Supreme Court of India
SATHI VIJAY KUMARversusTOTA SINGH AND ORS.
- Citation
- 2006 INSC 972
- Decided
- 8 December 2006
- Disposal
- Disposed off
- Bench
- Y K SABHARWAL
Holding
The Supreme Court set aside the High Court's order striking out paragraphs 11, 12 and 13(a), held that the petition disclosed sufficient material facts, affirmed the strike‑out of paragraph 17, and confirmed that non‑joinder of Brijinder Singh was immaterial as he was not a duly nominated candidate.
Summary
Sathi Vijay Kumar, a losing candidate in the 2002 Punjab Assembly election, filed an election petition alleging that the returned candidate, Tota Singh, had committed corrupt practices, including the wrongful deletion of 586 voters' names and the assistance of a gazetted officer. The High Court dismissed several paragraphs of the petition as vague, unnecessary, or contrary to law and held that the non‑joinder of Brijinder Singh, a substitute candidate, was immaterial. The Supreme Court examined the statutory framework for substitute candidates, the applicability of Order VI Rule 16 of the CPC to election petitions, and the requirements of Sections 83 and 123(7) of the Representation of the People Act. It held that the petition contained sufficient material facts and that the High Court erred in striking out paragraphs 11, 12 and 13(a), while confirming the striking out of paragraph 17. The Court also affirmed that Brijinder Singh was not a duly nominated candidate, so his non‑joinder did not invalidate the petition. Consequently, the appeal was allowed in part, restoring the struck‑out pleadings and dismissing the separate appeals concerning non‑joinder.
Issues considered
- The maintainability of the election petition in view of the non‑joinder of Brijinder Singh, a substitute candidate, under Section 82 of the Representation of the People Act.
- Whether paragraphs 11, 12, 13(a) and 17 of the election petition should be struck out under Order VI Rule 16 of the Code of Civil Procedure.
- The correct interpretation of Section 123(7) of the Representation of the People Act regarding assistance of a gazetted officer and the requirement of consent.
- Whether allegations of improper acceptance of independent candidates' nomination papers are sufficiently specific to survive a strike‑out order.
- Whether the rejection of postal ballot papers without the requisite declaration under Rule 54A of the Conduct of Election Rules, 1961, is contrary to law.
- The scope of the Act regarding striking out pleadings and the applicability of CPC provisions to election petitions.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 11, s. Order VI Rule 16
- Conduct of Election Rules, 1961s. Rule 54A
- Election Symbols (Reservation and Allotment) Order, 1968
- Representation of the People Act, 1951s. 100, s. 123(7), s. 30, s. 33, s. 36, s. 37, s. 79, s. 80, s. 81, s. 82, s. 83, s. 86, s. 87
Subjects
election petitionnon‑joinder of partysubstitute candidatestriking out pleadingsRepresentation of the People Actcorrupt practiceSection 123(7)postal ballotCode of Civil Procedurenomination paper
Judgment
SATHI VIJA Y KUMAR A
v.
TOTA SINGH AND ORS.
DECEMBER 8, 2006
[Y.K. SABHARWAL, CJI., C.K. THAKKER AND R. V. RAVEENDRAN, JJ.] B
Representation of People Act, 1951
Election petition
c
Necessary parties-Substitute candidate of a recognized political
party-Held-On acceptance of nomination paper of main approved candidate
of that party, nomination paper of substitute candidate has to be rejected,
and their non-joinder to an Election Petition was of no consequence.
Striking out pleadings-Held-The Act does not make any provision D
as to striking out pleadings-As Code of Civil Procedure, 1908 has been
made applicable to trial of Election Petitions by Section 87 of the Act,
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-However,
normally a Court cannot direct parties as to how they should prepare their E
pleadings-Ifparties have not offended rules ofpleadings by making averments
or raising arguable issues, Court would not strike out pleadings-Power to
strike out pleadings is extraordinary in nature and must be exercised by
Court sparingly and with extreme care, caution and circumspection.
