Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of Ladakh & Ors vs Jammu & Kashmir National Conference And ... on 14 August, 2023
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM No. 4893/2023 in
LPA No. 151/2023
CM No. 4894/2023
Caveat No. 1925/2023
Dated: 14th of August, 2023.
Union Territory of Ladakh & Ors.
... Appellant(s)
Through: -
Mr Tahir Majid Shamsi, DSGI.
V/s
Jammu & Kashmir National Conference and Anr.
... Respondent(s)
Through: -
Mr Shariq J. Reyaz, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE (JUDGMENT) ORAL (N. Kotiswar Singh-CJ)
01. Heard learned Counsel for the parties. Caveat No. 1925/2023 shall stand discharged accordingly.
02. The present Letters Patent Appeal has been filed against the interim Order dated 9th of August, 2023 passed by the learned Single Judge in the Writ Petition (C) No. 1933/2023 filed by the Respondent No.1 herein-Jammu & Kashmir National Conference/ Writ Petitioner, which is a recognized Political Party in the Union Territory of Jammu & Kashmir. The aforesaid Writ Petition was filed by the Petitioner on being aggrieved by the Order dated 26th of July, 2023 passed by the Election Department of the Administration of Union Territory of Ladakh, wherein Page 2 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 no provision was made for allocation of the reserved symbol for the Petitioner-Party, when it sought to contest the upcoming elections in the Ladakh Autonomous Hill Development Council, Kargil, which have been announced on 5th of August, 2023 and the candidates are required to submit nomination forms starting from 16th of August, 2023, but before 23rd of August, 2023.
The learned Writ Court, after hearing the parties, passed the interim Order dated 9th of August, 2023, directing the Petitioner-political Party to approach the office of Respondents 1 to 3 and 5/ Appellants herein for notifying the reserved symbol ("Plough") already allotted to it and the Respondents 1 to 3 & 5/ the Appellants herein have been, in turn, directed to notify the symbol allotted to the Petitioner-Party in terms of Paragraphs 10 and 10-A of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the "Election Symbols Order of 1968") and allow the candidates set up by the Petitioner-Party to contest on the reserved election symbol of "Plough" already allotted to the petitioner Party being a recognised State Party in the UT of Jammu & Kashmir.
03. It is the case of the Writ Petitioner/ Respondent No.1 herein that the Writ Petitioner is a recognized political Party under Section 20 of the Representation of Peoples Act, 1951 read with the Election Symbols Order of 1968 in the Union Territory of Jammu & Kashmir and, in fact, the Petitioner-Party is the incumbent political Party in power in the present Ladakh Autonomous Hill Development Council, Kargil. Upon re- organization of the then State of Jammu & Kashmir into two Union Territories viz. the Union Territory of Jammu & Kashmir, and Union Territory of Ladakh, the Petitioner-Party is seeking to contest the upcoming elections for the Ladakh Autonomous Hill Development Council on the same allocated reserved symbol of "Plough". According to the Writ Petitioner, the Party approached the Election Commission of India by submitting representations for allocation of the said symbol, Page 3 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 which were disposed of by the Election Commission of India by an Order dated 18th of July, 2023 by holding that as the Jammu & Kashmir National Conference is a recognized political Party in the Union Territory of Jammu & Kashmir with its reserved symbol ("Plough"), the Party can avail the concession under Paragraph No. 10 of the Election Symbols Order of 1968. However, since the Election Commission of India does not allot any symbol for any local body election, as it is the subject matter of the State Election Commission concerned, the Election Commission of India cannot grant any such concession as provided under Paragraph No. 10 of the Election Symbols Order of 1968 to the Petitioner-Party.
It appears that the Election Department, UT of Ladakh also issued a notification on 26th of July, 2023, in which it was notified that in terms of Rule 17 of the Ladakh Autonomous Hill Development Councils (Election) Rules, 1995, the Administration of UT of Ladakh has specified, as mentioned in "Annexure-A" to the said notification, the symbols that will be kept reserved for the candidates contesting in general election of the Ladakh Autonomous Hill Development Council, Kargil belonging to the National parties and the symbols respectively reserved for them in terms of earlier notification dated 15th of May, 2023. Since, the Jammu & Kashmir National Conference is not a National but a State Party, it is not included in the symbols reserved in the notification as mentioned in "Annexure A" of the notification. In the same notification dated 26 th of July, 2023, the UT of Ladakh has also specified, in "Annexure B" to the notification, the free symbols to be chosen by other than recognized political Parties/ Union Territory Party, where the symbol of "Plough" does not find a mention.
