Delhi High Court

Vijay Pal Singh vs Union Of India And Ors. on 1 May, 2019

     *        IN THE HIGH COURT OF DELHI AT NEW DELHI

     +          W.P.(C) 4618/2019 and CM APPL. 20546/2019

                                             Date of Decision:1st May, 2019.

IN THE MATTER OF:
VIJAY PAL SINGH                                            .....Petitioner
                             Through: Mr. Mahavir Singh, Mr. Panchajanya
                             B. Singh, Mr. Amir Suhail, Advocates with
                             petitioner in person

                             Versus

UNION OF INDIA AND ORS.                         .....Respondents

Through: Mr. Anurag Ahluwalia, CGSC with Mr. Kartikeya Rastogi, Advocate for R1 Mr. P.R. Chopra, Advocate for R2 and R3

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

1. This petition has been filed under Article 226 of the Constitution of

India seeking the following prayers:

a. Direct the respondents to accept the nomination form filed by the petitioner whereupon allow him to contest the elections, which was rejected by order dated 24.04.2019 passed by Ld. DM/RO -ON NDPC.

b. Direct the respondents to comply with the rules laid down under Section 36 (4) & (5) of Representation of People Act, 1951.

c. Pass any other order(s) or relief in favour of the Petitioner and against the Respondents, which this Hon'ble

Court deems fit and proper in the facts and circumstances of the case.

2. The Election Commission of India, vide notification dated

16.03.2019 under sub section (2) of Section 14 of the Representation of

People Act, 1951 announced "Lok Sabha General Elections, 2019" to elect

members of the House of People. In terms of the above notification, the

relevant election schedule published for NCT of Delhi is reproduced as

follows:-

Schedule reference Parliamentary Constituencies Schedule no. 6 Sl. PC No. PC Name Type No. of PCs going to poll 7 1 1 Chandni GEN Chowk Issue of notification 16-04-2019 2 2 North East GEN Delhi Last date for filing 23-04-2019 3 3 East Delhi GEN nomination Scrutiny of nomination 24-04-2019 4 4 New Delhi GEN Last due date for withdrawal 26-04-2019 5 5 North West SC of candidature Delhi Date of Poll 12-05-2019 6 6 West Delhi GEN Counting of votes 23-05-2019 7 7 South Delhi GEN Date before which election 27-05-2019 shall be completed

3. The petitioner filed his nomination paper for contesting the General

Election to the House of the People (Lok Sabha), 2019 from New Delhi

Parliamentary Constituency (PC-04), as a candidate representing Voters

Party International (VPI).

4. Learned counsel for the petitioner submits that on 16.04.2019, the

petitioner obtained three sets of nomination papers from Respondent No.3.

While filling up the nomination papers, it was discovered that page No.16

of the Affidavit was missing in all the sets of the nomination papers

provided by Respondent No.3. The petitioner downloaded the said missing

page No.16 from the website of the Election Commission of India, filled

up the same and filed his nomination papers on 23.04.2019. Thereafter,

the petitioner was supplied with a check-list of documents in connection

with filing of nomination, wherein, he was advised to file the "duly

complete affidavit" latest by 3:00 p.m. on 23.04.2019.

5. Learned counsel for the petitioner further submits that on realizing

that the petitioner had inadvertently forgotten to attach the said page No.16

of the affidavit, he immediately took out the missing page and handed it

over to the concerned official on 23.04.2019 at 12:45 p.m. The office of

Respondent No.3 rechecked the nomination form of the petitioner and he

was assured that there was no deficiency in his nomination papers, and in

case of any discrepancy, he shall be called at the time of scrutiny on

24.04.2019.

6. On 24.04.2019, the petitioner enquired about the status of his

nomination form whereupon, the petitioner discovered that his name was

missing from the list of eligible candidates cleared after scrutiny. The

petitioner was provided with an Order No.RO/NDPC/GE-2019 dated

24.04.2019, which mentioned the following reasons for rejection of his

nomination paper:-

"On the date of filing of the nomination, a preliminary examination of nomination papers as mandated under instructions contained in Para - 5.16.1 read with various provisions of RP Act 1951 was carried out in this office. During the preliminary examination of the nomination papers, Shri. Vijay Pal Singh was provided a copy of checklist dated 23.04.2019 prescribed for deficiencies in the documents filed along with the nomination papers which was duly acknowledged by him.

