Kerala High Court
T.P. Peethambaran vs T.H. Musthafa And Ors. on 2 August, 1989
Equivalent citations: AIR1990KER171, AIR 1990 KERALA 171, (1989) 2 KER LT 356
JUDGMENT Balakrishna Menon, J.
1. The plaintiff representing the Ernakulam District Congress Committee (S) has filed this appeal against the dismissal of his suit O.S. 526/1983 by, the Additional Sub Court, Ernakulam. The suit is for declaration of title to the suit property 14.724 cents of land in Sy. No. 707 of Ernakulam village and the building standing thereon, and also for an injunction to restrain the defendants from interfering with the plaintiffs possession and enjoyment of the same. The suit property was purchased by the District Congress Committee of the Indian National Congress in the year 1974 as per Exts. A17 and B2 and the building was used as the office of the Ernakulam District Congress Committee. According to the plaintiff Sri Brahmananda Reddy was the President of the Indian National Congress on 1-1-1978. On that day Mrs. Indira Gandhi, a member of the Working Committee of the Congress convened a meeting of her followers in New Delhi, and announced the formation of a new political organisation named the Indian National Congress (Indira) and she was declared as its president. The 1st defendant was the president of the District Congress Committee on 1-1-1978 and defendants 2 to 5 were its members. The defendants joined the Congress (I) and they are all defectors from the original organisation on the formation of a separate party under the leadership of Mrs. Indira Gandhi. The original organisation continued under the presidentship of Sri Brahmananda Reddi. Later Sri Devaraj Urs was elected as its president, and the organisation was thenceforward known as Congress (U). Still later Sri Sharad Pawar was elected as its president and the orgainsation thereafter came to be known as Congress (S). According to the plaintiff 'S' stands for 'Socialist' to denote the socialistic ideals of the original organisation.
2. According to the plaintiff he was nominated to be in charge of the office at Ernakulam on 2-1-1978. He was, however, prevented by the 1st defendant and his followers from taking possession of the office and the premises. Apprehending breach of peace the District Collector, Ernakulam a District Magistrate on 3-1-1978 issued orders under Section 27 of the Kerala Police Act and took custody of the building on the said date.
3. Sri A.K. Antony and his followers, who were with the Congress (S) joined the Congress (I) in December 1982. The Congress (I) thereafter made an attempt to get possession of the building and its site from the District Collector. The plaintiff at that stage filed O.P/No.7126/1983 before this Court for a direction to the Collector not to handover the property to any person other than the plaintiff. This Court gave an interim direction to the District Magistrate not to handover possession of the building and its site until the dispute between the parties is settled in a properly instituted civil suit. The present suit was thereafter filed on 29-8-1983 for declaration of title and for an injunction restraining the defendants from interfering with the Plaintiffs possession of the suit property. Sri Sharad Pawar, the president of the Congress (S), and his followers joined the Congress (I) on 11-12-1986 and thereafter Sri Sharad Chandra Sinha was nominated as the president of the Congress (S). According to the plaintiff the Congress (S) is the Indian National Congress whose District Committee had acquired the property and the Congress (I) consists of defectors from the original organisation.
4. The suit was resisted by the defendants representing the Congress (I). Defendants 1 and 5 filed a joint written statement and the 6th defendant as president of the District Congress Committee (I) filed a separate written statement. According to the defendants there is no such organisation called the Indian National Congress (S). Sri Brahmananda Reddy was not the president of the Indian National Congress at the material point of time. Mrs. Indira Gandhi was elected as the president of the Indian National Congress on 1-1-1978 and for the purpose of easy identification the Indian National Congress was thereafter known as Congress (I). A small minority of Congress-men under Brahmananda Reddy left the Indian National Congress. It was ignoring their defection that Smt. Indira Gandhi was elected as the President of the Indian National Congress. According to the defendants the organisation led by Mrs. Indira Gandhi was and continues to be the real Indian National Congress. The small group led by Sri Brahmananda Reddy later elected Sri Devaraj Urs as their president and still later Sri Sharad Pawar became its president, Sri Sharad Pawar and his followers had also joined the Indian National Congress and the, Congress (S) is neither the original organisation, nor is it competent to represent the same. The plaintiff or the organisation on whose behalf he has purported to file the suit has no title or possession of the disputed property and the plaintiff is not entitled to any relief in the suit. The property was in the possession of the Congress organisation and it continued to be in its possession on 3-1-1978 when the Collector as District Magistrate took possession of the same in exercise of the powers vested in him under Section 27 of the Kerala Police Act.
5. According to the plaintiff the Congress (S) was recognised as representing the Indian National Congress and the Election Commission had allotted the symbol 'Charka' to the Congress (S). The defendants also rely on the proceedings of the Election Commission and contend that the Election Commission has recognised the Congress (I) as the original Indian National Congress and had de-recognised the Congress (S) as a national party.
