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CASE NO.:

Appeal (civil) 4093 of 2004

PETITIONER:

SATHI VIJAY KUMAR

RESPONDENT:

TOTA SINGH & OTHERS

DATE OF JUDGMENT: 08/12/2006

BENCH:

CJI Y.K. SABHARWAL,C.K. THAKKER & R.V. RAVEENDRAN

JUDGMENT:

JUDGMENT

WITH

CIVIL APPEAL Nos. 5999-6000 OF 2004

C.K. THAKKER, J.

All these appeals have been instituted by the

aggrieved appellants against separate orders passed by

the High Court of Punjab & Haryana at Chandigarh.

To appreciate the issues raised in the present

appeals, relevant facts may be stated in brief.

Sathi Vijay Kumar, appellant in Civil Appeal No.

4093 of 2004 was a candidate in the general election of

the Punjab Constituent Assembly from 99, Moga

Constituency scheduled to be held in February, 2002.

According to the appellant, the Election Commission of

India issued a notification for holding election in the

State of Punjab. The last date for filing nomination

papers as per the programme was January 23, 2002.

The appellant filed his nomination paper as a candidate

of the Indian National Congress whereas Tota Singh,

respondent No.1 was the candidate set up by Shiromani

Akali Dal (Badal). The nomination papers were

scrutinized on January 24, 2002. The last date for

withdrawal of candidature was January 28, 2002. Polling

took place on February 13, 2002. Votes were counted on

February 24, 2002 and the results were also declared on

the same day. The appellant secured 42,275 votes, while

respondent No.1 secured 42,579 votes. Thus, there was

a difference of 304 votes. Accordingly, the first

respondent was declared as successful candidate.

On April 8, 2002, the appellant filed a petition

being Election Petition No. 13 of 2002 in the High Court

of Punjab & Haryana at Chandigarh challenging the

election of the first respondent, inter alia, on the ground

of corrupt practice. Likewise, one Rampal Dhawan also

filed a petition being Election Petition No. 4 of 2002

against the first respondent. So far as Election Petition

No. 13 is concerned, the election petitioner (appellant

herein) alleged that the first respondent had committed

several irregularities and illegalities and at his instance,

the authorities had indulged in committing such

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illegalities to favour the first respondent and increased

chances of his being declared as returned candidate and

thereby the first respondent got elected by committing

corrupt practice. It is also the allegation of the election

petitioner that those illegalities and irregularities had

materially affected the result and the election of the

returned candidate was required to be declared void

under the provisions of the Representation of the People

Act, 1951 (hereinafter referred to as 'the Act') read with

the Conduct of the Election Rules, 1961 (hereinafter

referred to as 'the Rules'). Similar was the case of the

election petitioner in Election Petition No. 4 of 2004. He

also prayed to set aside the election of the successful

candidate-respondent No.1 herein.

The first respondent filed written statement, inter

alia, contending that election petitions filed by the

petitioners were not maintainable at law and were liable

to be dismissed at the threshold. It was contended that

necessary parties who were required to be joined in the

election petitions were not joined inasmuch as Brijinder

Singh had filed nomination form which had been

scrutinized and had been accepted after such scrutiny

had not been joined as party respondent. In absence of

Brijinder Singh in the election petition as one of the

respondents, the petitions were liable to be rejected. It

was also contended that since allegations of corrupt

practice had been levelled against Brijinder Singh, it was

obligatory on the election petitioners to make him a

party-respondent which was not done. The said defect

was of a fundamental nature and the petitions could not

be entertained by the High Court.

In respect of Election Petition No. 13 of 2004, it was

further contended by the first respondent that the

petition was liable to be dismissed on the ground that it

did not disclose cause of action. Material facts and full

particulars as required by the Act had not been set out

in the election petition which went to the root of the

matter requiring the dismissal of the petition. It was also

the case of the first respondent that pleadings in certain

paragraphs were vague, unnecessary, frivolous or

vexatious which would tend to prejudice, embarrass or

delay fair trial of the election petition and were otherwise

an abuse of process of the Court and, therefore, they

were required to be deleted.

Replication was filed by the petitioner denying the

averments made by the first respondent in his written

statement and reiterating that material facts and full

particulars had been given in the petition. Allegations

were specific and positive, several illegalities and

irregularities had been committed and result of the

election had been materially affected. It was, therefore,

submitted that the election petition was required to be

decided in accordance with law on merits.

The High Court, on January 13, 2003 framed as

many as twelve issues in Election Petition No.13 of 2004.

Since we are concerned in the present appeals only with

regard to preliminary issues, as the High Court decided

the petition on those issues, we are not considering the

issues other than preliminary issues dealt with and

decided by the High Court. Preliminary issues were issue

Nos. 1 to 6 and they were as under;

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1. Whether the election petition is liable to

be dismissed under Section 86(1) of the

Representation of People Act, 1951 for

non joinder of Brijinder Singh, a

candidate in the said election as the

respondent in the election petition?

2. Whether paragraphs 7, 8, 9, 12 and 14

are vague, do not constituency illegality

and irregularity and do no disclose any

cause of action and triable issue and as

such are liable to be struck off from the

pleading?

3. Whether paragraph 10, 13 alongwith

sub paras alleging corrupt practices are

vague, deficient in material facts and are

liable to be struck off from the

pleadings?

4. Whether paragraph 11 alongwith its sub

paras are vague, deficient in material

facts and are liable to be struck off from

the pleadings?

5. Whether paragraphs 15 to 17 are vague,

do not disclose any cause of action and

triable issue and are liable to be struck

off from the pleadings, if so to what

effect?

6. Whether the petition is liable to be

dismissed if the issue No.1 to 5 are

decided in favour of the respondent

No.1?

The High Court heard the learned counsel for the

parties on the above issues. As to issue No.1 regarding

joining of Brijinder Singh as party-respondent in both

the election petitions, the High Court held that non-

joinder of Brijinder Singh as party respondent could not

be held to be fatal and the election petitions could not be

dismissed on that ground inasmuch as Brijinder Singh

was a 'substitute' candidate set up by the same political

party i.e., Shiromani Akali Dal (Badal) which had set up

Tota Singh-first respondent, whose nomination paper

had been accepted after scrutiny. Brijinder Singh, was

the son of Tota Singh. He had withdrawn his

candidature on the date of withdrawal after the

nomination paper of his father was accepted as a

candidate belonged to Shiromani Akali Dal (Badal). The

said order was passed by the High Court on May 2,

2003. Against the said order, the returned candidate

Tota Singh has filed two appeals (Civil Appeal Nos. 5999

and 6000 of 2004). We will deal with the said matters at

an appropriate stage.

The Court then considered issue Nos. 2 to 5 and

concluded in issue No.6 that considering the pleadings of

the parties and in the light of the statutory provisions as

well as the law laid down by this Court, paragraphs 12,

13(a), 11 and 17 forming subject matter of issues 2, 3, 4

and 5 were liable to be struck out from pleadings.

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Accordingly, an order was passed on February 27, 2004

striking out pleadings. In Civil Appeal No. 4039 of 2004,

the election petitioner of Election Petition No. 13 of 2002

has challenged the said order.

On July 12, 2004, leave was granted by this Court,

printing was dispensed with and appeal was ordered to

be heard on SLP paper book. Time was granted to file

additional documents. In the meanwhile, two SLPs were

filed by the returned candidate against a finding

recorded against him on Preliminary Issue No.1. The

present appeal was ordered to be heard along with those

SLPs which were also admitted by granting leave on

September 10, 2004 (Civil Appeal Nos.5999 and 6000 of

2004).

