Delhi District Court
Smt. Saroj Anand vs The Election Commissioner on 22 November, 2008
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL
DISTRICT JUDGE: DELHI.
CS 40/07
Smt. Saroj Anand
R/o A1/128, Second Floor,
Sector 11, Rohini,
Delhi - 85 ...Petitioner
Vs.
The Election Commissioner,
Delhi Election Commission
Delhi,
The Commissioner of Police,
Police Headquarters,
Indraprastha Estate,
New Delhi - 110002
Smt. Nirmala Thakur, BJP,
R/o A1/162 and 163,
Sector 17, Rohini,
Delhi - 85
Smt. Chanda Rai,
R/o B7/104, Sector - 17,
Rohini, Delhi - 85
Smt. Sunita,
R/o F - 3/9091,
Sector 16, Rohini,
Delhi - 85
: 1 :
Smt. Geeta
R/o 148, Nimri Colony,
Ashok Vihar, Delhi - 52
Smt. Supriya Chaudhary
H2/91, Sector 16,
Rohini - 85
Ms. Anita Jain
R/o B - 2/188, Sector - 17,
Rohini, Delhi - 85
Ms. Pushpender Kaur,
R/o A4/143, Sector 17,
Rohini, Delhi - 85
Ms. Santosh Bansal
R/o A8/44, Sector 17,
Rohini, Delhi - 85
Ms. Sneh Bala,
R/o D3/13, Sector - 11,
Rohini, Delhi - 85
Ms. Sushila
R/o B2/82, Sector 17,
Delhi 85 ...Respondents.
Date of Institution: 23.4.2007
Arguments heard on: 15.11.2008
Date of Decision: 22.11.2008
: 2 :
: O R D E R :
This election petition under Section 15 of the Delhi
Municipal Corporation Act read with Delhi Municipal Corporation
(Election of Councillors) Rules, 1958 has been filed by the
petitioner Saroj Anand who is one of the contesting candidate in
respect of the elections held on 5.4.2007 to the municipal ward no.
21 (Rohini) for which counting was done and results announced on
7.4.2007 wherein the respondent no. 3 was declared as returned
candidate from the said ward. The brief background of the case is
as under:
BRIEF FACTS
Petitioner's Case:
The petitioner is stated to have contested the election from Indian National Congress; the respondent no. 3 has contested from the Bhartiya Janta Party; the respondent no. 4 contested election on the ticket of Bahujan Smajwadi Party; the respondent : 3 : no. 5 contested election on the Ticket of National Congress Party whereas the remaining candidates have contested the election on independent tickets.
The case of the election petitioner is that it would be evident through the keyplan of the Pocket A8 it would be evident that only 120 plots were carved by the Delhi Development in Sector 16, Rohini, Delhi whereas in the Electoral Roll 2007 for the Ward 21, 660 plots/ properties have been mentioned each having 60 square meters area and hence there have been shown over and above 540 plots. It is pleaded that in the same Sector in Pockets C4 and C5 as many as 184 plots have been shown and in Pocket B4, 107 plots have been shown in the Electoral Roll 2007. It is stated that infact there are no pocket C4, C5 and B4 in the Sector no. 16, Rohini, Delhi and 831 more plots have shown in Sector 16.
According to the election petitioner on each plot the structure is raised upto third floor i.e. ground floor, first floor, : 4 : second floor and third floor thereby showing that there are 3324 properties/ floors more have been shown in the total plots of 831 whereas the aforementioned plots/ properties are not existing in the Pockets C4, C5 and B4, Sector 16, Rohini, Delhi and have falsely been mentioned in the list. It is further pleaded that in the aforementioned false properties numbering 3324 a number of false voters have been shown on whose behalf bogus votes have been casted on the day of the election i.e. 5.4.2007. It is averred that the petitioner has approached the defendant/ respondent no. 1 on several occasions for checking the activities of the respondent no.3 but they did not care for the same and turned a deaf ear to her requests after which she submitted a written complaint dated 4.4.2007 against the respondent no.1 with a request to take action in accordance with law but the respondent again did not care for the same.
On 16.4.2007 the petitioner is stated to have submitted another complaint against the respondent no. 3 in pursuance of her : 5 : complaint for conducting fair inquiry in the matter and also submitted a letter dated 4.4.2007 to the respondent no.1 for the use of vehicles in canvassing with which goods are transported, but the concerned officials did not care for the requests of the petitioner and dumped her complaints for the reasons best known to the respondent no.1. According to the petitioner the vehicles used are bearing Nos. DL1LH4732 and QUALIS no. DL1VB2176.
The election of the respondent no. 3 who is the returned candidate has now been challenged on the ground that she has violated the directions /instructions circulated by the respondent no.1 openly on account of her illmotives for which she should be prosecuted and punished as per provisions of law, but the respondent no.1 and 2 did not care for the same and closed their eyes from the side of the respondent no.3. It has been contended that the candidates to the election were not allowed the advertisement on the motor vehicles but the respondent no. 3 freely used vehicle in gher advertisement/publicity without a hitch.
: 6 : It is further stated that the respondent no.3 also opened her two publicity offices whereas she could have used only one office for the said purpose, and also committed several other irregularities. It is further contended that the respondent no.3 used two offices for publicity/ canvassing the election for herself and also used more than two hoardings of her photographs. It is further alleged that the respondent no. 3 used bigger hoardings of her photographs than the size 6ft. X 4ft. and also used more tables and chairs on 5.4.2007, the day of the election that too at lesser distance of 100 feet.
According to the election petitioner the respondent no.3 has also violated the directions of the State Election Commission by using posters, banners, stickers and Jhandis/ flags and also spend more than Rs.2,00,000/ for publicity. The petitioner has further stated that the respondent no.3 has also used loudspeaker on autorickshaw for her publicity/canvassing during election.
