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CASE NO.: Appeal (civil)  4093 of 2004

PETITIONER: SATHI VIJAY KUMAR

RESPONDENT: TOTA SINGH & OTHERS

DATE OF JUDGMENT: 08/12/2006

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

JUDGMENT: JUDGMENT WITH

CIVIL APPEAL Nos. 5999-6000 OF 2004

C.K. THAKKER, J.

       All these appeals have been instituted by the  aggrieved appellants against separate orders passed by  the High Court of Punjab & Haryana at Chandigarh.

To appreciate the issues raised in the present  appeals, relevant facts may be stated in brief.

Sathi Vijay Kumar, appellant in Civil Appeal No.  4093 of 2004 was a candidate in the general election of  the Punjab Constituent Assembly from 99, Moga  Constituency scheduled to be held in February, 2002.  According to the appellant, the Election Commission of  India issued a notification for holding election in the  State of Punjab. The last date for filing nomination  papers as per the programme was January 23, 2002.  The appellant filed his nomination paper as a candidate  of the Indian National Congress whereas Tota Singh,  respondent No.1 was the candidate set up by Shiromani  Akali Dal (Badal). The nomination papers were  scrutinized on January 24, 2002. The last date for  withdrawal of candidature was January 28, 2002. Polling  took place on February 13, 2002. Votes were counted on  February 24, 2002 and the results were also declared on  the same day. The appellant secured 42,275 votes, while  respondent No.1 secured 42,579 votes. Thus, there was  a difference of 304 votes. Accordingly, the first  respondent was declared as successful candidate.

       On April 8, 2002, the appellant filed a petition  being Election Petition No. 13 of 2002 in the High Court  of Punjab & Haryana at Chandigarh challenging the  election of the first respondent, inter alia, on the ground  of corrupt practice. Likewise, one Rampal Dhawan also  filed a petition being Election Petition No. 4 of 2002  against the first respondent. So far as Election Petition  No. 13 is concerned, the election petitioner (appellant  herein) alleged that the first respondent had committed  several irregularities and illegalities and at his instance,  the authorities had indulged in committing such

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illegalities to favour the first respondent and increased  chances of his being declared as returned candidate and  thereby the first respondent got elected by committing  corrupt practice. It is also the allegation of the election  petitioner that those illegalities and irregularities had  materially affected the result and the election of the  returned candidate was required to be declared void  under the provisions of the Representation of the People  Act, 1951 (hereinafter referred to as ’the Act’) read with  the Conduct of the Election Rules, 1961 (hereinafter  referred to as ’the Rules’). Similar was the case of the  election petitioner in Election Petition No. 4 of 2004. He  also prayed to set aside the election of the successful  candidate-respondent No.1 herein.

       The first respondent filed written statement, inter  alia, contending that election petitions filed by the  petitioners were not maintainable at law and were liable  to be dismissed at the threshold. It was contended that  necessary parties who were required to be joined in the  election petitions were not joined inasmuch as Brijinder  Singh had filed nomination form which had been  scrutinized and had been accepted after such scrutiny  had not been joined as party respondent. In absence of  Brijinder Singh in the election petition as one of the  respondents, the petitions were liable to be rejected. It  was also contended that since allegations of corrupt  practice had been levelled against Brijinder Singh, it was  obligatory on the election petitioners to make him a  party-respondent which was not done. The said defect  was of a fundamental nature and the petitions could not  be entertained by the High Court.

In respect of Election Petition No. 13 of 2004, it was  further contended by the first respondent that the  petition was liable to be dismissed on the ground that it  did not disclose cause of action. Material facts and full  particulars as required by the Act had not been set out  in the election petition which went to the root of the  matter requiring the dismissal of the petition. It was also  the case of the first respondent that pleadings in certain  paragraphs were vague, unnecessary, frivolous or  vexatious which would tend to prejudice, embarrass or  delay fair trial of the election petition and were otherwise  an abuse of process of the Court and, therefore, they  were required to be deleted.

Replication was filed by the petitioner denying the  averments made by the first respondent in his written  statement and reiterating that material facts and full  particulars had been given in the petition. Allegations  were specific and positive, several illegalities and  irregularities had been committed and result of the  election had been materially affected. It was, therefore,  submitted that the election petition was required to be  decided in accordance with law on merits.

The High Court, on January 13, 2003 framed as  many as twelve issues in Election Petition No.13 of 2004.  Since we are concerned in the present appeals only with  regard to preliminary issues, as the High Court decided  the petition on those issues, we are not considering the  issues other than preliminary issues dealt with and  decided by the High Court. Preliminary issues were issue  Nos. 1 to 6 and they were as under;

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1.      Whether the election petition is liable to  be dismissed under Section 86(1) of the  Representation of People Act, 1951 for  non joinder of Brijinder Singh, a  candidate in the said election as the  respondent in the election petition?

2.      Whether paragraphs 7, 8, 9, 12 and 14  are vague, do not constituency illegality  and irregularity and do no disclose any  cause of action and triable issue and as  such are liable to be struck off from the  pleading?

3.      Whether paragraph 10, 13 alongwith  sub paras alleging corrupt practices are  vague, deficient in material facts and are  liable to be struck off from the  pleadings?

4.      Whether paragraph 11 alongwith its sub  paras are vague, deficient in material  facts and are liable to be struck off from  the pleadings?

5.      Whether paragraphs 15 to 17 are vague,  do not disclose any cause of action and  triable issue and are liable to be struck  off from the pleadings, if so to what  effect?

6.      Whether the petition is liable to be  dismissed if the issue No.1 to 5 are  decided in favour of the respondent  No.1?

The High Court heard the learned counsel for the  parties on the above issues. As to issue No.1 regarding  joining of Brijinder Singh as party-respondent in both  the election petitions, the High Court held that non- joinder of Brijinder Singh as party respondent could not  be held to be fatal and the election petitions could not be  dismissed on that ground inasmuch as Brijinder Singh  was a ’substitute’ candidate set up by the same political  party i.e., Shiromani Akali Dal (Badal) which had set up  Tota Singh-first respondent, whose nomination paper  had been accepted after scrutiny. Brijinder Singh, was  the son of Tota Singh. He had withdrawn his  candidature on the date of withdrawal after the  nomination paper of his father was accepted as a  candidate belonged to Shiromani Akali Dal (Badal). The  said order was passed by the High Court on May 2,  2003. Against the said order, the returned candidate  Tota Singh has filed two appeals (Civil Appeal Nos. 5999  and 6000 of 2004). We will deal with the said matters at  an appropriate stage.

The Court then considered issue Nos. 2 to 5 and  concluded in issue No.6 that considering the pleadings of  the parties and in the light of the statutory provisions as  well as the law laid down by this Court, paragraphs 12,  13(a), 11 and 17 forming subject matter of issues 2, 3, 4  and 5 were liable to be struck out from pleadings.

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Accordingly, an order was passed on February 27, 2004  striking out pleadings. In Civil Appeal No. 4039 of 2004,  the election petitioner of Election Petition No. 13 of 2002  has challenged the said order.

On July 12, 2004, leave was granted by this Court,  printing was dispensed with and appeal was ordered to  be heard on SLP paper book. Time was granted to file  additional documents. In the meanwhile, two SLPs were  filed by the returned candidate against a finding  recorded against him on Preliminary Issue No.1. The  present appeal was ordered to be heard along with those  SLPs which were also admitted by granting leave on  September 10, 2004 (Civil Appeal Nos.5999 and 6000 of  2004).

