# ROOP i Ai SATHi v. NACHHATTAR SINGH

- **Citation:** [1983] 1 S.C.R. 702
- **Court:** Supreme Court of India
- **Decided:** 1982-11-02
- **Bench:** D.A. Dbsai, A.P. Sbn
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/roop-i-ai-sathi-v-nachhattar-singh-8591
- **Pages:** 27

## Headnote

Election Symbols ( Resetvatlon at!d Allotment) Order 1968-0rder made
under Representation of the People Act, 1951. ·
Representation of the People Act, 1951-Trial of election petition-Prov/ ..
slons of 0. VI, Code of Civil Procedure. 1908 applicable except as modified by
sub-i. (5) of s. 86.
I
'
Reprdentatlon of the Peopk Act, 1951-CI. (a) of sub-s. (I) of s. 83Trial of election petition-Omission of £maieria/ facts" reRders whole petition bad
under O. Vil, r. IJ(a), Code of Civil Procedure, '1908-Court cannot strike down
;1ortions only.
Representation of the People Act, 1951-CI. (b) of sub-s. (I) of s. 83Trial of election 'petition-Omission of 'particulars'-Court may direct 'further
and better particulars' under 0, VI, r. 5, Code of Civil Procedure, 1908.
I
For a candidate to be deemed to be set up by a politica! party under
paragraph 13 of the Election Symbols (Reservation and Allotment) Order 1968,
it is essential .that a notice in writing to that effect signed by ··the duly authorised
office-bearer of the political party is delivered to the returning officer of the
conStituency not later than 3 p.m. on the I last day of withdrawal of candidatures.
. The allotment of any sYmbol to ~a candidate by the returning officer is final
under sub-r. (5) of r. 10 of the Conduct of Elections Rules, 1961 except where
it is inconsistent with any directions issued by the -Election Commission in
that behalf,
The appellant, the respondent and one Jagmohan Singh contested 1he
election to the Punjab Legislative Assembly (rom the same constituency and
the respondent was declared elected. The appellant_ challenged the election of
the respondent under s. IOO(l)(dJ(iv) read with s. 123(7) of the Representation
of the People Act, 1951. Paragraphs 4 tO 18 of the petition related to change
of symbols allotted to the candidates. It was averred therein that the last day
for withdrawal of nomination papers was May 5, 1980; that a notice in writing
signed by the authorised ~ffice-bearer of the Indian National Congress (I) to the
effect that Jagmohan Singh was contesting as the candidate of t_hat party
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kooi> LAL v. NACHHATTAR siNGH
had been deHvered to the Retui"ning · Offic~r on that day; that the :Retliriiing
Officer had on May 8, 1980, intimated by a Jetter that on receipt of instfuctions
. from the EISC:tion Commission a change had been effected · in the symbols
allotted to the candidates according to which the sYm.bol 'hand' reserved for
the Indian National Congress (I) had been allotted tO the respondentj that in
terms of p8.ragraph 13 .of -the Symbols Order Jagmohan Singh ollght to have
been deemed to be lhe candidate set Up by the Indian National Congress (I);
that the Election Commission had no power to direct re·allotment of the symbol
once allotted to a candidate under sub-r. (4) of r. 10 and therefore the action
of the Returning Officer in recalling the allotmeht of the symbol 'hand'
tO Jagniohan Singh was in violation of the Act and the rules.made thCreunder.
The respondent contested these averments .in bis written statement and referred
to, the circumstances in which the Election Commission had issued the instructions relating to.change of symbols.
The respondent -raised a preliminary objection that the averments in
paragraphs 4 to 18 of the petition did not disclose any cause of actioi:i and the
High Court, accepting the objection, ordered deletion of those paragraphs from
the Petition~ The Hiih Court 'held that· it was Incumbent on the appellant 't0
find out the circumstances in which the Election Commission had passed the
order relating to change of-syinbOis and that iri the absence of those matCrial
circumstances non-compliance with r.10(5) or Par.agraph.13 of the, Sy.mbols
. Order could n_ot be spelled out. The High Court further held that the. Symbols
Order was not an order made under the Act and therefore s. IOO(l)(d)(iv) was
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not attracted.
1n:·appeal, counsel fOr apt>ellant contended ihat paragraphS 4 tO 1

## Text

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702
ROOP i..Ai.. SATHi
I
v.
NACHHATTAR SINGH
I
November 2, 1982
(D.A. DBSAI AND A.P. SBN, JJ.J
Election Symbols ( Resetvatlon at!d Allotment) Order 1968-0rder made
under Representation of the People Act, 1951. ·
Representation of the People Act, 1951-Trial of election petition-Prov/ ..
slons of 0. VI, Code of Civil Procedure. 1908 applicable except as modified by
sub-i. (5) of s. 86.
I
'
Reprdentatlon of the Peopk Act, 1951-CI. (a) of sub-s. (I) of s. 83Trial of election petition-Omission of £maieria/ facts" reRders whole petition bad
under O. Vil, r. IJ(a), Code of Civil Procedure, '1908-Court cannot strike down
;1ortions only.