: 7 : Respondent's Case:
The respondents no. 4,5,6,7,8,9, 10, 11 and 12 who were the other contesting candidates have not appeared before this court despite valid service to contest the present election petition and have been proceeded exparte.
The respondents no. 1 and 3 have filed their reply/ written statement. The Returning Officer to the ward who has filed the reply on behalf of the respondent no. 1 has stated that the electoral roll was prepared on the basis of the roll prepared for the Assembly elections and hence the complaint of the election petitioner in this regard is baseless. It is also stated that the voter list was displayed for public inspection and after receipt of all suggestions from the public, the said list was prepared and the allegations levelled in the petition were never raised prior to the elections. Further, according to the Returning Officer the polling station was prepared on the basis of the requirement and the voters were identified on the basis of the Electoral Roll prepared for the : 8 : Assembly Elections. It is submitted that no complaint was received by him except the letter dated 4.4.2007 i.e. just a day prior to the poll which according to him has no substance. It is also stated that the allegation regarding the vehicles having been used unlawfully is also completely false since no such complaint was ever received by them.
The respondent no. 3 who is the winning/ returned candidate has in her written statement 3 has raised a preliminary objection that the present election petition filed by the petitioner is not maintainable and is bad in the eyes of law since the Delimitation Committee, Department of Urban Development, Govt. of NCT of Delhi have not been made a party to the present proceedings as they are not only a necessary and proper party but in the absence of same the present petition cannot proceed or be heard or be decided/ adjudicated in so far as the petitioner has challenged the process and power of delimitation of the constituency in question. It is further stated that the petition is : 9 : liable to be dismissed as this Court cannot go into the question of the delimitation of the constituency or the inclusion or exclusion of the areas in the said constituency in view of the bar as laid down by Article 243 ZG of the Constitution of India, which clearly provides that notwithstanding anything in the Constitution, the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243 ZA shall not be called in question in any Court. According to the respondent no. 3 the petition is also liable to be dismissed since the petitioner has not come to this Court with clean hands and has suppressed material facts.
On merits it is stated that the delimitation of the wards and more so of the ward in question was done at the behest of the statutory authorities and as per the information and knowledge of the respondent no.3 the same is fair and proper as per law. According to the respondent no. 3 the genuineness of the voter is to be decided by the Polling Officer /Election authorities with : 10 : which she has no role to play and the election, voting, counting etc. all were done under the careful and watchful eyes of the Election Commission, Police Authorities including para military forces and the media and the allegations of the petitioner in this regard are baseless. It is also stated that the political party to which the petitioner belongs has been virtually wiped out in the said election and the political party to which the respondent no. 3 represents, got and won by about 2/3 majority out of the total number of wards/seats in the whole MCD.
The allegations made by the Election Petitioner regarding violation of the Model Code of Conduct have been specifically denied by the respondent no. 3. It is stated that she has strictly followed all the guidelines issued by the Election Commission/ the concerned authorities from time to time and also used the vehicles as per the guidelines of the Election Commission and the code of conduct and guidelines thereto. It has been denied that the respondent no. 3 has violated the directions/ instructions : 11 : circulated by the Election Commission. It is further denied that she had opened two publicity offices and has not acted upon the directions of the Election Commission. She has also denied having used than two hoardings of her photographs and more table and chairs on 5.4.2007 and having violated the directions by using posters, banners, stickers and Jandia/ flags and by spending more than Rs.2,00,000/ for publicity/ canvassing. According to the respondent no. 3 as per the guidelines of the Election Commission she gave her expenses amount to the election officer which documents are in the possession of the Election Commission. ISSUES FRAMED:
On the basis of the pleadings of the parties this court has vide order dated 30.10.2007 framed the following issues:
1. Whether the notification of the administrator dated 7.2.2007 has been violated by the State Election Commission as per the grounds raised in paragraph 4 and 5 of the petition?
(OPP) : 12 :
2. Whether the respondent no 3 has violated the stipulated norms with regard to the Election expenditure as claimed in the petition? (OPP)
3. Whether there has been a violation of the Model Code of Conduct as claimed by the petitioner in the petition in paragraph 9 to 12? If yes, its effect. (OPP)
4. Whether the election of the respondent no. 3 for Ward no. 21 is liable to be declared null and void? (OPP)
5. Relief.
EVIDENCE:
In order to prove her case the election petitioner Saroj Anand has examined herself as PW1. In her examination in chief by way of affidavit she has corroborated what has been earlier stated in the main petition. She has placed on record the symbol list which is Ex.PW1/1; the various complaints made by her which are Ex.PW1/2, PW1/3 & PW1/4; the directions/ instructions circulated by the respondent no. 1 which is Ex.PW1/5, receipt of : 13 : Rs.3,000/ is Ex.PW1/6; Identity Card issued by the Returning Officer which is Ex.PW1/7 and copy of the election identity card which is Ex.PW1/8.
