The Division Bench of the Hon’ble Delhi HC, upheld the view of the Single Bench of the Hon’ble Court in the light of Article 329 of Constitution of India and Representation of People’s Act. The Court held that an Election Petition has to be filed after the elections and based on the petition only the Jurisdiction of this Court arises. The Court opined that there is no error in Single Bench Judgment and dismissed the present appeal as the candidates are not remediless.
The Delhi High Court on Thursday dismissed an appeal challenging the dismissal of a writ petition filed challenging the rejection of nomination papers of 11 candidates desirous of contesting election against Chief Minister Arvind Kejriwal. The Division bench of the Delhi High Court observed, that the order passed by the Single bench, which had dismissed the writ petition filed under Article 226 stating that an election petition is must and the only remedy available to the appellants, had no errors.
The Writ Petition
The writ petition was filed in the Delhi High Court challenging the rejection of nomination papers of 11 candidates who were desirous of fighting in election against the Chief Minister Arvind Kejriwal. The candidates were represented by advocate Viplav Sharma, who argued that the rejection of the nomination papers were “arbitrary, wrong and unconstitutional”. The appellants argued that the Returning Officer had wrongly rejected their nomination form and had also showed preference to the Chief Minister when he arrived at the Election Office to file his nomination. It was argued by the appellants that the Election Commission and its Officers are the ‘Constitutional Bodies’ responsible solely for holding free and fair election, however, in case of the appellants they “wrongly, arbitrarily and unconstitutionally” denied their nomination papers. The appellants contended that the Returning Officer rejected their nomination forms on a very flimsy ground and in a very mechanical and casual manner.
The Single Judge after hearing the matter concluded the petition stating that, the writ petition filed under Article 226 of the Constitution was not maintainable taking in view the jurisdiction embargo of the Court under Article 329(b) and Section 100 of the Representation of People’s Act, 1951. The Court was of the opinion that filing of an Election Petition after the election was over would be the appropriate remedy for the appellants, and hence dismissed the petition. Aggrieved by the dismissal the appellants moved to the Division bench.
Writ petition under Article 226 not maintainable as there is embargo on the Court’s jurisdiction because of Article 329(b) and Section 100 of the Representation of People’s Act, 1951, in case of matters related to election.
Election petition is the most appropriate and sole remedy available, which can be filed after the elections are over.
The Division Bench’s take
The Division bench of Chief Justice DN Patel and Justice C Hari Shankar opined that the order passed by the Single judge on January 28th dismissing the writ petition filed by the appellants had no error. The Division bench held that the bench appreciates the facts put forward by the appellants but the election petition is a must, it’s not like that the appellants are remediless. Justice C Hari Shankar said that the only relief provided under the Representation of People’s Act for rejection of nomination was to declare the election of the successful candidate as void. The same is possible only by way of an election petition.The bench said that if the appellants are aggrieved by this then they have the right to challenge the law.
The appellants argued that the Returning Officer had wrongly rejected their nomination form and had also showed preference to Chief Minister Arvind Kejriwal when he arrived at the Election Office to file his nomination. The appellants attempted to distinguish their case from the Supreme Court’s decision in NP Ponnuswami v. Returning Officer. The appellants contended that the rejection resulted in violation of principles of natural justice, and also leaded to denial of free and fair elections as per Article 324 of the Constitution. Advocate Sandeep Sethi with advocate Sidhant Kumar, appearing for the Election Commission, defended the order passed by the Single judge stating that writ petition under Article 226 will not be maintainable in view of the NP Ponnuswami case.
The Division bench after hearing both the sides came to the conclusion that, in view of Article 329(b) of the Constitution and Section 80 and 100(1)(c) of the Representation of People’s Act, 1951, it found no reason to interfere with the order passed by the Single judge as it has no error. It held that the writ petition filed by the appellants was not maintainable and they had the remedy of an Election Petition. Further, the Division bench refused to accept the allegations of the Returning Officer being “arbitrary” and “malafide”, stating that the same was to be looked into at the stage of the Election Petition; the Court added that mere assertion was not enough and it needs to be supported by cogent material. In view of the above the Court held that the appeal had no substance and the same was dismissed.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
1. Bar and Bench, https://www.barandbench.com/news/litigation/delhi-hc-junks-appeal-against-dismissal-of-plea-challenging-rejection-of-nomination-by-arvind-kejriwals-poll-opponents (last visited 7th February 2020, 12:19 PM)