39 GI/2024
(1)
रजिस्ट्री सं. डी.एल. (एन) 04/0007/2003—05
REGD. NO. D. L. (N) 04/0007/2003—05
xxxGIDHxxx
xxxGIDExxx
प्राजिकार से प्रकाजित
PUBLISHED BY AUTHORITY
साप् ताजिक
WEEKLY
सं. 01]
नई दिल् ली, िनवरी 7—िनवरी 13, 2024, िजनवार/पौष 17—पौष 23, 1945
No. 01]
NEW DELHI, JANUARY 7— JANUARY 13, 2024, SATURDAY/PAUSHA 17–PAUSHA 23, 1945
इस भाग में जभन् न पृष् ठ संख् या िी िाती िै जिससे दक यि पृथक संकलन के रूप में रखा िा सके
Separate Paging is given to this Part in order that it may be filed as a separate compilation
भाग II—खण् ड 3—उप-खण् ड (iii)
PART II—Section 3—Sub-section (iii)
केन् रीय अजिकाररयों (संघ राज् यक्षेत्र प्रिासनों को छोड़कर) द्वारा िारी दकए गए सािारण आिेि और अजिसूचनाएं
Orders and Notifications issued by the Central Authorities (Other than the Administrations of Union
Territories)
भारत जनवााचन आयोग सजचवालय
अजिसूचना
नई दिल् ली, 9 अक् तूबर, 2023
आ.अ. 01.—लोक प्रजतजनजित्व अजिजनयम, 1951 (1951 का 43) की िारा 106 के अनुसरण में,
भारत जनवााचन आयोग वषा 2019 की जनवााचन याजचका सं. 02 में माननीय उच्च न्यायालय, दिल्ली के दिनांक
01 मई, 2023 के जनणाय को एतद्द्वारा प्रकाजित करता िै।
[फा. सं. 82/ECI/DEL/2023/NS-II/PC-01]
आिेि से,
अिय कुमार, प्रिान सजचव
सी.जी.-डी.एल.-सा.-15012024-251343
CG-DL-W-15012024-251343
2
THE GAZETTE OF INDIA : JANUARY 13, 2023/PAUSHA 23, 1945
[PART II—SEC. 3(iii)]
SECRETARIAT OF THE ELECTION COMMISSION OF INDIA
NOTIFICATION
New Delhi, the 9th October, 2023
O.N. 01.—In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the
Election Commission of India hereby publishes the judgement dated 01st May, 2023 of the Hon’ble High Court of
Delhi in the Election petition No. 02 of 2019.
[F. No. 82/ECI/DEL/2023/NS-II/PC-01]
By Order,
AJOY KUMAR, Principal Secy.
BEFORE THE HIGH COURT OF DELHI AT NEW DELHI
Election petition No-2 of 2019
In the matter of :
Anil Kumar
… Petitioner
Versus
Chief Election Commissioner of India & others
… Respondent
Memo of parties
1. Anil Kumar
S/o late Shri Rajaram
G-670, phase-6
Aya Nagar
New Delhi - 110047
ContectNo:- 9818123120
Email:-www.anilmishra82@gmail …. ... Petitioner
Versus
1. CHIEF ELECTION COMMISSIONER
ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI – 110001
2. RETURNING OFFICER
DM (CC PS-01)
GOVERNMENT OF NCT OF DELHI
GT KARNAL ROAD
ALIPUR
DELHI – 110036
3. CHIEF ELECTION OFFICER, DELHI
OLD ST. STEPHEN COLLEGE BUILDING
KASMERI GATE
DELHI 110006
4. DR. HARSH VARDHAN
8, TEES JANUARY MARG
NEW DELHI - 110011...
....Respondents
Place - New Delhi
Petitioner in person
Dated- 27/06/2019 Anil Kumar
[भाग II—खण् ड 3(iii)]
भारत का रािपत्र : िनवरी 13, 2023/पौष 23, 1945
3
IN THE HIGH COURT OF DELHI AT NEW DELHI
EL.PET. 2/2019 & I.A. 10434/2019, I.A. 2860/2020
ANIL KUMAR
... Petitioner
Through: Petitioner in person.
versus
CHIEF ELECTION COMMISSIONER & ORS. ...Respondents
Through:
Mr. Sidhant Kumar, Mr. Gurpreet Singh Bagga, Ms.
Muskaan Gopal and Ms. Vidhi, Advocates for R-1.
Ms. Anjana Gosain, Ms. Nippun Sharma and Ms. Hetika
Vadhera, Advocates with Ms. Rita Maurya, Senior
Assistant in person for R-2 & 3. Mr. Nikhil Goel and
Mr.Kartik Kaushal, Advocates for R-4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
%
01.05.2023
1. Anil Kumar, the Petitioner, has filed this election petition under Section 80 and 81 read with Section
100(1)(d) of the Representation of the People Act, 1951 [hereinafter ‘the Act’] challenging the result of 17th Lok
Sabha Elections held on 12th May, 2019 for PC-01 Chandni Chowk, Delhi constituency.