Striking out pleadings-Held-,When election petitioner has expressly F
stated that names of about six hundred electors had been deleted wrongly
and placed on record their entire list along with particulars as to serial
number, house number, name, sex, age, remarks etc., it could not be said that
a/legation was vague or incomplete and liable to be struck down-It was not
necessary for the petitioner to plead one or other reasons for such deletion- G
It was more so as petitioner was neither supplied with copy of order of
deletion of voters nor allowed to inspect it, despite request for same-
Material facts and full particulars as required had been set out-Section 83
and 123 (7).
433 H
\
434 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A Striking down pleading-Allegation that nomination paper of a
candidate improperly accepted-Held that when case is only at stage of
pleading, such allegation cannot be struck down on ground that onus was
on petitioner to discharge burden and to prove how many of voters who had
voted for that candidate would have voted in his favour.
B Striking down pleading-Allegation in election petition that successful
candidate was guilty of corrupt practice of obtaining assistance of Returning
Officer by getting names ofseveral electors wrongly deleted-said fact coming
to light only when those electors went to exercise their right to vote-Also
alleged that order of deletion antedated and said action taken by Returning
C Officer to further prospects of election of successful candidate-Held that
material facts and full particulars as required by Section 83 read with
Section 123(7) of the Act had been set out in election petition and same
could not be deleted.
Section 123(7)-Ambit and scope of-Corrupt practice if assistance is
D sought from a gazetted officer-Held-Consent of candidate is required only
in those cases where such assistance is sought by person other than candidate
himself (or his election agent)-Where candidate himself (or his election
agent) is seeking assistance of a gazetted officer, question of consent does
not arise.
E Conduct of Election Rules, 1961-Rules 54A-Postal ballot without
requisite declaration-Held-Their rejection is not contrary to law-It is
irrelevant that majority of those ballot were of those electors who were
posted outside constituency and were fully conversant with voting procedure.
Appellant was defeated by first respondent in elections for State
F Assembly. Aggrieved by this, he filed and Election Petition in High Court on
the ground that the latter had committed several irregularities and at his
instance, the authorities committed illegalities to favour him, increasing his
chances of success, and thereby he got elected by committing corrupt practice.
On that basis, he prayed that election of first respondent be declared void under
G Representation of People Act, 1951 read with Conduct of the Election Rules,
1961. In response, the first respondent filed written statement contending
that the election petition was not maintainable for non-joinder of necessary
party, non-disclosure cause of action/material facts and for pleadings therein
being otherwise an abuse of process of Court and therefore requiring to be
deleted.
H
SATHI VIJAY KUMAR v. TOTA SINGH 435
High Court held that the election petition could not be dismissed on the A
ground of non~joinder of BS as respondent inasmuch as he was not only son
of first respondent, but was also 'substitute' candidate set up by same political
party which had set up his father, and he had withdrawn his candidature after
nomination paper of his father was accepted. However, the High Court ordered
deletion of certain pleadings from the petition on the grounds that (i) it was B
not enough for the petitioner to allege that names of voters were wrongly
deleted but reasons were required to be pleaded with sufficient exactitude;
allegations that the names have been deleted by ante-dating the record did not
·sufficiently disclose material particulars and were unnecessary for decision
of election petition (ii) allegation of corrupt practice of assistance of Electoral
Registration Officer did not disclose material fact forming a complete cause C
of action within meaning of Section 123(7) of the Act as it was not alleged
that he acted with consent of first respondent and in furtherance of prospects
of his election (iii) regarding independent candidate, it was not disclosed that
votes cast for them were votes of petitioner and improper acceptance of
nomination papers of those candidates had materially affected the result of
the election (iv) allegations regarding improper rejection of postal ballot were D
not accompanied by requisite declaration and petitioner had neither pointed
out any illegality in their rejection nor was it their case that those ballot papers
were not counted.
Disposing of the appeals, the Court
E
HELD 1.1. The High Court was right in observing that once a nomination
paper of the first respondent, was scrutinized and accepted, nomination paper
of BS, 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.
