Delhi High Court
Kiran Pal Singh Tyagi & Ors vs State Of Nct Of Delhi & Ors on 6 February, 2020
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.02.2020
+ LPA 65/2020
KIRAN PAL SINGH TYAGI & ORS ..... Appellants
Through: Mr. Viplav Sharma, Adv.
Versus
STATE OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Sandeep Sethi, Sr. Adv. with
Mr.Sidhant Kumar, Adv. for R-3/Election
Commission of India
Mr. Anil Soni, Central Govt. Standing Counsel for
R-2/Union of India with Mr. Devesh Dubey, Adv.
Mr. P.R. Chopra, Adv. for R-4 and 5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
: D.N. PATEL, Chief Justice (Oral)
1. This appeal has been preferred by the original petitioners in
W.P.(C)1032/2020 which was dismissed by the learned Single Judge vide
judgment and order dated 28th January, 2020 (Annexure A-17 to the memo
of this appeal). As the petition of the appellants was dismissed, the original
petitioners have preferred this appeal challenging the rejection of the
nomination papers of the appellants by order dated 22nd January, 2020 by
Returning Officer (respondent No.5).
2. The learned Single Judge has mainly pointed out that the remedy
available to the appellants is by way of Election Petition as prescribed under
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Article 329 of the Constitution of India to be read with Sections 80 and 100
(1)(c) of the Representation of People Act, 1951 as well as in the light of the
decisions rendered by the Hon'ble Supreme Court in N.P. Ponnuswamy vs.
Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. &
Ors. reported in 1952 SCR 218 as well as in Mohinder Singh Gill and Anr.
vs. Chief Election Commissioner, New Delhi and Ors. reported in AIR
(1978) 1 SCC 851.
3. We have heard the learned counsel for appellants who has mainly
submitted that the nomination paper of the appellants was wrongly rejected.
The learned counsel further submits that the relief sought by the appellants
is under Article 324 and not under Article 329 of the Constitution of India,
therefore, Election Petition will not be a remedy for the appellants. It is
further submitted by the learned counsel for appellants that the appellants
are not in search of stay against the whole election process of Delhi
Assembly Elections, 2020 but, in fact are concerned only with Assembly
Seat No.40 (New Delhi) and, therefore, prayed that the rest of the elections
be continued except Assembly Seat No.40 (New Delhi). It is also submitted
by the learned counsel for appellants that it is a constitutional right of this
appellants to contest the election. Learned Counsel for the appellants has
also relied upon the aforesaid decisions reported in N.P. Ponnuswamy vs.
Returning Officer & Ors. (Supra), Mohinder Singh Gill and Anr. (Supra) as
well as upon a decision reported in Election Commission of India vs. Ashok
Kumar & Ors., (2000) 8 SCC 216. On the basis of the aforesaid decisions,
it has been contended by the learned counsel for appellants that nomination
paper of the appellants are wrongly/improperly rejected by the Returning
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Officer and, therefore, petition under Article 226 is tenable at law. He
further submits that this aspect of the matter has not been properly
appreciated by the learned Single Judge. Moreover, original petitioners'
constitutional right to contest the election has also not been properly
appreciated by the learned Single Judge, while passing the impugned
judgment. Hence, the judgment and order dated 28 th January, 2020
delivered by the learned Single Judge in W.P.(C) 1032/2020 deserves to be
quashed and set aside.
4. We have heard the learned Senior counsel appearing for the
respondent No.3 who has mainly submitted that Delhi Assembly Elections,
2020 has already been commenced as per notification already issued for
Delhi Assembly Elections, 2020. Various dates have already been published
which are referred to at page 148 to the memo of this appeal. It is submitted
by learned Senior counsel for respondent No.3 that looking to the provisions
of Article 329(b) of the Constitution of India to be read with Section 80 as
well as Section 100 (1)(c) of the Representation of People Act, 1951, the
remedy available with the appellants are by way of Election Petition if their
nomination papers have been wrongly/improperly rejected. It is also
submitted by the learned Senior counsel for respondent No.3 that looking to
decision rendered by the Hon'ble Supreme Court in N.P. Ponnuswamy vs.
