* THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 17.12.2012
% Judgment Delivered on: 20.12.2012
+ W.P.(C) 1074/2012 & CM 2363/2012
JASJIT SINGH AND ANR ..... Petitioners
Through: Mr Abhishek K. Mishra, Adv.
versus
DIRECTORATE OF GURDWARA ELECTIONS
(THROUGH ITS DIRECTOR) AND ORS .... Respondents
Through: Mr Rajiv Nanda, ASC with Ms Shawana
Bari, Adv. for R-1&2.
Mr Maninder Singh, Sr. Adv. with Mr Jasmeet
Singh, Mr Saurabh Tiwari & Ms Vatsala Singh,
Advs. for R-3.
Mr Raj Kamal & Mr Faraz Khan, Advs. for R-
4&6.
Ms Rashmi Chopra, Adv. for R-5.
+ W.P.(C) 936/2012
DASHMESH SEWA SOCIETY (REGD) ..... Petitioner
Through: Mr Baljit Singh & Mr Ajai Kumar,
Advs.
versus
DIRECTOR GURDWARA ELECTIONS
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr Rajiv Nanda, ASC with Ms Shawana
Bari, Adv. for R-1.
Mr Maninder Singh, Sr. Adv. with Mr Jasmeet
Singh, Mr Saurabh Tiwari & Ms Vatsala Singh,
Advs. for R-2.
Mr Raj Kamal & Mr Faraz Khan, Advs. for R-3.
Ms Rashmi Chopra, Adv. for R-4.
WP(C) 1074/2012 & 936/2012 Page 1 of 21
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1. The captioned writ petitions lay challenge to two orders passed by
respondent no. 1, i.e., the Directorate of Gurudwara Elections. The first
order, which is dated 02.02.2012, is specific to the petitioners. This order
bears a common date, which is, 02.02.2012. There are, however, two
separate orders passed qua each of the petitioners. The second order, to
which, challenge is laid in both writ petitions is order dated 06.02.2012,
once again, passed by respondent no. 1; thus though is a common order.
2. It may be important to note, at the very outset, that in writ petition no.
1074/2012, my predecessor, vide order dated 23.02.2012, has already
rejected the petitioners' prayer for quashing the order dated 02.02.2012
passed by respondent no. 1 qua them. By the very same order a limited
notice was issued qua the other aspect, which is, the challenge laid to the
order dated 06.02.2012, as it was pending consideration in the other writ
petition, which is bearing no. WP(C) 936/2012.
3. Shorn of verbiage, the challenge in the captioned writ petitions
pertains to applicability of Rule 14 of the Delhi Sikh Gurudwara
Management Committee (Election of Members) Rules, 1974 (in short the
1974 Rules). It may be pertinent to note that the said Rule was amended by
respondent no. 2 vide notification dated 28.07.2010. Therefore, for the sake
of convenience, I would be referring to the earlier Rules as the Unamended
Rules and the Rule, post the amendment, as the Amended Rule.
WP(C) 1074/2012
4. Briefly, the facts obtaining in the captioned petition are as follows:
4.1 Under the Unamended Rules elections to the Delhi Sikh Gurudwaras
WP(C) 1074/2012 & 936/2012 Page 2 of 21
Management Committee (hereinafter referred to as the Management
Committee) were held, in recent past, in January, 2007. Since the term of
the Management Committee is four (4) years, the said period, if calculated
from the date of the first meeting of the Management Committee, which
was held on 09.02.2007, apparently, ended on 09.02.2011.
4.2 As indicated above, on 28.07.2010, Rule 14 of the Unamended Rules
was amended vide notification of even date issued by respondent no. 2.
Essentially, the amendments made provided substitution of the term
"candidate" with "religious parties". In other words, under the Amended
Rule 14, election symbols could be allotted to religious parties as against
individual candidates. This was, however, subject to two conditions, which
are inter alia contained in, the Amended Rule 14(3)(a) and (d). The first
condition being: that the applicant religious party had to be registered under
the provisions of the Societies Registration Act, 1860 (hereinafter referred
to as the 1860 Act) at least one year before the date of expiry of the term of
the Management Committee. The second condition being: that at least two
elected members of the Management Committee had to be members of the
applicant religious party. This condition was incorporated in Rule
14(3)(d).
