Non-disclosure of material information by a candidate can materially affect the election result and deprive voters of their fundamental right to information, leading to the vacancy of the seat for fresh elections.

S. Muralidhar, J.

1. The Petitioner was declared elected to Municipal Ward No. 153, Darya Ganj in the elections held on 5th April 2007. The said election was challenged by Respondent No. 1, Ramesh Dutta, on the ground that the Petitioner had suppressed material information regarding his holding of a licence for a kerosene oil depot ("KOD") at the time of filing of his nomination papers. By the judgment dated 3rd December 2008, the learned Additional District Judge ("ADJ") while allowing Election Petition No. 49 of 2007 filed by Respondent No. 1, also declared him elected to Ward No. 153 on the basis of having secured the next highest number of votes. This petition has been filed challenging the said judgment. By an order dated 18th December 2008, this Court stayed the operation of the impugned judgment.

Factual background

2. It may be mentioned at the outset that the election to Ward No. 153, Darya Ganj was a multi-cornered one. Twelve candidates contested the elections. The Petitioner was the official candidate of Bhartiya Janta Party ("BJP"). Ramesh Dutta, Respondent No. 1, was the official candidate of the Indian National Congress ("INC"). The total number of votes cast was 8367. The Petitioner got the highest number of votes, i.e., 3853 votes. The next highest number was secured by Respondent No. 1 who got 2526 votes.

3. There were as many as eleven issues framed by the learned ADJ. The four issues which were decided in favour of the election Petitioner, i.e. Respondent No. 1 herein, and on the basis of which the election of the Petitioner was set aside were the following:

(x) Whether the Respondent No. 1 has suppressed the material information regarding owning of oil depot at the time of filing of his nomination papers before the Election Office? If yes its effect.

(xi) Whether the election has not been conducted fairly by the officials of the election Commissioner and the procedure prescribed under the Act and Rules have not been followed? If yes its effect.

(xii) Whether the Petitioner is entitled to the relief of declaration and the election of the Respondent No. 1 is liable to the declared as null and void?

(xiii) Whether in case if the Issue No. 12 is decided in affirmative the Petitioner is entitled to be declared as a returned candidate?

4. The learned ADJ clubbed issue Nos. x and xi and concluded that the election of the Petitioner had been materially affected on account of non-declaration of his running a KOD under licence No. 3740 of 1994 in the premises at 86/1, Sarai Kale Khan under the name of Vashisth Kerosene Oil Depot of which he was the sole proprietor.

5. Issue Nos. xii and xiii were again clubbed together and Respondent No. 1 who secured the next highest number of votes after the Petitioner was, in view of Section 17(1)(d)(iv) of the Delhi Municipal Corporation Act, 1957 ("DMC Act"), declared as the duly elected candidate to Ward No. 153 of Darya Ganj.

Submissions of counsel

6. Mr. Laliet Kumar, learned Counsel appearing for the Petitioner, submitted that under Sections 17(1)(d)(i) and 17(1)(d)(iv) of the DMC Act, it has to be shown that the result of the election had been materially affected either by improper acceptance of the Petitioner's nomination papers or on account of non-compliance with the provisions of the Act or of any rules or orders thereunder. Mr. Laliet Kumar submitted that the election petition itself did not contain an averment that the election had been materially affected on account of non-disclosure of the holding of a KOD licence. Further it was not specifically pleaded that this resulted in an improper acceptance of the Petitioner's nomination papers in terms of Section 17(1)(d)(i) and (iv) of the DMC Act. Reliance was placed by Mr. Laliet Kumar on the decision of the Supreme Court in Kalyan Singh Chouhan v. CP Joshi 2011 (1) SCALE 718. It is submitted that no objection was raised by Respondent No. 1 at the time of submitting of the nomination papers. Even otherwise the Petitioner had