# EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN & ORS

- **Citation:** [2019] 3 S.C.R. 200
- **Court:** Supreme Court of India
- **Decided:** 2019-02-07
- **Case number:** M. A. No. 31 of 2019
- **Bench:** A. M. Khanwilkar, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/edapaddi-k-palaniswami-v-t-t-v-dhinakaran-ors-33577
- **Pages:** 34

## Headnote

Election Laws - Use of name/symbol of political party, when
each faction of registered recognised State political party claimed
to be real party and such a dispute is sub judice before the High
Court - In the instant case, Election Commission of India (ECI) had
accepted the claim of respondent Nos.4 to 6 and the SLP petitionerEKP that the group led by respondent No.4-EM was entitled to use
the name of the original registered and recognized state political
party and rejected the claim of respondent No.1 and respondent
No.3-VKS that the group led by VKS was the real group and was
entitled to use name and symbol of the party AIADMK - Writ petition
filed by respondent No.1 before the High Court to assail the decision
of the ECI - The said writ petition is still pending - Meanwhile, as
elections in the State of Tamil Nadu were announced, respondent
No.1 and the group of which he was a member moved an interim
application before the High Court in the pending writ petition for
permission to use a suitable name for carrying out its political
activities - High Court allowed the same by order dated 9th March,
2018 - Aggrieved by the said decision, the SLP petitioner-EKP
espousing the cause of the group led by EM, filed SLP - When the
SLP, along with connected cases, was taken up for hearing on 28th
March, 2018, amongst others, it was pointed out to the Court that
the impending elections to the local bodies were countermanded
and as a result, the basis for instituting the interim application by
respondent No.1 did not exist - In that view of the matter, the interim
order passed by the High Court was kept in abeyance with the
directions that the ECI shall not pronounce its order and granted
liberty to the parties to approach this court in case of any notification
[2019] 3 S.C.R. 200
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for an election - Accordingly the SLP was disposed of - Respondent
No.1 filed the instant Application asserting that the bye-election
was notified by the ECI on 31st December, 2018 and the date of
polling was fixed for 28th January, 2019 - SLP petitioner and
respondent Nos.4 to 6, as well as respondent No.2, raised a
preliminary objection about the maintainability of this application
- Held: Respondent No.1 had no other option but to present the
instant application because of the publication of the election
schedule by the ECI, in light of the liberty given by this Court by
order dated 28th March, 2018 - As liberty was given to the parties
even though the SLPs were ostensibly disposed of, not entertaining
this application, only because the order dated 28th March, 2018
records that SLPs are disposed of, would be completely trivializing
the spirit of the liberty given to the parties by this Court in the
peculiar fact situation - Respondent No.1 cannot be directed to go
back to the High Court for the relief claimed in this application
because similar relief was already considered by the Single Judge
of the High Court on 9th March, 2018 in favour of the group
represented by the applicant - The directions given by the Single
Judge in the said order had not been independently challenged by
the ECI by filing SLP before this Court - Besides, it may not be
appropriate for the Division Bench to re-visit the matters in issue
dealt with in the judgment and interim order passed by the Single
Judge dated 9th March, 2018, which was kept in abeyance by this
Court - No merit in the preliminary objection raised by the SLP
petitioner, respondent Nos.4 to 6 and respondent No.2.
Election Laws - Whether a faction represented by respondent
no.1-TTVD and VKS which claims to be the real party having support
of majority of the members at the time of initiation of the dispute
before the ECI and that claim was still pending consideration before
the High Court ought to be compelled to first register itself as a
political party and after following the process of obtaining
recognition could only then set up its claim for allotment of a reserved
symbol and use

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SUPREME COURT REPORTS
[2019] 3 S.C.R.
EDAPADDI K. PALANISWAMI
v.
T.T.V. DHINAKARAN & ORS.
