Delhi High Court
Smt. Satvinder Kaur vs The Director Of Gurudwara Election And ... on 10 January, 2007
Equivalent citations: 137(2007)DLT381
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner is a candidate from Ward No. 3 in respect of the elections to be held to the Delhi Sikh Gurdwara Management Committee. Respondent No. 5 is also a candidate. The petitioner filed objections to the nomination of respondent No. 5, which have been rejected in terms of the impugned order dated 21.12.2006. The said order reads as under:
Whereas, as per the drawn schedule (defense Colony 11.00 AM to 12.30 PM., Connaught Place 1.00 PM to 2.00 PM and Lajpat Nagar 2.30 PM to 4.00 PM respectively, duly communicated to all the Nominees in writing). Scrutiny of all 31 nominations papers of the candidates under various wards of Zone-I, Lajpat Nagar was undertaken on 21.12.2006 commencing from 11.00 AM till 4.35 PM.
And whereas, during the scrutiny of nomination papers being undertaken in respect of Ward No. 7, Lajpat Nagar, one of the nominees from Ward No. 3, Connaught Place, Smt. Satvinder Kaur has raised objections in writing against Sh. Shamsher Singh Sandhu, another candidate from Ward No. 3 alleging as under:
1. Sh. Shamsher Singh Sandhu has given a misleading Affidavit to the effect that he is registered as an elector in the electoral roll of Ward No. 3 and thus not ordinary resident.
2. As per the Sikh Rehat Maryada (Sikh Code of Conduct) published by SGPC, it is mandatory that all Amritdhari Sikhs should not dye/colour their beards and as Mr. Sandhu regularly dyes/colours his beard, he should be subject to scientific examination of his beard.
3. He also trims his moustaches regularly, which could be proved scientifically.
4. He does not adorn five kakkars.
And whereas, these objections have been seen by the undersigned by over-ruled due to the fact t hat these have been raised subsequently by the objector only after the decision of acceptance in respect of the nomination papers filed by Sh. Shamsher Singh Sandhu had already been taken by the undersigned and the objections thus stand disposed of. Secondly, the dyeing of the beard finds mention in the Code of Sikh Conduct and Conventions under point No. (q)(3) and thus not enforceable under the Delhi Sikh Gurdwara Management Committee (Election of Members) Rules, 1974, Delhi Sikh Gurudwaras Rules, 1973.
2. In terms of the Delhi Sikh Gurdawaras Act, 1971 (hereinafter referred to as the 'DSG Act'), Section 31 forming part of Part V provides for the mode and manner of settlement of election disputes, electoral offences etc and reads as under:
31. The provisions of Sections 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 29 and 30 of the Delhi Municipal Corporation Act, 1957, shall mutates mutants apply, subject to such modifications as the Central Government may by order direct, in relation to settlement of dispute regarding election, corrupt practices and electoral offences in respect of election of co-option of members of the Committee.
3. A reading of the aforesaid provision thus shows that it is the relevant provisions of the Delhi Municipal Corporation Act, 1957 ('DMC Act' for short) which apply mutates mutants. The grounds for declaration of an election to be void are provided in Section 17 of the DMC Act and the relevant portion is as under:
17. Grounds for declaring elections to be void 1) Subject to the provisions of Sub-section (2) if the Court of the District Judge is of opinion-
a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a councillor under this Act, or
4. The submission of the learned Counsel for the petitioner is that there is an ambiguity arising from the reading of the aforesaid provision along with Rule 19 of the Delhi Sikh Gurdwara Management Committee (Election of Members) Rules, 1974 ('said Rules' for short) which had been made in exercise of the rule making power under Section 39 of the DSG Act. Sub-rule 2 of Rule 19 reads as under:
19. Scrutiny of nomination-
1. ...
2. The Returning Officer shall then examine the notification papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:
a) that on the date fixed for the scrutiny of nomination the candidate either is not qualified or is disqualified for being chosen as a member under the Act; or
b) that there has been a failure to comply with any of the provisions of Rule 16 or 17; or
c) that the signature of the candidate or the proposer on the nomination is not genuine.
5. The submission of learned Counsel for the petitioner is that aforesaid Rules refer to the Returning Officer scrutinizing the nomination of the candidate and determining whether the candidate is qualified or not at the time when he files his nomination and it is open to the Returning Officer to reject the same. Learned Counsel submits that Section 17 of the DMC Act, however, uses the expression 'on the date of his election' which is different from the date when the nomination is being scrutinized.
6. Learned Counsel for the petitioner has also drawn the attention of this Court to the definitions as contained in Rule 94 of the said Rules where a candidate is defined as under:
(a) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate;
7. Learned Counsel submits that the aforesaid definition implies that the candidate means a person who has been duly nominated as a candidate and has to be deemed to have been a candidate as from the time he began to hold himself out as a prospective candidate.