4.3 Petitioner no. 2, in this writ petition, i.e., Shiromani Akali Dal (Delhi-
UK) [hereinafter referred to as the SAD (Delhi-UK)] applied for an election
symbol, on 24.01.2012. In order to buttress its case for allotment of its
election symbol, SAD (Delhi UK) also secured recommendations of two
erstwhile members of the Management Committee. This recommendation
was obtained on 21.01.2012. In the meanwhile, against a query raised
under the Right to Information Act, 2005 (hereinafter referred to as the RTI
Act) a response was received from respondent nos. 1 and 2, on 09.01.2012,
WP(C) 1074/2012 & 936/2012 Page 3 of 21
whereby it was indicated that respondent nos. 3 to 5, i.e, Shiromani Akali
Dal (Badal) [hereinafter referred to as SAD (Badal)], Shiromani Akali Dal
Delhi [hereinafter referred to as SAD (Delhi)] and Shiromani Akali Dal
Panthak Jathedar Santhok Singh [hereinafter referred to as SAD (Panthak)],
were not registered as per the Amended Rule, in particular, Rule 14(3)(a).
It was further intimated that except for two parties, which included SAD
(Delhi-UK), no other party had sought allotment of an election symbol on
the basis that it was a religious party.
4.4 The request of SAD (Delhi-UK) was, however, rejected vide order
dated 02.02.2012, for failing to comply with provisions of Rule 14(3)(d).
This is one of the orders, which is impugned in this writ petition.
4.5 The second order, which is the other impugned order, was passed on
6.02.2012. In this order, which is titled as a "Symbol Order", two recitals
are set out. The first recital, adverts to the fact that reserved symbols had
been allotted to certain "recognized religious parties candidate(s)" of Delhi
under the Unamended Rules vide two notifications dated 08.10.1999 and
30.11.2006. The three religious parties referred to in the said order are as
follows: Shiromani Akali Dal (Badal), Delhi State, i.e., respondent no. 3;
Shiromani Akali Dal (Delhi); and Shiromani Akali Dal (Panthak).
4.6 The second recital adverts to the fact that certain symbols referred to
in the said order, had been kept as "free symbols" for allotment to other
candidates seeking to stand for elections in the next general elections as
members of the Management Committee.
4.7 In the operative part of the order it was indicated that the process of
conducting elections to the Management Committee had commenced and
notifications for the said purpose, that is, to seek nominations, would be
issued soon and, therefore, no application/request of any religious party for
WP(C) 1074/2012 & 936/2012 Page 4 of 21
either recommendation/allotment for reserved symbol shall be entertained
henceforth.
5. The petitioner being aggrieved preferred the captioned writ petition,
which was moved as indicated above on 23.02.2012 when, challenge of the
petitioners to order dated 02.02.2012 was repelled by this court.
WP(C) 936/2012
6. In this case, the petitioner i.e., Dashmesh Sewa Society (Regd.)
[hereinafter referred to as DSS] was registered as a society under the 1860
Act on 26.03.2009. Immediately thereafter, on 22.04.2009, DSS filed an
application with respondent no. 1, for allotment of a reserved election
symbol. It would be relevant to note, that the said application was filed
under the Unamended Rule 14. The petitioner's application was
acknowledged by respondent no. 1 vide communication dated 19.06.2009.
Pertinently in this communication respondent no. 1 conveyed to DSS that its
request had been taken note of, which would be considered "in due course".
7. As noticed above, in the meanwhile, Rule 14 was amended on
28.07.2010. Apparently, reminders with regard to recognition and
allotment of an election symbol were sent by DSS to respondent no. 1 on :
12.10.2011, 23.01.2012 and 28.01.2012. It may also be important to note
that since Rule 14 had been amended in the meantime, the petitioner even
while referring to the Amended Rule 14 placed reliance on the contents of
its application dated 22.04.2009. A specific reference in regard to the same
is made in paragraphs 5, 6 and 12 of the letter dated 28.01.2012.
8. It appears that DSS had filed an application under the RTI Act dated
12.10.2011, with respondent no. 1, seeking to raise two queries. The first,
as to whether any party/ society had applied for allotment of reserved
election symbols. Second, names and address of parties/societies, which
WP(C) 1074/2012 & 936/2012 Page 5 of 21
were registered under the 1860 Act, at least one year before the expiry of
the term of the last Management Committee. Response was apparently
given by respondent no. 1 vide communication dated 09.1.2012. In respect
to the first query, the petitioner was informed that apart from it, the other
entity which had applied for allotment of a reserved symbol was: Shiromani
Akali Dal, (Delhi U.K), i.e., petitioner no. 2 in WP(C) 1074/2012. As
regards the second query, respondent no. 1 confirmed that as per its
knowledge DSS was the only entity which was registered at least one year
before the date of expiry of the term of the erstwhile committee.
