Pinki Kumari vs State Election Commission And ...
2017 Latest Caselaw 1740 Del

                    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                               Decided on: April 11, 2017

+                          CM.NO. 13387/2017 in W.P.(C) 3066/2017

        PINKI KUMARI                                                    ..... Petitioner

                           Through:     Mr. Chetan Sharma, Sr. Adv. with Mr. Neeraj, Mr.
                                        Sushil Kumar Pandey and Mr. Sahaj Garg, Mr. Satish
                                        Sansi, Mr. Ajay Digpaul, Mr. Ripu Daman Bhardwaj,
                                        Mr. Vijay Joshi, Mr. Amit Gupta, Mr. Sidhant Gupta
                                        and Mr. Prashant Verma, Advs.

                           versus

        STATE ELECTION COMMISSION AND ANR.                              ..... Respondents

                           Through:     Mr. Sumeet Pushkarna, Adv. for R1 and
                                        R2 with Mr. Ramchandra M. Shingare (R.O.) Ward
                                        No.67-5 to 69-5 (South)
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO

                           ORDER

        %                  10.04.2017


CM NO. 13387/2017

1. By this order, I shall dispose of the CM 13387/2017 wherein the petitioner has sought

the following prayers:

(a) issue a writ of certiorari and / or any other appropriate writ, thereby quashing/setting aside the impugned order dated 06.04.2017 passed by the Respondent no.2 thereby rejecting the nomination paper of petitioner for contesting election for Councilors of South Delhi Municipal Corporation, Ward No.67-S (lado Sarai); and

(b) issue a writ of mandamus and / or any other appropriate writ, order or

direction in the nature of mandamus thereby directing the Respondent no.2 to accept the nomination papers of the petitioner for contesting the election for Councilors of South Delhi Municipal Corporation, Ward No.67-S (Lado Sarai); and

(c) Pass such other further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

and your petitioner, as is duty bound, shall ever pray."

2. The challenge in the writ petition is to the order dated April 6, 2017, whereby the

respondent No. 2 has rejected the nomination papers of the petitioner on the ground that the

name of her caste " Bairwa" does not fall under Part I of The Schedule to the Constitution

(Scheduled Castes) (Union Territories) Order 1951.

3. It is the case of the petitioner that a Scheduled Caste Certificate of „Bairwa‟ caste was

issued to the petitioner by Delhi Government on March 21, 2009. On April 3, 2017, the

petitioner was nominated as a candidate by the Bhartiya Janta Party for the South Delhi

Municipal Corporation from Ward No. 67-S, Lado Sarai, New Delhi. On April 3, 2017, the

petitioner filed her nomination form along with prescribed affidavit. After checking the

nomination papers, the Returning Officer approved her as the candidate of Bhartiya Janta

Party from the aforesaid ward. By order dated April 6, 2017, the respondent No. 2-

Returning Officer rejected the nomination paper of petitioner inter alia, on the ground

which has already been stated above.

4. Mr. Chetan Sharma, learned Senior Counsel for the petitioner would submit that the

order of the Returning Officer is untenable in view of the settled position of law in terms of

the judgments of the Supreme Court in the case of S.Pushpa and Ors. Vs.

Sivachanmugavelu And Others (2005) 3 SCC 1 and Full Bench of this Court in Deepak

Kumar and Ors. Vs. District and Sessions Judge, Delhi and Ors. W.P.(C) 5390/2010 and

Connected Writ Petitions, decided on September 12, 2012.

5. He states that, in view of the ratio of the judgment of the Supreme Court in S.Pushpa

(supra) and the Full Bench judgment in Deepak Kumar and Ors. (supra) even if , the

„Bairwa‟ caste is not a Scheduled Caste in terms of the Part I of the Schedule to the

Constitution (Scheduled Caste) Union Territories Order 1951 (in short „Order of 1951‟),

still, the petitioner would be entitled to be considered as a Scheduled Caste in Delhi.

6. He states, the caste certificate issued on March 21, 2009, was after proper verification

from the State of Rajasthan from where the certificate of the father of the petitioner was

issued.