04. In view of the aforesaid decision of the Election Commission of India rendered on 18th of July, 2023, the Petitioner-Party claims to have approached the Election Authority on 7th of August, 2023 for allotting the symbol of "Plough", which is the symbol allotted to the Jammu & Kashmir National Conference in the UT of Jammu & Kashmir, as Page 4 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 according to the Petitioner, the Petitioner is entitled to allocation of the said symbol in terms of Paragraph No.10 of the Election Symbols Order of 1968. According to the Petitioner, as the Petitioner-Party had not received any response, the Petitioner approached the Writ Court by filing the writ petition being WP (C) No. 1933/2023 and the Writ Court passed the order dated 9th of August 2023 directing allotment of the symbol of "Plough" to the Petitioner.
Since the applications submitted by the Petitioner to the Election Authority of the UT of Ladakh have been rejected, as submitted by Mr T M Shamsi, learned DSGI, the issue has to be decided on the basis of the order dated 18th of July, 2023 passed by the Election Commission of India regarding the claim of the Petitioner for allotment of Party symbol of "Plough" for contesting the election in the LAHDC Kargil.
05. It is the case of the Appellants that even if the Writ Petitioner is entitled to the concession as mentioned Paragraph No. 10 or 10-A of the Election Symbols Order of 1968, the authority to give such concession is the Election Commission of India and not the Election Authority of UT of Ladakh as provided under Section 5 of the LAHDC Election Rules, 1995, inasmuch as the 'Commission' has been defined under the Election Symbols Order of 1968 as the Election Commission of India constituted under Article 324 of the Constitution or such State Election Commission to be constituted under the Government of Union Territories Act, 1963. It has been submitted that under the Government of Union Territories Act, 1963 the 'Election Commission' means the Election Commission appointed by the President under Article 324 of the Constitution. Thus, it is only the Election Commission constituted under Article 324 of the Constitution which is competent to grant any such concession for allotment of symbols and certainly not the Election Authority of the UT of Ladakh constituted under Section 5 of the LAHDC Election Rules 1995.
06. It has been submitted by the learned Counsel for the Appellants that, since the plea of the Writ Petitioner for allotment of Page 5 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 symbol of "Plough", in terms of the application submitted to the Election Commission of India was not granted by the Election Commission of India by virtue of Order dated 18th of July 2023, the Petitioner-Party should have challenged the said order issued by the Election Commission. However, the petitioner has opted not to do so.
Otherwise also, the Election Symbols Order of 1968 clearly provides that for the grant of concession, certain conditions have to be fulfilled as mentioned in sub-clauses (a), (b) and (c) of Paragraph No. 10 as well as sub-clauses(a), (b) and (c) of Paragraph No. 1-0A thereof. Thus, there has to be application of mind by the Competent Authority for the grant of concession on the basis of the application to be made by the concerned candidate or political Party, but the learned Single Judge has, by the impugned Order, directed the Appellants to allot the symbol on application to be submitted by the Writ Petitioner, thus leaving no discretion to the Authority to examine whether the Petitioner fulfils the conditions mentioned in Paragraph No. 10 or 10-A of the Election Symbols Order of 1968. It has been submitted that if the reserved symbol of "Plough" is to be allotted to the Petitioner-Party on mere filing of the application as per the direction of the learned Single Judge, the discretion conferred upon the Authority would be rendered redundant and, on this count also, the impugned Order passed by the learned single Judge is liable to be set aside.
07. On the other hand, learned Counsel for the Respondent No.1/ Writ Petitioner submits that in view of the provisions of the Election Symbols Order of 1968, there is hardly any scope for the Authority to take any different view, as it is clearly mentioned under Paragraph No.10 that if a political Party which is recognized as a Sate Party in some State or States, sets up a candidate at an election in a constituency in any other State or Union Territory in which it is not a recognized State Party, then such candidate may, to the exclusion of all other candidates in the constituency, be allotted the symbol reserved for that Party in the State or Page 6 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 States in which it is a recognized State Party, notwithstanding that such symbol is not specified in the list of free symbols for such other State or Union Territory, on the fulfilment of the conditions mentioned therein.
