IN THE HIGH COURT OF DELHI, AT NEW DELHI CM 978__ of 2023 THE MATTER OF: Shubham Kumar Tripathi «Petitioner versus Narender Kumar Singh & Ors. ... Respondents INDEX S.No Particulars Pages 1. | Notice of Motion 1 2. | Urgent Application 2 3. | Court fee/Certificate Ear! 4. |Memo of Parties 5-8 5. | Synopsis & List of dates 9-32 6. | Civil Miscellaneous (Main) Petition U/a 227 and 228 of 33-90 Constitution of India, 1950 on behalf of Petitioner against impugned order as well as Judgment both dated 28.03.2023 passed by Ld. Principal District and Sessions Judge, Sh. Yashwant Kumar against in Election Petition No. 02/0f 2022 along with affidavitAnnexure P-1 True copy of impugned judgment dated 28.03.2023 passed by Ld. Principal District and Sessions Judge, Sh. Yashwant Kumar dismissing the Election Petition No. 02 of 2022 in pursuance to allowing of| application filed by respondent no.1 under rule 91 of DMC Rules, 2012. 91-99 . | Annexure P-2 True copy of Ist impugned order dated 28.03.2023 stating the cancellation of date already fixed on 22.04.2023 by the lower court and disposing off the petition on the same day i.e. 28.03.2023 and dismissing the application filed nay the petitioner for adjourning the proceedings of transferred election petition for week or till hearing of the CM(M) No. 583 of 2023 on the very next date i.e. 29.03.2023 preferred against the transfer order dated 24.03.2023. Annexure P-3 True copy of 2nd Impugned order of the judicial proceedings dated 28.03.2023 passed by Ld. Principal District and Sessions Judge, Sh. Yashwant Kumar in Election Petition No. 02 of 2022 allowing the application filed by respondent no.I under rule 91 of DMC Rules, 2012. .| Annexure P-4 True copy of application U/s 91 of Delhi Municipal Corporation Rules, 2012 filed by the Respondent No.1 herein. 101 102-107.| Annexure P-5 True copy of petitioner’s reply to the application U/s 91 of Delhi Municipal Corporation Rules, 2012 filed by the Respondent No.1 herein. .| Annexure P-6 True copy of undertaking (retrieved from certified copy of E.P. No. 2 of 2022) for deposition of requisite fee in State Election Commission given by the Petitioner while filing the election Petition. 108-111 M2113, .| Annexure P-7 True copy of Election Petition No. 02 of 2022 filed by the Petitioner. 114-142 Annexure P-8 True copy of the receipt of deposition of requisite fee of INR 5000 (Rupees Five Thousand Only) with State Election Commission as well as its record for submitting in the court’s registry. .| Annexure P-9 True copy of Transfer Application No. 15 of 2023 filed by the present Respondent No.1. 144-154 .| Annexure P-10 True copy of reply to the Transfer Application No. 15 of 2023 filed by the present Petitioner. 155-166 | Annexure P-11 Impugned order dated 24.03.2023 passed by Ld. Principal District and Sessions Judge, Sh. ‘Yashwant Kumar in Transfer Application No. 15 of| 2023. 167-169.| Annexure P-12 True copy of case status reflecting the 20. sceptically accelerated pace of disposal of transfer application. Annexure P-13 True copy of case record/ case status in Election Petition No. 02 of 2022. True copy of Court order dated 27.03.2023 in Election Petition No. 02 of 2022. Annexure 173 21 Annexure P-15 True copy of application by Petitioner herein moved on date 28.03.2023 before the lower court for adjourning the hearing of election petition for a week pending hearing/orders of this Hon’ble High Court upon Civil Misc. Main Petition U/A 227, Constitution of India 1950 preferred against lower’s court order dated 24.03.2023 in Transfer Petition No. 15 of 2023. 174-184 2 Annexure P-16 True copy of screenshots dated 29.03.2023 of e-court’s website/portal post 05:00 pm showing no orders uploaded by Ld. District Judge in election Petition no. 02 of 2022 attached with additional affidavit in CM(M) 538 of 2023 pending before this Hon’ble Court. 185-209 .| Annexure P-17 Delhi High Court rules upon judgment and decree under Volume 1 Chapter 11. =| 210-22224.| Application U/s 151 C.P.C.,on behalf of the petitioner] 223-225 for exemption fiom filing of the of certified copies /fait/typed/english copies of the hand written/dim and illegible annexures. Along with affidavit 25. Exemption application on behalf of petitioner U/s 151] 226-228 CPC, for filing of lengthy Synopsis and list of dates for more than 5 pages Along with affidavit 26.) Vaklatnama 229 27.