Delhi High Court
A. Meenakshi Chandela A. vs State Election Commissioner And ... on 30 March, 2017
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EL.PET. 1/2017 & IA No.4071/2017 (for directions)
A. MEENAKSHI CHANDELA A. ..... Petitioner
Through: Mrs. Kawaljit Kochar, Ms. Vasundhra
Singh and Ms. Krishna Parkhani,
Advs.
Versus
STATE ELECTION COMMISSIONER AND ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Adv. for R-1.
Mr. P.R. Chopra and Mr. Y.R.
Sharma, Advs. for R-4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 30.03.2017
1. In this election petition, challenge is to the acceptance (on 22 nd March,
2017) by the Returning Officer (RO) for the Bye-Election (for the
constituency of Rajouri Garden) to the Legislative Assembly of Delhi, of the
nomination of Mr. Manjinder Singh Sirsa.
2. Besides the RO and Mr. Manjinder Singh Sirsa, State Election
Commissioner and Chief Election Commissioner have also been impleaded
as respondents.
3. The petition is filed invoking Section 80A read with Section 100(d)(i)
of the Representation of the People Act, 1951 (RP Act) and has come up
today for admission.
4. Neither of the aforesaid provisions provide for challenge to the
acceptance by the RO of the nomination.
5. The counsel for the petitioner has contended that once it is clear as day
light that Mr. Manjinder Singh Sirsa is not eligible to contest the election
(for the reasons pleaded) and that the acceptance of his nomination is illegal,
to hold that the petitioner is entitled to challenge the same only after the
result of the election is announced, tantamounts to allowing the State
exchequer to waste huge amount of monies in holding the election process
and which should be avoided.
6. The counsel for petitioner otherwise is unable to cite any provision of
RP Act providing for challenge to illegal acceptance of nomination by the
RO by way of election petition before this Court.
7. The petitioner presumes that acceptance of the nomination will lead to
the said Mr. Manjinder Singh Sirsa being declared as the winning candidate.
8. The counsel for the petitioner is reminded of what was observed by
the Supreme Court as far back as in 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 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......"
9. The counsel for the Chief Election Commissioner appearing on
advance notice though contending that the Chief Election Commissioner is
neither a necessary nor a proper party, has also drawn attention to Section 81
of the RP Act 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 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."
(emphasis added)
and has rightly contended that the words "but not earlier than, the date
of election of the returned candidate..." in fact create a bar to such a petition.
10. The counsel for the State Election Commissioner also appearing on
advance notice has referred to A. Dayanand Chandela Vs. Chief Electoral
Officer (2009) 162 DLT 89 to contend that the RO is not competent to reject
an affidavit of declaration filed along with the nomination, even if contains
false averments and the only remedy is to challenge the same in an election
petition under Section 81 read with Section 100 of the RP Act.
11. Reference in this regard may also be made to Kisan Shankar Kathore
Vs. Arun Dattatray Sawant (2014) 14 SCC 162 holding that in case of
improper acceptance of nomination, the question of rejection is deferred to a
later date, after finding to this effect is returned in an election petition.
12. I have also in Nand Kishore Garg Vs. Jitender Singh Tomar
MANU/DE/3475/2016 held so.
13. The arguments in common law urged, cannot be invoked in aid of
such a statutory remedy.
14. Resultantly, the petition is not maintainable and is dismissed.
No costs.
15. The counsel for the petitioner states that the petitioner be granted
liberty to take alternate remedies.
16. Such remedies are always available, as the petition is held to be not
maintainable.
RAJIV SAHAI ENDLAW, J.
MARCH 30, 2017
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