We have heard the learned counsel for the parties.

In Civil Appeal No. 4093 of 2004, it was contended by

the learned counsel for the appellant that the High Court

committed an error of law in striking out pleadings in

paragraphs 12, 13(a), 11 and 17. He submitted that

material facts and particulars had been stated in the

election petition in the said paras. Pleadings were

express and specific on the point disclosing cause of

action and raising triable issues. They could neither be

said to be vague, embarrassing, vexatious, frivolous or

unnecessary and could not have been struck off. It was

also stated that full details have been set out in the

election petition itself as to how illegalities had been

committed by the returned candidate and the election

authorities had obliged him by increasing his chances to

get elected. It was also alleged in the petition that

illegalities committed by the first respondent materially

affected the result of the election. But for such

illegalities, the election petitioner would have been

elected. Regarding corrupt practice, sufficient particulars

have been stated in the petition. The High Court was

wholly wrong in ordering striking off certain paragraphs.

The appeal, therefore, deserves to be allowed by setting

aside the order of the High Court and by directing the

Court to consider the allegations levelled by the

appellant in the election petition and to decide the

petition on merits in accordance with law.

So far as the non-joinder of Brijinder Singh as party

respondent is concerned, it was submitted by the

learned counsel that the High Court was wholly justified

in rejecting the contention of the returned candidate in

view of the fact that Brijinder Singh was a 'substitute'

candidate of the same party to which the returned

candidate belonged and as soon as nomination paper of

Tota Singh was accepted after scrutiny and the said

political party was represented through Tota Singh,

Brijinder Singh could not be said to be a candidate

belonged to the said political party and the petition could

not have been dismissed on that ground.

The learned counsel for the first respondent, on the

other hand, supported the order passed by the High

Court on the reasoning and conclusions on issue Nos. 2

to 6. He submitted that material facts and full

particulars as required by the Act, had not been stated

with sufficient precision. According to the counsel,

vague, unnecessary and vexatious averments have been

made which were not in consonance with the provisions

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of Order VI, Rule 16 of the Code of Civil Procedure, 1908

(hereinafter referred to as 'the Code'). The Court minutely

considered the pleadings keeping in view the relevant

decisions and finally came to the conclusion that certain

paragraphs were required to be struck off. Such an order

could not be said to be illegal or contrary to law

requiring interference by this Court. He, therefore,

submitted that the appeal filed by the election petitioner

was liable to be dismissed.

Regarding appeals against preliminary issue No.1,

it was submitted by the counsel that the High Court was

wrong in rejecting the preliminary objection raised by the

returned candidate. According to the counsel, once the

nomination papers were scrutinized and the nomination

paper of Brijinder Singh was found to be in order and

was accepted, the High Court could not have held that

Brijinder Singh was not a candidate at the election as he

was a 'substitute' candidate and non-joinder of Brijinder

Singh was immaterial. Even if it is assumed that

acceptance of nomination paper of Brijinder Singh was

not in accordance with law, the fact could not be ignored

that such nomination paper had been accepted by the

Returning Officer. Once it was done, other questions as

to whether he was a candidate belonged to the same

party or was a substitute or was son of the appellant or

the fact that he subsequently withdrew his nomination

paper were totally immaterial and irrelevant as far as the

maintainability of election petitions were concerned.

Since the High Court decided issue No.1 against the

returned candidate which was not in accordance with

law, the order deserves to be set aside by allowing the

appeals of the first respondent holding both the election

petitions not maintainable.

Before we deal with the contentions of the parties,

it would be appropriate to consider the relevant

provisions of the Act. Part I is Preliminary. Part II deals

with qualifications and disqualifications for membership

of Parliament and of State Legislatures. While Part III

provides for issuance of notifications for elections, Part

IV relates to administrative machinery for the conduct of

elections. Conduct of elections has been dealt with in

Part V. Section 30 requires the Election Commission to

issue a notification in the Official Gazette fixing the last

date for making nominations, the date for scrutiny of

nominations, the last day for the withdrawal of

candidatures, the date or dates of poll and the date

before which the election should be completed.

Section 33 provides for presentation of nomination

paper and requirement for a valid nomination, the

relevant part thereof reads thus;

33. Presentation of nomination paper and

requirements for a valid nomination.\027(1)

On or before the date appointed under clause

(a) of Section 30 each candidate shall, either

in person or by his proposer, between the

hours of eleven O'clock in the forenoon and

three O'clock in the afternoon deliver to the

returning officer at the place specified in this

behalf in the notice issued under Section 31,

a nomination paper completed in the

prescribed form and signed by the candidate

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and by an elector of the constituency as

proposer:

Provided that a candidate not set up by a

recognized political party, shall not be deemed

to be duly nominated for election from a

constituency unless the nomination paper is

subscribed by ten proposers being electors of

the constituency.

\005 \005 \005 \005 \005 \005 \005

Section 36 relates to scrutiny of nomination. It

requires the Returning Officer to examine nomination

papers and to decide all objections which may be made

to any nomination. It also empowers him either on

objection being taken or suo motu, after such summary

inquiry, if any, as he thinks necessary, to reject any

nomination, inter alia on the ground that there has been

a failure to comply with any of the provisions of Section

33.

Sub-section (8) of Section 36 then provides;

"(8) Immediately after all the nomination

papers have been scrutinized and decisions

accepting or rejecting the same have been

recorded, the returning officer shall prepare a

list of validly nominated Candidates, that is to

say, candidates whose nominations have been

found valid, and affix it to his notice board.

Section 37 allows withdrawal of candidature.

Section 38 directs the Returning Officer to prepare and

publish a list of contesting candidates.

Part VI relates to 'Disputes regarding elections'.

Section 79 defines certain expressions, including

'candidate' to mean "a person who has been or claims to

have been duly nominated as a candidate at any

election". Section 80 requires any election to be

questioned only by way of election petition. Under

Section 80A, it is the High Court which can try election

petitions. Section 81 provides for presentation of election

petition and prescribes the period of limitation.

Section 82 declares as to who shall be joined as

respondents to such election petition. The said section

reads thus;

"82. Parties to the petition.\027A petitioner

shall join as respondents to his petition-

(a) where the petitioner, in addition to

claiming a declaration that the election of

all or any of the returned candidates is void,

claims a further declaration that he

himself or any other candidate has been duly

elected, all the contesting candidates other

than the petitioner, and where no such

further declaration is claimed, all the

returned candidates ; and

(b) any other candidate against whom

allegations of any corrupt practice are made

in the petition."

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Section 83 deals with contents of petition. It is also a

material provision and may be reproduced;

"83. Contents of petition. (1) An Election

petition (a) shall contain a concise statement

of the material facts on which the petitioner

relies;

(b) shall set forth full particulars of any

corrupt practice that the petitioner alleges

including as full a statement as possible of

the names of the parties alleged to have

committed such corrupt practice and the date

and place of the commission of each such

practice; and

(c) shall be signed by the petitioner and

verified in the manner laid down in the Code

of Civil Procedure, 1908 (5 of 1908) for the

verification of pleadings: provided that where

the petitioner alleges any corrupt practice, the

petition shall also be accompanied by an

affidavit in the prescribed form in support of

the allegation of such corrupt practice and

the particulars thereof.