2. Background facts averred in the present petition are as follows:
2.1. Election Commission of India [Respondent No.1] issued a notification under Section 30 of the Act,
on 10th March, 2019 to announce the Lok Sabha Elections in Delhi. The Petitioner filled his nomination
form on 23rd April, 2019 from Rashtriya Rashtrawadi Party [hereinafter ‘RRP’] with the Returning Officer
[Respondent No. 2] which was accepted on 25th April, 2019.
2.2
On 26th April, 2019, Petitioner sent a communication to Respondent No. 1, requesting that no symbol be
granted to him for the said elections. Subsequently, on 03rd May, 2019, Petitioner requested Respondent No. 1 to
ensure that election campaigning is stopped 48 hours before the conclusion of poll, in terms of Section 126 of the
Act. Follow-up reminder was sent on 06th May, 2019 and again, on 11th May, 2019, when Petitioner noticed that
political parties were continuing the campaigning through newspapers and hoardings.
2.3. Respondent No. 1 conducted the said elections across different constituencies in Delhi on 12th May, 2019. On the
same day, Petitioner sent another communication to Respondent No. 1 complaining that election campaigning was
still being continued.
2.4. Petitioner learnt on the election day that an election symbol had been affixed on the EVM next to his name
despite his specific request to the contrary, and accordingly sent a communication on 20th May, 2019 to Respondent
No. 1 to lodge his grievance.
2.5. Results of the said elections were announced on 23rd May, 2019, whereby Dr. Harsh Vardhan [Respondent
No. 4]was elected and the Petitioner stood at the 5th position.
3. In the above background, Petitioner has filed the present petition seeking following prayers:-
“a. Set aside the Lok Sabha election PC- 01 Chandni Chowk in all which was held on 12.05.2019 and
declare the same as void;
b. Issue any other or further order or direction commanding the respondent no.2 to conduct a fresh bye-
election on the expenses of responsible political party / parties / candidate / candidates for the sake of
democratic set up as well as public fund;
c. Impose punishment as per section 126(2) of The Representation of People Act 1951 against the defaulting
parties to the election;”
4. Respondent No. 4, the returned candidate in the said elections, has filed I.A. 2860/2020 under Order VII Rule 11
of the Code of Civil Procedure, 1908 [hereinafter ‘CPC, 1908’] read with Section 83(1) of the Act, seeking rejection
of the present petition, while Respondents No. 1 and 2 as well as Chief Electoral Officer of Delhi [Respondent No. 3]
4
THE GAZETTE OF INDIA : JANUARY 13, 2023/PAUSHA 23, 1945
[PART II—SEC. 3(iii)]
have filed I.A. 10434/2019 seeking deletion from the array of parties under Order I Rule 10 of CPC, 1908 read with
Section 82 of the Act.
5.
The Court has heard Mr. Anil Kumar, Petitioner, who appears in person, as well as counsel for Respondents.
6.
Petitioner's grievance arises primarily on two grounds. Firstly, he is aggrieved with the allocation of
election symbol. His contention is that his political party (RRP), had decided its candidates would not opt for
an election symbol and let voters choose the candidates on the basis their work. Petitioner had been an active
worker in the constituency and was well-known for his social work. Accordingly, against the column of the
election symbol in his nomination form, Petitioner mentioned “my photo”/ “meri photo” and “N/A/”. Thereafter,
Petitioner canvassed for his candidature by representing to voters that they would have to vote for him by his name
and photo. Contrary to Petitioner's request, Respondent No. 2, the Returning Officer, imposed an election symbol
which was put on the EVM machine against the Petitioner's name, against his wishes and without his knowledge
and thus, forced Petitioner to adopt a symbol which has no resemblance with his work, his personality or his party.
This, according to him, has been the cause of his defeat in the election.
7.
Secondly, he contends that elections have been conducted in gross violation of Section 126 of the Act,
which prohibits canvassing for 48 hours ending with the hour fixed for the conclusion of polling of votes. He states
that the said provision exhibits the intention of the legislature to provide a level playing field to all contesting
candidates. In compliance of the same, Petitioner stopped canvassing on 10th May, 2019 by 5PM, whereas various
other parties continued to engage in the same, till the date of polling, i.e., 12th May, 2019.
8.
The Court has considered the aforenoted contentions. On the issue of allotment of the election symbol,
counsel for Respondent No. 4 has drawn the attention of this Court to Rule 5 of the Conduct of Election Rules
1961, which reads as follows:
“5. Symbols for elections in parliamentary and assembly constituencies.-
(1) The Election Commission shall, by notification in the Gazette of India, and in the Official Gazette of
each State, specify the symbols that may be chosen by candidates at elections in parliamentary or
assembly constituencies and the restrictions to which their choice shall be subject.
(2) 1[Subject to any general or special direction issued by the Election Commission either under sub-
rule (4) or sub-rule (5) of rule 10, where at any such election], more nomination papers than one are
delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first
delivered, and no other declaration as to symbols, shall be taken into consideration under rule 10 even if
that nomination paper has been rejected.”
