Delhi District Court
Sh Rajan Tewari vs Sh Pramod Tanwar on 8 October, 2012
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IN THE COURT OF SH. DAYA PRAKASH,
ADJ03 (SOUTH WEST): DWARKA COURT COMPLEX: DELHI
Suit no. 376/12
Sh Rajan Tewari
S/o sh Ramesh Tiwari
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
4 Sh Anoop Vashisth
643 WZ Block Naraina Village
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New Delhi
5 Sh Dharam Pal
s/o Sh Jagdish Singh
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
Date of Institution: 376/12
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Date on which order was reserved: 4/10/2012
Date on which order was passed : 8/10/2012
JUDGMENT:
1. By this judgement I shall disposed of the election petition u/s 15 of the Delhi Municipal Corporation Act r.w.sec the Delhi Municipal Corporation ( Election of Councillors) Rules as amended upto Date, challenging the Election of Respondent no.1 as a Councillor from Naraina , Ward no 152, as held on 15/4/2012.
2. The relevant facts for disposal of this petitions are that vide a notification, the election Commissioner of the NCT of Delhi called upon the three corporations as 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 Returning Officer in respect of the Ward no. 152 Naraina Ward i.e the ward the subject matter herein. As notified , the election program was as under:
a) Last date of making nomination : 26/3/2012
b) The date for scrutiny of nomination : 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 -:4:-
e) The date on which counting shall taken place : 17/4/2012 Petitioner is citizen of India and 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 disqualified for the membership of the Corporation and therefore the respondent no.1 cannot be the Councillor of the Corporation as he is holding an office of profit under the Government as defined under the DMC Act. The provisions of section 9(1) (g) of the DMC Act reads as "A person shall be disqualified for chosen as and for being a Councillor....If he hold any office of profit under the Government or Central Government" . Petitioner further states 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 dtd 26/4/2012 from the office of Assistant commissioner / PIO (SW), Food and Supply Department Government of NCT of Delhi. Petitioner further states that in view of petitioner having a kerosene Oil depot and holder of a licensee of depot he was not competent to participate in MCD elections. Petitioner states that he filed RTI and reply dated 26/4/2012 reads as "Proprietor of M/s Tanwar KOD is Mr Pramod Kumar, resident of WZ 908 B, CB, Naraina, New Delhi and answere no.3, certified photocopy of license of M/s Tanwar KOD Lic No, 3768 is enclosed." Petitioner filed the copy of the license which shows name , photograph, residential address and other details pertaining to M/s Tanwar KOD and its proprietor Mr Pramod Tanwar besides -:5:- clearly mentioning that the said license is valid upto 13/11/2019. Petitioner further states that Hon'ble High Court of Delhi in GNCTD Vs. Shyam Sunder Goel Writ Petition Civil no. 6406/2008 that holding of KOD license amounts to holding of office of profit and is a disqualification for membership of the corporation. The Hon'ble High Court of Delhi in Sunder Vs. Ramesh Dutta and others Writ Petition Civil no. 8784/2008 set aside the election of the returned candidate on the ground that he was disqualified to be chosen as Councillor under the DMC Act. Petitioner further states that all 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. In the nomination papers he clearly 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. Hence petitioner states in the affidavit furnished by respondent no.1 had solemn affirmation 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. Rather in a surreptitious and a clandestine manner the respondent no.1 has stated himself to be trader of kerosene oil. At point 7(a) of the affidavit petitioner states that it was the duty of respondent no.1 to disclose about holding of his license of kerosene oil depot -:6:- in his affidavit. It further states that kerosene oil depot is an asset for the purpose of nomination form for the elections. Petitioner states that the affidavit to be furnished with the nomination papers is part of the nomination paper. Petitioner states that by act misinformation or suppression of material facts respondent no.1 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 in this respect. Petitioner further states that even after filing of his nomination 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 states that in answer to 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 . 500 liters of kerosene oil has been delivered at M/s Tanwar KOD on 24/4/2012. Petitioner states by willful suppression and getting elected despite having office of profit is a corrupt practice by creating undue influence in the minds of the voters attached to his KOD. Petitioner further states that respondent no.1 is also liable for criminal prosecution for violations punishable under section 176 and 181 of the Indian Penal Code. Petitioner further states 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 -:7:- Rules vide receipt no. 6002 dtd 25/4/2012. Hence petitioner seeks that this court declare the election of respondent no.1 as Councillor MCD from Ward no 152 Naraina North MCD as null and void.
