Aditya Vesh Disciple of Swami Daya Nand vs Shri Bhajan Lal and others

Change in the symbol allotted to the petitioner provides the foundation of the challenge to the election of the respondent Shri Bhajan Lal to the Lok Sabha from the Faridabad Parliamentary Constituency during the recent elections held in November 1989.

On November 2, 1989, which was the last date for the withdrawal of nominations, the petitioner Sh. Aditya Vesh was allotted the symbol of Swastik within a circle. Unknown to the Returning Officer then was the fact that this was the reserved symbol of the Congress (J) and it could not, therefore, be allotted to any one else. It appears that this error was detected by the Returning Officer two days later, on November 4, 1989 and on that very day, the Election Commission was moved in the matter and an order obtained that the symbol be changed and what is more, on the petitioner''s own showing, a message to this effect was also received by him the same day, though it was on November 7, 1989 that he found the formal order posted at the office of his party.

The picture that thus emerges is that two days after its allotment to the petitioner, the symbol of Swastik within a circle was changed. The petitioner was then given the symbol of woman carrying a basket on her head. It is the case of the petitioner that this change in symbol materially affected his election and that of the returned candidate rendering it thereby illegal and void. The pleadings of the petitioner, in this behalf being to the effect that from the moment the symbol of Swastik within a Circle was allotted to him, he immediately started his election campaign by getting posters printed with this symbol. He also arranged meetings during the course of his canvassing where he declared his symbol to be Swastik within a Circle and therefore, amongst the electors of his constituency, his name was duly associated with the symbol. Next, it was said that during canvassing, his name with this symbol was publicised amongst lakhs of electors. Further, that by the abrupt change of the symbol, his election campaign was gravely affected to his detriment as it put his campaign in suspension and his electors in the dark about the fate of the election.

The respondent Sh. Bhajan Lal, in his return, took the preliminary objection that the petition discloses no cause of action and further that the petitioner had not stated, as required by law, that the alleged change of symbol had materially affected the result of the election of the returned candidate.

In dealing with the preliminary issue framed on the respondent''s plea of the petition disclosing no cause of action, it would be relevant to advert to the provisions of S. 83 of the Representation of the People Act, 1951 (hereinafter referred to as ''the Act'') which ordains that an election petition shall contain "a concise statement of the material facts on which the petitioner relies."

It is now well settled that the provisions of S. 83 of the Act are mandatory and as explained by Hidayatullah, C. J. in Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, , this S. 83 requires first a concise statement of material facts and then the fullest possible particulars. Mateiral facts being facts necessary to formulate a complete cause of action and omissions of a single material fact, it was observed, leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars, on the other hand, is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. It was pointed out that there may be some overlapping between material facts and particulars, but these two were quite distinct. Further, it was observed that a petition which merely cites the section cannot be said to disclose a cause of action.

Seen in this light, there can be no escape from the conclusion that the petition falls far short of meeting the requirements of S. 83 of the Act.

There is no mention in the petition of where the petitioner canvassed or held meetings during the two days before his symbol was changed. The number of persons that he canvassed with and the date and time of any such meetings. Even the number of meetings has not been disclosed. In other words, ''there is no mention of the number of voters approached by the petitioner with the old, symbol before it was changed nor of the figure of those who, according to him, colud not vote for him due to the change of symbol. There is also no plea of how many persons would have voted for him, but for the change of symbol, of course, backed up by the basis of any such statement.

Such vague averments, as have been made in the petition here, clearly violate the mandate of the well established law of pleadings, namely; that they should be precise, specific and unambiguous. Mere hope of votes to be polled cannot be equated with material facts pertaining to cause of action to be founded thereon.

Another important and equally significant requirement in order to impeach the election of the returned candidate is that it must be shown to have been materially affected by the ground on which the election is sought to be set aside. In this context, it would indeed be pertinent to note that while the total number of votes polled by the retuned candidate were 406436 and those of his main rival -- Khurshid Ahmed 273419, all that the petitioner could get was 623 votes. The wide disparity in the number of votes cast in favour of the petitioner, as compared to those for the returned candidate and his principal rival, clearly detracts from any inference of the election of the returned candidate having in any manner been materially affected by the change in the symbol allotted to the petitioner.

Before concluding, it deserves mention that during arguments, counsel for the petitioner also sought to make the point that in form -- 7-A, attached to the letter of the Returning Officer of November 4, 1989 (Annexure P/6), the symbol allotted to the petitioner is described as "A woman carrying a basket on her hand" instead of "A woman carrying a basket on her head", This error, it was argued must vitiate the election. It will be seen that no such plea figures in the petition and it was for the first time in the course of arguments that it was raised. Even otherwise, it cannot but be branded as a contention wholly devoid of merit. No prejudice thereby to the petitioner has been alleged nor indeed had it in any manner materially affected the election of the returned candidate. This contention has thus to be noticed only to be repelled.

There can thus be no manner of doubt that the respondent has no case to answer as the petition discloses no cause of action and it cannot, therefore, be sustained, rather it must be held to be wholly frivolous and without basis. The election petition is accordingly hereby dismissed and keeping in view the circumstances, as narrated, with Rupees 5,000/- as costs.

Petition dismissed.