Delhi District Court
Sh Rajan Tewari vs Sh Pramod Tanwar on 21 December, 2013
1
IN THE COURT OF SH. LAL SINGH
ADJ03, SOUTHWEST DISTRICT, DWARKA COURT COMPLEX,
NEW DELHI
SUIT NO. 376/12
Sh Rajan Tewari
S/o Sh Ramesh Tewari
R/o R 584, New Rajinder Nagar,
New Delhi
.....Petitioner
Versus
1. Sh Pramod Tanwar
S/o Sh Ram Dass
R/o WZ 908B Naraina Village,
New Delhi
2 Sh. Iswar Singh
S/o Sh. Bhag Mal,
R/o. WZ 572 Q Naraina Village,
New Delhi
3 Sh. Brahm Yadav
S/o Sh. Bhhor Singh
R/o. 54 WZ Block Village
Todapur Village, New Delhi
2
4 Sh Anoop Vashisth
R/o. 643 WZ Block, Naraina Village
New Delhi
5 Sh Dharam Pal
S/o Sh Jagdish Singh
R/o. WZ 660 A, Naraina Village,
New Delhi
6 Sh Sanjeev Arora
S/o Sh. Jagdish Arora
WZ 118, 2nd Floor
Naraina, New Delhi
7 Sh Mohd Areef
S/o. Jamil Ahmad
R/o CJ 132 Rajiv Gandhi Camp
Near Railway Line, Naraina Vihar
New Delhi
8 Sh Ram Ashish Singh
S/o Sh Ram Gati Singh
R/o WZ 131 B1 Naraina Vihar,
New Delhi
9 Sh Trilok Chand Sharma
S/o Sh Hira Lal Sharma
R/o 171 DDA Side 1
New Rajinder Nagar, Delhi. ...... Respondents
3
Date of Institution: 30/04/2012
Date on which judgment was reserved: 5/12/2013
Date on which judgment was passed : 21/12/2013
JUDGMENT:
1. By this judgment I shall dispose of the election petition under section 15 of the Delhi Municipal Corporation Act, read with the Delhi Municipal Corporation ( Election of Councillors) Rules as amended up to Date, challenging the Election of Respondent No.1 as a councillor from Naraina , Ward no 152, as held on 15th April, 2012.
2. The brief relevant facts for disposal of this election petition are that vide a notification, the election Commissioner of the NCT of Delhi called upon the three corporations as 104 wards in North Delhi M.C., 104 wards in South Delhi M.C. and 64 Wards in East Delhi M.C to elect one councillor from each of such ward. As a consequence of the notification issued by the Election Commissioner calling upon the ward to elect councillors , Returning Officers were also appointed with respect to each ward. Sh D .S. Gahlot ( Sub Divisional Magistrate) was appointed to be the Returning Officer in respect of the Ward No. 152 Naraina Ward i.e the ward the subject matter herein the present election petition.
4
As notified, the election program was as under:
a) Last date of making nomination : 26/3/2012
b) The date for the scrutiny of nominations : 28/3/2012
c) Last date for withdrawal of candidate : 31/3/2012
d) The date on which a poll shall be taken
if necessary : 15/4/2012
e) The date on which counting shall taken place : 17/4/2012
Petitioner was one of the contesting candidate for the ward no. 152 Naraina. The respondents No.1 to 9 were the other contesting candidates. Respondent No.1 was declared as elected in the said elections from ward No.152, Naraina. It is averred in the petition that as per provisions of section 9(1)(g) of DMC Act, respondent No.1 was disqualified for the membership of the Corporation and therefore, the respondent No.1 cannot be the councillor of the Corporation as he was holding an office of profit under the Government as defined under the DMC Act. It is further averred that the respondent No.1 was the holder / licensee of kerosene Oil Depot in the name of M/s Tanwar KOD being operated from WZ 908B CB Naraina, Circle No 38 and KOD no. 3768 . Relevant extract downloaded from the Foods and Supply Department, Government of NCT of Delhi, website and RTI response dated 26/04/2012 from the office of Assistant commissioner / PIO (SW), Food and Supply Department Government of NCT of Delhi, have been filed alongwith petition. The copy of the license supplied through 5 RTI response, shows the name, photograph, residential address and other details pertaining to M/s Tanwar KOD and its proprietor Mr Pramod Tanwar besides clearly mentioning that the said license is valid upto 13/11/2019. It is further stated in the petition that Hon'ble High Court of Delhi in judgments of GNCTD Vs. Shyam Sunder Goel writ petition Civil No.6406/2008 held that holding of KOD license amounts to holding of profit and is a disqualification for membership of corporation and further the Hon'ble High Court in judgment of Sunder Vs. Ramesh Dutta and others, writ petition civil No.8784/2008 after relying upon the judgment of GNCTD Vs. Shyam Sunder Goel had set aside the election of the return candidate on the ground that he was disqualified to be chosen as councillor under DMC Act.
It is further averred by the petitioner that the contesting candidates in the MCD elections are required to furnish an affidavit alongwith nomination paper declaring the information about the pending cases and are also required to provide the details of the assets ( movable or immovable) of the candidate, spouse and all dependents. Respondent No.1 had filed the nomination alongwith affidavit for the election of the Ward No. 152, Naraina. It is also averred by the petitioner that in the nomination papers respondent No.1 falsely stated that he is not disqualified to contest the elections. Further in the affidavit he has mentioned that he is trader of kerosene oil and no particulars of trade of kerosene oil were provided in the said affidavit of the respondent no.1. It is also averred by the petitioner that the affidavit furnished by respondent No.1 on solemn affirmation 6 alongwith his nomination, the respondent no.1 has not disclosed and intentionally suppressed the material information that he is a licensee/ holder of kerosene oil depot and rather in a surreptitious and a clandestine manner the respondent no.1 has stated himself to be ''trader of kerosene oil''. It is further averred in the petition that it was necessary and indispensable for respondent no.1 to have disclosed about his KOD in his affidavit filed alongwith the nomination papers which has not been done. Petitioner also averred that election of the respondent No.1 has been materially affected on account of non declaration of the aforesaid material information thereby depriving the voters of ward No.152 Naraina to their fundamental right of information and proper exercise of right of choice on account of incomplete information and non information on the aforesaid aspect. It is further averred by the petitioner that even after filing of nomination, respondent No.1 has not bothered to intimate either the Returning Officer ( about his KOD) and Foods and Supply Department ( about his candidature), rather on the other hand the respondent No.1 through his KOD had been taking supply of kerosene oil from the concerned department during the elections. Petitioner further averred that in answer of the RTI response dtd 26/4/2012, it is stated that " as per computer data base quota of kerosene of March 2012 is 420 liters and of April 2012 is 500 liters of M/s Tanwar KOD. It is also alleged in the petition that 500 liters of kerosene oil has been delivered at M/s Tanwar KOD on 24/4/2012.'' Petitioner averred that the election of the returned candidate is liable to be declared void as he has not complied with the provisions of the DMC Act. It is alleged by the petitioner that 7 respondent No.1 has indulged in corrupt practice by creating undue influence in the minds of the voters attached to his KOD concerning the supply of Kerosene Oil and hence, by the said illegal and unlawful acts and conduct, the respondent no. 1 has also rendered himself liable for criminal prosecution for violations punishable under section 176 and 181 of the Indian Penal Code.
