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IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
SAROJ - Petitioner
Versus
DELHI STATE ELECTION COMMISSION & ANR. - Respondents
W.P. (C) No.3057/2017 and C.M. No.13372/2017
Decided On : 08-05-2017
ELECTION - NOMINATION - REJECTION - SCRUTINY - DEFECT - SUBSTANTIAL CHARACTER - NATURAL JUSTICE - ELECTION RULES, 2012 - RULE 19(3), 19(5), 22(2), 22(4), 22(5) - DELHI MUNICIPAL CORPORATION ACT, 1957 - SECTION 15 - CONSTITUTION OF INDIA - ARTICLE 226, 243ZG, 329(b) - REPRESENTATION OF THE PEOPLE ACT, 1951 - SECTION 33(4), 36(5) - ELECTION COMMISSION HANDBOOK - CLAUSE 5.15.1.
Fact of the Case:
The petitioner, a woman, filed her nomination for the upcoming municipal elections in Delhi, reserved for women belonging to the scheduled caste. The Returning Officer (RO) rejected her nomination on the ground that she had not made a declaration in the nomination paper that she was a woman, as required by Rule 19(3) of the Delhi Municipal Corporation (Election of Councillor) Rules, 2012 (the Rules). The petitioner challenged the RO's decision by filing a writ petition in the High Court.
Finding of the Court:
The High Court allowed the writ petition and directed the RO to accept the petitioner's nomination. The Court held that the RO's decision was arbitrary and mala fide, and that it violated the principles of natural justice. The Court also held that the defect in the nomination paper was not of a substantial character, and that the RO should have allowed the petitioner to rectify the defect under Rule 19(5) of the Rules.
Issues: 1. Whether the High Court had jurisdiction to entertain the writ petition in view of the bar under Article 329(b) of the Constitution of India and Section 15 of the Delhi Municipal Corporation Act, 1957? 2. Whether the RO's decision to reject the petitioner's nomination was arbitrary and mala fide? 3. Whether the RO violated the principles of natural justice by not giving the petitioner an opportunity to rectify the defect in her nomination paper? 4. Whether the defect in the nomination paper was of a substantial character?
Ratio Decidendi: 1. The High Court had jurisdiction to entertain the writ petition as the petitioner was not seeking to call in question the election, but was only seeking to correct an error in the scrutiny of her nomination paper. 2. The RO's decision to reject the petitioner's nomination was arbitrary and mala fide as there was no reasonable basis for the rejection and the RO did not apply his mind to the matter. 3. The RO violated the principles of natural justice by not giving the petitioner an opportunity to rectify the defect in her nomination paper, as required by Rule 22(5) of the Rules. 4. The defect in the nomination paper was not of a substantial character as it was clear from the other documents submitted by the petitioner that she was a woman.
Final Decision: The High Court's decision was upheld by the Supreme Court.
VIPIN SANGHI, J.
1. The petitioner has preferred the present writ petition to assail the order dated 05.04.2017 passed by the Returning Officer/Scrutinising Officer (referred to as the RO/SO) for Ward No.0001E, 0002E, 0003E and 0004E of the East Delhi Municipal Corporation (EDMC). By the impugned order, the RO/SO has rejected the nomination paper filed by the petitioner offering her candidature as a candidate for election as a municipal councillor in Ward No.3E of the EDMC.
2. The petitioner states that she is a lady, social worker and a politician. Being desirous of contesting the upcoming municipal elections, the petitioner was set up as a candidate by the Bhartiya Janta Party from Ward No.3E, Trilokpuri (West) of EDMC, which is reserved for women only belonging to the scheduled caste. On 03.04.2017, the petitioner filed her nomination paper with the requisite documents. Her nomination paper was scrutinised by respondent no.2/RO/SO on 05.04.2017. On the same day, by the impugned order, her nomination has been rejected. The impugned order, insofar as it is relevant, reads as follows:
“The said nomination paper was scrutinised and placed for inspection to all other candidates of the same ward and election observer also.
Rule 22(2)(a) & (b) of Delhi Municipal Corporation (Election of Councillor) Rules 2012 provides that:
(2) The Scrutinising Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination paper on any of the following grounds:-
(a) That on the date fixed for the scrutiny of nomination the candidate earlier is not qualified or is disqualified for being chosen as a councillor under the Act: or
(b) That there has been a failure to comply with any of the provisions of rules 18, 19 and 20.
Rules 19(3) of Delhi Municipal Corporation (Election of Councillor) Rules 2012 provide that-
“In a ward where any seat is reserved for woman, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless her nomination paper contains a declaration made by her that she is a women”.
The seat of ward no.003E is reserved for SC (women) candidate by the State Election Commission, Delhi.
During the scrutiny, the following discrepancy was observed:-
1. The said nomination of Smt. Saroj was not contained with a declaration made by her that she is a women and she has also failed to tick the mark on male or female in the said nomination paper which is violation of Rules 19(3) of Delhi Municipal Corporation (Election of Councillor) Rules 2012. During the scrutiny the undersigned marked a round with red ink on the said discrepancy on the part of the said nomination paper.
Thus it is clearly established that Smt. Saroj has failed to comply the provision of the Rules 19(3) & 22(2) (a) & (b) of Delhi Municipal Corporation (Election of Councillor) Rules 2012.
Hence, in the above mentioned circumstances and provisions mentioned in the Delhi Municipal Corporation (Election of Councillor) Rules 2012, the said nomination paper bearing no.08 of Smt. Saroj for the ward no.03E of EDMC is hereby rejected”. (emphasis supplied)
3. The submission of learned senior counsel for the petitioner is that the impugned order suffers from complete non application of mind and is arbitrary. It has been passed in violation of the Delhi Municipal Corporation (Election of Councillor) Rules 2012 (the Rules). The petitioner submits that a perusal of the nomination paper - copy whereof has been placed on record, would show that the petitioner filed along with the nomination paper, her photographs which evidence the fact that she is a woman. Moreover, the petitioner had also declared the name of her ‘husband’ as Sher Singh. The petitioner also seeks to place reliance on the affidavit filed by the petitioner in Form No.21 in compliance of Rule 18(2) of the Rules. In the
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