However Shri Vijay Pal Singh submitted only the single page of the prescribed affidavit within the stipulated date and time that is 3.00 pm of 23.04.2019, instead of submitted a fresh dully filled complete affidavit as was spelt out in the check list/deficiency memo dated on 23.04.2019 which was duly acknowledged by him. Today during the course of scrutiny it has been found that the affidavit as well as revised affidavit submitted by him does not contain complete information in the columns at ,8B,III, 9 to 11 which has been left blank in the Performa as per forms Form 26; when Para 5.16.4 of the RO Handbook clearly stipulates "No column of the affidavit should be left blank or filled by just tick/dash marking. This is mandatory as per the directives of the Hon'ble Supreme Court duly reiterated by ECI wide 576/3/2013/SDR/ dated 30.09.2017.

In view of the above facts, on examination of the nomination paper in accordance with section 36 of the Representation of the People Act, 1951 (43 of 1951). I am of the considered view that the nomination paper of Shri. Vijay Pal Singh liable to be rejected and is accordingly rejected.

Given this order on 24th April, 2014 under the signature and seal of the undersigned."

7. That thereafter, the petitioner filed a Representation dated

25.04.2019, which was not accepted by respondent No.3.

8. Mr. P.R. Chopra, learned counsel appearing , on advance notice, on

behalf of respondents No.2 and 3 has relied upon Article 329 (b) of the

Constitution of India, Sections 80, 81 and 100 (1) (c) of the Representation

of People Act, 1951, to urge that the only the remedy available with the

petitioner is to file an Election Petition. For the sake of felicity, Article 329

of the Constitution of India, Sections 80, 81 & 100(1)(c) of Representation

of People Act, 1951 are reproduced herein below: -

"Article 329 in The Constitution of India 1949:

XXX XXX XXX

(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. (emphasis supplied) Representation of the People Act, 1951

80. Election petitions--No election shall be called in question except by an election petition presented in accordance with the provisions of this Part. 2 [80A. High Court to try election petitions.--(1) The Court having jurisdiction to try an election petition shall be the High Court. (2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose: Provided that where the High Court consists only

of one Judge, he shall try all election petitions presented to that Court. (3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.]

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 3 [sub-section (1)] of section 100 and section 101 to the 4 [High Court] by any candidate at such election or any elector 5 [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].

100. Grounds for declaring election to be void.-- (1) Subject to the provisions of sub-section (2) if 2[the High Court] is of opinion--

(a) xxxx

(b) xxxx

(c) that any nomination has been improperly rejected;"

9. The election process has already commenced. There is no scope of

interference in the same, as remedy against 'rejection of nomination', is

clearly provided in the Representation of People Act, 1951, by way of an

election petition. Reliance is placed on the decision of the Supreme Court

in N.P. Punnuswamy vs. Returning Officer, reported as 1952 SCR 218,

wherein it was held as under:

"8. The next important question to be considered is what is meant by the words ―no election shall be called in question. A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination

paper. The law with which we are concerned is not materially different, and we find that in Section 100 of the Representation of the People Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of a nomination paper.

9. The question now arises, whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the Article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it."

"17. It may be pointed out that Article 329(b) must be read as complimentary to clause (a) of that Article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under Articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies. It was conceded before us that Article 329(b) ousts the 8 jurisdiction of the courts with regard to matters arising between the commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under Article 226 of the Constitution. If Part XV of the Constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject-matter of contest before the High Courts and thereby upset the time-schedule of the elections. The more reasonable view seems to be that Article 329 covers all ―electoral matters.

18. The conclusions which I have arrived at may be summed up briefly as follows:--

(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme the election law in this country as well as in England is that no significance should be attached to anything which does not affect the ―election and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the ―election and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election

petition and not be made the subject of a dispute before any court while the election is in progress."

10. Similarly, in the case of Election Commission of India through

Secretary v Ashok Kumar & Ors (2000) 8 SCC 216, it was held :

"For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: -

1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.

5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

11. Reliance is also placed upon the decision of a Division Bench of this

Court in LPA 383/2011 dated 25.04.2011 in the case of "Braj Kishore

Bhagat vs. Chief Election Commissioner".

12. The dicta in the aforementioned decisions unequivocally declare

that an "Election" means all steps and entire proceedings from the date of

election till declaration of results. Thus, the only way to challenge the

election is by way of an Election Petition. The courts have time and again

cautioned that there cannot be two-pronged attack on the matters

connected with elections, i.e., one during the course of elections by

invoking extraordinary jurisdiction of the High Courts under Article 226

of the Constitution of India and secondly, after the elections have been

completed, by way of filing an Election Petition.