Delhi High Court
Narendra Nahata vs Shree Aggarsen North Ex Welfare ... on 20 May, 2022
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 20th May, 2022
+ CS(OS) 286/2022
NARENDRA NAHATA .....Plaintiff
Through: Mr. Kirti Uppal, Sr. Advocate with
Mr. Vikas Manchanda, Ms. Riya
Gulati, Mr. Himanshu Bidhuri, Mr.
Anish Dewan, Mr. Naman Garg &
Ms. Ritu Jain, Advocates.
versus
SHREE AGGARSEN NORTH EX WELFARE SOCIETY (REGD.)
...... Defendant
Through: Mr. Sanjeev Sindhwani, Sr. Advocate
with Mr. Rajeev Aggarwal & Ms.
Shilpa Singh, Advocates for D-1 & 2.
Mr. Tanmay Mehta & Mr. Virender
Singh Rana, Advocates for D-4, 8, 9,
10, 11, 16, 23, 25, 26, 28, 30, 32, 34,
35, 36, 38, 39, 41, 42, 43, 45, 46, 47&
48.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
NEENA BANSAL KRISHNA, J. (ORAL)
I.A. 7921/2022 (Under Section 151 of CPC seeking exemption from
filing the certified copies and legible copies of the documents)
1. Allowed, subject to all just exceptions.
2. The plaintiff shall file better copies of exempted documents,
compliant with practice rules, before the next date of hearing.
3. Application is disposed of.
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
I.A. 7920/2022 (U/o XXXIX Rules 1 & 2 read with Section 151 of CPC
for ad interim ex parte injunction)
1. This application has been filed under Order XXXIX Rules 1 and 2
read with Section 151 Civil Procedure Code, 1908 by the plaintiff with the
prayer that the defendant No.1-Society be restrained from holding the
Elections scheduled for 22nd May, 2022 till the disposal of the issue of
allotment of common symbol to the respective candidates contesting the
elections and that elections be not conducted till the allotment of common
symbols to various defendants is held to be against public policy and natural
justice and against the welfare of the defendant No.1-Society.
2. The Notice of the suit and the application was served upon the
defendants who appeared through their Counsels. At the outside ld. Senior
Counsel clarified that the prayer for stay of elections was not being pressed
and the elections scheduled to be held on 22nd May, 2022 may not be stayed
but an ad-interim injunction was sought to the extent that the ballot papers
may be reprinted and contestants may not be allowed to be represented
through their symbols in the ballot papers.
3. Learned Senior Counsel for the plaintiff has argued that the plaintiff
had sought specific information regarding allotment of symbols from the
Returning Officer by his Letter dated 02nd May, 2022 to which only
response given by returning Officer via e-mail dated 03rd May, 2022 was
that the question was premature. Despite seeking specific information in
regard to the allotment of symbol to a group, the Returning Officer failed to
respond with any affirmative information. The pattern of symbols issued by
the Returning Officer to a group of persons contesting the elections is totally
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
contrary and in contravention to the response given by the Returning
Officer, vide his letter dated 03rd May, 2022 in regard to common symbols
for a group of persons.
4. Learned Senior Counsel has further argued on behalf of the plaintiff
that there is a procedure to be followed for allotment of symbols and the
same could not have been done by the Returning Officer randomly without
following any procedure. The allotment of a common symbol to a group of
people would lead to unfair elections and this can never be permitted.
5. Learned Senior Counsel submitted that the ballot papers in addition to
showing the names of the candidates, also displays the allotted symbols
against their names. The plaintiff at this stage is not seeking the stay of the
elections scheduled for 22nd May, 2022, but the only request is to reprint the
ballot papers without the symbols being put against the names of the
contesting candidates. In this world of technology, this task is not difficult
nor time consuming and can be done with minimal expense, cost and time.
It was thus argued by the learned Senior Counsel for the plaintiff that it is in
the interest of fair elections free from any kind of bias, that the ballot papers
to be used for the elections to be held on 22nd May, 2022 must not have the
symbols printed against the names of the candidates.
6. Learned Senior Counsel for the plaintiff in support his contentions has
placed reliance on the decision of the Hon‟ble Supreme Court in Election
Commission of India Through Secretary vs. Ashok Kumar & Ors. (2000)
SCC Online SC 1234, wherein the principles to be followed for ensuring
smooth conduct of the elections have been enumerated.
