Case: All Party Hill Leaders' Conference, Shillong Vs. Captain M.A. Sangma &amp; Ors

16, 1976, was only a step in that direction and could not be held as final until it was ratified by the general membership. The fact that no membership registers were produced before the Commission or that there is controversy with regard to the existence of regular members or their enrollment would not justify the Conference to be indifferent to the consensus of the members as a whole whom they had always consulted in other momentous issues and but for whose active aid, support and participation they could not have achieved the statehood for Meghalaya. The decision of the Commission, therefore, is completely erroneous.There can be no flower without its sap. There cannot be leaders without people. There cannot be a party without members. Action of leaders ignoring the generality of membership is ineffective. Such action cannot be equated it the consensus of the membership which alone supplies the base for its sustenance. 32. There is another aspect of the matter. The controversy arises not during an election after it has been notified under rule 3. The dispute relates to the consideration whether a recognised State party has ceased to be recognised, under the Symbols Order. The Commission has undertaken the enquiry in the context of paragraph 15 of the Symbols Order. We have already indicated that the dispute does not come within the scope of paragraph 15. Even so, the Commission would have the jurisdiction to adjudicate the dispute with regard to cancelling recognition of a recognised political party in terms of the directions under the Symbols Order. Under paragraph 7, sub-para (2) of the Symbols Order, notwithstanding anything contained in sub- paragraph (1) with which we are not concerned, every political party which immediately before the commencement of this Order is in a State a recognised political party shall on such commencement, be a State party in that State and shall continue to be so until it ceases to be a State party in that State on the result of any general election held after such commencement. Under paragraph 6, sub-para (2) of the Symbols Order a political party shall be treated as a recognised political party in a State if and only if either the conditions specified in clause (A) are, or the condition specified in clause (B) is, fulfilled by that party and not otherwise, that is to say :"(A) that such party- (a) has been engaged in political activity for a continuous period of five years; and(b) has, at the general election in that State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning, returned either (i) at least one member to the House of the People for every twenty-five members of that House or any fraction of that number elected from that State; or (ii) at least one member to the Legislative Assembly of that State for every thirty members of that Assembly or any fraction of that number; (B) that the total number of valid votes polled by all the contesting candidates set up by such party at the general elect ion in the State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning (excluding the valid votes of each such contesting candidate in a constituency as has not been elected and has not polled at least one-twelfth of the total number of valid votes polled by all the contesting candidates in that constituency), is not less than four per cent of the total number of valid votes polled by all the contesting candidates at each general election in the State (including the valid vote s of those contesting candidates who have forfeited their deposits)" 33. It is not disputed that the APHLC With 40 members still claiming to continue its reserved symbol answers the test laid down in the Commissions directions for being recognised as a State political party under paragraph 6 of the Symbols Order. They bad, on the date of entertainment of the dispute by the Commission, still the requisite membership fulfilling the test for recognition as a State political party. The Commission was, therefore, required to follow the provisions of the directions which it has laid down in the Symbols Order when the question of derecognition of a party was raised before it. It is not a dispute between two faction s of the same party, each claiming to be the party so that the Commission has to allow the symbol to one of them. The claim of the respondents before the Commission was that the APHLC had ceased to function as a recognised political party and the State and Captain Sangmas group having merged With the INC requested the Commission to scrap the APHLC out of existence with its reserved symbol so that the APHLC would be effaced from the political arena. The Commission was entirely wrong in its decision in view of its own directions embodied in the Symbols Order. The Commission could not be reasonably satisfied on the materials before it that under paragraph 6 read with paragraph 7 of the Symbols Order the APHLC bad ceased to be recognised political party in the State. Even by application of the directions which it has set out in the Symbols Order the Commissions decision is absolutely untenable.Even after a major chunk of the APHLC led by Captain Sangma had joined the INC., if those who still continued under the banner of the APHLC flag and symbol claimed to continue as APHLC and the directions in the Symbols Order did not authorise derecognition of the APHLC as a body represented by the remainder , as we have found, no case is made out for any interference by the Commission with regard to the reserved symbol. Thus the APHLC, as a recognised state political party in Meghalaya, stays and is entitled to continue with their reserved symbol "Flower". 