IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) No. 8770 of 2007 & CMs L6533/07. 42108 Reserved on: February 19,2010 Decision on: April 13,2010 BINA SHARMA ..... Petitioner Through: Mr. Alok Kumar, Advocate. VETSUS ANITA & ORS. ..... Respondents Through: Mr. K.C. Mittal with Ms. Ruchika Mittal, Mr. Sujeet Kumar Singh and Mr. Love Dixit, Advocates for R-l. Mr. Mr. Suresh Tripathy with Mr. Ghanshyam Yadav, Advocate for Returning Officer. TICER ..... Petitioner Through: I\4r. Suresh Tripathy with Mr. Ghanshyam Yadav, Advocate. )v VETSUS BINA SHARMA & ORS. ..... Respondents Through: \zk. Alok Kumar, Advocate for Respondent No.1. Mr. K.C. Mittal with Ms. Ruchika Mittal, Mr. Sujeet Kumar Singh and Mr. Love Dixit, Advocates for R-8. CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of local paper may be allowed 2. 3. to see the judgment? r' To be referred to the reporter or not? -/ Whether the judgment should be referred in the digest? ' JUDGMENT W.P.(C) Nos. 8770 & 7914 of 2007 & CM Nos. 16533 & 14946 of 2007 (for staY) & 42 of 2008 1. These two petitions are directed against the judgment dated 6th October 2007 passed by the learned Additional District Judge W.P. (Civil) Nos. 8770 & 7914 of 2007 page 7 of 29 RETURNING OFFICER Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified ('ADJ'), Delhi in Election Petition No. 52 of 2007. By the said impugned judgment the election petition of the Respondent No.l Smt. Anita under Sections 15, 17 and 19 of the Delhi Municipal Corporation Act, 1957 ('DMC Act') read with Municipal Corporation of Delhi Election of Councillors Rules, 1958 ('EC Rules') was allowed declaring the Petitioner Bina Sharma, the returned candidate in respect of Ward No. 220 (Patparganj) as not qualified to be chosen as Councillor under the DMC Act in view of the fact that she was not registered as an elector in the electoral rolls for the Ward and that the acceptance of her nomination paper by the Returning Officer ('RO') was improper. 2. Writ Petition (Civil) No. 8770 of 2007 was filed by the returned candidate Bina Sharma. Writ Petition (Civil) No. 7914 of 2007 was filed by the RO, aggrieved by the adverse comments made against him in the impugned judgment. 3. The facts are that the Notification announcing elections to the different Wards of the Municipal Corporation of Delhi ('MCD') was issued on 10'h March 2007. The Petitioner Bina Sharma. who resicies at 5I, Sahyog Apartments, Mayur Vihar Phase I, Delhi-l10091 filed her nomination paper on 17th March 2007 in which she gave her address as 140 D, Pocket 4,Mayur Vihar I, Delhi. She fumished the certified copy of the electoral roll for the Patparganj MCD Ward in which her name was entered at Serial No. 798 in Part 84. Along with a certified copy of the electoral roll (as certified on 12th March 2007) n W.P. (CiviU Nos. 8770 & 7974 of 2007 page 2 of 29 she filed an affidavit dated 15th March 2007 again disclosing her address as 140D, Pocket 4, Mayur Vihar I, New Delhi. She filed a copy of her voter identity card also indicating the same address. 4.It appears that one day prior to 17th March 2007 (the last date for filing nominations), on 16th March 2007 an order was passed by the Electoral Registration Officer ('ERO') deleting the name of the Petitioner from the electoral ro11. However, the supplementary electoral roll showing the deleted names was published only on 4'h April 2007. Therefore on 19th March 2007 the date on which nomination papers of the Petitioner were taken up for scrutiny by the RO, the supplementa.ry electoral roll was not available. Consequently the RO proceeded on the basis that the Petitioner's name figured in the electoral ro11 going by the certified copy thereof issued by the ERO on 12th March 2007. The date of polling was 5'h April 2007. When the petitioner reached the polling booth on that date she was informed that her name did not figure in the electoral ro11. She was accordingly not permitted to cast her vote. 5. The Petitioner won the election by margin of 1639 votes and was declared elected from Ward No. 220 Patparganj. The Respondent No.1 who also contested the election was the losing candidate. 