S.N. Phukan, J.
1. The election petitioner was a candidate for 35-Abhayapuri North Constituency in the General Election held on 8th June, 1991 in pursuant to a notification issued by the Governor of Assam. 25-4-91 was fixed as last day for filing nomination and 27-4-91 was the date fixed for scrutiny. At the time of counting it was found that petitioner got 1,303 votes, the returned candidate namely respondent No. 2 got 22,311 votes. As the petitioner was defeated, the present election petition has been filed praying, inter alia, that the election of respondent No. 2 be declared void. I shall state the relevant facts stated in the election petition at the appropriate time.
2. The respondent No. 2 has filed the present petition under Order VII, Rule 11, C.P.C. read with Sections 86 and 87 of the Representation of the People Act, 1951 praying, inter alia, that the election petition may be dismissed/ rejected.
3. From the election petition it appears that the above constituency was a reserved constituency for Scheduled Caste and according to election petitioner he was a nominee of the recognised All India Political Party viz Samajbadi Janata Party having the authorised symbol (Chakra Haladhar). The election petitioner has stated in para 2 of the election petition that he could not submit Forms A and B issued by the party Head Office along with his nomination and the Returning Officer on 26-4-91 called and informed him as per decision of the Election Commission vide letter dated 20-4-91, the symbol 'a woman carrying a pot on her head' may be given to the petitioner as his election Symbol and he was directed to change his symbol in the nomination paper. Petitioner demanded the symbol 'Chakra Haldhar', but it was refused and accordingly petitioner changed his symbol in the nomination paper. On 27-4-91 during scrutiny by the Returning Officer, the nomination paper of the election petitioner was found valid. According to election petitioner, on 29-4-91, the petitioner
submitted the Forms A and B issued under para 13(c) and (b) of the Election Symbol (Reservation and Allotment) Order, 1968 to the Returning Officer and requested him for reallocating the said party symbol. Petitioner has also alleged that the Returning Officer assured that the change will be made and also issued identity card showing him as a candidate sponsored by the said political party for the above constituency. But the Returning Officer did not change the symbol in respect of the petitioner and issued the list of contesting candidates showing the symbol 'a woman carrying a pot on her head' against the petitioner mentioning his party as Samajbadi Janata Party. Thereafter, on 9th and 11th May, petitioner had discussed with the Returning Officer regarding allotment of symbol. But the prayer of the petitioner was rejected. Again on 17-5-91, the Returning Officer issued a notice wherein it was stated that the symbol allotted to the petitioner was cancelled and he was directed to appear before the Returning Officer on 18-5-91 for giving him preference in writing for any available free symbol listed for Assam. Petitioner duly appeared before the Returning Officer, but he was not allotted any of the symbol stated above and the symbol 'A Cultivator Winowing Grain' was allotted to him and it was duly published against his name in the list of contesting candidates and the petitioner was shown in an independent candidate. The grievance of the petitioner is that although he was a nominee of the recognised National Party, Samajbadi Janata Party, he was denied the allotted symbol of the said political party. It has been stated that in the constituency, the total number of electorates were 86,191 and valid votes polled in the election were 68,479 and 36, 18 numbers of votes were rejected. In para 13, these facts have been stated and a vague statement has been made that there were quite a good number of postal ballotes and surprisingly enough, in the said ballotes papers, petitioner was shown as a candidate sponsored by Samajbadi Janata Party. A general statement has been made in para 14 of the petition that refusal of the allotted symbol of the party to the petitioner has materially affected the result of the election. It has been alleged that
the refusal to allot the said symbol amounts to non-compliance of the provision of Section 100(d) (iv) of the Representation of the People Act, and as such the election of the respondent No. 2 is liable to be declared void. According to petitioner due to fighting of election as an independent candidate with a free symbol unknown to the party workers, petitioner was deprived of the votes legitimately due to him and has also caused prejudiced.
4. Now let me state the averments made in the present petition filed under Order VII, Rule 11, C.P.C. read with Sections 86 and 87 of the Representation of the People Act, 1951 as I propose to dispose of the said application by this order.
