(1.) THIS appeal by special leave is from a judgment and order of the Punjab and Haryana High Court dated Feb 2, 1981 by which it has directed the deletion of paras 4 to 18 of The election petition filed by the appellant under S. 81 read with Section 100 of the Representation of the People Act, 1951 ('Act' for short) calling in question the election of the respondent Nachhatter. Singh Gill to the State Legislative Assembly of Punjab from the Moga Assembly Constituency No. 99 on the ground that there is non-disclosure of material facts on which he alleges that the change of allotment of symbols by the Returning Officer, Moga amounted to non-compliance with the provisions of the Constitution, or of the Act, or any rules or orders made thereunder so that the result of the election, in so far as it concerns the respondent i. e. the returned candidate, is materially affected.
(2.) AT the last general elections to the State Legislative Assembly of Punjab from the Moga Assembly Constituency No 99 the appellant contested as a candidate of the Lok Dal Party. The last date for withdrawal of nomination papers was notified as 5/05/1980. It appears that on that day Shri Darbara Singh, President of the Punjab Pradesh Congress (I) Committee, intimated the Returuing Officer that Jagmohan Singh had been nominated as the official candidate of the Indian National Congress (1) to contest the election. There is also on record a letter dated 5/05/1980 addressed by Shri Darbara Singh, President, Punjab Pradesh Congress (I) Committee, to the respondent stating that Jagmohan Singh had been finally selected as the official candidate of the Indian National Congress (I) from the 99-Moga Assembly Constituency in his place, and he was advised to withdraw his nomination paper.
It appears that the Indian National Congress (I) changed its official candidate and finally selected the respondent Nachhattar Singh Gill to be the official candidate of its party. On 7/05/1980, the Returning Officer, Moga Vidhan Sabha Assembly Constituency wrote a letter to Jagmohan Singh stating that he had been directed by the Secretary, Election Commission of India, by means of a police radio message that the respondent was to be treated as the finally selected candidate, and that party's reserved symbol 'hand' be allotted to him. On 8/05/1980, the Returning Officer, Moga Vidhan Sabha Assembly Constituency, addressed a letter to all the candidates regarding the change in the allotment of election symbols to the effect :
"According to the instructions from the Chief Election Commissioner of India, certain change has been effected in the election symbols of the candidates of the election to the 99-Moga Legislative Assembly Constituency which is as under :
Accordingly, the necessary change of symbols was effected in Form 7-A, the list of contesting candidates. The respondent fought the election on the reserved symbol of the Indian National Congress (I) 'hand' and secured 22,460 votes. As against this, the appellant, who was a candidate of the Lok Dal Party, secured 16,686 votes while the aforesaid Jagamohan Singh as an Independent candidate got 242 votes. The appellant was therefore defeated by the respondent by a margin of 5,774 votes. The appellant filed an election petition challenging the election of the respondent under Section 100 (1) (d) (iv) read with Section 123 (7) of the Act. The averments in paragraphs 4 to 18 related to the change of symbols allotted to the respondent viz. 'hand' instead of 'bow and arrow' allotted to Jagmohan Singh.
(3.) UPON these facts, it is averred in para 12 that Jagmohan Singh alone be deemed to be set up as a candidate by the Indian National Congress (I) within the meaning of paragraph 13 of the Election Symbols (Reservation and Allotment) Order, 1968 and not the respondent, and that the candidates could withdraw their nomination papers under Section 37 (1) before 3 p. m. an 5/05/1980 which was notified by the Election Commission to be the last date for withdrawal of candidatures under Section 30 (c) and thereafter the Returning Officer was enjoined under Section 38 (1) to publish in the prescribed Form 7-A the names and addresses of the contesting candidates together with the symbols allotted to them. It is then averred in paragraph 14 :
"On a perusal of para 16 of the Symbols Order it is clear that the Election Commission has no power to issue instructions and directions to the Returning Officer of an Assembly Constituency to reallot the symbol once allotted to a contesting candidate under sub-rule (4) of Rule 10 of the Conduct of Elections Rules and to allot the symbol reserved for a National Party who has allotted the symbol to a candidate deemed to be set up by that political party under para 13 of the Symbols Order to any other person after the publication of the list of the contesting candidates in Form 7-A."
In paragraph 15 after stating that Jagmohan Singh had delivered to the Returning Offices a notice in writing as provided for under paragraph 13 (b) from Shri Darbara Singh, President, Punjab Pradesh Congress (I) Committee, who was duly authorized by the Indian National Congress (1) to issue such authorization as envisaged under para 13 (c), the appellant avers that the action of the Returning Officer in recalling on 8/05/1980 the allotment of the symbol 'hand' to Jagmohan Singh on 5/05/1980 and allotting the same to the respondent, was in violation of the provisions of the Act and the rules made thereunder, and the result of the election, insofar as it concerns the returned candidate i. e. the respondent has been materially affected inasmuch as because of the change of symbol Jagmohan Singh got only 242 votes while the respondent could not have secured more than the same number if be had contested on the symbol 'bow and arrow' earlier allotted to him. If the respondent had not been allotted the reserved symbol 'hand' of the Indian National Congress (I), he could not have won the election. In paragraphs 16, 17 and 18, the appellant set out some facts showing how the result of the election, insofar as it concerns the respondent, has been materially affected by the change of allotment of symbols.
The respondent filed a written statement controverting the allegation that there was a breach of paragraph 13 of the Symbols Order by the change of allotment of symbols made by the Returning Officer in accordance with the instructions issued by the Election Commission. It was pleaded, inter, alia, that the respondent had made a declaration in the nomination paper filed by him on 2/05/1980 to the effect that he had been selected as a candidate of the Indian National Congress (I); and that he had on 5/05/1980 furnished a notice, to the Returning Officer signed and issued by Shri Darbara Singh, President, Punjab Pradesh Congress (I) Committee, in pursuance of paragraph 13 (b) of the Symbols Order. It was alleged that after the respondent had been adopted as a candidate by the Indian National Congress (I), Jagmohan Singh made an effort to get that party's ticket for the seat and produced a letter from Shri Darbara Singh dated 5/05/1980 before the Returning Officer showing that he was the official candidate of the Indian National Congress (I). When the respondent learnt of this move on the part of Jagmohan Singh, he met the President of the Indian National Congress (I) at New Delhi on the morning of 5/05/1980 and apprised her of the situation and was informed that he had been finally selected as the party candidate and there was no question of a change.;