Petitioner also averred that respondent NO.1 is disqualified to be chosen as a councillor, the nomination filed by him is required to be rejected, the same being contrary to the applicable provisions. It is also averred that respondent No.1 was also disqualified for the membership of corporation under section 9 (1)
(g) of the DMC Act. Petitioner also stated that the name of respondent no.1 has been gazetted under section 14(1) of the Act on 19/4/2012 and the present petition is , therefore, within limitation in terms of section 15 of the Act.
Petitioner has deposited a sum of Rs 5000/ as security for cost of this petition in terms of Rules 89 of the Rules vide receipt no. 6002 dtd 25/4/2012. Hence, petitioner by this petition prays for declaring the election of the respondent No.1 the returned candidate as councillor MCD from ward No.152, Naraina, as null and void.
3. Respondents were duly served and respondent No.1,3,4,5,6 and 9 have filed their reply/WS. Respondent no.1 in its reply took a preliminary objection that the present petition has been filed by the petitioner solely on the 8 basis of decisions in GNCTD Vs. Shyam Sunder Goel and in Ramesh Datta's case and the said judgment are first of all not applicable to the present case as these judgments were passed without considering the judgments of Supreme Court in Ranjit Singh v. Harmohinder Singh Pradhan 1999 (4) SCC 517 and Padrath Mahto v. Misri Sinha AIR 1961 SC 480. In the reply, respondent no.1 also contended that the present petition is bad for non joinder of necessary parties like State Election Commissioner, Returning Officer and candidates who withdrew their nominations.
It is contended by the respondent No.1 in his reply that Hon'ble High Court in V.P. Dhingra Vs. Nihal Singh and Others, AIR 1985 Delhi 8 and in judgment of Praveen Kumar Vs. Mohd. Naushad & Ors. 2011 (181) DLT 698, held that candidates who withdrew their nomination are also necessary party to the election petition and their nonjoinder leads to the dismissal of the election petition. Respondent No.1, denied that he was disqualified for membership of corporation under section 9(1) (g) of DMC Act. Respondent No.1 also denied that holding of KOD license is an office of profit.
Respondent no.3&5 in their separate reply stated that the present petition has been filed by one of the contesting candidates to challenge the election of the MCD councillor from Ward No. 152 of the respondent No.1 the returned candidate being suffered from disqualification as per Section 9 of the DMC Act. In their reply, respondents no.3 & 5 averred that the contents of petition 9 as well as the documents relied in support of the petition are sufficient to prove the disqualification of respondent no.1 and his election is liable to be null and void.
Respondent no.4 in his WS/reply, stated that the petition relates to respondent no.1 and therefore, needs no reply by the answering respondent.
Respondent no.6 in its reply, stated that petition has been filed by the petitioner just to harass the respondents and also the same is without any cause of action and hence, liable to be dismissed.
Respondent no.9 in its reply, contended that the present petition is an abuse of process of Court as the petitioner has concealed the particulars, misrepresented the facts before this Court and made false and frivolous allegations and same is not maintainable.
4. After perusal of pleadings of parties, Ld. Predecessor of this court had framed following issues :
1. Whether the petition filed by the petitioner is liable to be rejected u/o 7 Rule 11 CPC? .... Onus on respondent no.1
2. Whether plaintiff is entitled to relief as claimed in the petition?
....OPP.
5. Thereafter, Ld. Predecessor of this court has decided the issue No.1 against the respondent No.1 and in favour of the petitioner. Ld. Predecessor of this court decided the issue No.2 in favour of the petitioner and against the respondent No.1. Aggrieved by the order dt.8/10/2012 of Ld. Predecessor of this court, 10 respondent No.1 filed a writ petition before the Hon'ble High Court of Delhi. Hon'ble High court of Delhi in writ petition (C) No.6640/2012 & CM Nos. 17515/12 & 18631/12, vide order dt. 4/2/2013 set aside the order dt. 08/10/2012 passed by Ld. Predecessor court and remanded back the case after framing the following issues as under:
1) Whether the writ petitioner/original respondent No.1 in the election petition holds an office of profit, by virtue of holding a Kerosene Oil Depot(KOD) license on the date of nomination?..............OPP.
2) If the issue No.1 is found in the affirmative, what would be the effect of the same?...........OPP
3) Whether Sh. Ram Kumar Tanwar and Sh. Vikas Tanwar, who had filed their nominations, which were subsequently withdrawn, were necessary parties in terms of section 15(3) of the Delhi Municipal Corporation Act, 1957 (in short DMC Act) read with Rule 89 of the Delhi Municipal Corporation (Election of councillors) Rule, 2012 (in short 2012 Rules)?..............OPR1
4) Relief(s), if any.
6. To prove its case, petitioner has examined himself as PW1 and in rebuttal evidence on behalf of the petitioner, PW2 Sh. Hari Prasad, Assistant Commissioner, Food and supply department, District South West, Delhi was examined.
11
7. PW1 Sh. Rajan Tewari, who is petitioner has examined himself as PW1. The affidavit of PW1 is Ex.PW1/A and he also exhibited his affidavit under section 65 B of Evidence Act, as Ex.PW1/B. PW1 has also relied upon the documents i.e. receipt dt. 25/4/2012 Ex.PW1/1, certified copy of the KOD license issued in the name of Sh. Parmod Tanwar, proprietor of M/s. Tanwar Kerosene Oil Depot WZ908D, C.B. Naraina, New Delhi valid upto 13/11/2013 Ex.PW1/2, the print out of the Govt of NCT of Delhi showing the name of KOD at Sr. No.38 (bearing No. 3768 in the name of M/s. Tanwar KOD) Ex.PW1/3A and Ex.PW1/3B, reply of RTI dt. 26/4/2012 Ex.PW1/4, legal notice under order 12 Rule 5 CPC (postal receipt, AD Card and report of speed post and courier) collectively Ex.PW1/5, legal notice under order 12 rule 8 CPC(postal receipt, AD card and report of speed post and courier) collectively Ex.PW1/6. PW1 has been cross examined on behalf of respondent NO.1.
