TaxTMI 
TaxTMI 
2023 (9) TMI 1407
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....pholding the interim order of a learned Single Judge dated 09.08.2023 in Writ Petition (Civil) No.1933 of 2023. BRIEF FACTS: 4. The controversy involved in this lis is the non allocation of the Plough symbol to the writ petitioner, the Jammu and Kashmir National Conference/Respondent No.1 herein (hereinafter referred to as "R1") for its candidates to contest the then-upcoming General Elections of the Ladakh Autonomous Hill Development Council, Kargil (hereinafter referred to as the "LAHDC"). In view of the urgency in the matter, the learned Single Judge passed an interim order on 09.08.2023, the operative portion whereof at Paragraph 11 reads as under: "11. Keeping in view that the upcoming General Election of Ladakh Autonomous Hill Development Council (LAHDC) stands announced, the petitioner-party is directed to approach the office of the respondents 1 to 3 & 5, for notifying the reserved symbol (plough) already allotted to it and respondents 1 to 3 & 5 shall notify the symbol allotted to petitioner-party in terms of Paragraphs 10 and 10(A) of Election Symbols (Reservation and Allotment) Order, 1968, and allow the candidates set up by the petitioner-party to contest....
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....rit Petition before the High Court. With regard to the opinion of the Law Department of the Appellant No.1, as quoted in the communication of the District Election Officer (District Magistrate), Kargil in his communication dated 12.07.2023 to the Chief Electoral Officer, Union Territory of Ladakh, the same at best was only advisory but not binding as it is for the Election Authority of the Union Territory of Ladakh to independently consider such request. 9. He submitted that none of the candidates, who have filled up and submitted their nomination forms, have either sought the Plough symbol or indicated in the relevant column that they were candidates of R1 and on this score alone, at this stage, R1 was not entitled to any indulgence by this Court. 10. He summed up his arguments by stating that, as of Now This Court's order dated 01.09.2023 is quoted for ready reference: 'Application for impleadment is rejected. Heard learned counsel for the parties. Judgment reserved. List the matter for pronouncement on 06.09.2023 the process of elections had already been set in motion. Learned ASG pointed out that filing of the nomination forms had be....
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....oned by the other side and the Appellants cannot take the advantage of such delay caused by them to the detriment of R1's bonafide, legitimate and genuine claim. 13. Learned counsel submitted that allotment of symbols by the Appellants to the National Parties and free symbols shown in the Notification for the present elections clearly shows that the same are in conformity with the 1968 Order. Thus, he submitted, the Appellants are precluded from blowing hot and cold that they cannot and should not be permitted to selectively, as per their whims and fancies, decide as to which provisions under the 1968 Order would be applicable and which provisions would not. It was submitted that a harmonious reading of Paragraphs 9, 10, 10(A) as also 12 of the 1968 Order would indicate beyond doubt that in the absence of anything to the contrary, the Appellants were required to be guided by the 1968 Order in toto, which was also the indication in the letter written by the ECI to R1 and the same view was taken by the Law Department in its Legal Opinion to the Appellants. ANALYSIS, REASONING AND CONCLUSION: 14. The relevant Paragraphs of the 1968 Order, attention to which was drawn by the l....
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....y a State party at an election in any constituency in a State in which that party is not a State Party and where the same symbol is already reserved for some other State Party in that State. 10A. Concession to candidates set up by an unrecognized party which was earlier recognized as a National or State party.- If a political party, which is unrecognized at present but was a recognized National or State party in any State or Union territory not earlier than six years from the date of notification of the election, sets up a candidate at an election in a constituency in any State or Union territory, whether such party was earlier recognized in that State or Union territory or not, then such candidate may, to the exclusion of all other candidates in the constituency, be allotted the symbol reserved earlier for that party when it was a recognized National or State party, notwithstanding that such symbol is not specified in the list of free symbols for such State or Union territory, on the fulfillment of each of the following conditions, namely:-- (a) that an application is made to the Commission by the said party for the exclusive allotment of that symbol to the candi....
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....ndidate on whom the lot falls, and to no one else: Provided that where of the two or more such candidates set up by such different unrecognized political parties, only one is, or was, immediately before such election, a sitting member of the House of the People, or, as the case may be, of the Legislative Assembly (irrespective of the fact as to whether he was allotted that free symbol or any other symbol at the previous election when he was chosen as such member), the returning officer shall allot that free symbol to that candidate, and to no one else; (b) if, of those several candidates, no one is set up by any unrecognised political party and all the independent candidates, but one of the independent candidates is, or was, immediately before such election a sitting member of the House of the People, or, as the case may be, of the legislative Assembly, and was allotted that free symbol at the previous election when he was chosen as such member, the Returning Officer shall allot that free symbol to that candidate, and to no one else; and (c) if, of those several candidates, being all independent candidates, no one is, or was, a sitting member as aforesaid....