5. Main contention in the above petition is that the election petition does not disclose any cause of action as required under the provisions of the Representation of the People Act, 1951 and Election Symbol (Reservation and Allotment) Order, 1968, as well as, Conduct of Election Rules, 1961. Referring to provisions of para 13 of the Election Symbols (Reservation and Allotment) Order, 1968, it has been alleged that as the entire case of the election petitioner is based on the grievance of non-allotment of proper symbol, thereby materially affecting his prospect in the election, the petitioner ought to have given material particulars in the election petition, which are absent. It (sic) also been alleged that the election petition does not contain the last date of withdrawal of candidature in the constituency in question and the petitioner has also not stated the date and time of submission of the nomination paper. It has also been alleged that reading paras 2, 3, 4 and 5 of the election petition it is found that the petitioner did not submit his nomination paper in terms of Rule 4 of the Conduct of Election Rules, 1961, inasmuch, in the election petition it was admitted that the petitioner did not file the papers as required under para 13 of the Election Symbols (Reservation and Allotment) Orders, 1968. Further it has been urged that in the election petition no statement has been made that the requirements of the said para 13 were completed within date and time as per
law. The respondent has further alleged that the petitioner has not stated anything or given any material fact to show that Samajbadi Janata Party is a recognised All India Political Party with 'Chakra Haldhar' as its reserved symbol and as such petitioner cannot have any grievance and there is no triable issue and further the petition is without any cause of action. It has also been alleged that petitioner has not stated any of material facts showing as to how the alleged refusal of allotment of party symbol had materially affected his result and that how many votes the petitioner polled in his favour vis-a-vis number of votes polled by respondent No. 2. It has also been stated that only the provisions of law has been stated in the election petition which is not sufficient. It has been alleged that an attested true copy of the petition was not served on the respondent No. 2 as required under Section 81 of the Representation of the People Act, 1951 and the signatures below the attestation of the front page and in the subsequent pages are not identical, and therefore, it is not clear as to whether petitioner himself has attested and authenticated the petition. That apart, there are several unattested hand-written insertion in election petition and in this connection paras 1, 3, 8 and 12 of the election petition have been mentioned. It has been alleged that as the petition did not contain material facts and also did not disclose any cause of action the election petitioner cannot be allowed to file this petition to embarke on a fishing enquiry. It has been prayed that the election petition be rejected and dismissed under Section 86 of the Representation of the People Act, 1951 and Order VII, Rule 11, C.P.C. due to non-compliance of the provisions of Sections 82 and 83 of the above Act.
6. The election petitioner has filed a reply to the present petition and has made a statement that the election petitioner submitted his nomination as per provisions of law and Rules for holding of election and complied with all the formalities as required under para 13 of Election Symbol (Reservation and Allotment) Order, 1968. It has been alleged that the present petition is misconceived and that the election petitioner submitted Forms A and B under para 13 of the above
Symbol Order, 1968 within the stipulated time. It has also been stated that the above Forms as required under said para 13 were submitted to the Returning Officer on the date of withdrawal ;of the nomination paper 'more particularly, before 3 p.m. on that date and that 29-4-91 was fixed for withdrawal of nomination papers. It has also been stated that the above Forms A and B were signed by the Secretary and President as required under the law and that the Election Commission allotted the Janata Party Symbol of 'Chakra Haladhar' to the Samajbadi Janata Party which came into being before the election of 1991. According to election petitioner the Janata Dal as Samajbadi Janata Party merged into one party and formed Samajbadi Janata Party. As to how the petitioner was affected for non-allotment of the party symbol is a matter of evidence which would be brought out at the time of trial. It has been stated that all the hand-written insertions in the election petition were made by the petitioner himself and a true copy was served on the respondent No. 2. It has been prayed that the present petition may be dismissed as it is without merit.
7. I have heard Mr. A. M. Mazumdar, learned counsel for the respondent No. 2 who has filed the present petition and also Mr. Chaliha, learned counsel for the election petitioner.
8. At the outset as the election petition did not contain the number of votes polled by the election petitioner, on enquiry it was stated at the bar that the elected candidate viz respondent No. 2 polled more than 22000 votes out of total votes of 68,479 and the petitioner got only 1,303 votes, 3,618 votes were rejected.
9. Before I consider the contentions raised on facts, let me extract below the relevant provisions of the law, as well as, the decisions of the Apex Court on which both the parties have placed reliance.
