Delhi District Court
Sh. Prem Nath vs Sh. Surjit Singh on 20 October, 2007
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE: DELHI
Petition No. 41/2007
Sh. Prem Nath
S.o Late Sh. Mool Chand
R/o 2550, Hudson Line, GTB Nagar,
Delhi - 110 009
............ Petitioner
Versus
1. Sh. Surjit Singh
S/o Sh. Gurjit Singh
R/o 13, Priyadarshni Vihar,
Part - 1,
Delhi - 110 009
2. Sh. Ashok Kumar
S/o Sh. Shan Singh
R/o 97, Village Malikpur,
Delhi
3. Sh. Chander Malhotra
S/o Sh. Vishan Dass Malhotra
R/o 523, Bhai Parmanand Colony.
Delhi - 110 009
4. Sh. Jageshwar
S/o Sh. Duli Chand
R/o 37, Village Malikpur,
Delhi
5. Sh. Jagdish
S/o Sh. Duli Chand
R/o 2584, Hudson Line,
: 1 :
Delhi - 110 009
6. Sh. Kartar Singh
S/o Sh. Dhajja Ram
R/o 131, Malikpur,
GTB Nagar, Delhi - 9
7. Sh. Love Malik
S/o Sh. Satish Malik
R/o 3/12A, Double Storey,
Vijay Nagar, Delhi - 9
8. Sh. Mahesh Kumar
S/o Sh. Jile Singh
R/o 184, Dhakka Gaon,
Delhi - 9
9. Sh. Pradip Kumar Jha
S/o Sh. Kameshwar Jha
R/o 13E, Ganesh Nagar,
2nd Floor, Shakarpur, Delhi - 9
10.Sh. Pradeep Singh
S/o Sh. Chander Singh
R/o 86, Dhakka Village,
GTB Nagar, Delhi
11.Sh. Prabhu Dayal Aggarwal
R/o Sh. Bhairav Lal
R/o 1432, Outram Line,
Delhi - 8.
12.Smt. Rajni
W/o Sh. Sunil Kumar
R/o 8/61, Vijay Nagar,
: 2 :
Double Storey Hut,
Delhi - 9
13.Sh. Raj Iqbal Singh
S/o Sh. Daljit Singh
R/o B12A, Vijay Nagar,
Delhi - 9
14.Sh. Vipin Vohra
S/o Sh. Kairati Lal
R/o 255/1, Hakikat Nagar,
Kingsway Camp, Delhi - 9
15.Sh. Amit Malhotra
S/o Sh. Chander Malhotra
R/o 523, Bhai Parmanand Colony,
Delhi - 9
16.Sh. Mahender Gupta
S/o Sh. S.D. Gupta
R/o 2307, Hudson Line,
Delhi - 9
17.Sh. Yogesh Pratap
Returning Officer for elections of Municipal Councillor
At Delhi in the year 2007
Ward No. 9 to 12,
5, Kirpa Narain Marg,
Delhi - 54
18.State Election Commissioner,
Nigam Bhawan,
Kashmere Gate,
Delhi - 54.
19.The Commissioner,
Municipal Corporation of Delhi,
: 3 :
Town hall, Delhi - 6.
............. Respondents
: J U D G M E N T :
This election petition has been filed under Section
15 read with Section 17 of the Delhi Municipal Corporation
Act filed by the petitioner Prem Nath who is one of the
contesting candidate in respect of the elections held on
5.4.2007 to the municipal ward no. 12 i.e. GTB Nagar, Delhi
for which counting and results were announced on 7.4.2007
where the respondent no. 1 was declared as returned
candidate from the said ward.
BRIEF FACTS:
The elections for 272 posts of Municipal Councillor from various wards of Delhi were notified to be held on 5.4.2007 and the last date of nomination for the : 4 : elections was fixed for 17.3.2007; the date of scrutiny of the nomination was fixed as 19.3.2007 and the last date for withdrawal of the nomination was fixed 22.3.2007. The petitioner and also the respondent no. 1 to 16 filed their nominations and only the respondent no. 15 and 16 withdrew their nominations whereas all others contested the same.
The election of the respondent no. 1 who is the returned candidate has now been challenged on the ground that he was disqualified from filing his nomination being the proprietor of Shri Guru Nanak Electrical, a registered ClassI Electrical Contractor with entitlement to file tenders for the unlimited amount having a registration no. 7/Elect. from the MCD which according to the petitioner is valid from 3.10.2002 till 2.10.2007. It is alleged that the respondent no. 1 did not disclose in his nomination form the fact of his being a registered classI electrical contractor with MCD and concealed the said fact from the Sate Election Commission whereas he has mentioned in his nomination Form 2 under Rule 15 (1) declared that he was qualified and not : 5 : disqualified for being chosen to fill the seat of Councillor. According to the petitioner after having come to know about the aforesaid fact he filed an application before the Engineering Department (HQ) of the MCD under the Right to Information Act seeking information about the registration of the respondent no. 1 pursuant to which the petitioner was informed that M/s. Shri Guru Nanak Electrical, Proprietor Sh. Surjit Singh having its registered office at 931932, Punjabi Mohalla, Subji Mandi Delhi is registered with MCD as class 1 electrical contractor vide registration no. 7/Elect. dated 3.10.2002 which registration is valid upto 2.10.2007. It was also informed that the respondent no. 1 surrendered his registration certificate on 10.4.2007 and his registration has been cancelled by the MCD vide circular no. HQ/2007/114 dated 11.4.2007. It is contended that a candidate i.e. respondent no. 1 was not entitled to contest the elections or to file his nominations in case he suffered from any disqualification for membership of the Corporation as laid down in Section 9 of the DMC Act.
: 6 : It is also contended by the petitioner that the registration of the respondent no. 1 with MCD as a contractor constitutes a subsisting contract between the respondent no. 1 and the MCD under which the respondent no. 1 can submit his tenders for any electrical contract or work, which registration disqualifies the respondent no. 1 from being chosen as a councillor to MCD and the nomination of the respondent no. 1 was illegal since he is a registered electrical contractor with the MCD.
The election of the respondent no. 1 has been challenged on the ground that he has with ulterior motives withheld and concealed the information regarding his being class1 electrical contractor with MCD which fact was within his personal knowledge and is a person interested in subsisting contract made with the corporation. Hence, it is prayed that since the election of the respondent no. 1 for the membership of corporation is void and illegal and his election is liable to be set aside.
As required the petitioner has also deposited the : 7 : statutory court fees and the security of Rs.3,000/ vide receipt no. 2705 dated 19.4.2007.
The record reveals that the respondents no. 2,3,4,6,7,9,10,11,13,14,15 and 16 who were the other contesting candidates did not appear before the court despite valid service to contest the present petition and were proceeded exparte.
In his written statement the respondent no. 1 has raised a preliminary objection that the petitioner could not accept his defeat in the election and has hence filed the present petition with the sole intention to harass him and to satisfy his ego. According to him Section 15 (4) (c) of the DMC Act require that the election petition shall be verified in the manner laid down in the CPC for the verification of pleadings and Rule 81 prescribes the dismissal of the petition if the said provision is not complied with. Further, it is alleged that the petitioner has not filed any affidavit as required under Rule 80 (1) of the DMC (Election of Councillors) Rules. It is also contended that the respondent : 8 : no. 1 does not suffer any disqualification for membership and the registration certificate was duly surrendered by him on 12.3.2007 and immediately when he was elected as Municipal Councillor he again specifically informed the Chief Engineer (electrical) on 9.4.2007 and requested them to freeze his electric contract till his tenure as Municipal Councillor pursuant to which on 4.6.2007 the tender allotted to the respondent was cancelled. According to the respondent no. 1 he had already surrendered his registration certificate as contractor on 12.3.2007 when the election procedure had started and had also disclosed all relevant facts thereby not concealing any fact which may disqualify him to contest the elections. He has denied that he did not disclose in his nomination form the fact of his being a registered class1 electrical contractor with MCD and submits that there was no column to this effect in the nomination papers and in case if the column would have been there and was not properly filled up, the nomination paper could have been rejected during scrutiny. He has denied that his nomination : 9 : was illegal.