34.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are unable to accept this submission. The, question is whether in deciding the particular dispute between the parties in a matter of the kind envisaged in the particular controversy, - the Commission is exercising a judicial function and it has a duty to act judicially. Having regard to the character of the Commission in dealing with the particular matter and the nature of the enquiry envisaged and the procedure which is reasonably required to be followed, we hold that its primary function in respect of this subject matter is judicial. It is not necessary that this should be the only function of the Election Commission in order to answer the character of a tribunal under Article 136. Even in the Associated Cement Companies case (supra) this Court had to deal with the exercise of power by. the State Government under rule 6(5) and (6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952 and it held that the State Government in acting under those rules was a tribunal within the ambit of Article 136(1). It goes without saying that the primary function of the State Government is not exercise of judicial power. We have to determine this question keeping in view the exercise of power with reference to the particular subject-matter although in some other matters the exercise of function may be of a different kind.Mr. Rao further contends that the decision of the Commission in such a case is only a tentative decision and, therefore, the Commission does not answer the legal concept of a tribunal. We are unable to hold that the decision which the Commission gives after hearing the parties in a controversy in respect of the Claim of a party to continue as a recognised party in the- State continuing the reserved symbol already allotted to it is only a tentative decision. The decision that the tribunal gives is a definitive decision and is binding on both the contending parties so far as the claim to the reserved symbol is concerned. The decision with regard to the reserved symbol or for the matter of that any symbol for the purpose of election is within the special jurisdiction of the Election Commission and it is not permissible for the ordinary hierarchy of courts to entertain such a dispute. The Corn-mission does not decide any rights to property belonging to a political party or rival groups of a political party. That may be a matter for the ordinary civil courts with which we are not concerned in this appealThus the position that emerges from the above discussion is that the Commission is created under the Constitution and is invested under the law with not only administrative powers but also with certain judicial power of the State, however fractional it may be. The Commission exclusively resolves disputes, inter alia, between rival parties with regard to claims for being a recognised political party for the purpose of the electoral symbolWe are, therefore, clearly of opinion that the Commission fulfils the essential tests of a tribunal and falls squarely within the ambit of Article 136(1) of the Constitution. The preliminary objection is, therefore, overruled.Now on the meritsWe are told that the numerical strength of the delegates to such a Conference is 121. It must, however, be borne in mind that they are " delegates", that is to say, delegates of some body or persons who would in the usual course, elect or authorise the delegates as their representatives to represent the larger body or assemblage in the Conference. There is clear evidence of the democratic feature in this very notice which showed the pattern of working of the APHLC"Any issue on which decision may normally be taken by the Conference must relate to live matters of a living organ and not to its death wish. Without the nexus with the generality of membership decisions will derive no force or vigour and no party or conference can hope to succeed in their plans, efforts or struggle unless backed by the same. There is no evidence authorising the Conference to dissolve itself by merger or otherwise, and so it is not possible to apply the rule of majority only in the Conference for such a decision affecting the entire body as an entity in the absence of a clear man date from the general membership. Assuming that the Conference on November 16, 1976, decided by a majority to dissolve the APHLC, it would have been in accord with democratic principles to place that decision before the general membership of the party for ratification prior to implementing the mere majority decision of the Conference without regard to the wishes of the members as a whole. The President of the APHLC and those who were in favour of dissolution fell into this error and they cannot blame the minority of 40 members who openly disassociated with the hasty move and only wanted time for further discussion by taking "the ran k and file" into confidence. It is very difficult to appreciate why this reasonable request from a responsible section of the Conference was