Delhi High Court
Saroj Gopal vs The State Election Commissioner & ... on 21 April, 2017
$~12.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EL.PET. No.2/2017 & IA No.4816/2017 (for stay).
SAROJ GOPAL ..... Petitioner
Through: Mr. K.M.M. Khan with Mr. N.N.
Bains, Advs.
versus
THE STATE ELECTION COMMISSIONER & ORS ... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 21.04.2017
1. This Election Petition impugns the order dated 5th April, 2017 of the
respondent no.3 Shri R.C. Antil, Returning Officer, Ward No.18-S, Milap
Nagar, South Delhi Municipal Corporation (SDMC), Delhi rejecting the
nomination filed by the petitioner for SDMC General Election - 2017 for
SDMC Ward 18-S, Milap Nagar, Delhi. Needless to state the Election
Petition is accompanied with an application for interim relief of stay of
operation of the order dated 5th April, 2017 and to direct the respondent no.3
to allow the petitioner to contest the election for the post of Councillor in
Ward No.18-S, SDMC, Milap Nagar, Delhi due to be held on 23rd April,
2017.
2. I have enquired from the counsel for the petitioner as to under which
provision he has preferred this petition.
3. The counsel for the petitioner states that the petition has been
preferred under Section 81 of the Representation of People Act, 1951 (RP
Act).
EL.PET. No.2/2017 page 1 of 5
4. Upon the counsel for the petitioner being asked to show as to how the
petition is maintainable under the said provision, the counsel states that he is
not carrying the R.P. Act.
5. It is perhaps for this reason that the petition has been preferred.
6. Section 81 of the R.P. Act is as under:-
"81. Presentation of petitions.--(1) An election
petition calling in question any election may be presented
on one or more of the grounds specified in sub-section (1) of
section 100 and section 101 to the High Court by any
candidate at such election or any elector within forty-five
days from, but not earlier than, the date of election of the
returned candidate, or if there are more than one returned
candidate at the election and the dates of their election are
different, the later of those two dates.
Explanation.--In this sub-section, "elector" means a person
who was entitled to vote at the election to which the election
petition relates, whether he has voted at such election or
not.
(3) Every election petition shall be accompanied by
as many copies thereof as there are respondents mentioned
in the petition, and every such copy shall be attested by the
petitioner under his own signature to be a true copy of the
petition."
7. As would be evident from a mere reading thereof, the same permits an
Election Petition to be filed within 45 days from, but not earlier than, the
date of election of the returned candidate. There is thus an inbuilt bar in
Section 81 from being invoked before the date of election of the returned
candidate. What to talk of date of election of the returned candidate, the
election even has not been held as of date and is to be held day after
tomorrow i.e. 23rd April, 2017 as aforesaid.
EL.PET. No.2/2017 page 2 of 5
8. Even otherwise, the petitioner though came to know of the order on
5th April, 2017 has preferred this petition on 18th April, 2017 which has
come up before this Court today for the first time. The attempt of the
petitioner evidently is only to stall the election scheduled for day after
tomorrow i.e. 23rd April, 2017 and which is not permissible.
9. In the absence of the petitioner being able to show any provision in
the R.P.Act under which he is entitled to, before the election challenge the
order dated 5th April, 2017 of rejection of his nomination, no Election
Petition lies.
10. The counsel for the petitioner is reminded of Jyoti Basu Vs. Debi
Ghosal (1982) 1 SCC 691 as under:-
"8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is pure and
simple, a statutory right. So is the right to be elected. So
is the right to dispute an election. Outside of statute, there
is no right to elect, no right to be elected and no right to
dispute an election. Statutory creations they are, and
therefore, subject to statutory limitation. An election
petition is not an action at common law, nor in equity. It
is a statutory proceeding to which neither the common
law nor the principles of equity apply but only those rules
which the statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always to be
exercised in accordance with the statutory (sic for
statute) creating it. Concepts familiar to common law and
equity must remain strangers to election law unless
statutorily embodied. A court has no right to resort to
them on considerations of alleged policy because policy
in such matters as those, relating to the trial of election
disputes, is what the statute lays down. In the trial of
EL.PET. No.2/2017 page 3 of 5
election disputes, court is put in a straight-jacket. Thus
the entire election process commencing from the issuance
of the notification calling upon a constitutuency to elect a
member or members right up to the final resolution of the
dispute, if any, concerning the election is regulated by the
Representation of the People Act, 1951, different stages
of the process being dealt with by different provisions of
the Act. There can be no election to Parliament or the
State legislature except as provided by the Representation
of the People Act 1951 and again, no such election may
be questioned except in the manner provided by the
Representation of the People Act. So the Representation
of the People Act has been held to be a complete and
selfcontained code within which must be found any rights
claimed in relation to an election or an election
dispute......"
11. I have recently in A. Meenakshi Chandela Vs. State Election
Commissioner 2017 SCC OnLine Del 7757 dealt with the subject.
12. The counsel for the petitioner has referred to para 18 of Nandiesha
Reddy Vs. Kavitha Mahesh AIR 2011 SC 2639 to contend that the
petitioner should have been granted an opportunity to rectify the deficiency
owing whereto her nomination has been rejected.
13. The aforesaid judgment has been cited without adverting to the facts
thereof. The said judgment arises from an Election Petition filed to
challenge the election of the returned candidate and after the said election
and not before the election as the petitioner has done.
14. The fact that the petition is filed under some misconception is also
evident from the para 12 the petition where the petitioner has mixed-up an
an Election Petition with a Writ Petition.
EL.PET. No.2/2017 page 4 of 5
15. Dismissed.
16. The counsel for the petitioner at this stage withdraws the petition with
liberty to approach again in accordance with law.
17. Dismissed as withdrawn with liberty aforesaid.
Dasti under signature of Court Master.
RAJIV SAHAI ENDLAW, J
APRIL 21, 2017
'pp'..
EL.PET. No.2/2017 page 5 of 5