(463-H; 464-A) F
Har Swarup & Anr. v. Brij Bhushan Saran & Ors., (1967) 1SCR342;
Mohan Raj v. Surendra Kumar Taparia & Ors., (1969) 1SCR630; Ram Partap
Chander v. Choudhary Lalla Ram & Ors., (1998) 8 sec 564; Gadnis
Bhawani Shankar v. Faleiro Eduardo Martinho, (2000) 7 SCC 472 and
Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh & Ors., AIR (2001) G
SC 1121, relied on.
1.2. 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'. In view of change in law,
clarifications had been made on nomination papers of candidates set up by H
436 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A 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)
clearly states that once nomination paper of the 'main approved candidate' of
recognized political party is accepted, the nomination paper of a 'substitute'
B 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
C 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'. {463-D, E, F, GJ
Charan Lal Sahu v. Nee/am Sanjeeva Reddy, (1978) 2 SC 500; Krishna
Mohini v. Mohinder Nath Sofat, [2000] 1 SCC 145; Charan Lal Sahu v. Giani
D Zail Singh, (1984] 1 SCC 390 and Charan Lal Sahu v. Dr. A.P.J. Abdul Ka/am
& Ors., (2003[ 1 SCC 609, relied on.
1.3. The High Court was right in rejecting the contention of the returned
candidate that non-joinder of BS as party respondent was of no consequence
as he could not be regarded as 'duly nominated candidate' by a political party
E i.e., Shriomani Akali Dal (Badal). That part of the decision, therefore, does
not deserve interference. [467-C]
2.1. The Act does not make any provision as to striking out pleadings.
Section 83 of the Act mandates that every election petition should contain
F 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 and 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 Section 86 is not
exhaustive as to the grounds of dismissal of an election petition in limine.
G Moreover, the provisions of the Code of Civil Procedure, 1908 have been made
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. It empo'Yers a Court to strike out any plead~!1g if it is
H
SATHI VIJA Y KUMAR v. TOTA SINGH 437
unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass A
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. (447-G, H; 448-A, DJ
Davy v. Garrett, (1878) 7 Ch D 473: 47 LJ Ch 218, referred to. B
Halsbury's Laws ofEngland, (4th Edn.; Vol. 9; para 38), Supreme Court
Practice, 1995, p. 344 (Sweet & Maxwell), referred to.
2.2. 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 C
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. (449-E)
Azhar Hussain v. Rajiv Gandhi, (1986) Supp SCC 315, relied on.
D
2.3. 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 E
circumspection. (450-CJ
Roop Lal v. Nachhatar Singh, (1982) 3 SCC 487; K.K. Modi v. K.N
Modi, [1998) 3 SCC 573 and United bank of India v. Naresh Kumar, [1996)
6 sec 660, referred to.
F
Knowles v. Roberts, (1888) 38 Ch D 263, referred to.
3.1. 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 VH, Rule 11 of the Code. Q
[450-H; 451-AI
3.2. 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. In Schedule 'A' to H
438 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A the election petition, sufficient particulars as to serial number, house number,
name of voters, sex, age, remarks etc., have been mentioned.1452-F, G]
3.3. The High Court was not right in observing that it was not sufficient
to allege that the names have been wrongly deleted and "one or the other
reasons" must be pleaded by the petitioner for such deletion. The action of
B 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
ground/reasons as to why the names had been deleted. He prayed for supply
C 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· 1arge scale had been
committed while preparing electoral rolls. Therefore, the High Court was
wholly wrong in observing that the allegation regarding deletion of 586 voters
from the voters' list was vague. The High Court was equally wrong in holding
D that the allegation of antedating the election rolls, was "incomplete and vague".
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.
f452-H; 453-A, D] ~·
E
4.1. The allegations in the election petition are clear that the first
respondent was guilty of corrupt practice of obtaining assistance of a Gazetted
Officer who was a Returning Officer as well as Eleetoral Registration Officer.
