- (1.) THE present petition has been preferred mainly against the order passed by the Election Commission of India dated 28th October, 2009 (Annexure -8 to the memo of the petition) whereby the Election Commission of India has refused to allot any specific symbol to the petitioner - party for the reasons that the said party is a registered unrecognised party.
(2.) LEARNED counsel for the petitioners vehemently submitted that Order No. 6A(i) of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the Order, 1968, for sake of brevity) is under challenge especially for the provision of the percentage of total valid votes must have been secured by the petitioner - party. The fixation of the percentage of total votes under the aforesaid order is an arbitrary fixation of the percentage. The same is unreasonably excessive so as to thwart the rights vested in the petitioner. Nonetheless, the petitioner -party is already having two candidates, who were elected in the last State Legislative Assembly Election. Relevant part of the Order, 1968 viz. order nos. 5 and 6(A), read as under: '' "5. Classification of symbols. '' (1) For the purpose of this Order symbols are either reserved or free. (2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. (3) A free symbol is a symbol other than a reserved symbol. 6A. Conditions for recognition as a State Party. ''A political party shall be eligible for recognition as a State party in a State, if, and only if, any of the following conditions is fulfilled. (i) At the last general election to the Legislative Assembly of the State, the candidates set up by the party have secured not less than six per cent of the total valid votes polled in the State; and, in addition, the party has returned at least two members to the Legislative Assembly of that State at such general election; or (ii) At the last general election to the House of the People from that State, the candidates set up by the party have secured not less than six per cent of the total valid votes polled in the State; and, in addition, the party has returned at least one member to the House of the People from that State at such general election; or (iii) At the last general election to the Legislative Assembly of the State, the party has won at least three percent of the total number of seats in the Legislative Assembly, (any fraction exceeding half being counted as one), or at least three seats in the Assembly, whichever is more; or (iv) At the last general election to the House of the People from the State, the party has returned at least one member to the House of the People for every 25 members or any fraction thereof allotted to that State." Learned counsel for the petitioners has also submitted that various petitions have been preferred under Article 32 as well as under Article 136 of the Constitution of India before Hon'ble Supreme Court by various registered unrecognised parties from different States of the country, who were similarly situated like the petitioner - party. They were also not allotted specific symbols by the Election Commission of India on similar ground upon which petitioner's claim is rejected and the Hon'ble Supreme Court is pleased to pass an interim order in favour of similarly situated petitioner -party in SLP(C) No. 21965 of 2009 as well as in W.P.(C) No. 422 of 2009 as well as in SLP(C) No. 23494 of 2009 and in W.P.(C) No. 426 of 2009. Ail these interim orders are dated 14th September, 2009 (Annexure -10 to the memo of the petition). Learned counsel for the petitioners has also submitted that one more similarly situated party, which is registered unrecognised party had preferred a petition before the Hon'ble High Court at Bombay and detailed order has been passed wherein also interim relief has been granted in favour of registered unrecognised party in Writ Petition No. 8248 of 2009 dated 24th September, 2009 (Annexure -11 to the memo of the petition). The said order is passed by the Division Bench of the Hon'ble High Court at Bombay.
(3.) IN view of these orders, it is submitted by learned counsel for the petitioners that let the matter be admitted looking to the contentious issues raised in this petition and looking to the prima facie case, balance of convenience and irreparable loss, which may be caused to the petitioners, let a similar interim relief may be granted, which has been granted by the Hon'ble Supreme Court as well as by Hon'ble High Court at Bombay in various matters.;