7. Learned Senior Counsel on behalf of the respondent has argued that
the same practice of allotting the symbols to a group of persons is being
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
followed in the past as is evident from the ballot papers for the elections
held in the years 2016, 2018 and now in 2022, where the similar practice of
allotment of symbols to a group of persons has been followed. The plaintiff
became a member of the defendant No. 1-Society in the year, 2016 and
never raised any grievance about this practice being followed in the Society
in the past. Rather, the plaintiff himself has averred to this practice of
allocating same symbol to a group of persons being followed in the Society
in the past elections as well. A frivolous argument has been raised in this
regard which is not tenable. The schedule of election had been notified on
21st April, 2022, wherein it was clearly indicated that the allotment of the
symbols shall be done on 04th May, 2022 from 11:00 A.M. till 03:00 P.M.
The plaintiffs had sufficient advance notice about the allotment of symbols
to the candidates.
8. Moreover, it has been wrongly claimed by the plaintiff that incorrect
information was furnished by the Returning Officer vide his response dated
04th May, 2022 by claiming that the question in regard to the allotment of
symbol was premature. In fact, the allotment was done on 04th May, 2022
and the Returning Officer has correctly stated that the question was
premature, since it could have been answered only after the allocation of
symbols was done on 04th May, 2022.
9. It is further argued that the plaintiff in addition to have been put to
prior notice vide Notification of schedule of election on 24th April, 2022,
had himself applied for allotment of symbol and was in fact given a symbol
of „Shree‟. The contention of the plaintiff that allotment of symbol to a
group of persons would adversely affect the fairness of the procedure of
election is without any basis.
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
10. Learned Senior Counsel for the defendant has relied upon a decision
of Division Bench of Delhi High Court in The Yachting Association of
India vs. Boar Sailing Association of India & Ors. ILR (2013) V Delhi
3539 LPA, wherein it had been reiterated up that the term „election‟
includes all steps and entire proceedings commencing from the date of
notification of election till the date of declaration of result, and once the
process of election has commenced, the intervention of the court can be
sought merely to correct or smoothen the progress of election proceedings
to remove obstacles therein, or to preserve a vital piece of evidence if the
same would be lost or destroyed or rendered irretrievable by the time, the
results are declared. The court must guard against any attempt to interrupt,
protract or stall the election proceedings.
11. The reliance has also been placed by the learned Senior Counsel for
the defendant on Shri Sant Sadguru Janardan Swami (Moingiri Maharaj)
Sahakai Dugdha Utpadak Sanstha & Ors. vs. State of Maharashtra & Ors.
(2001) 8 SCC 509, Election Commission of India Through Its Secretary
vs. Ashok Kumar & Ors. (2000) 8 SCC 216, P.V. Vijayaraghavan & Ors.
vs. Nityam Software Solution Pvt. Ltd. & Ors. MANU/DE/0263/2021,
Rajendra Prasad Gupta vs. Prakash Chandra Mishra & Ors.
MANU/SC/0211/2011 and Kerala Samsthana Chethu Thozhilai Union vs.
State of Kerala & Ors. MANU/SC/1654/2006.
12. It is thus submitted that the present suit is merely an endeavor to stop
the elections as has also been mentioned in clause-(a) of the Prayer
paragraph of the plaint. No prima facie case is made out for grant of ad-
interim stay.
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
13. Learned counsel Mr. Tanmay Mehta appearing on behalf of defendant
Nos. 4, 8, 9, 10, 11, 16, 23, 25, 26, 28, 30, 32, 34, 35, 36, 38, 39, 41, 42, 43,
45, 46, 47 and 48 in addition to the arguments already mentioned above, has
further submitted that in the entire plaint or the application for interim relief,
no averment whatsoever has been made of what irreparable loss or injury
would be caused to the plaintiff by allotment of a common symbol. It is
asserted that no case is made out for grant of ad interim injunction.
14. Submissions heard.
15. The basic grievance of the plaintiff to the conduct of elections of
defendant No.1 Society registered under The Societies Registration Act,
1860, scheduled for 22nd May, 2022, is in regard to the procedural fairness.
According to him, by allotting a common symbol to a group of candidates
would unfairly weigh with the voters and can result in unfair outcome.