6. The suit was decreed ex parte on 26-6-1984. The ex parte decree was set aside as per order dt. 20-12-1986 passed by the Sub Court in I.A. No. 3473/1985. The plaintiff filed C.R.P. No. 273/1987 before this Court challenging the order in I.A. No. 3473/1985 and a learned Judge of this Court by order dt. 24-6-1987 allowed the C.R.P. confirming the ex parte decree passed in the suit. The defendants took the matter in appeal before the Hon'ble Supreme Court and the Supreme Court by its judgment dt. 5-10-1987 in Civil Appeal No. 2614/1987 set aside the judgment in the C.R.P. and restored the order of the Sub Judge in I.A. No. 3473/1985 setting aside the ex parte decree. The Supreme Court in restoring the suit to file also directed the District Collector to continue in possession of the property as Receiver until disposal of the suit subject to orders of the trial Court. The plaintiff thereafter filed I.A. No. 5046/1987 for permission to publish notice of the suit to all persons interested in newspapers. The Court below dismissed the I.A. as the suit as presented was not one in a representative capacity. The plaintiff thereafter filed I.A. 2475/1988 for amendment of the plaint incorporating necessary averments to make it a representative suit under Order I, Rule 8, C.P.C, The amendment was allowed and as per orders of the Court below in I. A. No. 5017/1988 notice of the suit to all persons interested was published in the Mathru-bhoomi daily dt. 19-12-1988. The suit as amended is therefore one under Order I, Rule 8, C.P.C. the plaintiff representing the Congress (S) and the defendants representing the Congress (I).
7. The Court below has dismissed the suit on its finding that the Congress (S) does not represent the orginal organisation and the plaintiff is not entitled to the reliefs prayed for in the suit. It is also found that the D.C.C. (I) has title, and is entitled to possession of the suit property.
8. Both the parties claim to be the Indian National Congress and rely on the proceedings of the Election Commission under Clause 15 of the Election Symbols (Reservation and Allotment) Order, 1968 in support of the claim. In paragraph 5 of the plaint it is stated as follows:
"The plaintiff is the President of Ernakulam District Committee. The dispute between the Congress (S) and Congress (I) on the allotment of election symbol was ended in favour of Congress (S) and the traditional Congress symbol 'Charka' was allotted to the Congress (S). The symbol allotted to Congress (I) was 'hand' which has absolutely no relation with the Indian National Congress or its tradition. Thus the Congress (S) and all its respective units are entitled for all the assets owned by the former Indian National Congress. The Congress (I) was only an organisation formed by certain defectors of the Congress Party."
In the written statement of defendants 1 and 5 is stated :
"The alleged Indian National Congress (U) or (S) is not the real, actual or true organisation of the Congress party. The alleged Indian National Congress (U) and (S) were formed by a few defectors of the Indian National Congress. Since those small groups of defectors also adopted the name Indian National Congress with additions, the real Indian National Congress has adopted for identification Indian National Congress (I)."
It is further stated :
"Election Commission is the authority competent to decide the real political party when defection or split occurs in a political party. Even before the merger of Indian National Congress (S) in Indian National Congress (I) as between the Indian National Congress (I) and Indian national Congress (S) the Election Commission has declared that the real, true and actual Indian National Congress is the Indian National Congress (I) led by Smt. Indira Gandhi." :
The 6th defendant as President of the District Committee of the Congress (I) has also adopted the same contentions in his written statement.
9. The real controversy in the suit therefore is whether it is the Congress (S) or the Congress (I) that constitutes the Indian National Congress, the District Committee of which owns the suit property. :
10. The Indian National Congress is a voluntary association. It is neither a statutory body nor registered society under the Societies' Registration Act. It has framed its own constitution and rules. It is a recognised national party under the Election Symbols (Reservation and Allotment) Order, 1968. In the event of a split the Election Commission is empowered to decide as to which among the splinter groups or rival sections constitutes the recognised political party. Clause 15 of the Symbols Order reads:
"When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups."
The dispute as to whether the Congress (S) or the Congress (I) constitutes the Indian National Congress was the subject of decision by the Election Commission under Clause 15 of the Symbols Order. Ext. B5 dt. 23-7-1981 is the order of the Election Commission deciding the dispute after hearing both parties and after considering the evidence adduced. The Election Commission observed:
"The analysis made in the statement would clearly indicate that the majority of members in the AICC, Lok Sabha, Rajya Sabha, in a number of Legislative Assemblies of States and Legislative Councils of States belonging to the Indian National Congress as on 2nd January, 1978 owed allegiance to the INC(I) led by Smt. Indira Gandhi. Therefore, the test of majority in these organs has been fulfilled only by that group."