9. It may be noted that the term of the erstwhile Management
Committee (which had been elected for a four (4) year term), came to an
end on 08.02.2011, from the date when it held its first meeting. Apparently,
on 28.01.2012, a public notice dated 27.01.2012 was issued by respondent
no. 1, which got published in the Hindustan Times, on 28.01.2012, whereby
all concerned were given information qua the schedule for elections to the
Management Committee, which was slated, at that point in time to be held,
on 11.03.2012.
10. By virtue of the order dated 02.02.2012, DSSs application for
recognition as a religious party and allotment of reserved symbol for
election dated 27.01.2012 (sic 28.01.2012) was rejected under the
provisions of the Amended Rule 14(3)(d). In other words, the ground for
rejection was that the names of two members given in terms of the
aforementioned provision as members of the Management Committee were
found on verification by respondent no. 1, that the persons named were not
the elected members of the incumbent Management Committee. As
indicated above, the petition also made reference to the second order dated
WP(C) 1074/2012 & 936/2012 Page 6 of 21
06.02.2012, which is the Symbol Order. This order has also been assailed
in the said writ petition as well.
SUBMISSIONS OF COUNSELS
11. Briefly, on behalf of the petitioners, in particular, petitioner no.2 i.e.,
[SAD (Delhi-UK)] in WP(C) 1074/2012 arguments have been addressed by
Mr. Mishra, while Mr Baljit Singh has advanced arguments on behalf of the
petitioner i.e., DSS in WP(C) 936/2012.
11.1 Mr Mishra's argument was confined to assailing the order dated
06.02.2012, in view of the fact that, his challenge to order dated 02.02.2012,
as noticed above, had already been rejected by my predecessor by an order
dated 23.02.2012. Admittedly, the said order of the court has not been
challenged in any proceedings. Mr Mishra's submission, therefore, were as
follows:
11.2 The Unamended Rule 14 permitted allotment of an election symbol to
a candidate. However, contrary to the rules, then obtaining, by virtue of
two notifications dated 08.10.1999 and 30.11.2006, reserved election
symbols were allotted, inter alia, in favour of religious parties, i.e., SAD
(Badal), SAD (Delhi) and SAD (Panthak). It was submitted that, at the very
inception, the allotment of reserved symbols to the said religious parties was
unlawful as the Unamended Rule provided for allotment of reserved
symbols to "candidates" and not to parties, much less religious parties. Mr
Mishra submitted that for the first time the Rules contemplated issuance of
reserved election symbols to religious parties post the amendment of the
Rules vide notification dated 28.07.2010.
11.3 It was Mr Mishra's contention that, therefore, under the Amended
Rule 14, a reserved election symbol, could be allotted to a religious party if
it fulfilled, inter alia, the conditions provided in Section 14(3)(a) and
WP(C) 1074/2012 & 936/2012 Page 7 of 21
14(3)(d). In other words, the religious party should be a society registered
under the 1860 Act for a period of atleast one year before the date of expiry
of the term of the erstwhile Management Committee. Secondly, it should
have at least two elected members of the Management Committee as its
members.
11.4 It was Mr Mishra's contention that, in so far as SAD (Badal) was
concerned, it was not even a religious party. According to Mr Mishra,
SAD (Badal) was a political party and was registered under the
Representation of People Act, 1951 (hereinafter referred to as the RP Act),
and had, accordingly, been allotted a symbol by the Election Commission of
India under the Election Symbols (Reservation and Allotment) Order, 1968
(hereinafter referred to as 1968 Symbols Order). It was contended that if
SAD (Badal) along with SAD (Delhi) and SAD (Panthak) claim to be
religious parties, they were required to fulfill the conditions stipulated under
14(3)(a) and (d), which apart from petitioner no. 2 i.e., SAD (Delhi-UK) in
WP(C) 1074/2102 and the petitioner (i.e., DSS) in WP(C) 936/2012, was
not complied with by any of the other parties before it, in particular, SAD
(Badal), SAD (Delhi) and SAD (Panthak).