(M.A. No. 31)
in
(Special Leave Petition (Civil) No. 7258 of 2018)
FEBRUARY 07, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Election Laws - Use of name/symbol of political party, when
each faction of registered recognised State political party claimed
to be real party and such a dispute is sub judice before the High
Court - In the instant case, Election Commission of India (ECI) had
accepted the claim of respondent Nos.4 to 6 and the SLP petitionerEKP that the group led by respondent No.4-EM was entitled to use
the name of the original registered and recognized state political
party and rejected the claim of respondent No.1 and respondent
No.3-VKS that the group led by VKS was the real group and was
entitled to use name and symbol of the party AIADMK - Writ petition
filed by respondent No.1 before the High Court to assail the decision
of the ECI - The said writ petition is still pending - Meanwhile, as
elections in the State of Tamil Nadu were announced, respondent
No.1 and the group of which he was a member moved an interim
application before the High Court in the pending writ petition for
permission to use a suitable name for carrying out its political
activities - High Court allowed the same by order dated 9th March,
2018 - Aggrieved by the said decision, the SLP petitioner-EKP
espousing the cause of the group led by EM, filed SLP - When the
SLP, along with connected cases, was taken up for hearing on 28th
March, 2018, amongst others, it was pointed out to the Court that
the impending elections to the local bodies were countermanded
and as a result, the basis for instituting the interim application by
respondent No.1 did not exist - In that view of the matter, the interim
order passed by the High Court was kept in abeyance with the
directions that the ECI shall not pronounce its order and granted
liberty to the parties to approach this court in case of any notification
[2019] 3 S.C.R. 200
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for an election - Accordingly the SLP was disposed of - Respondent
No.1 filed the instant Application asserting that the bye-election
was notified by the ECI on 31st December, 2018 and the date of
polling was fixed for 28th January, 2019 - SLP petitioner and
respondent Nos.4 to 6, as well as respondent No.2, raised a
preliminary objection about the maintainability of this application
- Held: Respondent No.1 had no other option but to present the
instant application because of the publication of the election
schedule by the ECI, in light of the liberty given by this Court by
order dated 28th March, 2018 - As liberty was given to the parties
even though the SLPs were ostensibly disposed of, not entertaining
this application, only because the order dated 28th March, 2018
records that SLPs are disposed of, would be completely trivializing
the spirit of the liberty given to the parties by this Court in the
peculiar fact situation - Respondent No.1 cannot be directed to go
back to the High Court for the relief claimed in this application
because similar relief was already considered by the Single Judge
of the High Court on 9th March, 2018 in favour of the group
represented by the applicant - The directions given by the Single
Judge in the said order had not been independently challenged by
the ECI by filing SLP before this Court - Besides, it may not be
appropriate for the Division Bench to re-visit the matters in issue
dealt with in the judgment and interim order passed by the Single
Judge dated 9th March, 2018, which was kept in abeyance by this
Court - No merit in the preliminary objection raised by the SLP
petitioner, respondent Nos.4 to 6 and respondent No.2.
Election Laws - Whether a faction represented by respondent
no.1-TTVD and VKS which claims to be the real party having support
of majority of the members at the time of initiation of the dispute
before the ECI and that claim was still pending consideration before
the High Court ought to be compelled to first register itself as a
political party and after following the process of obtaining
recognition could only then set up its claim for allotment of a reserved
symbol and use of name - Held: During the pendency of the writ
petition, as elections in the State of Tamil Nadu were announced
and respondent No.1 and the group of which he was a member,
wanted to contest the elections, they moved an interim application
before the High Court in the pending writ petition - High Court
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN
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deemed it appropriate to issue directions to allot common symbol to
the faction represented by respondent no.1 in different constituencies
where they would nominate candidates to contest in ensuing elections
- High Court was conscious of the fact that ordinarily common
symbol can be allotted only to registered recognized political party
and if the ECI could do so in exercise of its plenary powers when
the dispute is pending before it, there could be no impediment for
the writ court to pass appropriate directions especially when no
real prejudice would be caused to any other party and the claim
regarding which faction is the real party has still not attained finality
and that would ensure a level playing field in the political sphere
for the concerned factions - High Court was right in holding that if
ECI considers itself competent to pass interim directions for ensuring
level playing field to both the factions during the adjudication of
the dispute pending before it, there is no reason why, on the same
logic the High Court, being a court of equity, is not competent to do
so when the final decision of the ECI was still pending challenge
before it - Representation of the People Act, 1951 - s.29A -
Constitution of India - Art.226.
Election Laws - Powers of Election Commission (ECI) - ECI
has plenary powers and could exercise the same to ensure free and
fair elections - Clause 18 of the Symbols Order predicates the facet
of such plenary power to be exercised by the ECI - Symbols Order,
1968.
Election Laws - Allocation of common symbols to two faction
when the dispute under the Symbol Order is still pending before the
Election Commission (ECI) - Interim directions regarding allocation
by the ECI - Permissibility - Held: Once the dispute had been finally
decided by the ECI, the question of invoking powers under
paragraph 18 by it (ECI) would not arise - However, if the dispute
is pending enquiry before ECI or the final decision of the ECI is
sub judice in the proceedings before the constitutional court,
providing for an equitable arrangement in the interests of free and
fair elections and to provide equal level playing field to all
concerned, would be a just and fair arrangement.