2. Respondent duly served and filed their respective written statements.
3. Respondent in his preliminary objections states that present petition has been filed on the basis of decisions in GNCTD Vs. Shyam Sunder Goel and in Ramesh Dutta's case. Both these judgements are not applicable in the present case as the Hon'ble High Court has passed these judgments without considering and discussing the judgements of Hon'ble Supreme court in Ranjeet Singh Vs. Harmohinder Singh Pradhan 1999 (4) SCC 517 and Padrath Mahto Vs. Misri Sinha ( AIR 1961 SC 480). It is further stated that there is no cause of action in filing the present petition and same be dismissed u/s 7 Rule 11 CPC . It is further stated that petition is not maintainable because section 33(3) of the DMC Act which is corresponding to the article 243 V of the Constitution of India, envisaged that the question whether such disqualification has been incurred or not, has to be referred for decision of the Administrator whose decision is final. It is further stated that present petition is bad for non joinder of necessary parties like State Election Commissioner , Returning Officer and candidates who withdrew their nomination. Advocate of defendant states that Hon'ble Delhi High Court in Dr V P Dhingra Vs. Nihal Singh and others AIR1985 Delhi 8 &Praveen Kumar Vs. Mohd Naushan & Ors 2011 (181) DLT 698 wherein it has been held that the candidates who withdrew their nominations are also necessary parties to the election petition and their non -:8:- joinder leads to the dismissal of the election petition. Respondent denies that he was disqualified for the membership of the corporation as he was holding the office of profits. Respondent no.1 further denies that KOD is office of profits and the judgment cited by the petitioner is not applicable as Hon'ble High court of Delhi has not considered the relevant judgement on this point. Respondent no.1 further states that after wining election but before taking oath and joining, respondent withdraw the said KOD to the concerned department in order to avoid any controversy in this respect . Hence respondent n o.1 has not committed any violation of the laws and rules of the election. It is further stated that respondent no.1 has not concealed any material facts in his nomination and affidavit that he is trader of kerosene oil and a trader of kerosene oil cannot be done without a license from the capable authority. Hence respondent no.1 has given true and material facts at the time in his affidavit alongwith his nomination.
4. Respondent no. 3 and respondent no. 5 in their separate written statements states that the present petition has been filed by one of the contesting candidates to challenge the election of MCD Counselor from Ward no 152 of the respondent no.1 the returning candidate being suffered from disqualification as per section 9 of the DMC Act. It is further submitted by respondent no.3 that the contents of the petition as well as the documents relied upon in support of the petition are sufficient to prove the disqualification suffered by respondent no.1 and his election is liable to be declared to be null and void.
5. Respondent no.4 in his written statement states that the present petition -:9:- relates to the respondent no.1 and therefore, do not want to file any reply being matter of record.
6. Respondent no.6 in his written statement states that the present petition filed by the petitioner is without any cause of action and the same be dismissed.
7. Respondent no. 9 in his written statement states that the petition filed by the petitioner is an abuse of process of court as petitioner has concelared the particulars , mispresented facts before this court and the present petition is not maintainable in the eyes of law and same is filed just to harass the respondents.
8. From the pleadings of the parties, following issues were framed on 4/10/2012:
i) Whether the petition filed by the petitioner is liable to be rejected u/o 7 Rule11 CPC? .... Onus on respondent no.1
ii) Whether plaintiff is entitled to relief as claimed in the petition? ....OPP
9. Since issues are totally legal, parties do not want to lead evidence. Thereafter arguments heard and both the counsel filed their written arguments respectively.
10. It is alleged by the petitioner that petitioner alongwith others had filed their respective nominations by 26/3/2012 and thereafter scrutiny of nominations was carried out by the returning officer. Before the last date of withdrawal of nominations two persons have withdrawn their respective nominations from the election to the ward no. 152 Naraina , MCD. It is further alleged that petitioner respectfully firstly and foremost submit that as per the provisions of Section 9 of the DMC Act, the respondent no.1 was disqualified for the membership of the Corporation and -:10:- therefore, the respondent no.1 cannot be Councillor of the Corporation as he was holding an office of profit under the Government as defined under the DMC Act. Petitioner further states 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 dtd 26/4/2012 from the office of Assistant commissioner / PIO (SW), Food and Supply Department Government of NCT of Delhi. Petitioner further states that in view of petitioner having a kerosene Oil depot and holder of a licensee of depot. Petitioner states that he filed RTI and reply dated 26/4/2012 reads as "Proprietor of M/s Tanwar KOD is Mr Pramod Kumar, resident of WZ 908 B, CB, Naraina, New Delhi and answere no.3, certified photocopy of license of M/s Tanwar KOD Lic No, 3768 is enclosed." A copy of the said license supplied through RTI response shows 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. Petitioner further argue that in reply dtd 10/7/2012 of the respondent no.1 it is clear from the admission of the respondent no.1 