11.5 In these circumstances, Mr Mishra submitted that the order dated
06.02.2012, was erroneous in law, in so far as SAD (Badal), SAD (Delhi)
and SAD (Panthak) are concerned.
11.6 It may be noted that, during the course of the argument Mr Mishra
conceded that in so far as SAD (Delhi-UK) is concerned, it had made an
application for recognition and allotment of an election symbol on
24.01.2012, which is a date after the Amended Rules had come into play.
Therefore, based on the arguments advanced by Mr Mishra, the new rules
would be applicable and the conditions stipulated therein would have to
WP(C) 1074/2012 & 936/2012 Page 8 of 21
apply to petitioner no. 2, i.e., SAD (Delhi-UK), as well. Since, SAD
(Delhi-UK) did not fulfill the conditions stipulated in the amended rule
14(3)(d), which required at least two members of the incumbent
Management Committee to be members of the religious party, no fault
could be found with order dated 02.02.2012 passed in so far as SAD (Delhi-
UK) was concerned.
12. Mr Baljit Singh, on the other hand argued that DSS had been
registered under the 1860 Act, on 26.03.2009, based on which an
application was filed with respondent no. 1 for allotment of a reserved
election symbol, on 22.04.2009. It was thus contended by Mr Baljit Singh
that, the Unamended Rules ought to be applied to DSS, as was applied to
SAD (Badal), SAD (Delhi) and SAD (Panthak).
12.1 In the alternative, Mr Baljit Singh submitted that even if new Rules
are applied, DSS fulfilled the criteria provided therein, in as much as; DSS
was registered as a society under the 1860 Act, one year before the date of
expiry of the term of the incumbent Management Committee. The term of
the incumbent Management Committee expired on 09.02.2011, being the
four year term, and DSS was registered on 26.03.2009, which was prior to
08.02.2010.
12.2 As regards the condition prescribed in Rule 14(3)(d) was concerned,
Mr Baljit Singh submitted that, the provision could not apply to DSS; as a
plain reading of the said provision was indicative of the fact that, if
recognition was to be granted to a new religious party, then it would have to
be registered not only under the Societies Registration Act but would also
require to have as its members at least two elected members of the
incumbent Management Committee. In other words, the submission of Mr
Baljit Singh was, where a religious party had already registered itself prior
WP(C) 1074/2012 & 936/2012 Page 9 of 21
to the Amended Rules coming into force, they were required to fulfill the
condition provided in amended rule 14(3)(a) and not Rule 14(3)(d).
12.3 Mr Baljit Singh further contended that, in case Rule 14(3)(d) is to be
made applicable to DSS, even then, it would pass muster, as there is nothing
in the said provision to indicate that it was required of the entity moving an
application for recognition and allotment of election symbol, to have as its
members, current members of the incumbent Management Committee. In
other words, even ex-members would fulfill the criteria stipulated therein.
13. On behalf of Respondent Nos. 1 and 2, arguments were advanced by
Mr Rajiv Nanda, ASC.
13.1 It must be recorded that Mr Nanda was squarely asked by me as to
how he would respond to the apparent anomaly, which had crept in, which
was that, even though the Unamended Rule 14 referred to allotment of a
reserved election symbol to a candidate, the said respondents, whom he
represented, had by notifications dated 08.10.1999 and 30.11.2006, allotted
symbols in favour of SAD (Badal), SAD (Delhi) and SAD (Panthak).
13.2 In response, Mr Nanda submitted that, the term ,,candidate would
have to be read as a Group or an Association of Persons, and if that,
meaning was accorded to the term ,,candidate in the Unamended Rule,
then no fault could be found with the two notifications issued by respondent
nos. 1 and 2.
13.3 In the same vein Mr Nanda, based on the averments made in the
counter affidavit filed on behalf of the said respondents, submitted that the
Amended Rules could not be applied to : "already recognized religious
parties". In other words, the Amended Rules did not apply to those who
were beneficiaries of the notification dated 08.10.1999 and 30.11.2006. As
far as petitioner no. 2, i.e., SAD (Delhi-UK) was concerned, Mr Nanda
WP(C) 1074/2012 & 936/2012 Page 10 of 21
submitted that since, it did not fulfill the conditions laid down in Rule
14(3)(d), its application was rightly rejected.
