SBCWP No.4493/09. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4493/2009. Jago Party Vs. Election Commission of India & Anr. Date of Order:- April 20, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Poonam Chand Bhandari for the petitioner. Shri B.C. Chirania and Shri Ravi Chirania for the respondents. Shri Zakir Hussain, Additional Government Counsel. ****** BY THE COURT:- This writ petition has been filed by the petitioner Jago Party with the prayer that respondent Election Commission of India and Chief Election Officer of Rajasthan be directed to provide free symbol of Balloon to the candidates set up by petitioner, which is a registered unrecognised political party, in terms of para 12 of the Election Symbols (Reservation & Allotment) order 1968. 2) Contention of Shri Poonam Chand Bhandari, the learned counsel for the petitioner is that petitioner even during the assembly elections was SBCWP No.4493/09. 2 awarded common free symbol of Balloon. There is therefore no impediment in law in not providing such symbol to the petitioner in the parliament elections specially when it is fielding 21 candidates out of 25 parliamentary constituencies of the State. Learned counsel referred to the order passed by the Supreme Court in Writ Petition (Civil) No.532/2008 (Desiya Murpokku Dravida Kazhagam & Anr. Vs. Election Commission of India) decided on 27/3/2009 and submitted that in similar circumstances, Supreme Court directed the Election Commission of India to award common symbol to all candidates of registered unrecognised political party in the State of Andhra Pradesh namely; Praja Rajyam Party and Lok Satta Party and in the State of Tamilnadu namely; DMDK Party. Learned counsel also cited para 12(3)(a) of the Order of 1968 and submitted that even as per the aforesaid clause, the candidates set up by the petitioner Jago Party, which is a registered unrecognised political party, are entitled to be allotted common symbol. 3) Shri B.C. Chirania, learned counsel for the respondents opposed the writ petition and has filed counter affidavit on behalf of the respondents. He submitted that the Supreme Court in the subsequent order passed on 9/4/2009 has declined to grant any SBCWP No.4493/09. 3 interim-relief in the nature of which was granted earlier in the above referred to order passed on 27/3/2009 and directed the petitioner to appear before the Returning Officer. It is submitted that case of the petitioner cannot be considered for giving a common symbol because it is not covered by any of the clauses of para 12. Although, learned counsel submitted, Returning Officer in the case of a given Parliamentary Constituency would consider case of the petitioner in terms of clause 12(3)(a), wherever such a question arises upon choice given in favour of a particular symbol by the candidates set up by the petitioner registered unrecognised political party, it is not in conflict with the choice exercised by candidates of another registered unrecognised political party and only independent candidates are claiming such symbol. In that event, he might consider awarding such symbol to the candidates of the petitoiner. 4) Having regard to the facts of the case, I find that Election Commission of India itself has taken a reasonable stand in the present matter by agreeing to consider case of the petitioner in terms of Clause 12(3)(a), which is provides as under:- SBCWP No.4493/09. 4 “12. CHOICE OF SYMBOLS BY OTHER CANDIDATES AND ALLOTMENT THEREOF (1)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) where the same free symbol has been chosen by several candidates at such election, then- (a) if, of those several candidates, only one is a candidate set up by an unrecognized political party and all the rest are independent candidates, the returning officer shall allot that free symbol to the candidate set up by the unrecognized political party, and to no one else, and if, of those several candidates, two or more are set up by different unrecognized political parties and the rest are independent candidates, the returning officer shall decide by lot to which of the two or more candidates set up by the different unrecognized political parties that free symbol shall be allotted, and allot that free symbol to the candidate 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 SBCWP No.4493/09. 5 when he was chosen as such member), the returning officer shall allot that free symbol to that candidate, and to no one else.” That being so, the writ petition is disposed of taking note of the aforesaid statement made by the learned counsel appearing for Election Commission of India. (MOHAMMAD RAFIQ), J. anil