The respondent no. 5 Jagdish and respondent no. 8 Mahesh Kumar have also filed their written statement wherein a preliminary objection has been raised that the present petition filed by the petitioner is time barred since the same has been filed after 15 days of the results and the period of limitation has been clearly specified as 15 days from the date of publication of the result of elections due to which the present petition is liable to be dismissed. According to them, the petitioner has not disclosed any valid and legal ground for declaring the election to be void. They have has admitted having filed their nomination papers and having contested the elections.
The respondent no. 12 Smt. Rajni has in her written statement stated that the petitioner has suppressed the material facts from this court and there is no cause of action in favour of the petitioner. She has stated that she has no concern with the present petition in any manner whatsoever and the present petition has been filed only to harass her.
: 10 : In their reply the respondents no. 17 and 18 have stated that on the basis of the information furnished at the time of filing of nomination, the respondent no. 1 was found to be eligible to contest the election in question. It is submitted that in case if the allegations made by the petitioner against the respondent no. 1 are found to be correct, then it is clear that he was suffering a disqualification as provided under Section 9 of the DMC Act.
The respondent no. 19 i.e. MCD in its written statement has submitted that the present petition is without any cause of action due to which reason the same is liable to be dismissed. On merits it has been admitted by the MCD that Shri Guru Nanak Electrical was a registered contractor vide registration no. 7/electrical/3.10.2002 and vide application dated 9.4.2007 M/s. Guru Nanak Electrical through Proprietor Surjit Singh surrendered this registration which was allowed/ cancelled vide circular dated 11.4.2007.
The petitioner has filed his rejoinder to all the written statements of the respondents wherein he has : 11 : reaffirmed what he has earlier stated in the main petition. DOCUMENTS ADMITTED/ DENIED Before proceeding further it is necessary to place on record the documents admitted/ denied by the parties. On 8.10.2007 the Returning Officer Sh. Yogesh Pratap, Sanjeev Kumar LDC from MCD and Anil Kumar Gupta, Administrative Officer (Engineering), MCD appeared in the court pursuant to which they have been examined by the court with regard to the documents placed on record by the parties.
The returning officer has placed before this court the certified copy of the nomination paper of respondent no. 1 Surjit Singh which is Ex.C1 duly accompanied by an affidavit which is Ex.C2; the affidavit regarding past election expenses is Ex.C3; the form B submitted submitted by him issued by the political party is Ex.C4; Form A which is the communication regarding persons authorized to intimate names of candidates set up by national parties is : 12 : Ex.C5; extracts of electoral roll of 2006 is Ex.C6 and the certificate of election is Ex.C7. All the aforesaid documents have been duly admitted by the parties. The returning officer Sh. Yogesh Kumar has also informed the court that there is no document on their record to show that the respondent no. 1 had disclosed that he was a registered class1 contractor with the MCD which license was valid upto 2.10.2007 and also there is no document to show that he had made any communication to the Chief Engineer Electrical on 12.3.2007 vide reference no. SGNE/10/07 to the Additional Commissioner (Engineering), Assistant Commissioner (Engineering) and to the Commissioner MCD.
Sh. Sanjeev Kumar Rastogi, LDC in the office of the Commissioner (MCD) on being examined by the court has stated on 13.3.2007 one Sanjeev Kumar (LDC) was on the seat and doing the entry work of the diary in respect of the dispatch and receipts. He has placed before this court a copy of the extract bearing entry no. 7237A pertaining to communication of M/s. Shri Guru Nanak Electrical IP vide : 13 : No. SGNE/10/07 dated 12.3.2007 which copy of the extract is Ex.B1 where the entry in question is shown at point X1. According to him, the said entry has been made in a different ink at the end of the page and seems to have been made in different handwriting. The court also has observed the same to in different handwriting and a different ink.
Sh. Anil Kumar Gupta Administrative Officer (Engineering), MCD has placed before this court the relevant record pertaining to the registration of contract of M/s. Shri Gurunanak Electrical of which the respondent no. 1 is the proprietor, the said registration certificate is Ex.A1 showing M/s. Shri Guru Nanak Electrical as one of the Contractor with the MCD (Electrical) till the subsistence of the certificate which was valid till 2.10.2007. According to him on 10.4.2007 the Assistant Commissioner (Engineering) had received a communication dated 9.4.2007 vide diary no. 7535/ADC/Engineering on 09.04.2007 which communication was addressed to Assistant Commissioner for surrender of contractor's registration on the ground that he has been : 14 : elected as a Councillor of MCD from ward no. 12 which communication is Ex.A2 and the said was accompanied by affidavit Ex.A3, original registration certificate and a letter dated 14.3.2007 addressed to the MCD which is Ex.A4. He has stated that the said letter dated 14.3.2007 has never been received by the Assistant Commissioner (Engineering) prior to 10.4.2007 and had reached the office vide dak no. 7375/ADC/Engineering alongwith original communication dated 9.4.2007, the extract of the diary register is Ex.A5. Further, another communication had been sent by the respondent no. 1 to the Addl. Commissioner (Engineering) dated 9.4.2007 which had been received vide entry no. 4298/ Engineering dated 10.4.2007 which was received in the office of ADC (Engg.) vide diary no. 7385/ADC/Engg. Dated 11.4.2007, the extracts of the diary register is Ex.A6 and the communication of the respondent no. 1 is Ex.A7. According to the Administrative Officer, pursuant to the aforesaid communication a circular had been issued by him on : 15 : 11.4.2007 which is Ex.A8.