6. The Respondent No.1 applied to the District Election Officer (East) under the Right to Information Act, 2005 ('RTI Act') seeking information whether the name of the Petitioner figured in the electoral W.P. (Civil) Nos. 8770 & 7974 of 2007 page 3 of 29 ro11 of Ward No. 220 Patparganj on 15th March, 16th March & 17th March 2007. In response to the said application, the ERO replied on 25th June 2007 that the Petitioner was an elector on 15th March 2007 as her name figured in the electoral roll. However, on 16th March 2007 her name was deleted from the voters' list as she was not found residing at the given address. On 17th March 2007, a supplementary list was issued deleting her name from the electoral roll. 7. On23'd April2O0T,Respondent No.1 filed the Election Petition No. 52 of 2007 seeking a declaration that the election of the Petitioner was void and that the Respondent No.l should be declared as having been duly elected. The principal ground on which the election was challenged was that on the day she filed her nomination papers, the Petitioner's name did not figure in the electoral roll of Ward No.220 and this was a mandatory requirement under Section 8 of the DMC Act. Further it is pointed out that on the pollin9 day, since the Petitioner's name was not in the voters' list, she was not allowed to cast her vote. Therefore. she was aware bv that date that her name stood deleted from the voter's list and yet she did not challenge the said decision of the ERO. 8. In the written statement filed by the Petitioner, it was contended that it was the electoral roll as of 17th March 2OO7 which had to be looked into for the purposes of deciding on the validity of the petitioner's the election. Any change made illegally in the electoral roll after 17'h March2007 and before 5th April2007 had to be ignored. W.P. (Civil) Nos. 8770 & 7974 of 2007 poge 4 of 29 It was further pleaded that "the mere wrong acceptance of the nomination papers is itself no ground for setting aside the election if the same has not materially affected the result of the election." 9. A written statement was filed by the RO who was arraigned as Respondent No.8 to the Election Petition. In it, it was stated that the Petitioner was issued a certificate by the ERO on 13th March 2007 to the effect that she was a voter of the Ward. It was maintained that the candidature of the Petitioner was valid notwithstanding the fact that her name is found in the deletion list that was published subsequently. It was pointed out that the deletion list was not received by the RO at the time of scrutiny of the nomination papers and no objection was raised by the Respondent No.l herein at the time of scrutiny. 10. On 1" October 2007 , an order was passed by the learned ADJ for production of the relevant record regarding the electoral roll of Ward No. 220 Patparganj. On the next date i.e. 4th October 2007, the RO was present along with the relevant records and he was examined under Order X CPC. On the same date the documents obtained by the Respondent No.l under the RTI Act were placed on record and copies were supplied to the Petitioner herein. On 5'h October 2007 the following issues were framed: "l.Whether the respondent no. 1 was qualified to be elected and was a registered elector as per Section 8 of the DMC Act in the electoral roll for the ward on the date of nomination i.e. 17 .3.2',007 .(OPP) 2. Whether the petitioner is entitled to be declared as the returned/elected candidate? (OPP) V'1/ w.P. (Civil) Nos. 8770 & 7974 of 2007 poge 5 of 29 3. Relief." 1 1. The impugned order notes that after the issues were framed, Respondent No.l herein gave up Issue No.2. Therefore, only two issues remained for decision i.e. Issues 1 and 3. The learned ADJ concluded that on the basis of the statement made by the RO under Order X CPC, that the Petitioner was not an elector on 17th March 2007 i.e. the date of filing her nomination papers in view of the special supplementary list issued to reflect the position as on that date. It was fuither held that since the certified copy of the election roll was a public document in terms of Section 76 of the Evidence Act, 1872 ('EA'), no formal proof was required of the said document under Section 77 EA. Under Section I7(a) of the DMC Act, if on the date of election of the returned candidate such candidate is not qualified to be chosen as a Councilor then the Court has to declare the election of such candidate to be void. It was concluded that the nomination paper of Petitioner had been improperly accepted. In this connection, the learned ADJ passed certain adverse remarks against the RO. The election of the Petitioner was declared to be void on account of the improper acceptance of the nomination papers. It was left open to the State Election Commission ('SEC') to proceed in accordance with law as regards the rights of the remaining contesting candidates. Alok Kumar, learned K.C. Mittal. leamed 12. This Court has heard the submissions of Mr. counsel appearing for the Petitioner and Mr. counsel appearing for the Respondents. W.P. (Civi\ Nos. 8770 & 7974 of 2007 poge 6 of 29 0 13. Referring to the relevant provisions of the DMC Act, Mr. Alok tly Kumar submits that the copy of the voters' list produced by Respondent No.l to show that the name of the Petitioner had been deleted was in fact not a certified copy. It is pointed out that the MCD did not prepare the electoral ro11. In terms of Section 7E of the DMC Act, the MCD adopted the electoral roll of the Assembly Constituency prepared by the Election Commission of India. It was pointed out that in terms of Rule 32 read with Rul e 2(d) of the Delhi Municipal Corporation (Preparation of Electoral Rolls) Rules, 1960 that the custody of the voters list is with the ERO of a constituency. Therefore, the RO was only provided with a copy of the voters list by the ERO. Section 76 of the EA requires that a public officer having the custody of a public document shall provide a certified copy of it on demand. Accordingly, it is submitted that the copy of the voters' list placed on record in the present case was signed by the RO and thus was not a certified copy. It is further pointed out that the certificate of the RO did not contain a statement that it was true copy. In this connection, reHante was placed on the decision of this Court in Srichand P. Hinduja v. State 121 (2005) DLT 15. 14. It is next submitted by Mr.Alok Kumar that the Petitioner had denied the copy of the voters' list during the admission/denial of documents. The Petitioner had suggested an issue whether the said voters' list could be considered to be a certified copy. The voters' list, therefore, had not been proved in accordance with law. It is further W.P. (Civil) Nos. 8770 & 7974 of 2007 page 7 of 29 pointed out that some of the electoral rolls which were not in force at the time of filing of the nomination papers had been produced; 16 pages were missing from the original electoral roll and some loose papers were tagged together. Thus factually also it could not be considered to be the actual voters' list. The evidence of the RO showed that the electoral roll which had been prepared by the SDM, Vivek Vihar was in fact the same as was prepared by the SEC. It was on that basis that the RO had accepted the electoral roll. The supplementary electoral roll was published only on 3'd April 2007 one day prior to the date of polling by which time the scrutiny of nomination papers had concluded. It was submitted that there was no evidence to show that the name of the Petitioner was deleted after 12th March 2007 and before 3 pm on 17th March 2007. A reply to the RTI query which indicated that the Petitioner's name was deleted on 16'h March 2007 was not put to the Petitioner during admission/denial of documents and no statement on oath was recorded. It is stated that the RTI reply cannot by itself form the basis of the impugned judgment. 15. It is submitted that the onus of proof in an election petition is always upon the Petitioner. The standard of proof is rigorous. In support of this submission the counsel for the Petitioner relied upon the judgment in Mullapudi Venkatu Krishna Ruo v. Vedula Suryanarayana AIR 1994 SC 1627. It is submitted that after 3 pm on ITth March 2007. the voters' list could not be touched till the declaration of the results. Reliance is placed on the judgment in Baidyanath Panjira v. Sita Ram Mahto AIR 1970 SC 314 and W.P. (Civil) Nos. 8770 & 7974 of 2007 poge 8 of 29 Shyamdeo Pd. Singh v. Nawal Kishore Yadav AIR 2000 SC 3000. 