Delhi High Court
Mohammed Sultan & Anr vs Election Commission Of India & Anr on 7 September, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 07.09.2018
+ W.P.(C) 9390/2018
MOHAMMED SULTAN & ANR ..... Petitioners
Through: Mr. Yogesh Kumar with Mr. Mukul
Dev Mishra, Advs.
versus
ELECTION COMMISSION OF INDIA & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
RAJENDRA MENON, CHIEF JUSTICE (ORAL)
CM APPL. 36383/2018 (exemption)
Allowed, subject to just exceptions.
The application stands disposed of.
W.P.(C) No.9390/2018
1. Petitioner, a practising Advocate, has filed this petition in public
interest invoking the extraordinary jurisdiction of this Court inter alia
contending that in the 14th Gujarat Legislative Assembly Election that was
held on 9th and 14th of December, 2017 in the election campaign that
preceded the elections there has been violation of the Model Code of
Conduct declared by the Election Commission of India, various illegalities
were committed in the process of election and in spite of these violations
being brought to the notice of the Election Commission of India no action
has been taken. Further, certain allegations have been made with regard to
the manner in which the election campaign preceded and it is indicated that
the same amounts to violation of the Model Code of Conduct inter alia
contending that various representations pointing out these illegalities have
not been addressed in the right perspective or not even considered, this
petition has been filed in public interest and the prayer made in the writ
petition reads as under:
"a. To issue a writ of mandamus or any appropriate writ,
order or directions to direct the Election Commission of India
to enquire the irregularities revealed in the representation and
take appropriate actions against the erring
candidates/members of the political parties.
b. To pass such other order(s) as it may deem fit and proper
in the facts and circumstances of the case and in the interest of
justice."
2. Having heard learned counsel appearing for the petitioner and after
taking note of the various averments made in the writ petition, we find that
the allegations made in the writ petition even though termed as violation of
the Modal Code of Conduct amounts to illegalities, irregularities or
misconduct in the conduct of election in question by various candidates and
these would come within the purview of corrupt practices as contemplated
under Part VII Chapter I of the Representation of the People Act, 1951 and
would also be an electoral offence within the meaning of the aforesaid
statutory provision.
3. That being the position, the remedy available for these illegalities are
challenging the election by invoking the jurisdiction of the Election Tribunal
by way of an Election Petition and now after conduct of the election and
after the statutory period for challenging the election is over, we are not
inclined to invoke our extraordinary jurisdiction under Article 226 of the
Constitution of India and interfere, that also in a Public Interest Litigation.
Mere direction to the Election Commission to look into the matter would
also be not in the interest of justice for the simple reason that we would be
directing the Election Commission to call an enquiry with regard to an
allegation which, in our considered view, for the present, after declaration of
the election would not be permissible in law. The only remedy in such cases
is to challenge the election on account of corrupt practices being exercised
in the election in accordance with the procedure contemplated under the
statute.
4. Accordingly, finding no ground to interfere, the petition stands
dismissed.
CHIEF JUSTICE
V. KAMESWAR RAO, J
SEPTEMBER 07, 2018
kks
