Balzor Singh vs Chief Election Commissioner Of ...
2009 Latest Caselaw 1530 Del

33
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               DECIDED ON: 20.04.2009

+                       W.P. (C) 8291/2009


      BALZOR SINGH                                            ..... Petitioner
                        Through: Mr. K.C. Mittal with
                        Mr. Jagdeep Sharma and Mr. Sumit Babbar,
                        Advocates.

                   versus


      CHIEF ELECTION COMMISSIONER OF INDIA & ANR
                      ..... Respondents

Through: Mr. Jyoti Singh with Mr. Amandeep Joshi, Advocates.

Mr. P.R. Chopra, Advocate for ECI.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)

% The petitioner is aggrieved by inclusion of large number of ineligible

voters in Gokal Pur No.68 constituency for the election of the Delhi

Legislative Assembly.

2. The petitioner contends that no less than eight thousand voters,

ineligible for being included in the electoral rolls were allowed to exercise the

franchise, in November, 2008. The reason for their ineligibility, it is alleged

is that they are residents of Uttar Pradesh. The petitioner had contested the

elections as a candidate but was declared unsuccessful.

3. Learned counsel relies upon the revisions carried out in the electoral

rolls and submits that even according to their own documents, no less than

two thousand voters were not entitled to be included in the electoral rolls

and were later deleted. It is submitted that this substantiated the

petitioner's grievance that at the relevant time in November, 2008, more

than eight thousand such voters, who resided in Uttar Pradesh were allowed

to vote in the elections.

4. Learned counsel for the petitioner relied upon the decision of the

Supreme Court in Bar Council of Delhi & Ors. v. Surjit Singh & Ors. 1980 (4)

SCC 211 and K. Venkatachalam v. A Swamickan and Another 1999 (4)

SCC 526 and submitted that this Court has inherent jurisdiction under Article

226 to grant the relief sought.

5. Learned counsel for the Election Commission of India appearing on

advance notice submitted that the Writ Petition itself is infructuous since the

electoral rolls for assembly constituency No.68 on the basis of which

elections were held in November, 2008, have undergone revision and that

fresh rolls were published w.e.f. 1.1.2009. It is further argued that the

respondents - Commission has carried out the verification process and

published the fresh rolls which renders claim (c) infructuous. Counsel

submits that besides these the petitioner cannot seek the other relief of the

direction to set aside the result of the seventh respondent, the successful

candidate, since the appropriate remedy in that regard would be an election

petition under Section 81 of the Representation of Peoples Act, 1951.

6. The Court has carefully considered the submissions. Article 329 (b)

enacts a bar inhibiting the Courts exercising jurisdiction in regard to election

disputes. Consistently the Supreme Court has ruled (N.P. Ponnuswami v.

Returning Officer, Namakkal Constituency and Ors. AIR 1952 SC 64) that

Courts should desist from interfering with election processes and leave such

disputes for determination to the properly constituted forum in that regard.

Having regard to this clear position, this Court is of opinion that the

jurisdiction vested in it under Article 226 cannot be utilized for the purpose.

7. As far as arguments by the petitioner with regard to K.

Venkatachalam's case are concerned, the facts there were that the appellant

was declared as disqualified and had nevertheless contested the election.

The Court felt that this amounted to fraud on the Constitution as a candidate

due to such disability could not take oath. In the circumstances, the

extraordinary remedy under Article 226 was held to be maintainable.

Further the Court had affirmed the findings of the High Court and did not

primarily exercise the jurisdiction invalidating the election process in the first

instance, as the petitioner is inviting this Court to do.

8. Apart from the above reasons, there can be no dispute that the

revision of the concerned electoral rolls has taken place w.e.f. 1.1.2009. Any

intervention by this Court with regard to the position as it existed before

1.1.2009 would necessarily involve examination of disputed questions of

facts which are best left to be determined by the Election Tribunal

constituted for the purpose.

9. For the above reasons, the Writ Petition has to fail; it is accordingly

dismissed.

S. RAVINDRA BHAT (JUDGE) APRIL 20, 2009 /vd/