8. PW2 is Sh. Hari Prasad, Assistant Commissioner, Food and Supply department. He deposed that license for KOD is being issued by the office of Assistant Commissioner, Food and Civil Supply being licensing authority. He further deposed that the license is being issued under the Delhi Kerosene Oil(Export and Price) Control order 1962. He further stated that the license of KOD is required to be renewed after three years. He further deposed that Pramod Kumar has applied for renewal of the license for his KOD on 8/10/2010 vide depositing Rs.500/, thereafter the license for KOD of Pramod Kumar was renewed 12 vide entry at point A in Ex.PW2/2. He also stated that the renewal security fee in the form of FDR in the sum of Rs.5000/ was also deposited by Sh. Pramod Kumar and receipt thereof was given to Pramod Kumar. PW2 further deposed that the fuel branch of their department fixed the quota of KOD at the time of granting the license to the licensee. The license holder goes to his agent for taking his quota and on the basis of his entitlement fixed by the department the licensee lifts the quota. He further deposed that in March, 2012 M/s. Tanwar KOD was allocated 420 liters of kerosene oil and and in April, 2012, 500 liters of Kerosene oil was allocated and entire allocated kerosene oil was supplied to M/s. Tanwar KOD. He further deposed that total 40 ration card holders/beneficiaries were attached to M/s. Tanwar KOD. PW2 also stated that original license of M/s. Tanwar KOD was deposited by Sh. Pramod Kumar Tanwar alongwith application dt. 28/4/2008 in the office of Food and Supply officer circle 38 Delhi Cantt. Delhi vide diary No. 94/C38 dt. 28/4/2012 for surrender of license, and he proved the said application vide Ex.PW2/4. PW2 further deposed that power for cancellation of license of KOD as well as power for acceptance of surrender of KOD License vest with Assistant Commissioner and the price of kerosene oil is notified by the Hon'ble Lt. Governor of Delhi and thereafter it is conveyed to the agents as well as kerosene oil holders by the department. PW2 deposed that the department does not give any commission to the licensee of KOD. PW2 further deposed that the kerosene oil sold in the kerosene oil depot is controlled and subsidized and subsidized oil can not be sold by any other person except the holder of KOD License. PW2 further 13 stated that the quantum of profit of selling the kerosene oil by the license holder is 18 paise per liter fixed by the Delhi Government, however, the Government does not give any commission to any KOD holder. PW2 has been cross examined on behalf of respondent NO.1.
9. On behalf of respondent No.1 three witnesses i.e. R1W1 Sh. Pramod Tanwar, R1W2 Sh. Ram Kumar Tanwar and R1W3 Sh. S.K. Yadav, have been examined.
10. R1W1 Sh. Pramod Tanwar has filed his evidence by way of affidavit vide Ex. R1W1/A. R1W1 has relied upon the documents i.e. letter dated 26/4/2012, 28/4/2012 and 14/5/2012 vide Ex.R1W1/1 to Ex.R1W1/3 and also relied upon the photocopies of receipts for withdrawal of nomination of Sh. Ram Kumar Tanwar and Sh. Vikas Tanwar as Mark A and B. R1W1 has been cross examined on behalf of the petitioner as well as on behalf of the respondent No. 2 and 4.
11. R1W2 Sh. Ram Kumar Tanwar has also filed his evidence by way of affidavit vide Ex.R1W2/A. He also relied upon the documents i.e. receipt of notice of withdrawal of Ram Kumar Tanwar Ex.R1W2/1 and of Vikas Tanwar Ex.R1W2/2, photocopy of receipt bearing No.1436dt. 26/3/2012 Mark A, certified copy of NCR No. 682/2013 dt. 1/4/2013 Ex.R1W2/3. R1W2 has been cross examined by the petitioner as well as respondent NO.2 and 4. 14
12. R1W3 Sh. S.K. Yadav who has brought the summoned record i.e. Terms and condition for opening of L 10 Retail Vend of Liquor shop and proved the same vide Ex R1W3/1. He deposed that ''the Excise department issued various license for sale of Liquor i.e. L6, L10 and L12. L6 for Government Corporation , L10 for Malls i.e. Private shop and L12 for Departmental General store. He stated that L56 license which was earlier issued for sale of liquor license has now been replaced as L10 license and the procedure of L10 and L56 were similar. He deposed that the aforesaid license were issued by the Excise department after depositing of required license fee. He stated that L10 license as well as all the other license were issued without tender. He also stated that as per department procedure the license holder places the order for required quantity and brand of liquor after depositing the Excise duty for the same. R1W3 deposed that in every bottle price of liquor is mentioned and the license holder get the profit margin as fixed by the Excise Commissioner. He stated that the Excise department is having the control over the license holder and if there is any complaint against the license holder than the complaint has to be filed before the Excise department. R1W3 has been cross examined by the petitioner.
13. I have heard the arguments. Apart from oral arguments counsels for the petitioner and respondent No.1 also filed written submissions/arguments.
14. Ld. Counsel for petitioner submitted that in the instant case it has come 15 on record that respondent No.1 by virtue of his KOD license was earning not only income but also profits, which has been also admitted by the respondent No.1 in his cross examination. He further submitted that office of profit is an office which is capable of yielding a profit or pecuniary gain. He also argued that all the activities right from the grant of license for KOD, removable/ termination/suspension of KOD license, distribution of Kerosene oil is controlled by Food and Civil supply department, Govt. of NCT of Delhi, hence, the running of KOD on the basis of license is an office which is capable of yielding a profit or pecuniary gain. He further submitted that if a candidate is holding any disqualification as provided under section 9 of the DMC Act, then at the first place is ineligible to contest the election. Ld. Counsel for petitioner submitted that in the present matter also the respondent No.1 was undisputedly holding an ''office of profit'' in the form of KOD not only on the date of his nomination but on the date of his filing nomination, the date of scrutiny, date of polls, date of counting, date of notification and even thereafter. He also submitted that PW2 deposed that in the March, 2012 M/s. Tanwar KOD was allocated 420 liters of kerosene oil and entire allocated quota was supplied to M/s. Tanwar KOD and further in the month of April, 2012, M/s. Tanwar KOD was allocated 500 liters of kerosene oil and entire quota was supplied to M/s. Tanwar KOD. He submitted that the testimony of PW2 clearly shows that the respondent No.1 during the election period was also active in receiving the kerosene oil. He further submitted that respondent No.1 admitted that he earns commission on the sale of kerosene oil from the agent and PW2 stated that agent is 16 part of Government.
15. Ld. Counsel for the petitioner submitted that the respondent No. 1 has nowhere stated in his entire pleadings or evidence as to when the intended surrender of KOD by respondent No.1 had been accepted by the department and unless the department accepts the alleged intended surrender of KOD by the respondent No.1, it can not be said that actually any effective surrender of license has taken place. Ld. counsel for the petitioner argued that it has come on record that only on 31/8/2012 the cards and kerosene oil lying with the respondent No.1 has been transferred to the Panwar KOD and it infers that till the time of said transfer of cards and quota of kerosene oil continued to be attached with respondent No.1. Ld. Counsel for the petitioner also submitted that the respondent No.1 has made an attempt to equate the liquor license with his KOD license but has failed miserably to do so. He submitted that there is no dispute that KOD license is an office of profit as held by various judicial pronouncement.