       We have heard the learned counsel for the parties.  In Civil Appeal No. 4093 of 2004, it was contended by  the learned counsel for the appellant that the High Court  committed an error of law in striking out pleadings in  paragraphs 12, 13(a), 11 and 17. He submitted that  material facts and particulars had been stated in the  election petition in the said paras. Pleadings were  express and specific on the point disclosing cause of  action and raising triable issues. They could neither be  said to be vague, embarrassing, vexatious, frivolous or  unnecessary and could not have been struck off. It was  also stated that full details have been set out in the  election petition itself as to how illegalities had been  committed by the returned candidate and the election  authorities had obliged him by increasing his chances to  get elected. It was also alleged in the petition that  illegalities committed by the first respondent materially  affected the result of the election. But for such  illegalities, the election petitioner would have been  elected. Regarding corrupt practice, sufficient particulars  have been stated in the petition. The High Court was  wholly wrong in ordering striking off certain paragraphs.  The appeal, therefore, deserves to be allowed by setting  aside the order of the High Court and by directing the  Court to consider the allegations levelled by the  appellant in the election petition and to decide the  petition on merits in accordance with law.

So far as the non-joinder of Brijinder Singh as party  respondent is concerned, it was submitted by the  learned counsel that the High Court was wholly justified  in rejecting the contention of the returned candidate in  view of the fact that Brijinder Singh was a ’substitute’  candidate of the same party to which the returned  candidate belonged and as soon as nomination paper of  Tota Singh was accepted after scrutiny and the said  political party was represented through Tota Singh,  Brijinder Singh could not be said to be a candidate  belonged to the said political party and the petition could  not have been dismissed on that ground.

The learned counsel for the first respondent, on the  other hand, supported the order passed by the High  Court on the reasoning and conclusions on issue Nos. 2  to 6. He submitted that material facts and full  particulars as required by the Act, had not been stated  with sufficient precision. According to the counsel,  vague, unnecessary and vexatious averments have been  made which were not in consonance with the provisions

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of Order VI, Rule 16 of the Code of Civil Procedure, 1908  (hereinafter referred to as ’the Code’). The Court minutely  considered the pleadings keeping in view the relevant  decisions and finally came to the conclusion that certain  paragraphs were required to be struck off. Such an order  could not be said to be illegal or contrary to law  requiring interference by this Court. He, therefore,  submitted that the appeal filed by the election petitioner  was liable to be dismissed.

Regarding appeals against preliminary issue No.1,  it was submitted by the counsel that the High Court was  wrong in rejecting the preliminary objection raised by the  returned candidate. According to the counsel, once the  nomination papers were scrutinized and the nomination  paper of Brijinder Singh was found to be in order and  was accepted, the High Court could not have held that  Brijinder Singh was not a candidate at the election as he  was a ’substitute’ candidate and non-joinder of Brijinder  Singh was immaterial. Even if it is assumed that  acceptance of nomination paper of Brijinder Singh was  not in accordance with law, the fact could not be ignored  that such nomination paper had been accepted by the  Returning Officer. Once it was done, other questions as  to whether he was a candidate belonged to the same  party or was a substitute or was son of the appellant or  the fact that he subsequently withdrew his nomination  paper were totally immaterial and irrelevant as far as the  maintainability of election petitions were concerned.  Since the High Court decided issue No.1 against the  returned candidate which was not in accordance with  law, the order deserves to be set aside by allowing the  appeals of the first respondent holding both the election  petitions not maintainable.

Before we deal with the contentions of the parties,  it would be appropriate to consider the relevant  provisions of the Act. Part I is Preliminary. Part II deals  with qualifications and disqualifications for membership  of Parliament and of State Legislatures. While Part III  provides for issuance of notifications for elections, Part  IV relates to administrative machinery for the conduct of  elections. Conduct of elections has been dealt with in  Part V. Section 30 requires the Election Commission to  issue a notification in the Official Gazette fixing the last  date for making nominations, the date for scrutiny of  nominations, the last day for the withdrawal of  candidatures, the date or dates of poll and the date  before which the election should be completed.

Section 33 provides for presentation of nomination  paper and requirement for a valid nomination, the  relevant part thereof reads thus;

33. Presentation of nomination paper and  requirements for a valid nomination.\027(1)  On or before the date appointed under clause  (a) of Section 30 each candidate shall, either  in person or by his proposer, between the  hours of eleven O’clock in the forenoon and  three O’clock in the afternoon deliver to the  returning officer at the place specified in this  behalf in the notice issued under Section 31,  a nomination paper completed in the  prescribed form and signed by the candidate

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and by an elector of the constituency as  proposer:

Provided that a candidate not set up by a  recognized political party, shall not be deemed  to be duly nominated for election from a  constituency unless the nomination paper is  subscribed by ten proposers being electors of  the constituency.

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

Section 36 relates to scrutiny of nomination. It  requires the Returning Officer to examine nomination  papers and to decide all objections which may be made  to any nomination. It also empowers him either on  objection being taken or suo motu, after such summary  inquiry, if any, as he thinks necessary, to reject any  nomination, inter alia on the ground that there has been  a failure to comply with any of the provisions of Section  33.  Sub-section (8) of Section 36 then provides;  "(8) Immediately   after  all  the  nomination   papers  have   been  scrutinized  and decisions  accepting or rejecting the same  have  been   recorded,  the  returning  officer shall prepare  a   list  of  validly  nominated  Candidates,  that is to  say, candidates  whose  nominations  have been  found valid, and affix it to his notice board.   

Section 37 allows withdrawal of candidature.  Section 38 directs the Returning Officer to prepare and  publish a list of contesting candidates.  

Part VI relates to ’Disputes regarding elections’.  Section 79 defines certain expressions, including  ’candidate’ to mean "a person who has been or claims to  have been duly nominated as a candidate at any  election". Section 80 requires any election to be  questioned only by way of election petition. Under  Section 80A, it is the High Court which can try election  petitions. Section 81 provides for presentation of election  petition and prescribes the period of limitation.

Section 82 declares as to who shall be joined as  respondents to such election petition. The said section  reads thus; "82. Parties to the petition.\027A petitioner  shall join as respondents to his petition-    (a)  where  the  petitioner,  in  addition  to   claiming   a declaration  that the election of  all or any of the  returned candidates  is  void,  claims a further  declaration  that  he         himself or any other candidate has been duly  elected, all the contesting candidates other  than the petitioner, and where no such   further  declaration  is  claimed,  all  the    returned candidates ; and   (b) any other candidate against whom  allegations  of  any corrupt practice are made  in the petition."  