Election Laws - Whether there was any impediment for the
writ court (High Court) to pass appropriate interim direction while
the validity of the decision of the Election Commission (ECI) is sub
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judice before it - Held: High Court was right in holding that for
doing justice and protecting the interests of all concerned and to
uphold the democratic principles, including for ensuring free and
fair elections, it would be just and proper to continue the interim
arrangement as was directed by the ECI regarding allotment of a
common symbol to the political group represented by respondent
no.1 especially when such relief would not cause any prejudice to
any other person or party nor impinge upon the powers of the ECI
- Symbols Order, 1968.
Representation of the People Act, 1951 - s.29A - Allotment
of a common symbol - If the political group is not registered under
s.29A of the 1951 Act and is not recognized as per the provisions of
Symbols Order, 1968, it may not be entitled to claim allotment of a
common symbol which is reserved for a registered and recognized
State/National political party - Paragraphs 9 to 11 would apply to
such registered and recognized political party which provide for an
option of a reserved symbol - For any other candidate or candidate
belonging to unregistered or unrecognized party, his claim would
be dealt with under paragraph 12 of the Symbol Order, 1968 - The
closest provision is paragraph 15 of the Symbol Order, which deals
with the powers of the ECI in relation to splinter groups or rival
factions of the political party - But once that dispute is answered
by the ECI and that decision attains finality, the splinter group will
have no other option but to register itself as a political party and
only after fulfillment of the requirements specified in paragraphs
6A to 6C of the Symbols Order, 1968, as applicable, may be given
recognition as a National or State political party - In the instant
case, the decision of the ECI is sub judice before the High Court
and the claim of the group or faction of being the original registered
recognized State political party represented by respondent No.1, is
subject to the outcome thereof - Until such time, there is no just
reason as to why the interim arrangement such as ordered by the
ECI in terms of the interim order dated 22nd March, 2017, as
applicable to the group represented by respondent No.1, ought not
to continue - The direction issued in terms of order dated 28th March,
2018, to keep the interim order of the High Court dated 9th March,
2018, in abeyance and consequently to restrain the ECI from
pronouncing its order on the application preferred by the political
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN
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group represented by respondent No.1 needs to be vacated -
However, considering the fact that the hearing on the writ petition
before the Division Bench of the High Court has almost reached at
the final stage, it is deemed appropriate to mould the reliefs in the
following terms: (a) If the writ petition is not finally disposed of by
the Division Bench of the High Court within four weeks from today,
the ECI shall process the application of the group represented by
respondent No.1 in terms of the directions given by the High Court
by interim order dated 9th March, 2018 and issue appropriate
directions within two weeks therefrom (i.e. four weeks plus two
weeks, from today) - (b) In the event, before the expiry of the stated
period, the ECI intends to issue any Press Note or Notification for
announcing the bye-elections in respect of the vacant Assembly
Constituencies in the State of Tamil Nadu or Parliamentary Elections
for 2019, as the case may be, it shall pass appropriate directions in
compliance with the interim order of the High Court dated 9th March,
2018, within one week from the date of release of such Press Note
or Notification and in any case, before the date notified for filing
of the nominations, whichever is earlier - Symbols Order, 1968.
Jyoti Basu and Ors. v. Debi Ghosal and Ors. (1982) 1
SCC 691 : [1982] 3 SCR 318; Shri Sadiq Ali and Anr.
v. The Election Commission of India, New Delhi and
Ors. (1972) 4 SCC 664 : [1972] 2 SCR 318; Kanhiya
Lal Omar v. R.K. Trivedi and Ors. (1985) 4 SCC 628:
[1985] 3 Suppl. SCR 1 - relied on.
Desiya Murpokku Dravida Kazhagam and Anr. v.
Election Commission of India (2011) 4 SCC 224 : [2011]
3 SCR 920 - distinguished.
Madeva Upendra Sinai and Ors. v. Union of India and
Ors. (1975) 3 SCC 765 : [1975] 2 SCR 640; Desiya
Murpokku Dravida Kazhagam and Anr. v. Election
Commission of India (2012) 7 SCC 340 : [2012] 3 SCR
1084 - referred to.
Case Law Reference
[2011] 3 SCR 920
distinguished
Para 17
[1982] 3 SCR 318
relied on
Para 20
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[1975] 2 SCR 640
referred to
Para 25
[2012] 3 SCR 1084
referred to
Para 29
[1972] 2 SCR 318
relied on
Para 35
[1985] 3 Suppl. SCR 1 relied on
Para 36
CIVIL APPELLATE JURISDICTION: M. A. No. 31 of 2019 in
Special Leave Petition (Civil) No. 7258 of 2018.