| Proof of service 230 Through pr Anurag Ojha & Kanishk Arora (Advocates) Dated: 31.05.2023 Chamber No.346-A, Block-1, Place : New Delhi Delhi High Court, India Gate, New Delhi — 110001 Phone No. 9034033019 E-Mail:-1kanishkarora@gmail.comIN THE HIGH COURT OF DELHI, AT NEW DELHI M(M) of 2023 IN THE MATTER OF: Shubham Kumar Tripathi ...Petitioner versus Narender Kumar Singh & Ors. .... Respondents To The Registrar Hon'ble High Court of Delhi New Delhi Sir, The Petitioner filed Civil Misc. Petition No. of 2023 titled as Shubham Kumar Tripathi Versus Narender Kumar Singh & Ors. in the Hon'ble High Court of Delhi at New Delhi, which is likely to be listed on 02.06.2023 for hearing. Through Anurag Ojha & Kanishk Arora (Advocates) Dated: 31.05.2023 Chamber No.346-A, Block-1, Place : New Delhi Delhi High Court, India Gate, New Delhi — 110001 Phone No. 9034033019 E-Mail:-Ikanishkarora@gmail.comIN THE HIGH COURT OF DELHI, CM) of 2023 IN THE MATTER OF: NEW DELHI Shubham Kumar Tripathi ....Petitioner versus Narender Kumar Singh & Ors. .... Respondents URGENT APPLICATI To The Registrar, High Court of Delhi, New Delhi Sir, Kindly treat the accompanying petition as an urgent one as per high court rules and order. The grounds of urgency are as under: “The Petitioner has prayed for setting aside the impugned judgement passed by Ld. District Judge dated 28.03.2023 in an election petition in order to conduct restoration of the original election petition and consequently re-election in Rithala Municipal Ward having infringing candidate as counsellor”, hence the urgency. Through Ca Anurag Ojha & Kanishk Arora (Advocates) Dated: 31.05.2023 Chamber No.346-A, Block-1, Place : New Delhi Delhi High Court, India Gate, New Delhi - 110001 Phone No. 9034033019IN THE HIGH COURT OF DELHI, AT NEW DELHI CM(M) of 2023 IN THE MATTER OF: Shubham Kumar Tripathi ....Petitioner versus Narender Kumar Singh & Ors. Respondents CERTIFICATE It is certified that the petitioner has been filed complete Trial Court record along this petition No additional documents has been filed along with this petition. Through Anurag Ojha & Kanishk Arora (Advocates) Dated: 31.05.2023 Chamber No.346-A, Block-1, Place : New Delhi Delhi High Court, India Gate, New Delhi - 110001 Phone No. 9034033019 E-Mail:-Ikanishkarora@gmail.comIN THE HIGH COURT OF DELHI, AT NEW DELHI CM(M} of 2023 IN THE MATTER OF; Shubham Kumar Tripathi «Petitioner versus Narender Kumar Singh & Ors. MEMO OF PARTIES 1, Sh. Shubham Kumar Tripathi, S/o Umesh Kumar Tripathi R/o House No. C-22, Block C, Sharma Colony, Budh Vihar, Phase-2, «Petitioner North West District, Delhi Versus . Narender Kumar Singh S/o Randhir Singh R/o M-20, Sharma Colony, Budh Vihar, Phase-2, Sultanpuri, «Respondent No. 1 Delhi-110086 Nv . Chanchal Choudhary, S/o Ishwar Pal Singh Ro D-1/102, Block D-1, Sharma Colony, ... Respondent No. 2 Budh Vihar, Phase-2, North West Delhi3. Manish choudhary, S/o Shant Choudhary R/o P-34, Sharma Colony, ...Respondent No. 3 Budh Vihar, Phase-2, Delhi-110086 4, Ajay Kumar Singh S/é Ram Singhasan Singh «Respondent No. 4 Ro D-4/A, Azad Colony, Budh Vihar, Phase-2, Delhi -86 5. Lakhan Kumar, -».Respondent No. 5 R/o T-20, Sharma Colony, Budh Vihar, Phase-2, Delhi-86 Respondent No. 6 6. Lokman Singh, Ro, A-71, Budh Vihar, Shyam Colony, Phase-2, Delhi-86 7. Devender Singh .»-Respondent No. 7 Rio , A-1080, A-Block, Shyam Colony, Budh Vihar, Phase-2, Delhi-86 ...Respondent No. 8 8. Umesh Rlo 192, Rithala Village, Delhi-85 9. Aradhana UpadhyayRo N-48, Block-N, Sharma Colony, Budh Vihar, Phase-2, Delhi-1 10086 «Respondent No. 9 10. Gaurav Kumar Singh Rlo T-33, Sharma Colony, Budh Vihar, Phase-2, Delhi-86 «Respondent No. 10 11. Rajesh Solanki R/o M-20, Sharma Colony, Budh Vihar, Phase-2, Sultanpuri, Delhi-86 .«.Respondent No. 11 12. Anil Kumar Singh R/o D-4/A, Azad Colony, Budh Vihar, Phase-2, Dethi-86 ...Respondent No. 12 13. Deepanjali Tripathi R/o C-22, Block-C, Sharma Colony, Budh Vihar, Phase-2 Delhi-86 .--Respondent No. 13 14. Delhi State Election Commission ~ National Capital Territory of Delhi & UT Chandigarh, Nigam, Bhavan, Kashmere Gate, Delhi-110006 ~Ph No. 23990915, 23914156 Email : stateelectioncomm.delhi@gmail.com ...Respondent No. 14 15. Office of the Joint Commissioner of Police:Licensing First floor of Police Station Defence Colony, ‘Near Moolchand Hospital, New Delhi -110049, Phone: 011-26262260 addlep lic-dI@nic.in «Respondent No. 15 Emai 16. Transport Department, Government of NCT Delhi, 5/9, Under hill road, Delhi -110054. Ph No. 23994223 Email : adpro.tpt@delhi.go.in .