Surender Singh Khrub vs State Election Commission & Ors
2014 Latest Caselaw 5044 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Date of decision: 10th October, 2014
+                               LPA 683/2014
         SURENDER SINGH KHRUB                     ..... Appellant
                     Through: Mr. Avadh Kaushik, Adv.
                             versus
         STATE ELECTION COMMISSION & ORS          ..... Respondents
                      Through: Mr. Sumeet Pushkarna and Mr.
                               Siddhartha Nagpal, Advs. for R-1.
                               Ms. Meenakshi Midha, Adv. for R-
                               2&3.
                                  AND
+                               LPA 684/2014
         SUDHIR KUMAR PARCHA                      ..... Appellant
                     Through: Mr. Avadh Kaushik, Adv.
                                   versus
    STATE ELECTION COMMISSION & ORS           ..... Respondents
                  Through: Mr. Sumeet Pushkarna and Mr.
                           Siddhartha Nagpal, Advs. for R-1.
                           Ms. Meenakshi Midha, Adv. for R-
                           2&3.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. These intra-court appeals impugn the common judgment dated 24 th

July, 2014 of the learned Single Judge of this Court of dismissal of W.P.(C)

No.3199/2012 and W.P.(C) No.3180/2012 filed by the appellants

respectively. Having prima facie not found any merit on a reading of the

appeals, we have heard the counsel for the appellants extensively at the stage

of admission.

2. Each of the appellants had preferred the writ petitions from which

these appeals arise for the following identical reliefs:-

"(a) a Writ of Certiorari or any other writ, order or direction calling for the records of the case and peruse the same;

(b) a Writ of mandamus or any other appropriate writ, direction or order quashing the impugned action of respondents no.1 to 3 in shifting the 11 polling stations bearing no.166 to 176 from Ward No.5 to Ward No.19 and declaring the same as illegal, arbitrary and unconstitutional;

(c) a Writ of mandamus or any other appropriate writ, direction or order quashing the election process so adopted and election results based on such illegal and arbitrary process and declaring the entire election process of Ward No.19 as void ab initio and thereafter, declaring the election of MCD Councillor for Ward No.19 so held as null and void; (Ward No.05 in the writ petition from which LPA No.684/2014 arises).

(d) appropriate writ, direction or order directing the respondents no.1 to 3 to restore the 11 polling stations bearing no. 166 to 176 back to Ward No.5 and thereafter, to conduct fresh elections of MCD Councillor for Ward No.19. (Ward No.05 in writ petition from which LPA No.684/2014 arises).

(e) pass any other order or direction that may be deemed fit and proper on the facts and circumstances of the case and in the interest of justice."

3. The aforesaid reliefs were claimed contending that the action of the

respondents No.1 to 3 (i.e. (i) State Election Commission, NCT of Delhi; (ii)

SDM-cum-Returning Officer, Municipal Ward No.17 to 20; and, (iii) SDM-

cum-Returning Officer, Municipal Ward No.05 to 08) in shifting the polling

stations just prior to starting of the election process of the Delhi Municipal

Corporation Elections - 2012 was illegal.

4. The counsel for the respondents raised a preliminary objection to the

maintainability of the writ petitions on the ground that election disputes can

only be raised by way of an election petition. Reliance in this regard was

placed on N.P. Ponnuswami Vs. The Returning Officer, Namakkal

Constituency AIR1952 SC 64 and on Avtar Singh Hit Vs. Delhi Sikh

Gurdwara Management Committee (2006) 8 SCC 487. Faced therewith, the

counsel for the appellants / writ petitioners on the one hand relied on K.

Venkatachalam Vs. A. Swamickan (1999) 4 SCC 526 and on the other

hand, to obviate the said objection to the maintainability of the writ petitions,

gave up the prayers (a), (c), (d) and (e) aforesaid claimed in the writ petitions

and confined the relief in the writ petitions to as claimed in prayer (b) supra

only.

5. The learned Single Judge dismissed the writ petitions, holding:-

(a) that Article 329(b) of the Constitution of India bars interference

by the Courts in electoral matters save by way of an election

petition presented in a manner provided for by or under any

law;

(b) Section 15 of the Delhi Municipal Corporation Act, 1957

stipulates that no election for Councillor shall be called in

question except by an election petition presented in the manner

as provided therefor; the surviving prayer (b) in the writ

petitions was a ground under Section 17 of the said Act for

declaring the election void and the said prayer should have been

raised by the appellants / writ petitioners by way of an election

petition;

(c) the contention of the appellants / writ petitioners that they are

confining their relief to prayer (b) is also meaningless as the

logical sequitur of granting prayer (b) would be that the election

results of the returned candidates of both the seats of North

Delhi Municipal Corporation election would be null and void;

and,

(d) that this Court in Balzor Singh Vs. Chief Election

Commissioner of India ILR (2009) Supp. (2) Delhi 517 had

explained that a writ petition under Article 226 of the

Constitution was entertained in K. Venkatachalam (supra) as

the action of one of the parties to the election in that case

amounted to a fraud on the Constitution and which was not the

allegation in the subject writ petitions.