Representation of the People Act, 1951-CI. (b) of sub-s. (I) of s. 83Trial of election 'petition-Omission of 'particulars'-Court may direct 'further
and better particulars' under 0, VI, r. 5, Code of Civil Procedure, 1908.
I
For a candidate to be deemed to be set up by a politica! party under
paragraph 13 of the Election Symbols (Reservation and Allotment) Order 1968,
it is essential .that a notice in writing to that effect signed by ··the duly authorised
office-bearer of the political party is delivered to the returning officer of the
conStituency not later than 3 p.m. on the I last day of withdrawal of candidatures.
. The allotment of any sYmbol to ~a candidate by the returning officer is final
under sub-r. (5) of r. 10 of the Conduct of Elections Rules, 1961 except where
it is inconsistent with any directions issued by the -Election Commission in
that behalf,
The appellant, the respondent and one Jagmohan Singh contested 1he
election to the Punjab Legislative Assembly (rom the same constituency and
the respondent was declared elected. The appellant_ challenged the election of
the respondent under s. IOO(l)(dJ(iv) read with s. 123(7) of the Representation
of the People Act, 1951. Paragraphs 4 tO 18 of the petition related to change
of symbols allotted to the candidates. It was averred therein that the last day
for withdrawal of nomination papers was May 5, 1980; that a notice in writing
signed by the authorised ~ffice-bearer of the Indian National Congress (I) to the
effect that Jagmohan Singh was contesting as the candidate of t_hat party
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kooi> LAL v. NACHHATTAR siNGH
had been deHvered to the Retui"ning · Offic~r on that day; that the :Retliriiing
Officer had on May 8, 1980, intimated by a Jetter that on receipt of instfuctions
. from the EISC:tion Commission a change had been effected · in the symbols
allotted to the candidates according to which the sYm.bol 'hand' reserved for
the Indian National Congress (I) had been allotted tO the respondentj that in
terms of p8.ragraph 13 .of -the Symbols Order Jagmohan Singh ollght to have
been deemed to be lhe candidate set Up by the Indian National Congress (I);
that the Election Commission had no power to direct re·allotment of the symbol
once allotted to a candidate under sub-r. (4) of r. 10 and therefore the action
of the Returning Officer in recalling the allotmeht of the symbol 'hand'
tO Jagniohan Singh was in violation of the Act and the rules.made thCreunder.
The respondent contested these averments .in bis written statement and referred
to, the circumstances in which the Election Commission had issued the instructions relating to.change of symbols.
The respondent -raised a preliminary objection that the averments in
paragraphs 4 to 18 of the petition did not disclose any cause of actioi:i and the
High Court, accepting the objection, ordered deletion of those paragraphs from
the Petition~ The Hiih Court 'held that· it was Incumbent on the appellant 't0
find out the circumstances in which the Election Commission had passed the
order relating to change of-syinbOis and that iri the absence of those matCrial
circumstances non-compliance with r.10(5) or Par.agraph.13 of the, Sy.mbols
. Order could n_ot be spelled out. The High Court further held that the. Symbols
Order was not an order made under the Act and therefore s. IOO(l)(d)(iv) was
.
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not attracted.
1n:·appeal, counsel fOr apt>ellant contended ihat paragraphS 4 tO 18 of
. the petition contained all t~e material facts necessary to show that the chahge
of symbols was in breach of r. 10(~) and paragraph 13 of the Symbols .Order
and the High C'.ourt was not justified in ordering .thiir deletic;>n.
Courisel for respondent contended · tb8t paragr~phs 4 to 18 Or the petition ·
did not disclose· any cause of actiOn as there was non·disclosure of facts
~ecessary t<;> shoW how -the order of the Election Commission was illegal, that -
the High court waSjustified in stiiking· out those paragraphs under 0. VI, r.16
of the Code of Civil Procedure, 1908 aS it bad no power to" direct further arid
better particulars Under o. VI,'r. 5. Laying emphasis on the words "under the
Act" oc~urring in s •. 100(1)(d)(iv) he ~ontended th~t the Synibols Order was
not ao Order made u·nder the _Act.
Allowing thtl api)eal,
HELD : Cl. (a) of sub-s.(l) of s. 83 of the Representation of the People
·Act, 1951 enjoins that ao election petition shall contain· a concise statement.of
the material facts on which -the election _petitioner relies. This clause is based
on the provisions of 0. VI, r. 2(1) of the Code of Civ'il "Procedure, 1908 from
which it is clear that the statement of material facts ought not to contain,i:he
evidence by which they are proved. Cl. (b) of sub·s. (1) of s. 83 states that-an
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SUPRBME COURT RBPORTS
(1983) ~ s.c.a.
I
election petitioner must set forth full particulars of any corrupt practice on
which he challenges the election of the returned- candidate. This clause is
based on O. VI, r. 4 of the Code and the High Court has ample power while
trying an election petition to direct furthei- and better particulars as to the nature
of the claim or defeDGe under O.VI, r.S. The word 'material' in cl. (a) means
facts necessary for the purpose of formulating a complete cause of action; and
if any one material fact is omitted, the statement or plaint is bad; it is liable to
be struck out. The function of 'particuI8rS' in cl. (b) is quite different; the use
or" particulars is intended to meet a further at;id quite separate , requirement of
pleading imposed in fairness and justice to tho returned candidate. The function
of 'particulars' is tO fill in the picture of the election.petitioner's cause of
· action with inforination sufficiently detail~d to put th.e returned candidate on
bis guard as to the case he has to meet and to enable him to prepare for trial
·in a case where hiS election is chattenged On the ground of any corrupt practice.
. Under O.VI, r.5. 'particula~s· will be ordered of the 'material facts' on which
the party pleading relies for his claim
1or defence. If a party's pleading is
defective he can also seek _leave to alter and amend his own defective pleading
under O.VI, r.17. There is no express itile providing for the consequence of a
party failing to deUver 'particulars' required by order of the Court but the
decisions are to the effect that either by the order calliD.g for particulafs or by a
later order the court can direct the clair:h or defence to be struck out under
O.VJ, r.16. [724B; 723 H; 724 C-F; 726 C-E; 724 G-H; 725 A]
In the instant case the question whether the ·order pas;ed by the High
Court could be justified under. O.VI1 r.16 would depend upon whether or not
the election petition was in conformity with the requirements of s.83. A preliminary objeCtion that the election petition does not contain a concise statement .of
material facts on which the petitioner rblies is but a plea in the nacure of
demurrer and in deciding the question the court had to assume for this Purpose
that the averments contained in the petition were true. Although the High
Cotfrt observed that a question of this nature had to be decided on a consideration of the averments in the election petition ~lone, it later on made certain
observations which tend to show that the aJiega tions in the written statenient
of the respondent were very much in its mind. It is no part of the statement
· of an election-petitioner to anticipate the defence and to state what he would
have to say in answer to it. The High Court cast on the appellant the burden
of disclosing facts not within. his knowledg~. This approach was unwarranted.
The High Court was not justified in directing that ihe avermei:its in paragraphs, 4
to f8 of the petition be deleted on the ground that there was non-disclos ufc of
material facts sufficient to give rise to a cause of action under s. lOO(l)(d)(iv),
It is not clear from the order '!Vhether the
1 High Court proceeded to act ~under
O.VII, r.1 l(a) or under O.Vll, r.16 .. It could not have acted under 0. VII, r.ll(a)
as, under that rule, when it is found .that the plaint discloses no cause of
action, it is obligatory to reject the plaint as a· whole and not any particular
portion thereof. )"he High Court's Order cahoot also be Sustained under O.VI,
r.16 because there was no finding that the averments in paragraphs 4 to 18 were
either unnecessary, frivolous or vexatious, .or were such as may tend •to prejudice, embarass or delay the fair trial of the election, or were sU:ch 3:s to constitute an abuse of tho process of the court. ,[723C; 721H; 722 A-B; 724 B; 721C;
719 G-H; 720 A·B; E·BJ
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ROOP LAL V· NACHHATTAR SINGH
705
Bruce~. l!dhams Press Ltd. [1936] I K:.D. 697 and Samant N. Balakrishan
v. George Ftrnandez & Ors., [1969] 3 S.C.R. 603, referred to.
(b) The contention that the High Court had rio power to direct further
and better particulars under O.VI, r.5 ca~not be J.ccepted. Sub-s. (1) of s.87
· enacts that the trial of an election petition shaU be, as nearly as maY be, in
accordance with the procedure applicable under the Code of Civil Procedure,
1908 to the trial of suits, subject tb the provisions of the Act and of"any rules
made thereunder. There are no express provisions in the Act or in the rules
made thereunder .to deal With a situation like the one presented in the instant
case. The provisions of the Code accordingly must apply in such a case as
provided by sub-s.(J) of s.87. That being so, the provisions of O.VI which are
integral part of the Code co~e into play except to the extent modified by
sub·s. (5) ofs. 86. [727 A-B; 726 E-G]
Hari Vishnu Karnath v. The Election Tribunal & Anr., AIR [19S8] M.P. 1681
distinguished .
.•.
Bhikaji Keshao Joshi & Anr. v. Brijlal. Nandlaf Joshi & Ors., [.1955] 2
S.C.R. 18. referred to.
2. The High Court
was in error in holding that the Election
Symbols (Reservation and Allotment) Order, 1968 was not an order made"
under the Representation of the People Act, .1951. The Act is a law made
by Par1iameot under. Art. 327 of the Constitution to provide for conduct of
elections and the Conduct of Elections Rules, 1961 are ·rules framed by the
Central Government under s. J 69 in consultation with the Election Commission
for regulating the mode of holding e1ections. Rule S requires the-Election
Commission to specify the' symbols that may be chosen by candidateS and the
restrictions to which. their choice sball be subjected. Rule 10 provides for
allotment of symbols to c~ritesting candidates by the returning officer subject
to any general or special directions · issued in
that behalf by the Election -
Commission. By virtue of Art. 324 of the Constitution the authority ·to
conduct aH elections to Parliament and State Legislatures is vested in tba
Election Commission. The Symbols Orde'r has been issued by the Election
Commission in exercise of its powers under Art. 324 read with s. 5 and 10.