The Election Commission accordingly decided the dispute and held :
"(a) the group led by Smt. Indira Gandhi as its President and known by the name Indian National Congress (I) shall be recognised for the purpose of the symbols prder as the Indian National Congress, a recognised national party;
(b) the symbol "Hand" shall continue to be the reserved symbol for the said party unless that party applies for the revival of the froszn symbol "Calf and Cow"; and
(c) the group in the Indian National Congress led by Shri Devraj Urs and known by the name Indian National Congress (U), shall be de-recognised. The said party shall however have the liberty to approach the Commission for recognition with a different name and style and if such application is made, the same shall be considered on its merits under the Symbols Order."
11. The Congress (S) later approached the Election Commission as a national party.
Ext. B4 dt. 8-4-1982 is an interim order passed by the Election Commission, according the Congress (S) a provisional status as a national party. The concluding portion of Ext. B4 reads:
"The Commission has examined the re-
quest and is of the view that until further orders and pending the final decision on their application, the applicant party should be described as Indian Congress (Socialist). As the symbol 'Charkha' was reserved for the applicant party when was known as Indian National Congress (U), the Commission considers that me same symbol namely, "Charkha" be reserved for the party to be known as Indian Congress (Socialist). Accordingly I order that -
(a) the applicant party shall be recognised as a National Party under the name and style of Indian Congress (Socialist); and
(b) the symbol 'Charkha' shall be reserved for the party until further orders."
The Congress (S) was accordingly given a different name as Indian Congress (S) and was provisionally recognised as a national party with, the election symbol 'Charkha' reserved for it. The symbol before the split was 'Calf and Cow'. That symbol had been frozen and as per Ext. B5 order the Congress (I) was given the liberty to apply for revival of the frozen symbol. Congress (I) has not, however, applied for the revival of the frozen symbol apparently for the reason that it was satisfied with the symbol 'hand' allotted to it pending Ext. B5 proceedings.
12. On Sharad Chandra Sinha becoming the president of the Congress (S) after Sharad Pawar and his followers had joined Congress (I), an application was made to the Election Commission to recognise the Congress (S) of Sharad Chandra Sinha as a national party. That application was opposed on the ground that the Indian Congress (Socialist) has ceased to exist. Pending determination of this dispute, the Election Commission passed a provisional order Ext. B3 dt. 17-2-1987 provisionally recognising the group led by Sri Sharad Chandra Sinha as a political party, and allotting the symbol 'Charkha' within a rectangle" to it. The concluding portion of Ext. B3 order reads:
"Accordingly, in exercise of the powers conferred by paragraphs 3, 6, 15, 16 and 18 of the Election Symbols (Reservation and Allotment) Order, 1968, read with Article 324 of the Constitution of India, Section 138 of the Constitution of Jammu and Kashmir (corresponding to Article 324), Rueles 5 and 10 of the Conduct of Elections Rules, 1961 made under the Representation of the People Act, 1951 and Rules 5 and 10 of the Jammu and Kashmir Conduct of Elections Rules, 1965 made under the Jammu and Kashmir Representation of the People Act, 1957, and of all other powers; enabling the Election Commission in this behalf, I hereby direct that, pending the determination of the main dispute whether the Indian Congress (Socialist) has ceased to exist or not.--
(i) the group led by S.hri Sharad Chandra Sinha be called and known as "Indian ' Congress (Socialist Sharad Chandra Sinha)";
(ii) the symbol "Charkha within a rectangle" be reserved for the said party."
13. It is clear from these proceedings of the Election Commission that for the purposes of the Symbols Order the Indian National Congress (I) has been accepted as the Indian National Congress. The group or party led by Sri Devraj Urs had been de-recognised and was later given a provisional recognition as a national party under a different name and a different symbol. Ext. B3 order of the Election Commission also shows that the group led by Sri Sharad Chandra Sinha has obtained only a provisional recognition as a separate party. Congress (I) alone has been recognised as the Indian National Congress that existed prior to the split. The Supreme Court in Sadiq Ali v. Election Commission of India, AIR 1972 SC 187 was concerned with the validity of the order passed by the Election Commission after an earlier split in the Congress Party in 1969. The Election Commission had, in proceedings under Clause 15 of the Symbols Order, decided that for the purpose of allotment of symbol in elections, the political party presided over by Sri Jagjivan Ram was the Indian National Congress and was entitled to the symbol "Two Bullocks with Yoke on" reserved for the said Party. The decision of the Election Commission was based on the majority strength of the Congress Party led by Sri Jagjivan Ram. Considering the validity of the order of the Election Commission the Supreme Court observed at page 197 :
"As Congress is democratic organisation, the test of majority and numerical strength, in our opinion, was a very valuable and relevant test. Whatever might be the position in another system of Government or organisation, numbers have a relevance and importance in a democratic system of Government or political set up and it is neither possible nor permissible to lose sight of them.
