IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 7238 of 2009 Between: Amarachinta Prabhakar, S/o. late A.Ramalingam, R/o. Plot No.166, shabari Colony, Makthal, Mahboobnagar District. ..... PETITIONER AND 1 The Election Commission of India, Nirvachan Bhavan, New Delhi, rep by its chief Election Commissioner, 2 the State of Election Commission, Secretariat, A.P. Hyderabad, Rep by its Chief Electoral Officer, 3 The District Returning Officer/The district Collector, Mahboobnagar, Mahboobnagar District. 4 Praja Rajyam Party, Jubilee Hills, Hyderabad, Rep by its General Secretary. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, Order or Direction, more particularly one in the nature of Writ of MANDAMUS to declare the action of the Respondent No.3, in allotting the petitioner with the election symbol of camera, when he gave 1st preference for Free Election Symbol of "Railway Engine" in contrary to Para 12(2) of The Election Symbols(Reservation and allotment) Order, 1968 and as per the Apex court order in Supreme court, in Writ Petition (Civil) No.532 of 2008 in aplication for direction in W.P.(C) NO.132 of 2009 & SLP (C).No.7379-7380/2009 arbitrary & Contrary to the provisions of the Election Symbols (Reservation and allotment) Order, 1968 & orders of the Supreme court in W.P. (C) No.132 of 2009 & SLP (C).No.7379-7380/2009 dated 26.03.2009, in the interest of justice and pass Counsel for the Petitioner:MR.CH.VENKAT REDDY Counsel for the Respondent No.: S.NIRANJAN REDDY(SC FOR UCIL) The Court made the following : THE HONOURABLE SRI JUSTICE V.ESWARAIAH AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.7238 OF 2009 O R D E R The petitioner claims to be a member of Praja Rajyam Party, an unrecognized registered political party in the State of Andhra Pradesh. He filed his nomination seeking to contest in the ensuing Legislative Assembly Elections from 77-Makthal Legislative Assembly Constituency, Mahaboobnagar District. However, as he did not submit declaration in Form-B indicating his candidature on behalf of the said party, his nomination was treated as that of an independent candidate. According to the petitioner, he had given his preference for allotment of an election symbol out of the free symbols, indicating ‘Railway Engine’ as his first, ‘camera’ as his second and ‘fan’ as his third preference. It is his case that no other candidate had opted for the symbol ‘Railway Engine’ in Makthal Legislative Assembly Constituency. His grievance is that overlooking the said fact and also the dictum of para-12(2) of the Election Symbols (Reservation and Allotment) Order, 1968 (for brevity, ‘the Order of 1968’), the Returning Officer had allotted him the second symbol of his choice viz., Camera. The petitioner placed reliance on the Order of 1968 and submitted that under para-5 thereof, symbols are classified as either reserved or free. Reserved symbols being within the domain of recognized parties, free symbols are to be allotted to candidates other than those sponsored by recognized parties in accordance with the procedure prescribed in para-12 of the Order of 1968. The petitioner, being aware of the Order passed by the Supreme Court on 27.03.2009 in W.P.(C) 132 of 2009 and batch, with regard to allotment of common symbols to the three parties before it, alleged that the Returning Officer has acted contrary to the said Order. It is argued on behalf of the petitioner that a symbol, not classified as a reserved symbol, must be treated as a free symbol and its allotment, necessarily has to be governed by the norms of preference stipulated in para-12 of the Order of 1968. Once it is established on facts that no other candidate in Makthal Legislative Assembly Constituency opted for the election symbol ‘Railway Engine’, it is contended on behalf of the petitioner that the Returning Officer is bound to allot the said symbol to the petitioner. The learned counsel appearing for the petitioner pointed out that the Supreme Court, in its order dated 27.03.2009, only indicated that the Election Commission may give common symbols to the three parties before it and therefore, there is no question of reserving the election symbol ‘Railway Engine’ for candidates of the Praja Rajyam Political Party alone. Per contra, the learned counsel appearing for Respondents 1 to 3 submitted that the import of the order of the Supreme Court was that the three political parties before the Court were to be given the common symbols preferred by them. He pointed out that the Supreme Court indicated in no uncertain terms that the same was only an interim arrangement confined to only the three parties before it. As the Election Commission abided by the said order and allotted the election symbol ‘Railway Engine’ as a common symbol to the Praja Rajyam Political Party, the learned counsel contended that it ceased to be a free symbol for all practical purposes and was not available for allotment as per the procedure prescribed under para-12 of the Order of 1968. The learned counsel further contended that the writ petition itself was not maintainable in the light of the bar under Article 329(b) of the Constitution to exercise of jurisdiction by this Court under Article 226 in matters pertaining to the Legislative Assembly Elections. He relied upon the judgment of the Supreme Court in MANDA JAGANATH V/s. K.S.RATHNAM AND OTHERS[1] to support this contention. We find substantial force in the argument advanced by the learned counsel for the respondents on facts. The order-dated 27.03.2009 passed by the Supreme Court is clear as to its intendment. As an interim arrangement, the parties before the Supreme Court, including the Praja Rajyam Political Party, were given common symbols as per their preference. Being bound by the said order, admittedly, the Election Authorities have allotted the election symbol ‘Railway Engine’ to the Praja Rajyam Political Party. The same has the effect of removing the said symbol from the list of free symbols still available with the Election Authorities. In such a situation, it would not be open to an independent candidate in a particular constituency to seek allotment of the said symbol on the ground that no candidate from the Praja Rajyam Political Party was contesting from that constituency and therefore, the election symbol ‘Railway Engine’ continued to be a free symbol for that constituency. The learned counsel appearing for the Election Authorities also raised a substantial obstacle for the petitioner in so far as the maintainability of this case is concerned. In MANDA JAGANATH’s case (1 supra), the Supreme Court was seized of a situation where a candidate belonging to a particular party filed his nomination, but was treated as an independent candidate owing to the defects in the Form-B declaration. The Returning Officer therefore denied him the symbol of that party. Aggrieved thereby, the candidate approached the High Court. The High Court held that the defect in the Form-B declaration was so technical and trivial that it did not justify the decision of the Returning Officer and directed him to allot the symbol of the political party to which the candidate was affiliated. The order of the High Court was called in question before the Supreme Court. The Supreme Court held that whether the Returning Officer was justified in rejecting the Form-B declaration was not a matter for the High Court to decide in exercise of its writ jurisdiction. The Court opined that such an issue should be agitated by the aggrieved party in an election petition only. The Court further observed that the Returning Officer’s erroneous action which is amenable to correction in writ jurisdiction should have the effect of interfering in the free flow of the scheduled election or hinder its progress. Stating so, the Court went on to hold that by not allotting a symbol, the Returning Officer had neither stalled nor stopped the progress of the election. The grievance of such a candidate with regard to non-allotment of a particular symbol would have to be agitated in an election petition, if need be. In the light of the law laid down by the Supreme Court in MANDA JAGANATH’s case (1 supra), we have no hesitation in holding that the petitioner is not entitled to canvass the present grievance by way of a writ petition under Article 226 of the Constitution. The writ petition is therefore found to be devoid of merit, both on facts and in law, and is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. -------------------------- V.ESWARAIAH, J. ---------------------------- SANJAY KUMAR, J. 6th APRIL, 2009. PGS [1] (2004) 7 SCC 492