Returning Officer & Ors. reported in 1952 SCR 218, that Election Petition
is the appropriate remedy available with the appellants and not a writ
petition under Article 226 of the Constitution. To buttress his contentions,
learned Senior counsel for the respondent No.3 has placed reliance upon
para 28 of the aforesaid decision.
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5. Reasons:
Having heard the learned counsel for both sides and looking to the
facts and circumstances of the case and judicial pronouncements
propounded by the Hon'ble Supreme Court, we see no reason to entertain
this appeal mainly for the following facts, reasons and judicial
pronouncements:-
(i) The appellants are the original petitioners in
W.P.(C)1032/2020. The main challenge in the writ petition
was about improper rejection of nomination papers of the
appellants by the respondent No.5 on 22nd January, 2020. The
appellants want to contest the Assembly Election of Delhi for
the Assembly Election Seat No.40 (New Delhi).
(ii) Election notification has already been published as stated at
page 148 of this appeal and the relevant dates as mentioned in
para 2 of the said notification reads as under:
"2. Now, therefore, in pursuance of Sections 30
and 56 of the said Act, the Election Commission
of India hereby-
(A) appoints, with respect to the said election in
each of the constituencies,-
(a) the 21st January 2020 (Tuesday), as the last
date for making nominations;
(b) the 22nd January 2020 (Wednesday), as the
date for scrutiny of nominations;
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(c) the 24th January 2020 (Friday), as the last
date for withdrawal of candidatures;
(d) the 08th February 2020 (Saturday), as the
date on which a poll shall, if necessary, be
taken; and
(e) the 13th February 2020 (Thursday), as the
date before which the election shall be
completed;"
(iii) The nomination paper of the candidates has already been
scrutinised by the Returning Officer (Respondent No.5) and the
nomination papers of the appellants have already been rejected
by respondent no.5 on 22nd January, 2020.
(iv) Learned Single Judge has mainly observed that the writ petition
under Article 226 is not tenable at law. However, the appellants
are not remediless, hence, ubi jus ibi remedium cannot be
invoked. The appellants are already having appropriate remedy
by way of Election Petition. For ready reference Article 329 of
the Constitution of India reads as under:
"329. Bar to interference by courts in electoral
matters:-
[Notwithstanding anything in this Constitution]
(a) the validity of any law relating to the
delimitation of constituencies or the allotment of
seats to such constituencies, made or purporting
to he made under Article 327 or Article 328,
shall not be called in question in any court;
(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
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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)
(v) Sections 80 and 100 of the Representation of People Act, 1951
read as under:
"80. Election petitions.--No election shall he called in
question except by an election petition presented in
accordance with the provisions of this Part.
xx xx xx xx
84. Relief that may be claimed by the petitioner.--A
petitioner may, in addition to claiming a declaration
that the election of all or any of the returned candidates
is void, claim a further declaration that he himself or
any other candidate has been duly elected.
xx xx xx xx
100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion--
(a) that on the date of his election a returned candidate
was not qualified, or was disqualified, to be chosen to
fill the seat under the Constitution or this Act or the
Government of Union Territories Act, 1963 (20 of1963);
or
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other
person with the consent of a returned candidate or his
election agent; or
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(c) that any nomination has been improperly rejected;
or
(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of
the returned candidate by an agent other than his
election agent, or
(iii) by the improper reception, refusal or rejection of
any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders
made under this Act, the High Court shall declare the
election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned
candidate has been guilty by an agent other than his
election agent, of any corrupt practice but the High
Court is satisfied--
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and
every such corrupt practice was committed contrary to
the orders, and without the consent, of the candidate or
his election agent;
(b) (omitted)
(c) that the candidate and his election agent took all
reasonable means for preventing the commission of
corrupt practices at the election; and
(d) that in all other respects the election was free from
any corrupt practice on the part of the candidate or any
of his agents, then the High Court may decide that the
election of the returned candidate is not void."
(emphasis supplied)
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The position that emerges, from a conjoint reading of Section
100(1) (c) of the Representation of People Act, 1951, and
Sections 80 and 84 thereof, is clear and unmistakable. Section
100(1) (c) specifically envisages a challenge on the ground that
any nomination is improperly rejected, and also provides for the
order that the High Court, duly moved by such a challenger,
may pass, which is a declaration that the election of the
returned candidate is void. Such a relief, by virtue of a conjoint
reading of Sections 80 and 84 has to be claimed in an election
petition. Section 80 specifically proscribes ventilation of such a
challenge, save and except by way of an election petition. No
writ petition, therefore, be maintainable, on the ground that the
nomination paper(s) of any aspiring contestant has been
wrongly rejected.
