Chandra Prakash Kaushik vs Election Commission Of India & ...
2012 Latest Caselaw 1825 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 16th March, 2012

+                          LPA NO.522/2011

CHANDRA PRAKASH KAUSHIK                       ..... Appellant
               Through: Mr. Jayant Bhushan, Sr. Adv. with
                        Mr. Atul Chaubey, Adv.

                                 Versus

ELECTION COMMISSION OF INDIA & ANR.            ..... Respondents
                 Through: Mr. P.R. Chopra, Adv. for R-1.
                           Dr. Indira Tiwari, Attorney for R-2.
                           Mr. B.S. Billowaria & Mr. Vijay
                           Pratap Singh, Advs. for Intervenor /
                           Applicant.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The challenge in this Intra-Court appeal is to the judgment dated

02.05.2011 allowing W.P.(C) No.704/2011 preferred by the respondent No.2

Swami Chakrapani, by quashing the "order dated 14.01.2011 of the

respondent No.1 Election Commission of India (ECI)." Notice of this

appeal was issued and vide interim order dated 27.09.2011 "status quo

existing as on today" was directed to be maintained till the next date of

hearing. The said interim order was made absolute on 13.10.2011. CM

No.18167/2011 was preferred by one Dr. Santosh Rai for and on behalf of

one Sh. Kamlesh Tiwari [claiming to be the duly elected President of the

Uchchadhikar Samiti (High Power Committee) of Akhil Bharat Hindu

Mahasabha] for intervention. He was allowed to so intervene and his

counsel has also been heard along with counsel for the parties.

2. Akhil Bharat Hindu Mahasabha (ABHM) is stated, to have been

organized as far back in the year 1907 and registered as a Society under the

Societies Registration Act, 1860 in the year 1917; it participated in the

elections held in the year 1926 to Provincial Legislatures and in the year

1930 in the elections for the Central Assembly; it became a political party in

the year 1937 and enjoys the status of a registered political party within the

meaning of Section 29A of the Representation of the People Act, 1951,

though not recognized.

3. The letter dated 14.01.2011 of the respondent No.1 ECI and

impugning which the writ petition from which this appeal arises was filed

inter alia records:

(i) that during the year 2004-06 several communications from

different factions of ABHM claiming themselves to be the

authorized office bearers of the party were received by the ECI;

(ii) on the basis of the aforesaid communications, respondent No.1

ECI was of the opinion that there were internal disputes within

the party and accordingly respondent No.1 ECI vide its letter

dated 14.01.2004 intimated to all those approaching it that the

internal disputes of ABHM had to be settled by them either

amicably within the party or though a competent Court of Law;

(iii) subsequently vide letters dated 06.07.2007 and 09.07.2007, the

respondent No.1 ECI was informed that the disputes within the

party had been settled;

(iv) the respondent no.1 ECI vide its letter dated 07.08.2007

informed ABHM that ECI had taken on its record the list of

office bearers of ABHM as informed by ABHM vide its letter

dated 06.09.2006;

(v) however, respondent No.1 ECI was subsequently informed of

filing of CS(OS) No.837/2007 in this Court impugning the

claims of a) respondent No.2 Swami Chakrapani, b) Sh. Dinesh

Chandra Tyagi (not a party to this proceeding), and of the

appellant herein of being the office bearers of ABHM;

(vi) accordingly the respondent No.1 ECI vide its letter dated

21.08.2007 withdrew the decision communicated by it vide its

earlier letter dated 07.08.2007 (supra) and further clarified that

nobody would be recognized as the authorized office bearers of

ABHM and the future course of action regarding office bearers

of ABHM would depend upon the decision in the said suit;

(vii) the respondent no.1 ECI was in May, 2010 informed of the

dismissal of the said suit for non prosecution on 22.03.2010 and

the ECI was called upon to revive the acceptance granted to the

office bearers vide letter dated 07.08.2007 (supra); the

respondent No.1 ECI was also informed of election of the

respondent No.2 Swami Chakrapani as the President of ABHM

for the year 2008-10 and 2010-12 and was requested to take the

same along with the list of office bearers for the year 2008-10

and 2010-12 on record;