that he was well aware that Kerosene Oil depot is an office of profit for the purpose of " contesting election" to the office of Councillor and a Councillor. Petitioner further states that Hon'ble High Court of Delhi in GNCTD Vs. Shyam Sunder Goel Writ Petition Civil no. 6406/2008 that holding of KOD license amounts to holding of office of profit and is a disqualification for membership of the corporation. The -:11:- Hon'ble High Court of Delhi in Sunder Vs. Ramesh Dutta and others Writ Petition Civil no. 8784/2008 set aside the election of the returned candidate on the ground that he was disqualified to be chosen as Councillor under the DMC Act. Petitioner submits that Ld. counsel for the respondent relied upon the judgement of Ranjit Singh Vs. Harmohinder Singh 1999 (4) SCC 517 and in this regard ld. counsel for the petitioner submits that the said judgement of the Apex Court deals with interpretation of Section 9 A of the Representation of the People Act. It is further submitted by ld. counsel for petitioner that respondent no.1 had admitted that he was possessing the kerosene Oil Depot license at the time of filing his nomination paper, during the election and thereafter also. It is further alleged that the respondent no.1 has filed the application for surrender of his kerosene oil depot license only on 28/4/2012, a letter to withdraw kerosene oil was written on 28/4/2012 by respondent no.1 which got received only on 14/5/2012 , hence respondent no.1 has clearly admitted and acknowledged that he was disqualified to be chosen as and for being a Councillor. It is further alleged that in the light of unambiguous , clear and express admission made by the respondent no.1 the election of the respondent no.1 is fit to be declared void in view of section 17(1) (a) of the DMC Act. Petitioner further states that all 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 ( moveable 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. In -:12:- the nomination papers he clearly 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. Hence petitioner states that in the affidavit furnished by respondent no.1 had solemn affirmation 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. Rather in a surreptitious and a clandestine manner the respondent no.1 has stated himself to be trader of kerosene oil. At point 7(a) of the affidavit petitioner states that it was the duty of respondent no.1 to disclose about holding of his license of kerosene oil depot in his affidavit. Petitioner further states that kerosene oil depot is an asset for the purpose of nomination form for the elections. Petitioner states that the affidavit to be furnished with the nomination papers is part of the nomination paper. Petitioner states that respondent no.1 has violated the directions/ rules/ norms applicable to the conduct of elections. It is submitted that kerosene oil depot is an " asset" for the purpose of nomination form for the elections. Petitioner further submits that the affidavit to be furnished alongwith the nomination paper in terms of the judgement of PUCL Vs. Union of India had been adopted by the State Election Commission , Delhi.
11 Regarding application u/o 7 Rule 11 CPC , ld.counsel for the petitioner submits that candidates namely, Ram Kumar Tanwar and Sh Vikas Tanwar are not the candidates as they have not gone to the public and hold themselves as prospective candidates. It is further submitted that respondent no.1 relied upon the judgement of -:13:- Praveen Kumar Vs. Mohd Naushad which in turn had relied upon Dr V.P.Dhingra Vs. Nihal Singh. Ld. counsel for the petitioner has relied upon the following judgements:
i) Shiv Chand Vs. Ujagur Singh AIR 1978 SC 1583
ii) Raj Kumar Shukla Vs. Xth Additional District Judge Lucknow and others AIR 1995 Allahabad
12. Petitioner further states that even after filing of his 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 states that in answer to the RTI response dtd 26/4/2012 it is stated that " as per computer data base quta of kerosene of march 2012 is 420 liters and of April 2012 is 500 liters of M/s Tanwar KOD . 500 liters of kerosene oil has been delivered at M/s Tanwar KOD on 24/4/2012''. Petitioner states by willful suppression and getting elected despite having office of profit is a corrupt practice by creating undue influence in the minds of the voters attached to his KOD. Petitioner further states that respondent no.1 is also liable for criminal prosecution for violations punishable under section 176 and 181 of the Indian Penal Code. Petitioner further states 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 seeks -:14:- that this court declare the election of respondent no.1 as Councillor MCD from Ward no 152 Naraina North MCD as null and void.
13. In the written argument it is alleged by counsel for the respondent no.1 that respondent no.1 was successfully elected as Muncipal Councillor from the Ward no. 152 of Naraina, in Municipal Elections for the term of 20122017. It is alleged by counsel for respondent no.1 that the petitioner has filed the present petition on the basis of decisions in GNCTD Vs Shyam Sunder Goel and in Rameh Dutta's case which are not applicable to the present case firstly because in Shyam Sunder Goel's case, as apparently reflected from the perusal of the said judgment, it was not the issue before the Hon'ble Delhi High Court whether kerosene oil depot is office of profit or not but as reflected from the para no.1 of the judgement, it was an issue before the Hon'ble Delhi High Court about the eligibility of an elected Councillor to hold, after being so elected, a kerosene oil depot issued by Govt. of NCT. Furthermore, the citations of Ramesh Dutta's case would not be any help as there is no suppression of material fact in the nomination paper, otherwise it would amount to the