From the Judgment and Order dated 09.03.2018 of the High Court
of Delhi at New Delhi in C.M. No. 2994 of 2018 in W.P. (C) No. 10728
of 2017.
Kapil Sibal, Ashok Desai, Dr. Abhishek Manu Singhvi, Mrs.
Meenakshi Arora, C. S. Vaidyanathan, K.V. Vishwanathan, Guru Krishna
Kumar, Sr. Advs., Gowtham Kumar, Ms. Palak Mahajan, Ms. Diksha
Rai, Amit Anand Tiwari, Vivek Singh, N. Raja Senthoor Pandian, Amit
Bhandari, Swastik Dalai, Harshal Gupta, Ms. Anusha Natrajan, Ms.
Devyani Gupta, Mrs. Mary Mitzy, Sreenivasan, Praveen Samadhanam,
Mohit Paul, Shashwat Singh, Anirudh Bakhru, Balaji Srinivasan, Siddhant
Kohli, Ms. Pallavi Sengupta, Ms. Garima Jain, Ms. Lakshmi Rao, Ram
Shankar, Harish Shankar Vaidyanathan, Babu Murugavel, Prakash Kumar
Gandhi, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms. Ayiala Imti,
Advs. for the appearing parties.
The Order of the Court was delivered by
A. M. KHANWILKAR, J. 1. This application for directions
has been filed by respondent No.1 - T.T.V. Dhinakaran (for short,
"TTVD"), in the disposed of special leave petition in view of the liberty
granted by this Court in terms of the order dated 28th March, 2018.
2. The captioned special leave petition was filed against the
judgment and order dated 9th March, 2018 passed by the Single Judge of
the High Court of Delhi at New Delhi in C.M. No.2994/2018 in Writ
Petition (Civil) No.10728 of 2017. That writ petition has been filed by
respondent No.1 - TTVD to assail the decision of the Election
Commission of India (for short, "ECI") dated 23rd November, 2017 -
whereby ECI had accepted the claim of respondent Nos.4 to 6 (namely,
E. Madhusudhanan, O. Pannerselvam and Thiru. Semmalai) and the
SLP petitioner -Edapaddi K. Palaniswami (for short, "EKP") that the
group led by respondent No.4 - E. Madhusudhanan (for short, "EM")
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN
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was entitled to use the name of the original registered and recognized
state political party in the State of Tamil Nadu and Puducherry, namely,
"All India Anna Dravida Munnetra Kazhagam" (for short "AIADMK")
and its reserved symbol "Two Leaves"; and rejected the claim of
respondent No.1 - TTVD and respondent No.3 - V.K. Sasikala (for
short, "VKS") that the group led by VKS was the real group and was
entitled to the use of name and symbol of the party AIADMK. The writ
petition challenging the said decision of ECI on diverse grounds is still
pending before the Delhi High Court.
3. During the pendency of the writ petition, as elections in the
State of Tamil Nadu were announced and respondent No.1 and the group
of which he was a member, wanted to contest the elections, they moved
an interim application before the High Court, being C.M. No.2994/2018
in the pending writ petition and prayed for the following reliefs:
"PRAYER
In view of the aforesaid it is most respectfully prayed that this
Hon'ble Court may kindly be pleased to:
a. Issue a direction to the respondents to permit the group led by
the petitioner and the Respondent No.6 to use a suitable name
for carrying out its political activities, during the pendency of
the present Writ Petition;
b. Issue a direction to the respondents, permitting/allocating the
group led by the Petitioner herein and the Respondent No.6 to
use the symbol of "Pressure Cooker" for the purpose of Local
Bodies Elections likely to be held in April 2018 or any other
election, during the pendency of the present Writ Petitions.
c. Pass such further order(s) as it may deem fit and facts and
circumstances of the case."
4. The said application was contested by the SLP petitioner,
respondent Nos.4 to 6 and respondent No.2 in particular. The learned
Single Judge who heard the said application was pleased to allow the
same by a detailed judgment and order dated 9th March, 2018. The
operative part of the said judgment reads thus:
"56. For all the aforementioned reasons, I find considerable merit
in the prayer made by the Petitioner and the Application deserves
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to be allowed. However, keeping in view the nature of the relief
sought in the Application, while upholding the Petitioner's right to
seek the use of a common name and symbol by way of an interim
arrangement during the pendency of the Writ Petition, I deem it
appropriate to direct the Respondent No.1/ECI, which has the
necessary expertise to deal with allotment of symbols, to pass an
appropriate order permitting the Petitioner and his group of persons
to use a common symbol (preferably "Pressure Cooker" as used
by the Petitioner during the last election for the R.K. Nagar
constituency) and also permit them to use the name of their choice,
after giving them an appropriate hearing.