16. Ld. Counsel for the petitioner also submitted that contention of the respondent No.1 that election petition is liable to be dismissed as the petition does not made party to two alleged candidates namely Ram Kumar Tanwar and Vikas Tanwar in the present petition, is not sustainable. He further submitted that conjoint reading of rule 22 (8), rule 23 and rule 24 of DMC (election of councillors) Rules 2012 makes it amply clear that what law requires is that such 17 person i.e. contesting candidate whose name is mentioned in form 7 list as per rule 24 are required to be made as party. He further argued that in the present case, admittedly names of Ram Kumar and Vikas Tanwar were not in the form 7 list and as such there is no requirement of them being made as party in the present election petition. He further contended that for a person to claim himself as a candidate it is essential that such person with the election in prospect began to hold out himself as prospective candidate. Counsel for the petitioner submitted that Ram Kumar Tanwar no where in his evidence by way of affidavit stated that he was a contesting candidate in the MCD election or he was a necessary party to the present election petition or his name was published in form 7 list and he held himself as prospective candidate in the MCD election in prospect. Counsel for petitioner also submitted that requirement of making Ram Kumar Tanwar and Vikas Tanwar as a party in the present petition would have arisen only if the petitioner had made any allegation of corrupt practice or any other allegation against them or such person and in the instant matter there was no such allegation against them or such person. Counsel for the petitioner submitted that the present petition deserves to be allowed and election of respondent no.1 is liable to be declared null and void. Counsel for petitioner relied upon following judgments :
(i)GNCTD Vs. M/s Shyam Sunder Goel WP Civil No. 6406/2008 decided on 17.08.2010.
(ii) Sunder Vs. Ramesh Dutta 2011 (180) DLT 63.
18
(iii)Shibu Soren Vs. Dayanand Sahay & Ors. 2001(7) SCC 425
(iv) Jaya Bachan Vs. Union of India (2006) 5 SCC 266.
(v)Shiv Chand Vs. Ujagar Singh & Anr AIR 1978 SC 1583.
(vi) Raj Kumar Shukla Vs. Xth Additional District Judge Lucknow 1995 Allahabad 403.
(vii) Ajay Maken Vs. Adesh Kumar Gupta & Anr, civil appeal No. 8919/12 (arising out of SLP (C) No. 24716/2011 decided on 11.12.2012.
17. On the other hand, Ld. Counsel for respondent No.1 submitted that petitioner has not proved the documents as per law. Ld. Counsel for respondent No.1 submitted that petitioner has failed to establish or even demonstrate as to how the Kerosene oil depot comes under the office of profit. He further submitted that petitioner has misconstrued the term "office of profit'' with the term profit earned from the commission of sale of kerosene oil from the consumer. He submitted that averment of the petitioner that license holder of KOD used to get commission from government is falsified from the contrary view of the petitioner as stated by him in his cross examination to the effect that the petitioner himself does not know if the commission is paid to license holder of KOD by the private agency or how the commission is paid. He submitted that from the perusal of affidavit by way of evidence of petitioner Ex. PW1/A, the petitioner nowhere alleged or averred that in which manner or how the election of the 19 respondent No.1 is affected by holding the license of KOD. Counsel for respondent No.1 also submitted that the respondent No.1 had disclosed in his affidavit filed with nomination paper that he is dealer of kerosene oil depot. He argued that the Returning officer specifically made inquiries with regard to the KOD dealership and only after having being satisfied the Returning officer accepted the nomination of respondent No.1. Counsel for respondent NO.1 also submitted that petitioner has filed the present petition solely on the basis of decision in cases of GNCTD Vs. Shyam Sunder Goel and in Ramesh Dutta's case which are not applicable in the present case. He contended that in Shyam Sunder Goel's case it was not an issue before the Hon'ble High Court that whether KOD is office of profit or not, however, the issue before the Hon'ble High Court was about the eligibility of elected councillor to hold, after being so elected, a KOD issued by the Govt. of NCT. He contended that the aforesaid judgment it was neither considered nor decided on merit whether the KOD is office of profit or not, however, it was observed that KOD license could not be held by him after he got elected as councillor and it was incumbent upon him to surrender it immediately after being elected as councillor. He further contended that in Ramesh Dutta's case it was not discussed whether a KOD is office of profit or not, however, the election was challenged only on the ground that petitioner has suppressed the material information regarding his assets i.e. holding of KOD at the time of filing of nomination.
20
18. Ld. Counsel for the respondent No.1 vehemently argued that the suppression of asset itself does not impliedly infer that holding of KOD license comes under the embargo of holding of office of profit as sought to be projected by petitioner. He further submitted that the respondent No.1 has not suppressed any material fact in the nomination paper as he has clearly mentioned that he is kerosene oil dealer and hence, the Judgment of Ramesh Dutta's case would not be any help to the petitioner. He submitted that even otherwise also, the judgment passed in Shyam Sunder Goel's case and Ramesh Dutta's case are passed in curium as Hon'ble High Court has passed the said judgment without considering and discussing the judgments passed by Hon'ble Supreme Court in Ranjeet Singh Vs. Harmohinder Singh Pradhan, 1999 (4) SCC 517. Counsel for respondent No.1 further argued that in Ranjit Singh's case (Supra) Hon'ble Supreme court held that the license holder of liquor shop is not disqualified to be chosen as member of Legislative assembly or being a legislative council under section 9A of R.P. Act, which is corresponding to Section 9 of DMC Act. He submitted that in view of the above said judgment passed by Hon'ble Apex Court, the KOD can not be treated as office of profit which may disqualify the holder of KOD license, to contest election of municipal councillor.
19. Ld. Counsel for the respondent No.1 further submitted that present election petition is liable to be dismissed on the ground of nonjoinder of necessary 21 parties. He submitted that the candidates who withdrew the nomination form and State election commission as well as Returning officer were necessary parties for proper adjudication of the present matter. He submitted that as per section 15 of the DMC Act, election of returned candidate can be challenged or called in question only on the ground mentioned under section 17 of the Act and it is also mentioned in Section 15 (3) of the Act that it was mandatory for the petitioner to join all the candidates at the election as respondents. He argued that Hon'ble High Court in cases of V.P. Dhingra and Praveen Kumar held that under the DMC Act, the duly nominated candidates though subsequently withdrawn from the candidature is a candidate under Rule 89 (a) and is a necessary party to the election petition in view of Section 15(3) of the DMC Act. Ld. Counsel for respondent No. 1 contended that petitioner has misconstrued the judgment of Ajay Maken's case decided by Hon'ble Apex Court and hence, the said judgment is not applicable to the present case. Counsel for respondent No.1 also submitted that present petition has been filed by the petitioner in order to take revenge on account of having being defeated in the election in question as the present petition is an after thought based on some false and misrepresented facts. He also argued that petitioner has not filed petition in accordance with procedure and rules prescribed under the DMC Act. Ld. Counsel for the respondent no.1 submitted that the present petition is liable to be dismissed. Ld. Counsel for respondent No.1 has relied upon following judgments: 22
(i) Ranjeet Singh Vs. Harmohinder Singh Pradhan 1999 AIR (SC) 1960.
