Delhi High Court
Nitin Tyagi & Ors vs Election Commission Of ... on 20 August, 2018
$~37 and 38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) No. 7612/2018
Date of decision: 20th August, 2018.
NITIN TYAGI & ORS ..... Petitioners
Through: Mr. K.V. Vishwanathan Sr.
Advocate with Mr. Manish Vashisht, Mr.
Sameer Vashisht, Mr. Rikky Gupta, Mr.
Kamal Mehta, Ms. Rani Raghunath, Ms.
Manshury Jha and Mr. Kapil Gupta,
Advocates.
versus
ELECTION COMMISSION OF INDIA&ANR... Respondents
Through: Mr. Amit Sharma, Mr. Dipesh
Sinha, Mr. Pratik Kumar and Ms. Ayial
Imti, Advocates.
WRIT PETITION(CIVIL) No. 7635/2018
SHRI KAILASH GAHLOT AND ORS. ..... Petitioners
Through: Mr. K.V. Vishwanathan Sr.
Advocate with Mr. Manish Vashisht, Mr.
Sameer Vashisht, Mr. Rikky Gupta, Mr.
Kamal Mehta, Ms. Rani Raghunath, Ms.
Manshury Jha and Mr. Kapil Gupta,
Advocates.
versus
ELECTION COMMISSION OF INDIA AND ANR... Respondents
Through: Mr. Arvindkr Nigam, Sr.
Advocate with Mr. Amit Sharma, Mr.
Dipesh Sinha, Mr. Pratik Kumar and Ms.
Ayial Imti, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
W.P.(C) Nos.7612/2018 & 7635/2018 Page 1 of 5
SANJIV KHANNA J., (ORAL)
These writ petitions impugn the order dated 17th July, 2018
passed by the Election Commission of India in Reference Case
No.5/2015.
2. The impugned order disposed of the application filed by the
petitioners dated 16th/17th May, 2018 for cross examination of
Mr.Prashant Patel, the complainant, and for summoning of the
Secretary, Delhi Legislative Assembly; concerned officer from the
General Administrative Department, Government of NCT, Delhi;
concerned officer from Accounts Department, Government of NCT,
Delhi and concerned officer of Ministry of Law, Government of
NCT of Delhi.
3. During the course of hearing before us, learned Senior
Advocate appearing for the petitioners, on instructions, states that
they would like to bring the controversy to an end and would accept
the impugned order without prejudice to the rights and contentions
on interpretation and pleas on "Office of profit under the
Government".
4. He also states that if required and necessary, the petitioners
would file a consolidated but one application for summoning of
witness(es), which may be considered and examined by the Election
Commission of India on merits and in accordance with law.
5. Learned counsel for the Election Commission of India states
that the order dated 17th July, 2018 had decided the application dated
16th/17th May, 2018. It is stated that the impugned order is not the
W.P.(C) Nos.7612/2018 & 7635/2018 Page 2 of 5
final order disposing of the Reference. Observations made in the
order dated 17th July, 2018 are with reference to and for the purpose
of deciding the application dated 16th/17th May, 2018.
6. On consideration, we are inclined to dispose of the present
writ petitions with an observation that in case a fresh application for
summoning of witness(es) is filed by the petitioners, the same would
be considered and decided by the Election Commission of India in
accordance with law. The application, if filed, should have full
details and particulars why oral examination in respect of a specific
document(s) is required. It is clarified that the Court has not
expressed any opinion or view on merits on the question of "Office
of Profit under the Government" or on application, which may be
filed.
7. On the question of scope and ambit of remand to the Election
Commission, we would like to re-produce paragraphs 110 and 113 of
the decision dated 23rd March, 2018, which read as under:-
"110. We have deliberately not commented, given our
opinion and interpreted the expression "office of profit under
the Government" after quoting the judgments and noting the
respective point of views, as order of remand is required and
necessary. The reason why we have referred to the respective
stands and position is to highlight the complexity and
divergent views which require consideration before a firm
and decisive opinion can be formed and given in a case of
this nature. In the context of the present case, therefore, oral
arguments and elucidation on the legal position as well as
factual matrix is required and necessary. This is apparent also
from the orders passed by the Commission on 16th
September, 2016 and then on 23rd June, 2017.
xxx
W.P.(C) Nos.7612/2018 & 7635/2018 Page 3 of 5
113. In view of the aforesaid discussion, our findings on
different issues and questions are as under:- (i) Reference
made by the President to the ECI is valid. (ii) Order dated
23rd June, 2017 passed by the ECI is valid and in accordance
with law. (iii) Opinion of the ECI dated 19th January, 2018 is
vitiated and bad in law for failure to comply with the
principles of natural justice. Accordingly, Writ of Certiorari
is issued quashing the said opinion dated 19th January, 2018
and the consequent order/notification dated 20th January,
2018 for violation of principles of natural justice, namely,
failure to give oral hearing and opportunity to address
arguments on merits of the issue whether the petitioners had
incurred disqualification and also on account of failure to
inform that Mr. O.P. Rawat had expressed his intention to
rejoin proceedings after his recusal and lastly because Mr.
Sunil Arora had not participated and no hearings were held
before him. (iv) Order of remand is passed to the ECI to hear
arguments and thereafter decide the all important and seminal
issue; what is meant by the expression "office of profit held
under the Government" and re-examine the factual matrix to
decide whether the petitioners had incurred disqualification
on appointment as Parliamentary Secretaries, without being
influenced by the earlier order or observations on the said
aspect in this order."
On the question of the procedure, reference can be made to the
discussion from Paragraph 39 onwards with reference to Sections
146, 146A, 146B and 146C of the Representation of People's Act,
1956.
8. Learned Senior Advocate for the Election Commission of
India had expressed concern and apprehension that the proceedings
in the Reference are being delayed and he had even suggested that
the Court may fix outer time for completion of the hearing. Learned
Senior Advocate for the petitioners in clear and categorical terms has
stated that the petitioners do not want to delay the proceedings and
W.P.(C) Nos.7612/2018 & 7635/2018 Page 4 of 5
also seek expeditious and fair disposal. One of the reasons for the
procedure followed by us and the present order disposing of the Writ
Petitions on the basis of statements made, is to ensure expeditious
and immediate disposal of the present petitions, so as not to delay the
Reference proceedings.
9. During the course of hearing before us, learned counsel for the
petitioners had referred to some remarks in the order dated 17th July,
2018, passed by the Election Commission of India. We are told by
the counsel for the petitioners that the counsel had made applications
before the Election Commission in that regard, but the applications
have been dismissed as the present writ petitions were pending. As
the writ petitions are being disposed of, the applications may be
considered by the Election Commission in accordance with law.
10. Recording the above and in terms of the statements made, the
writ petitions are disposed of, without any order as to costs.
11. Dasti under signature of the Court Master.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
AUGUST 20, 2018 MR/VKR