57. The needful shall be done within three weeks. Needless to
say the aforesaid directions are being passed without prejudice to
the rights and contentions of the parties in the main petition.
58. The Application is allowed in the above terms, with no order
as to costs."
5. Aggrieved by the said decision, the SLP petitioner EKP
(respondent No.5 in the writ petition) espousing the cause of the group
led by EM, filed a special leave petition in this Court, being SLP(C)
No.7258 of 2018. When the said special leave petition, along with
connected cases, was taken up for hearing on 28th March, 2018, amongst
others, it was pointed out to the Court that the impending elections to the
local bodies were countermanded and as a result, the basis for instituting
the interim application by respondent No.1 before the High Court did not
exist. In that view of the matter, this Court proceeded to pass the following
order:
"O R D E R
Heard Mr. Mukul Rohatgi, Mr. C.S. Vaidyanathan, Mr. K.V.
Vishwanathan and Mr. Guru Krishna Kumar, learned senior
counsel appearing for the petitioners and Mr. Ashok Desai, Ms.
Meenakshi Arora and Mr. Amarendra Sharan, learned senior
counsel for the respondents.
Having heard learned counsel for the parties, we are inclined to
pass the following directions:-
(i) The counter affidavit filed by the present petitioners before
the High Court shall be taken on record and as accepted by
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN
[A. M. KHANWILKAR, J.]
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learned counsel for the petitioners, no further opportunity shall
be granted for filing a counter affidavit.
(ii) Rejoinder affidavit, if any, be filed by the respondents within
two weeks hence.
(iii) The learned Acting Chief Justice of the High Court is
requested to constitute an appropriate Division Bench, so that
they can decide the lis in question.
(iv) The Division Bench so constituted is requested to dispose
of the main matter by the end of April, 2018, as this matter
requires immediate attention.
(v) The interim order passed by the learned Single Judge
on 9.3.2018 shall remain in abeyance.
(vi) As we have kept the order in abeyance, the Election
Commission shall not pronounce its order.
(vii) In case there is any notification for an election, liberty
is granted to the parties to approach this Court.
The special leave petitions are accordingly disposed of. Pending
interlocutory applications, if any, shall also stand disposed of."
 (emphasis supplied)
6. As aforesaid, taking cue from the liberty granted to the parties
to approach this Court in the event of issuance of any new notification
for election, respondent No.1 has filed the present Miscellaneous
Application on 2nd January, 2019, asserting that the bye-election to fill up
the vacant Assembly Constituency of 168-Thiruvarur has been notified
by the ECI on 31st December, 2018 and the date of polling has been
fixed for 28th January, 2019. The relief claimed in the present application
reads thus:
"PRAYER
It is, therefore, most respectfully prayed that in view of the above
submissions and the facts and circumstances of the case, this
Hon'ble Court may be pleased to -
a. Direct the Election Commission of India (Respondent No.2) to
pass an appropriate order permitting the Applicant and his group
to use a common symbol (preferably "Pressure Cooker" as
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was allotted to the Applicant during the last bye-election for
the R.K. Nagar constituency) and also permit them to use the
name of their choice in the any upcoming elections during the
pendency of the Writ Petition (c) No.10728/2017 before the
High Court of Delhi at New Delhi.
b. Pass such other and further order or orders as may be deemed
just and proper by this Hon'ble Court on the facts and in the
circumstances of the case and in the interest of justice."
7. The SLP petitioner and respondent Nos.4 to 6, as well as
respondent No.2, have raised a preliminary objection about the
maintainability of this application. According to them, the special leave
petition having been disposed of, this Court has become functus officio
and ought not to pass any positive direction, much less as sought by
respondent No.1 in the present application. It is also pointed out that the
notification issued by the ECI has now been rescinded on 6th January,
2019 and there is no imminent election. It was then contended that
respondent No.1, if so advised, may approach the High Court for
appropriate directions.
8. We must first answer this preliminary objection. On a plain
reading of the order passed by this Court on 28th March, 2018, to which
one of us (A.M. Khanwilkar, J) was a party, it is crystal clear that this
Court did not examine the merit of the judgment under appeal at all. It
merely issued directions whilst keeping the interim order passed by the
Single Judge of the High Court in abeyance and relegated the parties
before the High Court for an expeditious hearing of the writ petition by
the Division Bench, with a sanguine hope that the same would be disposed
of before any fresh notification is issued by the Election Commission for
conduct of election or bye-election to the vacant Assembly Constituency/
local bodies in the State. Indeed, the Division Bench of the High Court
proceeded with the hearing of the writ petition in right earnest from 20th
April, 2018, but it is common ground that the arguments of the parties
are still incomplete despite the matter having been posted and heard on
different dates. We do not wish to dissect the explanation offered by the
counsel on both sides regarding the reasons for pendency of the writ
petition. The fact remains that the writ petition is still pending before the
Division Bench of the High Court for its final decision and we assume it
to be so due to unavoidable circumstances. Resultantly, the applicant
(respondent No.1) has had no other option but to rush to this Court by
EDAPADDI K. PALANISWAMI v. T.T.V. DHINAKARAN
[A. M. KHANWILKAR, J.]
