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| DB upholds order to issue ‘plough’ symbol to NC in Ladakh | | | Early Times Report
Jammu, Aug 17: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Chief Justice N Kotishwar Singh and Justice MA Chowdhary dismissed the appeal filed by UT of Ladakh challenging the order of Single Judge whereby Single Judge directed to issue issue ‘plough’ symbol to NC in Ladakh.
The present Letters Patent Appeal has been filed against the interim Order dated 9th of August, 2023 passed by the learned Single Judge in the Writ Petition (C) No. 1933/2023 filed by the Respondent No.1 herein-Jammu & Kashmir National Conference/ Writ Petitioner, which is a recognized Political Party in the Union Territory of Jammu & Kashmir. The aforesaid Writ Petition was filed by the Petitioner on being aggrieved by the Order dated 26th of July, 2023 passed by the Election Department of the Administration of Union Territory of Ladakh, wherein no provision was made for allocation of the reserved symbol for the Petitioner-Party, when it sought to contest the upcoming elections in the Ladakh Autonomous Hill Development Council, Kargil, which have been announced on 5th of August, 2023 and the candidates are required to submit nomination forms starting from 16th of August, 2023, but before 23rd of August, 2023. DB observed that the Writ Court, after hearing the parties, passed the interim Order dated 9th of August, 2023, directing the Petitioner-political Party to approach the office of Respondents 1 to 3 and 5/ Appellants herein for notifying the reserved symbol (“Plough”) already allotted to it and the Respondents 1 to 3 & 5/ the Appellants herein have been, in turn, directed to notify the symbol allotted to the Petitioner-Party in terms of Paragraphs 10 and 10-A of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the “Election Symbols Order of 1968”) and allow the candidates set up by the Petitioner-Party to contest on the reserved election symbol of “Plough” already allotted to the petitioner Party being a recognised State Party in the UT of Jammu & Kashmir.
It is the case of the Writ Petitioner/ Respondent No.1 herein that the Writ Petitioner is a recognized political Party under Section 20 of the Representation of Peoples Act, 1951 read with the Election Symbols Order of 1968 in the Union Territory of Jammu & Kashmir and, in fact, the Petitioner-Party is the incumbent political Party in power in the present Ladakh Autonomous Hill Development Council, Kargil. Upon re¬organization of the then State of Jammu & Kashmir into two Union Territories viz. the Union Territory of Jammu & Kashmir, and Union Territory of Ladakh, the Petitioner-Party is seeking to contest the upcoming elections for the Ladakh Autonomous Hill Development Council on the same allocated reserved symbol of “Plough”. According to the Writ Petitioner, the Party approached the Election Commission of India by submitting representations for allocation of the said symbol, which were disposed of by the Election Commission of India by an Order dated 18th of July, 2023 by holding that as the Jammu & Kashmir National Conference is a recognized political Party in the Union Territory of Jammu & Kashmir with its reserved symbol (“Plough”), the Party can avail the concession under Paragraph No. 10 of the Election Symbols Order of 1968. However, since the Election Commission of India does not allot any symbol for any local body election, as it is the subject matter of the State Election Commission concerned, the Election Commission of India cannot grant any such concession as provided under Paragraph No. 10 of the Election Symbols Order of 1968 to the Petitioner-Party.It appears that the Election Department, UT of Ladakh also issued a notification on 26th of July, 2023, in which it was notified that in terms of Rule 17 of the Ladakh Autonomous Hill Development Councils (Election) Rules, 1995, the Administration of UT of Ladakh has specified, as mentioned in “Annexure-A” to the said notification, the symbols that will be kept reserved for the candidates contesting in general election of the Ladakh Autonomous Hill Development Council, Kargil belonging to the National parties and the symbols respectively reserved for them in terms of earlier notification dated 15th of May, 2023. Since, the Jammu & Kashmir National Conference is not a National but a State Party, it is not included in the symbols reserved in the notification as mentioned in “Annexure A” of the notification. In the same notification dated 26th of July, 2023, the UT of Ladakh has also specified, in “Annexure B” to the notification, the free symbols to be chosen by other than recognized political Parties/ Union Territory Party, where the symbol of “Plough” does not find a mention.