It was also alleged that the first respondent got names of several electors
F (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 the Returning Officer with a view to furtherance of the prospects of the
election of respondent No.1. therefore, material facts and full particulars as
G 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.1454-E, F, G)
4.2. 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 enacts
'. H that it would be deemed to be a corrupt practice if assistance is sought from
SATHI VIJA Y KUMAR v. TOT A SINGH 439
a gazetted officer in certain cases. Such assistance may be sought either by A
(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 B
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 " 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 C
Act. (455-A, DJ
5. High Court was wrong in striking down pleading in election petition
regarding independent can~idate whose nomination paper was alleged to be
improperly accepted, observing that onus was on the election-petitioner to
discharge burden and to prove how many of the voters who had voted for the D
independent candidate would have voted in favour of the petitioner. Case was
not at the stage of trial but only at the stage of pleadings. [456-E, Fl
Shiv Charan Singh v. Angad Singh, (1988) 2 SCC 12 and Santosh Yadav
v. Narender Singh, AIR (2002) SC 241, held inapplicable.
6. When the Returning Officer has passed the order that out cf22 postal
E
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 wer'e rejected. On
the contrary, election-petitioner himself stated that 20 ballot papers came to F
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. 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
G
the action has been taken in consonance with Rule 54A of the Rules.
[457-D, E, F)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4093of2004.
From the interim Order dated 27 .2.2004 of the High Court of Punjab and H
440 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A Haryana at Chandigarh in E.P. No. I3/2002.
-
Ravinder Shrivastava, P.S. Narasimha, Amit Sharma, Anupam Lal Das,
Rishi Malhotra, Prem Malhotra and M. Munnam Kunal Verma, Arjun Garg,
Rahul Shrivastava and Rishi Malhotra for the appearing parties.
B The Judgment of the Court was delivered by
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.
C To appreciate the issues raised in the present appeals, relevant fact 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
D 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, respon~ent No. I was the candidate set up by Shiromani Akali Dal
(Badal). The nomination papers were scrutinized on January 24, 2002. The last
E date for withdrawal of candidature was January 28, 2002. Polling took place
on February I3, 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. I secured 42,579 votes. Thus, there was a difference of 304
votes. Accordingly, the first respondent was declared as successful candidate.
F
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 Rampa! Dhawan a!so filed a petition being
Election Petition No. 4 of2002 against the first respondent. So far as Election
G 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 illegalities
to favour the first respondent and increased chances of his being declared
as returned candidate and thereby the first respondent got elected by
H committing corrupt practice. It is also the allegation of the election petitioner
SA THI VIJAY KUMAR v. TOTA SINGH [C.K. THAKKER, .I.] 441
that those illegalities and irregularities had materially affected the result and A
the election of the returned candidate was required to be declared void under
the provisions of the Representation of the People Act, 195 l (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 B
election of the successful candidate-respondent No. I 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 C
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 D
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 E
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 p
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 G
result of the election had been materially affected. It was, therefore, submitted
that the election petition was required to be decided in acc·ordance with law
on merits.
The High Court, on January 13, 2003 framed as many as twelve issues
H
A
442 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R.
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 ~ under;
B 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
C 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
D 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
E from the pleadings, if so to what effect?
6. Whether the petition is liable to be dismissed if the issue No. I
to 5 are decided in favour of the respondent No. I?
The High Court heard the learned counsel for the parties on the above
F issues. As to issue No.I regardingjoining ofBrijinder 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
G 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
H has filed two appeals (Civil Appeal Nos. 5999 and 6000of2004). We will deal
SATHI VIJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.] .443
with the said matters at an appropriate stage. A
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. Accordingly, an order was passed on February B
27, 2004 striking out pleadings. In Civil Appeal No. 4039 of2004,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 C
by the returned candidate against a finding recorded against him on Preliminary
Issue No. l. 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 of2004).
D
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, I3(a), I I 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 E
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 F
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 G
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
H
444 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A 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
B 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
C 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 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
D 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. I, it was submitted by
the counsel that the High Court was wrong in· rejecting the preliminary
E objection raised by the returned candidate. According to the counsel, once
the nomination papers were scrutinized and the nomination paper ofBrijinder
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.
p 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
G irrelevant as far as the maintainability of election petitions were concerned.
Since the High Court decided issue No. I 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.