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 Section 83 deals with contents of petition. It is also a  material provision and may be reproduced; "83. Contents of petition. (1) An Election  petition (a) shall contain a concise statement  of the material facts on which the petitioner  relies;  (b) shall set forth full particulars of any  corrupt practice that the petitioner alleges  including as full a statement as possible of  the names of the parties alleged to have  committed such corrupt practice and the date  and place of the commission of each such  practice; and  (c) shall be signed by the petitioner and  verified in the manner laid down in the Code  of Civil Procedure, 1908 (5 of 1908) for the  verification of pleadings: provided that where  the petitioner alleges any corrupt practice, the  petition shall also be accompanied by an  affidavit in the prescribed form in support of  the allegation of such corrupt practice and  the particulars thereof.  (2) Any schedule or annexure to the petition  shall also be signed by the petitioner and  verified in the same manner as the petition."  Section 100 enumerates the grounds on which  election of a returned candidate may be challenged and  declared void. Commission of corrupt practice is one of  the grounds for declaring an election void. Section 123  declares certain practices as "deemed to be corrupt  practices". The material part of the section reads thus;-- 123.  Corrupt  practices.  The  following shall  be   deemed  to  be  corrupt practices for the purposes  of this Act:                                                                                  (1)     to (6) \005 (7)        The  obtaining  or procuring or abetting  or   attempting  to obtain or procure by a candidate  or his agent or, by any other  person with  the   consent  of  a candidate  or  his  election  agent,   any assistance (other than the giving of vote) for  the furtherance of  the prospects of that  candidate’s election, from any person in the  service  of  the  Government  and belonging to  any of  the  following  classes, namely:- (a)     gazetted officers;

(b)     to (g) \005 \005 Sub-Section (8) of Section 123 relates to booth  capturing which is an offence punishable under Section  135-A of the Act. Now it is true that the Act does not make any  provision as to striking out pleadings. Section 83 of the  Act mandates that every election petition should contain  concise statement of material facts and set forth full  particulars of any corrupt practice that the petitioner  alleges. Section 86 requires the High Court to dismiss an  election petition which does not comply with the  provisions of Section 81 (petition barred by limitation), or  Section 82 (non joinder of parties) or Section 117 (failure  to deposit security for costs). But as held by this Court  in several cases, Section 86 is not exhaustive as to the  grounds of dismissal of an election petition in limine.  Moreover, the provisions of the Code have been made

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applicable to the trial of election petitions by virtue of  Section 87 of the Act. A number of election petitions  were, therefore, dismissed on the ground that they did  not disclose cause of action as required by Order VII,  Rule 11 of the Code. So far as striking out pleadings is  concerned, the provision is found in Rule 16 of Order VI  which reads thus: 16. Striking out pleadings.\027The Court may  at any stage of the proceedings order to be  struck out or amended any matter in any  pleading\027

(a) which may be unnecessary, scandalous,  frivolous or vexatious, or

(b)     which may tend to prejudice, embarrass  or delay the fair trial of the suit, or

(c)     which is otherwise an abuse of the  process of the Court.

The above provision empowers a Court to strike  out any pleading if it is unnecessary, scandalous,  frivolous or vexatious or tend to prejudice, embarrass  or delay fair trial of the suit or is otherwise an abuse of  the process of the Court. The underlying object of the  rule is to ensure that every party to a suit should  present his pleading in an intelligible form without  causing embarrassment to his adversary [vide Davy v.  Garrett, (1878) 7 Ch D 473 : 47 LJ Ch 218].  Bare reading of Rule 16 of Order VI makes it clear  that the Court may order striking off pleadings in the  following circumstances; (i) Where such pleading is unnecessary,  scandalous, frivolous or vexatious; or

(b)     Where such pleading tends to prejudice,  embarrass or delay fair trial of the suit; or

(c)     Where such pleading is otherwise an  abuse of the process of the Court.

In Halsbury’s Laws of England, (4th Edn.; Vol. 9;  para 38), it has been stated: "Certain acts of a lesser nature may also  constitute an abuse of process as, for  instance, initiating or carrying on proceedings  which are wanting in bona fides or which are  frivolous, vexatious, a oppressive. In such  cases the court has extensive alternative  powers to prevent an abuse of its process by  striking out or staying proceedings or by  prohibiting the taking of further proceedings  without leave. Where the court by exercising  its statutory powers, its powers under rules of  court, or its inherent jurisdiction, can give an  adequate remedy, it will not in general punish  the abuse as a adequate of court. On the  other hand, where an irregularity or misuse of  process amounts to an offence against justice,  extending its influence beyond the parties to  the action, it may be punished as a  contempt".  

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

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Maxwell), it has been observed; "This term connotes that the process of  the court must be used bona fide and  properly and must not be abused. The court  will prevent improper use of its machinery  and will, in a proper case, summarily prevent  its machinery from being used as a means of  vexation and oppression in the process of  litigation\005 The categories of conduct  rendering a claim frivolous, vexatious or an  abuse of process are not closed but depend on  all the relevant circumstances. And for this  purpose considerations of public policy and  the interests of justice may be very material".

Since the general principles as to pleadings in civil  suits apply to election petitions as well, the pleadings  which are required to be struck off under Rule 16 of  Order VI in a suit can also be ordered to be struck off in  an election petition. In appropriate cases, therefore, an  election tribunal (High Court) may invoke the power  under Order VI, Rule 16 of the Code.  This Court in Azhar Hussain v. Rajiv Gandhi,  (1986) Supp SCC 315 indicated that the whole purpose  of conferment of such powers i.e. either to dismiss  election petitions in limine or striking out unnecessary,  scandalous, frivolous or vexatious pleadings is to ensure  that a litigation which is meaningless and bound to  prove abortive should not be permitted to occupy the  time of the court and does not embarrass the returned  candidate. "The sword of Damocles need not be kept  hanging over his head unnecessarily without point or  purpose". It was also observed that such hanging sword  of the election petition on the returned candidate would  not keep him sufficiently free to devote his whole-hearted  attention to matters of public importance which clamour  for his attention in his capacity as an elected  representative of the concerned constituency. The  precious time and attention demanded by his elected  office would be diverted to matters pertaining to the  contest of the election petition. Instead of being engaged  in a campaign to relieve the distress of the people in  general and of the residents of his constituency who  voted him into office in particular, and instead of  resolving their problems, he would be engaged in  defending himself in the litigation pending against him.  The fact that an election petition calling into question his  election is pending, may, in a given case, act as a  psychological factor and may not permit him to act with  full freedom. The Court, in these circumstances, may  exercise the power of striking out pleadings in  appropriate cases if it is warranted in the facts and  circumstances of the case.

At the same time, however, it cannot be overlooked  that normally a Court cannot direct parties as to how  they should prepare their pleadings. If the parties have  not offended the rules of pleadings by making averments  or raising arguable issues, the Court would not order  striking out pleadings. The power to strike out pleadings  is extraordinary in nature and must be exercised by the  Court sparingly and with extreme care, caution and  circumspection [vide Roop Lal v. Nachhatar Singh, (1982)  3 SCC 487 : AIR 1982 SC 1559; K.K. Modi v. K.N. Modi,  (1998) 3 SCC 573 : AIR 1998 SC 1297; United Bank of