violation of the fundamental right of the respondent no.1 as enshrined under article 19 and 21 of the Constitution of India, if he has been compelled to relinquish or forgo his right of livelihood prior to the joining of post of Councillor. It is further alleged that the judgments passed in Shyam Sunder Goel's case and Ramesh Dutta's case, are bad in law as Hon'ble Delhi High Court has passed the said judgment without considering and discussing the judgements of Hon'ble Supreme Court in Ranjeet Singh Vs. Harmohinder Singh Pradhan 1999 (4) SCC -:15:- 517 and Padrath Mahto Vs. Misri Sinha ( AIR 1961 SC 480). It is further alleged that the present petition is not maintainable as it does not disclose even the prima facie cause of action. It is further stated that there is no cause of action in filing the present petition and same be dismissed u/s 7 Rule 11 CPC . It is further stated that petition is not maintainable because section 33(3) of the DMC Act which is corresponding to the article 243 V of the Constitution of India, envisaged that the question whether such disqualification has been incurred or not, has to be referred for decision of the Administrator whose decision is final. It is further stated that present petition is bad for non joinder of necessary parties like State Election Commissioner , Returning Officer and candidates who withdrew their nomination. Advocate of defendant states that Hon'ble Delhi High Court in Dr V P Dhingra Vs. Nihal Singh and others AIR1985 Delhi 8 &Praveen Kumar Vs. Mohd Naushan & Ors 2011 (181) DLT 698 wherein it has been held that the candidates who withdrew their nominations are also necessary parties to the election petition and their non joinder leads to the dismissal of the election petition. It is further alleged that the petition filed by the petitioner is abuse of process oflaw as the petitioner contained vague avernments with regard to the alleged suppression and misrepresentation of some facts which have also been misconstrued by the petitioners. It is further alleged that petitioner has not filed the petition in accordance with the procedure and rules prescribed under the Delhi Municipal Corporation Act. ld. counsel for the respondent no.1 relied upon the following judgments:
i) Ranjeet Singh Vs. Harmohinder Singh 1999 AIR (SC) 1960 -:16:-
ii) Ram Padarath Mahto Vs. Mishir Sinha 1961 AIR (SC) 480
iii) Suganthi Suresh Vs. jagdeeshan 2002 AIR (SC) 681
iv) Consumer Ed. Research Society Vs. UOI 2009 (9) SCC 648
v) V.P.Dhingra Vs. Nihal Singh & Ors 1985 AIR (DEL) 8
vi) Meera Kanwaria Vs. SEC 2004 (1) AD (DEL) 554
vii) Praveen Kumar Vs Mohd Naushad & Ors 2011 (181) DLT 698
viii) PUCL Vs. UOI 2003 AIR (SC) 2353
ix) Jitender Bahadur Singh Vs. Krishna Behari 1970 AIR (SC) 276
x) L.R Shivaramagowda Vs. T.M Chandrashekar 1999 AIR (SC) 252
xi) Gajanan Raghobaji Pratap Vs Dattaji Raghobaji Meghna 1995 AIR (SC) 2284
xii) Samant N Balkrishna Vs, George Fernandez 1969 AIR ( SC) 1201
14. I have seen the file , documents, evidence on record and my findings with respect to issues are as follows: REGARDING ISSUE NO. 1
15. Respondent No.1 has stated that petition filed by petitioner is not maintainable as it does not disclosed even prima facie cause of action and then means orders under order 7 Rule 11 CPC to state that on the the ground mentioned under order 7 Rule 11 CPC petition of the petitioner be rejected.
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16. On the other hand, advocate of petitioner states that there is no legal bar to the presentation of petition. It is further stated on the face of it perusal of petition shows it has cause of action.
17. I have seen bare petition which is to be seen for the purpose of grounds under order 7 Rule 11 CPC. Bhau Ram Vs. Janak Singh and others SLP (C)36006 of 2010 dtd 20/7/2012. Bare perusal of petition shows cause of action and on the face of it there is no legal defect in the petition.
18. Respondent No.1 states that all the candidates to the election were not impleaded as petitioners or respondents. Hence, the present petition filed by the petitioner is not maintainable in view of section 15 (3) of the DMC Act, 1957. Advocate of respondent No.1 states that petitioner intentionally failed to implead two candidates namely Ram Kumar Tanwar and Vikas Tanwar who withdrew their nomination as respondents. It is further stated by advocate of defendants that in view of judgment of Hon'ble High Court in Dr. V.P. Dhingra Vs. Nihal Singh & Ors. 1985 AIR(DEL) 8, Praveen Kumar Vs. Mohd. Naushad & Ors. 2011 (181) DLT 698 it was held their lordship of Delhi High Court the candidates who withdrew their nominations are also necessary parties to the election petition and their nonjoinder leads to the dismissal of the election petition for non compliance of the mandatory provision of section 15 (3) of DMC Act. It is further stated that Election Commissioner and Returning Officer are also necessary party which is a constitutional authority appointed by Administrator authority.
19. On the other hand, Advocate of petitioner states that petitioner is required -:18:- to implead only those candidates who seriously contested the election and who themselves held out as prospective candidates. Definition of a candidate is provided under section 89 of the DMC Act (Election of Councilors Rules, 2012) which provides as under:
(a) 'Candidate' means a person who has been or claiming to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when with the election in prospect he began to hold himself out as a prospective candidate;
20. The real questions are whether Sh. Ram Kumar Tanwar and Sh. Vikas Tanwar hold themselves out as prospective candidates. There is no document on record or any material to show that Sh. Ram Kumar Tanwar and Vikas Tanwar hold themselves out as prospective candidates.