7. On the other hand, Mr. Pushkarna, learned counsel for the respondents would submit

that the present petition is not maintainable inasmuch as in terms of Section 8 of the Delhi

Municipal Corporation Act, 1957 (in short „Act of 1957‟), in the case of a Reserved seat,

for the Scheduled Caste, a person shall not be so qualified unless he is also a member of any

of the said caste. He also refers to Section 2(53) (Act of 1957) to contend Schedule Caste

means, "any of the Schedule Caste specified in Part I of the Schedule to the Order 1951.

He would refer to a communication addressed to the Returning Officer of all wards by the

State Election Commission, whereby, a copy of the Order of 1951 was sent for information

and which does not depict „Bairwa‟ as a Scheduled Caste in Delhi. According to him, a

notification for election to the South Delhi Municipal Corporation was issued on March 27,

2017. The scrutiny of nomination papers has already taken place and a final list of

candidates has already been published. In such scenario, in terms of provisions of Article

243ZG of the Constitution, there is a bar of interference by a Court in electoral matters,

with an only exception being an election petition presented to such an authority and in such

a manner as provided for by or under any law made by the legislature of a State. According

to him, as per Section 15 of the Act of 1957, no election of a Councillor shall be called in

question except by election petition presented to the Court of District Judge of Delhi, that

too, only on the ground specified in Section 17 of the said Act, which includes in terms of

Section 17(c), by a person, whose nomination papers have been improperly rejected. He

states, all those persons, whose names have been included in the final list are necessary

parties and in the absence of they being parties in the petition, the petition is liable to be

dismissed. He would rely upon the judgment of the Supreme Court in the case of

N.P.Ponnuswamy Vs. Returning Officer, Namakkal Constituency, Namakkal, Salem

District and Four Others, 1952 SCR 218 to contend, that, election process having set in by

the issuance of notification, it cannot be interdicted by a Court. He also states, that the facts

therein being identical inasmuch as in the said case also, the issue was with respect to the

rejection of the nomination papers of the appellant, which is a step before casting of votes,

the Supreme Court has held that the High Court has no jurisdiction to issue writ in exercise

of power under Article 226 of the Constitution for granting any prayer with regard to an

election including one which the petitioner is claiming in this petition. He also relies upon

the judgment of the Supreme Court in the case of Ramphal Kundu Vs. Kamal Sharma,

(2004) 2 SCC 759, to contend that any order to redraw the list of validly nominated

candidates by including the name of the petitioner cannot be directed by this Court. He

would rely upon the judgment of the Supreme Court in Anugrah Narain Singh Vs State of

U.P. and Ors. (1996) 6 SCC 303 and also Jyoti Basu and Ors. Debi Ghoshal and Ors.

(1982) 1 SCC 691 to contend, that the right to be elected or to dispute election are neither

fundamental rights nor common law rights but are confined to the provisions of the

Representation of the People Act and Rules made thereunder. Hence the petition under

Article 226 is not maintainable.

8. In the rejoinder arguments, Mr.Chetan Sharma, learned Senior Counsel for the

petitioner would submit that the judgment relied upon by Mr. Pushkarna in the case of

Anugrah Narain Singh (supra) is not applicable in the facts inasmuch in the said case, the

Court was concerned with an election, which was not held for 10 years. That apart, the

petitioner is not seeking the stay of the election, as sought to be contended by Mr.

Pushkarna. That apart, he states, the petitioner is not questioning the elections in this

petition and the power of this Court under Article 226 is wide enough to reach injustice.

9. Having heard the learned counsel for the parties, the submission of Mr. Chetan

Sharma relying upon the judgment of the Full Bench of this Court wherein the Full Bench

relying upon the judgment of the Supreme Court in S.Pushpa (supra), has held that a

resident of a State who moves to a Union Territory would be entitled to carry his

reservation benefits and status as member of a Scheduled Caste, even if his caste is not

included as a Scheduled Caste, for that territory, is appealing. But at the same time, the

submission of Mr. Pushkarna relying on Section 8 and Section 2(53) of the Act of 1957,

cannot be overlooked, more so, when the Supreme Court and the Division Bench of this

Court were considering cases, relating to employment and not of election, that too, under

the Act of 1957, which has provisions, [(Section 8 and Section 2(53)], a reading of which

reveals, a person shall not be qualified unless he is a Member of a Caste specified in

