W.P.(C) No. 4603 of 2008 & CM No. 8862 of 2008 (for stay)

1. The challenge in this petition under Article 226 of the Constitution is to a judgment dated 4th June 2008 passed by the Additional District Judge („ADJ?) declaring the election of the Petitioner, Vikas of the Indian National Congress (INC), to the Ward No. 78 i.e. Majnu-Ka-Tila of the Municipal Corporation of Delhi („MCD?) to be null and void. By the impugned judgment, learned ADJ also held that as a consequence in terms of Section 19 (1)(c) of the Delhi Municipal Corporation Act, 1957 („DMC Act?) Respondent No.1 Shri Satish Kumar of the Bharatiya Janata Party (BJP) should be declared elected as Councillor of the said Ward No.78. Petitioner’s nomination paper not accompanied by Forms A and B.

2. The first issue framed by the learned ADJ on the basis of the pleadings was whether the nomination papers of the elected candidate i.e. the Petitioner herein, being the duly authorised substitute candidate of the INC, were filed in time along with Form A and B of the nomination papers? The issue was answered in the negative i.e. against the Petitioner herein.

3. In terms of Clause 5(a) of the Municipal Corporation of Delhi Election Symbols (Reservation & Allotment) Order 2007 („MCD Election Symbols Order?) a candidate is deemed to have been set up by a political party if and only if the candidate has made a declaration to that effect in the nomination paper filed by him. Under Clause 5(c) “a notice in Form B of setting up the candidate has to be delivered “not later than 3 pm on the last date of filing nomination, in writing, to the Returning Officer („RO?) of the ward to which the candidate is contesting and State Election Commission („SEC?) of NCT Delhi by the party concerned.” Under Clause 5(d), the notice in Form B has to be signed by a person “authorised in Form A by the President or Secretary of the party, in ink.” It is stated therein that even a photostat or cyclostyled copy of that form is acceptable “if the same is signed by the authorised person of the National/State Political Party in ink/ball pen.” Under Clause 5(e), the name and specimen signature of such authorised person in Form A should be communicated to the RO concerned as well as the SEC of the NCT of Delhi “not later than 3 pm on the last date fixed for filing nominations.” Under Clause 5(f) any subsequent authorization by a National or State Party cancelling or substituting the earlier authorization in Form B should be sent to the RO as well as the SEC so as to be received by them “not later than 3 pm on the last date for making nomination.” Further, the subsequent authorization in Form B has to be signed by the person authorised in Form A and “has to be intimated in Form A and is to be unambiguous and clearly showing that it either cancels or substitutes the earlier authorization as the case may be.” Under Clause 5(g), if more than one notice in Form B are received by the RO/SEC in respect of two or more candidates in a Ward from the same political party and that political party fails to indicate in such notices in Form B that one of these notices is cancelled or supersedes all other previous notices, the RO shall accept the notice in Form B in respect of that candidate whose nomination paper was first delivered to him, and the remaining candidates shall not be treated as candidates set up by such political party and their nominations shall also be rejected. Appended to the aforementioned Order in Schedule 2 are the proforma of Form A and Form B.

4. In the present case, the Petitioner claimed to be a substitute candidate for Shri Charan Dass the official candidate of the INC for Ward No. 78. Shri Charan Dass filed his nomination papers on 17th March 2007. The nomination form of Shri Charan Dass was accompanied by the Form A and B. The Form A which was enclosed with the nomination form of Shri Charan Dass was marked as Exhibit CW1/11. The said Form A was signed by Shri Ashok Gehlot, Genera