21. Of course, it is necessary to implead even the candidate who has been withdrew their candidates, however, that cases is limited where there is an allegation of the corruption or corrupt practice against those candidates who withdrew their nomination. In Shiv Chand Vs. Ujagur Singh and Others Manu/SC/0022/1978 AIR 1978 SC/583, Hon'ble Supreme Court held that an election petition is bad for nonjoinder of the subcandidates where corrupt practice is alleged against return candidates and one & another candidates. In para 3 Hon'ble Supreme Court stated -:19:- that ''Shri....................... was a necessary party since a corrupt practice was imputed to him. In Raj Kumar Shukla Vs. Xth Addtional Districtd Judge, Lucknow and others AIR 1995 ALL. 403 wherein it was held by their lordship of Hon'ble Court that where a candidate withdrew his nomination within the prescribed period failure to implead him does not vitiate election petition as there was no allegation of corrupt practice against withdrawal candidates. Hence, I am of the view that a candidate within the real means a candidate who is shown to be a prospective candidate which is not shown in the present case of withdrawal candidates and there is no allegation of corruption or corrupt practice against withdrew candidates. Hence, said candidates are not candidates in real sense and not necessary party in the present petition.
22. In view of this, the issue decided against the respondent No.1 and in favour of the petitioner and it is held that petition of the petitioner is not liable to be rejected under order 7 rule 11 CPC.
REGARDING ISSUE NO;2
23. I have seen petition, reply, written arguments and judgements cited by both the parties and my inference is that issue be decided in favour of petitioner and against the respondent no.1 on following grounds: AFFIDAVIT
i) It is a fact that all the contesting candidates in the MCD elections are -:20:- required to furnish an affidavit alongwith nomination paper declaring the information about the pending cases and are also required to furnish the details of the assets ( moveable or immovable) of the candidate, spouse and all dependents. It is further a fact that respondent no.1 had filed the nomination alongwith affidavit for the election of the Ward no. 152 Naraina. In the nomination papers he clearly stated that he is not disqualified to contest the elections. The colour copy of the affidavit to be furnished by the candidate alongwith nomination before the Returning Officer has been placed on record. In his nomination papers respondent no.1 has clearly stated that he is not disqualified to contest the election. He has further mentioned in his affidavit 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. Respondent no.1 states that mentioning of trade in kerosene oil is sufficient as kerosene oil cannot be traded without license. It is a law that kerosene oil cannot be traded without license from the Government but question is whether mentioning of mere trade of kerosene oil is a true statement of fact or not. It is an admitted fact that respondent no1 was having a license of kerosene oil on the date of filing of the nomination as well as on the date of declaration of the result by which respondent no.1 was declared successful in the election. Mentioning of trade of kerosene oil without mentioning that license was granted by the Government is a half truth. A half truth is untruth hence respondent no.1 has not given true statement of his having license of kerosene oil at the time of filing of his affidavit of respondent no.1 is false. By mentioning merely trade of kerosene oil respondent no.1 has -:21:- not disclosed the information about his asset truly and intentionally suppressed the material information in the affidavit alongwith nomination paper. In PUCL Vs. UOI 2003 AIR (SC) 2353 the suppression of information in the affidavit has been found to be in violation of instruction issued by the Election Commission and is a ground to declare the election of the respondent no.1 to be void. In the affidavit respondent no.1 was suppressed to give of his asset. Having a kerosene oil license is an asset. Hence by not mentioning the kerosene oil license in the affidavit shows that respondent no.1 has not declared his asset truly and has suppressed vital information in the affidavit. Argument of advocate of respondent no.1 that mentioning of trade of kerosene oil is sufficient and no information has been concealed or suppressed . In my view mentioning of trade is not an office of profit while Kerosene oil depot license is an office of profits. Hence not mentioning of having license of kerosene oil is vital concealment of fact. As per procedure this affidavit has to be placed outside the office of the Returning Officer so that all members of the public/ voters know the information about the candidates by not mentioning having the license of kerosene oil . In my opinion respondent no.1 has mislead the public a large that is voter of his ward and has restrict the choice of voter by not giving the full information about his asset by giving half truth and concealing the facts of having license of kerosene oil depot respondent no.1 has deprived the voters of their fundamental right of information and proper exercise of right of choice. It may be mention that by not stating correctly in the affidavit by respondent no.1 alongwith nomination paper is punishable u/s 176 and -:22:- 181 of IPC since the respondent no.1 has verified affidavit stating that nothing material has been concealed thereform.
ii) Advocate of respondent has stated that section 33 (3) of the DMC Act which is corresponding to article 243 (V) of the Constitution of India envisaged that the question whether such disqualification has been incurred or not, has to be referred for decision of the Administrator whose decision is final. Advocate of respondent no.1 states that this court cannot take the power of returning officer to accept or reject the nomination paper and since the Returning Officer has accepted the nomination of respondent no.1. This court cannot sit over the judgement empowered of the returning officer. In my inference when the returning officer has been given half information that shows that his power of impartial judgment has been restricted by information given of kerosene oil license in the affidavit alongwith the nomination paper.
iii) Hence in my opinion the affidavit filed by respondent no.1 alongwith his nomination paper dtd 26/3/2012 the respondent no.1 has given the false information and suppressed the material facts which has restricted the power and duty of Returning Officer by giving the false information and also half truth in the affidavit alongwith nomination papers has restricted and deprived the voters of their right to information and proper exercise of right to choice due to the concealment of material information and non supply of correct information in the affidavit by respondent no.1.