(viii) though another two groups led by Sh. Munna Kumar Sharma

and Sh. Nand Kishore Mishra also staked their claim of being

office bearers of ABHM but were unable to submit any

documentary proof thereof;

(ix) accordingly, the respondent No.1 ECI vide its letter dated

08.10.2010 revived its letter dated 07.08.2007 (supra) and the

position as prevailing before the filing of the suit which had

since been dismissed; one Dr. Indira Tiwari who was

corresponding on behalf of the respondent No.2 Swami

Chakrapani with the respondent No.1 ECI was also called upon

to furnish the list of office bearers which was so furnished

along with documentary evidence and on the basis whereof the

respondent no.1 ECI vide its letter dated 11.11.2010 took the

same on record;

(x) however the respondent No.1 ECI since then had received

various communications from different persons raising

objections and disputes qua the claim of respondent No.2

Swami Chakrapani of being the office bearer and further

claiming that respondent no.2 Swami Chakrapani and his group

had rather been expelled from ABHM;

(xi) the respondent No.1 ECI on the basis of the aforesaid fresh

representations received by it concluded that the internal

disputes of ABHM had not been resolved and persisted;

(xii) the respondent No.1 ECI itself did not inquire into disputes

within unrecognized political parties;

The respondent no.1 ECI thus vide letter dated 14.01.2011 impugned

in the writ petition, withdrew the earlier letter dated 11.11.2010 taking on

record the respondent No.2 Swami Chakrapani as the President of ABHM.

4. It was the contention of the respondent No.2 Swami Chakrapani

before the learned Single Judge that there was no basis whatsoever for the

respondent No.1 ECI to have reversed its decision of taking on record

respondent No.2 Swami Chakrapani as the President of ABHM; that the

same could not be done on mere representations and anyone disputing his

claim as the President and the list of office bearers submitted by him, ought

to have approached the Civil Court. The appellant though was not

impleaded as a party to the writ petition, intervened and supported the

decision of the respondent No.1 ECI. It was his contention that any other

decision of the respondent No.1 ECI (than the decision communicated vide

letter dated 14.1.2011) would tantamount to recognizing the respondent

No.2 Swami Chakrapani as the President and which was beyond the

jurisdiction of respondent No.1 ECI. It was the contention of respondent

No.1 ECI before the learned Single Judge that the decision communicated

vide letter dated 14.01.2011 was of administrative nature and not

determinative of the rights of the respective claimants to be office bearers of

ABHM and such a decision was reviewable depending upon the

developments from time to time.

5. The learned Single Judge in the judgment impugned before us, has

observed / held:

(i) that the decision of respondent No.1 ECI communicated vide letter dated 21.08.2007 to recall the decision dated 7.8.2007 was on account of the then pendency of the civil suit and was subject to the outcome of the civil suit;

(ii) consequently, with the dismissal of the civil suit, the legal challenge to the claim of respondent No.2 Swami Chakrapani failed and the respondent No.1 ECI had vide its letter dated 11.11.2010 rightly revived the letter dated 07.08.2007 and there was no justification to on 14.01.2011 reverse the said decision.

The writ petition was accordingly allowed granting liberty to all those

claiming adversely to the respondent No.2 Swami Chakrapani, to avail the

appropriate remedy and granting liberty to respondent No.1 ECI also to vary

its decision depending upon the order if any of Civil Court in proceedings to

be so initiated by the adversaries of respondent No.2 Swami Chakrapani.

6. Neither is there any provision in the Act nor have any of the counsels

controverted that the respondent No.1 ECI has no jurisdiction or mechanism

to adjudicate rival claims of unrecognized political parties registered with it.

The only question which thus falls for adjudication is of validity of the

decision dated 14.01.2011 of the respondent no.1 ECI, recalling the

„recognition‟ granted vide letter dated 11.11.2010 to respondent no.2 Swami

Chakrapani as President and to others as per the list submitted by respondent

no.2 Swami Chakrapani as office bearers, of ABHM. The learned Single

Judge has held the decision dated 14.01.2011 to be invalid and ECI not

entitled to take, in the absence of any order of Court of law.

