Delhi High Court
Mashih-Ui-Hakeem Ajmal Khan ... vs Govt. Of Nct Of Delhi & Anr on 27 January, 2017
$~6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9599/2016
MASHIH-UI-HAKEEM AJMAL KHAN MEMORIAL
FOUNDATION ..... Petitioner
Through: Mr. A.J. Khan, Advocate
versus
GOVT. OF NCT OF DELHI & ANR ..... Respondents
Through: Mr. Ankur Chhibber, Advocate for R-1.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 27.01.2017
1. The present petition has been filed by the petitioner praying inter alia
for directions to the respondents/GNCTD to hold elections in respect of
respondent No.2/Bhartiya Chikitsa Parisad by physical direct secret ballot
and ensure that no postal ballot is permitted except in special cases, where
such a request is made.
2. On the last date of hearing, counsel for the petitioner was directed to
place on record documents to substantiate the averments made in the petition
to the effect that the Executive Body of the respondent No.2 had been
dissolved and an Administrator appointed.
3. Counsel for the petitioner states that he has filed the relevant
documents on an affidavit. The said affidavit is, however, not on record,
though a copy thereof has been furnished to the counsel for the respondent
No.1/GNCTD.
4. Learned counsel for the petitioner hands over a copy of the additional
affidavit filed in the Registry on 24.01.2017, alongwith a set of documents
and draws the attention of the Court to the order dated 16.07.2015 passed by
the Special Secretary (Health and Family Welfare), Govt. of NCT of Delhi,
whereunder in exercise of powers conferred on it under Section 32 of the
Delhi Bhartiya Chikitsa Parishad Act, 1998, the respondent No.1 had
dissolved the Executive Body of the respondent No.2 with immediate effect
and appointed the Director, Indian System of Medicine and Homoeopathy,
GNCTD as the Administrator.
5. Mr. Chhibber, learned counsel for the respondent No.1/GNCTD
submits that the Lieutenant Governor, Govt. of NCT of Delhi, being the
competent authority, had not given his approval to the said order as the
Delhi Government had not forwarded the file in question to his office. The
said file was forwarded only in middle of September, 2016 and necessary
approvals have been given by the competent authority as recently as on
15.01.2017. He submits that now steps are being taken by the respondents
to hold a fresh election of the Executive Body of the respondent No.2.
6. Further, learned counsel for the respondents draws the attention of the
Court to sub-rule 13(a) of Rule 2 of the Delhi Bhartiya Chikitsa Parishad
Rules, which refers to "Contested Election" and prescribes that where there
are more contesting candidates than the existing vacancies, the voting shall
be by means of postal ballot, or by personal voting within the stipulated time
and date. He submits that now it is for the Returning Officer to take a
decision as to whether the voting shall be conducted by means of postal
ballots or by personal voting but no such directions can be sought by the
petitioner in the present petition.
7. Learned counsel for the petitioner states that as per the past practice,
voting is conducted by postal ballot and it is for this reason that the present
petition has been filed.
8. This Court is of the opinion that the present petition is premature as
the Returning Officer has yet to be appointed to conduct the elections. In
any event, the Rules contemplate two modes of voting, i.e., by means of
postal ballot or by personal voting and either of the two options can be
stipulated for conducting the elections.
9. The present petition is not only premature, the relief prayed for is
untenable in view of the rule position. If the petitioner has a grievance, it is
for him to seek amendment of the Rules as per the prescribed procedure or
to approach the Returning Officer for relief as and when a decision is taken
by him in this regard.
10. In these facts and circumstances, this Court declines to exercise its
powers of judicial review. The petition is disposed of.
HIMA KOHLI, J
JANUARY 27, 2017
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