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24. LICENSE OF KEROSENE OIL
i) Petitioner states that license of kerosene oil depot is an asset . Petitioner further states that respondent no.1 on the date of filing of nomination and affidavit was having a license of kerosene oil depot and was continue with that license even when he was declared successful in his election. Petitioner has placed on record the information response through RTI and has been placed on record at page no 23 to 28 . In page no. 24 at Srl no. 38 kerosene oil depot no. 3768 having in the name of M/s Tanvar KOD being operated from WZ 908B CB Naraina New Delhi. At page no 25 through the RTI there is a reply of Sh Dhirender Kumar Rana , Assistant PIO (SW) , Food and Supply department in answer to query no.1 it is stated that kerosene oil depot holder i.e. respondent no.1 has not surrender license of kerosene oil depot till 26/4/2012 . In question to answer no.2 certified photocopy of License of M/s Tanwar KOD, Lic.No 3768 is enclosed and petitioner filed the same at page no. 28. In response to query no. 4 it is stated that as per computer database Quota of kerosene of march 2012 is 420 liters and of April 2012 is 500 liters of M/s Tanwar KOD . 500 liters of kerosene oil has been delivered at M/s Tanwar KOD on 24/4/2012 . This shows that even after the declaration of the result of respondent no.1, respondent no1 was having a valid kerosene oil depot license granted by Foods and Supply Department , Government of NCT of Delhi.
ii) In reply to the petition respondent no.1 at page no 18 stated "
immediately after declaration of the result , the respondent no.1 on the earliest -:24:- available opportunity, in order to avoid any controversy either on the basis of the said judgment or any other count, filed an application for transferring of the said kerosene oil depot from his name on 26/4/2012. Again on 28/4/2012, the respondent no.1 surrendered the license of the said KOD and in this respect the application dtd 28/4/2012 , alongwith the license in original had been submitted to the office of Food and Supply officer, Circle 38, Delhi Cantt, Delhi as the said KOD was allocated for the area of Delhi Cantt. It is further stated in his reply by respondent no.1 to the petitioner that the respondent no.1 surrendered his license on 28/4/2012, prior to taking of oath and joining the office of Councillor. Hence it is an admitted fact that respondent no.1 has having a license of kerosene oil depot till 28/4/2012 i.e the date of even after the declaration of result of the election . At this stage it is not known whether surrender of license of kerosene oil depot by respondent no.1 has been accepted by the competent authority or not. Fact remains that till 28/4/2012 respondent no.1 was having legal and valid license of kerosene oil depot in his name.
25. WHETHER HOLDING OF KEROSENE OIL IS OFFICE OF PROFIT:
i) Advocate of petitioner states that holding of kerosene oil depot license is an office of profit. Advocate of petitioner further states that respondent no.1 was well aware that license of kerosene oil depot is an office of profit for the purpose of contesting the election. And takes clue from his reply where respondent no.1 states that respondent no.1 surrendered his license on 28/4/2012 prior to taking of oath -:25:- and joining the office of Councillor. These submissions in reply to petition by respondent no.1 clearly shows that respondent no.1 knew at the time of filing of the nomination that holding of license of kerosene oil depot is an office of profit i.e. why respondent no.1 has not mentioned that fact of having license of kerosene oil depot in his affidavit filed alongwith nomination papers. Surrender of license by respondent no.1 on 28/4/2012 prior to taking of oath and joining of office of Councillor shows that respondent no.1 known and has knowledge that holding of license of kerosene oil depot is office of profit.
ii) Advocate of petitioner cited GNCTD Vs. Shyam Sunder Goel Writ Petition Civil no. 6406/2008 wherein it was held by the Lordship of Delhi High Court that holding of kerosene oil depot license amount to holding of office of profit and is a disqualification for membership of the corporation. The relevant extract of the judgement of the Hon'ble Delhi High Court is as follows: This court is unable to accept the explanation of the respondent that despite being elected as a Municipl 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 Counciolor 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 disqualification under section 9 (1) of the DMC Act.
