Delhi High Court
A. Dayanand Chandela vs Chief Electoral Officer & Others on 23 July, 2009
Author: Sanjiv Khanna
02
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7815/2009
A.DAYANAND CHANDELA .... Petitioner
Through Mr. Bahar U. Barqi, Adv. with Mr. Maroof
Ahmad, Advocate.
versus
CHIEF ELECTROAL OFFICER & ORS. .... Respondent
Through Mr. Shoaib Haider, Advocate for Mr. Najmi
Waziri, Advocate for R-1,2 & 4.
Mr. P.D. Gupta, Adv. with Mr. Kamal Gupta
and Mr. Abhishek Gupta, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 23.07.2009
1. The petitioner is an elected candidate from Rajouri Garden
constituency. The result of the said election was declared on 13th December,
2008.
2. Mr. Avtar Singh Hit, the respondent No.3 herein has filed an election
petition challenging the result and election of the petitioner. The petitioner
is defending the said election petition and has questioned locus standi of the
respondent No.3 to file the said election petition, on the ground that the
nomination paper and the affidavit in support thereof filed by respondent
No.3 was factually incorrect. Counsel for the petitioner, in this regard, has
drawn my attention to the information obtained by him under the Right to
Information Act, 2005 from Delhi Police that 4 FIRs have been registered
against the respondent No.3.
3. The petitioner by way of the present writ petition has prayed for issue
of writ of declaration that the nomination of respondent No.3 should be
declared to be void as he had failed to disclose and mention about the the 4
FIRs in the nomination paper and the affidavit in support thereof. It is
submitted that the respondent No.3 had also failed to disclose his full assets
including the assets of his wife, in the nomination paper/affidavit.
4. The Election Commission had issued directions dated 27th March,
2003. Paragraph 16 of the said directions read as under:-
"16. Now, therefore, the Election
Commission, in pursuance of the above referred
order dated 13th March, 2003, of the Hon'ble
Supreme Court and in exercise of the powers
conferred on it by Article 324 of the Constitution, of
superintendence, direction and control, inter alia, of
conduct of elections of Parliament and State
Legislatures hereby issue, in supersession of its
earlier order dated 28th June, 2002, its revised
directions as follows:-
(1) Every candidate at the time of filing his nomination
paper for any election to the Council of States,
House of People, Legislative Assembly of a State or
the Legislative Council of a State having such a
council, shall furnish full and complete information
in regard to the matters specified by the Hon'ble
Supreme Court and quoted in paras 13 and 14
above. In an affidavit, the format whereof is annexed
hereto as Annexure-1 to this order.
(2) The said affidavit by each candidate shall be
duly sworn before a Magistrate of the First lass (sic)
or a Notary Public or a Commissioner of Oaths
appointed by the High Court of the state concerned.
(3) Non-furnishing of the affidavit by any
candidate shall be considered to be violation of the
order of the Hon'ble Supreme Court and the
nomination of the candidate concerned shall be
liable to rejection by returning officer at the time of
scrutiny of nominations for such non-furnishing of
the affidavit.
(4) The information so furnished by each
candidate in the aforesaid affidavit shall be
disseminated by the respective returning officers by
displaying a copy of the affidavit on the notice board
of his office and also by making the copies thereof
available freely and liberally to all other candidates
and the representatives of the print and electronic
media.
(5) If any rival candidate furnishes information to
the contrary, by means of a duly sworn affidavit,
then such affidavit of the rival candidates shall also
be disseminated along with the affidavit of the
candidates concerned in the manner directed
above." ( emphasis supplied)
5. It is clear from the aforesaid directions issued by the Election
Commission that non-furnishing of the affidavit results in the rejection of
the nomination paper at the time of scrutiny but the returning officer is not
required to go into the contents and information mentioned in the affidavit.
The rival candidates are at liberty to furnish information to the contrary.
6. Thus the returning officer could not have rejected the nomination
paper on the basis that it was false or incorrect. The petitioner had not filed
any affidavit to controvert the affidavit of the respondent No.3. Deputy
Chief Electoral Officer in his letter dated 27th February, 2009 has stated that
no such complaint/information was available till the end of election process.
Counsel for the respondent No.3, who is present on advance notice has
drawn my attention to paragraph 10.1 of the handbook of returning officer
issued by the Election Commission. In the said paragraph it is stated that if
the prescribed affidavit has been filed, but is found to contain false
infromation, the nomination should not be rejected. The writ petition
therefore has no merit and is dismissed.
7. The petitioner has also raised the aforesaid plea in his defense to the
election petition filed by the respondent No.3. It is clarified that any
observation made in this order will not be binding on the Court deciding the
election petition filed by respondent no.3, challenging the election of the
petitioner. The said Court will independently examine the contentions
raised. It is also clarified that this order will not be construed as an order
permitting the petitioner to raise the said contention in the election
petition. No costs.
SANJIV KHANNA, J.
JULY 23, 2009
NA/P