In her crossexamination the witness has stated that she has made the first complaint to the Election Commission regarding the violation on 4.4.2007. According to her, she did not get any specific assessment done with regard to the expenditure incurred by the respondent no. 3 and she has stated that the respondent no. 3 exceeded the expenditure of Rs. Lakhs on the basis facts that she had opened more than one offices and had put numerous hoarding and banners. She has deposed that prior to 4.4.2007 she did not made any complaint and has denied that the said complaint does not include the allegation of the respondent no. 3 exceeding the election expenses. She has further denied that the photograph Ex..PW2/4 reveal that the building shown in the same is the office of Sh. Jai Bhagwan Aggarwal, MLA and is not the election office of Nirmala Thakur. PW1 has admitted that the respondent no. 3 : 14 : has also deposited her expenditure register before the Election Commission and that she has not made any complaint against the respondent no. 3 except the complaint dated 4.4.2007. The witness has further admitted that after filing of the her nomination papers the election commission provided her the complete list of voters and that at that time she did not make any complaint. She is not aware about the draft of the voter list published by the election commission but admits that she did not make any complaint in respect to the correction of the draft. She has denied the suggestion that the respondent no. 3 has strictly followed all the guidelines issued by the election commission or that she used the vehicles as per the guidelines of the election commission. She has deposed that he had not challenged the draft of the electoral roll when suggestions were sought by the election commission since at that time she was not a candidate.
Sh. Vinod Bansal a reporter in "Apni Delhi Newspaper" has been examined as PW2 and has proved the : 15 : photographs taken by him on 3.4.2007 which are Ex.PW2/1 to PW2/7.
In his crossexamination the witness has deposed that he delivered the said photographs to the petitioner after 2022 days and admits that the date and time is not mentioned on the said photographs which according to him are available in the CD. He has deposed that the photographs had been given to the petitioner pursuant to a request letter after obtaining permission from the office. He is unable to tell whether the photographs taken by him were printed in his newspaper or not and states that there is no stamp on the photographs to show that they were clicked by him but according to him the CD record maintained in the office would show the date and time the photographs were taken from the digital camera which was sanctioned to him by his office. The witness is not aware whether his office complained to the election commission regarding the misconduct of the said candidate. He has testified that the election commission had given permission to : 16 : both the vehicles but the said permission was only limited to a specified period. He has denied the suggestion that the newspaper in question had not given him the authorization to take the photographs in question or that the said photographs were not taken 3.4.2007. According to PW2, the motives in taking the photographs in question was to locate the violation of the Code of Conduct and report the same to the Election Commission and the police. He has denied the suggestion that he has taken the said photographs to blackmail the respondent.
PW3 Sh. U.S. Kalra, the then Returning Officer Ward no. 21 (Rohini) has also been examined who has placed on record the authenticated voter list of Ward no. 21 photocopy of which is Ex.PW3/1 (wrongly mentioned as PW2/1). According to him, the voters can cast their votes on the basis of this list and the key plan attached with the said voter list has been duly signed by the AERO (AC20).
: 17 : In his crossexamination the witness has stated that he received the said voter list from the State Election Commission after which he did not made any alteration or deletion. He has deposed that as per the said voter list the voters cast their votes on the day of election and he has not received any complaint/ request from any candidate within the prescribed time in respect of the voters list. According to him, he had received a complaint dated 4.4.2007 from the plaintiff which was one day before the polling but he did not entertained the said complaint since it was filed after the prescribed time limit.
The said witness has been recalled for additional examination wherein he has clarified that Ex.PW3/1 is pertaining to the Ward No. 21, Rohini and not for Ward no. 33 as printed on the same since the said electoral roll had been prepared prior to the delimitation of the wards and hence Ex.PW3/1 be read as electoral roll for ward no. 21 instead of ward no. 33. He has placed on record the original result sheet of ward no. 21 which is : 18 : Ex.PW3/2. According to the witness, he is not aware of any complaint made by the election petitioner to the State Election Commission one day prior to the elections i.e. on 4.4.2007 regarding the discrepancy in the electoral rolls of Sector 16, Rohini where nonexiting pockets were shown. He has testified that he had received the copy of the complaint on 4.4.2007 but he did not entertain the same as it was filed after the prescribed limit.
The election petitioner has also examined Sh. Manmohan Singh Gulati, Executive Engineer, Rohini Zone who has in his examination in chief proved the layout plan alongwith the showing key plan of Section 16 and 17 which is Ex..PW4/1 & PW4/2. He has deposed that as per the layout plan, Pocket B4, C 4 and C5 are not existing in Sector 16 and 120 flats have been constructed and situated in pocket A8 of Sector - 16, Rohini, Delhi.
In his crossexamination the witness has admitted that he has no role in the Municipal Election held on 5.4.2007 and : 19 : states that he has no knowledge about the delimitation of the area.
The respondent no. 3 Smt. Nirmala Thakur has examined herself as RW1 who has in her examination in chief by way of affidavit corroborated what has been earlier stated in the written statement. She has placed on record the vehicle permit which is Ex.RW1/1; photocopy of the register of election expenses which is Mark A and the original letter dated 23.10.2007 received from the State Election Commission which is Ex.RW1/2.
In her crossexamination the witness has admitted that after declaring her name as a candidate on 17.3.2007 she came to know that she is the BJP candidate of ward no. 21 (Rohini). She does not remember the exact date on which she filed her nomination papers but states that it was the last date of filing of nomination papers. She is not aware about the number of the booths set up polling station wise and states that she had arranged one table and two chairs for each polling station. According to her she had not utilized any table and chair anywhere except in front : 20 : of the polling station. She has admitted that on 5.4.2007 she had utilized 30 chairs and 3 tables as per bill issued by Singh Tent & Caterers and voucher no. 61. The witness has testified that she had utilized two vehicles for her election canvassing and one vehicle used for publicity and she had also obtained the requisite permission from police. She does not remember the numbers of the said vehicles but testifies that they were Qualis, Gypsy and one was a three wheeler. According to her, she had only one vehicle permit Ex.RW1/1 and another passes issued by the concerned authorities were pasted on the front mirror of the vehicle which are not in her possession. She has admitted that she had paid for vehicle no. DL2CF0803 vide voucher no. 9 dated 23.3.2007, no. 11 dated 24.3.2007, no. 15 dated 25.3.2007, no. 17 dated 26.3.2007, no. 21 dated 27.3.2007, No. 29 dated 29.3.2007, no. 35 dated 31.3.2007, no. 40 dated 1.4.2007, no. 46 dated 2.4.2007. no. 58 dated 4.4.2007, no. 64 dated 5.4.2007, no. 66 dated 7.4.2007.