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.... of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidates to have been duly elected. (4) If a petitioner in addition to calling in question the election of a returned candidate makes a declaration that he himself or any other candidate has been duly elected and the authority under sub-section (1) is of opinion that- (a) in fact the petitioner or such other candidate has received the majority of valid votes; or (b) but for the votes obtained by the returned candidate by corrupt practice the petitioner or such other candidate would have obtained the majority of the valid votes, the authority as aforesaid shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. 13. Procedure for election disputes. - The procedure provided in the Code of Civil Procedure, Samvat 1977 in regard to suits shall be followed by the authority appointed under section 12 as far as it can be made applicable in the trial and disposal of an election petiti....
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...."It is well settled that inter-departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. ..." 18. In Kalpana Mehta (supra), Hon. Dipak Misra, C.J.I., with whom 4 learned Judges concurred, stated: "40. While focussing on the exercise of the power of judicial review, it has to be borne in mind that the source of authority is the Constitution of India. The Court has the adjudicating authority to scrutinise the limits of the power and transgression of such limits. The nature and scope of judicial review has been succinctly stated in Union of India v. Raghubir Singh [Union of India v. Raghubir Singh, (1989) 2 SCC 754] by R.S. Pathak, C.J. thus : (SCC p. 766, para 7) "7. ... The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. ... With this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial....
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....the limits laid down by the Constitution. 43. In S.C. Chandra v. State of Jharkhand [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897] , it has been ruled that the judiciary should exercise restraint and ordinarily should not encroach into the legislative domain. In this regard, a reference to a three-Judge Bench decision in Suresh Seth v. Indore Municipal Corpn. [Suresh Seth v. Indore Municipal Corpn., (2005) 13 SCC 287] is quite instructive. In the said case, a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956. Repelling the submission, the Court held that it is purely a matter of policy which is for the elected representatives of the people to decide and no directions can be issued by the Court in this regard. The Court further observed that this Court cannot issue directions to the legislature to make any particular kind of enactment. In this context, the Court held that under our constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact law and no outside power or authority can issue a direction to enact a particular kind of legis....
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....l rights of individuals are at stake. Our Constitution has conceived the constitutional courts to act as defenders against illegal intrusion of the fundamental rights of individuals. The Constitution, under its aegis, has armed the constitutional courts with wide powers which the courts should exercise, without an iota of hesitation or apprehension, when the fundamental rights of individuals are in jeopardy. Elucidating on the said aspect, this Court inVirendra Singh v. State of U.P. [Virendra Singhv. State of U.P., AIR 1954 SC 447] has observed : (AIR p. 454, para 34) "34. ... We have upon us the whole armour of the Constitution and walk from henceforth in its enlightened ways, wearing the breastplate of its protecting provisions and flashing the flaming sword of its inspiration." 46. While interpreting fundamental rights, the constitutional courts should remember that whenever an occasion arises, the courts have to adopt a liberal approach with the object to infuse lively spirit and vigour so that the fundamental rights do not suffer. When we say so, it may not be understood that while interpreting fundamental rights, the constitutional courts should altogether ....
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....that a genuine request, in the attendant facts, could not have been turned down only on the ground that there was no provision for the same, when such request could be acceded to (i) without any violation of law, and; (ii) is within the jurisdictional domain and capacity of the authority concerned, and; (iii) does not prejudice any other stakeholder, and; (iv) does not militate against public interest. 21. The High Court, being a Constitutional Court, is not, by any stretch of imagination, precluded from issuing a direction of the nature issued by it in the instant case, under Article 226 of the Constitution of India, more so when such direction does not violate any statutory provision. In High Court of Tripura v Tirtha Sarathi Mukherjee, (2019) 16 SCC 663, this Court had answered, in the affirmative, as to the power of the High Courts under Article 226 to direct for actions, in a rare and exceptional situation, which do not find mention in the provisions concerned. Noticing and relying upon High Court of Tripura (supra), in Aish Mohammad v State of Haryana, 2023 SCC OnLine SC 736, we held: "24. Moreover, the learned Civil Judge (Junior Division) found no ground to inte....
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....phasis supplied)" (emphasis supplied by us via bolding) 22. Elections to any office/body are required to be free, fair and transparent. Elections lie at the core of democracy. The authority entrusted by law to hold/conduct such elections is to be completely independent of any extraneous influence/consideration. It is surprising that the Union Territory of Ladakh not only denied R1 the Plough symbol, but even upon timely intervention by the learned Single Judge, has left no stone unturned not only to resist but also frustrate a cause simply by efflux of time. 23. A detailed dive into the sequence of events is apposite. R1 was before the concerned authorities, by way of representation, well in time, and much before even the Notification dated 02/05.08.2023 was published, by impugning the Notification dated 26.07.2023 which denied it the Plough symbol. R1 had moved the ECI, which opined, by way of communication dated 18.07.2023 that the ECI does not allocate any symbol for local body elections as the same falls within the domain of the State Election Commission concerned. The ECI stated that as there is no Legislative Assembly in the Union Territory of Ladakh and the 1968 Ord....