(ii) Ram Padarath Mahto Vs. Mishir Sinha 1961 AIR (SC) 480.
(iii) Suganthi Suresh Kumar Vs. Jagdeeshan 2002 AIR (SC) 681.
(iv) Consumer Education Research Society Vs. UOI & Ors 2009 (9)SCC 648.
(v)Meera Kanwaria Vs. State Election Commissioner, 2004(1) AD(DEL) 554.
(vi) V.P. Dhingra Vs. Nihal Singh & ors, 1985 AIR (DEL) 8.
(vii) Praveen Kumar Vs. Mokhd. Naushad & ors, 2011(181) DLT 698.
(viii) PUCL Vs. UOI, 2003AIR (SC) 2353.
(ix) Jitendra Bahadur Singh Vs. Krishna Behari 1970 AIR (SC) 276.
(x) L.R. Shivaramagowda Vs. T.M. Chandrashekar, 1999 AIR (SC) 252.
(xi) Gajanan Krishanji Bapat Vs. Dattaji Raghobaji Meghe, 1995 AIR (SC) 2284.
(xii)Samant N. Balkrishna Vs. George Fernandez 1969 AIR (SC) 1201.
(xiii) Dewan Joynal Abedin Versus Abdul Wazed Alias Wazad Miah 1987 (4) JT
642.
(xiv) Punnu Swami Vs. Returning Officer Namakkal AIR 1992 SC 64.
20. I have heard the arguments of Ld. Counsels for parties and perused the file and also considered judgments relied upon by them. 23
21. My findings on the issues framed in the present election petition are as under:
22. ISSUE NO.1.
Whether the writ petitioner/original respondent No.1 in the election petition holds an office of profit, by virtue of holding a kerosene oil depot (KOD) license on the date of nomination? ............OPP The onus to prove the issue No.1 is upon the petitioner. It is the case of the petitioner that the respondent No.1 is liable to be disqualified for the membership of the corporation under the DMC Act and the respondent No.1 cannot be the councillor of the corporation as he was holding an office of profit under the Government as defined under DMC Act. Petitioner contended that the respondent No.1 was holder of kerosene oil depot at the time of election as well as after elected as councillor from ward No. 152 Naraina. Contention of the petitioner is that as the holder of KOD license, comes under the preview of office of profit hence the respondent No.1 who held the KOD license at the time of election and after elected as member of the corporation from ward No. 152 Naraina, can not be chosen as member of corporation. Petitioner has examined himself as PW1 and filed his affidavit in evidence vide Ex.PW1/A. He relied upon the certified copy of KOD license issued in the name of Sh. Parmod Tanwar, proprietor M/s Tanwar KOD, WZ908 D, C. B Naraina, New Delhi valid upto 13.11.2013 vide Ex. PW1/2. Petitioner also relied upon the RTI reply dt. 26/4/2011 vide Ex.PW1/4. As per 24 certified copy of KOD license Ex.PW1/2, the KOD license was issued in the name of Pramod Tanwar, proprietor of M/s. Tanwar KOD and same was valid upto 13/11/2013. As per RTI reply Ex.PW1/4 the proprietor of M/s. Tanwar KOD is Promod Tanwar, R/o. WZ908, CB Naraina, New Delhi. In the RTI reply Ex.PW1/4 it is also mentioned that license of M/s. Tanwar KOD is not surrendered by the licensee of KOD till 26/4/2012 and further 500 liters of kerosene oil has been delivered at M/s. Tanwar KOD on 26/4/2012. PW2 Sh. Hari Prassad, Asstt. Commissioner Food and Supply, South West District, Delhi, in his evidence also proved the certified copy of license of KOD in the name of M/s. Tanwar KOD vide Ex.PW2/2. PW2 categorically stated that Sh. Pramod Tanwar applied for renewal of license of his KOD on 8/10/2010 and thereafter KOD of Pramod Tanwar was renewed vide entry at point A in Ex.PW2/2. PW2 also stated that in the March, 2012, M/s. Tanwar KOD was allocated 420 liters of kerosene oil and entire allocated kerosene oil was supplied to M/s. Tanwar KOD and in the month of April, 2012, M/s. Tanwar KOD was allocated 500 liters of kerosene oil and entire allocated kerosene oil was supplied to M/s. Tanwar KOD. PW2 also proved the application dt. 28/4/2012 for surrender of KOD license in the name of M/s. Tanwar KOD vide Ex.PW2/4. Hence, it is amply clear that the respondent No.1 was having KOD license at the time of nomination for election of councillor from MCD ward No.152, Naraina and was having KOD license even after he being elected as councillor and when kerosene oil was supplied to M/s. Tanwar KOD in the month of April, 2012.
25
23. Respondent No.1 in his affidavit filed alongwith the nomination paper for MCD election from ward No.152, Naraina, mentioned that he is trader of kerosene oil, however, no particulars of trade of kerosene oil were provided in the said affidavit of respondent No.1. It is the contention of respondent No.1 that mentioning of trade in kerosene oil is enough as kerosene oil can not be traded without license. There is no dispute regarding the respondent No.1 having the KOD license at the time of filing of nomination papers of the MCD election. Moreover, respondent No.1 was having KOD license even after the declaration of the result and he being chosen as councillor from Ward No. 152, Naraina, Delhi. Further, on 28/4/2012 vide application Ex.PW2/4 respondent NO.1 surrendered the KOD license, which is admitted fact that atleast till 28/4/2012 the respondent NO.1 was having valid license of KOD. It is the contention of Ld. Counsel for petitioner that having of KOD license comes within the preview of office of profit. It is also contention of the petitioner's counsel that Section 9(g) of the DMC Act states that a person shall be disqualified from chosen as and for being a councillor, if he holds any office of profit under the government (or central government).
24. Even it appears that the respondent No.1 was having knowledge that holding of KOD comes within the purview of office of profit, because vide application dt. 28/04/2012 Ex.PW2/4 respondent No.1 surrendered his KOD license on his being elected as councillor from ward No.152, Naraina, Delhi in the MCD 26 election. In the judgment of GNCTD Vs. M/s Shyam Sunder Goel writ petition Civil No. 6406/2008 decided on 17/08/2010 it was observed by the Hon'ble High court of Delhi that this court unable to accept the explanation of the Respondent that despite being elected as a Municipal councillor in 2002, he was unaware that under Section 9(1)(g) of the DMC Act, a person shall be disqualified for being chosen as a councillor if he holds any office of profit under the Government, i.e. the GNCTD or the Central Government. It appears that under Section 17(1)(a), one of the grounds on which an election as councillor can be set aside is that on the date of his election a returned candidate was not qualified or was disqualified to be chosen as a councillor. This would include any of the disqualifications under Section 9(1) of the DMC Act. In the aforesaid judgment, Hon'ble High court further observed that ''in the light of above legal position there is no question of permitting the respondent to get his KOD license revived upon the completion of his tenure as Municipal councillor. The KOD license could not be held by him after he got elected as councillor. It is incumbent upon him to have surrendered it immediately upon being elected as councillor.
