Delhi High Court Says ECI Free To Proceed On Shiv Sena Row, Refuses To Interfere With Single Judge Order On Uddhav Thackeray's Plea

The Delhi High Court has refused to interfere with the observations made by a single judge while dismissing the plea moved by Former Maharashtra Chief Minister Uddhav Thackeray against Election Commission of India (ECI)'s decision to freeze Shiv Sena's 'bow and arrow' party symbol.

The ECI on October 8 had directed both Thackeray and Eknath Shinde's faction to not use the name "Shiv Sena" or symbol "bow and arrow" till their rival claims for the official recognition is finally decided. For the recent Andheri East bypoll, the party factions were allotted different symbols.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that the Commission will proceed in accordance with the procedure followed by it while adjudicating a petition under Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968.

Thackeray was primarily aggrieved by an observation of the single judge wherein it said that the preliminary objection regarding maintainability of "dispute petition" before the ECI would be examined by the commission on its own merits while rendering the final decision.

Senior Advocate Kapil Sibal appearing for Thackeray told the court that single bench's observation will virtually inhibit the ECI from "taking up the application filed by the appellant herein before disposing of the matter finally".

The application filed by Thackeray before the election commission raises two preliminary issues - whether there is any split in 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.

Observing that the two preliminary issues are also pending before the Supreme Court which has not granted any stay in the proceedings before commission, the court said: "Therefore, the Election Commission of India is free to proceed with the adjudication of the dispute pending before it."

Accordingly, the court disposed of the appeal in which Thackeray said that the order passed by Justice Sanjeev Narula on November 15 was erroneous and liable to be set aside.

While dismissing the plea, Justice Narula had directed the ECI to adjudicate the pending dispute as expeditiously as possible, keeping in view the interest of both the parties and also the public.

The court had said that the ECI took note of the urgency qua allotment of symbols owing to announcement of schedule of bye-elections and made the directions for freezing.

"Therefore, the Court does not find any procedural infraction on the part of ECI in taking such a view. Petitioner, who repeatedly took time before ECI for furnishing necessary documents, cannot now turn around and allege violation of principles of natural justice and criticise ECI," the court had observed.

Senior Advocates Kapil Sibal and Devadatt Kamat, appeared for Uddhav Thackeray. 

Senior Advocates Rajiv Nayar, Mahesh Jethmalani, Maninder Singh along with Advocates Chirag Shah, Utsav Trivedi, Himanshu Sachdeva and Manini Roy appeared for Eknath Shinde.

Title: UDDHAV THACKERAY v. THE ELECTION COMMISSION OF INDIA & ANR

Citation: 2022 LiveLaw (Del) 1183

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