Delhi High Court
Pinky Tyagi vs State Election Commission & Ors on 11 September, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th September, 2017
+ CM(M) 896/2017
PINKY TYAGI ..... Petitioner
Through: Mr. Vivek Sood, Sr. Adv. with
Mr. Kumar Ranjan, Ms. Prachi
Gupta, Mr. Siddharth Gupta &
Mr. Vivek Vardhan, Advs.
Versus
STATE ELECTION COMMISSION & ORS..... Respondents
Through: Mr. Sumeet Pushkarna, Adv.
for R-1&2.
Mr. Sunil Goel & Ms. Supreet
Bimbra, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 227 of the Constitution of India
impugns the order (dated 19th July, 2017 of the District Judge, District
South, Saket Courts, New Delhi in CIS-EP-2-2017) dismissing the
application under Order VI Rule 17 of the Code of Civil Procedure,
1908 (CPC) of the petitioner for amendment of the Election Petition
filed by the petitioner impugning the election, held on 23 rd April, 2017
and result whereof was declared on 26th April, 2017, of the respondent
no.4 Smt. Anita Tanwar as Municipal Councilor of Ward No.70-S,
Chhattarpur, New Delhi of the South Delhi Municipal Corporation
(SDMC).
2. The petition came up first before this Court on 22 nd August,
2017 when the counsel for the respondents no.1&2 viz. State Election
CM (M) No.896/2017 Page 1 of 10
Commission, NCT of Delhi and Returning Officer, Ward No.70-S,
Chhattarpur, SDMC appearing on advance notice stated that all the
parties to the Election Petition from which this petition arises have not
been impleaded in this petition; however due to non-availability of the
counsel for the petitioner, the petition was adjourned to 7th September,
2017 when the counsels were heard and on their request for time to
show some judgments, the matter was adjourned to today.
3. Today, the counsel for the respondent no.3 State, NCT of Delhi
has also appeared and the senior counsel for the petitioner and the
counsels appearing for the respondents have been heard further.
4. The learned District Judge, in the impugned order, has inter alia
held / reasoned that:
i) the provisions of Order VI Rule 17 are applicable to an
Election Petition but apart from the general law relating
to amendment of plaint, the special nature of the Election
Petition must not be lost sight of;
ii) the question of permitting amendment would have to be
seen in the backdrop of the provisions of the Delhi
Municipal Corporation Act, 1957 (DMC Act) and Rules
thereunder relating to filing of an Election Petition;
iii) reliance was placed on Jyoti Basu Vs. Debi Ghosal
(1982) 1 SCC 691 holding that right to elect is a pure and
CM (M) No.896/2017 Page 2 of 10
simple statutory right and outside the statute, there is no
right to be elected and no right to dispute an election;
iv) an election petition under Section 15 of the DMC Act can
be filed challenging the election of a candidate within
fifteen days from the date of publication of the result of
the election and only on the grounds specified therein;
v) the grounds on which an election can be declared void
relate to qualifications, corrupt practices, improper
rejection of election nomination papers, result of election
being materially affected by improper acceptance of
nomination or corrupt practice or improper acceptance or
refusal of any vote, or non compliance with the
provisions of the DMC Act;
vi) these are all grounds in the alternative connected by the
word 'or', indicating that they are independent of each
other;
vii) it is therefore clear that all the grounds that a person
wants to raise while challenging the election of a
successful candidate would have to be pleaded in the
Election Petition, as provided in Section 15(4) of the
DMC Act;
CM (M) No.896/2017 Page 3 of 10
viii) under the guise of furnishing additional particulars, the
petitioner cannot be permitted to substitute one corrupt
practice for another, by means of an amendment;
ix) reliance was placed on Banarsi Das Vs. Sumer Chand 9
(1974) DLT 73 and on Jai Gopal Vs Raj Kumar Sharma
210 (2014) DLT 541;
x) though the application for amendment filed by the
petitioner did not list out the amendments but a perusal of
the proposed amended Election Petition filed, showed
that while in the Election Petition as originally filed
election was sought to be questioned on the ground that
the result of the election had been materially affected by
the improper acceptance or refusal of any vote or refusal
of any vote which was void by pleading that the number
of votes registered were at variance in two records and
that postal ballots had not been permitted, but by way of
amendment, election was being questioned on the
grounds:
(a) that the nomination form of respondent no.4 herein
was accepted after the time fixed for the same by
the Election Commission and without affidavit;
(b) that the respondent no.4 had tried to influence the
election by helping few voters in Ward No.72-S to
become voters of Ward No.70-S;
CM (M) No.896/2017 Page 4 of 10
(c) that the affidavit of respondent no.4 did not
disclose her correct particulars regarding age and
her bank accounts;
(xi) that all the aforesaid particulars sought to be added by
way of amendment were not in support of the ground on which
election was challenged in the Election Petition as originally
filed but amounted to adding new grounds; and,
(xii) that in terms of the judgments aforesaid, no new grounds
could be added after the expiry of the period provided for
preferring the Election Petition.