After examination of the said officials the admissiondenial of the documents was conducted. The details of the various document duly admitted or denied by the parties are as under:
➔ Copy of the communication of the respondent no. 1 dated 12.3.2007 addressed to the Addl. Commissioner (Engineering) regarding surrender of contractor's registration no. 7/elect. Dated 3.10.2002. (Denied by the petitioner and the respondent no. 19 MCD); ➔ Copy of the communication of the respondent no. 1 dated 12.3.2007 addressed to the Chief Engineer (Electrical) regarding surrender of contractor's registration no. 7/elect. Dated 3.10.2002. (Denied by the petitioner and the respondent no. 19 MCD); ➔ UPC receipt dated 12.3.2007 (Denied by the petitioner and the respondent no. 19 MCD); ➔ Copy of the communication of the respondent no. 1 dated 9.4.2007 addressed to the Addl. Commissioner (Engineer) regarding freezing his electrical company. (Admitted by the petitioner on the basis of the letter : 16 : dated 11.4.2007 and the respondent no. 19 MCD); ➔ Copy of the communication of the respondent no. 1 dated 9.4.2007 addressed to the Engineer in Chief, MCD regarding freezing his electrical company. (Admitted by the petitioner on the basis of the letter dated 11.4.2007 and the respondent no. 19 MCD); ➔ Copy of the communication of the respondent no. 1 dated 9.4.2007 addressed to the Chief Engineer (Electrical) regarding freezing his electrical company. (Admitted by the petitioner on the basis of the letter dated 11.4.2007 and the respondent no. 19 MCD) ➔ Circular bearing no. GIV/Engg./HQ/2007114 dated 11.4.2007 issued by the MCD regarding the cancellation of registration certificate. (Admitted by the petitioner and the respondent no. 19 MCD);
➔ Communication of the Executive Engineer (E) - 1, MCD dated 4.6.2007 bearing no. 72/EEE1/200708 regarding cancellation of tender. (Admitted by the petitioner and the respondent no. 19 MCD); ➔ Registration Certificate dated 3.10.2002 in respect of M/s. Guru Nanak Electrical. (Admitted by the : 17 : petitioner and the respondent no. 1);
➔ Copy of the dispatch register having entry at serial no. 7375 regarding the surrender of contract registration no. 7/Elect. (Admitted by the petitioner and the respondent no. 1);
➔ Copy of the dispatch register having entry at serial no. 7385 regarding the communication of respondent no. 1 to the Addl. Commissioner (E). (Admitted by the petitioner and the respondent no. 1);
➔ Copy of the License to Electrical Contractors (Admitted by the petitioner and respondent no.1 but neither admitted nor denied by the respondent no. 19 MCD as it does not pertain to them);
➔ Certified copy of Form 2 - Nomination Paper of respondent no. 1 (Admitted by both the petitioner and the respondent no. 1);
➔ Certified copy of affidavit of respondent no. 1 furnished alongwith the nomination paper. (Admitted by both the petitioner and the respondent no. 1); ➔ Certified copy of the affidavit of respondent no. 1 before the Returning Officer (Admitted by both the petitioner and the respondent no. 1);
: 18 : ➔ Certified copy of the Form 'B' - Notice as to names of candidates set up by political parties. (Admitted by the petitioner and the respondent no. 1); ➔ Form 'A' - Communication regarding persons authorized to intimate names of candidates set up by the national political party. (Admitted by both the petitioner and the respondent no. 1) ;
➔ Certified copy of the extract from electoral rolls of 2006. (Admitted by both the petitioner and the respondent no. 1) and ➔ Certified copy of the Certificate of Election of respondent no. 1. (Admitted by both the petitioner and the respondent no. 1).
ISSUES FRAMED On the basis of the pleadings of the parties and the documents duly admitted and denied by the parties, this court had framed the following issues:
1. Whether the respondent no. 1 had sent any communication dated 12.3.2007 to the Chief Engineer : 19 : (Electrical)/ Addl. Commissioner and Assistant Commissioner MCD regarding surrender of his license? In case if the issue is answered in affirmative, the effect of the said communication. (OPR)
2. Whether the respondent was entrusted with any subsisting contract made with, or any work being done with the corporation? If yes then whether he is liable for disqualification as a membership for corporation in terms of Section 9 of the DMC Act. (OP Parties)
3. Relief.
EVIDENCE:
As per the provisions of Section 58 of the Indian Evidence Act no fact needs to be proved in the proceedings which the parties thereto of their agents agree to admit at the hearing or, which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have : 20 : admitted by their pleadings. Hence, evidence was allowed to be lead of relevant facts pursuant to which it is only the respondent no. 1 who examined 4 witnesses including himself. The petitioner has not lead any evidence.
R.1W1 R.K. Sharma, Chief Engineer (Electrical) MCD had been called by the respondent as his witness. He has deposed on oath that he never received any communication dated 12.3.2007 which is Ex.R1W1/A According to him, the rubber stamp at point X1 appears to be from his office but only the record clerk would be able to tell whether it is from his office or not.
In his crossexamination the witness has admitted that the said communication dated 12.3.2007 had never been put before him and according to him there is no work contract with the respondent no. 1 Surjit Singh pending with regard to Civil Lines & Narela Zone, City Zone, SP Zone, Town Hall, Rohini, Karol Bagh, West Zone and Najafgarh Zone, South & Central Zone and also Central Electric Zone. Initially when the witness appeared to depose on 11.10.2007 : 21 : he was unable to tell whether the payment with regard to any of the works done in respect of the aforesaid zones by M/s. Guru Nanak Electrical was still pending or not for which reason he was directed by this court to place on record the complete details of the subsisting work as on the date of nomination i.e. 17.3.2007 and election and also the details of the works whose payments were yet to be released by the MCD. After getting the relevant details the witness testified that there were as many as 3 works awarded to the concern of respondent no. 1 from Shahdara South Zone as on the date of nominations and elections details of which have also been placed on record and as many as five subsisting works of Shahdara (North) Zone in respect of M/s. Guru Nanak Electrical which would also cover the cases of pending payment in respect of the contract. He has furnished the details of the said works and also the complete details of pending work alongwith the date of commencement and date of completion of the same. Further the witness has also placed on record the status of payment from the office of : 22 : Executive Engineer, Electrical (V) Shahdara North which is Ex.R.1W1/B; the complete details of pending work in respect of Shahdara South which is Ex.R.1W1/C and the certificates issued by the concerned Executive Engineers reflecting that payments are yet due to M/s. Guru Nanak Electricals in as many as 20 cases which certificates are Ex.R.1W1/D to Ex.R.1W1/H. The respondent no. 1 Surjit Singh has examined himself as R.1W2 and in his examinationinchief by way of affidavit he has corroborated what he has earlier stated in his written statement. He has placed on record the UPC which is Ex.R1W2/A and the copy of the license which is Ex.R.1W2/B (which is duly admitted by the petitioner).
In his crossexamination the witness has stated that he did not personally go to deliver the communication dated 12.3.2007 in the office of Chief Engineer (Electrical) and it is his son who had gone to deliver the same. According to him, he did not send the said communication : 23 : vide registered AD but it was only sent by UPC and no acknowledgment or reply was sent to him by the MCD with regard to his communication dated 12.3.2007. He has admitted that he did not send any reminder to the MCD prior to 17.3.2007 i.e. the date of nomination. He has further admitted that he had mentioned in his letter dated 9.4.2007 that his license should be freezed and according to him this was done since in his earlier communication dated 12.3.2007 he had only informed the department that he was contesting the elections and his license was being surrendered but after wining the elections he actually requested for freezing the same. He has denied the suggestion that he had manipulated the communication dated 12.3.2007. The respondent no. 1 Surjit Singh has admitted in his deposition that the payment with regard to the work contract issued by the MCD is still due with regard to many of the works but states that as per the established procedure and practice the payment is not being released by the MCD for almost 1 to 3 years and even now his payment in respect of the works completed and : 24 : finished almost 23 years back is pending with the MCD. According to R1W2 he has not done any new work after December 2006 and has admitted that after the work is completed, the completion is recorded in the measurement books maintained by the department. He has denied the suggestion that as on the date of nomination he was disqualified from contesting the elections in view of the provisions of DMC Act. R.1W2 has also admitted that he did not inform the Returning Officer regarding any MCD electrical license issued to M/s. Guru Nanak Electrical or about any work contract but states that there was no column in the proforma for the said purpose. He has also admitted that he did not inform the Returning Officer about the letter dated 12.3.2007 either in the form or in his affidavit furnished to the Returning Officer.
Sh. Sanjeev Kumar LDC at Commissioner Office has been examined as R.1W3. He has placed before this court the diary register of the period 15.12.2006 to 8.5.2007 and according to him, the various entries from Sl. No. 7228 : 25 : to 7243 are in his handwriting except the entry at serial no. 7237A. The copy of the relevant page is Ex.R.1W3/A. The said witness has deposed that apart from himself Sanjeev Kumar Rastogi was also working on the said seat and the said entry at serial no. 7237A is not in the handwriting of Sanjeev Kumar Rastogi. He has testified that on the evening of 13.3.2007 when he completed the diary the entry at serial no.