completely unheeded and the President thought it proper to agree to take upon himself the responsibility to announce the dissolution and hastily merge with the INC. The matter ought to have struck the President as a grave issue resulting, as it had done, in resignation of four members of the Meghalaya Cabinet on this very issue.Again in this co text it will be appropriate to refer to an admitted document being the resolution passed by the 20th Session of the All Party Hills Leaders Conference held at Tura on the 14th and 15th October, 1968, when the party was a unified bodyThe above resolution adopted in 1968 would clearly show that the APHLC has been always working on democratic lines mindful of the public opinion in the entire hill areas and whenever momentous decisions had to be taken they thought it absolutely mandatory to consult the wishes of t he people before taking a decision. This is, as it should be, for democracy cannot thrive as democracy by being an oligarchy masquerading for democracy. There could not have been a more momentous decision than the dissolution of a ruling p arty in the State.It was crystal clear that the house was emotionally divided on the issue of merger with the INC and that the history of the move in the direction of the merger brought forth discordant notes and opposite trends. The portents were sufficiently indicative of almost unbridgeable fissures affecting the harmony in the party. Leaders who had harmoniously chosen peaceful paths on various issues in the past could not have been expected to tear asunder the homogeneity which successfully built up the party. It appears, the finale of the proposed assimilation did not filter from within but was, on the Presidents frank disclosure before the Central Committee, "wanted" from outside, a position to which several leaders immediately reactedThe Commission fell into an error in holding that the Conference of the APHLC was the general body even to take a decision about its dissolution by a majority vote. The matter would have been absolutely different if in the general body of all members from different areas or their representatives for the purpose, assembled to take a decision about the dissolution of the party had reached a decision by majority. This has not happened in this case. At best the decision of the Conference on November 16, 1976, was only a step in that direction and could not be held as final until it was ratified by the general membership. The fact that no membership registers were produced before the Commission or that there is controversy with regard to the existence of regular members or their enrollment would not justify the Conference to be indifferent to the consensus of the members as a whole whom they had always consulted in other momentous issues and but for whose active aid, support and participation they could not have achieved the statehood for Meghalaya. The decision of the Commission, therefore, is completely erroneous.There can be no flower without its sap. There cannot be leaders without people. There cannot be a party without members. Action of leaders ignoring the generality of membership is ineffective. Such action cannot be equated it the consensus of the membership which alone supplies the base for its sustenanceIt is not disputed that the APHLC With 40 members still claiming to continue its reserved symbol answers the test laid down in the Commissions directions for being recognised as a State political party under paragraph 6 of the Symbols Order. They bad, on the date of entertainment of the dispute by the Commission, still the requisite membership fulfilling the test for recognition as a State political party. The Commission was, therefore, required to follow the provisions of the directions which it has laid down in the Symbols Order when the question of derecognition of a party was raised before it. It is not a dispute between two faction s of the same party, each claiming to be the party so that the Commission has to allow the symbol to one of them. The claim of the respondents before the Commission was that the APHLC had ceased to function as a recognised political partyn the State andCaptain Sangmas group having merged With the INC requested the Commission to scrap the APHLC out of existence with its reserved symbol so that the APHLC would be effaced from the political arena. The Commission was entirely wrong in its decision in view of its own directions embodied in the Symbols Order. The Commission could not be reasonably satisfied on the materials before it that under paragraph 6 read with paragraph 7 of the Symbols Order the APHLC bad ceased to be recognised political party in the State. Even by application of the directions which it has set out in the Symbols Order the Commissions decision is absolutely untenable.Even after a major chunk of the APHLC led by Captain Sangma had joined the INC., if those who still continued under the banner of the APHLC flag and symbol claimed to continue as APHLC and the directions in the Symbols Order did not authorise derecognition of the APHLC as a body represented by the remainder , as we have found, no case is made out for any interference by the Commission with regard to the reserved symbol. Thus the APHLC, as a recognised state political party in Meghalaya, stays and is entitled to continue with their reserved symbol "Flower".