10. The Election Symbols (Reservation and Allotment) Order, 1968 is an order made by the Election Commission to provide for specification, reservation, choice and allotment of symbols at election in Parliamentary and Assembly Constituencies for the recognition of political parties in relation thereto and for matters connected therewith. Para 13 of this order which is relevant for our present purpose, inter alia, provides that 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 the last day of withdrawal of candidatures, been delivered to the Returning Officer of the Constituency; (c) the said notice is signed by the President, the Secretary or any other office bearer of the party and the President, Secretary or such other office bearer is authorised by the party to send such notice; and (d) the name and specimen signature of such authorised person are communicated to the Returning Officer of the constituency and the Chief Electoral Officer of the State not later than, 3 p.m. on the last day for the withdrawal of candidatures.
11. My attention has been drawn to a decision of the Supreme Court in Rooplal Sathi v. Nachattar Singh, AIR 1982 SC 1559. The ratio laid down by the Apex Court in that case was that the above symbol order was made by the Election Commission in exercise of its power under Article 324 of the Constitution of India read with Rules 5 and 10 of the Conduct of Election Rules and all other powers enabling in that behalf, are in the nature of general directions issued by the Election Commission to regulate the mode of election symbol to the contesting candidates. According to their Lordships it is a matter of common knowledge that election in our country are fought on the basis of symbol and therefore, it logically follows as a necessary corrollary that the Symbols Orders is an order made under the Act and therefore, any breach of para 13 or 18 of the said order amounts to non-compliance of the provisions of the Constitution or the Act or any Orders made under the Act and therefore, the change of allotment of symbol by the Returning Officer in compliance to the directions of the Election Commission was a matter which fell within the purview of Section 100(1)(d)(iv) of the
Representation of the People Act, 1951. The above Section 100 has laid down the grounds for declaring election to be void and the ground mentioned under Sub-section (1)(d)(iv) of the said Section 100 runs as follows :--
'(iv)(b) any non-compliance of the provisions of the Constitution or of this Act (Representation of the People Act, 1951) or of any Rules or Orders made under this Act'.
In other words, if this Court is of the opinion that there was non-compliance as stated above, the election of the returned candidate can be declared to be void.
12. In Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, the Apex Court held that an election petition can be and must be dismissed under the provisions of the C.P.C. if the mandatory requirement enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with and that the provisions of C.P.C. applies to the trial of an election petition by virtue of Section 87 of the Representation of the People Act, 1951. It was also held that as C.P.C. is applicable, the Court trying the election petition can act in exercise of the powers of the C.P.C. including Order 6, Rule 16 and Order7, Rule 11(a) and therefore, that Section 83 does not find the place in Section 86 of the above Act which authorises dismissal of election petitions in certain contingencies does not mean that powers under C.P.C. cannot be exercised. Their Lordships further held that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of powers under C.P.C. and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that ah election petition without material facts relating to a corrupt practice is not an election petition at all. The contention that even if election petition is liable to be dismissed, ultimately it should be dismissed only after recording evidence and not at threshold was rejected.
13. In Dharpipaki Madan Lal Agarwalla v. Rajiv Gandhi, AIR 1987 SC 1577, it was held that on a combined reading of Sections 81, 83, 86 and 87 of the Representation of the People Act, 1951, it is apparent that those paras of an election petition which do not disclose any cause of action are liable to be struck off under Order 6, Rule 15(16), C.P.C. as the Court is empowered at any stage of the proceeding to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It was also held that it is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defect and further if the Court on examination of the plaint or election petition finds that it does not disclose any cause of action, it would be justified in striking out the pleadings. According to the Apex Court, Order6, Rule 15 (16), C.P.C. itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be present before the filing of the written statement by the respondent or commencement of the trial. According to their Lordships if the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for filing of the written statement instead it can proceed to hear the preliminary objection and strike out the pleadings and if after striking out the pleadings, if the Court finds that no triable issue remain to be considered and it has power to reject the election petition under Order6, Rule 16, C.P.C. It was also held that an order of amendment permitting a new ground to be raised beyond the time specified in Section 87 and it necessarily follows that a new ground cannot be raised or inserted it an election petition by way of amendment after expiry of the period of limitation.