: 21 : RW1 has further deposed that she has obtained the permission for three vehicles from the Election Commission but she does not remember the number of the said vehicle. She has denied the suggestion that she had not obtained the permission from the concerned authorities for vehicles bearing no. DL2CF 0803 and admits that the said vehicle is not Mahindra Commando. The witness initially deposed that she had not used Maruti 800 car bearing no. DL3CN8643 for her election purposes which vehicle is of her husband however she later admitted that she had paid Rs.500/ for petrol in Maruti 800 car bearing no. DL3CN8643 vide voucher dated 17.3.2004 and had utilized the said car for her election purposes. RW1 has further admitted that she had paid the transportation charges for the vehicle bearing no. HR565416 vide voucher no. 60 dated 5.4.2007 for 2 days from 4.4.2007 to 5.4.2007. She has also admitted that she utilized stickers and banners in her election.
: 22 : The witness has deposed that she had opened only one election office at Pocket A3, Sector - 17, Rohini, Delhi but she does not remember the number of the said premises. According to her, the size of the said office is 10' X 10' or 12' X 12' approximately and the premises shown in Ex.PW2/2 was her election office. She has stated that the vehicle bearing no. DL 4IH4732 shown in Ex.PW2/6 & Ex.PW2/7 had been utilized for election purpose. According to her, no other leader of any other party was sitting at the community center, Sector - 16, Rohini, Delhi and admits that the premises shown in Ex.PW2/3 and PW2/4 are the said community center. She has admitted that both the photographs Ex.PW2/3 and PW2/4 show her banners but according to her, the said banners have not been put by her nor she can tell who had put the said banners.
RW1 has denied that she had used more than three vehicles for her publicity/ canvassing in her election campaign including the vehicles for transporting the goods or that she had : 23 : freely used the vehicles in her advertising/ publicity during her election. She has also denied that having opened two election/ publicity offices out of which one at A3/44, Sector 17, Rohini, Delhi and another at Community Center, HBlock, Sector 16, Rohini, Delhi or that she had put up hoardings and banners of the size more than 12' X 6' on both her election offices. She has further denied that she used more number of tables and chairs at a distance of less than 100' on 5.4.2007 or that she had violated the directions of the Election Commission by using posters, banners, stickers, hoardings and jahndies/ flags etc. RW1 has further denied the suggestion that she had deliberately not shows the extra expenses incurred by her during the election campaign in her account submitted to the Election Commission or that she had spent more than Rs. 2 lakhs in her election campaign in violation of the directions of the Election commission.
The other respondents have not examined any witness.
: 24 : FINDINGS:
I have heard the arguments advanced before me by the counsels for all the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue no. 1 Whether the notification of the administrator dated 7.2.2007 has been violated by the State Election Commission as per the grounds raised in paragraph 4 and 5 of the petition?
Onus of proving this issue was upon the election petitioner and in order to discharge the onus, the election petitioner has examined herself as PW1, the Returning Officer of the wards as PW3 and the Executive Engineer, Rohini Zone, DDA as PW4. The case of the petitioner is that there are only 120 flats carved out by the DDA in Sector 16, Rohini but in the Electoral Roll for Ward No. 21, as many as 660 plots/ properties have been mentioned each having a 60 sq. meter area and therefore around 540 plots have been shown over and above the actual number of : 25 : properties. It is also stated that in the same Sector 16 in Pocket C 4, B4 and B5, 184 plots have been shown and in Pocket B4 107 plots have been shown whereas the true facts are that there are no pocket C4, B4 and B5 in Sector 16, Rohini and 831 plots have been shown. It is further alleged that structures are shown to have been raised upto third floor i.e. ground floor, first floor, second floor and third floor and there is and additional no. of 3,324 properties / floors which have been shown in these 831 plots which are shown in non existing pockets which prove the number of bogus votes which are existing and had been casted on the date of election. It is also alleged by the election petitioner that she had approached the respondent no. 1 for checking of the same but a deaf ear was turned to her request as a result of which she was compelled to make a written complaint on 4.4.2007 on which no action has been taken till date.
In so far as the respondent no. 3 is concerned the Ld. Counsel appearing on her behalf has contended that the main : 26 : allegations are against the respondents no. 1 and 2 and he has nothing much to say in this regard except that this court will have no jurisdiction to examine this aspect at this stage.
In so far as the respondent no. 1 is concerned the Returning Officer has been duly examined in the court. Three aspects have been raised on behalf of the respondent no. 1. It is Firstly submitted that this court will have no jurisdiction to examine this dispute being incompetent to go into the question of delimitation of the constituency or the inclusion/ exclusions of the area in a constituency in view of the Article 243 Z (g) of the Constitution of India. It is Secondly contended that the jurisdiction of the civil court would be barred in view of the provisions of Section 7 (I) of the DMC Act since the dispute involve the question of correctness of electoral roll. It is lastly alleged that the Returning Officer had set up the polling stations on the basis of the names mentioned in the electoral rolls and there is nothing in the Act or Rules which makes it incumbent for the : 27 : Returning Officer or the Assistant Returning Officer to carry out the physical verification of the area at the time of carving out the wards pursuant to the order of delimitation.