5. The senior counsel for the petitioner has argued that provisions
of Order VI Rule 17 have been held to be invocable even at the stage
of appeal and that since in the election petition as originally filed,
relief of setting aside of the election has been claimed, the grounds on
which election is sought to be set aside can be added. Attention was
invited to Section 18 of the DMC Act prescribing the procedure
provided in the CPC to suits to be followed at the trial and disposal of
an Election Petition. Attention was invited to Section 86(5) and 87 of
the Representation of People Act, 1951 (RP Act). The senior counsel
for the petitioner also referred to Gajanan Krishnaji Bapat Vs. Dattaji
Raghobaji Meghe 1995 (5) SCC 347 and to my judgment in Ved
Prakash Vs. Sunil Kumar Jha 2016 (228) DLT 110.
CM (M) No.896/2017 Page 5 of 10
6. Per contra, the counsel for the respondents no.1&2, in support
of his contention that the time of 15 days for challenging the election
is sacrosanct, relied on i) Hukumdev Narain Yadav Vs. Lalit Narain
Mishra (1974) 2 SCC 133, ii) Parkasho Vs. Bholi Devi, 2012 SCC
OnLine P&H 10582 iii) Pratik Prakashbapu Patil Vs. Maruti Mura
Vagare 2012 SCC OnLine Bom 479, iv) Ved Prakash supra, v) K.D.
Deshmukh Vs. Amritlal Jayaswal 1993 Supp (1) SCC 50, vi) Shaikh
Fateh Mohammed Mohd. Raza Vs. Kamlesh Somnath Yadav
MANU/MH/0839/2010, and, vii) Saeed Ahmad Vs. Murli Dhar AIR
1971 All 331.
7. I have considered the controversy.
8. The reasons which prevailed with the learned District Judge in
the impugned order are two-fold. Firstly, that the pleas sought to be
taken by way of amendment amounted to new grounds for challenging
the election and secondly that an Election Petition cannot be amended
after the expiry of time for filing thereof, to add new grounds of
challenge to the election other than those made in the petition as
originally filed.
9. Supreme Court as far back as in Harish Chandra Bajpai Vs.
Triloki Singh AIR 1957 SC 444, held that the principle well
established with reference to amendments under Order VI Rule 17 is
that the fact that a suit on a claim sought to be raised would be barred
on the date of the application would be a material element in deciding
whether it should be allowed or not but would not affect the
CM (M) No.896/2017 Page 6 of 10
jurisdiction of the Court to grant it in exceptional circumstances; the
procedure of the Court under the CPC in which Order VI, Rule 17 is
comprised has to be applied to Election Petition under the RP Act
subject to the provisions of the RP Act and the Rules thereunder; there
is no power conferred thereunder to extend the period of limitation
prescribed; that an order of amendment permitting a new ground to be
raised beyond the time limited for filing an Election Petition under the
RP Act and the Rules thereunder would contravene those provisions.
Again, in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi (1987)
(Supp.) SCC 93, it was held that the petitioner in an Election Petition
cannot raise any ground of challenge after the expiry of limitation and
though Order VI Rule 17 permits amendment of the Election Petition
but the same is subject to the provisions of the RP Act and since the
same prescribes a period of 45 days from the date of election for
presenting an Election Petition, after the expiry of that period, no new
ground can be permitted to be raised.