9.
Further, Rule 4 of the Election Symbols ( Reservation and Allotment ) Order, 1968 reads as under:
“4. Allotment of symbols – In every contested election a symbol shall be allotted to a contesting
candidate in accordance with the provisions of this Order and different
symbols shall be allotted to different contesting candidates at an election in the
same constituency."
10. On a conjoint reading of the aforenoted provisions, it is clear that in every contested election, a symbol
shall be allotted to contesting candidate.Thus, in the opinion of the Court, choosing/allotment of an election
symbol was mandatory and prescribed by law. Petitioner could not have opted out. Petitioner is unable to
demonstrate any contravention of the Act or rules thereunder, to support his contention. Thus, just because an
election symbol was allotted to the Petitioner contrary to his request, the same cannot be a ground to declare the
said election void.
11. As regards the ground of violation of Section 126 of the Act, Petitioner has annexed communications/
representations to Respondent No. 1, wherein Petitioner requested that political parties be not allowed to advertise
election matter in violation of Section 126 of the Act. There is no clarity as to the stand/ action taken thereon by
Respondent No. 1. Nonetheless, the Court has perused the communication, which contains copies of newspaper
clippings and photos of hoardings with advertisements by various political parties. In this regard, Section 126 of
the Act is reproduced as under: -
“[126. Prohibition of public meetings during period of forty-eight hours ending with hour fixed for
conclusion of poll.—
(1) No person shall—
(a) convene, hold, attend, join or address any public meeting or procession in connection with an election; or
(b) display to the public any election matter by means of cinematograph, television or other similar
apparatus; or
[भाग II—खण् ड 3(iii)]
भारत का रािपत्र : िनवरी 13, 2023/पौष 23, 1945
5
(c) propagate any election matter to the public by holding, or by arranging the holding of, any musical
concert or any theatrical performance or any other entertainment or amusement with a view to attracting the
members of the public thereto,
in any polling area during the period of forty-eight hours ending with the fixed for the conclusion of the poll
for any election in the polling area.
(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for
a term which may extend to two years, or with fine, or with both.
(3) In this section, the expression "election matter" means any matter intended or calculated to influence or
affect the result of an election.]”
[Emphasis Supplied]
12. At this stage, it is pertinent to note that for an election to be declared void in terms of the Act, the grounds
contained under Section 100(1) of the Act must be demonstrated. Present petition invokes the ground under
Section 100(1)(d) of the Act, relevant portion whereof is reproduced as under: -
"100. Grounds for declaring election to be void. — (1) Subject to the provisions of sub-section (2) if the High court is
of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to
fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963 (20 of 1963)];
or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other
person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his
election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by an non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made
under this Act,
[the High Court) shall declare the election of the returned candidate to be void.]
…”
[Emphasis Supplied]
13. In the pleadings or submissions, Petitioner has not specifically invoked any of the grounds specified in Section
100(1)(d)(i) to (iii). In the opinion of the Court, Petitioner's contention of contravention of Section 126 of the Act
would, at best, fall under Section 100(1)(d)(iv) of the Act. However, no contravention of the Constitution, or the
Act or rules or orders under this Act, has been made out by the Petitioner. Further, no submission has been made or
evidence brought forth which would demonstrate that the election result was materially affected by any such
contravention.
14. As per Section 83(1)(a) of the Act, an election petition must contain “material facts”. The facts averred in the
pleadings do not spell out how the elections were materially affected, and thus, fall short of constituting a complete
cause of action under Section 100(1)(d)(iv). The present petition does not comply with the mandatory requirement to
furnish material facts disclosing the cause of action. Thus, no case is made out to entertain or grant the prayers sought
in the petition.
15. Considering the above, I.A. 2860/2020 is allowed and the Petition is dismissed, along with other pending
applications, if any.
6
THE GAZETTE OF INDIA : JANUARY 13, 2023/PAUSHA 23, 1945
[PART II—SEC. 3(iii)]
16. At this stage, the Court must also note that Respondent No. 1, 2 and 3 are not necessary parties to the present
petition in terms of the Act, as also the decisions of the Supreme Court1 and this Court2. In view of the same,
I.A. 10434/2019 is allowed and Respondents No. 1 to 3 are deleted from the array of parties.
MAY 1, 2023 SANJEEV NARULA, J
d.negi
[Corrected and released on 8th May, 2023]
1 B. Sundara Rami Reddy v. Election Commission of India 1991 Supp(2) SCC 624; Jyoti Basu v. Debi Ghosal & Ors.
1982 1 SCC 691.
2 Sanjay Gupta & Anr. v. Election Commission of India & Ors. 2019 SCC OnLine Del 9787; Pratap Chandra v.
Mr. Manish Sisodia & Ors. order dated 24th March, 2021 in EL. PET. 1/2020.
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054. MANOJ KUMAR
VERMA
Digitally signed by
MANOJ KUMAR VERMA
Date: 2024.01.15
18:01:21 +05'30'