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presenting the instant application because of the publication of the election
schedule by the Election Commission, in light of the liberty given by this
Court vide order dated 28th March, 2018.
9. Notably, this Court has neither adverted to the merits of the
impugned interim order of the Single Judge of the High Court nor has it
set aside or upheld the same. This Court, instead, merely issued directions
to facilitate early disposal of the main writ petition before any fresh
election programme is announced by the ECI. With that hope, this Court
had kept the interim order of the High Court in abeyance and directed
the Election Commission not to pronounce any order or proceed in
furtherance of the same. It was so directed because there was no
immediate urgency for passing any order as the election process, which
was earlier announced, stood countermanded. The effect of the order
of this Court, therefore, is to allow the parties to once again approach
this Court in reference to the disposed of SLPs, if the situation so warrants.
As this liberty has been given to the parties even though the SLPs have
been ostensibly disposed of, not entertaining this application, only because
the order dated 28th March, 2018 records that the special leave petitions
are disposed of, would be completely trivializing the spirit of the liberty
given to the parties by this Court in the peculiar fact situation.
10. The fact that the writ petition is still pending before the Division
Bench of the Delhi High Court would certainly be no impediment for the
parties to approach this Court in light of the liberty granted to them in
terms of our order dated 28th March, 2018. In the peculiar fact situation
of this case, we cannot direct respondent No.1 - applicant to go back to
the High Court for the relief claimed in this application because similar
relief was already considered by the Single Judge of the High Court vide
judgment and order dated 9th March, 2018 in favour of the group
represented by the applicant. Notably, the directions given by the learned
Single Judge in the said order had not been independently challenged by
the Election Commission by filing SLP before this Court. Besides, it may
not be appropriate for the Division Bench to re-visit the matters in issue
dealt with in the judgment and interim order passed by the learned Single
Judge dated 9th March, 2018, which has been kept in abeyance by this
Court. Even if the Division Bench was to consider the relief as claimed
in the instant application, it could do so only within the parameters of
review jurisdiction or modification of the order already passed by the
Single Judge of the same High Court. For, the writ petition has been
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transferred to the Division Bench for hearing due to the directions given
by this Court vide order dated 28th March, 2018. The Division Bench,
thus, cannot sit in appeal over the impugned judgment merely because
the transferred writ petition is now being heard by a two-Judge Bench.
Suffice it to observe that we do not find merit in the preliminary objection
raised by the SLP petitioner, respondent Nos.4 to 6 and respondent No.2.
11. It was then pointed out that the bye-election to fill the vacant
Assembly Constituency of 168-Thiruvarur has been rescinded vide
Notification dated 6th January, 2019. Further, the ECI was not likely to
issue any new notification in the immediate future. Even so, we deem it
appropriate to examine the relief claimed in the present application
because we have spent invaluable judicial time in hearing both sides and
moreso because we find force in the submission of respondent No.1 -
applicant that even though the earlier press note has been rescinded by
the ECI, however, in view of the statutory requirements and in discharge
of the constitutional obligation and the statement made before the Madras
High Court in some other proceedings, it will have to notify the byeelection(s) to the vacant Assembly Constituencies in the State of Tamil
Nadu, which would be more than one and besides that, Parliamentary
elections are very much in the offing. Therefore, we proceed to answer
the issues on merit canvassed before us and we must do so in view of
the liberty given to the parties in terms of the order dated 28th March,
2018.
12. It was also urged that respondent No.1 has not made out any
prima facie case warranting interference with the final order passed by
the ECI dated 23rd November, 2017. This submission, in our opinion,
deserves to be stated only to be rejected. It is not in dispute that the writ
petition has been admitted by the High Court which obviously means
that prima facie case was made out by respondent No.1 (writ petitioner).
Additionally, the hearing of the writ petition has progressed on several
dates since 20th April, 2018 before the Division Bench, which itself presupposes that formidable issues have been raised by the writ petitioner,
requiring serious consideration by the High Court.