7237A was not there and he had put a specific mark at the time when he closed the entries in the evening for a particular day and that as a matter of practice and procedure he had never put the alphabets after the serial no. 7237A according to the witness the said register use to remain on the table itself so that in case of any emergency communications the same could be entered into it by the concerned staff. He has admitted that the stamp at point mark X1 on Ex.R1W1/A appears to be from their office but he has not put the same nor the word "received" at point X2 are in his hand. The witness has further admitted that Sanjeev Kumar Rastogi is doing dual duties one at their office and also the horticulture : 26 : department and at the time when he is in horticulture, he made the entries.
R1W4 Sh. Manpal Singh, PRI from Malkagunj Post Office. He is unable to tell if the stamp at point X and X1 on Ex.R1W2/A were made by their office or not. FINDINGS:
Before proceeding further with the findings in the present case, it is necessary to bring on record that the respondent no. 1 had filed an application under Order 1 Rule 10 (2) CPC alleging that the election petition was bad for misjoinder of the parties and also another application U/s 151 & 153 CPC r/w section 15 and 18 of the DMC Act for correction of proceedings. Both the said application were filed at highly belated stage on 15.10.2007 when the evidence of the witnesses were being concluded and trial was at its final stage. Since the said applications raise legal grounds which are relevant and are required to be addresses to before : 27 : this court can proceed to decide the issues on merits. After hearing the submissions of the Ld. counsels who have also requested that the grounds raised in the applications should be considered to be their submissions on merits as well, my findings on the legal grounds raised by the Ld. counsel for the respondent no. 1 in the aforesaid applications are as under:
The Election Petition is bad for Misjoinder for Parties.
It has been argued by the counsel appearing on behalf of the respondent no.1, that neither the State Election Commission nor the MCD were required to be impleaded as necessary parties. He has in this regard placed his reliance on the judgment in the case of Jyoti Basu & Ors. Vs. Debi Ghosal & Ors. Reported in (1982) 1 SCC 691 wherein it had been held that Representation of Peoples Act was a complete and a self contained code and within it must be found any rights claimed in relation to an election or an election dispute.
: 28 : According to him the present election petition requires a dismissal on the sole grounds of joining parties who are not prescribed by the existing law in view of the provisions of Rule 81 of the DMC (Election of Councillors) Rules. He has in this regard also placed his reliance on the authorities in the case of Satya Narayan Vs. Dhuja Ram reported in AIR 1974 SC 1185; B. Sundara Rami Reddy Vs. Election Commission of India and Ors. reported in 1991 Supp. (2) SCC 624 and in the case of K.B. Rao Vs. B.N. Reddi reported in AIR 1969 SC 872. The Ld. counsel has argued that the provisions of the Code cannot be invoked to permit that which the Act does not. He has pointed out that Section 82 and 86 (4) show that the election petition is designed to be confined to the candidates at the election and all others are excluded and hence, only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others and the concept of proper parties is and must remain alien to an election dispute under the Act : 29 : which follows that a person who is not a candidate may not be joined as a respondent to the election petition.
Having gone through the said rulings it cannot be denied firstly that the said judgments pertain to the Representation of Peoples Act which is a complete code in itself but in so far as the DMC Act is concerned the provisions of Section 18 of the DMC Act are very clear according to which the procedure as prescribed under the CPC in regard to suit shall be followed by the court and this court is only required to determine that the said procedure of the general law i.e. CPC does not came into conflict with the special law i.e. DMC Act. Secondly the Hon'ble Court had in the case of Jyoti Basu directed the names of the non candidates to be struck off from the array of the parties in the election petition and not dismissed the petition in this ground.
After having considered the submissions made before me. It is firstly evident that the objection with regard to the misjoinder of the State Election Commission and MCD as a party to the election petition has been raised by the : 30 : respondent no.1 at a highly belated stage when the evidence was about to be concluded. Secondly the objection to the misjoinder has not been raised by the respondents State Election Commission or the MCD but by the respondent no. 1 who is the returned candidate. In this regard the provisions of Order 1 Rule 13 CPC are very clear and any objection with regard to the misjoinder or nonjoinder of the parties is required to be taken at the earliest possible opportunity. The provisions of Order 1 Rule 13 CPC are reproduced as under:
13. Objections as to nonjoinder or misjoinder - All objections on the ground of nonjoinder or misjoinder shall be taken at the earliest possible opportunity and, in all the cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
Hence in view of the aforesaid it is evident that : 31 : the respondent no. 1 has waived his right to raise this objection regarding misjoinder of parties at this belated stage and even otherwise the perusal of the petition shows that the main ground of challenge to the election of respondent no. 1 is with regard to the disqualification of the returned candidate u/s. 9 as it is alleged that on the date of nominations and election he was a registered ClassI Electrical Contractor with entitlement to file tender for the unlimited amount having a registration no. 7/elect from the MCD which contract had been given by the MCD with whom the respondent no. 1 was also reported to be having subsisting contracts. Since the subsisting contract was with the MCD and the nominations were filed before the Returning Officer despite the aforesaid disqualification, hence keeping in view the peculiar facts of the present case and the grounds raised in the election petition I hereby hold that both the State Election Commission and the MCD are necessary parties. The provisions of Rule 79 read with Rule 82 of the DMC (Election of Councillors) Rule are inclusive and not : 32 : exclusive. In fact Rule 82 only provides for adding a candidate to an election as respondent if he has already not been made a respondent which can be done within the period of limitation. In a case where the court is otherwise of the view that the state election commission and MCD are necessary parties in view of the grounds raised in the election petition there would be no legal impediment in the entire act or the rules from allowing them to be impleaded and from continuing as parties more so when they themselves have no objections to the same and the presence of the Election Commission and the MCD has not in any manner embarrassed the trial of the case.
In view of my aforesaid discussion I hereby hold that there is no merit in the arguments raised by the respondent no. 1 in his application under Order 1 Rule 10 (2) CPC at this stage regarding misjoinder of parties. The Election Petition lacks material particulars:
: 33 : The respondent no. 1 has also filed an application under Sections 151 and 153 of CPC read with Section 15 and 18 of the DMC Act for correction of proceedings and has argued that the petition is liable to be dismissed in view of the non compliance of Section 15(4) of the DMC Act which is a selfcontained Code. It is contended by the Ld. counsel for the respondent no. 1 that it was mandatory for the petitioner to set out the material facts and particulars in details in order to make out a complete ground/ cause of action for challenging the election. He has submitted that as per the settled law the material facts/ particulars in respect of each ground constitutes a separate cause of action under the election law and each and very instance of violation of the provisions of the act or the right to contest election has to be set out with precision in the petition to enable the respondent to respond to the same. It is pointed out that the grounds of challenge in respect of which no foundation has been laid in the petition in the shape of material facts and particulars cannot be incorporated in the petition either by amendment or : 34 : by any other manner nor the same can be brought on record in any manner during the trial since the same could amount to introducing a fresh cause of action on fresh grounds.
Ld. counsel has further pointed out that the case as set out by the petitioner in the whole petition is that the respondent no. 1 was disqualified to contest the election because he had registered himself with the MCD as a contractor for the purposes of allotment of tenders/ contracts of electrical works and the case set up by the petitioner in para 11 and ground D of the plaint is that the mere registration of the respondent as a contractor amounts to a subsisting contract within the meaning of Section 9 of the DMC Act resulting into disqualification of the respondent no. 1 from being chosen as a Councillor. According to him, the petitioner has nowhere pleaded or set up the case or the material facts or the cause of action to the effect that the respondent no.1 had obtained any tender or contract which was subsisting within the scope and ambit of Section 9 of the DMC Act and now the petitioner cannot set up any case : 35 : either in his own evidence or to crossexamine any witness of the respondent no. 1 or by any other respondent in respect of any specific tender or contract which according to the petitioner may have been obtained/ awarded or subsisting in favour of the respondent no. 1.