08. For better appreciation, the aforesaid paragraphs no. 10 and 10-A of the Symbols Order of 1968 are reproduced hereinbelow.
"10. Concession to candidates set up by a State Party at elections in other States or UnionTerritories: If a political Party which is recognised as a State Party in some State or States, setsup a candidate at an election in a constituency in any other State or Union Territory in which it isnot a recognised State Party, then such candidate may, to the exclusion of all other candidates inthe constituency, be allotted the symbol reserved for that Party in the State or States in which it isa recognised State Party, notwithstanding that such symbol is not specified in the list of free symbols for such other State or Union Territory, on the fulfilment of each of the followingconditions, namely :-
(a) that an application is made to the Commission by the said Party for exclusive allotment of that symbol to the candidate set up by it, not later than the third day after the publication in the OfficialGazette of the notification calling the election;
(b) that the said candidate has made a declaration in his nomination paper that he has been set up by that Party at the election and that the Party has also fulfilled the requirements of clauses (b), (c), (d) and (e) of paragraph 13 read with paragraph 13A in respect of such candidate; and(c) that in the opinion of the Commission there is no reasonable ground for refusing the applicationfor such allotment.
Provided that nothing contained in this paragraph shall apply to a candidate set up by a StateParty at an election in any constituency in a State in which that Party is not a State Party andwhere the same symbol is already reserved for some other State Party in that State.
10-A. Concession to candidates set up by an unrecognised Party which was earlier recognisedas a National or State Party - If a political Party, which is unrecognised at present but was arecognised 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, Page 7 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 whether such Party was earlier recognised 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 recognised 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 fulfilment of each of the following conditions, namely:-
(a) that an application is made to the Commission by the said Party for the exclusive allotment ofthat symbol to the candidate set up by it, not later than the third day after the publication in theOfficial Gazette of the notification calling the election;
(b) that the said candidate has made a declaration in his nomination paper that he has been set upby that Party at the election and that the Party has also fulfilled the requirements of clauses (b),(c), (d) and (e) of paragraph 13 read with paragraph 13A in respect of such candidate; and
(c) that in the opinion of the Commission there is no reasonable ground for refusing the application for such allotment:
Provided that nothing contained in this paragraph shall apply to a candidate set up by the said Party at an election in any constituency in a State or Union territory where the same symbol is already reserved for some other National or State Party in that State or Union Territory."
09. In the present case, it cannot be denied that the Petitioner- Party, namely, the Jammu & Kashmir National Conference, is a recognized political Party in the Union Territory of Jammu & Kashmir. This Party has intended to set up candidates in the upcoming elections for the Ladakh Hill Development Council in Kargil District of the UT of Ladakh. It is also an admitted position that as of now that the Jammu & Kashmir National Conference is not yet a recognized Party in the Union Territory of Ladakh. However, since the symbol of "Plough" has been already allotted to the Jammu & Kashmir National Conference, which is a recognized Party in the Union Territory of Jammu & Kashmir, in terms of Paragraph No. 10 of the Election Symbols Order of 1968, any candidate set up by the said Jammu & Kashmir National Conference Party in the local elections in the District Kargil of the Union Territory of Ladakh will Page 8 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 be entitled to the symbol of "Plough" as per the concession provided under paragraph No.10 of the Election Symbols Order of 1968.