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India v. Naresh Kumar, (1996) 6 SCC 660 : AIR 1997 SC  3]. More than a century back, in Knowles v. Roberts,  (1888) 38 Ch D 263, Bowen L.J. said: "It seems to me that the rule that the  Court is not to dictate to parties how they  should frame their case, is one that ought  always to be preserved sacred. But that rule  is, of course, subject to this modification and  limitation, that the parties must not offend  against the rules of pleading which have been  laid down by the law; and if a party  introduces a pleading which is unnecessary,  and it tends to prejudice, embarrass and  delay the trial of the action, it then becomes a  pleading which is beyond his right. It is a  recognized principle that a defendant may  claim ex debito justitiae to have the plaintiff’s  claim presented in an intelligible form, so that  he may not be embarrassed in meeting it; and  the Court ought to be strict even to severity in  taking care to prevent pleadings from  degenerating into the old oppressive pleadings  of the Court of Chancery". In the case on hand, in our opinion, the election  petitioner has stated in his election petition all material  facts disclosing the cause of action. The High Court has  also not dismissed the petition on the ground that it did  not disclose the cause of action as required by Section  83 of the Act read with Order VII, Rule 11 of the Code.  While considering issue Nos. 2 to 5, the High Court held  that pleadings in paragraphs 12, 13(a), 11 and 17 were  required to be struck off being unnecessary and tend to  cause delay in disposal of the election petition. It is,  therefore, necessary to consider as to whether the High  Court was right in coming to the said conclusion. In paragraph 12, the election petitioner has alleged  that names of several electors were deleted on the date of  polling "without there being any order of the Electoral  Registration Officer". According to the election petitioner,  the said fact came to the notice of the petitioner on the  date of polling when many electors who had gone to cast  their votes had to come back as their names were deleted  from the electoral rolls. The petitioner has also averred  that he made an application for supply of copies of the  orders on March 7, 2002 and again prayed for inspection  of record on March 9, 2002 but neither copies were  supplied nor inspection was permitted. According to the  petitioner, his doubts got confirmed that "a mischief on  large scale has been done in the electoral rolls". The  petitioner, however, persisted with his efforts and it was  only after the orders of the District Magistrate that some  copies of the orders pertaining to the deletion of voters  were supplied to him. They related to 586 electors whose  names and other details were given in Schedule ’A’  annexed to the petition. According to the petitioner,  deletion of the names clearly showed that there were no  orders in existence on the date of the poll or even at the  time of filing of nomination papers and those electors  were "wrongly denied" the right to vote. It, according to  the petitioner, amounted to wrongful refusal of votes. The petitioner then stated; "Since the margin by  which the respondent No.1 has been declared elected is  only 305, this refusal has resulted in materially affecting  the result of the election in so far as the respondent is

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concerned". The petitioner also stated that a newspaper  ’Dainik Bhaskar’ which came to know about the fact,  reported that officers were trying to cover their illegalities  committed in connection with the deletion and addition  of electors in the electoral roll of 99-Moga Assembly  Constituency. The copies of the orders supplied to the  petitioner clearly established that fact. The first respondent contended that the allegations  in paragraph 12 did not constitute "any triable issue"  and did not "disclose any cause of action" and it was  unnecessarily incorporated to prejudice, embarrass or  delay the fair trial of the petition. It was, therefore,  required to be struck off under Order VI, Rule 16 of the  Code. The High Court considered the question and held  that the petitioner no doubt alleged that the names of  many existing voters were deleted without there being  any order of the Electoral Registration Officer. It also  noted that in the Schedule ’A’ attached to the election  petition, the names of 586 electorals were mentioned  which contained reasons for the deletion; such as, death,  marriage, shifting, etc. The High Court, thereafter,  surprisingly observed; "There is no whisper in respect of  any of the voter having been wrongly deleted inasmuch  as it has not been alleged that such voter is alive but his  name has been wrongly deleted or that particular person  is still residing in the village but his vote has been  deleted". The High Court proceeded to observe that even  if the argument of the petitioner that the deletion of  these voters furnished a cause of action to the petitioner  under Section 100(1)(d)(iii) is accepted, still it was  incumbent upon the petitioner to plead that names of  voters mentioned in Schedule ’A’ have been deleted on  account of non-existent reason. According to the High  Court, it was not enough for the petitioner to state that  the names of the electorals mentioned in Schedule ’A’  had been "wrongly deleted". The High Court further stated that it was not  enough for the petitioner to show that the names of  electorals were wrongly deleted but reasons were  required to be pleaded by the petitioner with sufficient  exactitude. The allegations of the petitioner that the  names have been deleted by ante-dating the record  would not sufficiently disclose the material particulars.  The allegation regarding antedating the electoral rolls  was incomplete and vague. According to the High  Court, the averments in para No.12 of the election  petition would only delay the trial and they were  unnecessary for the purpose of decision of the election  petition. Para 12 was, therefore, ordered to be struck  out. We fail to appreciate the reasoning as also the  conclusion arrived at by the High Court. When the  election petitioner has expressly stated that names of as  many as 586 electors had been deleted wrongly and the  entire list of those electors had been placed on record as  Schedule ’A’, by no stretch of imagination, it can be said  that the allegation was vague or incomplete. We have  seen the original record containing Schedule ’A’ to the  election petition, wherein sufficient particulars as to   serial number, house number, name of voters, sex, age,  remarks etc., have been mentioned. We also fail to  understand the observation of the High Court that it was  not sufficient to allege that the names have been wrongly  deleted and "one or the other reasons" must be pleaded

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by the petitioner for such deletion. The action of deletion  was not taken by the petitioner. His grievance was that  the said 586 names were already in the voters’ list and  were wrongly deleted. What was contended by the  petitioner was that their names could not have been  deleted and the action was illegal and contrary to law. In  fact, he wanted to know the grounds/reasons as to why  the names had been deleted. He prayed for supply of  copies of the orders on March 7, 2002 and again for  inspection of record on March 9, 2002 but neither copies  were supplied nor was inspection allowed. His doubts,  hence, got confirmed that ’mischief’ on large scale had  been committed while preparing election rolls. In our  opinion, therefore, the High Court was wholly wrong in  observing that the allegation regarding deletion of 586  voters from the voters’ list was vague. To us, the High  Court was equally wrong in holding that the allegation of  antedating the election rolls, was "incomplete and  vague". In our view, when it was alleged that names of  certain electors were wrongly deleted and all particulars  relating to excluded electors numbering 586 were placed  in Schedule ’A’ along with the election petition, it could  not be said that the particulars were incomplete or vague  and the pleading liable to be struck down. Regarding averments in paragraph 13(a) of the  election petition, the petitioner has stated that the first  respondent was guilty of having committed corrupt  practice of obtaining assistance of a gazetted officer,  namely, Jaspal Singh Jassi, who was not only the  Returning Officer of 99 Moga Constituency but the  Electoral Registration Officer as well. The first  respondent got votes of many electors, who were  supporters of the Congress (I) candidate i.e., the  petitioner. Deletion was got done through Jaspal Singh  Jassi after filing of nomination paper by respondent No.1  without there being any order to that effect. When the  electors went to their respective booths, they could not  exercise their right to vote as their names stood deleted.  It was also his case that to justify the decision of deletion  of names as mentioned in Schedule ’A’, orders were  passed much after the declaration of results and were  antedated by the Electoral Registration Officer. The petition then stated; "The assistance obtained  by Shri Tota Singh, respondent No.1, was for furtherance  of prospects of his election and, thus, Shri Tota Singh is  guilty of corrupt practice within the meaning of Section  123(7) of the Act". The first respondent, in his written statement  denied the allegation of the election petitioner. According  to him, electoral rolls of the State was maintained in  pursuance of the orders of the Election Commission of  India and there was no illegality. The High Court considered the ground and held  that the allegation of corrupt practice pertaining to the  assistance of a gazetted officer did not disclose material  fact so as to disclose a complete cause of action to prove  the allegation of the corrupt practice within the meaning  of Section 123(7) of the Act.