(2) Any schedule or annexure to the petition

shall also be signed by the petitioner and

verified in the same manner as the petition."

Section 100 enumerates the grounds on which

election of a returned candidate may be challenged and

declared void. Commission of corrupt practice is one of

the grounds for declaring an election void. Section 123

declares certain practices as "deemed to be corrupt

practices". The material part of the section reads thus;--

123. Corrupt practices. The following shall be

deemed to be corrupt practices for the purposes

of this Act:

(1) to (6) \005

(7) The obtaining or procuring or abetting or

attempting to obtain or procure by a candidate

or his agent or, by any other person with the

consent of a candidate or his election agent,

any assistance (other than the giving of vote) for

the furtherance of the prospects of that

candidate's election, from any person in the

service of the Government and belonging to

any of the following classes, namely:-

(a) gazetted officers;

(b) to (g) \005 \005

Sub-Section (8) of Section 123 relates to booth

capturing which is an offence punishable under Section

135-A of the Act.

Now it is true that the Act does not make any

provision as to striking out pleadings. Section 83 of the

Act mandates that every election petition should contain

concise statement of material facts and set forth full

particulars of any corrupt practice that the petitioner

alleges. Section 86 requires the High Court to dismiss an

election petition which does not comply with the

provisions of Section 81 (petition barred by limitation), or

Section 82 (non joinder of parties) or Section 117 (failure

to deposit security for costs). But as held by this Court

in several cases, Section 86 is not exhaustive as to the

grounds of dismissal of an election petition in limine.

Moreover, the provisions of the Code have been made

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applicable to the trial of election petitions by virtue of

Section 87 of the Act. A number of election petitions

were, therefore, dismissed on the ground that they did

not disclose cause of action as required by Order VII,

Rule 11 of the Code. So far as striking out pleadings is

concerned, the provision is found in Rule 16 of Order VI

which reads thus:

16. Striking out pleadings.\027The Court may

at any stage of the proceedings order to be

struck out or amended any matter in any

pleading\027

(a) which may be unnecessary, scandalous,

frivolous or vexatious, or

(b) which may tend to prejudice, embarrass

or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the

process of the Court.

The above provision empowers a Court to strike

out any pleading if it is unnecessary, scandalous,

frivolous or vexatious or tend to prejudice, embarrass

or delay fair trial of the suit or is otherwise an abuse of

the process of the Court. The underlying object of the

rule is to ensure that every party to a suit should

present his pleading in an intelligible form without

causing embarrassment to his adversary [vide Davy v.

Garrett, (1878) 7 Ch D 473 : 47 LJ Ch 218].

Bare reading of Rule 16 of Order VI makes it clear

that the Court may order striking off pleadings in the

following circumstances;

(i) Where such pleading is unnecessary,

scandalous, frivolous or vexatious; or

(b) Where such pleading tends to prejudice,

embarrass or delay fair trial of the suit; or

(c) Where such pleading is otherwise an

abuse of the process of the Court.

In Halsbury's Laws of England, (4th Edn.; Vol. 9;

para 38), it has been stated:

"Certain acts of a lesser nature may also

constitute an abuse of process as, for

instance, initiating or carrying on proceedings

which are wanting in bona fides or which are

frivolous, vexatious, a oppressive. In such

cases the court has extensive alternative

powers to prevent an abuse of its process by

striking out or staying proceedings or by

prohibiting the taking of further proceedings

without leave. Where the court by exercising

its statutory powers, its powers under rules of

court, or its inherent jurisdiction, can give an

adequate remedy, it will not in general punish

the abuse as a adequate of court. On the

other hand, where an irregularity or misuse of

process amounts to an offence against justice,

extending its influence beyond the parties to

the action, it may be punished as a

contempt".

In Supreme Court Practice, 1995, p.344 (Sweet &

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Maxwell), it has been observed;

"This term connotes that the process of

the court must be used bona fide and

properly and must not be abused. The court

will prevent improper use of its machinery

and will, in a proper case, summarily prevent

its machinery from being used as a means of

vexation and oppression in the process of

litigation\005 The categories of conduct

rendering a claim frivolous, vexatious or an

abuse of process are not closed but depend on

all the relevant circumstances. And for this

purpose considerations of public policy and

the interests of justice may be very material".

Since the general principles as to pleadings in civil

suits apply to election petitions as well, the pleadings

which are required to be struck off under Rule 16 of

Order VI in a suit can also be ordered to be struck off in

an election petition. In appropriate cases, therefore, an

election tribunal (High Court) may invoke the power

under Order VI, Rule 16 of the Code.

This Court in Azhar Hussain v. Rajiv Gandhi,

(1986) Supp SCC 315 indicated that the whole purpose

of conferment of such powers i.e. either to dismiss

election petitions in limine or striking out unnecessary,

scandalous, frivolous or vexatious pleadings is to ensure

that a litigation which is meaningless and bound to

prove abortive should not be permitted to occupy the

time of the court and does not embarrass the returned

candidate. "The sword of Damocles need not be kept

hanging over his head unnecessarily without point or

purpose". It was also observed that such hanging sword

of the election petition on the returned candidate would

not keep him sufficiently free to devote his whole-hearted

attention to matters of public importance which clamour

for his attention in his capacity as an elected

representative of the concerned constituency. The

precious time and attention demanded by his elected

office would be diverted to matters pertaining to the

contest of the election petition. Instead of being engaged

in a campaign to relieve the distress of the people in

general and of the residents of his constituency who

voted him into office in particular, and instead of

resolving their problems, he would be engaged in

defending himself in the litigation pending against him.

The fact that an election petition calling into question his

election is pending, may, in a given case, act as a

psychological factor and may not permit him to act with

full freedom. The Court, in these circumstances, may

exercise the power of striking out pleadings in

appropriate cases if it is warranted in the facts and

circumstances of the case.

At the same time, however, it cannot be overlooked

that normally a Court cannot direct parties as to how

they should prepare their pleadings. If the parties have

not offended the rules of pleadings by making averments

or raising arguable issues, the Court would not order

striking out pleadings. The power to strike out pleadings

is extraordinary in nature and must be exercised by the

Court sparingly and with extreme care, caution and

circumspection [vide Roop Lal v. Nachhatar Singh, (1982)

3 SCC 487 : AIR 1982 SC 1559; K.K. Modi v. K.N. Modi,

(1998) 3 SCC 573 : AIR 1998 SC 1297; United Bank of

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India v. Naresh Kumar, (1996) 6 SCC 660 : AIR 1997 SC

3].

More than a century back, in Knowles v. Roberts,

(1888) 38 Ch D 263, Bowen L.J. said:

"It seems to me that the rule that the

Court is not to dictate to parties how they

should frame their case, is one that ought

always to be preserved sacred. But that rule

is, of course, subject to this modification and

limitation, that the parties must not offend

against the rules of pleading which have been

laid down by the law; and if a party

introduces a pleading which is unnecessary,

and it tends to prejudice, embarrass and

delay the trial of the action, it then becomes a

pleading which is beyond his right. It is a

recognized principle that a defendant may

claim ex debito justitiae to have the plaintiff's

claim presented in an intelligible form, so that

he may not be embarrassed in meeting it; and

the Court ought to be strict even to severity in

taking care to prevent pleadings from

degenerating into the old oppressive pleadings

of the Court of Chancery".