25. Further in the case of Sunder Vs. Ramesh Dutta and ors. W.P.(C) 8784/2008 decided on April, 25, 2011, the Hon'ble High Court of Delhi observed that the petitioner was admittedly the sole proprietor of M/s. Vashisth KOD which continued even on the date of filing of the nomination papers. The petitioner 27 sought to surrender the KOD license on 29th March, 2007. However, the license was cancelled only on 10th May, 2007. The evidence of the witness from the Food and Civil Supplies Department shows that the petitioner was lifting stocks and selling kerosene oil to the consumers till May, 2007, i.e. , even after the declaration of the result of the election. This court in GNCTD v. Shyam Sunder Goel (WP. (C) No. 6406 of 2008, decision dated 17th August 2010) has held that holding of a KOD license by a Municipal councillor amounted to holding an office of profit and was therefore a disqualification to continuing as a councillor.
26. Counsel for respondent No.1 contended that respondent NO.1 was merely holder of KOD license and even as per PW2 who is officer of Food and Civil Supply department, the quantum of profit of selling kerosene oil by license holder is 18 paisa per liter fixed by Delhi Government, however, the government does not give any commission to the KOD holder. Counsel for respondent No.1 further contended that PW2 deposed that profit margin which KOD license holder earns is never given by the government or by the agent. But on this aspect also, the counsel for petitioner relied upon the judgment of Shibu Soren Vs. Dayanand Sahay (2001) 7 SCC 425, wherein it was observed that '' it is the substance and not the form which matters and even the quantum or amount of pecuniary gain is not relevant.'' It is further contended by the counsel for petitioner that commission earned by the respondent on the sales made in the fare price shop was sufficient to 28 bring the KOD under the expression of office of profit. Further counsel for petitioner also relied upon the judgment of Jaya Bachhan's case in which it was held that ''An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or noncompensatory allowance is attached, is 'holding an office of profit'. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. ''
27. On the other hand, Ld. Counsel for respondent No.1 relied upon the case of Ranjeet Singh Vs. Harmohinder Singh 1999, AIR (SC) 1960. Ld. counsel for respondent NO.1 contended that in Ranjeet Singh's case, the Hon'ble Supreme court held that license holder of liquor shop is not disqualified to be chosen as member of legislative assembly or being a legislative council under Section 9 A of R.P. Act which is corresponding to the section 9 of DMC Act. Counsel for the respondent No.1 contended that in Ranjeet Singh's case Hon'ble Supreme Court observed holding that liquor shop is not held as office of profit and he further contended that in view of the said judgment the KOD can not be treated as office of profit.
28. It is the contention of counsel for respondent No.1 that even otherwise 29 the judgment passed in Shyam Sunder Goel's case and Ramesh Dutta's case are passed in curium as Hon'ble High Court has passed the said judgment without considering and discussing the judgments of Hon'ble Supreme court in Ranjeet Singh Vs. Harmohinder Singh Pradhan (Supra) as well as judgment in case of Ram Padarath Mahto Vs. Mishir Sinha, AIR 1961 (SC) 480.
29. Counsel for respondent NO.1 also contended that in the case of Suganthi Vs. Jagdeeshan AIR 2002 SC 681, Hon'ble Supreme Court held that law declared by Supreme court can not be bypassed by High Courts on the ground that some points has not been considered. Counsel for respondent No.1 further relied upon the case of Rajendran Vs. Jose (2001) (3) Ker LT 431 wherein it was observed that it is impermissible for the High Court to over rule the decision of the Apex court on the ground that Supreme Court laid down the legal position without considering any other point.
30. Ld. Counsel for respondent No.1 relying upon the Ranjeet Singh's judgment (supra) trying to equate the liquor license and KOD license. R1W3 Sh. S.K. Yadav, Excise Inspector was also examined on behalf of the respondent No.1. He stated in his evidence that liquor license were issued by Excise department after depositing license fee. He further deposed that Excise department is having control over the license holder. However, in the cross examination R1W3 30 categorically stated that no card is issued to the consumer of liquor by Excise department and there is no subsidy given by the government on the sale of liquor, rather the government imposed Excise duty on the cost/sale of liquor. In cross examination R1W3 further deposed that liquor does not come under the purview in the category of essential commodities and there is no government recommendation for allotting liquor license. R1W3 also deposed that as per terms and conditions at Sr. No. 1.5, the liquor shop can not be opened within the radius of 100 meter where educational institutions, religious places and hospitals with 50 beds or above are situated and further no liquor shop is allowed to open in JJ Colony. From the testimony of R1W3 it is also clear that the parameters of KOD license and liquor license is entirely different and same can not be equated. Further, the liquor license is given to the highest bidder, however, same is not the case for allotting KOD license.
31. Hence, in view of the above discussion, I am of the opinion that the judgments passed in GNCTD Vs. Shyam Suder Goel and Ramesh Datta's case passed by Hon'ble High Court of Delhi are squarely applicable in the present case also. In both these judgments Hon'ble High Court observed that the holding of license for kerosene oil depot comes within the purview of office of profit. In Sunder Vs. Ramesh Datta & ors case, the Hon'ble High Court of Delhi categorically observed that this Court in GNCTD Vs. Shyam Sunder Goel [W.P. 31 (C) No.6406 of 2008, decision dated 17.08.2010] has held that the holding of a KOD license by a Municipal councillor amounted to holding an office of profit and was therefore, a disqualification to continuing as a councillor. Hence, in view of the above judgments, passed by Hon'ble High Court of Delhi, it is amply clear that the holding of Kerosene Oil Depot (KOD) license comes very well within the purview of office of profit. Therefore, respondent No.1 by virtue of holding a kerosene oil depot (KOD) license on the date of nomination, held the office of profit. Accordingly, issue No.1 is decided in favour of the petitioner and against the respondent No.1.