Ld. Counsel for the respondent no. 1 has also submitted that mere repetition of words of a statute does not amount to a proper statement of fact and the material facts must be stated in the election petition and if they are missing then it cannot be said that a charge has been made nor can it be amplified later.
In support of his averments the Ld. Counsel has placed his reliance on the authority in the case of Samant B. Balakrishna Vs. George Fernandes reported in (1969) 3 SCC 238. According to him, an election petition must contain a concise statement and it is where such facts clearly make out a case for production of any documents than only the tribunal can call for them and allow inspection thereof to the petitioner and such power to order inspection has to be : 36 : exercised subject to the statutory restrictions. He has also placed his reliance on the authority in the case of Ram Sewak Yadav Vs. Hussain Kamil Kidwai reported in AIR 1964 SC 1249 and has pointed out that allegations in an election petition should not be vague and the pleadings should be absolutely precise and clear containing all necessary details and particulars and if in case the allegations in the petition are vague then the court at any stage can strike down or delete the pleadings which do not raise any triable issue. He has also argued that there is a distinction between the material facts and particulars and submitted that at this stage this court cannot allow the amendments since no amendment application to rectify the lacuna can be filed beyond the period of limitation seeking addition of totally new ground. He has in this regard placed his reliance on the following authorities:
1. Laxmi Narayn Nayak Vs. Ramrathan Chaturvedi and Ors. reported in (1990) 2 SCC 173.
: 37 :
2. Dhartipakar Vs. Rajiv Gandhi reported in 1987 Supp. SCC 93.
3. H.D. Revana Vs. G. Puttaswami Gowda, reported in (1999) 2 SCC 217.
4. Hardwari Lal Vs. Kanwal Singh, reported in (1972) 1 SCC 214.
5. K.D. Deshmuckh Vs. Amrit Lal Jayaswal reported in (1993) Supp. 1 SCC 50.
6. Gajanan Krishanji Bapat Vs. Dattaji Raghobaji Meghe reported in (1995) 5 SCC 347.
7. Harish Chandra Bajpai Vs. Triloki Singh reported in AIR 1957 SC 444.
8. Jeet Mohinder Singh Vs. Harminder Singh Jassi reported in (1999) 9 SCC 386.
9. Smt. Aslhing Alias Lhingjanong Vs. L.S. John and Others reported in (1984) 1 SCC 205.
I have gone through the aforesaid judgments. There can be no dispute that as per the provisions of Section : 38 : 15 (4) of the DMC Act an election petition should contain a concise statement of material facts on which the petitioner relies and such petition shall with sufficient particulars set forth the ground on which the election is called in question.
In fact Section 15 (4) of the DMC Act only contemplates sufficient particulars and whether particulars as provided are sufficient or not would depend upon the facts and circumstances of each case. It has been observed in the case of Sudershan Bhalla Vs. R.N. Aggarwal reported in ILR (1997) 2 Del. 359 that:
........ "Concise statement of material facts and full particulars mean respectively the facts necessary to formulate a complete cause of action; presenting a full picture of cause of action with such further information in detail as to make the opposite party to understand the case he will have to meet but not necessarily all the details contemplated by the term full particulars"........
: 39 : It was further observed in the aforesaid case that ingredients of a corrupt practice or an impugned act cannot take place of the particulars which an election petitioner has to enumerate in the election petition.
Hence, in view of the aforesaid it is evident that the statutory requirement of law is only to give a concise statement of the material facts alongwith sufficient particulars and as held in the case of Sudershan Bhalla Vs. R.N. Aggarwal that even where the material particulars have been stated in the petition still better particulars may be obtained even after the period of limitation.
Further the provisions of Order VI Rule 2 CPC provides that:
.... "Every pleading shall contain, and contain only a statement in concise form of the material facts of which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved....
: 40 : The guiding principle of the system of pleadings is that the pleadings should be statements in summary form and that should only state the material facts relied upon and not the evidence they are to be proved. Order VI Rule 2 CPC provides what are and what are not material facts to be pleaded.
The perusal of the plaint shows that the petitioner has challenged the election of respondent no. 1 on the ground that the respondent no. 1 was not entitled to contest the election or to file his nominations as he suffers from statutory disqualification for membership by virtue of his being the proprietor of M/s. Shri Guru Nanak Electricals, a registered ClassI electrical contractor with entitlement to file tenders for unlimited amount having registration no. 7/elect. copy of which has been placed on record which register is valid from the period 3.10.2002 to 2.10.2007. It has also been specifically pleaded by the petitioner in the petition that the respondent no. 1 did not disclose in his nomination form the : 41 : fact of his being a registered class1 contractor with the MCD and concealed this fact from the State Election Commission/ concerned authorities. The said particulars which have been sufficiently mentioned in paragraphs numbers 3, 5, 7, 8, 9, 10 and 11 of the petition apart from the fact that they have also been incorporated and mentioned in paras A to G. Hence, it is evident from the aforesaid that the concise statement of the material facts as required under Section 15 (4) and material particulars sufficiently find a mention in the petition. Even otherwise the petitioner is not required to specifically mention the details of the various subsisting contracts as on the date of elections since the same would only be in the nature of evidence in order to prove the main ground.
Even otherwise by applying the test of prejudice it is apparent that the respondent no. 1 Surjit Singh has admitted his license dated 3.10.2002 and has nowhere in his pleadings raised any objection with regard to the non mentioning of the details to show that he has been prejudiced in any manner but rather he has in his crossexamination in : 42 : the court even admitted that payment in respect of works already completed by him were still pending from the corporation. Even otherwise the respondent no. 1 is the best person who could have known about the existing work contracts he had with the MCD on the date of his nomination and elections and when the details of the subsisting contracts were brought on record by the witness from the MCD R1W1 he did not rebut or controvert the same in any manner but rather on the contrary he himself in his crossexamination admitted the fact about the payment being done from the MCD with regard to the work completed by him.
Hence, a hypertechnical approach while interpreting the various provisions of DMC Act and the DMC (Election of Councillors) Rules is impermissible and no straight jacket approach as to what would constitute a sufficient particulars can only be ascertained from the facts and circumstances of each case. The test to be adopted by this court is of prejudice caused to the returned candidate/ respondent no. 1 on account of nondisclosure of the details : 43 : which prejudice is not evident as discussed herein above isuue. Firstly, the respondent no. 1 has himself admitted his license dated 3.10.2002 which was valid till 2.10.2007; secondly at no point of time the respondent no. 1 has in his pleadings or in his examination or while crossexamining the various other witnesses brought on record any prejudice caused to him on account of non disclosure of the details of the subsisting contracts; thirdly the respondent no. 1 Surjit Singh has not rebutted or controverted the record produced by the witness from MCD R1W1 who has placed before this court the various work contracts subsisting on the date of election of respondent no. 1 and lastly as discussed herein above in view of the provisions of Order VI Rule 2 CPC and Section 15 (4) of the DMC Act, the material particulars have already been sufficiently mentioned in the election petition and I hold that the details of the subsisting contracts of which the respondent no. 1 is already deemed to be aware of are in the nature of evidence and hence they are not required to be : 44 : specifically pleaded.
In view of the aforesaid the request of the Ld. counsel for the respondent no. 1 for corrections of the proceedings and dismissal of the petition for non compliance of the provisions of Section 15 (4) of DMC Act, is held to be devoid of merits.
