IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO And THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO.1994 of 2009 Between: The Prajarajyam Party, a registered political party, having its Regd. Office at Plot No.952, Road No.46, Jublee Hills, Hyderabad, Andhra Pradesh, represented by its General Secretary, Allu Aravind. ...PETITIONER AND 1 The Election Commission of India, represented by its Secretary, New Delhi. 2 The State Election Commission of Andhra Pradesh, represented by its Secretary at Hyderabad. ...RESPONDENTS 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 issue a Writ of Mandamus or any other appropriate writ declaring that the action of the 1st respondent contained in proceedings No.56/09, PPS-II, dated 20-01-2009, in not allotting a common free symbol to the candidates of the petitioner party with regard to the ensuing Assembly/Parliamentary elections in March/April, 2009, as arbitrary, discriminatory and irrational and consequently set aside the same and direct the 1st respondent to allot common free symbol (Sl.No.51 in part-IV, Rail Engine) to the candidates of the petitioner-party in the ensuing Assembly/Parliamentary elections likely to be held in March/April, 2009 and grant such other relief as it deems fit in the facts and circumstances of the case. Counsel for the Petitioner: MR.A.RAJENDRA REDDY Counsel for the Respondents: SMT.C.JAYASREE SARATHY The Court made the following: THE HON'BLE MR JUSTICE B.PRAKASH RAO And THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO.1994 of 2009 ORDER: (Per the Hon’ble Mr Justice B.Prakash Rao) Heard Sri Vedula Venkata Ramana, learned Senior Counsel appearing for the petitioner and Sri C.P.Sarathy, learned Senior Counsel representing Smt.C.Jayasree Sarathy, learned Standing Counsel appearing for respondents 1 and 2, who took notice on their behalf. At their request and with their consent, the Writ Petition itself is taken up for disposal. The petitioner herein, a political party registered by the respondents herein, but yet to be recognized as provided under the process of law, files this Writ Petition, inter alia, seeking a Writ of Mandamus assailing the correctness of the impugned order dated 20.01.2009 in proceedings No.56/09, PPS-II, passed by the first respondent herein rejecting the request and not allotting a common free symbol to the candidates of the petitioner-political party with regard to the ensuing Assembly/Parliamentary Elections in March/April 2009, as arbitrary, discriminatory and irrational and consequently to set aside the same and direct the first respondent to allot the common free symbol (as shown at Sl.No.51 in Part-IV, Rail Engine) to the candidates set up by the petitioner-party in the ensuing Assembly/Parliamentary elections likely to be held in March/April, 2009. Briefly stated, the facts of the case, which are not in dispute, are that the petitioner is a just born political party, which was registered in the month of August 2008. The case of the petitioner is that it has decided to contest the Elections for all 292 Assembly Constituencies and 42 Parliamentary Constituencies. It claims that the membership of the party is to the tune of about 50 lakhs and the said figure is likely to go further by the time of Elections. The petitioner claimed that several sitting M.L.As and M.Ps from other parties have resigned and joined with it. The petitioner submitted a representation on 01.12.2008 to the first respondent herein for allotment of a common symbol for the purpose of Elections to Lok Sabha and Legislative Assembly of Andhra Pradesh for apt identification of its candidates uniformly. However, the said request has been rejected by the first respondent under the impugned order dated 20.01.2009 on the grounds that only political parties which are recognized as national or state parties are entitled for allotment of exclusive/common symbol; like the petitioner, 250 registered but unrecognized parties exist as on today, but none of them have been allotted any common symbol. It is only after fulfilling conditions for recognition under para 6A or 6B of The Election Symbols (Reservation and Allotment) Order, 1968, such allotment is permissible. Case of Telangana Rashtra Samithi being allotted a common symbol, following the orders of the Court, cannot be precedent. In respect of Telugu Desam party, the Commission did not allot common symbol, but only directed for preference. So candidates of the petitioner party have to choose from the free symbols and they will be given preference over independent candidates. Hence the writ petition. Sri Vedula Venkataramana, learned Counsel for the petitioner submitted that the case of the petitioner has not been properly considered by the Commission, especially in view of the fact that it intends to contest all the constituencies in the entire State, both for Assembly and Loksabha and thus there cannot be different symbols for all such individual candidates which makes it impracticable for the voters to identify the candidates of the petitioner party. The main submission made on behalf of the petitioner is that under similar circumstances, in the decision reported in Telengana Rashtra Samithi, Hyderabad v. Election Commission of India[1], while considering a similar situation, this Court laid down certain principles for consideration of such a situation, especially in case of a new born party. Further, the powers of the Commission have also been laid down by the Apex Court in A.C.Bose v. Sivan Pillai and others[2]. Hence the petitioner cannot be denied allotment of a common symbol to all its candidates. Sri C.P.Sarathy, learned Senior Counsel representing respondents 1 and 2, opposed the petitioner’s claims for allotment of a common symbol for the Elections and submitted that the petitioner has to face Elections and satisfy the requirements under the law as contemplated. Therefore, it cannot prefer any such particular common symbol. Further, the decision relied on by the petitioner and the consequential decision of the Commission cannot be a precedent as stated therein, where a common symbol is allotted. Therefore, no right exists to seek any such relief. Having considered the respective submissions on either side in detail and at length and on perusal of the material available on record and the impugned order, the sole question which arises for consideration is as to whether on the facts and circumstances, the order of rejection of petitioner’s request for common symbol is justified ? From the above narration, there is no dispute about the fact that the petitioner has come into being recently and it has been registered by the first respondent- commission. Since the elections are now due for both State Assembly and Loksabha, it had sought for a common symbol by filing a representation. According to the petitioner, apart from its large membership, and many public representatives including members of legislative assembly and parliament walking into its fold, it needs a common symbol. It rested its