H
SATHI VIJAY KUMAR v. TOTA SINGH [C.K. THAKKER, J.] 445
Before we deal with the contentions of the parties, it would be A
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. B
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
c
for a valid nomination, the relevant part thereof reads thus;
33. Presentation of nomination paper and requirements for a valid
nomination.-(!) On or before the date appointed under clause (a) of
Section 30 each candidate shall, either in person or by his proposer, D
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
and by an elector of the constituency as proposer:
E
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
pr~posers being electors of .the constituency.
F
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 G
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 H
446 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A 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.
B
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
C 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;
D "82. Parties to the petition.-A 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
E 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."
F
Section 83 deals with contents of petition. It is also a material provision
and may be reproduced;
"83. Contents ofpetition. (l) An Election petition (a) shall contain a
concise statement of the material facts on which the petitioner relies;
G
(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
H (c) shall be signed by the petitioner and verified in the manner laid
SATHI VIJA Y KUMAR v. TOT A SINGH [C.K. THAKKER, J.] 447
down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification A
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 B
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 C
section reads thus;--
123. Corrupt practices. The following shall be deemed to be corrupt
practices for the purposes of this Act:
(l)to(6) ..... D
(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 E
service of the Government and belonging to any of the following
classes, namely:-
(a) gazetted officers;
(b) to (g)° ....... .
F
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 G
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 H
448 SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.
A of dismissal of an election petition in limine. Moreover, the provisions of the
~ Code have been made 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
B provision is found in Rule 16 of Order VI which reads thus:
I 6. Striking out pleadings. -The Court may at any stage of the
"j)roceedings order to be struck out or amended any matter in any
pleading-
(a) which may be unnecessary, scandalous, frivolous or vexatious,
c or
(b) which may tend to prejudice, embarrass or delay the fair trial of
Jhe suit, or
(c) which is otherwise an abuse of the process of the Court.
D 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
E 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
F 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
G 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
H
SATHI VIJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.] 449
are wanting in bona fides or which are frivolous, vexatious, a 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 B
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 & Maxwell), it has been C
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 D
litigation ... The categories of conduct rendering a claim frivolous, vexatious
or !in 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 E
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, F
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 G
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 H
450 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A 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.
B The fact that art 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.
C 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
D [vide Roop Lalv. 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; and United
Bank of 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:
E
"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 offepd against
the rules of pleading which have been laid down by the law; and if
F 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 plaintiffs claim
presented in an intelligible form, so that he may not be embarrassed
G 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
H High Court has also not dismissed the petition on the ground that it did not
SATHI VIJA Y KUMAR v. TOT A SINGH [C.K. THAKKER, 1.] 451
disclose the cause of action as required by Section 83 of the Act read with A
Order VII, Rule I I of the Code. While considering issue Nos. ~-to 5, the High
Court held that pleadings in paragraphs I2, l3(a), I I and I 7 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.
B
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 hsd gone to cast their votes had to come back as their names C
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 D
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 E
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. I has been declared elected is only 305, this refusal has resulted in p
materially affecting the result of the election in so far as the respondent is
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. G
The first respondent contended that the allegations in paragraph I2
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 H
452 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
A 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
B electorals were mentioned which contained reasons for t~e 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
C 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 IOO(l)(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
D 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
E 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
F 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
G 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 ofthe High Court that it was not sufficient to allege that the
H names have been wrongly deleted and "one or the other reasons" must be
SATHI VIJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.] 453
pleaded by the petitioner for such deletion. The action of deletion was not A
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 B
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 C
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. D
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 of99 Moga Constituency E
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. I 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 F
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. I, was for furtherance of prospects of his election and, thus, G
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 H
454 ·SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A 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
B 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. I and in furtherance of the prospects of his election". The High Court also
C stated that "it has not been alleged by the petitioner that the procedure meant
for revision of electoral rolls has not been followed. The only allegation is that
the electoral rolls had been antedated".
The li_igh Court then made the following observations; "Mere fact that
D a Gazetted O(ficer was discharging the duties of Electoral Registration Officer
and under w~ose 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".
E
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
F 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
G election of respondent No. I. 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
l 3(a) of the eledion petition.
