TaxTMI 
TaxTMI 
1982 (11) TMI 175
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 candidate of the Lok Dal Party. The last date for withdrawal of nomination papers was 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 Jagmohan Singh had been 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) Committee, to the respondent stating that Jagmohan 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. It appears that the Indian National Congress (I) changed its official candidate and finally selected the respondent Nachhattar Singh Gill to be the off....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder s. 30 (c) and thereafter the Returning Officer was enjoined under s. 38 (1) to publish in the prescribed Form 7A the names and addresses of the contesting candidates together with the symbols allotted to them. It is then averred in paragraph 14: "On a perusal of para 18 of the Symbols Order it is clear that the Election Commission has no power to issue instructions and directions to the Returning Officer of an Assembly Constituency to re-allot 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 up 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." In paragraph 15 after stating that Jagmohan Singh had delivered to the Returning Officer a notice in writing as provided for under paragraph 13 (b) from 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), ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....verred that a communication was sent by Shri Buta Singh on May 5, 1980 to the Chief Election Officer, Punjab, Chandigarh and the Returning Officer, 99- Moga Assembly Constituency, in supersession of all earlier communications with 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, Shri 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 19A and 20, with which we are not concerned, do not disclose any cause of action and therefore they are liable....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to be an order made under the Act and therefore the provisions of s. 100 (1) (d) (iv) of the Act were not attracted. Accordingly, the High Court directed that paragraphs 4 to 18 of the election petition be deleted. It 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 action under s. 100 (1) (d) (iv) of the Act. According to the learned counsel, the appellant had disclosed all the facts within his knowledge and it was no part of his duty to anticipate the defence and plead facts in relation thereto. It 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 Ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 (1) (d) (iv) of the Act and therefore the averments 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 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 Parliament and the Legislature of every State and of elections to the offices of President and Vice-President held under 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 Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offence....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (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, subject to any general or special direction issued in this behalf by the Election Commission- (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidates 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 directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit." The Election Symbols (Reservation & Allotment) Order, 1968 was issued by the Election Commission in exercise of its powers under Art. 324 of the Constitution read with Rs. 5 and 10 of the Conduct of Elections Rules, 1961 and all other powers enabling in that behalf. The primary obje....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vides for allotment of symbols. Paragraph 5 deals with the classification of 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 been described by the said paragraph to be a 'free symbol'. Paragraph 6 provides for the classification of political parties. The parties are either recognized political parties or unrecognized political parties and it lays down the conditions necessary 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 status of a National party throughout the whole of India. 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 dispute that the Indian National Congress (I) and Lok Dal are both National parties. Paragraph 8 regulates the manner of allotment of s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....visions; and (c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this order makes no provision or makes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections." In our judgment, the High Court was clearly in error in holding that the Symbols Order was not an order made under the Act and therefore the change of allotment of symbols by the Returning Officer in compliance with the directions issued by the Election Commission, even if it was in breach of paragraph 13 thereof, did not amount to non-compliance with the provisions of the Constitution, or the Act, or any rules or orders made under the Act and therefore the matter fell outside the ambit of s. 100 (1) (d) (iv) of the Act. It is however urged by learned counsel for the respondent that the Symbols Order was not an order made under the Act. Emphasis is laid on the words "under the Act" occurring in s. 100 (1) (d) (iv) of the Act. We are afraid, the argument is too tenuous to be accepted. The Symbols Order was issued by the Election Commission under Art. 324 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the Election Commission in exercise of its power under Art 324 of the Constitution read with Rs. 5 and 10 of the Conduct of Elections Rules and all other powers enabling it in that behalf, are in the nature of general directions issued by the Election Commission to regulate the mode of allotment of symbols to the contesting candidates. 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 order made under the Act. Any other view would be destructive of the very fabric of our system of holding parliamentary and assembly constituency elections in the country on the basis of adult suffrage. As to the second question, there can be no doubt whatever that the High Court was not justified in directing that the averments in paragraphs 4 to 18 of the election petition be deleted on the ground that there was non- disclosure of material facts sufficient to give rise to a cause of action under s. 100 (1) (d) (iv) of the Act. The order passed by the High Court directing the striking out of paragraphs 4 to 18 of the election petition can hardly be supported. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Symbols Order. It is contended that the High Court was therefore justified in striking out paragraphs 4 to 18 of the election petition on the ground that they do not disclose any cause of action inasmuch as the averments therein do not constitute a plea of non-compliance with the provisions of the Constitution, or the Act, or any rules or orders made under the Act so as to attract s. 100 (1) (d) (iv) of the Act. These contentions, in our opinion, cannot be given effect to. The approach of the High Court in dealing with the preliminary issue appears to be wholly unwarranted. In dealing with the question whether or not paragraphs 4 to 18 of the election petition disclose any cause of action, the High Court has cast on the appellant the burden of disclosing facts not within his knowledge. It speaks of his duty to produce evidence prima facie to show that the change of allotment of symbols by the Returning Officer to the respondent was in contravention of r. 10 (5) of the Conduct of Elections Rules read with paragraph 13 of the Symbols Order. It then observes that the onus was on him to establish as to how and under what circumstances the Election Commission issued the instructi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder." It then goes on to observe: "The petitioner has 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-1 and how it was in contravention of the provisions of the aforesaid Act or the rules or order made thereunder." It proceeds to say: "Thus, the argument of the learned counsel for the returned candidate proceeded that before filing the election petition it was incumbent upon the petitioner to find out the entire circumstances in which the Election Commission passed the order as to the change of symbols and consequently issued instructions vide Annexure P-1 to the Returning Officer." In coming to the conclusion that there was non- disclosure of material facts, the High Court observes: "In the complete absence of the material circumstances, non-compliance with the aforesaid provisions could not be spelt out and hence in the election petition none of the said provisions has been specifically sought.... . I direct that paras 4 to 18 of the election petition be deleted." These observations made by the High Court proceed on a misconception of law. It is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce. It is more or less based on Order VI, r.4 of the Code which reads: "4. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading." The High Court has ample power while trying an election petition to direct further and better particulars as to the nature of the claim or defence under Order VI, r. 5 of the Code which reads: "5. A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in an pleading may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just." Under Order VI, r.5, particulars will be ordered of the material facts on which the party pleading relies for his claim or defence. If a party's pleading is defective he can also seek leave to alter and amend his own defective pleading under Order VI, r.17. There is no express rule providing for the consequence of a party failing to del....
X X X X Extracts X X X X
X X X X Extracts X X X X
....claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet." Thus, the word "material" in material facts under s. 83 of the Act 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 "particulars" is quite different, the use of particulars is intended to meet a further and quite separate requirement of pleading imposed in fairness and justice to the returned candidate. Their function is to fill in the picture of the election petitioner's cause of action with information sufficiently detailed to put the returned candidate on his guard as to the case he has to meet and to enable him to prepare for trial in a case where his election is challenged on the ground of any corrupt practice. Sub-s. (1) of s. 87 of the Act enacts that the trial of an election petition shall be, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to th....