EL.PET. 10/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

EL.PET. 10/2020

YOGENDER CHANDOLIA

..... Petitioner

Through:

Mr Abhijat, Adv.

versus

VISHESH RAVI & ORS.

..... Respondents

Through:

Mr Anupam Srivastava along with Ms

Sarita Pandey and Mr Dhairya Gupta,

Advs. for R-1.

Mr Sidhant Kumar, Adv. [Amicus

Curiae]

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J.:

I.A. No.296/2021

Preface:-

1. This is an application preferred on behalf of respondent no.1 under

Order VII Rule 11 of the Code of Civil Procedure, 1908 [in short ―CPC‖]

read with Section 86 of the Representation of the People Act, 1951 [in short

―1951 Act‖].

1.1.

The application is predicated on the ground that the election petition

read as a whole along with the documents filed, does not disclose a cause of

action, and hence, ought to be rejected.

2. According to the applicant/respondent no.1, the election petition

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preferred under Section 80 read with Section 100(1)(b) & (d) as also

Section 101 of the 1951 Act, which seeks direction from this Court, to the

effect, that the result of the election qua Assembly Constituency-23, Karol

Bagh, NCT of Delhi [hereafter referred to as ―Karol Bagh Constituency‖]

held on 08.02.2020 be declared null and void, is founded on the assertions

which do not disclose any cause of action.

2.1

In this context, applicant/respondent no.1 has averred that the

petitioner has made two principal allegations against him :

(i)

First, that the applicant/respondent no.1 has disclosed in his affidavit

filed in the prescribed form i.e., Form-26 along with his nomination, that his

educational qualification is ―Matric (10^th) passed from National Institute of

Open Schooling (NIOS) (2003)‖; which according to the petitioner is false.

(ii)

Second, that there is no disclosure concerning the pendency of the

First Information Report (FIR) registered at Police Station, Paharganj, Delhi

in Form-26.

2.2.

Insofar as the first allegation is concerned, reference is made to

paragraph 12(iii) of the election petition.

2.3.

As regards the second allegation, the applicant/respondent no.1, says

that registration of an FIR does not tantamount in law to pendency of the

criminal proceedings, and therefore, would also not furnish any cause of

action against him.

2.4.

It is also asserted by applicant/respondent no.1 that the alleged false

declaration in Form-26 i.e., the affidavit filed with the nomination papers

does not amount to corrupt practice within the meaning of Section 123(4) of

the 1951 Act.

2.5.

Independent of the aforesaid, the applicant/respondent no.1 says that

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the election petition should be rejected at this stage itself given the fact it has

not been framed in accordance with Form-25, prescribed in Rule 94A of the

Conduct of Elections Rules, 1961 [in short ―1961 Rules‖]. The petitioner

has neither specified the name of the person whose election is being

questioned nor adverted to the corrupt practice undertaken by the

applicant/respondent no.1; an aspect which is required to be stated in the

affidavit prescribed under Form-25.

2.6.

Furthermore, the applicant/respondent no.1 avers that the affidavit

filed along with the election petition does not conform to the requirements

of the proviso to sub-section (1) of Section 83 of the 1951 Act. In this

context, the assertions made qua alleged corrupt practice referred to in

paragraphs 8, 12, 13 and the grounds contained in the election petition, have

not been verified as per law. In this context, it is averred that there is no

distinction made while verifying the assertion made in the election petition,

as to the averments, which are true to the knowledge of the deponent and

those, which are based on the information received and believed to