32. ISSUE NO.2.
If the issue No.1 is found in the affirmative, what would be the effect of the same?...........OPP As issue No.1 has been decided in favour of the petitioner and against the respondent No.1. While deciding issue No.1, it has been held that holding of Kerosene Oil Depot (KOD) license comes within the preview of the office of profit. Since respondent No.1 was having KOD license at the time of election and even after he being elected as councillor from ward No.152, Naraina, which comes within the ambit of office of profit, and it attracts disqualification to be chosen and nominated as councillor. Moreover section 9 of the DMC Act 1957, speaks about the ground of disqualification for membership of corporation. Section 9 of DMC 32 Act is reproduced as under: A person shall be disqualified for being chosen as, and for being, a councillor,
(a) If he is of unsound mind and stands so declared by a competent court;
(b) if he is an undischarged insolvent;
(c) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign state;
(d) if he is disqualified by or under any law for the time being in force for the purpose of elections to the Legislative Assembly of the National Capital Territory of Delhi;
(e) if he is so disqualified by or under any law made by the Legislative Assembly of the National Capital Territory of Delhi;
(f) if he holds any office of profit under (a corporation);
(g) if he holds any office of profit under the State Government (or Central Government);
(h) if he is a licensed architect, draughtsman, engineer, plumber, surveyors or town planner or is a partner of a firm of which any such licensed person is also a partner;
(i) if he is interested in any subsisting contract made with, or any work being done for, (a Corporation) except as a shareholder (other than a director) in an 33 incorporated company or as a member of a cooperative society;
(j) if he is retained or employed in any professional capacity either personally or in the name of a firm of which he is a partner or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which (a Corporation) or any of the municipal authorities is interested or concerned;
(k) if he, having held any office under the Government, (a Corporation) or any other authority, has been dismissed for corruption or disloyalty to the State unless a period of four years has elapsed since his dismissal or the disqualification has been removed by the (Election Commission);
(l) if he fails to pay any arrears of any kind due by him, otherwise than as an agent, receiver, trustee or an executor, to (a Corporation) within three months after a notice in this behalf has been served upon him.
From the perusal of section 9 (g) of DMC Act, it is amply clear that it provides that if a person holds any office of profit under the State Government or Central Government then he shall be disqualified for being chosen as, and for being a councillor. Respondent No.1 is holding an office of profit as he was holding the license of Kerosene Oil Depot at the time of election and even after he being elected as councillor, which attracts disqualification under section 9 (g) of DMC Act. Respondent No.1 was disqualified for being chosen as and for being a councillor for the MCD, Delhi.
As the respondent No.1, was holding office of profit hence the election of respondent No.1 Sh. Pramod Tanwar from ward No.152 Naraina is declared as 34 null and void. Accordingly, issues No.2 is also decided in favour of the petitioner and against the respondent no.1.
33. ISSUE NO.3.
Whether Sh. Ram Kumar Tanwar and Sh. Vikas Tanwar, who had filed their nominations, which were subsequently withdrawn, were necessary parties in terms of section 15(3) of the Delhi Municipal Corporation Act, 1957 (in short DMC Act) read with Rule 89 of the Delhi Municipal Corporation (Election of councillors) Rule, 2012 (in short 2012 Rules)?..............OPR1 The onus to prove this issue was upon the respondent No.1. Counsel for respondent No.1 submitted that as per Section 15 of the DMC Act, election of a returned candidate can be challenged/called in question only on the grounds mentioned under section 17 of the Act and also mentioned in Section 15 (3) of the Act, and that it was mandatory for the petitioner to join all the candidates at the election as respondent. He also contended that the Rule 91 of the DMC Act (election of councillor) Rule 2012 which is a mandatory provision, prescribed consequence of noncompliance of provisions of Section 15 or Rule 99 which resulted into compulsory dismissal of election petition.
34. As per Rules 89 of the DMC (election of councillor) Rules 2012 which defines the definition of candidate under Rule 89 (a) which is as under:
89 (a) 'Candidate' means a person who has been or claiming to have 35 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.''
35. Ld. Counsel for respondent no.1 contended that in the present petition, all the candidates to the election were not impleaded as petitioner or as respondents and therefore, the present election petition is not maintainable in view of Section 15(3) of DMC Act 1957. It is the ground of respondent no.1 that since Sh. Ram Kumar Tanwar and Vikas Tanwar who subsequently withdrew their nominations were not impleaded in the present election petition, hence the present election petition is necessarily liable to be dismissed. Ld. Counsel for respondent no.1 relied upon the cases of V.P. Dhingra Vs. Nihal Singh and ors 1985 AIR (Del) 8 and Praveen Kumar Vs. Mohammad Naushad & ors 2011 (181) DLT 698. Ld. Counsel for the respondent no.1 contended that in both these judgments, Hon'ble High Court very categorically held that under the DMC Act, the duly nominated candidate is a candidate under Rule 89(a) and is a necessary party for the purpose of necessary party to the election petition in view of the Section 15(3) of the DMC Act.
Ld. Counsel for the respondent no.1 also relied upon the case of Punnu Swami Vs. Returning officer Namakkal AIR 1992 SC 64, wherein Hon'ble Supreme Court has defines the word election as the entire process of election which consists of several stages of the election i.e. filing of nomination, scrutiny 36 and acceptance and also withdrawal of the same. Counsel for respondent no.1 submitted that the petitioner has misconstrued the Ajay Makan's case and contended that said judgment is not applicable in the present case, because in that judgment, the Hon'ble Supreme Court has interpreted the position of Section 82 of RP Act with regard to the necessary party to the election petition. It is the contention of the respondent no.1 that section 82 RP Act specifically prescribed about which candidate can be a party and it has specifically mentioned that the returned candidate or contesting candidate which are the parties to the election petition against whom relief are called for in the election petition, but section 15(3) of DMC Act does not specify the nature of candidate which shall be joined as parties to the election petition and it simply prescribed all candidates in the election petition and hence, in view of the definition of rule 89(a) the candidate who has been duly nominated irrespective of the fact that whether he contested election or not is a candidate to be impleaded as party in the election petition in view of Section 15(3) of DMC Act.
36. Sh. Ram Kumar Tanwar who has filed his nomination paper, has been examined as R1W2 and he relied upon receipt of notice of withdrawal of his candidature as R1W2/1 and receipt of notice of withdrawal of candidature by Vikas Tanwar as Ex.R1W2/2. It is the contention of the counsel for the respondent that in the cases of V.P. Dhingra Vs. Nihal Singh & ors AIR 1985 (Del) 8 and Praveen 37 Kumar Vs. Mohd Naushad 2011 (181) DLT 698, the Hon'ble High Court held that the candidates who withdrew their nomination are also necessary parties to the election petition and their non joinder leads to the dismissal of the election petition for non compliance of the mandatory provision of Section 15(3) of DMC Act.
37. Contradicting the contention of the counsel for the respondent No.1, the counsel for the petitioner submitted that Sh. Ram Kumar Tanwar and Sh.Vikas Tanwar, who withdrew their nominations were not necessary party in the present election petition. It is the contention of the counsel for the petitioner that contesting candidates whose name is mentioned in form 7 list as per rule 24 are required to be made as a party and admittedly the names of Ram Kumar Tanwar and Vikas Tanwar were not in the form 7 of the list and hence there is no requirement of them being made as a party in the present petition. It is also the contention of the petitioner that a person to claim himself as a candidate it is essential that such person with election in prospect began to hold himself as a prospective candidate.