In the case on hand, in our opinion, the election

petitioner has stated in his election petition all material

facts disclosing the cause of action. The High Court has

also not dismissed the petition on the ground that it did

not disclose the cause of action as required by Section

83 of the Act read with Order VII, Rule 11 of the Code.

While considering issue Nos. 2 to 5, the High Court held

that pleadings in paragraphs 12, 13(a), 11 and 17 were

required to be struck off being unnecessary and tend to

cause delay in disposal of the election petition. It is,

therefore, necessary to consider as to whether the High

Court was right in coming to the said conclusion.

In paragraph 12, the election petitioner has alleged

that names of several electors were deleted on the date of

polling "without there being any order of the Electoral

Registration Officer". According to the election petitioner,

the said fact came to the notice of the petitioner on the

date of polling when many electors who had gone to cast

their votes had to come back as their names were deleted

from the electoral rolls. The petitioner has also averred

that he made an application for supply of copies of the

orders on March 7, 2002 and again prayed for inspection

of record on March 9, 2002 but neither copies were

supplied nor inspection was permitted. According to the

petitioner, his doubts got confirmed that "a mischief on

large scale has been done in the electoral rolls". The

petitioner, however, persisted with his efforts and it was

only after the orders of the District Magistrate that some

copies of the orders pertaining to the deletion of voters

were supplied to him. They related to 586 electors whose

names and other details were given in Schedule 'A'

annexed to the petition. According to the petitioner,

deletion of the names clearly showed that there were no

orders in existence on the date of the poll or even at the

time of filing of nomination papers and those electors

were "wrongly denied" the right to vote. It, according to

the petitioner, amounted to wrongful refusal of votes.

The petitioner then stated; "Since the margin by

which the respondent No.1 has been declared elected is

only 305, this refusal has resulted in materially affecting

the result of the election in so far as the respondent is

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concerned". The petitioner also stated that a newspaper

'Dainik Bhaskar' which came to know about the fact,

reported that officers were trying to cover their illegalities

committed in connection with the deletion and addition

of electors in the electoral roll of 99-Moga Assembly

Constituency. The copies of the orders supplied to the

petitioner clearly established that fact.

The first respondent contended that the allegations

in paragraph 12 did not constitute "any triable issue"

and did not "disclose any cause of action" and it was

unnecessarily incorporated to prejudice, embarrass or

delay the fair trial of the petition. It was, therefore,

required to be struck off under Order VI, Rule 16 of the

Code.

The High Court considered the question and held

that the petitioner no doubt alleged that the names of

many existing voters were deleted without there being

any order of the Electoral Registration Officer. It also

noted that in the Schedule 'A' attached to the election

petition, the names of 586 electorals were mentioned

which contained reasons for the deletion; such as, death,

marriage, shifting, etc. The High Court, thereafter,

surprisingly observed; "There is no whisper in respect of

any of the voter having been wrongly deleted inasmuch

as it has not been alleged that such voter is alive but his

name has been wrongly deleted or that particular person

is still residing in the village but his vote has been

deleted". The High Court proceeded to observe that even

if the argument of the petitioner that the deletion of

these voters furnished a cause of action to the petitioner

under Section 100(1)(d)(iii) is accepted, still it was

incumbent upon the petitioner to plead that names of

voters mentioned in Schedule 'A' have been deleted on

account of non-existent reason. According to the High

Court, it was not enough for the petitioner to state that

the names of the electorals mentioned in Schedule 'A'

had been "wrongly deleted".

The High Court further stated that it was not

enough for the petitioner to show that the names of

electorals were wrongly deleted but reasons were

required to be pleaded by the petitioner with sufficient

exactitude. The allegations of the petitioner that the

names have been deleted by ante-dating the record

would not sufficiently disclose the material particulars.

The allegation regarding antedating the electoral rolls

was incomplete and vague. According to the High

Court, the averments in para No.12 of the election

petition would only delay the trial and they were

unnecessary for the purpose of decision of the election

petition. Para 12 was, therefore, ordered to be struck

out.

We fail to appreciate the reasoning as also the

conclusion arrived at by the High Court. When the

election petitioner has expressly stated that names of as

many as 586 electors had been deleted wrongly and the

entire list of those electors had been placed on record as

Schedule 'A', by no stretch of imagination, it can be said

that the allegation was vague or incomplete. We have

seen the original record containing Schedule 'A' to the

election petition, wherein sufficient particulars as to

serial number, house number, name of voters, sex, age,

remarks etc., have been mentioned. We also fail to

understand the observation of the High Court that it was

not sufficient to allege that the names have been wrongly

deleted and "one or the other reasons" must be pleaded

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by the petitioner for such deletion. The action of deletion

was not taken by the petitioner. His grievance was that

the said 586 names were already in the voters' list and

were wrongly deleted. What was contended by the

petitioner was that their names could not have been

deleted and the action was illegal and contrary to law. In

fact, he wanted to know the grounds/reasons as to why

the names had been deleted. He prayed for supply of

copies of the orders on March 7, 2002 and again for

inspection of record on March 9, 2002 but neither copies

were supplied nor was inspection allowed. His doubts,

hence, got confirmed that 'mischief' on large scale had

been committed while preparing election rolls. In our

opinion, therefore, the High Court was wholly wrong in

observing that the allegation regarding deletion of 586

voters from the voters' list was vague. To us, the High

Court was equally wrong in holding that the allegation of

antedating the election rolls, was "incomplete and

vague". In our view, when it was alleged that names of

certain electors were wrongly deleted and all particulars

relating to excluded electors numbering 586 were placed

in Schedule 'A' along with the election petition, it could

not be said that the particulars were incomplete or vague

and the pleading liable to be struck down.

Regarding averments in paragraph 13(a) of the

election petition, the petitioner has stated that the first

respondent was guilty of having committed corrupt

practice of obtaining assistance of a gazetted officer,

namely, Jaspal Singh Jassi, who was not only the

Returning Officer of 99 Moga Constituency but the

Electoral Registration Officer as well. The first

respondent got votes of many electors, who were

supporters of the Congress (I) candidate i.e., the

petitioner. Deletion was got done through Jaspal Singh

Jassi after filing of nomination paper by respondent No.1

without there being any order to that effect. When the

electors went to their respective booths, they could not

exercise their right to vote as their names stood deleted.

It was also his case that to justify the decision of deletion

of names as mentioned in Schedule 'A', orders were

passed much after the declaration of results and were

antedated by the Electoral Registration Officer.

The petition then stated; "The assistance obtained

by Shri Tota Singh, respondent No.1, was for furtherance

of prospects of his election and, thus, Shri Tota Singh is

guilty of corrupt practice within the meaning of Section

123(7) of the Act".

The first respondent, in his written statement

denied the allegation of the election petitioner. According

to him, electoral rolls of the State was maintained in

pursuance of the orders of the Election Commission of

India and there was no illegality.

The High Court considered the ground and held

that the allegation of corrupt practice pertaining to the

assistance of a gazetted officer did not disclose material

fact so as to disclose a complete cause of action to prove

the allegation of the corrupt practice within the meaning

of Section 123(7) of the Act.

The High Court observed; "It has not been alleged

by the petitioner that such Electoral Registration Officer

has acted with the consent of respondent No.1 and in

furtherance of the prospects of his election". The High

Court also stated that "it has not been alleged by the

petitioner that the procedure meant for revision of

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electoral rolls has not been followed. The only allegation

is that the electoral rolls had been antedated".