However before proceeding with the findings on the main issues it is necessary to brought on record that the respondent no. 1 had in his pleadings raised a specific objection with regard to the non filing of the affidavit and the verification in the petition not being in accordance with law. Though the said ground has not been pressed or orally argued yet it is necessary to bring on record that the said aspect has already been considered at the time of framing of issues and the petition was found to be duly verified in accordance with the provisions of CPC and the petition was accompanied by an affidavit for which reasons I hereby hold that the objection so raised by the respondent no. 1 in his pleadings is devoid of merits.
: 45 : ISSUE NO. 1 Whether the respondent no. 1 had sent any communication dated 12.3.2007 to the Chief Engineer (Electrical) / Addl. Commissioner and Assistant Commissioner MCD regarding surrender of his license? In case if the issue is answered in affirmative, the effect of the said communication.
The respondent no. 1 had admitted the municipal license issued to him on 3.10.2007 which was valid till 2.10.2007 and hence the onus of proving that the communication dated 12.3.2007 was sent to the Chief Engineer (electrical)/ Additional Commissioner MCD and Assistant Commissioner regarding the surrender of license by the respondent no. 1 was upon the respondent no. 1 Surjit Singh. It had been pleaded by the respondent no. 1 in his written statement that he had sent a communication to the Chief Engineer (Electrical), Additional Commissioner and Assistant Commissioner MCD on 12.3.2007 informing them : 46 : about the possibility of his being contesting the elections, the receipt of which fact has been denied by the petitioner and also the respondent no. 19, MCD.
It is however admitted by the respondent no. 1 that he had neither mentioned about this fact either in his nomination paper since according to him there was no column in the nomination form in respect of the same. He also admits that he had not mentioned this fact in the affidavit filed alongwith the nomination and also admits that he did not sent the said communication by registered AD.
Further I have also considered the contents of the aforesaid communication dated 12.3.2007 on which the respondent no. 1 is placing his reliance. The case of the respondent no. 1 is that he had dispatched the said communication to the Additional Commissioner (Engineering) MCD, Assistant Commissioner MCD and Chief Engineer (Electrical) on 12.3.2007 vide UPC. The receipt of the said communication has been specifically denied by the witness called from the MCD. In fact R1W1 : 47 : has denied having received any such communication. I have gone through the testimony of R1W1 which the respondent no. 1 has not been able to impeach.
The respondent no. 1 has not placed any certificate on record from the Post Office Malkganj to show the dispatch of the said communication by way of UPC to the department.
It has also been claimed by the respondent no. 1 in his testimony that he had served a copy of the said communication in the office of the Chief Engineer (Electrical) through his son which would be apparent from the diary register as it was duly received in the office of MCD. The witness from the office of MCD Commissioner i.e. R1W3 Sanjeev Kumar has been specifically examined on this aspect by the respondent no. 1. The witness R1W3 has produced the entire record of the dispatch register pertaining to the period 15.12.2006 to 8.5.2007 and has also proved the various entries made on 13.3.2007. He has specifically denied the entry at serial no. 7237A showing the receipt of : 48 : the communication from M/s. Shri Guru Nanak Electricals having being made by him in his hand and has specifically stated that neither the same is in his handwriting nor in the handwriting of Sanjeev Kumar Rastogi, the other LDC who was also working in the same office authorized to make entries in the said register (which LDC had been examined by the court before framing of issues and who has also denied the said entry being in his handwriting). The said witness R1W3 has specifically stated that there seems to be a manipulation on the official record and according to him as per the matter of practice and procedure he has never put any alphabet after the serial no. in the diary as appearing at serial no. 7237A and according to him it seems that the entry has been inserted later by somebody after his transfer on 23.7.2007. He has also testified that on 13.3.2007 when he had completed the diary in the evening and put a mark at the end of the page the entry at serial no. 7237A was not there as no such communication had been received. There is also an observation made by the court that the said entry has been : 49 : made in a different ink and even the handwriting is different. The witness R1W3 has also specifically deposed that the works "received" as mentioned at point X2 on Ex.R1W1/A were not in his handwriting. The respondent no. 1 has not crossexamined the said witness from the MCD office on the aforesaid aspect of manipulation and the said witness Sanjeev Kumar has stuck to his version and has reaffirmed that he did not put any stamp on Ex.R1W1/A nor the words "received" written in his handwriting.
Hence it is apparent that the witness R1W3 has specifically proved firstly that even on 13.3.2007 when he had completed the diary and had put a mark on it after closing the same, the entry at serial no. 7237A was not there; secondly that as a matter of practice he never used to put the alphabets after the serial number; thirdly that the entry made at serial no. 7237A was not in his handwriting nor in the handwriting of Sanjeev Kumar Rastogi who was the only other LDC empowered to make entry (which fact has already been admitted by Sanjeev Kumar Rastogi when he was : 50 : examined by this court prior to the framing of issues); fourthly that a different ink has been used by filling up the entry; fifthly that the diary used to remain on the table for the purposes of making emergency entries which may be received during night hours; sixthly that the words "received" on Ex.R1W1/A at point mark X are not in his hand and lastly that the said entry has been inserted later by somebody after his transfer on 23.7.2007 which aspect has not been rebutted or controverted.
In so far as the communication dated 9.4.2007 is concerned there is no dispute with regard to the receipt of the same and it is admitted by both the parties that the said license of the respondent no. 1 had been revoked only after the declaration of results pursuant to his communication dated 9.4.2007. The best evidence regarding the non delivery of the communication dated 12.3.2007 has thus come on record. The presumption u/s. 114 (f) of the Evidence Act if any with regard to the delivery of the document by UPC : 51 : stand rebutted. It was for the respondent no. 1 to prove the certificate of posting which he has failed to prove. In fact the respondent no. 1 has failed to prove the genuineness of the postal seal appearing on the certificate of posting and R1W4 Manpal Singh has testified that he cannot tell about the genuineness about the postal seals appearing on the certificate of posting till the same are verified from the records. The respondent no.1 had thereafter not called for the records regarding the postal seals maintained by the post office.
The witness from the MCD has alleged interpolations in the diary register and as observed herein above it appears that the said entry had been inserted later only to benefit the respondent no. 1 which aspect certainly calls for a probe at the departmental level.
Now coming to the contents of the communication dated 12.3.2007 which are reproduced as under:
: 52 : Respected Sir, I am a registered Municipal Contractor with registration No. 7/ELECT dated 3.10.2002 in the name of M/s SHRI GURU NANAK ELECTRICALS, 931, Punjabi Mohalla, Subzi Mandi, Delhi -
110007.
I wish to contest the election for Municipal Councillor therefore I am surrendering my license with immediate effect., moreover I am not interested for any tender or any electrical work in the MCD. In case I am unable to contest the same, my registration should not be cancelled.
Submitted for kind information.
It is apparent from the same that it is not an unequivocal and unconditional surrender by the respondent no. 1 of his license. The respondent no. 1 Surjit Singh has in his deposition as R1W2 testified that this communication dated 12.3.2007 was in the nature of an information that he : 53 : wanted to contest the elections for Municipal Councillor. He has further testified and pointed out that in the same communication he had stated that in case he is unable to contest the same his registrations should not be cancelled. Hence, clearly on the one hand the respondent no. 1 Surjit Singh is taking about surrendering his license and in the same breath he has imposed a precondition in his alleged communication dated 12.3.2007 that in case if he is unable to contest the election his registration should not be cancelled. It is a settled law that surrender has to be complete and unconditional and there can be no conditional surrender of a license and what has to be ascertained is that the respondent no. 1 should have no subsisting interest in the corporation. Hence, under these circumstances I hereby hold that even otherwise this communication dated 12.3.2007 does not constitute an unconditional surrender of registration bearing no. 7/Elect dated 3.10.2002 as contemplated under the law and this court is in agreement with the contentions made by the Ld. counsel for the petitioner that freezing the license : 54 : would only be a state of a suspended animation and not a complete surrender and the respondent no. 1 cannot be allowed to take the benefit of the same.