The High Court observed; "It has not been alleged  by the petitioner that such Electoral Registration Officer  has acted with the consent of respondent No.1 and in  furtherance of the prospects of his election". The High  Court also stated that "it has not been alleged by the  petitioner that the procedure meant for revision of

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electoral rolls has not been followed. The only allegation  is that the electoral rolls had been antedated". The High Court then made the following  observations; "Mere fact that a Gazetted Officer was  discharging the duties of Electoral Registration Officer  and under whose authority, votes have been deleted does  not disclose a corrupt practice on the part of the  returned candidate. No particulars have been disclosed  that such gazetted officer was acting on behalf of  returned candidate. It is also not disclosed that such  deletion of names has materially affected the election of  the returned candidate". We are unable to appreciate the approach of the  High Court. The allegations in the election petition are  clear that the first respondent was guilty of corrupt  practice of obtaining assistance of a Gazetted Officer,  namely, Jaspal Singh Jassi who was a Returning Officer  as well as Electoral Registration Officer. It was also  alleged that the first respondent got names of several  electors (586) in Schedule ’A’ wrongly deleted. The said  fact came to light only when the electors had gone to  exercise their right to vote but could not exercise it in  view of deletion of their names. It was also averred in the  petition that orders were passed subsequently and were  antedated and the said action was taken by Mr. Jassi  with a view to furtherance of the prospects of the election  of respondent No.1. In our view, therefore, material facts  and full particulars as required by Section 83 read with  Section 123(7) had been set out in the election petition  and the High Court was wrong in deleting paragraph  13(a) of the election petition. The High Court observed that it was not alleged by  the petitioner that Electoral Registration Officer had  acted with the consent of the first respondent for the  furtherance of the prospects of the first respondent. With respect, the High Court was wrong in  interpreting and applying the ambit and scope of sub- section (7) of Section 123 of the Act. The provision has  been reproduced in the earlier part of the judgment. It  enacts that it would be deemed to be a corrupt practice if  assistance is sought from a gazetted officer in certain  cases. Such assistance may be sought either by (i) a  candidate; or (ii) his agent; or (iii) any person with the  consent of a candidate or his election agent for the  furtherance of the prospects of the candidate’s election.  Thus, consent of the candidate is required only in those  cases where such assistance is sought by ’any other  person’, i.e. other than the candidate himself (or his  election agent). And it is obvious because where the  candidate himself (or his election agent) is seeking  assistance of a gazetted officer, the question of consent  does not arise. In the case on hand, the allegation of the  election-petitioner is that the first respondent himself  has obtained assistance of a gazetted officer (Mr. Jassi)  "for furtherance of prospects of his election". The  High Court was, therefore, legally wrong in ordering  deletion of para 13(a) on the basis of construction of  Section 123(7) of the Act. The High Court has also ordered deletion of para  11 of the election petition. In para 11 (a), the election  petitioner has stated that one Harish Kumar, respondent  No.5 in the election petition had filed his nomination  paper as an independent candidate. In case of an  independent candidate, nomination paper was required  to be subscribed by ten proposers. In case one or more of

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the proposers were unable to write their names, they  should put their thumb mark in which case, it should   be done in the presence of Returning Officer or such  other officer as may be specified in that behalf by the  Election Commission. Nomination paper of Harish  Kumar was thumb marked by four proposers. Neither  the thumb impression had been identified, nor it has  been attested. The nomination paper of Harish Kumar  was, therefore, invalid and wrongly accepted. Harish  Kumar obtained 66 votes. Had he not contested the  election, majority of those votes were likely to be polled  in favour of the petitioner. Wrongful acceptance of  nomination paper of Harish Kumar, therefore, according  to the petitioner, had materially affected the result of the  election. In para 11(b), the election-petitioner stated that one  Harnek Singh had filed his nomination paper as an  independent candidate. Out of ten proposers, one was  Smt. Prakash Kaur. Normally, she used to put her  thumb impression but someone else had written her  name on the nomination form. That clearly went to show  that ten proposers had not subscribed nomination of  Harnek Singh and his nomination paper was wrongly  accepted. Harnek Singh secured 150 votes. The  petitioner asserted that more than 100 of the said votes  would have been polled in his favour. Thus, wrongful  acceptance of the nomination paper of Harnek Singh had  materially affected the result of the election. In the written statement, the first respondent has  stated that the averments made in paragraphs 11 (a) and  (b) were totally vague and deficient in material  particulars. It has not materially affected the result of  the returned candidate. The High Court ordered striking down paragraph  11 observing that the petitioner had not disclosed that  those voters were the voters of the petitioner and  improper acceptance of the nomination papers of two  candidates had materially affected the result of the  election. Then referring to Shiv Charan Singh v. Angad  Singh, (1988) 2 SCC 12 and Santosh Yadav v. Narender  Singh, AIR 2002 SC 241, the Court held that it may be  difficult but the onus is still on the election-petitioner to  discharge burden and to prove how many of the voters  who had voted for a candidate whose nomination paper  was improperly accepted would have voted in favour of  the petitioner. Since there was no allegation of the kind,  para No.11 was wholly unnecessary and would delay the  fair trial of the case and therefore required to be deleted. In our opinion, the High Court was not right in  deleting the above para relying on Shiv Charan and  Santosh Yadav. Neither of the above cases related to  striking out pleadings. What was held by this Court in  those cases was that when an election petitioner alleges  that there was improper acceptance of nomination paper  of some candidate and had the said illegal acceptance  been not allowed, the voters would have voted in favour  of the petitioner, the burden of proof was on the election  petitioner. This Court observed that though it was very  difficult for the election petitioner to prove such fact,  nonetheless, the onus was on him and he had to  discharge it. We are here not at the stage of trial but  only at the stage of pleadings. The ratio laid down in the  above cases, therefore, in our considered opinion, has no  application in the case on hand and the High Court was  wrong in invoking the law laid down in the aforesaid

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decisions. Finally, in paragraph 17 of the election petition, the  petitioner has stated that 22 ballot papers were received  by post and were counted at the commencement of the  counting as required under the Rules. He further stated  that the ballot papers were not shown to the petitioner or  his election agent and 20 out of 22 ballot papers were  rejected by the Returning Officer saying that they were  ’not accompanied by requisite declaration’. The election  petitioner then stated that majority of the postal ballot  papers pertained to the electors who had been posted  outside the constituency on election duty who were fully  conversant with the procedure of casting postal ballots. The High Court held that the averments in  paragraph 17 were required to be struck off. According  to the High Court, out of 22 postal ballot papers, 20 were  rejected on the ground that they were not accompanied  by requisite declaration. Rule 54A of the Rules requires  postal ballot papers to be accompanied by requisite  declaration. The petitioner had not pointed out any  illegality in the rejection of the votes on account of non- furnishing of declaration. It was also not his case that  two ballot papers were not counted. According to the  High Court, therefore, the averments in paragraph 17  were unnecessary and would cause delay of the trial of  the case and were ordered to be deleted. We are of the view that the High Court was not  wrong in ordering striking off paragraph 17. When the  Returning Officer has passed the order that out of 22  postal ballot papers, 20 did not contain the requisite  declaration as envisaged by Rule 54A, they were liable to  be rejected and if the said action had been taken, it  could not be said to be contrary to law. It was not the  case of the petitioner that in spite of requisite  declaration, postal ballot papers were rejected. On the  contrary, election-petitioner himself stated that 20 ballot  papers came to be rejected "saying that the ballot papers  were not accompanied by requisite declaration". He only  stated that the majority of the postal ballot papers were  of those electors who had been posted outside the  constituency and were fully conversant with voting  procedure. In our opinion, that was wholly irrelevant and  immaterial. The authorities were required to follow the  Rules and when rule was followed, the High Court was  right in striking out the said paragraph observing that  the action has been taken in consonance with Rule 54A  of the Rules.  So far as Civil Appeal Nos. 5999-6000 of 2004 are  concerned, they have been filed by the returned  candidate Tota Singh against the decision on preliminary  issue No.1 as to maintainability of petitions. As already  noted in Election Petition No. 4 of 2004, as also in  Election Petition No. 13 of 2004, the High Court  considered the issue as to maintainability of petitions on  the ground that Brijinder Singh, who was one of the  candidates at the election, had not been joined as party  respondent. The learned counsel for the appellant contended  that Section 82 of the Act requires a candidate to be  joined as party respondent in an election petition against  whom allegations of corrupt practice has been levelled.  Since allegations had been levelled against Brijinder  Singh of corrupt practice, he had to be joined as one of  the respondents, even though he had withdrawn his  candidature at a subsequent stage. As he was a