The High Court then made the following

observations; "Mere fact that a Gazetted Officer was

discharging the duties of Electoral Registration Officer

and under whose authority, votes have been deleted does

not disclose a corrupt practice on the part of the

returned candidate. No particulars have been disclosed

that such gazetted officer was acting on behalf of

returned candidate. It is also not disclosed that such

deletion of names has materially affected the election of

the returned candidate".

We are unable to appreciate the approach of the

High Court. The allegations in the election petition are

clear that the first respondent was guilty of corrupt

practice of obtaining assistance of a Gazetted Officer,

namely, Jaspal Singh Jassi who was a Returning Officer

as well as Electoral Registration Officer. It was also

alleged that the first respondent got names of several

electors (586) in Schedule 'A' wrongly deleted. The said

fact came to light only when the electors had gone to

exercise their right to vote but could not exercise it in

view of deletion of their names. It was also averred in the

petition that orders were passed subsequently and were

antedated and the said action was taken by Mr. Jassi

with a view to furtherance of the prospects of the election

of respondent No.1. In our view, therefore, material facts

and full particulars as required by Section 83 read with

Section 123(7) had been set out in the election petition

and the High Court was wrong in deleting paragraph

13(a) of the election petition.

The High Court observed that it was not alleged by

the petitioner that Electoral Registration Officer had

acted with the consent of the first respondent for the

furtherance of the prospects of the first respondent.

With respect, the High Court was wrong in

interpreting and applying the ambit and scope of sub-

section (7) of Section 123 of the Act. The provision has

been reproduced in the earlier part of the judgment. It

enacts that it would be deemed to be a corrupt practice if

assistance is sought from a gazetted officer in certain

cases. Such assistance may be sought either by (i) a

candidate; or (ii) his agent; or (iii) any person with the

consent of a candidate or his election agent for the

furtherance of the prospects of the candidate's election.

Thus, consent of the candidate is required only in those

cases where such assistance is sought by 'any other

person', i.e. other than the candidate himself (or his

election agent). And it is obvious because where the

candidate himself (or his election agent) is seeking

assistance of a gazetted officer, the question of consent

does not arise. In the case on hand, the allegation of the

election-petitioner is that the first respondent himself

has obtained assistance of a gazetted officer (Mr. Jassi)

"for furtherance of prospects of his election". The

High Court was, therefore, legally wrong in ordering

deletion of para 13(a) on the basis of construction of

Section 123(7) of the Act.

The High Court has also ordered deletion of para

11 of the election petition. In para 11 (a), the election

petitioner has stated that one Harish Kumar, respondent

No.5 in the election petition had filed his nomination

paper as an independent candidate. In case of an

independent candidate, nomination paper was required

to be subscribed by ten proposers. In case one or more of

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the proposers were unable to write their names, they

should put their thumb mark in which case, it should

be done in the presence of Returning Officer or such

other officer as may be specified in that behalf by the

Election Commission. Nomination paper of Harish

Kumar was thumb marked by four proposers. Neither

the thumb impression had been identified, nor it has

been attested. The nomination paper of Harish Kumar

was, therefore, invalid and wrongly accepted. Harish

Kumar obtained 66 votes. Had he not contested the

election, majority of those votes were likely to be polled

in favour of the petitioner. Wrongful acceptance of

nomination paper of Harish Kumar, therefore, according

to the petitioner, had materially affected the result of the

election.

In para 11(b), the election-petitioner stated that one

Harnek Singh had filed his nomination paper as an

independent candidate. Out of ten proposers, one was

Smt. Prakash Kaur. Normally, she used to put her

thumb impression but someone else had written her

name on the nomination form. That clearly went to show

that ten proposers had not subscribed nomination of

Harnek Singh and his nomination paper was wrongly

accepted. Harnek Singh secured 150 votes. The

petitioner asserted that more than 100 of the said votes

would have been polled in his favour. Thus, wrongful

acceptance of the nomination paper of Harnek Singh had

materially affected the result of the election.

In the written statement, the first respondent has

stated that the averments made in paragraphs 11 (a) and

(b) were totally vague and deficient in material

particulars. It has not materially affected the result of

the returned candidate.

The High Court ordered striking down paragraph

11 observing that the petitioner had not disclosed that

those voters were the voters of the petitioner and

improper acceptance of the nomination papers of two

candidates had materially affected the result of the

election. Then referring to Shiv Charan Singh v. Angad

Singh, (1988) 2 SCC 12 and Santosh Yadav v. Narender

Singh, AIR 2002 SC 241, the Court held that it may be

difficult but the onus is still on the election-petitioner to

discharge burden and to prove how many of the voters

who had voted for a candidate whose nomination paper

was improperly accepted would have voted in favour of

the petitioner. Since there was no allegation of the kind,

para No.11 was wholly unnecessary and would delay the

fair trial of the case and therefore required to be deleted.

In our opinion, the High Court was not right in

deleting the above para relying on Shiv Charan and

Santosh Yadav. Neither of the above cases related to

striking out pleadings. What was held by this Court in

those cases was that when an election petitioner alleges

that there was improper acceptance of nomination paper

of some candidate and had the said illegal acceptance

been not allowed, the voters would have voted in favour

of the petitioner, the burden of proof was on the election

petitioner. This Court observed that though it was very

difficult for the election petitioner to prove such fact,

nonetheless, the onus was on him and he had to

discharge it. We are here not at the stage of trial but

only at the stage of pleadings. The ratio laid down in the

above cases, therefore, in our considered opinion, has no

application in the case on hand and the High Court was

wrong in invoking the law laid down in the aforesaid

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decisions.

Finally, in paragraph 17 of the election petition, the

petitioner has stated that 22 ballot papers were received

by post and were counted at the commencement of the

counting as required under the Rules. He further stated

that the ballot papers were not shown to the petitioner or

his election agent and 20 out of 22 ballot papers were

rejected by the Returning Officer saying that they were

'not accompanied by requisite declaration'. The election

petitioner then stated that majority of the postal ballot

papers pertained to the electors who had been posted

outside the constituency on election duty who were fully

conversant with the procedure of casting postal ballots.

The High Court held that the averments in

paragraph 17 were required to be struck off. According

to the High Court, out of 22 postal ballot papers, 20 were

rejected on the ground that they were not accompanied

by requisite declaration. Rule 54A of the Rules requires

postal ballot papers to be accompanied by requisite

declaration. The petitioner had not pointed out any

illegality in the rejection of the votes on account of non-

furnishing of declaration. It was also not his case that

two ballot papers were not counted. According to the

High Court, therefore, the averments in paragraph 17

were unnecessary and would cause delay of the trial of

the case and were ordered to be deleted.

We are of the view that the High Court was not

wrong in ordering striking off paragraph 17. When the

Returning Officer has passed the order that out of 22

postal ballot papers, 20 did not contain the requisite

declaration as envisaged by Rule 54A, they were liable to

be rejected and if the said action had been taken, it

could not be said to be contrary to law. It was not the

case of the petitioner that in spite of requisite

declaration, postal ballot papers were rejected. On the

contrary, election-petitioner himself stated that 20 ballot

papers came to be rejected "saying that the ballot papers

were not accompanied by requisite declaration". He only

stated that the majority of the postal ballot papers were

of those electors who had been posted outside the

constituency and were fully conversant with voting

procedure. In our opinion, that was wholly irrelevant and

immaterial. The authorities were required to follow the

Rules and when rule was followed, the High Court was

right in striking out the said paragraph observing that

the action has been taken in consonance with Rule 54A

of the Rules.