claim on two similar situations, one in respect of a sub-regional party, Telangana Rashtra Samithi, to whom a common symbol was allotted, in pursuance of orders for reconsideration by a Division Bench of this Court in Telengana Rashtra Samithi, Hyderabad v. Election Commission of India (supra 1) and another regional party Telugu Desam, to whom as per the Commission, though, no such allotment was made, only preference was directed to be given over independent candidates. Under the Election Symbols (Reservation and Allotment) Order, 1968, which has been made in exercise of powers under Article 324 of the Constitution read with the provisions of the Representation of People Act, 1951 and Rules made thereunder, the relevant rule which has been pressed into service is Rule 12 (3), which reads as follows: 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 a political party, which is at present an unrecognized political party but which was recognized State Party in that State or Union territory not earlier than six years from the date of notification of such election, the Returning Officer shall allot that free symbol to the candidate set up by such unrecognized political party and to no one else; Provided that where of two or more such candidates set up by such different unrecognised 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 but all are independent candidates and one of the independent candidates is, or was immediately before such election is 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, the returning officer shall decide by lot to which of those independent candidates that free symbol shall be allotted and allot that free symbol to the candidate on whom the lot falls and to no one else.] Considering the above rules and in a similar situation, in respect of two parties, one a regional and another a splinter-regional, in the decision Telengana Rashtra Samithi, Hyderabad v. Election Commission of India (1 supra), for a common symbol for an unrecognized political party, this Court held in para-16 as under: A perusal of the Symbols Order, 1968 makes it clear that there is no provision in the said Order for the allotment of a reserved symbol as prayed for by the petitioner-political party. But the Symbols Order, 1968 does not take into consideration all situations including the one that had cropped up in the present case where a political party has come up in between two elections and it has secured enough following. Further holding in the following manner, it gave direction as under. The first question that is required to be taken into consideration by the Election Commission of India is whether the other unrecognized political parties, whatever may be their number, are similarly situated to that of the petitioner political party and their request has been turned down by it. The Election Commission cannot treat all the unrecognized political parties on the same footing and such treatment may amount to treating the unequals as equals. Such a view would be violative of Article 14 of the Constitution of India. It is not a case where the Election Commission has no power to consider the request of the petitioner but the question is that of exercise of its power. It is for the Election Commission to decide as to whether facts and circumstances require its interference for the purposes of giving appropriate directions in the matter as prayed for by the petitioner. It is needless to observe that the paramount consideration in consideration of all such cases is to ensure free and fair election where every candidate including the candidates set up by political parties shall have equal opportunities to effectively participate in the electoral process enabling them to seek mandate of their masters. In the light of the law declared by the Apex Court that the power of the Election Commission under Article 324 of the Constitution of India operates in areas left unoccupied by legislation and the words ‘superintendence’, ‘direction’ and ‘control’ are the broadest terms, which include the power to make the orders in specified cases, the Election Commission, in our considered opinion, is required to re-examine the request of the petitioner-political party for the allotment of a separate symbol to its candidates in the ensuing elections till the petitioner is given the status of a recognized political party in accordance with the provisions of the Symbol Orders, 1968 and under Section 29-A of the Representation of the People Act, 1951 and Rules 5 and 10 of the Conduct of Elections Rules, 1961. The Election Commission is required to reconsider whether the case on hand is a fit case for issuing appropriate directions or instructions in exercise of its power under clause 18 of the Symbols Order, 1968 as well as under Article 324 of the Constitution of India. The respondents, following the directions allotted a common symbol and no challenge is made by any appeal and the said decision has become final. Irrespective of the fact, if it can be a precedent or not, undisputedly, the principles as laid down became final are binding. Nor there is any dispute as to allotment of common symbol to a regional party and another party limited to part of the region. Therefore, even otherwise, it cannot be said that the principles laid down in the binding decision are not a precedent and the petitioner can be summarily denied his right to request to consider his case on those lines. It is relevant to note that following the aforesaid orders of this Court alone, and on the same lines, in the matter of Telangana Rastra Samithi, the respondent no.1/ commission had came to a conclusion, for allotment of common symbol even at this stage, since the said party was a main line registered but not recognized, deserving such single symbol allotment. Hence, on the same lines and for the self same reason, similar approach needs to be considered. Primarily, on a reading of the impugned order, no analytical consideration was made and no reasons or any finding were given on any of the criteria laid down in the aforesaid decision of the Court and also no specific reference is made to the factual basis made out by the petitioners. Therefore, there is need for having a fresh look independently on the lines indicated by this Court in the decision above referred to and in tune with the principles laid down by the Apex Court in A.C. Bose case (cited 2 supra). In the above circumstances and for the reasons mentioned above, the Writ Petition is, accordingly, disposed of setting aside the impugned order and with a direction to the first respondent to reconsider the matter afresh within a period of three {3} weeks from the date of receipt of a copy of this order after giving due and sufficient opportunity. No costs. ________________ (B.PRAKASH RAO, J) ___________________ (G.BHAVANI PRASAD, J) 6th February 2009 RRB THE HON'BLE MR JUSTICE B.PRAKASH RAO And THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO.1994 of 2009 Date: 6.2.2009 [1] 2004 (1) ALT 382 (D.B.) [2] AIR 1984 SC 921