16. The first aspect that may be considered is the relevance of having
symbols for the candidates contesting the elections. Admittedly, there exist
no Rules or enactment unlike for general State and National Elections, for
allotment of symbols to the contesting candidates in an election of a Society.
This is not the first time that the elections are being held by the Defendant
no.1. It has been rightly argued that a practice to allot symbols to a group or
individual candidates is being followed since many years which has never
been challenged before. The purpose of having symbols has been explained
by the plaintiff himself in paragraph 29 of his plaint wherein it is mentioned
that one of the purpose of allotting symbol to a candidate is to facilitate his
identification by illiterate people who cannot read and understand the
candidate‟s name and background of the contestant.
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
17. The plaintiff has contended that in defendant No. 1-Society, all the
voters are well-educated and can read the names of the candidates and there
was no need of identification of the candidates by allocating symbols. The
allotment of symbol only ensures and reinforces proper identification of the
candidate and reduces the probability of any confusion in the mind of the
voter and has been evolved merely as a facilitative procedure duly
recognized by statutes in the case of State and National elections and
followed by the Societies as a practice for fair elections. The plaintiff
himself had applied for allotment of symbol reflecting his own concurrence
to this practice as a part of election process.
18. Learned Senior Counsel on behalf of the defendants has argued that
the plaintiff had notice about allotment of symbols since 21st April, 2022
when the election schedule was published and he cannot come at this belated
stage to seek indulgence of the court.
19. The averments in the plaint and the accompanying documents show
that the plaintiff had sought information about allotment of symbols on 02nd
May, 2022. In order to address his concern, the plaintiff vide his letter dated
02nd May, 2022 to the Returning Officer, sought information in regard to
the following three questions, which read as under:
"(i) Whether any party has been registered with a symbol to
contest the election on a larger banner in the present society or
not? Please provide the information in this regard.
(ii) Whether you will be providing a common symbol for a
group of people or not?
(iii) Whether you will recognize an election under a group or
not?"
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
20. A response was promptly given by the Returning Officer to the
plaintiff‟s vide letter through vide e-mail dated 03rd May, 2022, which reads
as under:
"(i) No party has been registered with a symbol to contest the
election.
(ii) This issue has not been arisen so far.
(iii) This is a premature question as on date, as the schedule of
election was already published."
21. It has been vehemently argued on behalf of the plaintiff that incorrect
and evasive information was given by the returning Officer that "No party
has been registered with a symbol to contest the election." However, the
symbols were allotted only on 04th May, 2022 and no better reply except the
query being premature, could have been given.
22. Further, not satisfied with the response, the plaintiff had immediately
thereafter lodged his protest with the Returning Officer vide his letter dated
04th May, 2022 asserting that the information provided by the Returning
Officer on 03rd May, 2022 that no group/party was registered for contesting
elections in common, was not correct as one symbol had been allotted to a
number of candidates as if they are contesting as a group of persons. It was
mentioned in the letter that the symbol „one-rupee coin‟ was allotted to one
group of persons, who were contesting on all the 24 seats. The second
symbol of „bow and arrow‟ has been allotted to another one group of
candidates, who were contesting on 9 seats, while „stethoscope‟ has been
allotted to the candidates who are doctors and are contesting on 4 seats.
Symbol „OM‟ has been allotted to 2 candidates, while 6 members who are
contesting independently, have been allotted different symbols. Though,
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
there were 46 candidates, who were contesting the elections, only 10
symbols have been allotted.
23. Similar representation was made by the plaintiff vide letter on 05th
May, 2022 raising objection about the issue of common symbol. It was
claimed to be a clear case of unfairness to other candidates, since no party or
group is registered to contest the election. A request was made to issue
separate symbols to all the candidates contesting the elections in order to
maintain individual credibility of the respective candidate so as to ensure
procedural fairness in conduct of elections. It was claimed that since there is
no registered group or company, allotment of common symbol to a group of
people would be against the fair and impartial elections and would amount
to a clear case of corruption, which must be curtailed.
24. The plaintiff, therefore, had been raising his concern about allocation
of symbols since even prior to their allocation and it cannot be held that the
plaintiff has raised this issue belatedly.