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’candidate’ within the meaning of Clause (b) of Section  79 of the Act, non-joinder of Brijinder Singh was a vital  defect and the High Court had committed an error of law  in holding the petitions maintainable in absence of  Brijinder Singh on record. The learned counsel for the respondents, however,   supported the view taken by the High Court and  submitted that Brijinder Singh could not be said to be  ’duly nominated’ candidate at the election. Non-joinder  of Brijinder Singh was of no consequence and the High  Court was right in overruling preliminary objection as to  maintainability of petitions against the returned  candidate. The High Court, in our opinion, rightly considered  the question, whether Brijinder Singh could be said to be  a ’duly nominated candidate’ within the meaning of  Section 79(b) of the Act and whether non-joinder of  Brijinder Singh would result in non-suiting the election  petitioners on the ground that such petition could not be  said to be in accordance with law. The High Court  considered the relevant provisions of the Act as amended  in 1996 and Rules and came to the conclusion that  Brijinder Singh was not a candidate duly nominated by a  political party i.e., Shiromani Akali Dal (Badal). The High  Court was right in observing that once a nomination  paper of Tota Singh was scrutinized and accepted,  nomination paper of Brijinder Singh, who was a  ’substitute’ candidate of the same political party, could  not have been accepted and as such he could not  become duly nominated candidate. In Krishna Mohini v. Mohinder Nath Sofat; (2000) 1  SCC 145 : AIR 2000 SC 317; a three-judge Bench of this  Court had an occasion to consider the amendment in the  Act, particularly, provisions relating to candidates set up  by recognized political parties and allotment of symbols  to them. Speaking for the Court, Lahoti, J. (as His Lordship  then was) stated; "24.    The first and third provisos to sub- section (1) of Section 33 have been added by  the Representation of the People (Amendment)  Act, 1996 (Act 21 of 1996) w.e.f. 1-8-1996.  Prior to this, there was only one proviso which  is now the second proviso in the present form.

25. In exercise of the powers conferred by  Article 324 of the Constitution read with  Section 29A of the Representation of the  People Act, 1951 and Rules 5 and 10 of the  Conduct of Elections Rules, 1961 and all  other powers enabling it in this behalf, the  Election Commission of India has issued the  Election Symbols (Reservation and Allotment)  Order, 1968(hereinafter referred to as the  "Symbols Order", for short). This order  provides for allotment of symbols to the  contesting candidates, for classification of  symbols into ^ reserved symbol--reserved for  exclusive allotment to contesting candidates  set up by a recognised political party, and free  symbol --which is a symbol other than a  reserved symbol. Para 6 classifies political  parties into recognised and unrecognised  political parties. To be a recognised political  party in a State, a political party must satisfy

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the conditions specified in Clause (A) or  Clause (B) of sub-para (2) of Para 6 of the  Symbols Order. A recognised political party  may be a National party or a State party. A  candidate set up " by a recognised party in an  election contest can choose only a symbol  reserved for that political party. Candidates  set up by political parties other than  recognised ones and independent candidates  are entitled to free symbols. A candidate other  than a candidate set up by a recognised  National or State Party in that State or a  candidate set up by a State party at elections  in other State, has to choose and to be  allotted a free symbol. A free symbol chosen  by only one candidate must be allotted to him  and to no one else. Where the same free  symbol has been chosen by several  candidates at such election the manner how  the symbol shall be allotted as amongst those  several candidates is laid down in sub-para 3  of para 12 of the Symbols Order.

26. Para 13 of the Symbols Order [as  substituted by O.N. 203-E dt. 5.8.1996, and  effective at the relevant time] provides as  under : 13. When a candidate shall be deemed  to be set up by a political party.\027For  the purposes of this Order, a candidate  shall be deemed to be set up by a  political party if, and only if,-- (a) the candidate has made a  declaration to that effect in his  nomination paper; (b) a notice in writing to that effect  has, not later than 3 p.m. on last,  date for making nominations, been  delivered to the Returning Officer of  the constituency and the Chief  Electoral Officer of the State; (c) the said notice is signed by the  President, the Secretary or any other  office bearer of the party and the  President, the Secretary or such  other office bearer is authorised by  the party to sent such notice; and (d) the name and specimen  signature of such authorised person  are communicated to the Returning  Officer of the constituency and to  the Chief Electoral Officer of the  State not later than 3.00 p.m. on the  last date for making nominations. 27. For the purpose of Symbols Order, as  defined in Clause (h) of Para 2, "Political  Party" means an association or body of  individual citizens of India registered with the  Commission as a political party under Section  29A of the Representation of the People Act,  1951. The scheme of the Symbols Order  shows that it does not deal with unregistered  political parties. It deals with registered  political parties by sub-dividing them into  recognised and unrecognised political parties

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and with independent candidates. To be  entitled to the benefit of allotment of symbols  reserved to a recognised political party, the  candidate has to be one set up by a  recognised political party and in a manner  prescribed by Para 13 of the Symbols Order.  The privilege enjoyed by a candidate set up by  a recognised political party, as spelt out by a  combined reading of Section 33 of the Act  with the provisions of Symbols Order, is that  his nomination paper is complete, inter alia, if  proposed by an elector, (i.e., one only) of the  Constituency, If the candidate be one not set  up by a recognised political party, i.e., if he be  a candidate set up by an unrecognised  political party or be an independent  candidate, his nomination paper must be  subscribed by ten proposers being electors of  the Constituency. Nomination paper filed by a  candidate set up by an unrecognised political  party or an independent candidate, cannot be  proposed by a single elector of the  Constituency or by electors less than ten". Consequent upon the amendments in the  Representation of the People Act, 1950 and 1951 in  1996, the Election Commission issued a Circular on  August 9, 1996 for the guidance of Electoral Officers.  Paras 7, 14 and 15 of the Circular are relevant, which  read thus; 7. Under the amended Section 33 of the  Representation of the People Act, 1951, the  nomination of a candidate at the election to  the House of the People or a State Legislative  Assembly shall be required to be subscribed  by-- (i) One elector of the constituency as  proposer, if the candidate has been set  up either by a recognised National Party  or by a recognised State party in the  State or States in which it is recognised  as a State party : (ii) ten (10) electors of the constituency  as proposers, if the candidate has been  set up by a registered-unrecognised  political party or if he is an independent  candidate.

