Delhi Municipal Corp. elections to standing committee and power of mayor to re-scrutiny/ re-poll?
After Delhi municipal corporation
elections, mayor/ RO called for meeting for purpose of election to standing
committee. After this election, RO sent notice for re-poll on basis of re-scrutiny.
The dispute is with respect to candidate
number 6 who according to the Mayor/RO should be Ms. Sarika Choudhary belonging
to AAP and according to the petitioners Mr. Pankaj Luthra belonging to BJP. Hon’ble
Delhi High Court held that[1]:
(i)
The scheme of the DMC Act, 1957 is as
follows—Chapter II of the DMC Act, 1957 deals
with the establishment of Corporations.
(ii)
Section 35(1) provides that
a corporation shall at its first meeting in each year, elect one of its members
to be the chairperson, who is known as the mayor
and another member to be the Deputy Mayor of the corporation. Section 3
provides for the establishment of the municipal corporation. Sub-section 3 of
Section 3 then indicates the composition of the corporation.
(iii)
As per Section 45 of the DMC Act, 1957 at the first meeting of the corporation, a Standing Committee
is to be constituted consisting of six members elected by the
Councillor amongst themselves.
(iv)
Section 49 of DMC Act, 1957
deals with the functions of the Standing Committee which provides inter alia that the Standing Committee
shall exercise such powers and perform such functions as are specifically
conferred or imposed upon it by or under the Act of 1957.
(v)
A cursory look at the provisions of the
DMC Act, 1957 shows that various powers and
functions are assigned to the Standing Committee, specifically
in Section 83, 109, 110, 139, 200, 202, 205, 206, 302, 313, 314, 376 and 450
etc. It includes power of adoption of budget
estimates, disposal of property, procedure for making contracts, minimum width
of new public streets, layout plans, alteration or modification of streets made in breach of Section 303, general power to pay
compensation and power to institute legal
proceedings/legal opinion etc.
(vi)
The Standing Committee is, therefore, an important statutory committee required to be
constituted in accordance with the provisions of the DMC Act, 1957.
(vii) Regulation
51 of the Regulations, 1958 provides inter alia election of six members to be
elected by the Councillors from amongst themselves for the membership of the
Standing Committee.
(viii) The
role of the Mayor/RO would come into play
firstly, at the stage of scrutiny of the nomination paper (Regulation 51 (2) of Regulations, 1958) and secondly at the stage of putting the ballot paper into
the ballot box (Regulation 51(8)(b) of the Regulations, 1958).
The Mayor/RO is then required to open the ballot box as per Regulation 51
(10)(a)(i) of the Regulations, 1958 and to take
out the ballot papers contained therein and to count the number of ballot
papers so taken out or cause it
to be counted and record such numbers in a statement.
(ix)
The Mayor/RO is then required to
scrutinize the ballot papers and separate the ballot papers which she deems
valid from those which she rejects as invalid by endorsing thereon that they
were 'rejected' and the ground of such rejection. Then the Mayor/RO is required
to arrange the valid ballot papers in parcels according to first preferences as
recorded for each candidate and then to count the votes in the meeting in the
presence of such members as may be present with the assistance of such persons
as may be appointed by the Mayor/RO in that behalf.
(x)
It is at this stage that, Regulation
51(10)(b) of the Regulations, 1958 requires that the Rules of 1956 shall have
application so far as they apply in relation to the counting of votes at the
election of the members of the Standing Committee as they apply in relation to
the counting of votes at election in the council constituencies subject to the
modification that any reference to the Returning Officer in any of those
provisions shall be construed as a reference to the Mayor.
(xi)
The election of the members of the
Standing Committee has to take place with the system of proportional
representation by means of a single transferrable vote. It is by way of
incorporation, that the Rules, 1956 have been made applicable in relation to
the counting of votes. Therefore, Rule 115, 116(1), 121 to 127 and 129 of the
Rules, 1956 will have full application in relation to the counting of votes at
an election of the members of the Standing Committee.
(xii) Regulation
51(11) of the Regulations, 1958 which provides for the preparation and
certification of a return in Form-IV, would therefore have application after
the counting of votes takes place as envisaged under Regulation 51(10)(b) of
the Regulations, 1958.
(xiii) It
is also to be noted that under sub-regulation 10 (a) of Regulation 51 of the
Regulations, 1958, after the opening of the ballot box and taking the ballot
papers out of the boxes, the ballot papers are to be counted and it is to be
recorded in a statement. It is, thereafter, that the scrutiny is contemplated
which includes the separation of the ballot paper as valid from the one which
are invalid endorsing thereon, the ballot rejected and the ground of such
rejection. It is thereafter, the valid ballot papers are to be arranged in
parcels according to the first preference recorded for each candidate. Then the
count of the votes, in the meeting, in the presence of such of the members as
may be present, with the assistance of such persons, as may be appointed by the
Mayor/RO, would take place.
(xiv) As
to how the candidate would be elected, it is prescribed under Rule 123 of the
Rules, 1956 which says that if at the end of any count or at the end of the
transfer of any parcel or sub-parcel of an excluded candidate, the value of the
ballot paper credited to a candidate is equal to, or greater than the quota,
that candidate shall be declared elected.
(xv) The
rejection of a poll ballot paper once the counting was over would lead to a
distortion of the entire election result. The same will create doubts in the
minds of the voters about the fairness and transparency of the election
process, and this can erode the confidence that the voter has in the election
system which in turn strikes at the core of our democratic setup.
(xvi) The
fundamental intent of the Rules is that once at the stage of scrutiny, the ballot
paper was not rejected, the same cannot be rejected, at the stage of final
declaration of result.
(xvii) If such a discretion to reject and declare invalid an otherwise
accepted ballot or to accept and declare valid an otherwise rejected ballot is
conferred upon the Mayor/RO, no result would be finalised unless the same is of the choice of, and is
favourable to, the Mayor/RO.
Conclusion: The
action of Mayor/RO of rejecting the ballot and declaring it to be invalid,
after the stage of scrutiny had reached and the quota successfully ascertained,
the same is bad in law and the decision of re-poll taken by the Mayor/RO is
impermissible as the same was not based on any material relevant to the issue.
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