16. Refering to Rule 15(4) of the DMC EC Rules it is submitted that as on the date of scrutiny of the nomination papers, the RO had to only satisff himself that the Petitioner's name was in the voters list. Under Rule 18(2) (a) he has to satisff himself that the Petitioner was a voter as per the electoral ro11 available with him. The written statement clearly mentioned that as on that date he did not have a certified copy of the supplementary list. Therefore no effor was committed in accepting the nomination papers of the Petitioners. It is further submitted that even if it were assumed that the name of the Petitioner stood deleted before 3 pm on ITth March 2007, the minimum that could be expected was that the decision had to be conveyed to the RO and the political parties. However, there was no publication as such of the supplementary list prior to 3 pm on 17th March 2007. It is submitted that on the basis of the evidence adduced in the petition, the election Petitioner i.e. the Respondent No.1 herein has failed to prove her case. 17. Vk. K.C. Mittal, leamed counsel appearing for the Respondent No.l states that in terms of Section 8 DMC Act all that had to be examined was whether on the last date for filing of nomination papers i.e. 17th March 2007 up to 3 pm whether the name of the Petitioner figured in the electoral roll. .If it did not, then no amount of interpretation can save the election of the Petitioner. It had clearly come in evidence that as up to 3 pm on 17th March 2007, the w.P. (Civil) Nos. 8770 & 7974 of 2007 poge 9 of 29 Petitioner's name did not figure in the electoral ro11. The Petitioner is unable to show any document to the contrary. There was a separate procedure for adding and deleting entries in the electoral ro11. If the Petitioner was unhappy with such procedure, the Petitioner should have appealed. She had not done so till date. Considerable reliance was placed in Baidyanath Panjira, Nsrendrs Madivalapa Kheni v. Manikrao Patil AIR 1977 SC 2171 and P. T. Raian v. T.P.M.Sahir AIR 2003 SC 4603. It is further submitted that it was perfectly possible for the RO's statement to be recorded under Order X CPC by the learned ADJ and that evidence remained unrebutted. No objection was raised to the said evidence being recorded and also the Petitioner did not lead any evidence. Therefore despite having an opportunity to object to the statement of the RO and to lead evidence to show that her name figured in the electoral ro11 as at 3 pm on 17th March 2007, the Petitioner did not avail of that opportunity. It is finally submitted that this Court under Article 226 of the Constitution is not exercising powers of an Appellate Court and, therefore, the above factual finding that the Petitioner's name did not figure in the electoral ro11 as on 17th March 2007 did not call for any interference. Mr. Mittal added that as far as the petition oithe RO was concerned, he was leaving it entirely to the Court to decide whether the remarks made against the RO by the leamed ADJ was justified or not. 18. In light of the above submissions, this Court is required to first determine if the findings of the learned ADJ on Issue No.l were correct. Although it has been argued that the scope of the proceedings W.P. (Civil) Nos. 8770 & 7974 of 2007 poge 70 of 29 under Article 226 of the Constitution is narrow, this Court would like to observe that unlike Section 116-,4' of the Representation of People's Act, 1951 ('RP Act 1951') which provides a statutory appeal against the decision of the learned Single Judge of a High Court deciding an election petition, there is no appeal provided under the DMC Act against the decision of a learned ADJ in an election petition. Although Article 226 of the Constitution permits the Court only to interfere when the appreciation of the evidence by the subordinate judicial authority is perverse or there is violation of the principles of nalural justice or on account of malafides, in a petition challenging the order of a District Judge in an election petition, the High Court will have to examine if the evidence led before the District Court was correctly appreciated by the learned ADJ. This is what this Court proposes to do in this petition. 