Indeed it is the view of the majority which in the final analysis proves decisive in a democratic set up."
It was accordingly held :
"We can consequently discover no error in the approach of the Commission in applying the rule of majority and numerical strength for determining as to which of the two groups, Congress 'J' and Congress 'O' was the Congress party for the purpose of paragraph 15 of Symbols Order."
It is further stated at page 198 :
"All that this Court is concerned with is whether the test of majority or numerical strength which has been taken into account by the Commission is in the circumstances of the case a relevant and germane test. On that point, we have no hesitation in holding that in the context of the facts and circumstances of the case, the test of majority and numerical strength was not only germane and relevant but a very valuable test."
The Supreme Court has also stated that what the Election Commission decides in these proceedings is not the question as to which party represents the original party, but which among the rival groups is the original party. The Supreme Court stated at pate 200;
"The Commission in resolving this dispute does not decide as to which group represents but which is that party. If it were a question of representation, evep a small group according to the Constitution of the organisation, may be entitled to represent the party. Where, however, the question arises as to which of the rival groups is the party, the question assumes a different complexion and the numerical strength of each group becomes an important and relevant factor. It cannot be gainsaid that in deciding which group is the party, the Commission has to decide as to which group substantially constitutes the party."
Ext. B5 order of the Election Commission shows that the decision of the Commission is based on the principle laid down by the Supreme Court in Sadiq Ali's case. Sadiq Ali's case (AIR 1972 SC 187) was followed in a later decision of the Supreme Court in All Party Hill Leaders' Conference, Shillong v. Captain W. A. Sangma, AIR 1977 SC 2155.
14. It is no doubt true the Supreme Court in Sadiq Ali's case has; observed that the Commission in deciding disputes under Clause 15 of the Symbols Order decides only the question as to whether any of the rival sections or groups of a recognised political party, each claiming to be that party, is that party and that the decision pertains only to elections to the Parliament and State Legislatures and does not relate to disputes about property, the proper forum for the adjudication of which is the civil court. In the present case, however, the parties have joined issue on the question as to which among the rival groups constitutes the original Indian National congress, the District Committee of which owned the property. The plaintiff has rested his claim for relief only on the basis that his group constitutes the original organisation. The plaintiff has attempted to adduce evidence and prove that a large majority of the members of the Congress Party supported his group after 1-1-1978. It is the common contention of both parties that on 1-1-1978 the members of the original organisation formed into two groups, each electing their own leaders and each claiming to the exclusion of the other that his group constitutes the original organisation. Each of them contended that the other is a defected group and expelled each other on the basis that the expelling group constitutes the original organisation. Admittedly both groups fought out the proceedings before the Election Commission on the basis that the original organisation, namely, the Indian National Congress still exists. Each group had put forward their rival claims to be recognised as the original Congress in preference to the other, and that was the dispute that was decided by the Election Commission after allowing both parties opportunity to adduce evidence. The dispute now fought out before Court is not in any way different from the dispute that was fought out before the Election Commission. It is the common case of both parties that the property in dispute originally belonged to the Indian National. Congress. It is also their further case that title to the property would vest in the group or party constituting the original organisation. In fact both parties relied on the decision of the Election Commission in support of their respective contentions. In the nature of the contentions raised by the parties, the only point to be decided is which of the two groups constitutes the original organisation, and that was precisely the question decided by the Election Commission. Merely for the reason that the decision of the Election Commission was for the purpose of Clause 15 of the Symbols Order, it cannot be said that the same cannot be relied on by the civil Court in considering the question as to which among the rival groups constitutes the original organisation. In the absence of any other material in support of the plaintiffs claim of title to the property in dispute, we are clearly of the view that the property should be held to belong to the party who had been recognised as constituting the original organisation.
15. For the aforesaid reasons we hold that the plaintiff has failed to establish title to and right to possession of the suit property and that the District Congress Committee (I), Ernakulam has title to the suit property and is also entitled to possession of the same. We therefore confirm the decree passed by the Court below and dismiss the appeal.
16. The Court below had directed the Receiver to handover possession of the plaint schedule property to the Addl. 7th defendant within two months from the date of its judgment. The District Collector continues, as Receiver as per interim orders passed by this appeal. Now that the appeal is dismissed, the Receiver will handover possession of the suit property to the 7th defendant who represents the District Congress Committee (I), Ernakulam The parties are directed to bear their respective costs in this appeal.