The Delhi High Court Thursday dismissed an appeal by the Samata Party challenging a single judge's order which had rejected its plea against allotment of the 'flaming torch' election symbol to the Uddhav Thackeray faction of the Shiv Sena.
A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad rejected the appeal by the petitioner party, which claimed that the flaming torch symbol belonged to it and that it had contested elections on it.
Earlier in October, the single judge had dismissed the petition saying that in the absence of any right demonstrable before the court, the petitioner cannot seek a mandamus for quashing the Election Commission's order and that the party has not demonstrated any right over the symbol.
It had noted that the party was de-recognised in 2004.
The petitioner, in its appeal, said that the single judge had dismissed its plea on the very first date of hearing without issuing notice to the EC, Shiv Sena and Maharashtra Chief Minister Eknath Shinde.
The petitioner assailed the October 10 order of EC on the grounds that 'flaming torch' was a "reserved" symbol and could not have been given to Shiv Sena (Uddhav Balasaheb Thackeray) without first issuing a notification that it had been made a "free" symbol.
In its plea, the petitioner stated the Samata Party was formed in 1994 by George Fernandes and Nitish Kumar as an "offshoot of the Janata Dal" and was given the 'flaming torch' symbol by the EC.
The plea stated that the petitioner was "striving to revive itself and is going to contest the upcoming elections and people have recognised the petitioner party from its symbol for more than four decades and now great prejudice would be caused to the petitioner party if the same symbol is allotted to some other party".
Advocate Kamlesh Kumar Mishra, representing the petitioner, had also informed the court that it contested the 2014 Lok Sabha election on the flaming torch symbol.
The single judge, however, had noted even if the petitioner was allotted the symbol in question in 2014, it does not give rise to a "vested right" in respect of its allotment and that the petitioner has contested under a different election symbol after that.
The Election Commission had defended the allotment and said there was no requirement under the law to issue any notification, as claimed by the petitioner, before passing the allotment order.
While dealing with the dispute between the rival factions of the Shiv Sena, the EC had on October 10 issued a communication allotting the flaming torch symbol to the Uddhav Thackeray faction for the time being.
It had said the symbol was not in the list of free symbols and was an "erstwhile reserved symbol" of the now derecognised Samata Party but it has decided to allot the same on a request to declare it a free symbol.
Shinde, the current Maharashtra chief minister and the leader of the rival Shiv Sena faction, had raised a banner of revolt against Thackeray earlier this year, accusing him of entering into an "unnatural alliance" with the Congress and the NCP.
Over 40 of the Shiv Sena's 55 MLAs had supported Shinde, forcing the resignation of Thackeray from the post of Maharashtra Chief Minister.
Following Thackeray's resignation, Shinde became the chief minister with the support of the BJP.
Twelve of the 18 Lok Sabha members of the Shiv Sena also came out in support of Shinde, who later claimed to be the leader of the original Shiv Sena.
The Andheri East bypoll, in which polling was held on Thursday, is the first after Shinde and the BJP unseated the MVA from power and formed a coalition government.
Thackeray has already approached the Delhi High Court seeking quashing of the order of the EC freezing party name Shiv Sena and its election symbol 'bow and arrow'.