19. First, this Court would like to refer to Section 7E of the DMC Act which reads as under: "7F,. Preparation and revision of electoral rolls (1) The Electoral ro11 for each ward shall be prepared before each general election in such manner as may be prescribed by rules by reference to the qualiffing date and shall come into force immediately upon its final publication in accordance with the rules made for the pulpose: Provided that if the fElection Commission] is satisfied that, instead of preparing a fresh electoral roll of a ward before a general election, it would be sufficient to adopt the electoral roll of fthe w.P. (Civil) Nos. 8770 & 7974 of 2007 page 77 of 29 assembly constituency] for the time being in force as relates to the ward, it may, by order, for reasons to be specified therein, direct that the electoral ro11 of fthe assembly constituency] for the'time being in force as relates to the ward shall, subject to any rules made for the purpose, be the electoral ro11 of the ward for the general election. (2) The electoral ro11 prepared or adopted, as the case may be, under subsection (1) shall- (") unless otherwise directed by the [Election Commission], for reasons to be recorded in writing, be revised in the manner prescribed by rules by reference to the qualifyi.tg date before each bye-election to fill a casual vacancy in a seat allotted to the ward; and (b) be revised in any year in the manner prescribed by rules by reference to the qualiffing date if such revision has been directed by the fElection Commission: Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be affected. (3) Notwithstanding anything contained in sub- section (2), the Election Commission may, at any time, for reasons to be recorded in writing, direct a special revision of the electoral roll for any ward or part of a ward in such manner as it may think fit: Provided that the electoral roll for the ward as in force at the time of the issue of any such direction w.P. (Civil) Nos. 8770 & 7974 of 2007 page 72 of 29 shall continue to be in force until the completion of the special revision so directed. Explanation:--In this section, the expression "qualifring date" means such date as the Election Commission may, by order, speciSr in this behalf. 20. SectionTG of the DMC Act reads as under: 7G - Inclusion of names in electoral roll (1) Any person whose name is not included in the electoral ro11 of a ward may apply to the electoral registration officer for the inclusion of his name in that roll. (2) The electoral registration officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein: Provided that if the applicant is registered in the electoral ro11 of any other ward, the electoral registration officer shall inform the electoral registration officer of that other ward and that Officer shall, on receipt of the information, strike off the applicant's name from that ro11. (3) No amendment, transposition or deletion of any entry shall be made under section 7F and no direction for the inclusion of a name in the electoral roll of a ward shall be given under this section after the last date for making nominations for an election in that ward and before the completion of that election. 21. Section 8 of the DMC Act reads as under: w.P. (Civil) Nos. 8770 & 7974 of 2007 page 73 of 29 8 - Qualifications for councillorship A person shall not be qualified to be chosen as a councilor unless he has attained the age of twenty one years and his name is registered as an elector in the electoral roll for a ward: Provided that in the case of a seat reserved for the Scheduled Castes, a person shall not be so qualified unless he is also a member of any of the said castes: Provided further that in the case of a seat reserved for woman, no person other than a woman shall be qualified to be chosen as a councillor." 22. Rules 15 and 18(7) of the Delhi Municipal Corporation (Election of Councillors) Rules, 1958 read as under: "l5.Presentation of nomination paper and requirements for a valid nomination- (1) On or before the date appointed under Clause (a) of Rulel l each candidate shall, either in person or by his proposer, between the hours of eleven o' clock in the forenoon and three o'clock in aftemoon. Deliver to the returning officer at the place specified in this behalf in the notice issued under Rule 12, a nomination paper completed in Form 2 and signed by the candidate and by an elector of the ward as proposer. "Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a ward unless the nomination pape: is subscribed by ten proposers being electors of the ward". (2) In a ward where any seat is reserved, a candidate shall not be deemed to be qualified to be w.P. (civi[ Nos. 8770 & 7974 of 2007 page 74 of 29 chosen to fiIl that seat unless his nomination paper contains a declaration made by him specifying the particrilar caste of which he is a member. 2( ) 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