So far as Civil Appeal Nos. 5999-6000 of 2004 are

concerned, they have been filed by the returned

candidate Tota Singh against the decision on preliminary

issue No.1 as to maintainability of petitions. As already

noted in Election Petition No. 4 of 2004, as also in

Election Petition No. 13 of 2004, the High Court

considered the issue as to maintainability of petitions on

the ground that Brijinder Singh, who was one of the

candidates at the election, had not been joined as party

respondent.

The learned counsel for the appellant contended

that Section 82 of the Act requires a candidate to be

joined as party respondent in an election petition against

whom allegations of corrupt practice has been levelled.

Since allegations had been levelled against Brijinder

Singh of corrupt practice, he had to be joined as one of

the respondents, even though he had withdrawn his

candidature at a subsequent stage. As he was a

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'candidate' within the meaning of Clause (b) of Section

79 of the Act, non-joinder of Brijinder Singh was a vital

defect and the High Court had committed an error of law

in holding the petitions maintainable in absence of

Brijinder Singh on record.

The learned counsel for the respondents, however,

supported the view taken by the High Court and

submitted that Brijinder Singh could not be said to be

'duly nominated' candidate at the election. Non-joinder

of Brijinder Singh was of no consequence and the High

Court was right in overruling preliminary objection as to

maintainability of petitions against the returned

candidate.

The High Court, in our opinion, rightly considered

the question, whether Brijinder Singh could be said to be

a 'duly nominated candidate' within the meaning of

Section 79(b) of the Act and whether non-joinder of

Brijinder Singh would result in non-suiting the election

petitioners on the ground that such petition could not be

said to be in accordance with law. The High Court

considered the relevant provisions of the Act as amended

in 1996 and Rules and came to the conclusion that

Brijinder Singh was not a candidate duly nominated by a

political party i.e., Shiromani Akali Dal (Badal). The High

Court was right in observing that once a nomination

paper of Tota Singh was scrutinized and accepted,

nomination paper of Brijinder Singh, who was a

'substitute' candidate of the same political party, could

not have been accepted and as such he could not

become duly nominated candidate.

In Krishna Mohini v. Mohinder Nath Sofat; (2000) 1

SCC 145 : AIR 2000 SC 317; a three-judge Bench of this

Court had an occasion to consider the amendment in the

Act, particularly, provisions relating to candidates set up

by recognized political parties and allotment of symbols

to them.

Speaking for the Court, Lahoti, J. (as His Lordship

then was) stated;

"24. The first and third provisos to sub-

section (1) of Section 33 have been added by

the Representation of the People (Amendment)

Act, 1996 (Act 21 of 1996) w.e.f. 1-8-1996.

Prior to this, there was only one proviso which

is now the second proviso in the present form.

25. In exercise of the powers conferred by

Article 324 of the Constitution read with

Section 29A of the Representation of the

People Act, 1951 and Rules 5 and 10 of the

Conduct of Elections Rules, 1961 and all

other powers enabling it in this behalf, the

Election Commission of India has issued the

Election Symbols (Reservation and Allotment)

Order, 1968(hereinafter referred to as the

"Symbols Order", for short). This order

provides for allotment of symbols to the

contesting candidates, for classification of

symbols into ^ reserved symbol--reserved for

exclusive allotment to contesting candidates

set up by a recognised political party, and free

symbol --which is a symbol other than a

reserved symbol. Para 6 classifies political

parties into recognised and unrecognised

political parties. To be a recognised political

party in a State, a political party must satisfy

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the conditions specified in Clause (A) or

Clause (B) of sub-para (2) of Para 6 of the

Symbols Order. A recognised political party

may be a National party or a State party. A

candidate set up " by a recognised party in an

election contest can choose only a symbol

reserved for that political party. Candidates

set up by political parties other than

recognised ones and independent candidates

are entitled to free symbols. A candidate other

than a candidate set up by a recognised

National or State Party in that State or a

candidate set up by a State party at elections

in other State, has to choose and to be

allotted a free symbol. A free symbol chosen

by only one candidate must be allotted to him

and to no one else. Where the same free

symbol has been chosen by several

candidates at such election the manner how

the symbol shall be allotted as amongst those

several candidates is laid down in sub-para 3

of para 12 of the Symbols Order.

26. Para 13 of the Symbols Order [as

substituted by O.N. 203-E dt. 5.8.1996, and

effective at the relevant time] provides as

under :

13. When a candidate shall be deemed

to be set up by a political party.\027For

the purposes of this Order, a candidate

shall be deemed to be set up by a

political party if, and only if,--

(a) the candidate has made a

declaration to that effect in his

nomination paper;

(b) a notice in writing to that effect

has, not later than 3 p.m. on last,

date for making nominations, been

delivered to the Returning Officer of

the constituency and the Chief

Electoral Officer of the State;

(c) the said notice is signed by the

President, the Secretary or any other

office bearer of the party and the

President, the Secretary or such

other office bearer is authorised by

the party to sent such notice; and

(d) the name and specimen

signature of such authorised person

are communicated to the Returning

Officer of the constituency and to

the Chief Electoral Officer of the

State not later than 3.00 p.m. on the

last date for making nominations.

27. For the purpose of Symbols Order, as

defined in Clause (h) of Para 2, "Political

Party" means an association or body of

individual citizens of India registered with the

Commission as a political party under Section

29A of the Representation of the People Act,

1951. The scheme of the Symbols Order

shows that it does not deal with unregistered

political parties. It deals with registered

political parties by sub-dividing them into

recognised and unrecognised political parties

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and with independent candidates. To be

entitled to the benefit of allotment of symbols

reserved to a recognised political party, the

candidate has to be one set up by a

recognised political party and in a manner

prescribed by Para 13 of the Symbols Order.

The privilege enjoyed by a candidate set up by

a recognised political party, as spelt out by a

combined reading of Section 33 of the Act

with the provisions of Symbols Order, is that

his nomination paper is complete, inter alia, if

proposed by an elector, (i.e., one only) of the

Constituency, If the candidate be one not set

up by a recognised political party, i.e., if he be

a candidate set up by an unrecognised

political party or be an independent

candidate, his nomination paper must be

subscribed by ten proposers being electors of

the Constituency. Nomination paper filed by a

candidate set up by an unrecognised political

party or an independent candidate, cannot be

proposed by a single elector of the

Constituency or by electors less than ten".

Consequent upon the amendments in the

Representation of the People Act, 1950 and 1951 in

1996, the Election Commission issued a Circular on

August 9, 1996 for the guidance of Electoral Officers.

Paras 7, 14 and 15 of the Circular are relevant, which

read thus;

7. Under the amended Section 33 of the

Representation of the People Act, 1951, the

nomination of a candidate at the election to

the House of the People or a State Legislative

Assembly shall be required to be subscribed

by--

(i) One elector of the constituency as

proposer, if the candidate has been set

up either by a recognised National Party

or by a recognised State party in the

State or States in which it is recognised

as a State party :

(ii) ten (10) electors of the constituency

as proposers, if the candidate has been

set up by a registered-unrecognised

political party or if he is an independent

candidate.

14. It may be further noted that having regard

to the changed law, the Returning Officer will

have to be satisfied at the time of the scrutiny

of nominations whether a candidate who

claims to have been set up by a recognised

National or State party and whose nomination

paper is subscribed only by one elector as

proposer has in fact been duly set up by such

recognised party or not, so as to decide the

validity or otherwise of his nomination paper.