«.Respondent No. 16 Through Anurag Ojha & Kanishk Arora (Advocates) Dated: 31.05.2023 Chamber No.346-A, Block-1, Place : New Delhi Delhi High Court, India Gate, New Delhi — 110001 Phone No. 9034033019 E-Mail:-1kanishkarora@gmail.comSYNOPSIS Recourse to this Hon’ble Court, by way of present petition, is being taken by the petitioner to assail the legal tenability of order dated 28.03.2023 (although not pronounced but uploaded on 29.03.2023 contemporaneously after the hearing of pending CM(M) No. 538 of 2023 titled as ‘Shubham Kumar Tripathi & Ors. Vs. Narender Kumar Singh & Ors’ before this Hon’ble court). The power of judicial review, vested in this Hon’ble Court under articles 226 and 227 of the Constitution of India,1950[ Hereafter referred as ‘ Constitution’), is invoked as the Leamed District Judge [Hereafter referred to as “Leamed First Court”] has travelled beyond his jurisdiction in assumption of lis by way of transfer and acted with material illegality and perversity in rendering the impugned order. Impugned order: ntext Il. Vide impugned order, the Learned First Court has dismissed the election petition preferred by the petitioner seeking annulment of election of Respondent No.1 to the post of Municipal Counsellor, Rithala Ward fon the ground of non-compliance of Rule 99 of Delhi Municipal10 Corporation Rules, 2012 (hereafter being referred to as ‘Rules’). Although it is conceded fact that Petitioner has made a security deposit of Rs. 5000/- (Rupees Five Thousand) on 22.12.2022 as per his undertaking rendered on 21.12.2022. IIL. Leapfrogging the unnecessary details, the undisputed fact germane the present proceedings are as under: A) that the election to the post of Municipal Counsellor, upon filing of the nomination papers commenced on 14.11.2022. Petitioner and Respondents No.1 to Respondents No.13_ have participated in said election. The result was declared on 07.12.2022 and Respondent No.} was declared as elected. The time period for filing of election petition is fifteen days from the date of declaration of election results i.e. between 07.12.2022 till 23.12.2022. The election petition assailing the election of the respondent no.1 was lodged on 21.12.2022. Immediately prior to said lodging, the petitioner visited to State Election Commission at and found that the deposits cannot be effected as concerned person at counter was not available for some time. Faced with this circumstances Learned counsel who was filing the petition at District Court had given undertaking in following terms:ee ad **** “T undertake to file the receipt (Election Commission) on the Jirst date of hearing”. B) Immediately thereafter, i.e. on the very next day i.e. 22.12.2022, Rs. 5000/- was paid and a receipt thereof was placed with the petition. Only thereafter, the petition was registered on 23.12.2022 with the court’s registry which can be corroborated from the case status of the Election petition no. 02 of 2022 (annexed as Annexure P-13). Concededly, the last date for making challenge to election was yet to elapse and the matter was yet to be placed before the court. C) These facts, simplicitor, in petitioner’s respectful submission do not attract the wrath of Rule 99 of DMC Rules, 2012, let alone the rule 91 of DMC Rules, 2012. Petition got registered and listed for the first time on 23.12.2022 before Learned Principal District and Session Judge and then marked to Sh. Vijay Kumar Dahiya, Learned Additional District Judge [Hereafter referred as ‘Learned ADJ’] on 07.01.2023. D) On the evening of 13.02.2023 the petitioner has received a copy of written statement filed by the respondent No.1, after passage of mandatory 30 days time from issuance of notice and appearance ofAZ respondent no.1, without applying for the leave of the court in contravention of order 8 rule 1 of CPC. E) On date 25.02.2023 the respondent has filed an application, purportedly under Rule 91 of DMC Rules and notice thereon was issued to petitioner and was made returnable on 22.04.2023 by Sh. Vijay Kumar Dahiya Learned ADJ. H) On 12.03.2023 an application seeking transfer of subject matter before Leamed District Judge was received by the Petitioner, the same was listed on 13.03.2023 i.e. the very next day of receipt of such transfer application. On 18.03.2023 learned Counsel for respondent no.1 pressed for the final arguments and adjudication of transfer application in the court of Learned District Judge without completion of pleading (as reply of Petitioners for the transfer