The primary object of the Symbol Order is to provide for specification;
reservation, choice and allotaient or· symbols -at elections in parliamentary
and assembly constituencies. It is a
matter of common knowledge ·that
elections in our country are fought on the basis of symbols. It must but
logically follow as a necessary corollary that the Symbols Order is an ordei:
made under the Act. Any other view would be destructive of the very fabric
of our system of holding parliamentary arid assenibly constituency elections
in the country on the basis of adult suffrage. [718 B; 712 G; 713 B-C; 713' H1
714 A; 719 D-F]
Sadiq Ali & Aiir. v. Election Commission of India· & Ors., (1972] 2 S.C.R.
318, referred to.
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706
SUPREME COURT REPORTS
(1983j I S.C.R.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1106 (NCE) .
of 1981.
From the Judgment and Order·dated the 22nd February, 1981
of the Punjab & Haryana High Court in Election Petition No. 3 of.
1980 .•
D. V. Patel, A.S. Saha/ and M.C. Dhingra for the Appellant.
P.R. Mridul and R.S. Sodhi for the Respondent.
The Judg~ent of the Court was !delivered by
SEN, J. This appeal by special leave is from a judgment and
"Order of the Punjab & Haryana High Court dated February 2, 1981
by which it has directed the deletion of paragraphs 4 to 18 of the
election petition filed by the appellant under s. 81 read with s. JOO of
the Representation of the People Act, 1951 ('Act' for short) calling
in question the election of the respondent Nachhattar Singh· Gill to
the State Legislative· Assembly of Punjab from the Moga Assembly
Constituency No. 99 on the ground ' that there is non-disclosure of
material facts on which he alleges that the change of allotment of
symbols by the
Returning Officer, Moga amounted to noncompliance with the provisions of thel Constitution: or of the Act, or
any rules· or orders made thereunder so that the result of the election,
insofar as it concerns the respondent i.e. the .returned candidate, is
materially affected.
At the last general elections to the State Legislative Assembly
of Punjab from Moga Assembly Constituency No. 99 the appellant
contested as a candidat~ of the Lok Dal Party. The last date for
withdrawal of nomination papers wa.s notified as May 5, 1980. It
appears that on that day Shri Darbara Singh, President of the
Punjab Pradesh Congress (I) Committee, intimated the Returning
Officer that Jagm~han. Singh had b~en nominated as the official
candidate of the Indian National, Congress (I) to contest the election.
There is also on record a letter dated May 5, 1980 addressed by
Shri Darbara Singh,
President, Punjab Pradesh Congress (I)
Commiitee, to the respondent stating that Jagmoban Singh had been
finally selected as the official candidate of the Indian National
Congress (I) from the 99· Moga Assembly Constituency in his place,
and he was advised to withdraw his nomination paper.
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ii.601' LAL v; NACliHATTAR SINGH (Sen, J.)
101
It appears that the Indian National Congress (I) changed it.s
official candidate and finally selected the respondent Nachhattar
. Singh Gill to be the· official candidate of its. par(y. On May 7, 1980,.
the Returning Officer, Moga Vidhan Sabha Assembly Constituency
wrote a letter to Jagmohan Si.ngh stating that he bad be:en directed
by the Secretary, Election Commission· of India, by means of a police
radio message that the respondent was . to be treated as the finally
selected candidate, and that party's reserved symbol 'hand' be
·allotted to him. On May' 8, 1980, the Returning Officer, Moga
Vidhan Sabha Assembly Constituency, addressed a letter to all the
candidates regarding the change in the allotment of election symbols ·
to the effect :
"According to the instructions from the Chief Election
Commissioner of India, certain change has been effected in
the election symbols of the candidates of the election to the
99-Moga Legislative Assembly Constituency which is as
under:
S.No.
Name of the Candidate
Symbol Allotted
I.
Shri Nachhattar Singh
'HAND'
2.
Shri Jagmohan Singh
"BOW & ARROW"
Accordingly, the necessary change of symbols was effected in
Form 7A, the list of contesting condidates. The respondent fought
the election on the reserved symbol of the Indian National Congress
(I)' 'hand' and secured 2f,460 votes. _As against this, the appellant,
who was a candidate of the Lok Dal party, secured 16,686 votes
while the aforesaid Jagmoban Singh as an Independent candidate got
242 votes. The. appellant was therefore defeated by the respondent
by a margin of 5,774 v1)tes. The appellant filed an election petition
challenging the election, of the respondent.under s. JOO (I) (d) (iv)
read withs. 123 (7) of the Act. The averments in paragraphs 4· to 18
related to the change. of symbols allotteil to the respondent viz.