Schedule I of the Order of 1951. Further there is no challenge to the vires of the said

sections. Further, the plea of Mr. Pushkarna on the maintainability of the petition in view

of provisions of Article 243ZG read with Section 15 and Section 17 of the DMC Act 1957,

is also appealing. The Supreme Court in the case of N.P.Ponnuswami (supra) dealing with

a case of rejection of nomination papers of the appellant therein, has held, in para 4 and 5

as under:

"4. The first argument which turns on the construction of article 329

(b) requires serious consideration, but I think the second argument can be disposed of briefly at the out- set. It should be stated that what the appellant chooses to call anomaly can be more appropriately described as hardship or prejudice and what their nature will be has been stated in forceful language by Wallace J. in Sarvothama Rao v. Chairman, Municipal Council, Saidapet in these words :--

"I am quite clear that any post-election remedy is wholly inadequate to afford the relief which the petitioner seeks, namely, that this election, now

published be stayed, until it can be held with himself as a candidate. It is no consolation to tell him that he can stand for some other election. It is no remedy to tell him that he must let the election go on and then have it set aside by petition and have a fresh election ordered. The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely necessary, unless the relief asked for was to be denied him altogether in limine. In most cases of this kind no doubt there will be difficulty for the aggrieved party to get in his suit in time before the threatened wrong is committed; but when he has succeeded in so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be actually consummated while it is engaged in trying the suit."

These observations however represent only one side of the picture and the same learned Judge presented the other side of the picture in a subsequent case [Desi Chettiar v. Chinnasami Chettiar] in the following passage :-

"The petitioner is not without his remedy. His remedy lies in an election petition which we understand he has already put in. It is argued for him that that remedy which merely allows him to have set aside an election once held is not as efficacious as the one which would enable him to stop the election altogether; and certain observations at p. 600 of Sarvothama Rao v. Chairman, Municipal Council, Saidapet are quoted. In the first place, we do not see how the mere fact that the petitioner cannot get the election stopped and has his remedy only after it is over by an election petition, will in itself confer on him any right to obtain a writ. In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter with which we are not here concerned. And finally it may. be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safe- guarded was not so common. It is clear that there is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievances. We understand the election for the elective seats in this Union has been held up since 31st

May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied."

These observations which were made in regard to elections to Local Boards will apply with greater force to elections to legislatures, because it does not require much argument to show that in a country with a democratic constitution in which the legislatures have to play a very important role, it will lead to serious consequences, if the elections are unduly protracted or obstructed. To this aspect of the matter I shall have to advert later. but it is sufficient for the present purpose to state firstly that in England the hardship and inconvenience which may be suffered by an individual candidate has not been regarded as of sufficient weight to induce Parliament to make provision for immediate relief and the ag- grieved candidate has to wait until after the election to challenge the validity of the rejection of his nomination paper, and secondly, that the question of hardship or inconvenience is after all only a secondary question, be-cause if the construction put by the High Court on Article 329 (b) of the Constitution is found to be correct, the fact that such construction will lead to hardship and inconvenience becomes irrelevant.

5. Article 329 is the last article in Part XV of the Constitution, the heading of which is "Elections", and it runs as follows :--

"Notwithstanding anything in this Constitution--

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by, or under any law made by the appropriate Legislature."

In construing this article, reference was made by both parties in the course of their arguments to the other articles in the same Part, namely, articles 324, 325, 326, 327 and 328. Article 324 provides for the constitution and appointment of an Election Commissioner to superintend, direct and control ejections to the legislatures; article 325 prohibits discrimination against electors on the ground of religion, race, caste or sex; article 326 provides for adult suffrage; article 327 empowers Parliament to pass laws making provision with respect to all matters relating to, or in connection with, elections to the legislatures, subject to the provisions of the Constitution; and article 328 is a complementary article giving power to the State Legislature to make provision with respect to all matters relating to, or in connection with, elections to the State Legislature. A notable difference in the language used in articles 327 and 328 on the one hand, and article 329 on the other, is that while the first' two articles begin with the words" subject to the provisions of this Constitution" the last article begins with the words "notwithstanding anything in this Constitution." It was conceded at the bar that the effect of this difference in language is that whereas any law made by Parliament under article 327, or by the State Legislatures under article 328, cannot exclude the jurisdiction of the High Court under article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in Article 329".