38. Sh. Ram Kumar Tanwar who filed nomination for the aforesaid MCD election for ward No. 152 Naraina, but subsequently withdrew his nomination has been examined as R1W2. R1W2 Sh. Ram Kumar Tanwar has filed his affidavit Ex.R1W2/A wherein he stated that due to some personal reason he withdrew his nomination form with an understanding that he may contest the election in future. In his evidence by way of affidavit R1W2, nowhere stated that in the said election, 38 he began to hold himself out as a prospective candidate with MCD election in prospect. Further, in cross examination R1W2 Sh. Ram Kumar Tanwar stated that he had not applied for any election symbol, while filing nomination. He further stated that the symbol is allotted at the time of scrutiny of nomination paper and as he has withdrew his nomination paper therefore he was not alloted any symbol. Sh. Ram Kumar Tanwar in his cross examination further stated that he did not go for his election campaigning as he withdrew his nomination and also not spent any money. Sh. V.K. Kajal, deputy secretary state election commission Delhi also filed affidavit and it is stated in his affidavit that Sh. Ram Kumar Tanwar and Vikas Tanwar withdrew their nomination on 31.03. 2012. Hence there is nothing on record which would suggest that Sh. Ram Kumar Tanwar and Sh.Vikas Tanwar hold themselves out as prospective candidates as defined under section 89 (a) of DMC (Election of Councillors) Rules 2012.
39. It is the contention of the petitioner that requirement of joining Ram Kumar Tanwar and Vikas Tanwar to the present election would arisen if there is any allegation of corrupt practice against them. For this contention counsel for the petitioner has placed reliance upon Ajay Makan's Judgment.
40. Petitioner in the present election petition has not alleged any corrupt practice against Sh. Ram Kumar Tanwar and Sh.Vikas Tanwar, who subsequently withdrew their nomination. In his evidence also the petitioner has not made any 39 allegation of corruption or corrupt practice against Sh. Vikas Tanwar and Ram Kumar Tanwar.
In the case of Shiv Chand Vs. Ujjagar Singh & Anr AIR 1978 SC 1583, wherein Hon'ble Supreme Court observed that necessary to implead a party to a sub candidate would arise, when there has been an allegation of corrupt practice against such candidates. In Shiv Chand Vs. Ujjagar Singh's case it was held that " it is fairly clear that Sh. Mal Singh was a necessary party since a corrupt practice was imputed to him".
Further in the case of Raj Kumar Shukla Vs. Xth Additional District Judge, Lucknow and Ors AIR 1995 Allahabad 403, it is was observed that, A person who has withdrawn his nomination before the prescribed date for the same cannot be said to be a candidate of the election and he is not a necessary party to the election petition unless an allegation of corrupt practice is made against him. Therefore in view of the interpretation of the words "at the election" it has to be held that a person who has withdrawn his nomination before the prescribed date for withdrawal of nomination and against whom there is no allegation of corrupt practice will not be a necessary party to the election petition and the election petition cannot be dismissed on the ground of nonimpleadment of such a person.
In the judgment of Shiv Chand Vs. Ujjagar Singh & Anr and Raj Kumar Shukla Vs. Xth Additional District Judge, Lucknow, it has been specifically observed that, a person who has withdrawn his nomination and against 40 whom there is no allegation of corrupt practice, will not be a necessary party to the election petition.
41. Ld. Counsel for the petitioner also contended that in Ajay Makan's case the Hon'ble Supreme Court also held that a candidate against whom there is no allegation of corruption is not necessary party in the election petition.
Ld. Counsel for petitioner relied upon the case of Ajay Maken Vs. Adesh Kumar Gupta & Anr, civil appeal No. 8919/12 (arising out of SLP (C) No. 24716/2011 decided on 11.12.2012, wherein it was observed by Hon'ble Supreme Court that, Accordingly, while agreeing with my learned brother that the allegation made against Mr. Vijay Goel, contained in annexure to the election petition, can have no bearing on the facts at issue in the election petition itself, in my estimation Sh. Vijay Goel is not required to be made a party to the election petition. As also indicated by learned brother, the matter may require further examination in an appropriate case. However, in the facts of this case, the non impleadment of Sh. Vijay Goel against whom there is no allegation in election petition is not fatal to the election petition.
Therefore in the aforesaid judgments of Shiv Chand Vs. Ujjagar Singh, Raj Kumar Shukla Vs Xth Additional District Judge Lucknow and Ajay Makan Vs Adesh Kumar Gupta's cases, it was categorically observed that if there is no allegation of corruption against a candidate then he is not a necessary 41 party to the election and nonimpleadment of such candidate in election petition is not fatal to the election petition. Hence it is clear that against a candidate if there is no allegation of corrupt practice in election, then he is not a necessary party. In the instant case Sh. Ram Kumar Tanwar and Vikas Tanwar who subsequently withdrew their nomination and against whom there was no allegation of corrupt practice, are not a necessary party in the election petition and their nonimpleadment is not fatal to the election petition. Moreover, there is nothing on record to show that Sh. Ram Kumar Tanwar and Sh. Vikas Tanwar hold themselves out as prospective candidates as defined under Rule 89 (a) of DMC (Election of Councillors) Rule 2012. Hence, Sh. Ram Kumar Tanwar and Sh. Vikas Tanwar, who withdrew their nomination are not the candidates in the real sense in terms of Rule 89 (a) of the DMC (Election of Councillors) Rule 2012 and they are not necessary party to the present election petition.
Therefore, in view of the above findings, this issue is also decided against the respondent No.1 and in favour of the petitioner.
42. Relief: As held above all the issues in the present election petition has been decided in favour of the petitioner and against the respondent No.1. Since the respondent No.1 was holding the license of KOD at the time of election and even after being elected as a councillor, which has been held as office of profit, which attracts disqualification for being chosen as and for being a councillor. 42 Hence, respondent NO.1 was disqualified for being chosen and being remained as Councillor of MCD, Delhi. Therefore, election of respondent No.1 Sh. Pramod Tanwar from ward No. 152, Naraina is declared as null and void. Accordingly, the election petition of the petitioner is allowed. The copy of this judgment along with true copies of entire file be sent to the State Election Commission, Delhi.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 21/12/2013.
(LAL SINGH) ADDL. DISTRICT JUDGE03, (SOUTHWEST DISTRICT) DWARKA COURTS, NEW DELHI 43 Suit No.376/12 Rajan Tewari Vs.Pramod Tanwar & ors.
21.12.2013 Present: Petitioner Rajan Tewari in person.
Respondent No.1 Pramod Tanwar is also present in person.
Sh. N.K. Aggarwal counsel for respondent No.5, 6 & 7.
None for other respondents.
Vide my separate judgment of even date, election petition of petitioner is allowed. The election of respondent No.1 Pramod Tanwar from ward No. 152 Naraina is declared as null and void. The copy of this judgment along with true copies of entire file be sent to the State Election Commission of Delhi.
File be consigned to record room.
(LAL SINGH) ADDL. DISTRICT JUDGE03 SOUTH WEST DISTRICT DWARKA COURTS, NEW DELHI