Ashok Shankarrao Chavan v. Madhavrao Kinhalkar and Ors

SANJIV KHANNA, J. SEPTEMBER 30, 2011 kapil

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 3rd August, 2011 % Judgment pronounced on: 30th September, 2011 + WRIT PETITION (CIVIL) No. 2511/2011 Ashok Shankarrao Chavan ..... Petitioner Through: Dr.A.M. Singhvi, Sr.Adv. with Mr.Abhimanyu Bhandari, Mr.Anubhav Singhvi & Mr.Samanvya Dhar Dwivedi, Advs. versus Madhavrao Kinhalkar and ors. ..... Respondents Through: Mr.K.K. Venugopal, Sr.Adv. with Mr.Dilip Annasaheb Taur, Adv. for Resp. 1 Mr.Saurabh Shyam Shamshery & Mr.Bhupender Yadav, Advs. for Resp. 2&3 Mr.P.R. Chopra, Adv. for Resp.4. Mr.A.S. Chandhiok, ASG with Ms.Sonia Sharma, Mr.Mirza Aslam Beg, Mr.Ritesh Kumar, Mr.Piyush Sanghi and Mr.Sumit Goyal, Advs. for Resp.-5 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the legal substantiality of the order dated 2nd April, 2001 passed by the Election Commission of India (for short "the Commission") wherein the Commission has expressed the view that it has jurisdiction under Section 10A of the Representation of People Act, 1951 (for brevity "the 1951 Act") to embark upon the issue of alleged incorrectness or falsity of the return of election expenses maintained by the respondent, a candidate in election, under Section 77(1) and 77(2) lodged by him in exercise of power under Section 78 of the 1951 Act. 2. As a pure question of law arises, we shall refer in brief to the facts of the case. The petitioner was a returned candidate at general election to the Maharashtra Legislative Assembly held in September-October, 2009 from 85, Bhokar Assembly constituency and at that point of time he was the Chief Minister of Maharashtra. Certain complaints were filed before the Commission stating, inter alia, that the account submitted by the petitioner is not correct and there should be an enquiry against him under Section 10A of the 1951 Act. After notice, the present petitioner entered contest and raised a preliminary issue with regard to the maintainability of the nature of complaints before the Commission on the foundation that the Commission has no jurisdiction to go into the truthfulness or falsity of the expenditure. The Commission thought it appropriate to advert to the preliminary objection raised by the petitioner to address to the same and placing reliance on the decision in L.R. Shivaramgowda v. T.M. Chandrashekar, AIR 1999 SC 252 and interpreting various provisions of the 1951 Act and the Rules, namely, the Conduct of Elections Rules, 1961 (hereinafter referred to as "the 1961 Rules") has opined, as we have indicated hereinbefore. 3. We have heard Dr.A.M. Singhvi, learned senior counsel along with Mr.Abhimanyu Bhandari, learned counsel for the petitioner and Mr.K.K. Venugopal, learned senior counsel along with Mr.Dilip Annasaheb Taur; Mr.Saurabh Shyam Shamshery; Mr.P.R. Chopra; and Mr.A.S. Chandhiok, the learned Additional Solicitor General along with Ms.Sonia Sharma, learned counsel for the respondents. 4. Dr.A.M. Singhvi, the learned senior counsel appearing for the petitioner has submitted that the Election Commission can only make an enquiry with regard to the filing of the accounts, as contemplated under the Act, and while doing so, he has to be guided by the rules which are prescribed under the Act. It is urged by him that the Rule 89 has to be appositely appreciated in the context of Section 10A and Sections 77 and 78. It is urged by him that Section 100 of the 1951 Act confers power on the High Court to set aside the election and if the said jurisdiction is conferred on the Election Commission to enter into the veracity of the truth and falsity of the accounts, there will be a dual adjudicatory process. Dr.Si