In view of the aforesaid decision of the Election Commission of India rendered on 18th of July, 2023, the Petitioner-Party claims to have approached the Election Authority on 7th of August, 2023 for allotting the symbol of “Plough”, which is the symbol allotted to the Jammu & Kashmir National Conference in the UT of Jammu & Kashmir, as according to the Petitioner, the Petitioner is entitled to allocation of the said symbol in terms of Paragraph No.10 of the Election Symbols Order of 1968. According to the Petitioner, as the Petitioner-Party had not received any response, the Petitioner approached the Writ Court by filing the writ petition being WP (C) No. 1933/2023 and the Writ Court passed the order dated 9th of August 2023 directing allotment of the symbol of “Plough” to the Petitioner.
Since the applications submitted by the Petitioner to the Election Authority of the UT of Ladakh have been rejected, as submitted by Mr T M Shamsi, DSGI, the issue has to be decided on the basis of the order dated 18th of July, 2023 passed by the Election Commission of India regarding the claim of the Petitioner for allotment of Party symbol of “Plough” for contesting the election in the LAHDC Kargil.
It is the case of the Appellants that even if the Writ Petitioner is entitled to the concession as mentioned Paragraph No. 10 or 10-A of the Election Symbols Order of 1968, the authority to give such concession is the Election Commission of India and not the Election Authority of UT of Ladakh as provided under Section 5 of the LAHDC Election Rules, 1995, inasmuch as the ‘Commission’ has been defined under the Election Symbols Order of 1968 as the Election Commission of India constituted under Article 324 of the Constitution or such State Election Commission to be constituted under the Government of Union Territories Act, 1963. It has been submitted that under the Government of Union Territories Act, 1963 the ‘Election Commission’ means the Election Commission appointed by the President under Article 324 of the Constitution. Thus, it is only the Election Commission constituted under Article 324 of the Constitution which is competent to grant any such concession for allotment of symbols and certainly not the Election Authority of the UT of Ladakh constituted under Section 5 of the LAHDC Election Rules 1995.
DB observed that since the election pertains to the LAHDC, Kargil, the Election Commission of India is not the authority to conduct the elections and it would be the UT Authority which will be primarily responsible for the conduct of the elections for the Ladakh Autonomous Hill Development Councils.
It has been provided under Section 59 of the Ladakh Autonomous Hill Development Councils Act, 1997 that the Government may make rules to regulate all or any of the matters mentioned therein for the purpose of holding of elections of members under thisAct. Though allocation of symbols is not specifically mentioned under Section 57, it goes without saying that since Section 57 is an omnibus provision, allocation of symbols will be within the scope of the said section, though the principles and criteria laid down by the Elections Commission of India have to be adhered to. It is in this context the order dated 18.07.2023 issued by the Election Commission has to be understood.
Election Authority of the UT of Ladakh has been constituted under the LAHDC Rules of 1995 mandated to conduct the elections for the Ladakh Autonomous Hill Development Councils under the aforesaid Act. Rule 17 provides that the Government shall by notification in Government Gazette, specify the symbols, that will be kept reserved for candidates set up by the Political Parties recognised under Rule 18 and symbols that may be chosen by other candidates at any election and restriction to which their choice will be subject. Thus, it is clear from the above that the Election Authority constituted under Rule 5 of the LAHDC Rules of 1995 is competent to allot the election symbols.
DB observed that as regards the contention of the Appellants that the impugned order passed by the learned Single Judge has divested the Competent Authority/Election Authority of its power to examine whether the applicant Party fulfils the conditions mentioned in Paragraph Nos. 10 and 10-A, we would observe that despite the direction of the learned Single Judge, the Authority will have the competence to examine the same, though there is hardly any scope for examining the same in view of the admitted position regarding the allotment of the symbol of “Plough” to the petitioner as a recognised State Party in the UT of Jammu & Kashmir, as discussed above.
With these observations, Division Bench is of the view that the impugned Order dated 09.08.2023 passed by the Single Judge in the writ petition, being WP (C) No. 1933/2023, does not appear to be contrary to the provisions of Paragraph Nos. 10 and 10-A of the Election Symbols Order of 1968 and, as such, it does not warrant any interference from us in this appeal. (JNF) |
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