(vi) In view of the Article 329(b) of the Constitution of India to be
read with Sections 80 and 100 (1)(c) of the Representation of
People Act, 1951, no error has been committed by the learned
Single Judge while deciding W.P.(C) 1032/2020 vide judgment
and order dated 28th January, 2020 (Annexure A-17 to the
memo of this writ petition). The appellants have remedy to file
Election Petition, if they are aggrieved by improper/wrongful
rejection of nomination paper by the Returning Officer.
(vii) Learned counsel appearing for the appellants has submitted that
nomination papers have been rejected arbitrarily and
malafidely. We are not accepting this contention mainly for the
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following reasons:
(a) To establish malafideness and arbitrariness, cogent and
convincing evidences are required to be laid and that can
only be done in Election Petition but not in a writ petition
under Article 226 of the Constitution of India;
(b) On the basis of mere assertions in the writ petition and its
annexures, we see no reason to come to a final conclusion
about arbitrariness or malafide of the Returning Officer
in rejecting the nomination papers of the appellants..
(viii) It has been held by the Hon'ble Supreme Court in para 28 in
N.P. Ponnuswamy vs. Returning Officer & Ors. (Supra) which
reads as under:
"28. We are informed that besides the Madras
High Court, seven other State High Courts have
held that they have no jurisdiction under Article
226 of the Constitution to entertain petitions
regarding improper rejection of nomination
papers. This view is in my opinion correct and
must be affirmed. The appeal must therefore fail
and is dismissed. In view of the nature and
importance of the points raised in this appeal,
there should be no order to costs."
(emphasis supplied)
(ix) It has been held by the Hon'ble Supreme Court in Mohinder
Singh Gill & Anr. vs. Chief Commissioner reported in (1978)
1 SCC 405 in paras 25, 30, 88 and 92 as under:
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"25. Having thus explaining the raison d'etre of
the provision, the Court proceeded to interpret
the concept of election in the scheme of Part XV
of the Constitution and the Representation of the
People Act, 1951. Articles 327 and 328 take care
of the set of laws and Rules making provisions
with respect to all matters relating to or in
connection with elections. Election disputes were
also to be provided for by laws made under
Article 327. The Court emphasised that Part XV
of the Constitution was really a code in itself,
providing the entire groundwork for enacting the
appropriate laws and setting up suitable
machinery for the conduct of elections. The
scheme of the Act enacted by Parliament was
also set out by Fazl Ali, J.:
"Part VI deals with disputes regarding
elections and provides for the manner of
presentation of election petitions, the
constitution of Election Tribunals and the
trial of election petitions. Part VII outlines
the various corrupt and illegal practices
which may affect the elections, and
electoral offences. Obviously, the Act is a
self-contained enactment so far as elections
are concerned, which means that whenever
we have to ascertain the true position in
regard to any matter connected with
elections, we have only to look at the Act
and the Rules made thereunder. The
provisions of the Act which are material to
the present discussion are Sections 80, 100,
105 and 170, and the provisions of Chapter
II of Part IV dealing with the form of
election petitions, their contents and the
reliefs which may be sought in them.
Section 80 which is drafted in almost the
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same language as Article 329(b) provides
that „no election shall be called in question
except by an election petition presented in
accordance with the provisions of this
Part‟. Section 100, as we have already
seen, provides for the grounds on which an
election may be called in question, one of
which is the improper rejection of a
nomination paper. Section 105 says that
„every order of the Tribunal made under
this Act shall be final and conclusive‟.
Section 170 provides that „no civil court
shall have jurisdiction to question the
legality of any action taken or of any
decision given by the Returning Officer or
by any other person appointed under this
Act in connection with an election‟."
There have been amendments to these provisions
but the profile remains substantially the same.
After pointing out that the Act, in Section 80, and
the Constitution, in Article 329(b), speak
substantially the same language and inhibit
other remedies for election grievances except
through the election tribunal, the Court
observed:
"That being so, I think it will be a fair
inference from the provisions of the
Representation of the People Act to state that the
Act provides for only one remedy, that remedy
being by an election petition to be presented
after the election is over, and there is no remedy
provided at any intermediate stage."