10. I may state here, the Supreme Court was construing Article 329(b) which is pari

materia to Article 243ZG, which, reads as under:

"243ZG. Bar to interference by courts in electoral matters--

Notwithstanding anything in this Constitution,--

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such

manner as is provided for by or under any law made by the Legislature of a State".

11. Insofar as the issue whether the action of the Returning Officer in rejecting the

nomination papers can be questioned before the High Court under Article 226 of the

Constitution, is concerned, the Supreme Court in para 7, para 9 and para 14 of

N.P.Ponnuswamy has held as under:

"7. These arguments appear at first sight to be quite im- pressive, but in my opinion there are weightier and basical- ly more important arguments in support of the view taken by the High Court. As we have seen, the most important question for determination is the meaning to be given to the word "election" in article 329 (b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may em- brace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. In Srinivasalu v. Kuppuswami, the learned Judges of the Madras High Court after examining the question, expressed the opinion that the term "election" may be taken to embrace the whole procedure whereby an "elected member" is returned, whether or not it be found necessary to take a poll. With this view, my brother, Maimjan J. expressed his agreement in Sat Narain v. Hanuman Prasad (2); and I also find myself in agreement with it. It seems to me that the word "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including article 329 (b). That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury's Laws of

England in the following passage(s) under the heading" Commencement of the Election ":--

"Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is "reasonably imminent". Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when "the conduct and management of" an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case."

The discussion in this passage makes it clear that the word ' 'election" can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.

9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b)was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question

could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.

14. It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under article 226 of the Constitution. This argument however is completely shut out by reading the Act along with article 329 (b). It will be noticed that the language used in that article and in section 80 of the Act is almost identical, with this difference only that the article is preceded by the words "notwithstanding anything in this Constitution". I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.

12. The reliance, placed by Mr. Pushkarna on the judgment of the Supreme Court in

Anugrah Narain Singh (supra), wherein the Supreme Court referring to Article 243ZG

held the High Court had no jurisdiction to entertain writ petitions, challenging the election,

is also appealing.

13. The aforesaid, would reveal, prima facie, this Court would lack jurisdiction to

entertain a petition of this nature where rejection of nomination papers has been challenged.

14. That apart, the mandate of Section 15 and 17 of the Act of 1957, which I reproduce,

cannot be overlooked:-

15. Election petitions (1) No election of a councillor [***] shall be called in question except by an election petition presented to the court of the district judge of Delhi within fifteen days from the date of the publication of the result of the election under section 14. (2) An election petition calling in question any such election may be presented under any of the grounds specified in section 17 by any candidate at such election, by any elector of the ward concerned or by any councillor.

(3) A petitioner shall join as respondents to his petition all the candidates at the election. (4) An election petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall, with sufficient particulars, set forth the ground or grounds on which the election is called in question; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings.

17. Grounds for declaring elections to be void-(1) Subject to the provisions of sub-section (2) if the court of the district judge is of opinion--

(a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a councillor [***] under this Act, or

(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or

(c) that any nomination paper has been improperly rejected, or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate

or agent, or

(iii) by the improper acceptance or refusal of any vote or reception of any vote which is void, or

(iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the court shall declare the election of the return candidate to be void. (2) If in the opinion of the court, a returned candidate has been guilty by an agent of any corrupt practice, but the court is satisfied--

(a) that no such corrupt practice was committed at the election by the candidate, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate;

(b) that the candidate took all reasonable means for preventing the commission of corrupt practices at the election; and

(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then, the court may decide that the election of the returned candidate is not void.

15. That apart, this Court in a similar petition during the morning session on April 10,

2017 by also noting that the final list of candidates has been published, dismissed the

petition. The Court must state that the issue of jurisdiction of this Court under Article 226

was neither raised nor decided by this Court in that Writ Petition being W.P.(C) No.

3056/2017. On a prima facie finding and the fact that the final list of candidates has already

been issued, the petitioner is not entitled to the relief as prayed for in this application. The

application is dismissed.

W.P.(C) 3066/2017

List before Joint Registrar for completion of pleadings on 25th May, 2017.

V. KAMESWAR RAO, J APRIL 11, 2017 akb