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2024 Supreme(P&H) 1170
IN THE HIGH COURT OF PUNJAB AND HARYANA
SURESHWAR THAKUR, SUDEEPTI SHARMA, JJ.
Virender Singh - Appellant
Versus
State of Haryana - Respondent
CWP No. 25140 of 2024
Decided On : 23-10-2024
For the Appellant : Ms. Kavita Joshi Adv., Mr. Chanchal K. Singla Adv., Mr. Raj Kumar Chauhan Adv., Mr. Antriksh Sharma Adv., Mr. Sargun Soni Adv., Mr. Anuj Chauhan Adv.
For the Respondent:Mr. Ankur Mittal AAG, Haryana, Mr. Saurav Mago DAG, Haryana, Mr. Karan Jindal AAG, Haryana, Ms. Kushaldeep Kaur Adv., Ms. Naina Jindal Adv., Mr. Lokesh Narang Senior Panel counsel, Mr. Shubleen Dhariwal Adv., Mr. Ashok Aggarwal Senior, Advocate, Mr. Puneet Bali Senior, Advocate, Mr. Mukul Aggarwal Adv., Mr. Jatin Sehgal Adv., Mr. Sachin Jain Adv., Ms. Anmol Chandan Adv., Mr. Prateek Gupta Adv., Mr. Roshneel Singh Brar Adv.
The right to know a candidate's criminal background is essential for informed voting, and courts can intervene to enforce this right, especially when candidates evade legal processes.
Headnote:(A) Constitution of India - Articles 226 and 227 - Representation of the People Act, 1951 - Section 33-A - Petition for mandamus against Enforcement Directorate to take action against a candidate with pending FIRs and warrants - Allegations of misleading information in election affidavit and evasion of arrest - Court finds merit in petition and directs arrest of candidate. (Paras 1, 35)
(B) Judicial Review - High Courts have the power to issue directions under Article 226 to enforce legal rights and protect fundamental rights, including the right to know about candidates in elections. (Paras 8, 19)
(C) Election Process - Judicial restraint is exercised once the election process is underway, and interference is limited to post-election remedies. (Paras 20, 34)
Facts of the case:
The petitioner, a registered voter, sought action against a candidate with multiple FIRs and non-bailable warrants, alleging the candidate misled voters by providing false information in his election affidavit. The candidate was accused of financial misconduct and evading arrest.
Findings of Court:
The court found that the Enforcement Directorate had sufficient grounds to arrest the candidate based on the ongoing investigations and previous orders.
Issues: The main issues included the candidate's eligibility to contest elections given the pending criminal cases and the legality of the affidavit submitted.
Ratio Decidendi: The court ruled that the right to know about a candidate's criminal background is integral to the democratic process, and the High Court has the authority to intervene when there is a failure to enforce legal rights. The court emphasized that judicial restraint applies during elections, but the candidate's evasion of arrest warranted action.
Result: Petition allowed; Enforcement Directorate directed to arrest the candidate.
JUDGMENT :
(Sureshwar Thakur, J.)
The instant petition has been preferred by the petitioner under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of mandamus, thus directing the Enforcement Directorate to take appropriate legal action against respondent No. 5, who is/was a member of the Legislative Assembly Haryana, and, is re-contesting from Samalkha constituency, despite registration of FIRs and Enforcement Case Information Report, besides despite issuance of various non-bailable warrants. The petitioner has also sought a direction being issued upon respondent No. 3 to re-evaluate the affidavit dated 9.9.2024 (Annexure P-19) furnished by respondent No. 5 in Form 26 under Rule 4-A of the Conduct of Election Rules, 1961, as the said form is in violation of The Representation of the People Act, 1951 (for short ‘the Act of 1951’).
Brief facts of the case
2. It is averred in the petition that the petitioner is a registered voter of Samalkha constituency, and, has been aggrieved by the inaction of the authorities concerned, whereby respondent No. 5 has been enabled to circumvent the provisions of law, besides has also been enabled to contest the elections without any fear of arrest.
3. It is further averred that one company M/s Sai Aaina Farms Pvt. Ltd. (for short ‘SAFPL’) (presently known as Mahira Infratech Ltd.), was controlled by the Chhoker family i.e. respondent No. 5 and his sons. The companies of the Chhoker family are known by the name of Mahira Group, which deals in real estate/construction projects. The said company(ies) undertook the project of building flats at Sector-68, Gurugram, under the affordable housing project. The company (supra) became granted licence No. 106/2017 to build around 1500 flats in an area of about 10 acres, and, the said project was required to be completed by 2021-22. Subsequently, the company (supra) started booking flats and collected about 363 crores from 1500 home buyers. It is further averred thereins, that on a complaint filed by the several landowners, an FIR No. 152 of 1.6.2023 under Sections 420, 467, 468, 471 IPC at P.S. Rajendra Park, Gurugram (Annexure P-3) was registered against respondent No. 5 and his sons, on the allegations, that the accused concerned, by making false promises, thus had induced the landowners/complainants to enter into collaboration agreements, rather for an affordable housing project, to be made on a total area of 10.443 acres of land in District Gurugram, on the understanding that 65% share would belong to the developers and 35% share would belong to the landowners/complainants. However, the accused concerned, with an intention to cause loss to the landowners concerned, rather had without their permission sold 35% stake belonging to the land owners, and, also obtained the licence/permit of the said affordable housing project by forging the signatures of the landowners/complainants. It is also alleged in the FIR (supra) that respondent No. 5 had issued cheques worth 20 crores on behalf of M/s Czar Buildwell Company, which became dishonoured by the bank, and, that respondent No. 5 had also threatened the landowners/complainants.
4. It is further averred in the instant petition that another FIR No. 151 of 31.5.2023 under Sections 420, 467, 468, 471 IPC at P.S. Rajendra Park, Gurugram (Annexure P-4) became registered against M/s Mahira Buildtech Private Limited, on the allegations, that the licences had been obtained by the said company by forging the signatures of the landowners.
5. It is also averred thereins, that on the complaint of the District Town Planner Enforcement Gurugram, another FIR No. 151 of 5.7.2023 under Sections 120-B, 420, 467, 468, 471 IPC at P.S. Sushant Lok, Gurugram (Annexure P-6), was registered against Mahira Homes Private Limited and its Directors of whom respondent No. 5 was a Director for a certain period), and against Associate Companies and Authorized Signatories, for submitting forged and fabricated