I have gone through the testimony of the election petitioner who has been examined as PW1, the Returning Officer Sh. U.S. Kalra who has been examined as PW3 and the Executive Engineer DDA Rohini Zone Sh. Manmohan Singh Gulati who has been examined as PW4. The witness from the DDA has specifically proved the layout plan of Sector 16 and 17 Rohini which is Ex.PW4/1 and Ex.PW4/2 which layout plan shows that Pockets B4, C4 and C5 do not exist in Sector 16 Rohini. He has also testified that in the layout plan that only 120 flats had been constructed and are situated in Pocket A8, Sector - 16, Rohini.
The perusal of testimony of the PW3 (Returning Officer) shows that he has duly proved the authentic copy of the elector list which is Ex.PW3/1 (Collectively) and also the key : 28 : plan attached with the electoral list which has been duly signed by the AERO (AC20). I have gone through the layout plan Ex. PW4/1 and Ex PW4/2 and also the key plan accompanying the Electoral List Ex. PW3/1 placed before this court by the Returning Officer bearing the signatures of the AERO (AC20) who is an officer from the NCT of Delhi and also the signatures of ARO in respect of ward no. 21 an officer of the State Election Commission being subordinate to the Returning Officer. A bare perusal of both the key plans show that the Pocket B4, C4 and C5 do not exist in Sector 16, Rohini.
Vide notification dated 5.7.2006 bearing No. F.7 (367) (8)/2002/UD/4952 in exercise of power conferred under Section 3
(c) of the DMC Act the Lt. Governor of Delhi on the basis of population of Delhi census of the year 2001 had determined that there shall be 134 seats of the Councillors in the Delhi Municipal Corporation and further out of the said 134 seats 32 seats shall be : 29 : reserved for the members of the Schedule Casts keeping in view the ratio of the schedule caste population to the population of Delhi based on 2001 census. Pursuant to the aforesaid, the exercise of delimitation of the wards of MCD was carried out and notification bearing no. F.7(367) (8)/2002/UD/2141 dated 7.2.2007 issued by the Administrator carving out Ward No. 21 Rohini (North) [disputed ward].
It is not disputed that the proposal of the Delimitation Committee was duly accepted by the NCT of Delhi and the delimitation was carried out in terms of the aforesaid notification. It is also evident from the EB details of New Ward No. 21, Rohini (North) that Sector 16, Pocket B4, C4 and C5, Rohini are not shown as covered in the said Ward No. 21. In so far as the Sector 16 is concerned only the Janta Flats pocket G1, G2, G3, G4, G 5, G6, G7, G8, G9, Pockets H1, H3 and H4 , Janta Flats pocket F1, F2, F3, F4, F6, F7, E1, A1, A2, A3, A6, A8, Pockets 11,12,13,14,16,17,18,19, Pocket D3, C1, C2, B2, B3 : 30 : Sadar Colony, Block J and H are covered (as per the details of he house / flats numbers provided in the EB list).
That being the case the question which now arises for determination before this court is not relating to challenge to law regarding the delimitation of a constituency, nor does it pertain to the correctness of the electoral roll. The short issue in dispute is whether the officers of the Respondent No. 1 i.e. State Election Commission which include the Returning Officer have correctly carried out the process of carving out the Ward No. 21 in accordance with the notification of the Administrator No.F.7(367) (8)/2002/UD/2141 dated 7.2.2007 and the answer obviously is 'No'. An absolutely frivolous objection with regard to the bar to jurisdiction of this court has been raised by the respondent no. 1 apparently in an attempt to wriggle out on technical grounds which plea is rejected being devoid of merits.
The Third objection raised by the Returning Officer is that he is under no legal obligation to carry out the physical : 31 : verification of the area while carving out/ demarcating the ward. It has been observed that the stand of the State Election Commission in all the Election Petitions pending before this court has been very consistent and clear and which is, that the power to carry the physical verification of the area while conducting the demarcation of the ward is implicit in the nature of duties and no separate order regarding physical verification is required to be issued. The said stand of the Commission is not only reasonable and appeals to logic but is also legally sound since demarcation exercise is not required to be done only on papers but it actually involves a physical verification of the area carved out and specified in the delimitation notification/ order which exercise in the present case has obviously not done. The Returning Officer on the basis of the authentication made on the electoral list and the Key Plan by his own ARO of the concerned segment without any application of mind, has mechanically proposed setting up of Polling Stations in respect of non existing Pockets bearing numbers B4, C4 and C5 : 32 : which proposal was duly approved by the State Election Commission.
What has shocked this court is the fact that areas which do not exist either in the Municipal Layout Plan; not mentioned in the delimitation notification and the orders issued by the NCT of Delhi and State Election Commission have not only been added in Ward no. 21, Rohini but even the polling stations have been set up by the State Election Commission in respect of the said area. This in the considered opinion of this court is a very serious procedural aberration committed by the officers of the respondent no. 1.
The provisions of Section 17 (1) (d) (iii) and (iv) of the DMC Act specifically provide that any improper acceptance of any vote or non compliance of the provisions of this Act or any Rules or Order made there under which materially affects the result of the elections and in so far as the returned candidate is concerned can be a ground on the basis of which the election of a returned candidate can be declared void.
: 33 : The entire record of the election in respect of Ward No. 21 has been placed before this court by the respondent no. 1 which has not been disputed by any of the parties which I have duly perused. I have also gone through the registers of the polling officers and the marked electoral list which shows that pursuant to setting up of polling station in respect of Pocket B4, C4 and C5 votes have also been casted which votes obviously should not have been accepted. Therefore, not only have the officers of the respondent no. 1 not complied with the orders/ rules made under the act but by setting up polling stations for non existing segments and also segments not covered by the order/ notification dated 7.2.2007 the votes which otherwise could not have been even casted, have been wrongly accepted. By doing so a mockery has been made of the entire democratic process. In view of my aforesaid discussion I hereby hold that the orders of the Administrator dated 7.2.2007 has been violated by the respondent no. 1 Commission resulting into the setting up of polling stations : 34 : in segments not covered by the aforesaid notification in respect of non existing segments/ areas, resulting into improper acceptance of votes. I therefore set aside the result of the election in respect of Ward No. 21 Rohini (North) in respect of election held on 5.4.2007 which result was declared on 7.4.2007.