'band' instead of 'bow & airow' allotted to Jagmohan Singh.
'
Upon these facts, it is averred in paragraph 12 that Jagmoban
Singh alone be. deemed to be set up as. a candidate by the Indian
National Congress (I) within the meaning of 'paragraph 13 of the
Election ~ym.bols (Reservation & Allotment) Order, 1968 and not
the responde_nt, and that the · candidates could withdraw· their.
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SUPRBMB COURT REPORTS
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nomination papers under s. 37 (I) before 3 p.m. on May 5, 1980
which was notified by the Election Commission to be. the last date
for withdrawal of candidatures under s. 30 (c) and thereafter the
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Returning Officer was enjoined uod~r s. 38 (I) to publish in the
prescri,bed Form 7A the names and addresses of the contesting
candidates together with the symbols allotted to them. It is then
averred in· par~raph 14 : ·
"On a perusal of para 18 of the Symbols Order it is
clear that the Election Commissi'oo has no power to issue
instructions and directions t9 the Returning Officer of an
Assembly Constituency to reallot the symbol once allotted
to a contesting candidate under sub-rule (4) of rule 10 of the
Conduct of Elections Rules and to allot the symbol reserved ·
for a National Party who has allotted the symbol to a
candidate deemed to be set op by that political party under
para 13 of the Symbols Order to any other person after the
publication of the list of the contesting candidates in
Form 7A."
Io paragraph 15 after stating that Jagmohan Singh had
delivered to 'the Returning Officer a nolice in writing as provided for
'
under paragraph 13 (b) f~om Shri Darbara Singh, President, Punjab
Pradesh Congress (I) Committee, who was duly authorized by the
Indian National Congress (I) to issue such authorization as envisaged
under paragraph 13 (c), the appellant' avers that the action of the
Returning.Officer in recalling on May 8, 1980 the allotment of the
symbol 'hand' to Jagrnohao Singh on May 5, 1980 and allotting the
same to the respondent, was in violatipo of the provisions of the Act
and the rules made thereunder, and the result of the election, insofar
as it concerns the returned candidate i.e. the respondent, has been
materially affected inasmuch as because of the change of symbol
Jagmohao Singh got only 242 votes while the respondent could not
have secured more than the same number if he had contested on the .
·symbol 'bow & arrow' earlier allotted to him' If the respondent had
not been allotted the reserved symbol 'hand' of the Indian National
Congress (I), he could not have woo the election. In paragraphs
16, 17 and 18, the appellant set ont some facts showing how the
result of the election, insofar as it concerns the respondent, has been
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materially affected by the change of allotment of symbols.
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ROOP LAL v, NACHHATTAR SINGH (Sen, J.)
. 709
The respondent filed a written statement controverting the
allegatio.n that there was a breach of paragraph 1'3 of the Symbols
Order by the change of allotment of symbols made by the Returning
. Officer in accordance with the instructions issued by the Election
. ' Commission. It was pleaded, inter alia, that the respondent had
made a declaration in the nominaiion paper' filed by him on May
2, 1980 to the effect that he had been selected as a candidate of the
Indian National Congress (I); and that he had on May 5, 1980
furnished a notice to the Returning Officer signed and issued by
· Shri Darbara Singh,__ President, Punjab Pradesh Congress (I)
Committee, in pursuance of paragraph 13 (b) of the Symbols Order.
It was alleged that after the respondent had been adopied as a candidate by the Indian National Congress (!), Jagmohan Singh made an
effort to get that party's ticket for the seat and produced a letter
from Shri Darbara Singh dated May 5, 1980 before the Returning
Officer showing that he was the official candidate of ·the Indian
National Congress (I). When the respondent learnt of this move on
the part of Jagmohan Singh, he met the President of the Indian
National Congress (I) at New Delhi on the morning of May 5, 1980
and apprised her of the situation' and was i,nformed that he had been
finally selected as the patty candidate and there was no question of
a change.
•
It is further averred that a communication was sent by Shri
Bula Singh on May 5, 1980 to the Chief Election Officer, Punjab,'
Chand.igarh and the Returning Officer, 99-Moga Assembly Constituency, in supersession of all earlier commuqications wi.th regard to
the Assembly Constituency, stating that .the respondent was the
official candidate of the Indian National Congress (I) and that the
party's symbol 'hand' be allotted to him. A letter to this effect was
also delivered by Smt. G. Brar, Member of Parliament to the Election
Commission on the morning of May 5, 1980.
