Back
2018 Supreme(Del) 844
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA, CHANDER SHEKHAR, JJ.
KAILASH GAHLOT & ORS. - Petitioners
Versus
ELECTION COMMISSION OF INDIA & ORS. - Respondents
WRIT PETITION (CIVIL) Nos. 750, 751, 752, 1121, 1122, 1123, 1124 of 2018
Decided On : 23-03-2018
For the Petitioners:Mr. K.V. Vishwanathan, Sr. Advocate with Mr. Manish Vashist, Mr. Sameer Vashist, Mr. J.P. Gupta, Mr. Rikky Gupta, Ms. Trisha Nagpal, Ms. Astha Gupta, Mr. Manashwy Jha and Mr. Ravi Raghunath, Advocates.
For the Respondents:Mr. Amit Sharma, Mr. Dipesh Sinha, Ms. Ayiala Imti and Mr. Prateek Kumar, Advocates, Mr. Sanjay Jain, ASG with Mr. Anil Soni, CGSC, Ms. Rajul Jain with Mr. Yuvraj Sharma, Advocates, Mr. Anuj Aggarwal, ASC, Mr. Mudit Gupta and Mr. Sangam Kumar, Advocates.
Headnote:
Government of National Capital Territory of Delhi Act, 1991 - Section 15(4) - Government of Union Territories Act, 1963 - Section 14(4) - Constitution of India, 1950 - Articles 103, 192 - Reference - Opinion of election commission - Natural justice - Violation of - Oral arguments and elucidation on the legal position as well as factual matrix is required and necessary - This is apparent also from the orders passed by the Commission - ECI having given their opinion have become functus officio - Once the impugned opinion and order are set-aside, proceedings before the ECI would continue from the stage the error and lapse had occurred - In light of the statutory provisions and the legal position ECI has to render and give their opinion on the Reference - Reference made by the President to the ECI is valid - Order passed by the ECI is valid and in accordance with law - Opinion of the ECI is vitiated - Writ of Certiorari is issued - Opinion and the consequent order for violation of principles of natural justice - Order of remand is passed to the ECI to hear arguments and decide the all-important and seminal issue - Writ petitions are partly allowed.
Government of National Capital Territory of Delhi Act, 1991 - Section 15(4) - Government of Union Territories Act, 1963 - Section 14(4) - Members of Legislative Assembly - Disqualification - Opportunity of hearing, denied - Violation of natural justice - Power of judicial review - Whether the order and opinion of the ECI and order are contrary to law and should they be struck down - Order of Reference was not valid in the eyes of law for a formal reference was not made by the President - ECI's order refusing to accept petitioners' objection to continuance of the reference was invalid - Oral hearing and arguments were not heard by the ECI before rendering opinion - Sunil Arora took charge as a member of ECI and had not participated in any hearing - Yet he was a signatory to the opinion - ECI's opinion was flawed on both facts and law - Legal principle and tests applied to determine and decide when an elected person would be disqualified for holding an office of profit under Government, were erroneous and contrary to law.
Representation of People Act, 1951 - Section 146, 146B - Election commission - Exercise of power - Similarity in provision - Section 146 should not be bifurcated and divided into parts - Section 146 in simple words is an enabling provision which gives power to the Commission to ask the parties to file affidavit and submit documents in connection with any inquiry - Where the ECI for decisive opinion deems it appropriate, it could direct issue of summon and enforce attendance - Commission while doing so, exercises power as exercised by civil courts while trying a suit under Code of Civil Procedure, 1908 - Held, powers conferred on the ECI which are similar to powers of the civil court - It would be appropriate to hold that inquiry proceedings under Chapter IV relating to disqualification of members are in the nature of quasi-judicial proceedings.
SANJIV KHANNA, J.
Writ petitioners, 20 in number, who were elected in February, 2015 as members of the Legislative Assembly of the National Capital Territory of Delhi have filed the afore-stated writ petitions challenging their disqualification. Prayer clause of the amended writ petition in the case of Kailash Gahlot, which is treated as lead case, reads as under :-
“1. A Writ of Certiorari or any other appropriate Writ to quash/set-aside the opinion dated 19.01.2018 rendered by the Respondent no.1 in case Reference no. 5 of 2015 bearing title as Prashant Patel vs. Praveen Kumar & 20 other MLA's being rendered without affording any opportunity of hearing to the Petitioners and being against the principles of natural justice and without considering the facts as well as law pleaded by the Petitioners before the Respondent No.1 and also being ultra vires, unconstitutional and null and void.
2. A Writ of Certiorari or any other appropriate Writ to Quash/Set-Aside the Notification Dated 20.01.2018 published in the Official Gazatte of India, Extraordinary, Part-II, Section 3-Sub Section (ii) bearing Number 293, Published on 21.01.2018 by Respondent No.2 being ultra vires, unconstitutional, null and void and against the principles of Natural Justice, which was issued in consequence of the opinion rendered by Respondent No.1.
3. A Writ of Mandamus or any other appropriate Writ directing Respondent No.1 to conduct the proceedings of Reference Case No. 5 of 2015 in accordance with law and by following and adhering to the principles of natural justice and further declare that till such time the re-hearing takes place the Petitioners shall continue to hold the post of Members of Legislative Assembly of Delhi.
3(a) A Writ of Certiorari or any other appropriate writ be passed declaring order dated 23.06.2017 passed by the Election Commission of India to be null and void or unsustainable in the eyes of law.
4. Any other Writ or other appropriate Writ in the facts of the present matter.”
2. The petitioners are primarily seeking setting aside and quashing of :
(i) Notification/order dated 20th January, 2018 under Section 15 (4) of the Government of National Capital Territory of Delhi Act, 1991 ('GNCTD Act', for short) disqualifying them as members of the Legislative Assembly of the National Capital Territory of Delhi, in view of the opinion of the Election Commission of India (hereinafter referred to as 'ECI' and sometimes for convenience as Election Commission/ Commission) dated 19th January, 2018 in Reference Case No.5 of 2015.
(ii) ECI's opinion dated 19th January, 2018 that the petitioners on appointment as Parliament Secretaries to the Ministers vide order dated 13th March, 2015 had held "office of profit under the government" and thus, they had incurred disqualification to serve as a member of the Legislative Assembly.
(iii) ECI's order dated 23rd June, 2017 refusing to accept petitioners' objection to the Reference as the order dated 13th March, 2015 appointing the petitioners as Parliament Secretaries had been set aside by the Delhi High Court in Writ Petition (Civil) No.4714/2015 vide judgement dated 8th September, 2016.
Preliminary Objection of the ECI
3. Before we refer to the facts, we must deal with and reject the preliminary objection of the ECI that the writ petitions should be dismissed as the petitioners have not challenged the order of the President of India dated 20th January, 2018, but have challenged Notification of the same date.
4. Petitioners vide prayer clause 2 seek issue of Writ of Certiorari or any other appropriate Writ for quashing/setting aside Notification dated 20th January, 2018 published in the Official Gazette on 21st January, 2018, being ultra vires, unconstitutional etc, issued in consequence of the opinion rendered by the ECI. Notification dated 20th January, 2018 that publishes the order passed by the
