JUDGMENT

SEN, J.:— This appeal by special leave is from a judgment and order of the Punjab & 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 May 5, 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 May 5, 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.

3. 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 May 7, 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 partys reserved symbol hand be allotted to him. On May 8, 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 :

Sl. No. Name of the Candidate Symbol Allotted

1. Shri Nachhattar Singh HAND

2. Shri Jagmohan Singh BOW & ARROW "

4. 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 & arrow allotted to Jagmohan Singh.

5. 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 p