Thereafter, !lhri
Ganesan, Secretary to the Election Commission, got in touch with .
the Chief Electoral Officer; Chandigarh and informed. him that the
respondent was the official candidate of the Indian National Congress
(I). There was a mention of this talk in the telex message sent by the
Secretary to 'the Returning Officer, Moga, with copy to the Chief
Electoral Officer, Punjab on May 5, 1980,
A preliminary objection was raised on behalf of the respondent
that the averments in paragraphs 4 to 18 as well as paragraphs 191\
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and 20, with which we are·not .concerned, do not disclose any cause
of action and therefore they are liable to be deleted under Order
VII, r. I I (a) of the Code of Civil
1 Procedure. The High Court ·
accordingly framed a preliminary issue to the effect :
"Whether paragraphs 4 to i 18, 19 (a) and 20 of the
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election petition have to be deleted because the averments
made therein do· not make out any case for setting aside the
election under s. JOO (I) (d) (tv) and s. 123 (7) of the
Representation of the People. Act:"
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By the judgment under appeal, the High Court sustained the
preliminary objection and directed that the averments in paragraphs
1 4 to 18 be struck out from the electibn petition. In dealing with 'the
question, the High Court observed that the preliminary issue had to
be decided upon a consideration of the pleas in the election petition
and nothing averred in the written 'statement could .be taken into
account.
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· On a consideration of lhe averments in paragraphs 4 to 18 the
High Court felt that the use of the word "instructions" in Annexure
P-I, tlie letter addressed by the Returning Officer, Moga Assembly
Constituency on May 8, 1980 to all the candidates intimating about
the change in the allotment of election symbol to the respondent,
cannot lead to an inference of their b~ing issued under paragraph 18
of the Symbols Order. It then observes :
I
"The petitioner bas not at all disclosed in the election
petition as to what was exactly the order of the Election
Commission behind the instructions in Annexure P-I, and
how it was in contravention of any of the provisions of the
Act, or rule, or order made thereunder."
'
It was urged on behalf. of the respondent" that before filing the
election ·petition it was incumbent on the appellunt to find out the
· entire circumstances in which the Election Commission passed the
order as to the change of symbols and consequently issued instructions to the Returning Officer in that behalf. The High Court
accepted the contention and observed that "in the absence of
material circumstances, non·compliance with the provisions of r. IO
(5) of the Conduct of Election Rules; 1961, or of paragraph 13 of
the Election Symbols (Reservation &. Allotment) Order, 1968 could
not be spelled out." further, the Hi~h Court was of the view (bat
)
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ROOP LAL v. NACHHATTAR SINGH (Sen, J.J
711
the Symbols Order having, been made by the Election Commission
in exercise of the powers under Art. 324 of the Constitution read
with rs. 5 and 10 of the Conduct of Elections Rules, it cannot be
said to be an order made under the Act and therefore the provisions
of s. JOO (I) (d) (iv) of the Act were not attracted. Accqrdingly, the
High Court directed that paragraphs 4·to 18 of the election petition
be deleted.
·
Ii is argued by learned counsel for the appellant that under·
sub-s. (1) of s. 83 of the Act, an election petition must contain a
concise statement of the material facts
on which the election
petitioner relies; the words "material facts" mean the facts necessary
· to formulate a complete cause of action. It'is urged that all the.
material facts have been stated in. the election petition to show that
change of allotment of symbols by the Returning Officer, in
compliance with the directions of the .Election Commission, was in
breach-of r. 10 (5) and paragraph 13 of the Symbols Order which
gave rise to a cause of ~ction under s.-100 (I) (d) (iv) of the Act.
According to the learned counsel, .the appellant had disclosed all the
facts Within his kDOW!~dge and it was DO part of his duty to antici-
· pate the defence and plead facts in relation thereto. '1t is further·
urged that the High Court was in error in holding that the breach of
r, 10 (5), paragraphs 13 and 18 of the Symbols Order does not
constitute non-compliance with any provisions of the Constitution,
or the Act, or any rules or orders made thereunder.
In reply, iearned counsel for the respondent submitted.that the
Symbols Order was n.ot an order made under the Act and therefore
the change of allotment of symbols was a matter which fell outside:
the purview of s. 100 (1) (d)·(iv) of ihe Act, It was urged that there
was no breach of r. 10 (5) of the Conduct of Elections Rules or of
paragraphs 13- and 18 of the Symbols Order inasmuch"' the res-
. pondent was the official candidate set up by Indian National
Congress (I) and he bad in the nomination [laper filed by him before
the Returning Officer on May 3, 1980 made a declaration to the
effect and had also indicated his choice of that party's reserved
symbol 'hand'. Our 11.ttention was drawn to certain averments in the
written statement which tend to show that the respo.ndent was, in
fact, the ·Candidate sponsored, by the Indian National Congress (I).
Learned counseI made a grievance that the appellant had deliberately
supperssed this fact in paragraph 7 of the election petiiion. Further,
he urged that it was incumbent on the appellant !<! fin4 out the
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SUPREME COURT REPORTS
[1983] I s.c.R.