25. This contention of the defendants about the plea being raised
belatedly does not hold any merit also for the reason that since it is nowhere
the case of the plaintiff that there is any party registered with the Society. It
is also not under challenge that a group of people have come together as a
team by adopting same symbol. The plaintiff is not averse to symbol being
allotted to every candidate but his apprehension is that if a group of people
are allowed to contest under the same symbol, the outcome of the elections
may not be fair. The plaintiff has been raising his concern in this regard
since 03rd May, 2022 and had even made representations on 04th May, 2022
and 05th May, 2022 and when he did not get any favourable response, he
approached the court for succour.
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
26. Be as it may, the sole anxiety of the plaintiff as discernable from his
assertion in paragraph 29 of the plaint, is that every previous election has
been done on group basis with an intention to grab the society and its
property for extorting money and benefits, which should not be the intention
of the society.
27. The question which needs consideration is whether the interference by
the Courts once the election process has commenced, is warranted in the
given factual situation. In the present case, the election notification was
taken out on 21st April, 2022 and the date for filing the nominations was 29th
April, 2022 and 30th April, 2022, the votes to be cast on 22nd May, 2022 and
the counting of votes was to be done on 23rd May, 2022. It is clear that the
election process has commenced on the date of notification i.e., 21st April,
2022 and in any case from 25th April, 2022 when the forms for nominations
could be collected. The moot question is whether the election process can be
stalled at this stage, especially on the ground agitated by the plaintiff.
28. The Supreme Court of India in the case of in Election Commission of
India Through Its Secretary vs. Ashok Kumar & Ors. (2000) 8 SCC 216,
referred to the decisions of the Constitution Bench of Supreme court of India
in Ponnuswami vs. Returning Officer, Nammakal Constituency AIR 1952
SC 64 and Mohinder Singh Gill vs. Hassan Uzzaman (1978) 1 SCC 405
and summed up the guidelines in respect of conduct of election, relevant
part of which is as under :
"(1) If an election, (the term election being widely interpreted so
as to include all steps and entire proceedings commencing from
the date of notification of election till the date of declaration of
result) is to be called in question and which questioning may have
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
the effect of interrupting, obstructing or protracting the election
proceedings in any manner, the invoking of judicial remedy has to
be postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to
"calling in question an election" if it subserves the progress of the
election and facilitates the completion of the election. Anything
done towards completing or in furtherance of the election
proceedings cannot be described as questioning the election."
29. The same principles have been reiterated by the Division Bench of
Delhi High Court in The Yachting Association of India vs. Boar Sailing
Association of India & Ors (supra) that the fundamental law in regard to the
elections is that once a process has commenced, the same cannot be
protracted, obstructed or delayed in any manner. The election process
having commenced, the court should not stall it in any manner.
30. The only other aspect that remains to be addressed is whether the
decision sought would "subserve the progress of election and facilitate the
completion of elections."
31. The sole premise agitated by the learned Senior Counsel for the
plaintiff is that the allotment of a common symbol to a group of persons
would result in unfair elections. However, the plaintiff himself has stated in
his plaint that the common symbol was being allotted to a group of persons
by way of past practice. The grievance of the plaintiff cannot be termed to
be in the realm of progress or facilitating the progress of election. The
election process has already commenced and whether the allotment of one
symbol to a group of people resulted in unfair elections, can be determined
only after the election process is completed and the result is declared. It is
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
premature at this stage to claim that mere allotment of common symbol
would result in unfair elections.
32. In any case, in view of the established principles as also reiterated by
the Apex Court in the case of Election Commission of India Through Its
Secretary (supra), the election process once commenced cannot be stayed or
stopped. The allotment of common symbols to a group of persons has been
done as a process of election and the same cannot be stayed or modified at
this stage.
33. It is a fundamental principle as enunciated in Election Commission of
India Through Its Secretary (supra) that while considering the matters
pertaining to elections, guard must be taken to see that no attempt is made
by a party to utilize the court‟s indulgence by filing a petition outwardly
innocuous but essentially a subterfuge or pretext for achieving an ulterior
end or hidden end. It is only in a clear strong case that the court must
intervene.
34. In the facts of present case, no prima facie case is made out for grant
of ad-interim stay and the application is hereby dismissed.
CS(OS) 286/2022
1. List this matter on 01st June, 2022.
(NEENA BANSAL KRISHNA)
JUDGE
MAY 20, 2022
S.Sharma/va
Signature Not Verified
Signed By:NIRMLA
TIWARI
Signing Date:21.05.2022
15:08:45