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....AHDC, Kargil. In such background, an interim order came to be passed by the learned Single Judge and affirmed by the learned Division Bench. 27. This Court notes, with concern, that the Appellants, while sitting on the representation of R1, went ahead and notified the elections on 02/05.08.2023. We are unable to appreciate such conduct. This recalcitrance to decide in time speaks volumes. Instances like these raise serious questions. 28. Having considered the matter in extenso, the Court does not find any merit in the present appeal. The request for allotment of the Plough symbol by R1 was bonafide, legitimate and just, for the plain reason that in the erstwhile State of Jammu and Kashmir (which included the present Union Territory of Ladakh), it was a recognized State Party having been allotted the Plough symbol. Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the ECI had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled for the allotment of plough symbol to it....
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....up by the Courts resulting in efflux of time the cause would be defeated, and the Court would be rendered helpless to ensure justice to the party concerned. It would not be out of place to mention that this Court can even turn the clock back, if the situation warrants such dire measures. The powers of this Court, if need be, to even restore status quo ante are not in the realm of any doubt. The relief(s) granted in the lead opinion by Hon. Khehar, J. (as the learned Chief Justice then was), concurred with by the other 4 learned Judges, in Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 is enough on this aspect. We know full well that a 5- Judge Bench in Subhash Desai v Principal Secretary, Governor of Maharashtra, 2023 SCC OnLine SC 607 has referred Nabam Rebia (supra) to a Larger Bench. However, the questions referred to the Larger Bench do not detract from the power to bring back status quo ante. That apart, it is settled that mere reference to a larger Bench does not unsettle declared law. In Harbhajan Singh v State of Punjab, (2009) 13 SCC 608, a 2-Judge Bench said: "15. Even if what is contended by the learned coun....
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....in this Court are concerned, we request the Benches concerned dealing with similar matters to defer the hearing until a decision is rendered one way or the other on the issue whether the matter should be referred to a larger Bench or not. Apart from anything else, deferring the consideration would avoid inconvenience to the litigating parties, whether it is the State or individuals." (emphasis supplied) 35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by ....
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....xercising its functions affecting public law rights." ; Boddula Krishnaiah v State Election Commissioner, Andhra Pradesh, (1996) 3 SCC 416; Anugrah Narain Singh v State of Uttar Pradesh, (1996) 6 SCC 303; Election Commission of India v Ashok Kumar, (2000) 8 SCC 216; Kishansing Tomar v Municipal Corporation, Ahmedabad, (2006) 8 SCC 352; West Bengal State Election Commission v Communist Party of India (Marxist), (2018) 18 SCC 141; Dravida Munnetra Kazhagam v State of Tamil Nadu, (2020) 6 SCC 548; Laxmibai v Collector, (2020) 12 SCC 186, and last but not the least, State of Goa v Fouziya Imtiaz Shaikh, (2021) 8 SCC 401 Where the learned 3-Judge Bench has considered a catena of the precedents relevant to the issue(s) before it.. On scrutiny, in combination with the timelines and facts of the matter herein, we are sure that the High Court did not falter. 37. We would indicate that the restraint, self-imposed, by the Courts as a general principle, laid out in some detail in some of the decisions supra, in election matters to the extent that once a notification is issued and the election process starts, the Constitutional Courts, under normal circumstances are loath to interfere, is no....
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.... when such decisions/actions are challenged, by sheer passage of time, irreversible consequences would have occurred, and no substantive relief could be fashioned is just that - misconceived. However, conduct by authorities as exhibited herein may seriously compel the Court to have a comprehensive re-think, as to whether the selfimposed restrictions may need a more liberal interpretation, to ensure that justice is not only done but also seen to be done, and done in time to nip in the bud any attempted misadventure. We refrain from further comment on the Appellants, noting the pendency of the contempt proceeding. 40. As made clear by us in the foregoing paragraphs, the situation emanating herein is, in a manner of speaking, unprecedented. With a sense of anguish, it would not be wrong to say that the instant judgment has been invited upon themselves by the Appellants. The orders of the High Court, in our considered opinion, were in aid of the electoral process, and no fault can be found therewith. 41. The learned ASG's submission that nobody representing R1 had filed his/her nomination form, by the last date notified, is inapposite, inasmuch as in the position existing, no can....
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....e unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of the election law of India. ... The object is to ensure that the process of election is as genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice. Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired a great value because the bulk of the electorate associated the political party at the time of elections with its symbol. ..." (emphasis supplied) And again in paras 40 and 41 it is observed thus : (Sadiq Ali case [Sadiq Ali v. Election Commission of India, (1972) 4 SCC 664] , p. 682) "40. ... It would, therefore, follow that Commission has been clothed with plenary powers by the abovementioned Rules in the matter of allotment of symbols. ... If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the m....
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.... The political parties have to be there if the present system of Government should succeed and the chasm dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organised on party basis - in other words, "on systematised differences and unresolved conflicts". That is the essence of our system and it facilitates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referred to the existence of political parties, by the amendments made to it by the Constitution (Fifty-second Amendment) Act, 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above Amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby b....