13. Before we advert to the rival submissions on the merits of the
issue arising from the judgment of the High Court dated 9th March, 2018,
it would be apposite to highlight the basis on which the learned Single
Judge of the High Court gave relief to the writ petitioner (respondent
No.1 - applicant). The judgment of the learned Single Judge of the High
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Court is very exhaustive and adverts to all the relevant provisions and
the reported and un-reported decisions relied upon by both sides. Having
considered the same, the High Court proceeded to opine that none of
the decisions cited at the Bar actually dealt with the question that arises
for consideration in the present case. The question in the present case is
not whether an unregistered and unrecognized group can seek allotment
of a reserved symbol under the Election Symbols (Reservation and
Allotment) Order, 1968. However, the real question is whether a faction,
represented by respondent No.1 - TTVD and VKS which claims to be
the real party having support of majority of the members at the time of
initiation of the dispute before the Election Commission, and that claim
was still pending consideration before the High Court, ought to be
compelled to first register itself as a political party and after following
the process of obtaining recognition could only then set up its claim for
allotment of a reserved symbol and use of name.
14. The High Court, taking cue from the interim order dated 22nd
March, 2017, passed by the Election Commission during the pendency
of the subject dispute before it, observed that if such arrangement
could be directed by the Election Commission when the dispute was still
pending before it, there should be no impediment for the writ Court,
which is also a court of equity, to issue similar or appropriate order
during the pendency of the writ petition before it, considering the fact
that the decision of the Election Commission was still subject matter of
challenge. The High Court also drew analogy from the decision of the
Election Commission vide order dated 19th December, 1997 in Rashtriya
Janata Dal's application for its recognition as a National Party and decision
dated 27th March, 2009 of this Court in Desiya Murpokku Dravida
Kazhagam and Anr. Vs. Election Commission of India, bearing WP(C)
No.532/2008 and order dated 27th April, 2009 in Viduthalai Chiruthaigal
Katchi Vs. Election Commission of India, bearing WP(C) No.177/2009,
wherein direction was issued to the Election Commission of India to
allot common symbols to the registered unrecognized political parties as
an interim measure for the ensuing elections. The High Court also noticed
that although at the time of institution of the dispute before the Election
Commission, the support received by the rival factions from the legislative
wing of AIADMK was that - 12 out of 134 MLAs of the AIADMK
supported the faction led by respondent No.5 - OP while 122 MLAs
and 37 out of 50 MPs of AIADMK supported the faction represented
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by respondent No.1 - TTVD. But by the time the dispute was decided
by the ECI, admittedly, respondent No.1's faction still enjoyed the support
of 6 MPs and 20 MLAs and other party members as noticed by the
Election Commission. The High Court further noted that ECI in exercise
of its plenary powers had granted relief during the pendency of the dispute
to the faction represented by respondent No.1 - TTVD in the interest of
free and fair elections and healthy growth of democracy and keeping in
mind past instances, such as the case of Rashtriya Janata Dal. On that
basis, the High Court deemed it appropriate to issue directions to allot
common symbol to the faction represented by respondent No.1 - TTVD
in different constituencies where they would nominate candidates to
contest in the ensuing elections. Notably, the High Court was conscious
of the fact that ordinarily, common symbol can be allotted only to registered
recognized political party. The Court finally observed that if the Election
Commission of India could do so in exercise of its plenary powers when
the dispute is pending before it, there could be no impediment for the
writ court to pass appropriate directions, especially when no real prejudice
would be caused to any other party and the claim regarding which faction
is the real party has still not attained finality. That would ensure a level
playing field in the political sphere for the concerned factions.
15. According to the SLP petitioner, respondent Nos.4-6 and
respondent No.2, there is no provision in the Symbols Order to allot a
common symbol to a group that is not even registered as a political
party. The power of the Election Commission to issue instructions and
directions in terms of paragraph 18 cannot be invoked in the fact situation
of the present case and moreso because the Commission has already
decided the dispute between the two factions vide order dated 23rd
November, 2017. As the dispute has been finally decided by the
Commission, the question of passing equitable order which would be in
the teeth of the Symbols Order cannot be countenanced. It is urged that
the benefits of being a registered political party and/or registered
recognized political party are well defined and upon registration and
recognition, the parties have to follow certain norms and discipline. The
political outfit such as represented by respondent No.1 would enjoy all
the benefits of a registered recognized party without discharging
corresponding obligations and liabilities in that regard. Further, granting
any relief to respondent No.1 would result in more such outfits insisting
for similar relief of allotment of a common symbol without complying
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with the statutory requirements and would set a bad precedent, besides
entailing in rendering the provisions of the Symbols Order redundant.