14. Section 81 of the Representation of the People Act, 1951, inter alia, provides that an election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (i) of Sections 100 and 101 by any candidate at such election or any elector within 45 days from the date of election of the returned candidate and every election petition shall be accompanied by as many copies thereof as there are respondents
mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 83 of the Act, inter alia, provides that an election petition shall contain a concise statement of material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in C.P.C. for verification of pleadings. Sub-section (2) of the said section provides that any schedule or annexure to the petition shall be signed by the petitioner and verified in the same manner as the petition. The procedure where corrupt practice alleged in such election petition as contained in the said Section 83 has not been extracted as it is not necessary for our present purpose. Section 86 , provides for procedure of trial of election petition and Sub-section (1) provides that High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. It is not necessary to mention other subsection of this section. Section 87 inter alia, provides that subject to other provisions of the Act and Rules made thereunder every election petition shall be tried as nearly as may be in accordance with the procedure applicable under C.P.C. to the trial of suits and the provisions of Indian Evidence Act, subject to the provisions of the Representation of the People Act, 1951 shall be deemed to apply in all respect to the trial of election petition. Section 100 of the Act contains the grounds for declaring election to be void and in the case in hand this Court is concerned, as stated above with Sub-clause (iv) of Clause (d) of Sub-section (1) of the said section and in otherwords whether there was non-compliance of para 13 of the Election Symbols (Reservation and Allotment) Order, 1968.
15. As the present election petition, the main grievance of the election petitioner is that the symbol reserved for the National Party viz Samajbadi Janata Party who sponsored the candidate was not given, the question to be determined is whether the election petition contains all the material facts vis-a-vis para 13 of the said order. This Court is also to consider whether election petitioner has stated material facts in the election petition to show that the alleged violation of
the above Symbols Order materially affected the result of the election as contained in Clause (d) of Sub-section (1) of Section 100 of the Act.
16. Keeping in view the above provisions of law and the ratio laid down by the Apex Court, let me examine the present election petition. In the paras 1 and 2 of the election petition it has been stated that the petitioner is a citizen of India and a member of the Scheduled Caste Community and also a voter of 35 Abhayapuri North Constituency qualified to be elected as a member of the Legislative Assembly. It has also been stated that the Governor of Assam by a Notification decided to hold general elections and 25-5-91 was the last date for filing of nomination. The constituency in question i.e. 35-Abhayapuri South Constituency is a reserved one for a member of the Scheduled Caste and the petitioner along with others filed nomination. Petitioner was a nominee of Samajbadi Janata Party which is recognised as an All India party and the symbol 'Chakra Haladhar' was allotted to the party. It has been admitted that he could not submit the Forms A and B, which were issued by the head office of the party, along with his nomination paper. In para 3 of the election petition it has been stated that on 26-4-91 the Returning Officer called the election petitioner to his office and stated that as per decision of the Election Commission communicated vide letter dated 20-4-91, the symbol 'A woman carrying a pot on her head' is allowable to the petitioner and accordingly he was directed to change his symbol in the nomination paper. Petitioner insisted for the above symbol of his political party, but it was rejected. On 27-4-91 after scrutiny the nomination of the election petitioner was found valid and on 29-4-91, petitioner submitted Forms A and B as provided in para 13(b) and (c) of the Election Symbol (Reservation and Allotment) Order, 1968 to the Returning Officer and requested him to change the symbol accordingly. It has been alleged that the Returning Officer assured him and issued the identity card on 29-4-91 showing him as a candidate of the above political party of the said constituency. However, the symbol was not changed and
the list of contesting candidates from the said constituency issued on 29-4-91, the symbol of the petitioner was shown 'A woman carrying a pot on her head' against the petitioner mentioning the party as Samajbadi Janata Party. Thereafter on 9th and 11th May, 1991, the matter was discussed with the Returning Officer and petitioner showed some posters of his political party wherein candidates in other constituency including Gauhati Parliamentary Constituency was given the symbol 'Chakra Haladhar' and requested him to reallotte the symbol which was rejected by the Returning Officer. On 17-5-91, the Returning Officer, North Salmara issued a notice dated 17-5-91 wherein it was stated that the symbol allotted to the petitioner was cancelled and he was directed to appear on 18-5-91 to give preference in writing of any available free symbol for the State of Assam. Petitioner accordingly appeared and he was informed that if the symbol 'a woman carrying a pot on her head' was not allowed he should be allotted the above symbol of his political party under para 8 of the Election Symbol (Reservation and Allotment) Order, 1968. This request was refused by the Returning Officer and he was allotted a new symbol 'a cultivator winowing grain' and accordingly list of contesting candidates in Form 7A under Rule 10(1) of the Conduct of Election Rules was issued and petitioner was shown as an independent candidate. The petitioner fought election as an independent candidate with the above free symbol although he was nominated by his political party Samajbadi Janata Party, a recognised National Party. In para 12 of the election petition it has been stated that elections were held on 8th June, 1991, counting on 10-6-91 and final result was declared on 18-6-91. Respondent No. 2 who had secured more than 20,000 votes was declared elected. It has been alleged that in postal ballot papers the petitioner was shown as a candidates of Samajbadi Janata Party. The number of such postal ballot papers have not been stated in para 13 of the election petition. In para 14 of the election petition a general statement has been made that as the symbol of the recognised political party of the petitioner was not allotted it has materially affected the result of the election petitioner
and that there was non-compliance of the provisions of the Constitution and the symbol order. It has also been alleged that as the election petitioner was nominated by the above political party by submitting Forms A and B duly authenticated by party officials, the refusal of the symbol amounts to non-compliance of the provisions of Section 100(1)(d)(iv) of the Representation of the People Act, 1951. Along with the election petition only document that it annexed is a copy of the Challlan showing deposit of Rs.2000/-.
