1. The facts relevant to the issue on which we propose to base our decision lie within a very moderate compass. On 27th of October, 1966, the Election Commission of India addressed a letter to Shri Khem Chandra, who claimed to be the General Secretary of Republican party of India, Uttar Pradesh, stating -
'I am directed to state that the Commission is satisfied that the party which is recognised by it for the purpose of alltoment of symbol is the Republican party under the presidentship of Shri B.K. Gaikwad. As such, that authority only will be recognised by the Commission for alltoment of symbol to the candidates of the Republican Party in the elections to be held in Uttar Pradesh.'
(2) This was followed by a ntoification dated 1st December, 1966, in which names of certain parties were specified in clause 1 (b) as `multi-State party'. Name of the Republican Party was nto included. By this ntoification `reserved symbol' was defined to mean 'in relation to any recognised party specified in column 4 of the Table below, the symbol specified against that party in column 3 thereof'. `Recognized Party' is also defined in the ntoification to mean 'any political party for which a symbol is reserved in one or more States according to the Table below'. Clause 4 of the ntoification which has a considerable bearing on the question raised may be reproduced--
'4. For the purposes of paragraph 2 of this ntoification, a candidate shall be deemed to be sponsored by a particular recognised party if, and only if, -
(a) The candidate has made a declaration to that effect in his nomination paper;
(b) a ntoice in writing to that effect has, nto later than 3 p.m. on the last date for withdrawal of candidatures been delivered to the returning officer of the constituency, and
(c) the said ntoice is signed by the President, Secretary or toher office-bearer of the party who is authorised by the Party to send such ntoices and whose name and specimen signatures have been communicated in advance to the said returning officer and to the Chief Electoral officer of the State.'
According to clause 4, thereforee, a candidate is to be deemed to be sponsored by a particular recognised party if and only if the ntoice mentioned therein is signed by the President, Secretary or toher office-bearer of the party. In the Table given at the foto of the ntoification the symbol of elephant was reserved for the Republic Party of India in the States of Maharashtra, Punjab and Himachal Pradesh.
(3) It is the common case of the parties that name of the Republican party of India was, by mistake, omitted in the ntoification of 1st December, 1966, and thereforee, antoher ntoification was issued on 14th December, 1966, including inter alias the name of the Republican party of India in paragraph 1(b) of the ntoification dated 1st December 1966, as a multi-State party . In the meantime, on 30th August, 1966, Shri Khem Chandra, claiming to be the General Secretary of the Republican party, had written to the Election Commissioner, requesting that 'the symbol of the elephant may kindly be alltoted to the R.P.I. U.P. under the authority of Shri Hallmuddin Rahat Maolaey, M.L.A., President and Shri Khem Chandra, M.L.A., General Secretary'. A copy of this representation was forwarded by the Election Commission to Shri B.D. Khobragade who is described as General Secretary of the Republican party of India, for comments, if any. The comments were duly sent and by letter dated 20th December, 1966 (Annexure V to the petition) the Election Commission wrtoe to Shri Khem Chandra:-
'As regards the office bearers for the State of Uttar Pradesh mentioned by you in para 5 of your above mentioned letter, a reference is invited to the Commission's letter, No. 56/11/65/27113, dated the 27th October 1966 (copy enclosed), for your information.'
In the above qutoed paragraph, the reference was to the letter of Shri Khem Chandra dated 9th December, 1966.
(4) The main attack on the part of the petitioner is to the letter dated 20th December , 1966 read with the letter dated 27th October, 1966 and it has been contended that the Election Commissioner had no jurisdiction to limit the recognition beyond what was contained in the ntoification dated 14th December, 1966 and thereforee to the Republic Party under the presidentship of Shri B.K. Gaikwad, Mr. Garg the learned counsel for the petitioner has raised the following five contentions:-
(1) Rule 5 of the conduct of Election Rules, 1961, does nto authorise the Election Commission to impose restrictions arbitrarily on the choice of symbols reserved for parties;
(2) whenever the Election Commission requires a candidate to have the authority from an individual before he gets a symbol alltoted to a party it must come to a conclusion in a quasi-judicial manner that the person named has authority to sponsor the candidate;
(3) on a finding that split has taken place in a political party the Election Commission must recognise buth the groups and reserve symbols in a way that it does nto result in discrimination or in manner that it does nto confer advantage on one group over the toher;
(4) restrictions imposed in the choice of symbols must conform to the factual position and the Election Commission is duty bound to investigate facts; and
(5) under Rule 5 of the said Rules symbols can be reserved for candidates and nto for parties.
(5) Mr. Garg, in the course of the arguments, also emphasised the point that even if symbols could be reserved for the parties and thereby for candidates accredited to the parties, the restrictions regarding the choice of symbols could in view of the said rule 5, be imposed only by a ntoification in the Gazette of India and in the official Gazette of each State. It has nto been disputed that the two letters, namely, the letter dated 27th October, 1966, and the letter dated 20th December, 1966, were nto ntoified in any Gazette. In elaboration of this contention Mr. Garg says that imposing a condition for alltoment of a symbol to a party in the manner in which it has been done by the said two letters, namely, 'under the presidentship of Shri B.K. Gaikwad', is a restriction within the meaning of Rule 5 and, thereforee, could be imposed only by a ntoification in the Gazette. Unfortunately, we did nto have the benefit of any assistance on behalf of the Election Commission although the points raised are of considerable importance. Mr. Sinha, the learned counsel for the respondents, has no objection if it is held that:-
(1) the ntoifications dated 1st December 1966 and 14th December, 1966 are valid and the specification of the symbols that can be chosen by candidates at elections can be property made in the manner in which it has been done by the said ntoifications, namely, by reserving the symbols for recognised parties, and leaving free symbols for toher candidates; and
(2) modifying the ntoifications in the way in which it has been done by the letter dated 27th October, 1966, that the Republican Party recognised as the party under the presidentship of Shri B.K. Gaikwad is bad but under clause 4 of the ntoification dated 1st December, 1966, the Election Commission can in exercise of powers, under rule 10 of the said Rules, issue necessary directions saving as to who shall be the president and/or the Secretary and/or the office bearer authorised to send ntoices mentioned in the said clause.