Lastly, it is also argued that the respondent no. 1 had at the time of filing his nominations, suppressed the material facts with regard to his being a registered classI electrical contractor with the MCD. Ld. counsel for the petitioner has pointed out that neither in his nomination form nor in the accompanying affidavit the said fact finds a mention. The respondent no. 1 has not denied the aforesaid rather he has admitted the same and has contended that as per the existing proforma there is no column where such information could have been furnished to the Returning Officer in the nomination papers and it was in this background that this information was not furnished. He has also admitted the affidavit filed by him before the Returning Officer which is present on record and shows that the said fact has not been mentioned in the same I have considered the submissions made on the : 55 : aforesaid. The fact regarding the respondent no. 1 not having mentioned about his being a registered classI contractor with the MCD in his nomination papers is justified since the prescribed proforma does not provide for any such column but this is so because it is presumed that the candidates so filing their nominations would not be suffering from any statutory disqualification. The respondent no. 1 having known that he was a registered classI electrical contractor with the MCD having subsisting work contracts and pending payments there was nothing to prevent him from disclosing this fact in his affidavit and in case if he had so surrendered his license as claimed by him vide his communication to the department dated 12.3.2007 the same fact should also have been mentioned which he has not done.
Hence in view of the aforesaid discussion I hereby decide the issue against the respondent no. 1 and in favour of the petitioner.
ISSUE NO. 2 Whether the respondent was entrusted : 56 : with any subsisting contract made with, or any work being done with the corporation? If yes then whether he is liable for disqualification as a membership for corporation in terms of Section 9 of the DMC Act.
The onus of proving this issue was upon both the parties. Before coming to the evidence on record it is first necessary to bring on record the provisions of Section 9 (i) of the DMC Act which reads as under:
.........A person shall be disqualified for chosen as, and for being a councillor 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.
Further the provisions of Section 17 (1) (a) of the DMC Act provides that : 57 : ......If the court of the District Judge is of opinion that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a Councillor, the court shall declare the election of a return candidate to be void. The most relevant witness examined is R1W1 i.e. Chief Engineer (electrical) MCD who has produced before this court all the relevant details from the records of the MCD about the subsisting contracts of the respondent no. 1 Surjit Singh and also the details of the works which have been completed by the firm of respondent no. 1 of which he is the proprietor in respect of which the payment is still pending with MCD, a fact which the respondent no. 1 has specifically admitted in his crossexamination.
However, a preliminary objection has been raised by the ld. counsel appearing on behalf of the respondent no. 1 to the admissibility of this evidence which has come on record on the directions of this court during the examination : 58 : of R1W1 i.e. R.K. Sharma. It has been vehemently argued by the Ld. counsel that charges as against a returned candidate should be proved to the hilt as in a criminal trial by clear, cogent and credible evidence. According to him the onus of proving the existence of the subsisting contracts was upon the petitioner and this court being an Election Tribunal does not have the power or jurisdiction to direct production of such a material from the MCD. He has also pointed out that since specific details of the subsisting contracts were not provided by the petitioner in the petition and hence now at this stage, the same cannot be read into evidence even after its production by the witness examined by the court. Ld. counsel for the respondent no. 1 has vehemently argued that there is a difference between the burden of proof and onus of proof and it was necessary for the petitioner to have lead his independent evidence in respect of the subsisting contracts and since this court cannot of its own asked for the production of the records from the MCD in respect of the same hence it should not be read into evidence.
: 59 : I have considered the submissions made by the Ld. counsel. Before proceeding further the provisions of Section 101 of the Evidence Act are reproduced as under:
Burden of proof: Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
In the present case the petitioner has challenged the election of the respondent no. 1 on the ground that he was a registered classI electrical contractor with the MCD with entitlement to file tenders of unlimited amount and hence was having subsisting interest in the Corporation thereby disqualifying him from contesting the election for the post of Councillor. In fact the respondent no. 1 has not denied this aspect and has rather admitted his license dated 3.10.2002 which was valid till 2.10.2007.
: 60 : According to the provisions of Section 58 of the Evidence Act the facts admitted need not be proved. Hence, the respondent no. 1 having admitted the aforesaid license dated 3.10.2002 which was valid till 2.10.2007 the burden of proof which was initially upon the petitioner to prove the license dated 3.10.2002 stood discharged in view of the admission of the respondent no. 1 and hence now the onus of proving the fact that the said license had been frozen on his request as a result of which he had no subsisting interest in the corporation as claimed by the respondent no. 1 in his pleadings now shifted upon him. I find no merit in the argument of the Ld. counsel that it was the petitioner who should have brought this material before this court.
Also the objection raised by the ld. counsel for the respondent no. 1 with regard to the non consideration of the material brought on record by the MCD witness with regard to the details of the subsisting works or pending payments has already been dealt by this court in detail while : 61 : deciding the objection raised by the respondent as to whether the proceedings were required to be corrected or not. At the cost of repetition it may be mentioned that the respondent no. 1 has himself admitted the license dated 3.10.2002 which was valid till 2.10.2007 and at no point of time he has either in his pleadings or in his examination or while crossexamining the various other witnesses proved any prejudice caused to him on account of non disclosure of the details of the subsisting contracts; he has also not rebutted or controverted the record produced by the witness from MCD R1W1 who has placed before this court the various work contracts subsisting on the date of election of respondent no. 1.
Further even when the Chief Engineer (Electrical) R1W1 was being examined and he placed on record the details of the various subsisting contracts of the respondent no. 1 and also the details of the pending payment in respect of the work done by the respondent pursuant to the contracts given to him from time to time an objection was raised by the Ld. counsel for the respondent no. 1 to the same being : 62 : allowed to be brought on record which objection was over rulled by this court in view of the provisions of Section 165 of the Evidence Act which give unfettered powers to the court to discover or to obtain proper proof of facts relevant or irrelevant or to direct the production of any document or thing.
I have gone through the various authorities placed on record by the Ld. counsel for the respondent no. 1 which are as under:
1. N.C. Zealing Vs. Anu Newmai reported in 1980 Supp.
SC 591.
2. Dhartipakar Madan Lal Aggarwal Vs. Rajiv Gandhi reported in 1987 Supp. SC 93.
3. Hari Shankar Jain Vs. Sonia Gandhi reported in (2001) 8 SCC 233.
4. Goka Ramalingam Vs. Boddu Abraham and another reported in AIR 1970 SC 741.
5. Sri Harsingh Charan Mohanty Vs. Surendra Mohanty reported in AIR 1974 SC 47.
: 63 :
6. Projenton Momin Vs. Elwin Sangma reported in AIR 1973 Guahati 145.
7. Samar Singh Vs. Kedar Nath reported in 1987 (Supp.) SCC 663.
After having gone through the said authorities I hereby hold that there is nothing in the existing statutory which prevents an Election Tribunal from calling for production of any records in order to arrive at the truth and hold that the power of the court to do justice is inherent.
The witness R1W1 who is the Chief Engineer (Electrical) has proved before this court the relevant record duly certified, with regard to the contracts awarded to M/s. Guru Nank Electrical which also cover the cases of payment with regard to M/s. Guru Nanak Electrical of which the respondent no. 1 Surjit Singh is the proprietor. The said details which the witness has placed on record duly certified as per the official record are as under:
1. Providing of lighting arrangement in B block, Ind. Ara Jhilmil colony in the AC44 under Shahdara South : 64 : Zone which work order was awarded vide No. 173 EEE VV on 14.3.2007.