10. Similarly, even if the Appellant-authorities take the view that after re-organization of the erstwhile State of Jammu & Kashmir into two Union Territories, i.e., UT of Jammu & Kashmir, and UT of Ladakh, the Jammu & Kashmir National Conference is no more a recognized political Party in the Union Territory of Ladakh, though not admitted by the Writ Petitioner, since, it was a political Party recognized in the erstwhile State of Jammu & Kashmir within the period of 06 years from the date of the proposed election, i.e. in 2023, the Petitioner-Party would be entitled to similar concession as provided under Paragraph No.10-A of the Election Symbols Order of 1968. Thus, even if the Order dated 26th of July, 2023 issued by the Appellants does not mention the name of the Jammu & Kashmir National Conference as a recognised State Party or a recognized Party in the Union Territory of Ladakh, yet by virtue of the mandate of Paragraph Nos. 10 and 10-A of the Election Symbols Order of 1968, the Petitioner-Party would be entitled to the aforesaid symbol of "Plough", which is the allotted symbol of the said Party-Jammu & Kashmir National Conference, a recognized Party in the Union Territory of Jammu & Kashmir and erstwhile State of Jammu & Kashmir.
11. Coming to the contention of the Appellants that it is only the Election Commission of India which is authorized to issue such an order of allocation of symbol and the contention that the Election Authority, constituted under Rule 5 of the Ladakh Autonomous Hill Development Council (Election) Rules, 1995, hereinafter referred to as the LAHDC Rules of 1995, is not the competent authority, it can be clearly seen from the record that it is the said Election Authority constituted under Rule 5 of the LAHDC Rules of 1995 which has been undertaking all the exercises, for the conduct of elections in the LAHDC, Kargil including allocation of symbols as evident from the notification dated 26th of July, 2023 issued by the Election Department of the UT of Ladakh and, as such, it cannot lie in Page 9 of 10 LPA No. 151/2023 CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 the mouth of the Appellants that when it comes to the allotment of symbol in respect of the Petitioner-Party, the Election Authority does not have the jurisdiction or competence, though it has all the other powers relating to conduct of elections in LAHDC, Kargil.
12. Since the election pertains to the LAHDC, Kargil, the Election Commission of India is not the authority to conduct the elections and it would be the UT Authority which will be primarily responsible for the conduct of the elections for the Ladakh Autonomous Hill Development Councils.
It has been provided under Section 59 of the Ladakh Autonomous Hill Development Councils Act, 1997 that the Government may make rules to regulate all or any of the matters mentioned therein for the purpose of holding of elections of members under thisAct. Though allocation of symbols is not specifically mentioned under Section 57, it goes without saying that since Section 57 is an omnibus provision, allocation of symbols will be within the scope of the said section, though the principles and criteria laid down by the Elections Commission of India have to be adhered to. It is in this context the order dated 18.07.2023 issued by the Election Commission has to be understood.
Election Authority of the UT of Ladakh has been constituted under the LAHDC Rules of 1995 mandated to conduct the elections for the Ladakh Autonomous Hill Development Councils under the aforesaid Act.
Rule 17 provides that the Government shall by notification in Government Gazette, specify the symbols, that will be kept reserved for candidates set up by the Political Parties recognised under Rule 18 and symbols that may be chosen by other candidates at any election and restriction to which their choice will be subject.
Page 10 of 10 LPA No. 151/2023CM No. 4894/2023; 4893/2023; & Caveat No. 1925/2023 Thus, it is clear from the above that the Election Authority constituted under Rule 5 of the LAHDC Rules of 1995 is competent to allot the election symbols.
13. As regards the contention of the Appellants that the impugned order passed by the learned Single Judge has divested the Competent Authority/Election Authority of its power to examine whether the applicant Party fulfils the conditions mentioned in Paragraph Nos. 10 and 10-A, we would observe that despite the direction of the learned Single Judge, the Authority will have the competence to examine the same, though there is hardly any scope for examining the same in view of the admitted position regarding the allotment of the symbol of "Plough" to the petitioner as a recognised State Party in the UT of Jammu & Kashmir, as discussed above.
14. For the reasons discussed hereinabove, we are of the view that the impugned Order dated 09.08.2023 passed by the learned Single Judge in the writ petition, being WP (C) No. 1933/2023, does not appear to be contrary to the provisions of Paragraph Nos. 10 and 10-A of the Election Symbols Order of 1968 and, as such, it does not warrant any interference from us in this appeal.
15. With the above observations, the present appeal shall stand dismissed, along with the connected CMs.
(M. A. CHOWDHARY) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
SRINAGAR
August 14th, 2023
"TAHIR"
i. Whether the Judgment is speaking? Yes/ No.
ii. Whether the Judgment is reportable? Yes/ No.