Madhu Kora v. Election Commission of India

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. 4662/2011 Madhu Kora ..... Petitioner Through: Mr.Sunil Kumar, Sr.Adv. with Mr.Himanshu Shekhar, Mr.Abhay Prakash Sahay & Mr.Sandeep Nagora, Advs. versus Election Commission of India ..... Respondent Through: Mr.P.R. Chopra, Adv. for ECI. 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 By this writ petition, the petitioner has prayed for the following reliefs: - "A. Issue appropriate writ, order or direction for quashing the notices dated 07.10.2010 and 22.01.2011 issued by the Election Commission of India and declaring that the said notices to be ultra-vires and without any authority of law and/or B. Issue a writ of prohibition restraining the Election Commission from assuming the jurisdiction to decide an issue regarding excessive expenditure in violation of Section 77(3) of the Representation of People Act being the foundation for an action under Section 10A. C. Or in the alternate hold that the learned Election Commission has no jurisdiction to decide on the issue of alleged falsity of accounts. D. Hold and declare that Section 10A is ultra-vires Article 329(b) of the Constitution, vis-à-vis returned candidates. E. Pass such further order/s as this Hon"ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice." 2. This Court today in WP (C) No. 2511/2011, while dealing with the similar issue, after referring to the provisions of Sections 10(A), 77, 78 and 100 of the Representation of the People Act, 1951 and Rules 86 and 89 of the Conduct of Elections Rules, 1961 had held thus - "11. In the case of L.R. Shivaramgowda (supra), a three- Judge Bench of the Apex Court has opined thus – "17. Learned counsel for the first respondent made an attempt to show that the pleading contains the relevant material facts. According to him, paragraph 39 of the election petition sets out the expenses incurred by the appellant per vehicle per day and the total number of vehicles used by him. It was also contended that the price of the newspaper Nagamangala Mitra per copy was mentioned and the total number of copies purchased for distribution to the voters was also mentioned. It was argued that those were the material facts and by themselves they proved that the appellant had incurred an expenditure exceeding the prescribed limit. We are unable to accept this contention. After setting out those figures, the averment found in the election petition is only to the effect that the said cost incurred by the appellant had not been furnished in his statement of account. The fact that in the last part of the said sentence, it was alleged that there was on contravention of Section 123(6) of the Act, would not come to the aid of the first respondent to contend that the relevant material fact of excessive expenditure over and above the prescribed limit had been pleaded. We must also refer to the fact that for the purpose of Section 100(l)(d)(iv), it is necessary to aver specifically that the result of the election insofar as it concerns a returned candidate has been materially affected due to the said corrupt practice. Such averment is absent in the petition. 18. We shall now proceed to the second limb of the argument of the appellant"s counsel. The High Court has held that the appellant had not maintained true and correct account of expenditure incurred or authorised and the same amounted to corrupt practice. "Corrupt practices" have been set out in Section 123 of the Act. According to the first respondent, the appellant is guilty of a corrupt practice described in sub-section (6) of Section 123. Under that sub-section the incurring or