13.4 With regard to DSS, i.e., the petitioner in WP(C) 936/2012, Mr
Nanda contended that its first application, filed on 22.04.2009, was not
supported by any documentary evidence, and since, the elections were not
slated to be held in the near future, the said application was kept in
abeyance. It is when a decision was taken to hold elections, DSS's
subsequent applications, were considered under the Amended Rules, and
thereupon, was rejected also on account of failure to fulfill the provisions of
the Amended Rule 14(3)(d); though in this case, the applicant DSS had
claimed as its member, persons, who were not members of the incumbent
Management Committee.
14. On behalf of respondent no. 3 (SAD Badal) and respondent no.5
(SAD Panthak), arguments were advanced by Mr Maninder Singh, Sr.
Advocate. Mr Singh submitted that the SAD (Badal) and SAD (Panthak)
were allotted reserved symbols under the two notifications dated 08.10.1999
and 30.11.2006; while SAD (Badal) had been given the reserved symbol of
"bucket" nearly ten years ago, SAD (Panthak) was allotted "candle" as a
reserved symbol and that too six (6) years ago. Based on the symbol
allotted, SAD (Badal) had participated in the elections held in January,
2007. Therefore, after such a long lapse of time, SAD (Badal) cannot be
called upon to apply for a fresh symbol, nor be called upon to fulfill the
conditions stipulated under the Amended Rule 14. Similarly, SAD
(Panthak) cannot be asked to fulfill the conditions provided under the
Amended Rule 14.
14.1 Mr Singh further argued that the two notifications, under which
reserved election symbols had been allotted to SAD (Badal) and SAD
WP(C) 1074/2012 & 936/2012 Page 11 of 21
(Panthak), were not in challenge. There was no definition of either a
political party or a religious party under the Delhi Sikh Gurudwara
Management Committee Act, 1971 (in short the 1971 Act). According to
Mr Singh, the Amended Rules, which are framed in exercise of power under
Section 1971 Act, were ultra vires the provisions of the said Act, as the
Amended Rule went beyond the contours of the parent statute.
14.2 Mr Singh also made reference to the provisions of sections 2(f) and
Section 29(A) of the Representation of the People Act, 1950 (in short the
RP Act). Reliance was also placed on the judgment of the Supreme Court
in the case of Bharathidasan University and Anr. Vs All India Council for
Technical Education & Ors. 2001 (8) SCC 676 to contend that the Rule,
which sought to recognize religious party, being beyond the provisions of
the 1971 Act would have to be "ignored", even though there was no
challenge to the said Rule. Specific reference, in this behalf, was made to
the observations of the Supreme Court in paragraph 14 of the said judgment
at page 688.
14.3 Mr Singh thus submitted that, the Amended Rules were not only
required to be in conformity of the 1971 Act but were also required to be in
consonance with the provisions of the Constitution, and if, the Rules were
not in conformity with the provisions of the Constitution or the Parent Act,
the same had to be ignored.
14.4 It was thus the submission of Mr Singh that the Rules in issue, were
contrary to the provisions of Article 25 and 26 of the Constitution of India
read with Entry 28 in List III of Schedule VII. Mr Singh submitted that the
concept of a religious party was unknown to the Constitution of India. He
submitted that, SAD (Badal) was a political party which had been allotted a
symbol by the Election Commission of India under the 1968 Symbols
WP(C) 1074/2012 & 936/2012 Page 12 of 21
Order. Reference in this regard was made to Clause 4, 6(a), (b) and 8 of
the 1968 Symbol Order.
15. On behalf of Respondent no. 4 i.e., SAD (Delhi), arguments were
advanced by Mr Raj Kamal. He submitted that SAD (Delhi) was allotted
reserved election symbol vide notification dated 30.11.2006 and, therefore,
they were governed by unamended Rule 14. The learned counsel adopted
the arguments advanced by Mr Singh, learned senior counsel with regard to
other aspects of the matter.
REASONS
16. I have heard the learned counsels for the parties and also perused the
record. As indicated above, the course of this litigation would turn-on :
whether or not Unamended Rules were applicable to SAD (Badal), SAD
(Delhi) and SAD (Panthak), and the meaning, to be given to the term
,,candidate, if the Unamended Rules are to be applied. What has emerged
from the record is undoubtedly the following:
(i) Vide notification dated 08.10.1999, respondent no. 1 specified the
choice of symbol to be made by a candidate at an election of a member to
the Management Committee from the symbols listed in the said
notifications, subject to the restrictions referred to in the said notification.