17. I have quoted all the relevant paras of the election petition and it appears that this petition contains only general statements and few facts. All the material facts have not been
stated.
18. From the facts alleged in the election petition only ground on which the election has been challenged is non-allotment of the symbol of the political party, Samajbadi Janata Party to the petitioner. There is absolutely not a piece of paper to show that the petitioner was sponsored by the above political party and that apart, the copy of the Forms A and B have not been annexed. It has also been stated when these Forms were submitted and to whom. Petitioner has also not disclosed the names of the person signing the above 2 forms.
19. As stated earlier, respondent got
elected by a huge margine. Except quoting the
provision of the section that for non-allotment of the symbol, the result was materially
affected the material facts have not been
stated in the petition.
20. Under para 13 of the Election Symbols (Reservation and Allotment) Order, 1968, a candidate shall be deemed to be set up by a political party is, and only, if, the candidate has made a declaration to the effect in his nomination paper a notice in writing to that effect has not later than 3 p.m. on the last day of withdrawal of candidature been delivered to the Returning Officer of the constituency; the said notice is signed by the President, the Secretary or any other office bearer of the party and the President and Secretary or such other office bearer is
authorised by the party to send such notice
and 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 p.m. on the last day of withdrawal
of candidature. In the present petition, the
election petitioner has not given the names of
the President and the Secretary of the
political party and has also not stated that
they were duly authorised by the party to send
such notice. It has also not been stated in the
election petition that the name and the specimen signature of such authorised person were
communicated to the Returning Officer and
the Chief Electoral Officer of the State as
required under para (d) of para 13 of the said
Order of 1968. These are material facts and
have not been disclosed in the election
petition.
21. Most important factor is that non-compliance of the law must materially affect the result of the election. Except quoting the section by making a general statement, no particulars of such material facts have been stated.
22. I have perused the election petition and I am of the opinion that the election petition does not contain material facts as required under Section 83 of the Representation of the People Act, 1951. The paras of the election petition also do not disclose any cause of action and as such they are liable to be struck off under Order6, Rule 15(16), C.P.C. as held by the Apex Court in Dhartipalar (AIR 1987 SC 1577) (supra). I further hold that the trial if allowed to proceed would only prejudice, embarass and delay the proceeding and as such this Court need not wait for filing of written statement by the respondent. Following the ratio laid down by the Apex Court in Azhar Hussain (AIR 1986 SC 1253) (supra), I hold that even if Section 83 does not find place in Section 86 of the Act, this Court can exercise the powers under the C.P.C. including Order6, Rule 15 and Order VII, Rule 11(a) can dismiss the election petition. In the above case, the Apex Court also held that the omission of a single material facts would lead to incomplete cause of action. Although in the
counterfiled on the petition some more facts have been stated, I am of the opinion that as these facts were not disclosed within the period of limitation fixed by the Act it is not
necessary to look into these facts.
23. For what has been stated above, I accept the present petition filed by the respondent, who was declared elected from the constituency and hold that the election petition is liable to be rejected which I hereby do. As the petition has been rejected at the initial stage I award a cost of Rs. 500/-(Rupees five hundred) only.
Office to communicate the substance of the above decision to the Election Commission, the Speaker, Assam Legislative Assembly and shall also take follow-up action as required under Section 103 of the Representation of the People Act, 1951.