14. It may be further noted that having regard  to the changed law, the Returning Officer will  have to be satisfied at the time of the scrutiny  of nominations whether a candidate who  claims to have been set up by a recognised  National or State party and whose nomination  paper is subscribed only by one elector as  proposer has in fact been duly set up by such  recognised party or not, so as to decide the  validity or otherwise of his nomination paper.  Therefore, it is essential that the political  parties intimate the names of the candidates  set up by them to the Returning Officers  concerned and Chief Electoral Officer of the  State well before the date of scrutiny of  nominations. Accordingly, the Commission  has decided that all political parties must  hereafter give the formal intimation in regard

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to the candidates set up by them to the  aforesaid authorities NOT LATER THAN 3.00  P.M. ON THE LAST DATE FOR MAKING  NOMINATIONS IN FORMS ’A1 AND ’B’  prescribed for the purpose by the Commission  under para 13 of the Election Symbols  (Reservation and Allotment) Order, 1968. The  said para 13 of the Symbols Order has also  been amended by the Commission  accordingly. 15. As a result of the aforesaid amendments  made to the Forms of nomination paper and  paragraph 13 of the Symbols Order, certain  consequential amendments have also become  necessary in the above referred Forms ’A’ and  ’B’ in which the political parties give formal  intimation with regard to the candidates set  up by them. A copy each of the revised Forms  ’A’ is also enclosed herewith for your  information and use at all future elections. It  will be observed from the revised Form ’B’  that the parties have still been given an  option in that Form to intimate the name of  the substitute candidate who will step-in, if  the nomination of the main approved  candidate of the party is rejected on scrutiny.  But such substitute candidate shall be  deemed to have been set up by the party, only  if all the requirements under the said para 13,  as amended, of the Election Symbols  (Reservation and Allotment) Order, 1968 have  been fulfilled in his case. If, however, the  nomination of the main approved candidate of  the party is found valid on scrutiny, the  substitute candidate shall not be deemed to  have been set up by that party for the  purposes of the amended Section 33 of the  Representation of the People Act, 1951 and  his nomination paper will be scrutinised by  the Returning Officer having regard to the  other provisions of that Act. Instructions were also issued to Returning Officers  in the form of ’Handbook for Returning Officers for  Election to the House of People and State Legislative  Assemblies’. Para 10 of Chapter VI (Scrutiny)  enumerates the grounds for rejection of nomination  papers. The Handbook took note of change in law and  recited; "In view of the change in law whereby the  nomination papers of candidates set up by  recognized National and State Parties are  required to be subscribed by only one elector  as proposer and of other candidates by ten  electors as propose". It noted that certain clarifications were sought from  the Commission regarding setting up of candidates by  political parties. Clarification relating to a nomination  paper of a substitute candidate set up by a recognized  political party is relevant and reads thus; (vii) The nomination paper of a substitute  candidate of a recognised political party will  be rejected if the nomination paper of the  main approved candidate of that recognised  political party is accepted. However, if such

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substitute candidate has also filed another  nomination paper subscribed by ten electors  as proposers, this latter nomination paper will  be scrutinised independently by treating the  candidate as an independent candidate.  Further, if the nomination paper of the main  approved candidate of the party is rejected,  then also the nomination paper of the  substitute candidate will be accepted,  provided that the party has intimated his  name as its substitute candidate in Form ’A’  and ’B’ filed before 3 p.m. on the last date for  making nominations. The High Court considered the relevant case-law on  the point on which reliance was placed by the parties.  The learned counsel for the returned candidate referred  to decisions of this Court in Har Swarup & Another v.  Brij Bhushan Saran & Others, (1967) 1 SCR 342 : AIR  1967 SC 836, Mohan Raj v. Surendra Kumar Taparia &  Ors., (1969) 1 SCR 630 : AIR 1969 SC 677; Ram Partap  Chander v. Chaudhary Lalla Ram & Ors., (1998) 8 SCC  564, Gadnis Bhawani Shankar v. Faleiro Eduardo  Martinho, (2000) 7 SCC 472 : AIR 2000 SC 2502 and  Patangrao Kadam v. Prithviraj Sayajirao Yadav  Deshmukh & Ors., AIR 2001 SC 1121. In all the above  cases, this Court held that all candidates including those  who had withdrawn from candidature should be made  parties to the election petitions if allegations of corrupt  practice have been levelled against them. We have gone  through those cases and in our opinion, the High Court  was right in observing that in all those cases,  nomination papers of the candidates were found to be in  conformity with law and thus they were all treated as  ’duly nominated candidates’. Subsequently, however,  they had withdrawn their nominations. In the light of the  said fact, this Court held that they ought to have been  joined as party respondents in election petitions as  required by Section 82 of the Act. In our opinion, the High Court was right in deciding  the issue keeping in view the amended provisions of the  Act, the Rules, Circular dated August 9, 1996 and  relevant provisions of the ’Handbook’. As already noted,  in view of change in law, clarifications had been made on  nomination papers of candidates set up by recognized  National and State political parties that such nomination  papers are required to be subscribed by only one elector  as proposer and for other candidates, it is required to be  proposed by ten electors. Clarification (vii) extracted  hereinabove clearly states that once nomination paper of  the ’main approved candidate’ of recognized political  party is accepted, the nomination paper of a ’substitute’  candidate of the said party has to be rejected. The  instructions, however, state that if such substitute  candidate has also filed Part II of the nomination paper  or filed another nomination paper subscribed by ten  electors as proposers, his nomination paper has to be  scrutinized independently by treating the candidate as  an independent candidate. Again, if the nomination  paper of the main approved candidate of a political party  is rejected, then also, the nomination paper of the  substitute candidate has to be accepted provided that  the party has intimated his name as its substitute  candidate in Forms ’A’ and ’B’. In the instant case, a list of nominated candidates  had been forwarded which makes it clear that Tota Singh

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was shown to be a ’candidate’ of Shiromani Akali Dal  (Badal) while Brijinder Singh was described as  ’substitute’ of Shiromani Akali Dal (Badal). As  nomination paper of Tota Singh had been accepted,  Brijinder Singh, substitute of Tota Singh cannot be said  to be a duly nominated candidate of the said party. In an affidavit-in-reply filed by the first respondent,  it was stated that when Tota Singh was a candidate of  Shriomani Akali Dal (Badal), Brijinder Singh was rightly  shown as substitute candidate for Tota Singh belonged  to Shriomani Akali Dal (Badal). According to the  deponent, "there cannot be two candidates for one  recognized party". It was also stated that nomination  form of Brijinder Singh was proposed by one man only  i.e., Shri Gurmail Singh. Since it was not proposed by  minimum number of ten electors, it could not be  said to  be in accordance with Section 33 (1) of the Act and  Brijinder Singh could not be said to be duly nominated  candidate. An affidavit-in-rejoinder was filed by the appellant  and alongwith the said affidavit, certain documents were  filed including Annexure P/8 in Form No. 4 (Rule 8) (List  of validly nominated candidates), wherein nomination of  Brijinder Singh was shown as a candidate of Shriomani  Akali Dal. It may be stated that under the head  ’Candidates of recognized National and State political  parties’, two names have been shown belonged to  Shriomani Akali Dal at serial No. 5 & 7, (i) Tota Sngh  and (ii) Brijinder Singh respectively. The appellant has  also annexed in the rejoinder affidavit at Annexure P/9,  Form No. 7A under Rule 10 (1) (’List of contesting  candidates’) in which name of Tota Singh only appears.  It was the case of the returned candidate-appellant  herein that after acceptance of nomination of Brijinder  Singh by the Returning Officer, he withdrew his  nomination and hence he did not remain as one of the  contesting candidates. On the basis of the above  documents, it was contended that even if there was an  error on the part of the Returning Officer in accepting  nomination paper of Brijinder Singh, it was of no  consequence. Once nomination paper of Brijinder Singh  was accepted, the law requires him to be joined as a  party respondent in case allegations of corrupt practice  have been levelled against him. It was also submitted by  the learned counsel that even if two candidates cannot  be set up by one political party for one constituency and  cannot be granted election symbol, a different symbol  could be allotted to Brijinder Singh. That, however,  cannot be a ground for holding that Brijinder Singh was  not a candidate belonged to Shiromani Akali Dal (Badal)  once his nomination paper had been accepted. The High Court, in our opinion, rightly rejected the  contention of the returned candidate. Apart from the  statutory provisions, Election Manual and provisions as  to grant of Election Symbol, the point is also concluded  by various decisions of this Court. In Charan Lal Sahu v. Neelam Sanjeeva Reddy,  (1978) 2 SCC 500, a larger Bench of this Court  considered the relevant provisions of the Presidential  and Vice-Presidential Election Act, 1952 and held that if  the nomination paper of a person is not in consonance  with the relevant provisions of the law, he could not be  said to be a candidate who has locus standi to  challenge the election of the President. In Charan Lal Sahu v. Giani Zail Singh, (1984) 1

