not reserved. There is no
challenge in this petition to the recognition
of the political parties or to their reserved
1 All. Sheshmani Nath Tripathi Vs. E.C.I., New Delhi & Anr.
213
symbols. The challenge is only to the
existence of clause 3 in the letters of
registration which as observed above, is
referable to the Second Amendment Order,
1989 and in our opinion the Election
Commission was well within its power and
jurisdiction to have provided for the same.

24.

Submission
made
by
the
petitioner based on the ground that the
impugned paragraphs 3 of the letters of
registration is violative of Article 14 of the
Constitution of India as the same is itself
discriminatory, is also highly misconceived
and is thus hereby rejected for the reason
that it has not been pleaded as to whether
the other political parties in respect of
whom the letters of registration have been
issued (including Samajwadi Party to
which the petitioner belongs to) were
recognized as National/State Party or their
elections symbols were reserved or by
virtue of non-existence of similar clause in
their letters of registration, the parties
concerned have been de-recognized and
their election symbols have been dereserved.

25. For the reasons aforesaid,
challenge made in this petition on the
ground of violation of Articles 19 and 21 of
the Constitution of India also fails. The
petitioner has also submitted that in
absence of any statutory powers vested in
the Election Commission of India in the
field covered by the Act, the power to
recognize a political party and to reserve
the election symbol could not have been
exercised by the Election Commission. The
said
submission
is
completely
misconceived
and
is
untenable.
The
recognition of a political party as a
National Party or a State Party and
reservation of election symbol are the
functions which are exercised by the
Election Commission under the provisions
of Election Symbols (Reservation and
Allotment) Order, 1968, as amended from
time to time.

26. The issue relating to the scope and
powers in respect of superintendence,
directions and control of elections under
Article 324 of the Constitution of India is
no more res integra. A Division Bench of
this Court, in this regard, in the case of
Shraddha Tripathi, Advocate vs. the
Election Commission of India and
others, Misc. Bench No.12092 of 2016
decided on 11.01.2021 has observed as
under:

"As regards contention of the
petitioner that the Election Commission
of India does not have any power to allot
symbols to a recognized National or
State level political party or to reserve a
symbol for them, firstly, we are of the
view that Article 324 vests ample power
on the Election Commission of India for
superintendence, direction and control of
elections and in this context if such
reservation or allotment is made it is in
furtherance of the constitutional goal
contained in Part XV of the Constitution
of India. The only limitation is that this
exercise of power cannot violate any
constitutional or statutory provision or
any rule made there under. We have
already noticed that there is no such
violation by the Election Commission of
India
in
issuing
Order,
1968
for
allotment and reservation of symbols.
There is no provision in the Act, 1951 or
the Rules, 1961 which prohibits the
Commission from reserving or allotting
214 INDIAN LAW REPORTS ALLAHABAD SERIES
symbols as has been done by the Order,
1968. In fact, the said Act, 1951 and the
Rules, 1961, hint or suggest such
reservation and allotment of symbols, as
already noticed. Vires of the Act, 1951 or
Rules, 1961 are not under challenge
before us. We therefore reject this
contention. In fact, the vires of Order,
1968 was put to challenge before the
Supreme Court of India in the case of
Kanhiya Lal Omar Vs. R.K. Trivedi and
others, 1985 (4) SCC 628. The Order,
1968 was held to be intra vires the
Constitution, the Act, 1951 and the
Rules, 1961. "

27. Hon'ble Supreme Court in the
case of Desiya Murpokku Dravida
Kazhagam and another vs. Election
Commission of India, reported in [(2012)
7 SCC 340] in paragraphs 14, 49 and 50
has observed as under:

"14. The authority of the
Election Commission under the Election
Symbols Order, 1968 as a whole was also
challenged before this Court in Kanhiya
Lal Omar v. R.K. Trivedi [(1985) 4 SCC
628] , wherein it was urged on behalf of
the petitioner that the said Order, being
legislative in character, could not have
been issued by the Election Commission,
which was not entrusted by law with
power to issue such an Order regarding
the specification, reservation, choice and
allotment of symbols that might be
chosen
by
the
candidates
during
elections in the parliamentary and
assembly constituencies. It was also
urged
that
Article
324
of
the
Constitution which vests the power of
superintendence, direction and control of
all elections to Parliament and to the
Legislative
Assemblies,
in
the
Commission, could not be construed as
conferring power on the Commission to
issue the Symbols Order. Rejecting the
said contention, this Court held that the
expression "election" in Article 324 of
the Constitution is used in a wide sense
so as to include the entire process of
election which consists of several stages,
some of which had an important bearing
on the result of the process and that
every norm which laid down a Code of
Conduct could not possibly be elevated
to the status of legislation or even
delegated legislation. It was emphasised
that there are certain authorities or
persons who may be the source of rules
of conduct and who at the same time
could not be equated with authorities or
persons who are entitled to make law in
the strict sense.

49. The submissions made on
behalf of the writ petitioners regarding
the constitutional validity of the Election
Symbols Order, 1968, and the power of
the Election Commission to settle issues
relating to claims of splinter groups to be
the original party, had fallen for the
decision of this Court about forty years
ago in Sadiq Ali case [(1972) 4 SCC 664]
, when this Court had occasion to
observe that the Election Commission
had been clothed with plenary powers by
Rules 5 and 10 of the Conduct of
Elections Rules, 1961 in the matter of
conducting of elections, which included
the power to allot symbols to candidates
during elections. The challenge to the
vires of the Symbols Order, 1968 was,
accordingly, repelled.

50. The view in Sadiq Ali case
[(1972) 4 SCC 664] has since been
followed
inAll
Party
Hill
Leaders'
Conference case[(1977) 4 SCC 161] ,
Roop Lal Sathi case[(1982) 3 SCC 487] ,
Kanhiya Lal Omar case [(1985) 4 SCC
628] and as recently as in Subramanian
1 All. Rajesh Singh & Anr. Vs. State of U.P. & Anr.
215
Swamy case [(2008) 14 SCC 318] , to
which reference has been made in the
earlier part of this judgment, where the
provisions
of
Article
324
of
the
Constitution
vesting
the
superintendence, direction and control of
elections, were considered in detail and it
was, inter alia, held that in addition to
Rules 5 and 10 of the Conduct of
Elections Rules, 1961, the powers vested
in the Election Commission could be
traced
to
Article
324
of
the
Constitution."

28. Thus, the argument of the
petitioner that the Election Commission
does not have any authority to recognize a
political party or to reserve an election
symbol also fails.

29. For the discussions made and
reasons given above, we find that the writ
petition is highly misconceived which is
hereby dismissed.

30. There will be no order as to costs.
----------
(2022)01ILR A215
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.01.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 165 of 2022

Rajesh Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Saharsh, Tushar Bhushan

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Mines and Mineral (Development
and Regulation) Act, 1957 - Sections 4, 21
- Prevention of Damage to Public Property
Act, 1984 - Section 3 (2) (a) - ulterior
motives and malafide intention - Judicial
order's cannot be allowed to be passed in
a mechanical manner either by filling in
blanck on a printed proforma or by
affixing a ready made seal etc. of the
order on a plain paper - Application U/S
482 No. -11334 of 2021 (Pankaj Jaiswal
Vs. State of U.P. & Anr.)

Charge sheet filed by Investigating Officer in
a mechanical manner - without considering
the evidence on record - Magistrate without
application of mind and in a routine manner
took cognizance - passed the cognizance
order on printed proforma by filling the
blanks of Sections of I.P.C. and Police
Station etc. - application filed by applicants
with a prayer to quash the summoning
order.(Para - 3,4)

HELD:-Impugned
cognizance
and
summoning orders passed Magistrate are
hereby quashed . Matter remitted back to
Magistrate with a direction to decide afresh
the
issue
for
taking
cognizance
and
summoning
the
applicants
and
pass
appropriate orders in accordance with law.
(Para - 9)