7. What we however find is that the disputes as to the management of

ABHM were pending since the year 2004-06 and owing whereto the

respondent No.1 ECI had decided not to recognize or deal with any of the

rival groups all of whom were claiming to be in management of ABHM.

There is nothing to show that ABHM had before accepting the respondent

No.2 Swami Chakrapani as office bearer of ABHM on 07.08.2007

conducted any inquiry. However on learning of the filing of the civil suit

aforesaid, such decision was also kept in abeyance. After the suit was

dismissed for non prosecution, again even though there were rival claims but

respondent No.2 Swami Chakrapani was again accepted as President only

for the reason of some documents on his behalf having been submitted while

no such documents were submitted on behalf of his rival groups.

Accordingly, the communication dated 11.11.2010 recognizing respondent

No.2 Swami Chakrapani as office bearer was issued. However, the

respondent No.1 ECI continued to receive representations/complaints

against recognition so accorded to respondent No.2 Swami Chakrapani as

the President/office bearer of ABHM, which resulted in the ECI, on

14.01.2011 withdrawing such recognition.

8. It is this ambivalent attitude of respondent No.1 ECI which has

weighed with the learned Single Judge in quashing the letter dated

14.01.2011. We may however notice that even the learned Single Judge has

not returned any finding as to the correctness of the decision dated

11.11.2010 of respondent No.1 ECI recognizing respondent No.2 Swami

Chakrapani as President/office bearer of ABHM. We are of the view that in

the face of disputes since the year 2004, the recognition in the year 2010 of

respondent No.2 Swami Chakrapani as the President/office bearer,

notwithstanding the dismissal of the civil suit for non prosecution, could not

have been accorded without it being established before the respondent No.1

ECI, i) as to who all were the members of ABHM; ii) whether the elections

as prescribed in the Rules and Regulations of ABHM had been held or not;

and iii) whether the respondent No.2 Swami Chakrapani had so been elected

as the office bearer/President. There was no such material before the

respondent No.1 ECI. It cannot also be lost sight of that even as on

11.11.2010, the respondent No.1 ECI was continuing to receive opposition

to the claims of respondent No.2 Swami Chakrapani. The said opposition

however appears to have been disregarded by the respondent No.1 ECI only

for the reason of being without any substantiating documents. However

when respondent No.1 ECI continued to receive objections to the claim of

respondent No.2 Swami Chakrapani, it undoubtedly reviewed its decision

dated 11.11.2010.

9. We differ from the opinion of the learned Single Judge that the

respondent No.1 ECI could not have so reviewed its decision without an

order of a competent Court of law. That would have been the position had

the recognition earlier accorded to the respondent No.2 Swami Chakrapani

been with the consent of all concerned or had the communication of his

election as President/office bearer been a unanimous one. It could then have

been said that subsequent objection thereto was an afterthought and ECI

would then have been justified in refusing to revoke the recognition without

Court order of the earlier unanimous intimation being no longer valid.

However the respondent No.1 ECI on 14.01.2011 appears to have felt that its

earlier decision dated 11.11.2010 was erroneous. The learned Single judge

has held that the respondent no.1 ECI could not have so corrected its

decision. We are however of the view that this Court in exercise of powers

of judicial review ought not to interfere with a decision of a body such as the

respondent No.1 ECI which decision is otherwise found to be correct in law.