Out of many restrictions, in so far as reserved symbols were concerned
(which were set out in List A of the said notification), only a candidate
sponsored by a "party" mentioned in List A, would choose, and be allotted
the said symbol. In so far as SAD (Badal) is concerned, the symbol allotted
was "bucket". As regards SAD (Delhi), the symbol allotted was a "Car".
The notification further stipulated that candidates who were not sponsored
by a "party", were free to choose what it termed as "free symbols", set out in
list B incorporated therein.
WP(C) 1074/2012 & 936/2012 Page 13 of 21
(ii) The notification dated 30.11.2006, was issued by respondent no. 1, in
continuation of its earlier notification dated 08.10.1999 and in partial
modification of, yet another notification dated 08.05.2002. By this
notification, once again, in exercise of powers under the Unamended Rule
14, it was specified that the symbol "candle" was reserved as the symbol
qua candidates sponsored by SAD (Panthak) for election of members to the
Management Committee.
(iii) None of these notifications have been challenged in any proceedings.
(iv) The order dated 06.06.2012, merely makes a reference to the two
notifications and records, as a matter of fact in its first recital, that the
symbols referred to therein have been allotted to SAD (Badal), SAD (Delhi)
and SAD (Panthak), and thereafter, goes on to refer to the free symbols,
which were available for the ensuing elections.
17. The argument of the petitioners based on the language in the first
recital to the effect that : "reserved symbols have been allotted to the
following recognized religious parties candidate(s) of Delhi under Rule 14
of DSGMC (Election of Members) Rules 1974 for Election of Members to
the SDGMC vide Delhi Gazette Notification dated 08.11.1999 and 30 th
November 2006" is as a matter of fact contrary to the wordings of the two
notifications, which use the term "party" as against "recognized religious
party".
17.1 Notwithstanding the above, the argument advanced by Messers
Mishra and Baljit Singh that under the Unamended Rule 14 election symbol
could be allotted only to candidates and not to parties, is met by respondents
1 and 2, by referring to the language of the two notifications which speaks
of allotment of symbols to the candidates sponsored by the parties referred
to in List A of notification dated 08.10.1999.
WP(C) 1074/2012 & 936/2012 Page 14 of 21
17.2 As noticed by me hereinabove, Mr Nanda learned counsel for
respondent no. 1 and 2 submitted that Unamended Rule 14, which provided
for allotment of election symbol to a candidate, was required to be read as
candidates, which were sponsored by a Group or an Association of Persons.
If the meaning, as placed by respondent nos. 1 and 2 is accepted, which is
perhaps one of the ways of resolving the confusion created by none other
than respondent nos. 1 and 2 by using inappropriate language in the order
dated 06.02.2012, then, in my opinion, no fault can be found with the
allotment of reserved election symbols to SAD (Badal), SAD (Delhi) and
SAD (Panthak).
17.3 If, however, this argument is accepted qua the aforementioned
parties, then, quite logically it would have to be accepted qua DSS, i.e., the
petitioner in WP(C) 936/2012. The reasons for the same are as follows.
17.4 DSS was registered as a society, on 26.03.2009. This fact also
stands recognized by respondent no. 1 vide its communication dated
09.01.2012 issued in response to an RTI query by DSS.
17.5 As a matter of fact, the communication dated 09.01.2012, recognizes
the fact that the DSS stood registered as a society under the 1860 Act, one
year before the expiry of the term of the incumbent Management
Committee. This aspect is relevant in so far as DSS is concerned even qua
the applicability of the Amended Rule 14. I would discuss the same, a little
later, in the latter part of my judgment.
17.6. In so far as the Unamended Rule is concerned, the same would be
applicable to DSS as it had filed an application with respondent no. 1,
admittedly, on 22.04.2009, much prior to the notification dated 28.07.2010,
whereby Rule 14 was amended. The submission of Mr Nanda that the said
application was kept pending as there were no elections around the corner,
WP(C) 1074/2012 & 936/2012 Page 15 of 21
cannot be an answer to the issue as to whether DSS should be governed by
the Unamended Rule 14 or, its amended version. From the facts, as
detailed out above, it is quite obvious that, since respondent nos. 1 and 2
had not disposed of the application of DSS, as is evident from their
communication dated 19.06.2009, I have no doubt in my mind that
application of DSS had to be governed by the Unamended Rule 14. If the
Unamended Rule 14 is applied to DSS, then like, SAD (Badal), SAD
(Delhi) and SAD (Panthak), it should have also been treated as a Group or
an Association of Person, and accordingly, allotted a reserved symbol.