Issue is accordingly disposed off.
Issue no. 2 Whether the respondent no 3 has violated the stipulated norms with regard to the Election expenditure as claimed in the petition?
Issue no. 3 Whether there has been a violation of the Model Code of Conduct as claimed by the petitioner in the petition in paragraph 9 to 12? If yes, its effect.
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the election petitioner. It has been alleged by the election petitioner that the respondent no. 3 who is the returned candidate has violated the Model Code of Conduct whose complaint has been made to the State Election Commission despite : 35 : which the Commission has failed to take a fair inquiry on her complaints.
I have considered the submissions made before me and also the written arguments filed on behalf of both the parties. The Ld. Counsel appearing on behalf of the election petitioner has vehemently argued that the election of the respondent no. 3 is liable to be set aside for her having violated the Model Code of Conduct. He has argued that as per the stipulated norms the candidate cannot use and utilize posters, banners, stickers, jhandis/ flags etc. during the elections whereas RW1 has admitted using the same. It is also stated that the size of the hoardings put by the respondent no. 3 on her office was more than 6 x 4 feet as permissible under the norms and more over she had opened more than one election office whereas she should have opened only one. It is further contended that the respondent no. 3 has also used more than three vehicles for her publicity campaign which she cannot do as per the existing norms and conduct. Also, she can utilize only : 36 : one table and two chairs per booth but admittedly she utilized to tables in front of polling stations. It is further pointed out that the respondent no. 3 had spent Rs. 2 lakhs whereas according to the norms and code she can only use a maximum of Rs.1,50,000/.
It is evident from the aforesaid that the following violations of the Model Code of Conduct have been alleged against the respondent no.3 by the election petitioner:
1. She freely used more more than three vehicles for advertisement and publicity.
2. She has used more than one offices for campaigning and publicity in the elections for herself.
3. She has used more than two hoardings which are more than
6 x 4 feet in size and that she has violated the directions of the State Election Commission by using the posters, banners, stickers, jhandis/ flags etc. and has also used loud speakers on autorikshaw used for transportation of goods for her publicity/ canvassing during the elections.
: 37 :
4. On the day of the election i.e. on 5.4.2007 she has used more than two tables and 30 chairs and that too at the distance of less than 100 feet from the polling station.
5. She has submitted the incorrect report of expenditure to the State Election Commission having spent more than Rs.2 lacks for her publicity and campaigning etc. In order to substantiate her allegations, the election petitioner has examined herself as PW1 wherein she has corroborated what has been earlier stated by her in the election petition. She has also examined one Vimal Bansal a Photographer in the newspaper 'Apni Dilli' who has proved the photographs of the alleged violations committed by the respondent no. 3 which he had clipped from his official camera. The respondent no. 3 on the other hand has examined herself in rebuttal wherein she has denied the various allegations made by the petitioner.
: 38 : Firstly the respondent no. 3 has in her cross examination admitted that she had opened one office at Pocket - A3/44, Sector 17, Rohini but according to her this office had been opened after filing of her nominations which office may be 10 x 10 or 12 x 12 feet size. She has also admitted the photographs of the Community Center at Sector 16 Rohini but according to her Sh. Jai Bhagwan Aggarwal the MLA of Badli Vidhan Sabha from BJP, Sh. Kulwant Rana MLA from Shahbad Daulatpur and Sh. Vijender Gupta who had contested the elections from Rohini used to sit in the Community Center, Sector - 16, Rohini. Respondent No. 3 has also admitted that the photographs Ex.PW2/3 and Ex.PW2/4 shows her banners but according to her these banners have not been put by her.
Secondly in so far as the allegations of using more than two vehicles for campaigning are concerned it is evident from the crossexamination of RW1 that she had paid for the vehicle bearing no. DL2CF0803 vide voucher no. 9 dated 23.3.3007;
: 39 : voucher no. 11 dated 24.3.2007; voucher no. 15 dated 25.3.2007; voucher no. 17 dated 26.3.2007; voucher no. 21 dated 27.3.2007; voucher no. 29 dated 29.3.2007; voucher no. 35 dated 31.3.2007; voucher no.40 dated 1.4.2007; voucher no. 46 dated 2.4.2007; voucher no. 58 dated 4.4.2007; voucher no. 64 dated 5.4.2007 and voucher no. 66 dated 7.4.2007. RW1 has stated that she had obtained the requisite permission for using the three vehicles whose numbers she does not remember but the said permission from the State Election Commission regarding use of the other vehicles has not been placed on record for which an adverse inference is liable to be drawn against her. It is evident from the crossexamination of RW1 that she has admitted to using Maruti - 800 bearing No. DL3CN8643 for her election purposes which vehicle according to her belong to her husband and she has paid Rs.500/ for petrol vide voucher no. 17.3.2004. She has also admitted to paying for the vehicle HR565416 vide voucher no. 60 dated 5.4.2007 which vehicle was used only on 4.4.2007 and : 40 : 5.4.2007. She further admits to using vehicle bearing no. DL 41H4732 as shown in photograph Ex.PW2/6 and PW2/7 during the election period.