The High Coµrt observed that it was not alleged by the petitioner that
H Electoral Registration Officer had acted with the consent ofthe first respondent
.. SATHI VIJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.] 455
for the furtherance of the prospects of the first respondent. A
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 B
(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 C
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 l3{a) on the basis of construction of Section 123(7) D
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 E
paper was required to be subscribed by ten proposers. In case one or more
of 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 F
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 ofnomination paper ofHarish Kumar, therefore,
according to the petitioner, had materially affected the result of the election. G
In para l l(b), the election-petitioner stated that one Harnek Singh had
filed his nomination paper as an independent candidate. Out often 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 H
456 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A went to show that ten proposers had not subscribed nomination of Hamek
Singh and his nomination paper was wrongly accepted. Hamek Singh secured
150 votes. The petitioner asserted that more than I 00 of the said votes would
have been polled in his favour. Thus, wrongful acceptance of the nomination
paper of Hamek Singh had materially affected the result of the election.
B 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
C 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
D 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. I I was wholly unnecessary and would
delay the fair trial of the case and therefore required to be deleted.
E In our opinion, the High Cou.rt 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
F 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 stag'e of trial but only at the stage of pleadings. The ratio laid
down in the above cases, therefore, in our considered opinion, has no
G application in the case on hand and the High Court was wrong in invoking
the law laid down in the aforesaid 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
H that the ballot papers were not shown to the petitioner or his election agent
SATHI VIJAYKUMAR.v. TOTA SINGH [C.K. THAKKER, J.] 457
and 20 out of 22 ballot papers were rejected by the Returning Officer saying A
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 B
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 C
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 D
striking off paragraph 17. When the Returning Officer has passed the order
that out of22 postal ballot papers, 20 did not contain the requisite declCJration
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 E
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 F
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 of2004 are concerned, they have
been filed by the returned candidate Tota Singh against the decision on G
preliminary issue No. I as to maintainability of petitions. As already noted in
Election Petition No. 4 of2004, as also in Election Petition No. 13 of2004, 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. H ·.
458 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A The learned counsel for the appellant contended that Section 82 of the
I
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 'candidate' within the
B meaning of Clause (b) of Section 79 of the Act, non-joinder ofBrijinder 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
C 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.
· D 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
E and came to the conclusion that Brijinder Singh was not a cand_idate 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
p and as such he could not become duly nominated candidate.
ln Krishna Mohini v. Mohinder Nath Sofat; (2000] l 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.
G
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
H proviso which is now the second proviso in the present form.
SATHI VIJAYKUMAR v. TOTA SINGH [C.K. THAKKER, J.] 459
25. In exercise of the powers conferred by Article 324 of the A
Constitution read with Section 29A of the Representation of the
People Act, 1951 and Rules 5 and IO 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 B
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 C
political party in a Stat~, a political party must satisfy 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 D
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 E
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. F
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.
For 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
G
nomination paper;
(b) a notice in writing to that effect has, not later than 3 p.m. on
last, date for making nominations, been deJivered to the Returning
Officer of the constituency and the Chief Electoral Officer of the H
460 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A State;
(o) 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
B (d) the name and specimen signature of such authorised person
are communicated to the Returning Officer ofthe 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
c 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
D by sub-dividing them into recognised and unrecognised political
parties 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
E 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 a/ia
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
F 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".
G 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 th~ amended Section 33 of the Representation of the People
H Act, 1951, the nomination Jf a candidate at the election to the House
..
SATHI VJJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.] 461
of the People or a State Legislative Assembly shall be required to be A
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 : B
(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 C
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 D
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 to the candidates set up by them to the
aforesaid authorities NOT LATER THAN 3.00 P.M. ON THE LAST E
DATE FOR MAKING NOMINATIONS IN FORMS 'AI 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. F
15. As a result of the aforesaid amendments made to the Forms of
nomination paper and paragraph 13 of the Symbols 01der, 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 co.py each G
ofthe revised Forms 'A' is also enclosed herewith for your information
and use at all future elections. It will be observed from the revised
Fonn '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
H
462 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A 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
B 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.