2. Providing of lighting near Karkardooma near MCD school and gate of Rajiv Camp , Ward No. 80 which work order was awarded vide No 183 dated 16.3.2007.
3. Providing of boring in Maternity Home at Khichri Pur, Ward no. 80 under Shahdara South Zone. which work order was awarded vide No. 200 dated 30.3.2007
5. Opening of Ayurvedic Panchkarma Hospital at Amusement Center Sh. Ram Nagar Delhi32 Ward No. 87, S.H.:Imp. of EI & Fans, work order No. 198/02.03.07. Date of commencement is 3.3.2007 and date of completion is 17.03.07. Payment is still pending.
6. Improvisation of street light arrangement in Eblock Nand Nagari, Pocket A,B,C,D, E and F pocket GTB Enclave, 2142 Janta Flat Dilshad Garden, Harsh Vihar, Village Khera Jagtpuri Extn. Tahirpur Village Leprosy Complex W83 under Shahdara North Zone, work : 65 : order No. 191/15.02.07. Date of commencement 18.2.2007 and ate of completion 23.04.07. Payment is still pending.
7. Providing of semi high mast pole at Saboli village Rana Chowk and balmiki Mohalla Gokulpur Village Ward No. 86, Shadhara North Zone, work order No. 194/23.02.07. Date of commencement is 28.2.2007 and date of completion 22.03.07. Payment is still pending.
8. Repairing of various water boosting submersible pump set installed at L & K block staff Qtrs, Sunder Nagri W 84 under Shahdara North Zone, work order No. 171/23.01.07. Date of commencement is 24.01.07 and date of completion 20.04.07. Payment is still pending.
9. Completion of 3 No. Court Room for Mpl. Magistrate in the Compound of EEXXII of C21 Yamuna Vihar Sh. (N) Zone SH:P/o EI & Fans, work order No. 208/22.03.07. Date of commencement of work is 20.4.2007 and work still in progress.
The witness R1W1 has also placed on record the : 66 : certificates issued by the various Executive Engineers showing that on the date of the nomination and election the payment was due to M/s. Guru Nanak Electricals in as many as 20 cases, the substantial details of which are mentioned in the certificates Ex.R1W1/B and Ex.R1W1/C from Shahdara North and Shahdara South Zones. The respondent no. 1 has in his crossexamination has himself admitted that payment is due to him from the MCD for works already completed. Hence apparently the statement made by the respondent no. 1 that he has not done any work after December 2006 stands falsified in view of the documentary details furnished in the court showing the commencement of works by the respondent no. 1 some of which were even after the date of nomination.
Ld. counsel for the respondent no. 1 has argued that a mere registration only entitles the respondent to apply for future tenders, works or contracts of the Corporation and no contract can be awarded merely on the basis of the aforesaid registration. He has submitted that only because : 67 : the payment is due to the respondent no. 1 from the MCD, this could not tantamount to any subsisting interest of the respondent no. 1 with the corporation disentitling him from contesting the elections for Councillor.
It is a settled law that execution of any work or the performance of any service undertake does not cease even if the goods stand supplied or the work stands executed or the services undertaken stand performed and the contract subsists till the payment is made or the contract stands fully discharged. This is the view so taken by the Hon'ble Supreme Court in the case of Laliteshwar Prashad Vs. Bateshwar Prashad reported in AIR 1968 (SC) 581 which is binding on this court.
It is also a settled law that accruing benefit need not be direct and the possibility or even probability of an actual resulting benefit is sufficient. Object is to ensure that an interpretation which conforms to the sound principles of democratic polity of a government of the people, by the people and for the people prevails in true sense and the : 68 : apparent conflict between individual interest and of public duty that might otherwise inevitably arise is prevented.
In view of the aforesaid unrebutted and uncorroborated evidence which has come on record which this court will not ignore the evidence which has now come on record with regard to the subsisting contract by adopting a hyper technical approach as held in the case of Rupadhar Pujari Vs. Gangadhar Bhatra reported in 2004 (7) SCC 654 wherein it had been held that:
........"The procedural law relating to election petitions should not be interpreted with too much rigidity and subtlety and the petitioner is entitled to, on the facts established, should not ordinarily be denied merely because the relief clause in the pleadings was not very happily worded......."
: 69 : Hence, I hereby hold that the respondent no. 1 had interest in terms of the subsisting contracts on the date of nomination and elections in view of his registration as ClassI electrical contractor vide registration no. 7/ELECT. dated 3.10.2002 which was valid till 2.10.2007 which disentitled him to contest the MCD election for the post of the Councillor in view of the statutory disqualification provided under the provisions of Section 9 (i) of DMC Act. Issue is hereby decided against the respondent no. 1 in favour of the petitioner.
ISSUE NO. 3 Relief In view of my findings with regard to the aforesaid issues I hereby hold that this court is under a legal obligation to safe guard the true democratic polity of a government for the people, of the people and by the people in order to ensure that the principle that no person having a : 70 : subsisting financial interest with the corporation is allowed to contest the elections in order to prevent any clash between his personal interest and public duty prevails.
In the present case it has been duly proved that the respondent no. 1 had interest in as many as 20 subsisting contracts made between him in his capacity as Proprietor of M/s. Guru Nanak Electricals and the MCD which included the cases of pending payments in respect of works already completed by him as on the date of nomination and the elections which disqualified him from being chosen as a councillor as per the provisions of Section 9 (i) of the DMC Act and his election is hereby declared as void in terms of Section 17 (1) (a) of the DMC Act.
In view of the aforesaid the result in respect of Ward No. 12 GTB Nagar declared and notified on 7.4.2007 is hereby set aside. The State Election Commission shall accordingly proceed to declare such other candidate who has polled the next highest number of votes as a Returned : 71 : Candidate within a period of 15 days from today under intimation to this court.
Further, in terms of the findings of this court in respect of issue no. 1 the Commissioner MCD is directed to institute a high level probe with regard to the alleged manipulation/ interpolations made in the diary register at serial no. 7237A pertaining to the period 15.12.2006 to 8.5.2007 the report of which should be furnished to this court within a period of 2 months from today.
It has been a painful exercise for this court to dis regard the mandate of the majority of the electors by setting aside the election of the respondent no. 1 on the ground of statutory disqualification. It is thereby desirable for the political parties to ensure that the candidates so nominated by them to be fielded are qualified to contest the election and that they do not suffer from any statutory disqualification as has been in the present case.
Copy of this order be sent to the State Election Commission and the Commissioner MCD for the purpose of : 72 : compliance. Parties to bear their own costs. Petition stands disposed off accordingly. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI
LAU)
Dated: 18.10.2007 Addl. District Judge: Delhi
: 73 :
18.10.2007
Present: Petitioner in person.
Respondent no. 1 in person.
None for the other respondents.
Vide my separate detailed order dictated and announced in the open court, the election of the respondent no. 1 is hereby set aside. The State Election Commission shall accordingly proceed to declare such other candidate who has polled the next highest number of votes as a Returned Candidate within a period of 15 days from today under intimation to this court.
Further the Commissioner MCD is directed to institute a high level probe with regard to the alleged manipulation/ interpolations made in the diary register at serial no. 7237A pertaining to the period 15.12.2006 to 8.5.2007 the report of which should be furnished to this court within a period of 2 months from today.
Copy of the detailed order be sent to the State Election Commission and the Commissioner MCD for compliance. Parties to bear their own costs. Petition stands disposed off accordingly. File be consigned to Record Room.
: 74 : ADJ: DELHI 18.10.2007 : 75 :