Thirdly the respondent no. 3 has denied putting life size banners as alleged by the election petitioner though she admits that she has used banners, posters, stickers, jhandis/ flags etc. in her elections. According to her, the photographs Ex.PW2/3 and Ex.PW2/4 show her banners but she cannot tell who had put the same. She has also denied that she had used hoardings of more than 6 x 4 feet size. Fourthly the respondent no. 3 has denied having used more number of tables and chairs less than 100 feet away from the polling station on the day of elections on 5.4.2007. Lastly she has denied giving incorrect record of the expenditure incurred by her during her election campaign.
It is, therefore, evident that the respondent no. 3 has admitted that she had used more than 3 vehicles during campaigning in respect of which she had even submitted vouchers : 41 : which vehicles are bearing no. DL2CF0803, DL41H4732 as shown is photographs Ex.PW2/6 and Ex.PW2/7; HR565416 which was used on 4.7.2008 and 5.4.2008 and vehicle no. DL 3CN8643. It is also proved that she had opened two offices i.e. at A3/44, Sector 17, Rohini and another at Community Center, H Block, Sector 16, Rohini where the BJP MLA's and Councillors of the adjoining ward used to sit, which community center bears her hoarding proving that the BJP workers and office bearers were using the community center which is a public place. The various photographs showing a number of banners, posters, jahndis/ flags etc. not only upon the vehicles including the autorikshaw but also upon the roads with loud speakers installed on it for publicity which photographs have been duly proved to which there is no effective rebuttal by the respondent no. 3. Therefore, in view of the above I hereby hold that the election petitioner has duly proved that there has been a violation of the Model Code of Conduct in so far as using more number of vehicles, using live size hoardings, : 42 : opened more than one office, using banners, posters, stickers, jhandis/ flags etc. and other material during canvassing are concerned, yet despite the aforesaid there is little that this court can do this stage since the Model Code of Conduct is a document meant only for guidance of political parties and candidates. Model Code of Conduct was evolved with the consensus of political parties in India with an intent to strengthen the roots of political system in our country. Apparently, it has no statutory backing and many of its provisions are not legally enforceable and it is the political parties who have themselves consented to abide by the principles embodied in the said Code and therefore it binds them to respect and observe it in letter and spirit. Therefore, it is only the public opinion which is the moral sanction for the enforcement of the Model Code of Conduct due to which reason the Election Commission ensures its observance by the political parties and their candidates in discharge of its Constitutional obligations of superintendence, direction and control of elections as provided : 43 : under Article 324 of the Constitution of India.
The Model Code of Conduct covers in detail the important aspects of electioneering like meetings, and processions, speeches and slogans, posters and placards etc. and is only in the nature of an appeal to the political parties and their candidates to observe a minimum standard of conduct and behaviour to ensure free and fair elections. The Model code existing as on date, lays stress on certain minimum standards of good behaviour and conduct of political parties, candidates, their workers and supporters during the election campaigns apart from how a public meeting, procession by the political parties and candidates are required to hold and how the political parties should conduct themselves on the polling day at bolling booths. The Election Commission had in the mid of 1980's suggested that certain provisions of the Model Code should be given statutory sanction by bringing them on the statute book. The Goswami Committee on Electoral Reforms also went into the matter and enumerated : 44 : certain items which should be brought within the ambit of the electoral law making a violation thereof an electoral offence but later in the year 1990 the Election Commission changed its mind and was then now of the view that bringing the Code on the statute book would be defeating the measure because any violation of the Code must have a quick reaction and remedial measure which may not be possible if the matters are taken to the courts and become a subject of examination in a regular judicial process. The Election Commission also felt that any judicial pronouncement after the election is already over would have a little relevance and it accordingly withdrew its earlier recommendations to the Code as a statutory backing.
Be that as the case may be, Model Code of Conduct may not have a statutory backing, but does that absolve the State Election Commission from performing its constitutional obligation of ensuring free, fair and clean elections. Incidents of voters being subjected to all kind of inducements, evil practices, tempting : 45 : offers or a candidate misusing and abusing his authority are not rare. Can, then the Election Commission abdicate its constitutional obligation when confronted with such a violation. The answer obviously is 'No'. The Election Commission is armed with sufficient authority and jurisdiction to hold any inquiry, take necessary steps, issue any directions or orders to ensure purity in elections by appropriately dealing with the violations. Why then in the present case the officers of the State Election Commission on being informed about the alleged violations by the election petitioner even prior to the date of polling did not do all that was required and expected?
The records of the election commission placed before this court reveal that rather than immediately sending an observer or making independent inquiries regarding the correctness of the allegations the State Election Commission instead chose to confront the respondent no. 3 the alleged violator, with the said allegations after the elections were over who naturally denied the : 46 : same. No effort whatsoever was made to gather independent information and the complaint was casually brushed under the carpet. The Model Code of Conduct is a sacrosanct document which all political parties, candidates, workers are required to honour. The Constitutional obligation cast upon the Election Commission is to ensure its compliance in letter and spirit and that its violation does not go unnoticed, unattended or unpunishable (in case if the alleged violations has a statutory backing).
Though legally the election of the returned candidate cannot be set aside by the court on the ground of violation of the Model Code of Conduct yet the courts of law are not helpless. Suitable directions/ orders can always be passed against the Election Commission to compel them to act and full their constitutional obligation. The significance of the Model Code of Conduct is essential during the period of elections and therefore it is necessary that on receipt of any complain the Election Commission should immediately intervene and take steps to set at : 47 : rest the controversy raised by the rival parties.