18. Apart from the above, in my view, DSS was entitled to the symbol
even if Amended Rule 14 is made applicable to it. For this purpose, the
relevant parts of the Unamended Rule 14 and its amended version are
extracted hereinbelow for the sake of convenience :
UNAMENDED RULE 14
"14. Symbols: - (i) The Director shall, by notification in
the Delhi Gazette, specify the symbols that may be
chosen by candidates at elections and the restrictions to
which their choice shall be subject.
(2) Where at any such election, more nomination papers
than one are delivered by or on behalf of a candidate, the
declaration as to symbols, made in the nomination paper
first delivered, and no other declaration as to symbols,
shall be taken into consideration under Rule 21 even if
that nomination paper has been rejected."
(emphasis supplied)
AMENDED RULE 14
"...14 Symbols: -
xxxx
xxxx
(3) the Director may, by notification in the Delhi
Gazette, recognize the religious parties fulfilling the
conditions for allotment of reserved symbols to be
WP(C) 1074/2012 & 936/2012 Page 16 of 21
allotted to a candidate at elections set up by the said
religious parties, subject to the following conditions,
namely: -
(a) the religious party should be a registered society
under the Societies Registration Act, 1860 at least one
year before the date of expiry of the term of the Delhi
Sikh Gurdwaras Management Committee.
xxxx
xxxx
(d) for recognition of a new religious party, the party
should be registered under the Societies Registration Act,
1860 and have at least two elected members of the Delhi
Sikh Gurdwaras Management Committee as its
members...."
(emphasis supplied)
18.1. It is quite clear, that the term religious party, for the first time, was
introduced in the Amended Rule 14 as against the term candidate in the
Unamended Rule. The petitioner, quite clearly makes an averment, in the
very first paragraph of the petition that it is a "religious society". It is also
not in dispute that the petitioner was registered under the 1860 Act, on
26.03.2009. The fact that elections to the Management Committee were
held in January, 2007 and its term of four years would ordinarily come to an
end on 09.02.2011, from the date of the first meeting held on 09.02.2007,
was not disputed before me. At least no arguments were made refuting the
said submission.
18.2 Therefore, DSS clearly fulfills the condition stipulated in the
amended Rule 14(3)(a), in as much as, it was registered under the 1860 Act,
on 26.03.2009, which is prior to "at least one year before the expiry of the
term of the incumbent Management Committee". The one year period as
per amended Rule 14(3)(a) would subsist between February, 2010 and
WP(C) 1074/2012 & 936/2012 Page 17 of 21
February, 2011, The DSS being registered on 26.03.2009, clearly fulfilled
the conditions stipulated.
18.3 The application of DSS was, however, rejected on the ground that it
did not fulfill the conditions stipulated in the Amended Rule 14(3)(d). In
my opinion, the said condition would not apply to a religious party which
had been registered under the 1860 Act prior to the amended Rule coming
into force. The difference in the language used in the two sub-clauses (a)
and (d) makes this quite clear. Rule 14 (3)(a), seeks to recognize a
"religious party", which had been registered under the 1860 Act one year
before the term of the incumbent Management Committee coming to an
end.
18.4 In other words, an existing religious party, which is registered one
year before the date of expiry of the term of the incumbent Management
Committee, is not required to fulfill the other condition, which is that it
should have at least two elected members of the incumbent Management
Committee as its members. The reason for this is two-fold. First : Rule
14(3)(d) provides that for recognition of a new religious party it should
fulfill the following conditions: (i) it should be registered under the 1860
Act; and (ii) have at least two elected members of the incumbent
Management Committee as its members. The language of 14(3)(d) is
entirely different to the language used in Rule 14(3)(a) which speaks only
of: the religious party. Secondly, if Rule 14(3)(d) were to be applied to an
applicant simultaneously with Rule 14(3)(a) then, it would lead to conflict.
The reason being: Rule 14(3)(a) stipulates a period, prior to which a
religious party should be registered. The period of one year is calculated
keeping in mind the terminal date, which is the date of expiry of the term of
the Management Committee, whereas Rule 14(3)(d) requires two members
WP(C) 1074/2012 & 936/2012 Page 18 of 21
of the Management Committee to be the members of a new religious party.