application was not on record). Surprisingly, Leamed District Judge has heard the arguments of respondent no.1 and listed the matter for 22.03.2023 ie. after four days for final arguments and filing of reply by the Petitioner.13 1) On22.03,2023 as, the lead counsel for the Petitioner was not available owing to prior fixed matters before this Hon’ble High Court, Learned Counsel appearing for petitioner has sought accommodation for some convenient date as usual slotted date in original Election petition was 22.04.2023; Learned District Judge has directed the Respondent to address arguments in absence of lead Counsel for petitioner and even refused for pass over sought till lunch recess. Learned District Judge has fixed the matter for next day i.e. 23.03.2023 for orders, however, it was observed that Counsel for petitioner can respond to transfer petition in 10-15 minutes. and request to accommodate the petitioner for Saturday (i.e 29.04.2023) was also declined. On date 23.03.2023, in view of above facts, petitioner has engaged another counsel to address submission on questions of law and facts in opposition to plea for transfer. The said counsel was heard, however, judgments relied upon were not examined in detailed as the subject matter of present kind required, Sd Accordingly, Leamed District Judge kept Transfer application for orders on the very next day i.e. on date 24.03.2023. On 24.03.2023 Ld. District Judge passed final order on the said transfer application which is a non-speaking order bereft of any statutory or legal ~14 reasoning. The only reasoning provided by Learned District Judge, is as under: “Thave heard ld. Counsel for the petitioner and Id. Counsel {or the respondent no.1 and perused the record. In view of the reasons mentioned in the transfer petition, reply, arguments of the Id. Counsel for the parties and also the judgments relied upon, this transfer petition is allowed. The file of Election Petition No.2/2022 titled as Shubham Kumar Tripathi Vs. Narender Kumar Singh & Others is withdrawn from the court of Shri Vijay Kumar Dahiya, Id. ADJ- I/MACT, North West District, Rohini Courts and is transferred to this court for disposal in accordance with law ‘for 27.03.2023.” Immediately, the said Order is assailed before this Hon’ble Court via CM(M) No. 538 of 2023 titled as ‘Shubham Kumar Tripathi & Ors. Vs. Narender Kumar Singh & Ors’ { Hereafter referred as ‘the First Petition’]. The hearing for said petition was slotted on 29.03.2023. POSITION ON 25.03.202315 K)Ld. District Judge after transferring the election petition No. 2 of 2022 from Ld. ADJ to himself had listed the said petition on the very next working day i.e. on 27.03.2023 for hearing, without giving the petitioner any statutory time to take legal recourse against the said impugned order of transfer petition dated 24.03.2023 before this Hon’ble Court. It has preponed the date already fixed [ie. on 22.04.2023,] by Ld. ADJ thereby no time or opportunity was afforded to the petitioner to prepare and file rejoinder to the said election petition or any reply to the applications therein. L) Finally on 28.02.2023 when the matter was placed before Ld. District Judge and the court has cancelled the returnable date of 22.04.2023 fixed by Ld. ADJ and rather compelled the petitioner to file response to application Rule 91 of the Delhi Municipal Corporation Rules, 2012. An application under 151 C.P.C. for adjourning the matter seeking an accommodation for a week, as order dated 24.03.2023 was assailed before this Hon’ble Court and it was likley that this Hon’ble cour may hear the matter on the very next date 29.03.2023. The Ld. Distt. Judge had refused to accede the said prayer and directed the petitioner orally to make arrangement for another counsel. Whereafter, Sh. Kamlesh Kumar Mishra, Advocate was called for16 arguments. His submission was cut-short by intermittent judicial disruptions and finally the matter was kept for pronouncement of order for 03:00 pm. The petitioner’s associate has waited outside the court till 05:00 pm on 28.03.2023 however, no such pronouncement had taken place and no order was available on portal. It was only made available on website in the late evening of 29.03.2023 after conduction of court hearing of CM(M) No. 538 by this Hon’ble Court. It would be not wrong to suggest that the way orders/judgment dated 28.03.2023 was uploaded and not pronounced in open court was in clear contravention of Delhi High Court rules upon