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iii) Advocate of petitioner further cited Shibu Shoren Vs. Dayanand Sahay (2001) 7 SCC 425 wherein it has been held by the Hon'ble Supreme Court 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 submitted that the commission earned by the respondent on the sales made in the fair price shop was sufficient to bring the kerosene oil depot under the expression " office of profit''.
iv) Ld. counsel for petitioner further citied the case of Jaya Bachan wherein 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 non compensatory allowance is attached , is holding an office of profit. Mere use of word ' honorarium ' cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffer driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit.
v) It is further stated that judgement of Hon'ble Delhi High Court in GNCTD Vs. Shyam Sunder Goel and Sunder Vs. Ramesh Dutta and others are binding . Respondent no.1 cannot take to refuge that he was not knowing that holding of license of kerosene oil depot is office of profit. Everybody is suppose to know the law that holding of a kerosene oil depot license by a Municipal Councillors amounted to holding an office of profit and was therefore, a disqualification to -:27:- election as a Councillor.
vi) On the other hand advocate of respondent no.1 states that holding of kerosene oil depot is not an office of profit. Advocate of respondent no1 differentiated both the judgements cited by advocate of petitioners. It is further stated by advocate of respondent no.1 that Hon'ble High Court has not decided the issue of kerosene oil depot as office of profit in these judgements . It is further stated by advocate of respondent that after declaration of the result no single step by taken by respondent no.1 for running of kerosene oil depot because respondent no1 has made a written request to stop the supply for his distribution . Further no payment was made after the election to the competent authority . Advocate of respondent states that the petition filed on the basis of judgment GNCTD Vs. Shyam Sunder Goel and in Ramesh Dutta's case are bade in law as Hon'ble Delhi High Court has passed the said judgements without considering the Judgement of Hon'ble Supreme Court. Both these judgements are not applicable in the present case as the Hon'ble High Court has passed these judgment without considering and discussing the judgements of Hon'ble Supreme Court in Ranjeet Singh Vs. Harmohinder Singh Pradhan 1999 (4) SCC 517 and Padrath Mahto Vs Misri Sinha (AIR 1961 SC 480). In Ranjeet Singh's case the 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 the -:28:- section 9 of the DMC Act. In the said case the holding of liquor shop was not held as office of profit. It is further stated that the Hon'ble Delhi High Court has not discussed the reason for assuming kerosene oil depot as office of profit and under what circumstances it becomes disqualification to the contesting candidate of the MCD Election and KOD cannot be treated as office of profit , which may disqualify the holder of it to contest the election of municipal Councillor because it would neither effect the respondent no.1 in discharging of his duty as Councillor nor the respondent no.1 would find himself being influenced by Government of its agency. It is further stated by respondent no.1's counsel that the judicial discipline demands that the Hon'ble Delhi High Court ought to have considered and discussed the aforesaid judgments of Hon'ble Supreme Court. The ignoring of the said judgements of Hon'ble Supreme Court which are otherwise declared a law in respect of liquor license which is similar to the holding of kerosene oil depot license, is violated of the Article 141 r.w.sec 144 of the Constitution of India and hence the same is bad in law and not have binding force. It is further stated that the Hon'ble Supreme Court in Suganthi Vs. Jagdeeshan AIR 2002 SC 681 held that law declared by Supreme Court cannot be by passed by High Court on ground that some point has not been considered. It was further held by Hon'ble Supreme Court in Rajendran Vs. Jose (2001 ) 3 ker Lt 431 that it is impermissible for the High Court to overrule the decision of the Apex court on the ground that Supreme court laid down the legal position without considering any other point. It is further stated that the decision of Ranjeet Singh prevail upon the judgement of M/s Shyam Sunder Goel . It is -:29:- further stated that the present petition is not maintainable as it does not disclose even the prima facie cause of action. It is stated by counsel for respondent no.1 that respondent no.1 has filed the affidavit alongwith nomination papers wherein it is mentioned that respondent no.1 is the dealer of kerosene oil. The said fact was duly disclosed and brought into the notice of the returning officer who after having examining and making all the necessary enquiry , accepted the nomination and affidavit filed by the respondent no.1. Keeping in view the fact that the kerosene oil , being a controlled commodity and can be sold openly by license holder. It is further stated that returning officer specifically made enquiry with regard to the kerosene oil dealership and it is ony after having being satisfied , the returning officer accepted the nomination of respondent no.1. It is further stated that petition is not maintainable because section 33(3) of the DMC Act which is corresponding to the article 243 V of the Constitution of India, envisaged that the question whether such disqualification has been incurred or not, has to be referred for decision of the Administrator whose decision is final. In this regard reliance is placed on judgement passed by Hon'ble Supreme Court in Consumer Education and Reasearch Society Vs. Union of India ( 2009) 9 SCC 648. The Hon'ble Delhi High Court in Meera Kanwaria Vs. Election Commissioner's Case held that " Thus , what is prescribed in Article 243 V of the Constitution is incorporated in Section 33 (3) and (4) of the said Act. In view of these provisions , whenever , a question arises as to whether a Councillor has become subject to any disqualification which prevents him or her from continuing as a Councillor, the question is to be referred for the -:30:- decision for the Administrator and his decision shall be final. Moreover, before giving any decision on any such question, the Administrator is required to obtain the opinion of the Election Commission and is also required to act according to such opinion. The powers of the Election Commission in this regard are prescribed in detail in Section 33 A of the said Act.