10. K.D. Deshmukh supra cited by the counsel for the respondents
no.1&2 also holds that no amendment which added a ground which
was not taken in the Election Petition as earlier filed could be
permitted to be taken by amendment and the High Court erred in
allowing the amendment and in taking the view that the objection
regarding limitation shall be decided while disposing the Election
Petition on merits finally. Similarly, in Shaikh Fateh Mohammed
Mohd. Raza supra, a Division Bench of the High Court of Bombay
held in the context of Bombay Municipal Corporation Act, 1888 that
CM (M) No.896/2017 Page 7 of 10
in an Election Petition thereunder, no new ground could be taken by
way of amendment after the time prescribed for challenging the
election was over. To the same effect is the dicta of the High Court of
Allahabad in Saeed Ahmad supra.
11. The judgments cited by the senior counsel for the petitioner do
not hold to the contrary. In Gajanan Krishnaji Bapat supra, it was
held that the High Court ought not to have allowed evidence beyond
pleadings to be led by the election petitioner and should not have
allowed the election petitioner to amend the Election Petition to get
over the same and that statutory requirements of the law of election
must be strictly observed. The senior counsel for the petitioner
however drew attention to para 83 of the said judgment where it has
been held that while the first part of Section 86(5) of the RP Act is an
enabling provision, the second part of Section 86(5) of the RP Act
creates a positive bar and thus the general power of amendment drawn
from the CPC must be construed in the light of provisions of election
law and applied with such restraints as are inherent in an Election
Petition. It was in this context that attention was also invited to
Section 18 of the MCD Act to show that the same is pari materia.
12. All the judgments referred by me hereinabove also do not hold
that there is no power to amend an Election Petition. Certainly, an
Election Petition can be permitted to be amended if the amendments
are only for adjudication of the matter in controversy as raised in the
Election Petition originally filed. However, if the amendments sought
are such, which amount to raising new grounds, for challenging /
CM (M) No.896/2017 Page 8 of 10
impugning the election and the period for which has expired, such
amendments have been consistently held to be not permissible.
13. The learned District Judge, in the impugned order has given
cogent reasons for holding that the amendment sought by the
petitioner amount to raising new grounds of challenge. The senior
counsel for the petitioner has not raised any argument with respect to
the said reasoning of the learned District Judge. A perusal of the
memorandum of this petition also does not show the petitioner to have
challenged the said finding or to be pleading that the amendments are
for adjudication of the grounds already taken. So much so, that the
petitioner along with this petition under Article 227 of the
Constitution of India has not even bothered to file the proposed
amended Election Petition on perusal of which the learned District
Judge has held the amendment sought to be amounting to raising new
grounds of challenge / impugning the election. The petitioner, as
Annexure-P18 to this petition, has merely filed a copy of the
application filed for amendment and which application, as also held by
the District Judge, does not even list the amendment sought. The only
inference therefrom is that the petitioner did not intend to challenge
the part of the impugned order based on the perusal of the proposed
amended Election Petition. I may however notice that after the first
hearing on 22nd August, 2017, on this Court wanting to know the
amendment sought, the petitioner filed a copy of the proposed
amended Election Petition, a perusal of para 14A to 14G whereof,
sought to be inserted in the petition as originally filed does indeed
CM (M) No.896/2017 Page 9 of 10
show the petitioner to be adding grounds of election other than those
on which election in the petition originally filed was challenged.
14. The contention of the senior counsel for the petitioner, that once
the relief of setting aside of election is claimed, new grounds for
setting aside of election can be added by way of amendment, is
contrary to well established law discussed above.
15. Having found no merit in the petition, the need to go into the
question of the petitioner having not impleaded all the parties to the
original petition for setting aside election, does not arise.
16. The petition is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SPETEMBER 11, 2017 'gsr' Post Script: The senior counsel for the petitioner and the counsels for the respondents, both had on closure of hearing sought time to handover further judgments in the course of the day; the judgments continued to be handed over till 13th September, 2017 and resulting in order being not dictated in Chamber on 11th September, 2017. Thereafter, the matter went on the backburner and this judgment is being released on 22nd January, 2018.
CM (M) No.896/2017 Page 10 of 10