Delhi High Court: In the instant appeal filed challenging the order and judgment of a Single Judge bench which refused to quash the Election Commission of India (ECI) order that restrained the two rival factions from using the Shiv Sena party symbol until pending adjudication of the same by the ECI, a Division Bench of Satish Chandra Sharma, CJ, and Subramonium Prasad, J., held that Election Commission of India is free to proceed with the adjudication of the dispute pending before it and there shall be no stay on the restraining order.
The appeal was filed seeking direction to ECI to consider and to preferably allot the symbol proposed by the Petitioner without restricting the choice of symbol from the list of free symbols notified by Respondent 1 as provided under the Election Symbols (Reservation and Allotment) Order, 1968.
The Court noted that Uddhav Thackery(appellant) has filed an application before the State Election Commission raising two preliminary issues, namely:-
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Whether there is any split in the political party i.e., Shiv Sena;
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Whether the petition can be maintained at the behest of a person who has given up membership of the party and incurred disqualification under Xth Schedule of the Constitution.
The Court further noted that the two preliminary issues raised by the Appellant are pending before the Supreme Court in Subhash Desai v. Governor of Maharashtra, 2022 SCC OnLine SC 1062, yet the Supreme Court vide order dated 27-09-2022, has held that there shall be no stay on the proceedings before the Election Commission of India. Therefore, the Election Commission of India is free to proceed with the adjudication of the dispute pending before it.
Thus, the Court held that the Election Commission of India will proceed in accordance with the procedure followed by the Commission while adjudicating a petition under Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968.
[Uddhav Thackerey v. The Election Commission of India, 2022 SCC OnLine Del 4475, decided on 15-12-2022]
Advocates who appeared in this case:
Mr. Kapil Sibal, Senior Advocate, Mr. Devadatt Kamat, Senior Advocate with Mr. Amit Anand Tiwari, Mr. Vivek Singh, Ms. Tanvi Anand, Ms. Aparajita Jamwal, Mr. Harsh Pandey, Mr. Nizam Pasha, Mr.Rajesh Inamdar, Mr. Javedur Rahman, Advocates for appellant
Mr. Sidhant Kumar, Ms. Manyaa Chandok, Mr. Shivanker Rao, Ms. Vidhi UdayShanker, Advocates for ECI Mr. Rajiv Nayar, Senior Advocate, Mr. Mahesh Jethmalani, Senior Advocate, Mr. Maninder Singh, Senior Advocate with Mr. Chirag Shah, Mr. Utsav Trivedi, Mr. Himanshu Sachdeva, Ms. Manini Roy, Ms. Shivani Bhushan, Mr. Aniket Panwar, Mr. Piyush Tiwari, Ms. Kanjini Sharma, Ms. Mugdha Pande, Mr. Saurabh Seth, Advocates for R-2
*Arunima Bose, Editorial Assistant has reported this brief.