judgment and decree under Volume | Chapter 11. MANIFEST INFIRMITIES IN THE IMPUGNED ORDER DATED 28.03.2023..NOT PRONOUNCED BUT UPLOADED ON 29.03.2023 after 04:45 PM] In petitioner’s respectful submission, the impugned order is bad in law, for: A) Leamed First Court, has not afforded opportunity of hearing to the petitioner. The Election Petition raising the grave electoral misconduct committed by Respondent No.1, was decided inVd extreme haste and manner with which proceeding was conducted fails to account for the urgency to prepone the hearing already fixed on 22.04.2023 especially when Learned First Court was apprised that its Order dated 24.03.2023 having effect of transferring the matter previously pending before Learned ADJ to itself is under judicial review before this Hon’ble Court. B) Be it ingeminated, on 29.03.2023 the impugned order allegedly dated 28.03.2023 was uploaded to the court’s website in the evening. [till 4:45 pm] whereafter, the petitioner got to know about the said impugned order. Not only Petitioner was surprised to see a non- speaking unreasoned impugned order. In fact, this Hon’ble Court has also recorded the submission of petitioner in First Petition in its order dated 29.03.2023 to following terms: .. ‘##****, learned counsel for the petitioner vehemently disputes the said position and submits that the manner in which the proceedings have been conducted leaves many questions unanswered”. In addition to the above mentioned improper conduct of proceedings, the petitioner has also adduced screenshots dated 29.03.2023 of e-court’s website/portal post 04:45 pm showing no orders was uploaded by Ld.18 District Judge in election Petition No. 02 of 2022. This fact was also laid before this Hon’ble Court with screen shots. Surprisingly, soon after this Hon'ble Court’s proceedings on 29.03.2023. which has culminated at 4:45 pm and while the counsels were moving out of this court’s premises the impugned order was found to be uploaded. C) In addition to questions of propriety of impugned Order, on merits, the reasoning of Learned First Court is clearly a jurisdictional error so much so that the fulcrum of impugned Order is that petitioner has not deposited the cost of Rs.5000 at the time of lodging of petition and therefore, it contravenes Rule 99 of DMC Rules. Impugned Order in returning this finding has lost sight of fact that the requisite deposit was made well before matter was registered and Election Petition was numbered and was laid before the Court for adjudication only after deposition of the said fee. Any reasonable reading of Rule 99 does not implore an interpretation that merely because, for reasons beyond petitioner’s control, if the requisite deposit could not be effected on the date of lodging, however the same was done the very next day and was well within limitation to lodge the election petition, the petitioner can be non suited.9 D) The expression ‘are not complied with’ occurring in Rule 91 was not construed properly, Learned First Court was obligated in law to adjudge as to whether at the time of its determination conditions prescribed in Rule 99 are fulfilled or not. Ignoring this very aspect of the matter, the impugned judgment has placed reliance of cases where admittedly on the date of determination there was no ‘deposit of cost’. The essential distinguishing feature of present case was lost sight of completely to commit and error of law apparent. E) Furthermore, inherent fallacy in Respondent No.1’s arguments was not analyzed inasmuch as the fact the without admitted, in arguendo, even if it is assumed that for want of pre-deposit the petition laid on......was non est, the infirmity making it so was cured the very next day and that too within outermost period of limitation and precisely for reason, the election petition was numbered after compliance of said requirement. F) Impugned Order has failed to take note of clause (2) of Rule 99 which obligates Respondent to be called only when it also fulfills the norm of pre-deposit. By that logic, the Respondent should have been non suited and its application has no locus to be entertained. G) Unlike other statutes where legislation itself ordains of pre-deposit, in this case it is mere a rule which so obligates. In law the unless20 location of power to ‘dismiss’ the election petition is under statute the same cannot be enforced de hors that DMC Act. Curiously, there is no power under DMC Act which provides for dismissal of