There is a non obstante clause in Article 329
and, therefore, Article 226 stands pushed out
where the dispute takes the form of calling in
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question an election, except in special situations
pointed at but left unexplored in Ponnuswami.
xx xx xx xx
30. The plenary bar of Article 329(b) rests on
two principles: (1) The peremptory urgency of
prompt engineering of the whole election
process without intermediate interruptions by
way of legal proceedings challenging the steps
and stages in between the commencement and
the conclusion. (2) The provision of a special
jurisdiction which can be invoked by an
aggrieved party at the end of the election
excludes other form, the right and remedy being
creatures of statutes and controlled by the
Constitution. Durga Shankar Mehta has affirmed
this position and supplemented it by holding
that, once the Election Tribunal has decided, the
prohibition is extinguished and the Supreme
Court's overall power to interfere under Article
136 springs into action. In Hari Vishnu this
Court upheld the rule in Ponnuswami excluding
any proceeding, including one under Article 226,
during the on-going process of election,
understood in the comprehensive sense of
notification down to declaration. Beyond the
declaration comes the election petition, but
beyond the decision of the Tribunal the ban of
Article 329(b) does not bind.
xx xx xx xx xx
88. What is that controversy? Let us project it
with special reference to the present case. Here
the poll proceeded peacefully, the counting was
almost complete, the ballots of most stations are
available and postal votes plus the votes of one
or two polling stations may alone be missing. Sri
P.P. Rao asks and whenever counsel in court or
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speaker on a podium asks rhetorical questions
be sure he is ready with an answer in his favour:
If the court holds that the cancellation by the
Commissioner of the whole poll is illegal what
relief can it give me since a fresh election based
on that demolition has been already held? If the
court holds that since most of the ballots are
intact, re-poll at one or two places is enough
how can even the court hold such limited re-
poll? If the court wants to grant the appellant
the relief that he is duly elected how can the
intervening processes lying within the
competence of the Commissioner be
commandered by the court? The solution to this
disturbing string of interrogations is simple,
given a creative reading of implied powers writ
invisibly, yet viably, into the larger jurisdiction
under Section 98. Law transcends legalism when
life is baffled by surprise situations. In this
larger view and in accordance with the well-
established doctrine of implied powers we think
the court can -- and if justified, shall -- do by its
command, all that is necessary to repair the
injury and make the remedy realisable. Courts
are not luminous angels beating their golden
wings in the void but operational authority
sanctioning everything to fulfil the trust of the
rule of law. That the less is the inarticulate part
of the larger is the jurisprudence of power. Both
Sri Sorabjee and Sri Phadke agree to this
proposition and Sri Rao, in the light of the
election petition filed and pending, cannot but
assent to it. By way of abundant caution or
otherwise, the appellant has challenged, in his
election petition, the declaration of the third
respondent as the returned candidate. He has
also prayed for his being declared the duly
elected candidate. There is no dispute -- there
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cannot be -- that the cornerstone of the second
constituency-wide poll is the cancellation of the
first. If that is set aside as invalid by the High
Court for any good reason then the second poll
falls and the third respondent too with it. This
question of the soundness of the cancellation of
the entire poll is within the court's power under
Section 98 of the Act. All are agreed on this. In
that eventuality, what are the follow-up steps?
Everything necessary to resurrect, reconstruct
and lead on to a consummation of the original
process. Maybe, to give effective relief by way of
completion of the broken election the
Commissioner may have to be directed to hold
fresh poll and report back together with the
ballots. A recount of all or some may perhaps be
required. Other steps suggested by other
developments may be desired. If anything
integrally linked up with and necessitated by the
obligation to grant full relief has to be
undertaken or ordered to be done by the election
machinery, all that is within the orbit of the
Election Court's power.
xx xx xx xx
92. Diffusion, even more elaborate discussion,
tends to blur the precision of the conclusion in a
judgment and so it is meet that we synopsize the
formulations. Of course, the condensed
statement we make is for convenience, not for
exclusion of the relevance or attenuation of the
binding impact of the detailed argumentation.