Therefore, it is essential that the political

parties intimate the names of the candidates

set up by them to the Returning Officers

concerned and Chief Electoral Officer of the

State well before the date of scrutiny of

nominations. Accordingly, the Commission

has decided that all political parties must

hereafter give the formal intimation in regard

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to the candidates set up by them to the

aforesaid authorities NOT LATER THAN 3.00

P.M. ON THE LAST DATE FOR MAKING

NOMINATIONS IN FORMS 'A1 AND 'B'

prescribed for the purpose by the Commission

under para 13 of the Election Symbols

(Reservation and Allotment) Order, 1968. The

said para 13 of the Symbols Order has also

been amended by the Commission

accordingly.

15. As a result of the aforesaid amendments

made to the Forms of nomination paper and

paragraph 13 of the Symbols Order, certain

consequential amendments have also become

necessary in the above referred Forms 'A' and

'B' in which the political parties give formal

intimation with regard to the candidates set

up by them. A copy each of the revised Forms

'A' is also enclosed herewith for your

information and use at all future elections. It

will be observed from the revised Form 'B'

that the parties have still been given an

option in that Form to intimate the name of

the substitute candidate who will step-in, if

the nomination of the main approved

candidate of the party is rejected on scrutiny.

But such substitute candidate shall be

deemed to have been set up by the party, only

if all the requirements under the said para 13,

as amended, of the Election Symbols

(Reservation and Allotment) Order, 1968 have

been fulfilled in his case. If, however, the

nomination of the main approved candidate of

the party is found valid on scrutiny, the

substitute candidate shall not be deemed to

have been set up by that party for the

purposes of the amended Section 33 of the

Representation of the People Act, 1951 and

his nomination paper will be scrutinised by

the Returning Officer having regard to the

other provisions of that Act.

Instructions were also issued to Returning Officers

in the form of 'Handbook for Returning Officers for

Election to the House of People and State Legislative

Assemblies'. Para 10 of Chapter VI (Scrutiny)

enumerates the grounds for rejection of nomination

papers.

The Handbook took note of change in law and

recited;

"In view of the change in law whereby the

nomination papers of candidates set up by

recognized National and State Parties are

required to be subscribed by only one elector

as proposer and of other candidates by ten

electors as propose".

It noted that certain clarifications were sought from

the Commission regarding setting up of candidates by

political parties. Clarification relating to a nomination

paper of a substitute candidate set up by a recognized

political party is relevant and reads thus;

(vii) The nomination paper of a substitute

candidate of a recognised political party will

be rejected if the nomination paper of the

main approved candidate of that recognised

political party is accepted. However, if such

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substitute candidate has also filed another

nomination paper subscribed by ten electors

as proposers, this latter nomination paper will

be scrutinised independently by treating the

candidate as an independent candidate.

Further, if the nomination paper of the main

approved candidate of the party is rejected,

then also the nomination paper of the

substitute candidate will be accepted,

provided that the party has intimated his

name as its substitute candidate in Form 'A'

and 'B' filed before 3 p.m. on the last date for

making nominations.

The High Court considered the relevant case-law on

the point on which reliance was placed by the parties.

The learned counsel for the returned candidate referred

to decisions of this Court in Har Swarup & Another v.

Brij Bhushan Saran & Others, (1967) 1 SCR 342 : AIR

1967 SC 836, Mohan Raj v. Surendra Kumar Taparia &

Ors., (1969) 1 SCR 630 : AIR 1969 SC 677; Ram Partap

Chander v. Chaudhary Lalla Ram & Ors., (1998) 8 SCC

564, Gadnis Bhawani Shankar v. Faleiro Eduardo

Martinho, (2000) 7 SCC 472 : AIR 2000 SC 2502 and

Patangrao Kadam v. Prithviraj Sayajirao Yadav

Deshmukh & Ors., AIR 2001 SC 1121. In all the above

cases, this Court held that all candidates including those

who had withdrawn from candidature should be made

parties to the election petitions if allegations of corrupt

practice have been levelled against them. We have gone

through those cases and in our opinion, the High Court

was right in observing that in all those cases,

nomination papers of the candidates were found to be in

conformity with law and thus they were all treated as

'duly nominated candidates'. Subsequently, however,

they had withdrawn their nominations. In the light of the

said fact, this Court held that they ought to have been

joined as party respondents in election petitions as

required by Section 82 of the Act.

In our opinion, the High Court was right in deciding

the issue keeping in view the amended provisions of the

Act, the Rules, Circular dated August 9, 1996 and

relevant provisions of the 'Handbook'. As already noted,

in view of change in law, clarifications had been made on

nomination papers of candidates set up by recognized

National and State political parties that such nomination

papers are required to be subscribed by only one elector

as proposer and for other candidates, it is required to be

proposed by ten electors. Clarification (vii) extracted

hereinabove clearly states that once nomination paper of

the 'main approved candidate' of recognized political

party is accepted, the nomination paper of a 'substitute'

candidate of the said party has to be rejected. The

instructions, however, state that if such substitute

candidate has also filed Part II of the nomination paper

or filed another nomination paper subscribed by ten

electors as proposers, his nomination paper has to be

scrutinized independently by treating the candidate as

an independent candidate. Again, if the nomination

paper of the main approved candidate of a political party

is rejected, then also, the nomination paper of the

substitute candidate has to be accepted provided that

the party has intimated his name as its substitute

candidate in Forms 'A' and 'B'.

In the instant case, a list of nominated candidates

had been forwarded which makes it clear that Tota Singh

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was shown to be a 'candidate' of Shiromani Akali Dal

(Badal) while Brijinder Singh was described as

'substitute' of Shiromani Akali Dal (Badal). As

nomination paper of Tota Singh had been accepted,

Brijinder Singh, substitute of Tota Singh cannot be said

to be a duly nominated candidate of the said party.

In an affidavit-in-reply filed by the first respondent,

it was stated that when Tota Singh was a candidate of

Shriomani Akali Dal (Badal), Brijinder Singh was rightly

shown as substitute candidate for Tota Singh belonged

to Shriomani Akali Dal (Badal). According to the

deponent, "there cannot be two candidates for one

recognized party". It was also stated that nomination

form of Brijinder Singh was proposed by one man only

i.e., Shri Gurmail Singh. Since it was not proposed by

minimum number of ten electors, it could not be said to

be in accordance with Section 33 (1) of the Act and

Brijinder Singh could not be said to be duly nominated

candidate.

An affidavit-in-rejoinder was filed by the appellant

and alongwith the said affidavit, certain documents were

filed including Annexure P/8 in Form No. 4 (Rule 8) (List

of validly nominated candidates), wherein nomination of

Brijinder Singh was shown as a candidate of Shriomani

Akali Dal. It may be stated that under the head

'Candidates of recognized National and State political

parties', two names have been shown belonged to

Shriomani Akali Dal at serial No. 5 & 7, (i) Tota Sngh

and (ii) Brijinder Singh respectively. The appellant has

also annexed in the rejoinder affidavit at Annexure P/9,

Form No. 7A under Rule 10 (1) ('List of contesting

candidates') in which name of Tota Singh only appears.