Such a decision cannot be quashed / set aside merely for the reason that

earlier an erroneous decision had been taken. We are further of the view that

in the face of such challenges, it is for the person who is wanting to exercise

rights as President/office bearer to seek a declaration to such office and he

cannot be allowed to hold office or to exercise powers thereof merely for the

reason of the others having not approached the Court of law. We may

however clarify that we have so concluded in view of there being no

unequivocal document before us of the election of the respondent No.2

Swami Chakrapani as office bearer of ABHM in accordance with its

constitution. Rather what is before us is, material to show that there have

been disputes since the year 2004 as to the internal management of ABHM

and which do not appear to have been resolved at any point of time. Merely

because the persons who had filed the suit chose not to pursue the same

cannot confer any legitimacy to the respondent No.2 Swami Chakrapani

when a large number of other persons concerned with ABHM are continuing

to dispute the claim of respondent No.2 Swami Chakrapani. We have also

perused the written statement filed by the respondent No.2 Swami

Chakrapani in the suit aforesaid and from which also we are unable to cull

out any clarity on the matter. Moreover the said suit was filed in the year

2007 while what was for consideration in the year 2010 was the election of

the respondent No.2 for the period 2010-12.

10. ABHM as aforesaid is not a recognized political party. Though the

term "recognized political party" is not defined in the Act but the

Explanation to Section 52 thereof provides that "recognized political party"

means a political party recognized by the Election Commission under the

Election Symbols (Reservation and Allotment) Order, 1968. The said Order

vide Clause 15 thereof empowers the ECI, when there are rival sections or

groups of a political party each of whom claims to be that party, to after

taking into account all the available facts and circumstances and hearing

representatives of the sections or groups, decide which of such rival section

or group is that recognized political party; such decision of ECI is made

binding on all such rival sections or groups. However the said Clause does

not apply to unrecognized political parties as ABHM is. ECI was/is thus not

empowered to in the face of rival claims of respondent no.2 Swami

Chakrapani and others take any decision as to whose claim was correct. That

being the position, ECI could not have on 11.11.2010 recognized respondent

no.2 Swami Chakrapani as the President/office bearer of ABHM. We are

thus of the view that the decision dated 11.11.2010 of ECI of preferring the

claim of respondent no.2 Swami Chakrapani over that of others was clearly

beyond the powers/jurisdiction of ECI. Axiomatically the corrective action

of ECI on 14.01.2011 is found to be in accordance with law and thus cannot

be faulted with. We may mention that the Supreme Court in Janata Dal

(Samajwadi) Vs. Election Commission of India (1996) 1 SCC 235 has held

the ECI empowered to rescind its orders even in the absence of any specific

power therefor. It was held that Section 21 of the General Clauses Act, 1897

applies. ECI was thus empowered to, on 14.01.2011 rescind the earlier order

dated 11.11.2010 which as aforesaid was beyond its powers/jurisdiction.

11. We are further of the view that in the absence of ECI being

empowered to decide such inter se disputes of an unrecognized political

party, the decision dated 11.11.2010 was an administrative decision, not

taken in exercise of any quasi judicial powers. The Supreme Court in R.R.

Verma Vs. UOI (1980) 3 SCC 402, has held that decisions in administrative

matters cannot be hidebound by the rules and restrictions of judicial

procedure.

12. We have opted to pass a speaking judgment even though the term

2010-12 for which the respondent no.2 Swami Chakrapani claims to be

President/office bearer is expiring, to clarify the position since respondent

No.1 ECI may be faced with communication by respondent No.2 Swami

Chakrapani with respect to subsequent years and further since we deem it

proper to clarify the position as respondent No.1 ECI may face such issues

qua other political parties also.

13. We may further record that the appellant had filed CM No.1119/2012

seeking clarification that the interim order of status quo in this appeal be not

read as authorizing respondent No.2 Swami Chakrapani to use of the

election symbol allotted to ABHM in the election then scheduled in the State

of Uttar Pradesh. No orders were made on this application since the election

process had already begun and we had heard arguments finally in the appeal.

We now clarify that the order allowing this appeal shall have no bearing to

the outcome of the elections in the State of Uttar Pradesh.

14. The appeal is accordingly allowed and the judgment of the learned

Single Judge is set aside; axiomatically, the letter dated 14.01.2011 of the

respondent No.1 ECI is held to be valid and the writ petition filed by the

respondent no.2 Swami Chakrapani is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

MARCH 16, 2012 „gsr‟..