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SCC 390, again, a similar question came up for  consideration before this Court. Reiterating the earlier  view, the Court dismissed the petition. An argument  similar to one which has been made before us had also  been advanced by the petitioner in that case. The Court,  however, rejected it observing that it was not well  founded. The Court observed; "The petitioners, however, contend that even if  it is held that they were not duly nominated  as candidates, their petitions cannot be  dismissed on that ground since they "claim to  have been duly nominated".  It is true that, in  the matter of claim to candidacy, a person  who claims to have been duly nominated is on  par with a person who, in fact, was duly  nominated.  But, the claim to have been duly  nominated cannot be made by a person  whose nomination paper does not comply  with the mandatory requirements of Section  5-B (1)(a) of the Act.  That is to say, a person  whose nomination paper, admittedly, was not  subscribed by the requisite number of  electors as proposers and seconders cannot  claim that he was duly nominated.  Such a  claim can only be made by a person who can  show that his nomination paper conformed to  the provisions of Section 5-B and yet it was  rejected, that is, wrongly rejected by the  Returning Officer.      To illustrate, if the  Returning Officer rejects a nomination paper  on the ground that one of the ten subscribers  who had proposed the nomination is not an  elector, the petitioner can claim to have been  duly nominated if he proves that the said  proposer was in fact an ’elector’. Thus, the occasion for a person to make a  claim that he was duly nominated can arise  only if his nomination paper complies with  the statutory requirements which govern the  filing of nomination papers and not otherwise.   The claim that he was ’duly’ nominated  necessarily implies and involves the claim  that his nomination paper conformed to the  requirements of the statute.  Therefore, a  contestant whose nomination paper is not  subscribed by at least ten electors as  proposers and  ten electors as seconders, as  required by Section 5-B (1)(a) of the Act,  cannot claim to have been duly nominated,  any more than a contestant who had not  subscribed his assent to his own nomination  can.  The claim of a contestant that he was  duly nominated must arise out of his  compliance with the provisions of the Act.  It  cannot arise out of the violation of the Act.  Otherwise, a person who had not filed any  nomination paper at all but who had only  informed the Returning Officer orally that he  desired to contest the election could also  contend that he "claims to have been duly  nominated as a candidate".         Recently, in Charan Lal Sahu v. Dr. A.P.J. Abdul  Kalam & Ors., (2003) 1 SCC 609, this Court was called  upon to consider a similar question. Following earlier

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decisions, this Court held that since the nomination paper  of the petitioner was not in consonance with law as it was  not subscribed by requisite number of electors as  proposers, he could not be regarded as a person who had  been duly nominated candidate at the election. He,  therefore, could not present election petition and the  petition was held non-maintainable. In Krishna Mohini, referred to above, the Court  stated;  "34. The distinction between nomination filed  by a candidate set up by a recognised political  party and a candidate not set up by a  recognised political party is precise. A perusal  of first proviso to Sub-section (1) of Section 33  of the Act makes it clear that a candidate not  set up by a recognised political party,  meaning thereby a candidate set up by an  unrecognised political party or an  independent candidate, in order to be duly  nominated for election must have his  nomination paper subscribed by ten  proposers being electors of the Constituency.  If such nomination paper be subscribed by  only one elector as proposer or by a number  of electors less then ten, then it will amount  to non-compliance with the provisions of  Section 33. A candidate, who is merely a  substitute or a cover candidate set up by a  recognised political party, may file his  nomination paper proposed by only one  elector of the Constituency. If the nomination  paper of the approved candidate of that  political party is accepted, the nomination  paper filed by the substitute or cover  candidate, shall be liable to be rejected  because there can be only one candidate set  up by a recognised political party. In order to  be a candidate set up by a registered and  recognised political party so as to take  advantage of being proposed by a single  elector, all the four requirements set out in  Clauses (a), (b), (c) and (d) of Para 13 of the  Symbols Order must be satisfied. If any one  or more of the requirements are not satisfied,  the benefit of nomination being proposed by a  single elector is not available to him".

In view of the settled legal position, in our opinion,  the High Court was right in rejecting the contention of  the returned candidate that non-joinder of Brijinder  Singh as party respondent was of no consequence as he  could not be regarded as ’duly nominated candidate’ by a  political party i.e., Shriomani Akali Dal (Badal). That part  of the decision, therefore, does not deserve interference. There is, however, one disturbing feature and it is  that the first respondent, along with the affidavit-in- rejoinder, placed certain documents on record which we  have already referred to, in the form of "List of validly  nominated candidates" (P/8) and "List of contesting  candidates"(P/9). We have called for the original record  and did not find those documents there. It is thus clear  that they did not form part of the record before the High  Court. If it is so, the appellant ought to have made  proper application and prayer to produce them. An  appropriate order could have been passed by this Court

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on such application. Neither any application was made  nor permission was sought and the documents were  placed along with the affidavit-in-rejoinder. We are,  however, not taking serious view of the matter in the  light of the fact that before the High Court, it was stated  that Brijinder Singh had withdrawn his nomination  paper on January 28, 2002 and thus that fact was  before the High Court.  P/8 produced with the affidavit- in-rejoinder in this Court preceded the withdrawal while  P/9 was the consequence of withdrawal of nomination by  Brijinder Singh.  We, therefore, leave the matter there. For the foregoing reasons, Civil Appeal No. 4093 of  2004 is partly allowed and the order passed by the High  Court of Punjab & Haryana ordering deletion of  paragraphs 11, 12 and 13(a) of the Election Petition No.  13 of 2004 is set aside. It is ordered that those  paragraphs cannot be said to be unnecessary or causing  delay in disposing election petition and were not required  to be struck down as held by the High Court. They will  continue to be the part of Election Petition No. 13 of  2004. So far as paragraph 17 of the petition is  concerned, the direction of the High Court deleting that  para is confirmed. The appeal is accordingly allowed to  that extent with costs.  So far as Civil Appeal Nos. 5999-6000 of 2004 are  concerned, they are dismissed. In view of the  circumstances mentioned by us hereinabove, however,  the appellant will pay costs to the first respondent in  both the appeals which is quantified at Rs.50,000/- in  each appeal.