SUSHIL KUMAR DHARA Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) This petition was filed by Shri Sushil Kumar Dhara claiming himself as General Secretary of Bangla Congress, Rajya Committee, No. 2, Basanta Bose Road, Calcutta-26. At the time of issue of the Rule, a leave under Order 1, Rule 8 of the Code of Civil Procedure was granted to the petitioner to prosecute the petition on behalf of and for the benefit of all the members of Bangla Congress. In pursuance thereof notices were published. Purnendu Narayan Khan and six others made an application for being added as petitioners. Let the said persons be added as petitioners.

(2.) In May 1965, Bangla Congress was formed as a political party. In the general election 1967, candidates set up by Bangla Congress had contested with free Symbols. In the mid-term General Election to West Bengal Legislative Assembly held in the year 1969, the Election Commission recognised Bangla Congress as a State political party and had allotted symbol "Plough" for the candidates set up by Bangla Congress. On 25th January, 1971, the Election Commission issued a notification in pursuance of paragraph 17 of the Election (Symbols Reservation and Allotment) Order, 1968, and in supersession of the previous notification specified the names of National parties and State parties and the symbols respectively reserved for them and also the free symbols for each State. In table 2 of the said notification, Bangla Congress was mentioned as a State party with "plough" allotted as its symbol. In the Mid-term General Election to West Bengal Legislative Assembly held in March 1971, five of the candidates set up by Bangla Congress were elected. According to the petitioner the total number of valid votes polled by all the contesting candidates set up by Bangla Congress at the said general election held in 1971, was 6,86,358 which was about 5.18 per cent of the total votes polled. The Governor of West Bengal by an order under Article 174 (2) (b) of the Constitution dated 25th of June, 1971, dissolved the West Bengal Legislative Assembly. On 29th June, 1971, the President of India in exercise of the powers conferred on him by Article 356 of the Constitution, issued a proclamation assuming to himself all the functions of the Government of the State and all the powers vested in or exercisable by the Governor of the State as mentioned in the said proclamation.

(3.) On 25th May, 1971, Shri Sushil Kumar Dhara issued a notice for holding of a meeting of the Rajya Karma Parishad of Bangla Congress on 5th June, 1971 in the office of the Rajya Committee at No. 2, Basanta Bose Road. Calcutta. The petitions has alleged in paragraph 6 of the petition that at a meeting held on 5th of June, 1971, a section of the members of Bangla Congress led by Sri Ajay Kumar Mukherjee left the said party and thereafter pretended to start a new office at No. 180, Bidhan Sarani. Calcutta, also naming it Bangla Congress. According to the petitioner, in or about December, 1971 Sri Ajay Kumar Mukherjee and his followers joined the ruling Congress party merging themselves with the Congress (R). The petitioner has alleged in paragraph 7 of the petition that on 5th of June, 1971, the Bangla Congress having its office at No. 1, Basanta Bose Road, Calcutta, held a meeting and elected an acting president. Thereafter the president of the said party was duly elected in a State Convention held on 7th and 8th of August 1971. In the paragraph 6 of the affidavit-in-opposition on behalf of respondents 1 and 2 affirmed by Sri Adi Nath Sen it his been stated that the petitioner Sri Sushil Kumar Dhara had tendered his resignation from the post of General Secretary of the erstwhile Bangla Congress which was accepted by a resolution dated 5th of June, 1971 passed by the executive committee of the State Bangla Congress. It further appeared that later on the petitioner Sri Sushil Kumar Dhara was expelled from the said party with effect from 25th August, 1971. The respondents have disputed the locus standi of Sri Sushil Dhara to act as the General Secretary of the Bangla Congress and to make the present petition. It is however, not necessary for me to determine which version is correct as I am of the view that this Rule is liable to fail on a preliminary ground,