It was the case of the returned candidate-appellant

herein that after acceptance of nomination of Brijinder

Singh by the Returning Officer, he withdrew his

nomination and hence he did not remain as one of the

contesting candidates. On the basis of the above

documents, it was contended that even if there was an

error on the part of the Returning Officer in accepting

nomination paper of Brijinder Singh, it was of no

consequence. Once nomination paper of Brijinder Singh

was accepted, the law requires him to be joined as a

party respondent in case allegations of corrupt practice

have been levelled against him. It was also submitted by

the learned counsel that even if two candidates cannot

be set up by one political party for one constituency and

cannot be granted election symbol, a different symbol

could be allotted to Brijinder Singh. That, however,

cannot be a ground for holding that Brijinder Singh was

not a candidate belonged to Shiromani Akali Dal (Badal)

once his nomination paper had been accepted.

The High Court, in our opinion, rightly rejected the

contention of the returned candidate. Apart from the

statutory provisions, Election Manual and provisions as

to grant of Election Symbol, the point is also concluded

by various decisions of this Court.

In Charan Lal Sahu v. Neelam Sanjeeva Reddy,

(1978) 2 SCC 500, a larger Bench of this Court

considered the relevant provisions of the Presidential

and Vice-Presidential Election Act, 1952 and held that if

the nomination paper of a person is not in consonance

with the relevant provisions of the law, he could not be

said to be a candidate who has locus standi to

challenge the election of the President.

In Charan Lal Sahu v. Giani Zail Singh, (1984) 1

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SCC 390, again, a similar question came up for

consideration before this Court. Reiterating the earlier

view, the Court dismissed the petition. An argument

similar to one which has been made before us had also

been advanced by the petitioner in that case. The Court,

however, rejected it observing that it was not well

founded.

The Court observed;

"The petitioners, however, contend that even if

it is held that they were not duly nominated

as candidates, their petitions cannot be

dismissed on that ground since they "claim to

have been duly nominated". It is true that, in

the matter of claim to candidacy, a person

who claims to have been duly nominated is on

par with a person who, in fact, was duly

nominated. But, the claim to have been duly

nominated cannot be made by a person

whose nomination paper does not comply

with the mandatory requirements of Section

5-B (1)(a) of the Act. That is to say, a person

whose nomination paper, admittedly, was not

subscribed by the requisite number of

electors as proposers and seconders cannot

claim that he was duly nominated. Such a

claim can only be made by a person who can

show that his nomination paper conformed to

the provisions of Section 5-B and yet it was

rejected, that is, wrongly rejected by the

Returning Officer. To illustrate, if the

Returning Officer rejects a nomination paper

on the ground that one of the ten subscribers

who had proposed the nomination is not an

elector, the petitioner can claim to have been

duly nominated if he proves that the said

proposer was in fact an 'elector'.

Thus, the occasion for a person to make a

claim that he was duly nominated can arise

only if his nomination paper complies with

the statutory requirements which govern the

filing of nomination papers and not otherwise.

The claim that he was 'duly' nominated

necessarily implies and involves the claim

that his nomination paper conformed to the

requirements of the statute. Therefore, a

contestant whose nomination paper is not

subscribed by at least ten electors as

proposers and ten electors as seconders, as

required by Section 5-B (1)(a) of the Act,

cannot claim to have been duly nominated,

any more than a contestant who had not

subscribed his assent to his own nomination

can. The claim of a contestant that he was

duly nominated must arise out of his

compliance with the provisions of the Act. It

cannot arise out of the violation of the Act.

Otherwise, a person who had not filed any

nomination paper at all but who had only

informed the Returning Officer orally that he

desired to contest the election could also

contend that he "claims to have been duly

nominated as a candidate".

Recently, in Charan Lal Sahu v. Dr. A.P.J. Abdul

Kalam & Ors., (2003) 1 SCC 609, this Court was called

upon to consider a similar question. Following earlier

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decisions, this Court held that since the nomination paper

of the petitioner was not in consonance with law as it was

not subscribed by requisite number of electors as

proposers, he could not be regarded as a person who had

been duly nominated candidate at the election. He,

therefore, could not present election petition and the

petition was held non-maintainable.

In Krishna Mohini, referred to above, the Court

stated;

"34. The distinction between nomination filed

by a candidate set up by a recognised political

party and a candidate not set up by a

recognised political party is precise. A perusal

of first proviso to Sub-section (1) of Section 33

of the Act makes it clear that a candidate not

set up by a recognised political party,

meaning thereby a candidate set up by an

unrecognised political party or an

independent candidate, in order to be duly

nominated for election must have his

nomination paper subscribed by ten

proposers being electors of the Constituency.

If such nomination paper be subscribed by

only one elector as proposer or by a number

of electors less then ten, then it will amount

to non-compliance with the provisions of

Section 33. A candidate, who is merely a

substitute or a cover candidate set up by a

recognised political party, may file his

nomination paper proposed by only one

elector of the Constituency. If the nomination

paper of the approved candidate of that

political party is accepted, the nomination

paper filed by the substitute or cover

candidate, shall be liable to be rejected

because there can be only one candidate set

up by a recognised political party. In order to

be a candidate set up by a registered and

recognised political party so as to take

advantage of being proposed by a single

elector, all the four requirements set out in

Clauses (a), (b), (c) and (d) of Para 13 of the

Symbols Order must be satisfied. If any one

or more of the requirements are not satisfied,

the benefit of nomination being proposed by a

single elector is not available to him".

In view of the settled legal position, in our opinion,

the High Court was right in rejecting the contention of

the returned candidate that non-joinder of Brijinder

Singh as party respondent was of no consequence as he

could not be regarded as 'duly nominated candidate' by a

political party i.e., Shriomani Akali Dal (Badal). That part

of the decision, therefore, does not deserve interference.

There is, however, one disturbing feature and it is

that the first respondent, along with the affidavit-in-

rejoinder, placed certain documents on record which we

have already referred to, in the form of "List of validly

nominated candidates" (P/8) and "List of contesting

candidates"(P/9). We have called for the original record

and did not find those documents there. It is thus clear

that they did not form part of the record before the High

Court. If it is so, the appellant ought to have made

proper application and prayer to produce them. An

appropriate order could have been passed by this Court

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on such application. Neither any application was made

nor permission was sought and the documents were

placed along with the affidavit-in-rejoinder. We are,

however, not taking serious view of the matter in the

light of the fact that before the High Court, it was stated

that Brijinder Singh had withdrawn his nomination

paper on January 28, 2002 and thus that fact was

before the High Court. P/8 produced with the affidavit-

in-rejoinder in this Court preceded the withdrawal while

P/9 was the consequence of withdrawal of nomination by

Brijinder Singh. We, therefore, leave the matter there.

For the foregoing reasons, Civil Appeal No. 4093 of

2004 is partly allowed and the order passed by the High

Court of Punjab & Haryana ordering deletion of

paragraphs 11, 12 and 13(a) of the Election Petition No.

13 of 2004 is set aside. It is ordered that those

paragraphs cannot be said to be unnecessary or causing

delay in disposing election petition and were not required

to be struck down as held by the High Court. They will

continue to be the part of Election Petition No. 13 of

2004. So far as paragraph 17 of the petition is

concerned, the direction of the High Court deleting that

para is confirmed. The appeal is accordingly allowed to

that extent with costs.

So far as Civil Appeal Nos. 5999-6000 of 2004 are

concerned, they are dismissed. In view of the

circumstances mentioned by us hereinabove, however,

the appellant will pay costs to the first respondent in

both the appeals which is quantified at Rs.50,000/- in

each appeal.