The writ petitions were thus dismissed holding that the issue raised

therein should have been raised by way of an election petition and cannot be

adjudicated by way of a writ petition.

6. The appellants in the present appeals also have confined the relief to

allowing the writ petitions in terms of prayer (b) supra of the writ petitions.

7. The counsel for the appellants before us has contended that the

appellants are pressing relief (b), only to set right the procedure for future

elections, and not with an intent to seek setting aside of the election of the

elected candidates.

8. We have enquired from the counsel for the appellants / writ

petitioners, that how, the appellants / writ petitioners having withdrawn the

other consequential reliefs claimed in the writ petitions, are entitled to

maintain the relief claimed in the prayer (b). We are in this regard reminded

of Section 34 of the Specific Relief Act, 1963 which provides that no Court

shall make any declaration where the plaintiff being able to seek further

relief than a mere declaration, omits to do so. The relief claimed by the

appellants / writ petitioners in prayer paragraph (b) of the writ petitions is in

the nature of a relief of declaration only. Though the appellants / writ

petitioners in the writ petitions originally filed had also claimed reliefs

consequential to the said declaration but have withdrawn the same.

9. No plausible answer has been forthcoming from the counsel.

10. In our view the position in law admits of no controversy.

11. A Constitution Bench in The State of Bihar Vs. Rai Bahadur Hurdut

Roy Moti Lall Jute Mills AIR 1960 SC 378 held that if the statutory

provisions impugned are not attracted, there is no occasion to decide on the

vires thereof in as much as any decision on the said question would in such a

case be purely academic. It was further held that Courts are and should be

reluctant to decide Constitutional points merely as matters of academic

importance. Similarly in Dr. N.C. Singhal Vs. Union of India (1980) 3 SCC

29, in the context of a challenge to promotion granted to the others, finding

that the appellant was not qualified for the promoted post even if the same

were to fall vacant upon the promotion of others being struck down, it was

held that the challenge need not be examined further. Even in the context of

the crucial date for determining whether the accused is a juvenile, in Arnit

Das Vs. State of Bihar (2001) 7 SCC 657, in the face of the concurrent

findings of the Courts below that on the date of offence the accused was not

a juvenile, the reference made to the Constitution Bench was declined to be

answered observing that the legal question referred for decision was not

arising in the facts of that case and academic question only. Recently also in

Bholanath Mukherjee Vs. R. K. Mission V. Centenary College (2011) 5

SCC 464, finding the issue to have become purely academic on retirement of

the appellant during the pendency of proceedings it was held to be not

appropriate to go into the question as to whether writ of quo warranto would

lie or not. It was observed that it would be an exercise in futility as the issue

had become purely academic and that it is not in the interest of anybody to

go into the merits.

12. The same has been the view of the High Courts. A five Judge Bench

of the High Court of Punjab and Haryana in Dr. M.C. Sharma Vs. The

Punjab University AIR 1997 Punjab & Haryana 87 held that the principles

underlying the grant of specific relief to be granted by declaratory decrees

and injunctions can be said to be applicable in the cases for the grant of

relief of writs under Article 226 of the Constitution of India with certain

limitations and conditions as spelt out under the Constitution and

circumscribed by legal pronouncements. It was held that the Courts would

normally not grant or issue mere declaratory writs unless the person

aggrieved has asked for the consequential reliefs available to him. Similarly

in Luizinho Joaquim Faleiro Vs. State of Goa MANU/MH/0347/2002 it

was held that the writ jurisdiction is meant for extraordinary relief and

limited by conditions; it is intended to be issued for a definite and fruitful

purpose for doing substantial justice; it cannot be issued for a mere

declaration of right. Reliance was placed on Suresh Vs. Vasant AIR 1972

SC 1680, Balmadies Plantations Ltd. Vs. State of Tamil Nadu (1972) 2

SCC 133 and Dr. M. Ismail Faruqui Vs. Union of India (1994) 6 SCC 360

laying down that while granting relief High Court should keep in view that

the issue of writ would not be futile and should not examine the matter

purely academic in nature or adjudication whereof has become superfluous

and unnecessary. Recently the High Court of Chhattisgarh also in Udho

Ram Verma Vs. State of Chhattisgarh MANU/CG /0054 /2009 held the

petitions seeking writ of quo warranto to be not warranting consideration on

merits for the reason of the respondent having resigned from the post and the

possibility of grant of relief having thus disappeared.

13. The aforesaid proposition applies on all fours to the present appeals

which are thus not worthy of consideration and are dismissed.

14. Notwithstanding the appellants having preferred the appeals inspite of

giving up the consequential reliefs before the learned Single Judge, we

refrain from imposing costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

OCTOBER 10, 2014 'pp'..