Perusal of the record placed before this court by the State Election Commission show that the election petitioner approached the Election Commission, the Commissioner of Police and the Deputy Commissioner of Police concerned on 4.4.2007 with the complaint regarding the respondent no. 3 having opened more than one office and particularly the BJP office bearers using the public premises i.e. Community Center as their election office. She has also made allegations against the respondent no. 3 of putting banners which were more than the required size and of using more than permissible number of vehicles in election campaign. It is apparent from the evidence on record that in so far as the allegations of the respondent no. 3 putting her life size banners, posters, stickers, jhandis/ flags etc. are concerned the photographs placed on record which have been duly proved by PW2 which show that not only has there been a violation of the Model Code of Conduct but also there was sufficient defacement : 48 : of the public property. This being the case was it not necessary for the Election Commission to have immediately got a spot inquiry conducted to ensure that remedial measures were taken and if necessary even to get an FIR under the provisions of West Bengal (Prevention to Defacement of Public Property) Act, 1976 registered against the respondent no. 3 which unfortunately has not been done. This court is rather shocked at the manner in which the complaint of the candidate with regard to the violation of the Model Code of Conduct has been dealtwith. The Election Commission cannot be causal to this kind of complaint since there is an obligation cast upon it to ensure the purity and cleanliness of the electoral process.
The election petitioner has also alleged that the respondent no.3 exceeded her expenditure. It is evident from crossexamination of PW1 that she has admitted that she did not get any assessment done with regard to the expenditure incurred by the respondent no. 3. Further, the day to day vouchers of the : 49 : expenses submitted by the respondent no. 3 to the State Election Commission have also been duly placed on record by the State Election Commission which I have perused. It is evident that the respondent no. 3 had incurred a total expenditure of Rs.82,322/ and as per the amended DMC (Election of Councillors) Rules and the the maximum expenditure allowed during the election is Rs.1,50,000/ and therefore I hold that the petitioner has failed to substantiate and prove her allegations that the respondent no. 3 had submitted an incorrect account of her election expenditure.
In view of the aforesaid I hereby hold that the respondent no. 3 returned candidate has not violated the stipulated norms with regard to the election expenditure. She, however, has violated the Model Code of Conduct which violations does not affect the validity of her elections the same having no statutory backing.
Issue is disposed off accordingly.
: 50 : Issue no. 4 Whether the election of the respondent no. 3 for Ward no. 21 is liable to be declared null and void?
Onus of proving this issue was upon the election petitioner. In so far the allegations of violation of Model Code of Conduct are concerned the election of the respondent no. 3 cannot be set aside as the Model Code of Conduct does not have a statutory backing. However, it is evident that the officers of the respondents Commission have committed a serious procedural aberration and illegality due to which the results of the election held on 5.4.2007 in respect of Ward No. 21 Rohini (North) which result declared on 7.4.2007 has been set aside. This illegality having been brought before the State Election Commission, be it even one day prior to the date of polling, was it not necessary for the State Election Commission to take necessary action. I am surprised at the manner in which the issue has been lightly dealt with.
: 51 : There is no denial that elections not only consume a lot of time but also involve a huge burden on the State Exchequer. Does it not bother us at all? Faced with this kind of a situation this court is left with only two options firstly to declare the election for the entire Ward, void in view of the non compliance by the respondent no. 1 to the orders passed under the Act and also on account of improper acceptance of votes from the nonexisting segments. Secondly if possible to segregate the result of the non existing segments and thereafter to ascertain as to whether the result in so far as the returned candidate is concerned has been materially affected or not.
Declaring the election to be void in the considered opinion of this court would be the last option. Therefore, the issue no. 4 is hereby left open and I hereby direct the State Election Commission to redraw the results to the Ward No. 21 i.e. Rohini (North) after deleting the votes from the nonnotified and non existing segments in case if the segregation of the same is possible.
: 52 : This exercise should be done by the officers of the respondent no. 1 after giving a prior notice to all the candidates to the elections and preferably in the presence of the candidates/ their representatives within a period of 10 days from today. The parties to the election petition shall be at liberty to place their objections if any before this court on the next date of hearing. It is clarified that in case if the State Election Commission is of the view that it is not possible to segregate the said segments, then no exercise of redrawing the results should be done and the Election Commission shall accordingly inform this court about the same on the next date of hearing.
Before parting it is necessary to observe that mockery has been made of the entire democratic process and the authorities responsible appear to be unconcerned. This being so, there are chances of the illegality being further perpetrated and therefore all the more desirable that the State Election Commission should take immediate remedial action and necessary steps in order to prevent : 53 : its repetition.
With these observations I direct that the original records of the election placed before this court be returned to the respondent no. 1 against proper receipt for purposes of compliance with further directions to refile the same before this court on the next date of hearing i.e. 5.12.2008. Copy of this order be immediately sent to the State Election Commission for information and necessary action.
Announced in the open court (Dr. KAMINI LAU)
Dated: 22.11.2008 Addl. District Judge: Delhi
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Saroj Anand Vs. Election Commission
22.11.2008
Present: Counsel for the election petitioner.
None for the respondents.
Vide my separate detailed order dictated and announced in the open court, the issues no. 1, 2 and 3 have been disposed off whereas the issue no. 4 has been left open to be decided on the next date of hearing after the report of the State Election Commission.
The respondent no. 3 is held to have violated the Model Code of Conduct but her elections cannot be set aside on the said ground in view of the fact that the Model Code of Conduct does not have any statutory backing. Further, the officers of the respondent no. 1 have committed a procedural aberration and serious illegality in violation of the provisions of the Act, Rules and Orders as a result of which the votes have been improperly accepted in view of which the elections held on 5.4.2008 in respect of Ward no. 21 Rohini (North) (which results were declared on : 55 : 7.4.2007) is set aside.
Case is listed for report of the State Election Commission and its consideration for 5.12.2008. Copy of the detailed order is directed to be sent to the State Election Commission for purposes of compliance and necessary action.
ADJ: DELHI 22.11.2008 : 56 :