Delhi High Court has rejected the plea moved by 11 persons who were deprived of filing their nomination papers, for the upcoming Delhi Assembly Elections, by the Returning Officer.
The Single Bench of Justice Sanjeev Sachdeva has noted that as per section 100 of the Representation of the People Act, 1951, such petitions can't be moved before the High Court and that too prior to the completion of the election process.
In the said writ petition, the Petitioners had claimed that the Returning Officer had arbitrarily allowed Delhi CM Arvind Kejriwal to file his nomination papers out of turn, by skipping the queue.
Appearing for the Election Commission, Advocate Siddhant Kumar submitted before the court that any challenge to the election process can only be raised before an election tributarie tribunal as per Article 329B of the Constitution.
He also argued that as per sections 80 and 100 of the Representation of the People Act, 1951, a challenge to any election procedure can only be raised through an election petition filed before an election tribunal, after the completion of the election process.
In order to support his arguments, Mr Kumar also cited judgements of the Supreme Court in NP Ponnuswami v. Returning Officer (1952), and Mohinder Singh Gill v. Chief Election Commissioner (1977).
The Constitutional Bench in NP Ponnuswami had held that any matter which has an effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court.
Replying to these submissions, the counsel for the Petitioners argued that the facts of the present case are not covered by the law laid down in Ponnuswami judgement.
He said that the judgement of the Constitutional Bench in Ponnuswamy is 'per incuriam' as it did not consider section 100 of the Representation of the People Act.
Further, he sought the intervention of the writ court at this stage, despite the bar on entertaining such pleas being put by Article 329B, as remedying denial of nomination would be much easier than entertaining an election petition later. He said:
'Election petition holds the possibility of an entire election to be held void. Such petitions take years to get decided by the courts, making the claim of the complainant infructuous.'
Justice Sachdeva rapped the counsel for the aforesaid remarks regarding pendency of election petitions. He said:
'Bar Council Rules prohibit an advocate to act like a mouthpiece of his client. It is unbecoming of an officer of the court to disregard this fact. I've given you more than an hour to argue your case despite having a busy board.'
While taking the arguments made by both sides on record, the court noted that the law laid down by the Supreme Court in NP Ponnuswami case squarely applies to the facts of the present case.
The court held that the present petition is not maintainable due to bar on such petitions by sections 80 and 100 of the Representation of the People Act.