For this limited purpose, we set down our
holdings:
"(1)(a) Article 329(b) is a blanket ban on
litigative challenges to electoral steps taken by
the Election Commission and its officers for
carrying forward the process of election to its
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culmination in the formal declaration of the
result.
Election, in this context, has a very wide
connotation commencing from the Presidential
notification calling upon the electorate to elect
and culminating in the final declaration of the
returned candidate.
(2)(a) The Constitution contemplates a free and
fair election and vests comprehensive
responsibilities of superintendence, direction
and control of the conduct of elections in the
Election Commission. This responsibility may
cover powers, duties and functions of many
sorts, administrative or other, depending on the
circumstances.
(b) Two limitations at least are laid on its
plenary character in the exercise thereof. Firstly,
when Parliament or any State Legislature has
made valid law relating to or in connection with
elections, the Commission, shall act in
conformity with, not in violation of, such
provisions but where such law is silent Article
324 is a reservoir of power to act for the avowed
purpose of, not divorced from, pushing forward
a free and fair election with expedition.
Secondly, the Commission shall be responsible
to the rule of law, act bona fide and be amenable
to the norms of natural justice insofar as
conformance to such canons can reasonably and
realistically be required of it as fairplay-in-
action in a most important area of the
constitutional order viz. elections. Fairness does
import an obligation to see that no wrongdoer
candidate benefits by his own wrong. To put the
matter beyond doubt, natural justice enlivens
and applies to the specific case of order for total
re-poll, although not in full panoply but in
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flexible practicability. Whether it has been
complied with is left open for the Tribunal's
adjudication.
(3) The conspectus of provisions bearing on the
subject of elections clearly expresses the rule
that there is a remedy for every wrong done
during the election in progress although it is
postponed to the post-election stage and
procedure as predicated in Article 329(b) and
the 1951 Act. The Election Tribunal has, under
the various provisions of the Act, large enough
powers to give relief to an injured candidate if
he makes out a case and such processual
amplitude of power extends to directions to the
Election Commission or other appropriate
agency to hold a poll, to bring up the ballots or
do other thing necessary for fulfilment of the
jurisdiction to undo illegality and injustice and
do complete justice within the parameters set by
the existing law."
(emphasis supplied)
(x) In view of the aforesaid decisions of the Hon'ble Supreme
Court, the writ petition of these appellants was not tenable at
law. The Election Petition is the only remedy available with
the appellants.
(xi) Learned counsel appearing for the appellants has relied upon a
decision rendered by the Hon'ble Supreme Court in Election
Commission of India vs. Ashok Kumar & Ors. (Supra). The
Hon'ble Supreme Court has held in para 32 of the aforesaid
decision which reads as under:
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"32. 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
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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 court's 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."
(emphasis supplied)
(xii) We specifically queried, learned counsel for the appellant as to
whether grant of the prayers, of his clients, would not
effectively impede the progress of the election in the
Constituency from which his clients desired to contest. Learned
counsel answered in the negative, seeking to submit that he was
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not praying for holding of the entire electoral process, but was
concerned with only one constituency. He, however, was
unable to deny that, if the elections in the said Constituency to
take place, his prayer would be rendered infructuous and that,
therefore, grant of his prayer would necessarily entail holding
up of the elections in the said constituency. In the alternative,
he submits, the Election Commission could be directed to
postpone the said election for the said constituency alone.
(xiii) In our view, this would necessarily amount to interfering with
the progress of the election which, as per the law laid down by
the Supreme Court in the decisions cited hereinabove, could
only be by way of an Election Petition, and not by way of a writ
petition under Article 226 of the Constitution of India.
(xiv) In view of the aforesaid decision of the Hon'ble Supreme Court
and looking to the facts of the case, the nomination paper of the
appellants have been rejected by the respondent No.5 on 22nd
January, 2020. If we interfere at this stage, it will tantamount
to interference with the progress of the election. Hence, the
present appeal of the appellants is not tenable at law as Election
Petition is the appropriate remedy available to the appellants.
6. As a cumulative effect of the aforesaid facts and reasons and judicial
pronouncements, there is no substance in this appeal and the same is
therefore dismissed.
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CM No. 4324/2020
7. In view of the final order passed in LPA 65/2020, the application
stands disposed of as infructuous.
CHIEF JUSTICE
C.HARI SHANKAR, J
FEBRUARY 06, 2020
ns/dsn
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