8. The sum and substance of the submissions of the learned Counsel for the petitioner is that the reading of the aforesaid provisions gives rise to a doubt whether the petitioner would be able to challenge the possible election of respondent No. 5 through an election petition after election process is over on the ground that the Returning Officer has not decided the objections on merit.
9. A reading of the impugned order dated 21.12.2006 shows that the Returning Officer had fixed different slots of time for scrutinisation of nomination of different wards The petitioner objected on four grounds. The first ground was that respondent No. 5 was recently registered as an elector in the rolls of Ward No. 3. Grounds No. 2 to 4 relate to what the petitioner claims is the failure of respondent No. 5 to adhere to the tenets of Sikhism. It may be stated at this stage that according to learned Counsel for the petitioner the objections as set out in the letter dated 21.12.2006 have not been correctly dealt with in the impugned order. Objection No. 3 has been dealt with on merits as per the impugned order. However, the Returning Officer has deemed it appropriate not to comment on the other objections as it has been found that the objections have been raised after the acceptance of the nomination papers. It may be stated herein that the date of the objections is the same, but apparently the objections were filed after the time period on 21.12.2006 fixed for scrutinizing the nominations of Ward No. 3 was over. At least, this is the finding of the Returning Officer, which is disputed by the petitioner.
10. Learned Counsel for respondent No. 5 has referred to the Judgment of the Apex Court in Shyamdeo Pd. Singh v. Nawal Kishore Yadav (2000) 8 SCC 46 to advance the proposition that it is not open to the petitioner to challenge the inclusion of the name of respondent No. 5 in the Voters' List once the time period for filing such objections is over. The submission thus is that this is not an aspect to be even considered by the Returning Officer at the stage of scrutiny of the nomination. In this behalf, the observations in para 21 of the judgment as under:
Two Full Bench decisions of two High Courts have come to our notice. In Ghulam Mohiuddin v. Election tribunal for Town area Sakit Raghubar Dayal, J (as His Lordship then was expressed the majority opinion by holding that a person's non residence for the prescribed period or not attaining the age of 21 years is not his disqualification for registration but amounts to his being not qualified to be registered; so long as one is not qualified no question of disqualification arises. A vote is not unlawful merely on account of the fact that the person had no right to have his name entered in the electoral roll. Mr. M.L. Chaturvedi, J agreeing with Raghubar Dayal, J held that the electoral roll is to be deemed final and conclusive as far as the fulfillment of qualification of a voter is concerned but it is not to be deemed final and conclusive by the Election Tribunal so far as the disqualifications attaching to such person are concerned. Chaturvedi, J. noticed the well settled practice in England having been adopted in the Representation of the People Act and held that an entry in the electoral roll has to be taken to be conclusive proof of the fact that the person fulfills the requisitive conditions as to age and residence in the constituency; finality has been given to the decision of the officer preparing the roll insofar as the fulfillment of conditions of registration is concerned but it has not been considered desirable to extend the same finality to the decision on the subject of disqualifications the latter is a more serious matter.
11. Learned Counsel for respondent No. 5 has also drawn the attention of this Court to the Judgment of the Apex Court in Election Commission of India v. Ashok Kumar and Ors. to advance the plea that once the election process has started, there should be no obstruction to the same and the remedy lies by challenging the election subsequently through an election petition. The relevant para 32 is as under:
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 there from 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 the 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 utilize 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.
12. Learned Counsel thus submits that a reading of the aforesaid more specifically Clause (i) of para 32 leaves no manner of doubt that the word 'election' should be widely interpreted and would include all steps and proceedings from the date of notification of the election till the declaration of result. Learned Counsel thus submits that Section 17 of the DMC Act and Rule 19 of the said Rules must be read in the light of these observations which would leave no manner of doubt that it is always open to challenge all these aspects subsequently through an election petition.
13. On consideration of the submissions of the learned Counsel for the parties, I am in agreement with the submissions advanced by learned Counsel for the respondents. The provisions of the DMC Act insofar as the election process is concerned are mutates mutants applicable for the election in question in view of the provisions of DSG Act as referred to above. A reading of the relevant provisions discussed above, in the light of the observations of the supreme Court in Election Commission of India v. Ashok Kumar and Ors. case (supra) makes it abundantly clear that the word 'election' has to be considered liberally to cover the complete period starting from the initiation of elections to the declaration of result. Thus there is no reason to read the provisions of DMC Act or the said Rules restrictively.
14. There is also force in the submission of the learned Counsel for the respondents based on the observations in Shyamdeo Pd. Singh v. Nawal Kishore Yadav's case (supra) that insofar as the inclusion of a person in the Voters' List is concerned, the stage of the same is when the Voters' List is published and the objections are invited to the same. This is not a matter to be agitated at the stage of scrutiny of nominations.
15. In the end, it may be noticed that the election has to be held on 14.01.2007.
16. In view of the aforesaid, it is not open to the petitioner to challenge the impugned order and the remedy of the petitioner, if any, is through an election petition challenging the election of respondent No. 5, if it so arises.
17. The petition and application are accordingly dismissed with aforesaid observations.