. circumstances in which the Election Cdmmission issued the necessary
instructions as to;the change of symbols under paragraph 18 of the
Symbols order. It was contended that the High Court was therefore
justified in strikinii out paragraphs. 4 to 18 of the election petition
on the ground that they do not disclose any cause· of action. Further
it was contended that the High .Court had no power to order further
and better particulars under Order VI, r, 5 of the Code of Civil
Procedure. In support of the contention, reliance was placed on
Hari Vishnu Kamarh v. The Electio.n Tribunal, Jabalpur & Anr. (')
- In this appeal, two questions arise. First of these is whether
any breach of paragraph 13 or 18 of the Symbols Order amounts to
non-compliance with the provisions of the C~nstitution, or the Act,
or any rules or orders made under the Act and therefore the change
of allotment of symbols by the Returning Officer in compliance with
the directions of the Election Comiμission was a matter which fell
within the purview of s. JOO (1) (d) (iv) of the Act. The second is
whether it was incumbent on the appellant before filing the election
petition to find out the cfrcumstances in which, and. the reasons for
·which, the Election Commission issued necessary instructions under
paragraph 18 of the Symbols Order; 'and. if so, whether failure to
disclose such facts amounts to non-disclosure of material facts i.e. an
incomplete cause of action under s. 100 (I) (d) (iv) of the Act and
therefore the ayerments in paragraphs 4 to 18 of the election petition
were liable to be struck out under ;Order VI, r. 16 of the Code of
Civil Procedure, 1908.
As to the first question, there can be no doubt whatever that
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the Symbols Order is an order made · under the Act.
Under Art.
324 of the Constitution, the superintendence, direction
and control of the preparation of the electoral rolls for, and the conduct of,
all elections to Parliatμent and the Legislature of every State and
of elections to tbe offices of President and Vice-President held
unde_r the Constitution, vests in the Election Commission.
The
Act is a law made by Parliament under Art. 327 of the Constitution
to provide for the conduct of elections to the Houses of Parliament
and to the House or Houses of the Uegislature of each State, the
qualifications and disqualifications for l!'embership of those Houses,
the corrupt practices and other offences at or in co~nection with
(1) AIR 1958 M.P. 168,
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ROOP LAL v. NACHHATTAR SINGH (Sen, J.)
713
such elections and the decision of doubts and disputes arising out
_,.,;
of or in connection with such elections.
Sub-s. (I) of s. 169 of the Act provides that the Central
Government may, after consulting the Election Commission, by
notification in the Official Gazette, make rules for carrying out the
purposes of the Act. Sub·s. (2) thereof provides that in partii:ular,
and without prejudice to the generality of the foregoing power, the
rules framed by the Central Government under sub-s.(I) may
provide for all or any of the matters enumerated therein. In exercise, of the powers under s. 169 of the Act, the Central Government
made the Conduct of Elections Rules, 1961 for the purpose of
regulating the mode of holding elections to the Houses of Parliament
or to the.House or either House of the Legislature of every State.
Rule 5 of the Conduct of Elections. Rules requires· the Election
Comm.ission to specify .the symbols that may be chosen by candidates in parliamentary and assembly ,elections and the restrictions
to which that choice shall be subject, and it provides :
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"5. Symbols for elections in parliamentary and assembly
constituencles-(I) The Election Commission shall, by
notification in the Gazette . of India and in the Official
Gazette of each· State, specify the symbols "that may be
chosen by candidates at elections in parliamentary or
assembly constituencies and the restrictions to which their
choice shall be subject.
(2) Subject to any general or special direction ,issued
by the Election Commission either under· sub-rule (4)
or sub-rule (5) of rule 10, where at any such election,
more nomination papers than one are delivered by or
on behalf of a candidate, the declaration as to symbols
made in the nomination paper first delivered, and
no other declaration as to symbols, shall be taken·
into consideration under rule 10 even if that nomination paper has ·been. rejected".
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directions issued in that behalf by the Election Commission. ·11,
insofar as relevant, reads as follows :
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"JO. Preparation of list of cohtesting candidates :
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(2)
(3)
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(4) At an election in a parliamentary or assembly constituency, where a poll becomes necessary, the returning
officer shall consider the choice of symbols expressed
by the contesting candidates in their nomination papers
and shall, subjeet to any general or special direction
issued in this behalf by the Election Commission -
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(a) allot a different symbol to each contesting candi·
-, date in conformity, as far a• practicable, with his
choice; and
(b) if, more • contes'ting candidates than one have
indicated thei.r preference for the same symbol,
gecide by lot to which of such .,andidates the
symbol will be allotted.
(5) The allotment by·the returning officer of any symbol
to a
candidate shall be final except where it is
inConsistent. with any di~ections issued by the Election
Commission in this beb*lf in wbich case the Election
Commission may revise the allotment in such manner
as it thinks fit."
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The
Election Symbols (Reservation & Allotment) Order,
1968. was issued by the Election Commission in exercise of its pbwers
under Art. 324 of the Constitution read with rs. 5 and I 0 of the
Conduct of Elections Rules, 1961 and all .other· powers enabling in
that behalf. The primary object and purpose of the Symbols Order,
as the long title and the preamble show, is to provide ,for spccificahon, reservation, choice and allotment of symbols at elections in
parliamentary and >1ssemb\y constituencies, for the recognition of
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ROOP LAL v. NACHHATIAR SINGH (Sen, J.)