Further, the proceedings before the High Court not being a statutory
appeal, cannot be treated as continuation of the proceedings of the
Election Commission so as to continue the interim arrangement directed
by the Election Commission vide order dated 22nd March, 2017. Moreover,
respondent No.1 cannot insist for a particular name or symbol and if that
request is acceded to, it would create enormous confusion amongst the
voters, impinging upon the conduct of free and fair elections.
16. Thus, the principal argument of the SLP petitioner(s), respondent
Nos.4-6 and respondent No.2, is that issuing direction as sought by
respondent No.1, would result in directing the ECI to do something
contrary to the provisions contained in the Election Symbols (Reservation
and Allotment) Order, 1968. This argument, in our opinion, has been
rightly negatived by the High Court on the logic that if ECI considers
itself competent to pass interim directions for ensuring level playing field
to both the factions during the adjudication of the dispute pending before
it, there is no reason why, on the same logic the High Court, being a
court of equity, is not competent to do so when the final decision of the
ECI was still pending challenge before it. We also agree with the High
Court that the reported and unreported decisions pressed into service by
the SLP petitioner and the contesting respondents, dealt with cases where
the political party was already registered but not recognized. Similarly,
the policy propounded by the Election Commission in Rashtriya Janata
Dal, decided on 19th December, 1997, would govern cases in which a
final decision is already taken by the Election Commission on the
application of the concerned political group for recognition as a National/
State Party, which was formed as a result of a split in the recognized
National or State party. In such cases, it has been decided that the ECI
would not straightaway recognize the split faction merely on the ground
that it is a break-away or a splinter group of such registered recognized
party and such group enjoyed the support of the MPs or MLAs. Whereas,
the new party must get itself registered under Section 29A of the
Representation of the People Act, 1951, (for short "1951 Act") contest
general election on its own manifesto, policies and programmes and obtain
a mandate from its electorate for its recognition in terms of paragraphs
6 and 7 of the Symbols Order. Indeed, that dispensation may have to be
followed by respondent No.1, if his challenge to the decision of the Election
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Commission is finally rejected and/or answered against the group
represented by him. Until such time, respondent No.1 - writ petitioner
could legitimately pursue his claim before the High Court/Supreme Court
that his group represents the real political party (AIADMK) which was
earlier registered and recognized.
17. Reliance was placed on the decision of Desiya Murpokku
Dravida Kazhagam and Anr. Vs. Election Commission of India1 to
contend that even though initially this Court granted interim relief to the
writ petitioner, it eventually realized that granting such interim relief had
resulted in avoidable confusion and made it unworkable for the ECI for
the smooth conduct of the elections. In paragraphs 27 to 29 of the judgment
this Court observed thus:
"27. When the interim arrangements were made on 27-3-2009,
the registered unrecognised political parties before the Court were
only three in number, whereas presently many others have joined
the bandwagon. What we are required to consider at this stage is
whether despite the above, any prejudice would be caused to any
of the stakeholders in the election process, if such prayer was
allowed. It would certainly be to the advantage of the registered
unrecognised political parties if they were able to put up candidates
on a common symbol. On the other hand, if all registered
unrecognised political parties were to be provided with a common
symbol, prima facie, it would render the provisions of the Election
Symbols Order, 1968, completely unworkable and destroy the very
object it seeks to achieve.
28. Having regard to the aforesaid two possibilities, we are not
inclined to make any interim arrangement similar to that made on
an earlier occasion. The earlier interim arrangement was possible
on account of the lesser number of parties, but in the present
circumstances, the same will not be workable in view of the number
of candidates who are likely to contest the elections and are
required to be provided with free symbols in each constituency.
29. However, while we are not inclined to make any interim
arrangement regarding the allotment of election symbols for the
forthcoming General Assembly Elections, we make it clear that
this is only a tentative view, which shall not, in any way, affect the
final outcome of the pending writ petitions and special leave
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petitions. We also make it clear that this order will not prevent the
Election Commission from considering any representation that may
be made by the political parties and from accommodating their
prayer for a common symbol, to the extent practically possible."
18. Notably, this was a case where the registered unrecognized
political party had sought relief regarding allotment of a common symbol
for the candidates to be nominated by the party during the ensuing
elections. Suffice it to observe that it was not a case where each faction
of the registered recognized State political party claimed to be the real
party and such a dispute was sub judice before the High Court, as is
the fact situation in the present case. The fact that the writ petition
cannot be stricto sensu considered as continuation of proceedings of
the Election Commission, nevertheless it is open to the High Court to set
aside the final decision of the Election Commission and including to pass
appropriate interim directions during the pendency of writ petition before
it.
19.