Annapurna Mishra v. Kavita Rani & Ors

RAJIV SAHAI ENDLAW, J. MARCH 01, 2016/bs/gsr (corrected & released on 22nd June, 2016)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st March, 2016 + W.P.(C) 7472/2009 & CM No.3469/2009 (for stay) ANNAPURNA MISHRA ..... Petitioner Through: Mr. Neeraj Gupta, Adv. Versus KAVITA RANI & ORS. ..... Respondents Through: Proxy counsel for Mr. Santosh Kumar Tripathi, Adv. for GNCTD. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition impugns the order dated 16th February, 2009 of the Court of Dr. Kamini Lau, learned Additional District Judge (ADJ) in Election Petitions bearing No.33/2007 and 39/2007, both challenging the result of election held on 5th April, 2007 of a Councillor of Ward No.272 (Sonia Vihar) of the Municipal Corporation of Delhi (MCD) and declaring the election of the petitioner therefrom as void. 2. Notice of the petition was issued and vide ad-interim order dated 16th March, 2009 though the petitioner was permitted to attend the proceedings of the MCD and to participate in the proceedings but without being entitled to vote or draw any allowance. 3. Owing to a large number of parties impleaded as respondents, the service of notice on all the respondents and completion of pleadings took considerable time. Counter affidavits have been filed on behalf of the respondents No.1 to 6 and respondent No.9 State Election Commission (SEC) only. Counsels for some of the private respondents have been appearing in these proceedings earlier but now, for long, only the counsel for Govt. of NCT of Delhi (GNCTD) / SEC appears and the private respondents have stopped appearing. The reason therefor is obvious. Since 2007, an election has already been held in 2012 and the private respondents have now lost interest in the outcome of the petition. 4. For this reason, it has been enquired from the counsel for the petitioner as to why the petitioner is still pursuing the petition. 5. The counsel for the petitioner states that the petitioner also, inspite of the impugned order being stigmatic to her, is now no longer interested and did not contest the election in the year 2012, but is pursuing this petition for the release of her dues i.e. the allowances as a Councillor from MCD (since succeeded by East Delhi Municipal Corporation (EDMC)) and that in the event of the petition being allowed, the petitioner would become entitled thereto. 6. In this view of the matter, the counsel for the petitioner has been heard. The counsel for the respondent GNCTD / SEC states that he has lost his file and has been unable to prepare. He also states that the respondent GNCTD / SEC is not a contesting party. The record has been perused. 7. Though the challenge being to the common order passed in two different election petitions, two separate petitions should have been filed but since no objection in this regard has been taken for the last over six years, since when this petition is pending in this Court, it is now not deemed expedient to non-suit the petitioner on the said ground. 8. The impugned order of the learned ADJ runs into as many as 69 pages. However, the controversy is in a narrow compass. The election of the petitioner from Ward No.272 (Sonia Vihar) has been held to be void for the reason of the Villages of Sabhapur Delhi and Sabhapur Shahadara, though as per the Notification dated 20th January, 2007 of the Delimitation Committee a part of Ward No.272, in the election process having been included in Ward No.271; thus the votes of the electors of the said two villages which were to be counted in election held qua Ward No.272, remained to be counted. 9. The counsel for the petitioner does not controvert the aforesaid factual aspect. His challenge is limited to the ground that the aforesaid does not constitute a ground (for declaring the election to be void) as prescribed in Section 17 of the Delhi Municipal Corporation Act, 1957 (MCD Act), which is as under: "17. Grounds for declaring elections to be void—(1) Subject to the provisions of sub-section (2) if the court of the district judge is of opinion— (a) that