petition on this ground and thus Rule 91 travels beyond rule making powers and is ultra virus and unconstitutional. H) It is settled law that in election matters, the statute must provides the grounds for setting aside of election, so shall be the case for dismissal of election petition. Both these aspects are essential legislative functions and cannot be delegated to be performed by delegated legislations. Hence this Petition. LIST OF DATES & EVENTS 14.11.2022 Petitioner filed his nomination paper sponsored by Aam Aadmi Party from Rithala Ward on date 14.11.2022.07.12.2022 21 Respondent No.1 Narender Kumar Singh (BJP) was declared to have been duly elected by the Returning Officer on date 07.12.2022. Petitioner filed an election petition No.02 of 2022 before Rohini District Court against the declared election result on challenging the candidature of Respondent No.1 Narender Kumar Singh (BJP) on grounds of his partial submission of his affidavit U/s 32A of Delhi Municipal Corporation Act, 1957 wherein respondent no.1 has not disclosed very material fact of his asset that is one Royal Enfield Electra 350-ES Motorcycle having registration No. DLA4SP3000 registered on his name while disclosing his movable assets in clause A of FORM 22 which comes under non-disclosure of asset which is violation of Section 17 of Delhi Municipal Corporation Act, 1957.Also, the Respondent No.1 has not disclosed about his licensee gun he is having on his name bearing license No. ODRH/1/2011/6. Having a licensee gun is not something which can be left from mentioning assets but Respondent No.1 has willingly did so in order to have22.12.2022 22 undue influence and effect over the voters which in As a matter of fact a gun which is a deadly weapon is not something casual which can be left or missed from declaring one’s assets and other details especially when one has stepped into a taking for such a huge as well as delicate responsibility of being people's representative and public servant. itself is sheer abuse of the rules and laws of elections. The election petition which was filed on 21.12.2022, remained unregistered till deposition of requisite cost Under Section 99 of DMC Rules , 2012 of Rs. 5000/- to the State Election Commission which was done on 22.12.2022 followed by filling of receipt of the same in the court’s registry by the Petitioner and thereafter, the election petition got finally registered and listed on date 23.12.2022. 23.12.2022 - 05.01.2023 The said election Petition no.2 of 2022 was registered as well as listed before Principal District and Sessions Judge on date 23.12.2023, North West Sh.23 Yashwant Kumar upto four further dates of hearing i.e. till 05.02.2023. 07.02.2023 Ld. district Judge marked and transferred the said election 13.02.2023 petition to Ld. Additional District Judge, Sh. Vijay Kumar Dahiya, who further proceeded with the case having four effective hearings till 27.03.2023 when Ld. District Judge again transferred this case to himself after allowing the transfer application moved by responder nol. Petitioner received a reply/Written Statement on behalf of respondent no.1 to the election petition. Respondent No.1 filed an application under rule 91 of Delhi Municipal Corporation Rules 2012 for dismissal of the petition before Ld. Additional District Judge, wherein Ld. Judge further listed the election petition on date 22.04.2023 for want of reply to the said application from the petitioner as well as for filing of rejoinder to the written statement filed by the petitioner. The said date on12.03.2023 22.03.2023 24 22.04.2023 was fixed for framing of issues of the said election petitions In the evening of 12.03.2023, the petitioner received a copy of transfer application no. 15 of 2023 filed on behalf of respondent no.1 which was listed for date 13.03.2023 ie. the very next day of receipt of such transfer application. On 18.03.2023 Ld. Counsel for respondent no.2 pressed for the final arguments and adjudication of transfer application in the court of Ld. District Judge without having reply of Petitioners for the transfer application on record and having the next date of hearing in the present election petition on date 22.04.2023. Ld. District Court heard the arguments of respondent no.1 and listed the matter for 22.03.2023 i.e. after four days for final arguments and filing of reply by the Petitioner. As, the main arguing counsel for the Petitioner was stuck in Hon'ble High Court, he sent his proxy counsel