Swaraj Singh and others vs Bansilal and another

The challenge here is to the election of Ch. Bansilal to the Lok Sabha from the Bhiwani Parliamentary Constituency in the recent General Election held in November, 1989.

There were as many as 129 candidates who had filed nominations for contesting the election to Parliament from the Bhiwani Constituency. Later, seven withdrew leaving 122 candidates in the field. Amongst them being the seven petitioners, besides, of course, the respondent Ch. Bansi Lal and his main rival Ch. Dharam Vir who was, however, subsequently deleted from the array of respondents.

As per the case set up in the petition on November 2,1989, which was the last date for the withdrawal of nominations, there were only 35 symbols notified by the Election Commission of India and symbols were thus allotted to only. 35 candidates on that day white the others including the petitioners were allotted their symbols a few days later, namely; on November 8, 1989 and what is more, their symbols were not published in the gazette notification till November 21, 1989, that is, a day before polling day November 22, 1989.

A reading of the petition would show that the election of the respondent Ch. Bansi Lal, has been sought to be got declared void in terms of Section 100(1)(d)(iv) of the Representation of the People Act, 1951 (hereinafter referred to as ''the Act'') on the ground that his election had been materially affected by non-compliance with the provisions of the Election Symbols (Reservation and Allotment) Order, 1968. In other words, delay in the allocation of symbols to the petitioners emerges as the ground for impeaching the election of the returned candidate.

The petition filed in this behalf, however, discloses no cause of action on account of the omission on the part of the petitioners to plead material facts as required by the provisions of Section 83 of the Act thereby rendering it wholly unsustainable.

The case, as pleaded by the petitioners is that their prospects for the election were jeopardized by the delay on the part of the Election Commission in allotting them symbols and they could not, therefore, canvass and project their symbols against their names and this had materially affected the result of the returned candidate to their detriment. Further, that in the absence of the symbols being allotted to them on November 2, 1989, their supporters and workers got the impression that they were not serious in contesting the election and in frustration they started campaigning instead for the respondents. The main averment being in paragraph-18 of the petition which is reproduced hereunder:--

"That the authorities conducting election committed various illegalities during the election process which adversely affected aforesaid election and the following facts would show that entire election in S-Bhiwani Parliamentary Constituency has been conducted in violation of various mandatory provisions of the Act, the Rules and Symbols Allotment Order, 1968 and the election has been conducted in an arbitrary and highhanded manner violating the fundamental right of equality before the law guaranteed under Article 14 of the Constitution of India. The entire procedure adopted by the authorities concerned conducting election suffered from the defect of non-compliance of the mandatory provisions of the Act, i.e. Section 38 (1) and (2) read with the rules, 5, 8 and 10 of the Rules, Form 7-A prescribed under Rules 10(1) of the Rules and Paragraphs 12 and 17 of the Election Symbols (Reservation and Allotment) Order 1968 and other procedure prescribed under the Act and the Election Rules."

What deserves pointed mention is the reference here to "the following facts" and the failure to spell them out in this paragraph or anywhere else in the petition, which is indeed conspicuous and no doubt also a matter of material significance. All that follows is merely paragraph 30(d) which reads as under:--

"That the non-allotment of the election symbols to the petitioners by the election conducting authorities in time materially affected the result of the election so far as it concerns the returned candidate."

The omission on the part of the petitioner to spell out "facts" adverted to in paragraph-18 of the petition has its own tale to tell.

It is now well settled that the provisions of Sec. 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 Section 83 requires first a concise statement of material facts and then the fullest possible particulars. Material facts being facts necessary to formulate a complete cause of action and omission 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.

The occasion to consider the provisions of Section 83 of the Act also arose in Hardwari Lal Vs. Kanwal Singh, , where, it was observed that material facts were facts which, if established, would give the petitioner the relief asked for. In this case, the corrupt practice alleged against the returned candidate was founded upon the plea that he had procured and obtained or attempted to procure and obtain assistance of government servants for the furtherance of his prospects in the election by writing letters to them soliciting their help. In the petition, dates of the letters, their scripts and the persons to whom they were addressed, were given but no more. It was held that these were not material facts constituting a cause of action, as necessary particulars as to the nature of the assistance, the time and place where it was sought from each of the persons concerned had not been furnished.

See in this light, there can be no escape from the conclusion that the petition here falls far short of meeting the requirements of Section 83 of the Act. Words of the relevant Section of the Act and of the 1968 Rules regarding allocation of symbols have no doubt been incorporated, but the material facts and particulars with regard to them are conspicuous by their absence.

The other limb of the infirmities attaching to the petition is founded upon the further requirement that the election of the returned candidate must be shown to have been materially affected by the ground on which his election is sought to be set aside. In dealing with this matter, it would be partinent to note the number of votes polled by the petitioners and the returned candidate. This position being as under:--

Petitioner

Votes

1.

Swaraj Singh

�

30

2.

Suresh Kumar

�

92

3.

Shamsher Singh

�

180

4.

Ram Kumar

�

84

5.

Roshan Lal

�

98

6.

Surinder Singh

�

116

7.

Raj Vir Singh

�

81

Total :�

681

Respondent

Ch. Bansi Lal

3,57,625

Further, the returned candidate Ch. Bansi Lal admittedly won the election by over 1,90,000 votes. The wide disparity in the number of votes cast in favour of the petitioner as compared to those for the returned candidate clearly detracts from any inference of the election of the returned candidate, having been in any manner materially affected by the matters alleged in the petition. It will be seen that whereas all the seven candidates put together could poll only about 700 votes, those obtained by the returned candidate were over three-and-a-half lakhs.

Such thus being the situation, there can be no manner of doubt that respondent has no case to answer as the petition discloses no cause of action and it cannot, therefore, be sustained. Rather, it must be branded as wholly frivolous and without basis. This election petition is accordingly hereby dismissed and keeping in view the circumstances, as narrated, with Rs. 10,000/- as costs.

Petition dismissed.