'EC free to adjudicate dispute on Shiv Sena's name, symbol,' says Delhi HC

The Delhi High Court has said that the Election Commission is free to proceed in the dispute between two rival factions of the Shiv Sena over the use of its name and symbol.

The high court's order came while disposing of an appeal by former Maharashtra chief minister Uddhav Thackeray challenging a single judge's decision dismissing his plea against an Election Commission's (EC) interim order freezing the Shiv Sena name and election symbol.

"It is pertinent to mention that the two preliminary issues which are sought to be raised by the appellant (Thackeray) are pending before the apex court...., yet the apex court... 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," a bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said in an order passed on Thursday which was made available on Friday.

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The high court said it is needless to state that the EC will proceed in accordance with the procedure followed by the commission while adjudicating a petition under... of the Election Symbols (Reservation and Allotment) Order.

The bench, which said that at this juncture it was not going into the factual issues arising in the petition, held that no further orders were required to be passed in this appeal.

While arguing the appeal, senior advocate Kapil Sibal, appearing for Thackeray, said the main grievance was with regard to an observation made by the single judge in its verdict.

The single judge had said "the petitioner has raised a jurisdictional objection regarding non-maintainability of the Dispute Petition before EC, and the court is confident that the same would be examined on its own merits by EC while rendering the final decision, notwithstanding the lack of trust exhibited by the Petitioner.”

Thackeray has filed an application before the poll panel raising two preliminary issues -- whether there is any split in the political party ie Shiv Sena and whether 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 of India.

Sibal contended that the single judge's observation will virtually inhibit the EC from taking up the application filed by Thackeray before disposing of the matter finally.

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In the appeal, Thackeray claimed that the single judge's November 15 order, by which it had also directed the EC to expedite the proceedings, is "erroneous" and liable to be set aside.

His counsel submitted that the EC did not hear him while passing the freezing of symbol order.

The single judge, in its order, had said that there was "no procedural infraction" in the EC's order freezing the Shiv Sena's name and election symbol following a "split" in the party.

It had said the commission passed the freezing order in view of urgency in respect of allotment of symbol on account of announcement of bypolls and the petitioner, who repeatedly took time to furnish necessary documents, now cannot allege violation of principles of natural justice and criticise the poll panel.

"There is a split between members of the 'Shiv Sena', a recognised political party in the state of Maharashtra. One group or faction is led by Eknathrao Sambhaji Shinde and the other by Uddhav Thackeray. Both claim to be the president of the original Shiv Sena party, and stake claim to its poll symbol of 'bow and arrow'," the single judge had noted in his order.

Thackeray, in his appeal, claimed that there was no dispute on the leadership of the party and that Maharashtra Chief Minister Eknathrao Sambhaji Shinde himself admitted that Thackeray is and continues to be the rightfully elected president of the Shiv Sena political party.

Therefore, it cannot be said that there are two rival factions of the Shiv Sena political party, he said.

On October 8, the EC had passed an interim order barring the two Shiv Sena factions from using the party's name and its election symbol in the Andheri East assembly bypoll.

The commission's order was passed on a "dispute petition" filed by Shinde.

Earlier this year, Shinde had raised a banner of revolt against Thackeray, accusing him of entering into an "unnatural alliance" with the Congress and the Nationalist Congress Party (NCP).

Over 40 of the Shiv Sena's 55 MLAs had supported Shinde, forcing Thackeray's resignation as chief minister.

Thackeray had assailed the EC interim order on several grounds, including lack of procedural fairness. It was earlier argued that the order was passed in the absence of a prima facie case in favour of the group led by Shinde.