Vii) Respondent no.1 cited Suganthi Suresh Kumar Vs. Jagdeeshan wherein it was held that judicial discipline Courts below cannot question the correctness of the decision of Supreme Court, even if the point sought before the court below was not considered by the Supreme Court. In V.P.Dhingra Vs. Nihal Singh and others it was held that " in view of section 15 (3) of the Act requires a petition in join as respondents to his petition the candidates at the election. In Praveen Kumar Vs. Mohd. Naushad and others it was held that sections 15,15(3), 15(4) (c), 17 r/w Order 7 rule 11 all parties who file nomination should join election petition as they are the necessary party. In Democratic Reforms Vs. Union of India it was held that the reason to have right of information with regard to the antecedents of the candidate is that voter can judge and decide in whose favour he should cast his vote. In Jitendra Bahadur Singh Vs. Kirshna Behari Hon'ble Supreme Court held that Tribunal has to satisfy that , the petition for setting aside the election contained an adequate statement of the material facts on which the petitioner relies in support of his case.
Viii) In my inference the judgments of Hon'ble Delhi High Court in -:31:- GNCTD Vs. Shyam Sunder Goel and Ramesh Dutta is binding on this court and this court has no option except to follow these judgements. By these judgements Hon'ble High Court of Delhi has declared that the holding of licence of Kerosene Oil Depot has an office of profit and the same is binding on this court. It may further be noted that wording and comments in the written arguments regarding the judgement passed by Hon'ble High Court of Delhi in Shyam Sunder Goel and Ramesh Dutta is in bad taste.
ix) The advocate of respondent no.1 has relied on Hon'ble Supreme Court wherein it was held by lordship that holding of license of liquor is an office of profit. It may be noted that license for liquor is obtained by giving highest bid while the same is not the case in kerosene oil.
x) In view of above my inference is that holding of license of kerosene oil depot is an office of profit .
26. WHETHER RESPONDENT NO.1 DISQUALIFIED
i) In reasoning under the captioned affidavit it has been held that in the affidavit filed by respondent no.1 alongwith his nomination true and correct information was not given. Respondent no.1 has not stated clearly that he is holder of a license for a kerosene oil depot and in conclusion it was held that respondent no.1 filed false affidavit alongwith his nomination paper.
ii) As a result of the false affidavit public of the ward from where the respondent no.1 was elected could not get the true facts and information about the -:32:- asset of respondent no.1. Hence the people of ward were not in any position of evaluate the candidature of respondent no.1. Hence the right of the voters has been impaired by the incorrect information supplied by respondent no.1 filed his affidavit alongwith nomination papers.
iii) By reasoning under the captioned where license of kerosene oil is an office of profit or not this court held that holding a license for kerosene oil depot is an office of profit following the judgements of Hon'ble High Court of Delhi GNCTD Vs. Shyam Sunder Goel and in Ramesh Dutta's case.
iv) Section 9 of the DMC Act 1957 speaks about disqualification for membership of corporation . Section 9 provides as follows: A person shall be disqualified for 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 so disqualified by or under any law for the time being in force for the purposes 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 Legislative Assembly of the National Capital Territory of Delhi;
(f) if he hold any office of profit under the Corporation;
(g) if he holds any office of profit under the Government ( or Central Government)
(h) if he is a licensed architect , draughtsman , engineer, -:33:- plumber, surveyor 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, the Corporation except as a
shareholder ( other than a director) in an 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 any cause or proceeding in which the Corporation or any of the municipal authorities is interested or concerned ;
(k) if he, having held any office under the Government , the 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)
(i) if he fails to pay any arrears of any kind due by him, otherwise than as an agent, receiver, trustee or an executor , to the Corporation within three months after a notice in this behalf has been served upon him.
v) It has already held that on the date of filing of the nomination and even on the date respondent no.1 was declared elected he was holding the license of kerosene oil depot which is an office of profit under section 9 of the DMC Act.
Hence respondent no.1 was disqualified for election or being Councillor of Municipal Corporation of Delhi ( South).
27. In view of above reasons since respondent no.1 was holding office of profit and has given false affidavit at the time of election. Election of respondent no. -:34:- 1 Pramod Tanwar from ward no 152 Naraina is declared to be void. Respondent no.3 has argued that in the event of respondent no.1 election being declared as void. Respondent no.3 i.e Brahm Yadav be declared elected from Ward 152 Naraina (G) Delhi. The margin between Brahm Yadav and Rajan Tiwari is narrow and in the absence of Pramod Tanwar whom the voter will chose , it is very difficult to state at this stage. Hence the prayer of Brahm Yadav to be declared elected in the event of election of Pramod Tanwar is declared,null and void, is rejected. Copy of this order alongwith true copies of entire file be sent to the State Election Commission. File be consigned to record room.
Announced in the open Court (DAYA PRAKASH)
on the 8th October, 2012 ADDL. DISTRICT JUDGE
DWARKA COURTS : NEW DELHI