C Instructions were also issued to Returning Officers in the fonn of
'Handbook for Returning Officers for Election to the House of People and
State Legislative Assemblies'. Para I 0 of Chapter VI (Scrutiny) enumerates the
grounds for rejection of nomination papers.
The Handbook took note of change in law and recited;
D "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
E
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
F political party will be rejected if the nomination paper of the main
approved candidate of that recognised political party is accepted.
However, if such 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, ifthe nomination paper of the main
G 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 Fonn '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
H
'
SATHI VIJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.) 463
reliance was placed by the parties. The learned counsel for the returned A
candidate referred to decisions of this Court in Har Swarup & Anr. v. Brij
Bhushan Saran & Others., [ 1967] 1 SCR 342, : AIR ( 1967) SC 836, Mohan Raj
v. Surendra Kumar Taparia & Ors., [1969] I SCR 630,: AIR (1969) SC 677;
Ram Partap Chander v. Choudhary Lalla Ram & Ors., [I998] 8 SCC 564,
Gadnis Bhawani Shankar v. Faleiro Eduardo Martinho, [2000] 7 SCC 472, B
: AIR (2000) SC 2502 and Patangrao Kadam v. Prithviraj Sayajirao Yadav
Deshmukh & Ors., AIR (200 l) 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 C
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.
D
In our opiniorf, the High Court was right in deciding the issue keeping
in view the amended provisions of the Act, the Rules, Circular dated August
9, I996 and relevant provisions ofthe '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 E
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 F
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 G
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 was shown to be a 'candidate' of
Shiromani Akali Dal (Badal) while Brijinder Singh was described as 'substitute' H
of Shiromani Akali Dal (Badal). As nomination paper of Tota Singh had been ·
464 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A 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
B 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 mnn 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 (I) of the Act and Brijinder Singh
C 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
D stated that under the head 'Candidates of recognized National and State
po·Jitical parties', two names have been shown belonged to Shriomani Akali
Dal at serial No. 5 & 7, (i) Tota Sngh and (ii) i3rijinder Singh respectively. The
appellant has also annexed in the rejoinder affidavit at Annexure P/9, Form
No. 7A under Rule I 0 (I) ('List of contesting candidates') tn which name of
Tota Singh only appears. It was the case of the returned candidate-appellant
E herein that after acceptance ofnomination 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.
F 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
G 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
H provisions as to grant of Election Symbol, the point is also concluded by
SATHI VIJA Y KUMAR v. TOTA SINGH [C.K. THAKKER, J.] 465
various decisions of this Court. A
In Charan Lal Sahu v. Nee/am 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 ifthe 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 B
election of the President.
In Charan Lal Sahu v. Giani Zail Singh, (1984] 1 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 C
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 D
were not duly nominated as candidates, their petitions cannot be
dismissed on that ground since they "claim to have been duly
nominate.d". 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 E
duly nominated cannot be made by a person whose nomination paper
does not comply with the mandatory requirements of Section 5-B
(l)(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 F
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, ifthe 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 G
duly nominated if he proves that the said proposer was in fact an
I '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 H
466 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A 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 contestan~ whose
nomination paper is not subscribed by at least ten electors as proposers
and ten electors as seconders, as required by Section 5-B (l)(a) of the
Act, cannot claim to have been duly nominated, any more than a
B 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
c 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 Ka/am & Ors., [2003]
I SCC 609, this Court was called upon to consider a similar question. Following
earlier decisions, this Court held that since the nomination paper of the
.D 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;
E
"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 (I) of.Section 33 of the Act makes it clear that a candidate not
set up by a recognised political party, meaning thereby a candidate
F 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-
G 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
H
.•
SATHI VIJAY KUMAR v. TOTA SINGH [C.K. THAKKER, J.] 467
because there can be only one candidate set up by a recognised A
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 B
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 C
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 D
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 E
on such application. Neither any application was made nor permission was
sought and the documents were placed along with the affidavit-in-rejoinder.
J
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 F
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 G
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 H
468 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A 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.
v.s. Appeals disposed of.
l'...
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