If, the stand of the official respondents (i.e., respondent nos. 1 and 2) is
accepted, which is that the two elected members of the Management
Committee, who are required to be the members of the new religious party
seeking recognition, are necessarily required to be current members as
against ex-members, the condition would fail, if registration under the 1860
Act is to operate by taking into account, the date on which the Management
Committee's term expires.
18.5 In my opinion, Rule 14(3)(a) and Rule 14(3)(d) operate in separate
fields. DSS being an existing religious party, which came into existence on
26.03.2009, would have to be governed if, Amended Rule 14 is to be
applied, by conditions stipulated in Rule 14(3)(a), and not by those
stipulated in Rule 14(3)(d). Therefore, on both accounts, whether the
Unamended Rule 14 is applied or, its amended version is applied to DSS, it
ought to have been recognized and allotted a reserved symbol. The
impugned order dated 02.02.2012 qua DSS will thus, have to be set aside.
19. I may at this stage also take notice of the arguments advanced by Mr
Singh that the amended Rule goes beyond the provisions of the 1971 Act.
There is no concept of a religious party in the 1971 Act. As a matter of
fact, even the amended Rules do not define a religious party. It is not in
dispute that the Rule making power is conferred under Section 39 of the
1971 Act. The amended Rule appears to be, prima facie, beyond the scope
of the provisions of the 1971 Act. The scope of the delegated legislation,
as correctly pointed out by Mr Maninder Singh, learned senior counsel, is
encapsulated by the Supreme Court in paragraph 14 of the judgment in the
case of Bharathidasan University & Anr. The observations being relevant
are extracted hereinbelow for the sake of convenience:
WP(C) 1074/2012 & 936/2012 Page 19 of 21
"..The fact that the Regulations may have the force of law or
when made have to be laid down before the legislature concerned
does not confer any more sanctity or immunity as though they are
statutory provisions themselves. Consequently, when the power
to make regulations is confined to certain limits and made to flow
in a well-defined canal within stipulated banks, those actually
made or shown and found to be not made within its confines but
outside them, the courts are bound to ignore them when the
question of their enforcement arises and the mere fact that there
was no specific relief sought for to strike down or declare them
ultra vires, particularly when the party in sufferance is a
respondent to the lis or proceedings cannot confer any further
sanctity or authority and validity which it is shown and found to
obviously and patently lack. It would, therefore, be a myth to
state that Regulations made under Section 23 of the Act have
"constitutional" and legal status, even unmindful of the fact that
any one or more of them are found to be not consistent with
specific provisions of the Act itself. Thus, the Regulations in
question, which AICTE could not have made so as to bind
universities / UGC within the confines of the powers conferred
upon it, cannot be enforced against or bind a university in the
matter of any necessity to seek prior approval to commence a
new department or course and programme in technical education
in any university or any of its departments and constituent
institutions.."
19.1. However, having regard to the view that I have taken, I need not
necessarily rule upon the vires of the Rule in this case. The official
respondents, i.e., respondent nos. 1 and 2 will do well to deliberate upon
the Amended Rule 14 and make suitable course correction, if deemed fit.
20. In the background of what is stated by me hereinabove, I am inclined
to set aside the order dated 02.02.2012 which is impugned in WP(C)
936/2012, by DSS. Accordingly, respondent nos. 1 and 2 are directed to
recognize DSS and allot a reserved symbol to it for the elections of
members to the Management Committee. The candidates sponsored by
DSS will fight elections under the symbol so reserved for DSS. The net
WP(C) 1074/2012 & 936/2012 Page 20 of 21
result would be same whether respondent nos. 1 and 2 take recourse to the
Unamended Rule 14 as in the case of DSA(Badal), SAD (Delhi) and SAD
(Panthak), or its amended version. However, the prayer of the petitioners,
both in WP(C) 1074/2012 and WP (C) 936/2012, seeking a direction
for quashing the order dated 06.02.2011, issued by respondent no. 1, is
rejected. Resultantly, WP (C) 1074/2012 is dismissed, while WP(C)
936/2012 is allowed to the extent indicated above i.e., order bearing no.
F 1/49/2006/DGE 8463 dated 02.02.2012 is quashed. There shall, however,
be no order as to cost.
RAJIV SHAKDHER, J
DECEMBER 20, 2012
kk
WP(C) 1074/2012 & 936/2012 Page 21 of 21
|