7JS
political parties in relation thereto and for matters ~onnected there·
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with. ·:The purpose and object of the Symbols Order as well 'as the
source of power under which the Order was issued is brought out in
the preamble which reads :
"Whereas the superintendence, direction and· control .
of all elections to Parliament and to the Legislature · of
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every State are vested· by the Constitutution of India -
in the Election Commission of India.
And, whereas it is necessary and expedient to provide
·in the interests of purity of election to the House ' of the
People and the Legislative Assembly of every State and in
the interests of the conduct of such elections in a fair and
. efficient· manner, for the specification,-. reservation, choice
and allotment of sym~ols for the recognition _of political
parties in relation thereto and ' for matters connected
therewith.
· Now, therefore, in exercise of the powers conferred by
article 324 of the Constitution read with rule 5 and rule I 0
of the Conduct of Elections Rules, 196 l, and all other
powers enabling it in this, behalf, the Election Commission
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of India hereby makes the following Order._"
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It would be apparent from the provisions of the Conduct
of Elections Rules, · 1961 and the Election Symbols (Reservation
& Allotment) Order, 1968 that when elections are imminent,_ allotment of symbols to candidates for elections in parliamentary and
assembly constituencies is but an important stage of such elections.
The provisions for registration of political parties ind iheif recogni:
tion as National or State parties by the Commission are ·only for
the
purpose
or allotment, reservation and
_specification
of
symbols at elections. ·The expression,. "political party" is defined
in paragraph 2 (h) to mean "an association or body of individuals of
India registered with the Commission as a political party under
paragraph 3 and includes a political party deemed to be registered
with the Commission under the proviso to . sub-para (2) of that
paragraph."· Paragraph 3 provides for registration with the Commission of associations and bodies of individuals as political parties9
for the purposes of the ·Order and paragraph 4 provides for allot·
ment of symbols. Paragrai;>l:I
~ g~a,I~ wilb the
classification of
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symbols. According to this paragraph, a 'reserved symbol' is a
symbol reserved for a political party for exclusive use of that party,
A symbol other than the reserved, symbol has be~n described by the
said paragraph to be a 'free symbol'. Paragraph 6 provides for
the
classification of political partie.s. The parties are either
recognized political parties or unrecognized political parties and it lays
down the conditions necessarv for a political party to be treated as
a recognized political party. If a political party is treated as a
recognized political party in four'or more States in accordance with
paragraph 6, it shall have the statu~ of a National party throughout
the whole oflndia. If; on the contrary, a political party is treated .
as a recognized political party in less than four States, it shall enjoy
the status of a State party in the State or States in which it is a
recognized political party. We need not dilate upon this aspect
because it is not in dispu le that the Indian National Congress (0 and
Lok Dal are both National parties. Paragraph 8 regulates the
manner of allotment of symbols, and sub-para (I) and (3) which are
relevant for our purposes read :
"8. Choice of symbols by candidates of National and
State Parties and allotment thereof:
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(I) A candidate set up by a National party at any election
in any constituency in India shall choose and shall be
allotted, the symbol reserved for that party and no
other symbol.
(2)
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(3) A reserved symbol shall not be chosen by, or allotted
to, any candidate in any constituency other than a
candidate set up by a National party fot whom such
symbol has been reserved or a candidate set up by a
State party for whom such symbol has been reserved
in the State in which it is a State party even if no candidate has bten set. up by such National or State
party in that constituency."
9i>aragraphs 9 to 12 deal with certain restrictions on the allotment of
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symbols, concessions to certain candidates as well as choice of
symbols for some categories of candidates with which we are not
9oncerne\l. Paragraph 13 specifies as to when a candidate shall be
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ltOOP LAL v. NACHHATTA!t SINGH (Sen, J.)
71?
. deemed to be set up as a candidate by a political party and reads as
under:
"13. When a candidate shall be deemed to be set · up by
a political party-For the purpose 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 this effect in
his nomination paper ;·
(b) a notice in writing to that effect has, not later than
3 P.M. on the last day of withdrawal of candidatures,
been delivered to the returning officer of the consti·
tuency; and
(c) the said notice is signed by the president, the secretary
or any other office-bearer of the party and the president, secretary or such other office· bearer is a'Uthorised
by the party to se~d· such notice and the name and
specimen signature of the president, the secretary or
such other office-bearer are communicated .in advance
to the returning officer of the constituency and to the
Chief Electoral Officer of the State."
Paragraph 18 which is important for our purposes is in these
terms:
"18. Power of Commission to issue instructio71..s and
directions-The Commission may issue instructions and
directions :
(a) for the clarification of any of the provisions of this·
Order;
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"sions; and
(c) in relation to any matter with respect to the reserva·
tion and allotment of symbols and recognition of
political parties, for which this Order makes no
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provision
or
makes
insufficient provision,
and
prov1s10n is in the
opinion · of the Commission
necessary for the smooth and orderly cond~ct of elections."
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