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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Sahai Endlaw, J.
Nand Kishore Garg – Appellant
Versus
Jitender Singh Tomar And Others – Respondent
Election Petition No. 2 of 2015
Decided on : 17-01-2020
The election of the respondent no.1 to the Legislative Assembly of NCT of Delhi from AC-16 Tri Nagar Constituency, in the General Elections to the Legislative Assembly of NCT of Delhi, held in the year 2015 has been materially affected by improper acceptance of the nomination of the respondent No.1 and by a corrupt practice aforesaid committed in the interest of the respondent No.1 by the respondent No.1 and the election of the respondent No.1 is thus void.
Fact of the Case:
The petitioner challenged the election of the respondent no.1 to the Legislative Assembly of NCT of Delhi from AC-16 Tri Nagar Constituency, in the General Elections to the Legislative Assembly of NCT of Delhi, held in the year 2015. The petitioner alleged that the respondent no.1, contesting the election as a candidate of Aam Adami Party, (AAP), was declared elected with 63,012 votes as against the petitioner, at second place, with 40,701 votes; that the result of the election, insofar the respondent no.1, has been materially affected by the improper acceptance of nomination, containing false information regarding educational qualification of respondent no.1; that the respondent no.1, at the time of filing nomination and thereafter, has continued to misrepresent himself to be a law graduate and an Advocate and has thus been successful in exercising undue influence over the electors/voters, which amounts to a 'corrupt practice' within the meaning of the Representation of the People Act, 1951; that the respondent no.1 has indulged in creation of false, forged and fabricated documents in the form of his undergraduate degree/mark-sheet of Dr. Ram Manohar Lohia Avadh University, Faizabad, UP; that the respondent no.1, while furnishing false information to the effect that his highest educational qualification is LL.B., and suppressing his alleged two year graduation degree from Avadh University, has committed a corrupt practice under Section 123(4) of the Representation of the People Act; that the act of the respondent no.1, of withholding the relevant information of his alleged two year degree and mark-sheet of Avadh University and circulating election material describing himself to be an Advocate, has materially affected the result of the election; that the respondent no.1 has succeeded in befooling the voters and in persuading the Chief Minister into making him the Law Minister; that the petitioner has lost the election on account of undue influence and corrupt practice undertaken by the respondent no.1; and, that the respondent no.1's false declaration and concealment in his affidavit qua his educational qualification was in the special knowledge of the respondent no.1 and the respondent no.1 owed a duty to disclose the full truth in the affidavit.
Finding of the Court:
The court found that the respondent no.1 did not have the requisite qualification for admission to the three years LL.B. programme, though was admitted therefor and obtained an LL.B. degree and on the basis whereof was enrolled with the Bar Council of Delhi as an Advocate. The court also found that the respondent no.1, even if not aware of the eligibility requirement of TMBU, of three years graduation, for admission to three years LL.B. programme, was certainly aware of being not a graduate at all from Avadh University and, of the graduation degree in B.Sc. relied upon by him for seeking admission and for seeking enrollment with the Bar Council of Delhi, being non-existent and fabricated.
Issues: 1. Whether the respondent no.1 furnished false information of his educational qualification in the affidavit filed with his nomination paper? 2. Whether the respondent no.1 has lawfully obtained a LL.B. Degree and was duly enrolled as an Advocate at the time of filing his nomination? 3. Whether the nomination of respondent no.1 has been improperly accepted? 4. Whether the respondent no.1 published statements of facts which were false and which he did not believe to be true in relation to his personal character/educational qualifications being statements reasonably calculated to unduly influence the prospect of his election which amounts to corrupt practice? 5. Whether any alleged corrupt practice has resulted in inducement and thwarted the free exercise of the Electoral Right of the Voter? 6. Whether the election of respondent no.1 is liable to be declared null and void?
Ratio Decidendi: The court held that the respondent no.1 made a wrongful disclosure in the Nomination Form of the election and as reasoned in the order dated 21st September, 2016, the acceptance of his nomination with false particulars and to which objection was raised by respondent no.4 Mohd. Saleem at the contemporaneous time and inspite whereof the respondent no.1 contested the election and his nomination was accepted, was invalid. Once the nomination is found to have been wrongly accepted, the election necessarily has to be set aside.
Final Decision: The court declared the election of the respondent no.1 to the Legislative Assembly of NCT of Delhi from AC-16 Tri Nagar Constituency, in the General Elections to the Legislative Assembly of NCT of Delhi, held in the year 2015 void.
JUDGMENT :
Rajiv Sahai Endlaw, J.
1. The petition challenges the election of the respondent no.1 to the Legislative Assembly of NCT of Delhi from AC-16 Tri Nagar Constituency, in the General Elections to the Legislative Assembly of NCT of Delhi, held in the year 2015.
2. The petition came up first before this Court on 23rd March, 2015 and thereafter on 25th March, 2015, when notice thereof was ordered to be issued and vide ex parte ad interim order, the respondent no.15 i.e. SDM, Kotwali, being the Returning Officer of the subject election, was directed to preserve the entire election records including nomination form, affidavit accompanying the nomination form, objections, pre-publication approvals of election materials and to file the same before this Court.
3. The respondent no.1 filed IA No.17167/2015 under Section 151 CPC, which vide order dated 23rd September, 2015 was ordered to be treated as under Order VII Rule 11 of CPC. Vide order dated 11th December, 2015, pleadings in the Election Petition were ordered to be completed notwithstanding the pendency of the application under Order VII Rule 11 CPC.
4. None appeared for the respondents no. 2 to 4 and 8 to 14 despite service; they were vide order dated 11th December, 2015 ordered to be proceeded against ex parte. None appeared for the respondent no.5 also despite service by publication.
5. The petition challenges the election of respondent no.1, pleading (i) that the petitioner is an elector/voter in the subject assembly constituency and also contested the subject election as a candidate of Bhartiya Janata Party; (ii) the respondents no. 1 to 12 were other contesting candidates from the said constituency and the respondents no. 13 and 14 had also filed their nominations for the subject election but their nominations were rejected by the respondent no.15 Returning Officer; (iii) that the respondent no.1, contesting the election as a candidate of Aam Adami Party, (AAP), was declared elected with 63,012 votes as against the petitioner, at second place, with 40,701 votes; (iv) that the result of the election, insofar the respondent no.1, has been materially affected by the improper acceptance of nomination, containing false information regarding educational qualification of respondent no.1; (v) that the respondent no.1, at the time of filing nomination and thereafter, has continued to misrepresent himself to be a law graduate and an Advocate and has thus been successful in exercising undue influence over the electors/voters, which amounts to a 'corrupt practice' within the meaning of the Representation of the People Act, 1951; (vi) that though the nomination form requires the candidate to give full details of all educational qualifications, the respondent no.1 gave details of only his LL.B. qualification and not about the preceding qualifications/eligibilities; (vii) that the highest educational qualification, of law graduate, declared by the respondent no.1 is false and bogus; (viii) that the respondent no.1, is not even a graduate and the question of the respondent no.1 getting admission in law college for a three years law program did not arise; (ix) consequently, the respondent no.1's enrolment with the Bar Council of Delhi and his claim of being an Advocate, are also false, incorrect and bogus; (x) that for admission into a three year programme in a law college, a three year graduation degree is a must; a bare perusal of the graduation degree of the respondent no.1 shows that it was a two years and not a three years degree; the respondent no.1 thus did not possess the requisite qualification for admission to the three years law program; (xi) the respondent no.1, even before notification of the election, had been campaigning as possessing an LL.B. degree as his educational qualification and portraying himself to be an Advocate; the respondent no.1 has been distributing the
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