(6) In short, Mr. Sinha has no objection to the quashing of the directions contained in the letters dated 27th October, 1966 and 20th December, 1966, provided the powers of the Election Commission to issue directions under rule 10 as mentioned herein above are preserved. Ntowithstanding this concession by Mr. Sinha, it does nto absolve us from deciding the question whether the directions contained in the said two letters are valid or nto. I may make it clear, at the very outset that in the view that we are taking it is unnecessary to pronounce on the powers of the Election Commission to issue directions under Rule 10 regarding the authority of the President and/or the Secretary and/or the Office bearer of the party to send ntoices mentioned in clause 4 of the ntoification dated 1-12-1966, or to say as to who that President, Secretary or office bearer of a particular party recognised by the ntoification is.
(7) At this stage it may be appropriate to deal with a preliminary objection raised by Mr. Sinha as to the maintainability of this petition. He says that the decision of the direction contained in the said two letters may at the most be based on erroneous interpretation of law and, thereforee, the jurisdiction of this Court is barred under Art. 329(b) of the Constitution. Mr. Sinha, however, concedes that in case the order is outside the purview of an Act or is without jurisdiction or is patently erroneous, the powers of this Court under Art. 226 are nto affected. In the view that we have taken the orders or directions in the said two letters are clearly outside the purview of the Act and are without jurisdiction and, thereforee, the preliminary objection can have no merit. The real question, thereforee, that confronts us is whether the directions contained in the said two letters are without jurisdiction and are outside the purview of the statute. Under R. 5 of the said rules, the Election Commission is competent to specify the symbols that may be chosen by candidates at elections. It would, thereforee in my opinion, be open to the Election Commission to recognise parties and say that candidates accredited to a particular recognised party shall be entitled to choose the symbol reserved for such party. Recognition of parties for reservation of symbols is thereforee, within the competence of the Election Commission under rule 5. I am also of the pinion that clause (iv) of the ntoification dated 1-12-1966 is a restriction covered by the words 'the restrictions to which their choice shall be subject' in the said rule 5. Expression of the office bearers of a party who would be competent or authorised to send ntoices mentioned in clause (iv) of the ntoification would certainly be a restriction in which the choice of symbol is made subject. This restriction could, thereforee, be imposed by a ntoification as has been done in the present case. By the ntoification the Election Commission having recognised the Republican party of India, it has by the said two letters in a way destroyed that recognition. Instead of the Republican party as recognised in the ntoification the said letters have in substance the effect of according recognition to antoher party, namely the Republican party under the presidentship of Shri B.K. Gaikwad. In substance, thereforee, a different entity seems to have been recognised by the said two letters in so far as the alltoment of symbol to the party is concerned. Under the ntoification, the President, Secretary or toher office bearer could send such ntoices. The effect of the letters is nto merely to confine the sending of ntoices by the President and that too Mr. B.K. Gaikwad, but also recognising the Republican party under the Presidentship of Shri B.K. Gaikwad. Such direction would in my opinion relate to specification of symbols that may be chosen by candidates within the meaning of Rule 5 and could be done only by a ntoification as provided in the said Rules. The contention in defense of these directions that they could be issued under rule 10 (4) has no merit because such a direction cannto destroy the effect of specification of symbols based on recognition of parties as ntoified under Rule 5. A suggestion was made at the bar on behalf of the respondents that the said directions were merely classificatory of the expressions `Republican party of India' in the ntoification dated 1st December, 1956, read with ntoification dated 14th December, 1966. That contention can have no merit as it over-looks the fact that what was recognised by the ntoification was the Republican party of India and the direction has the effect of substituting antoher entity which could be done only by ntoification as provided by rule 5. As I have said earlier, it may possibly be within the competence of the Election Commission to issue directions either after or before a ntoice under clause (iv) of the ntoification dated 1-12-1966 is sent as to who would be the President. Secretary or the office bearer to send the ntoices. But that is different from changing the entity recognised. While issuing directions the recognition of a party under Rule 5 by a ntoification must be kept intact and cannto be changed except under rule 5. In this view, it must be held that the direction contained in the letter dated 27th October, 1966, read with letter dated 20th December, 1966, was beyond the competence of the Election Commission. Consequently the words,
'that the party which is recognised by it for the purpose of alltoment of symbol is the Republican party under the presidentship of Shri B.K. Gaikwad. As such that party only will be recognised by the Commission for alltoment of symbols to the candidates of the Republican party in the Election to be held in Uttar Pradesh'
must be quashed. It is in the circumstances unnecessary to resolve the controversy covered by toher points raised at the bar. The parties will bear their own costs. A copy of the judgment must be sent forthwith to the Election Commission of India.
(8) Petition allowed.