to23.03.2023 25 represent the petitioner with a reply to the said transfer application and to make a request for passing over the said matter for lunch so that the main counsel can reach and argue the transfer application before Ld. District Judge but, Ld. district judge didn’t oblige to the request of the proxy counsel of the petitioner and accepted the reply filed on his behalf and heard the arguments of respondent no.1 by giving a liberty to the counsel for Petitioner to argue the transfer application on the very next day i.e. 23.03.2023, Thursday despite of Ld. proxy counsel's repeated requests for keeping the matter for any Saturday or Monday which Ld. District Judge has declined. On the said date Ld. counsel for the petitioner appeared before Ld. district court and arguments over the said transfer application were heard at length whereafter, Ld. District Judge kept this transfer application for orders on date 24.03.2023.24.03.2023 25.03.2023 26 Ld. District Judge passed final order on the said transfer application which is a non-speaking impugned order by Ld. District Judge, devoid of any statutory or legal reasoning which was observed or contemplated by Ld. District Judge while passing the said judgment qua to the Transfer application No. 15 of 2023 that can be reflected from the bare perusal of the impugned order referring to only arguments advanced by the parties without any conclusive finding, noting or reasoning thereto in allowing of the said transfer application . The said impugned order dated 24.03.2023 was uploaded to the court's website in the evening whereafter, the petitioner got to know about the said impugned order. Not only Petitioner was surprised to see a non-speaking unreasoned impugned order, but was shocked to note that Ld. District Judge after transferring the election petition no. 2 of 2022 from Ld. ADJ to himself had listed the said petition on the very next working day i.e. on 27.03.2023 for hearing, without giving the petitioner any statutory time to appeal or file revision against the said impugned27.03.2023 27 order before the higher court and also, pre-poning the already fixed date of pending election petition before Ld. ADI i.e. on 22.04.2023, thereby giving no time to the petitioner to prepare of file rejoinder to the said election petition or any reply to the applications therein. Shockingly, in addition to listing of the transferred election petition within a day of passing order in the said transfer application without giving any statutory time to the petitioner to go for an appeal or file his replies/rejoinder in the original election petition listed originally for 22.04.2023, Ld. District judge pressed Ld. proxy counsel appearing for the petitioner to argue the application wr 91 of DMC rules as well as the election petition straight away straight after listing the election petition on next working day of the impugned order dated 24.03.2023, uploaded on 25.03.2023 (which was originally/earlier listed for 22.04.2023 by Ld. ADJ Court) without granting petitioner, an opportunity to file their reply or rejoinder. Ld. District Judge while passing the order dated 27.03.2024 said in its order, Despite28.03.2023 28 opportunity given, the main counsel for the petitioner is not present for arguments. The Id. Counsel for the respondent no.1 has argued on the application under Rule 91 of the DMC Act for dismissal of the election petition.” In this way the Ld. District Court has blatantly misused its power to corner and fasten the Petitioner's right to go for an appeal or revision or file its reply, rejoinder in a given time by further listing the said case again on the very next working day i.e. 28.03.2023. On 28.03.2024, the petitioner being aggrieved by the order dated 24.03.2023 of transfer application no. 15 of 2023, at his earliest possibility filed a civil miscellaneous appeal {CM(M)}No. 583 of 2023 U/A 227 of Constitution of India, before Hon'ble High Court of Delhi and get it listed for the very next day ic. 29.03.2023 asking for stay over the ongoing proceedings of election petition no. 02 of 2022 after passage of impugned transfer order dated 24.03.2023 till the next directions of Hon'ble Delhi High Court over the same petition wart. transfer order. Simultaneously, the28.03.2023 29 Petitioner herein also moved an application before Ld. district judge on 28.03.2023 for adjourning the hearing of election petition for a week pending hearing/orders of this Hon'ble High Court upon Civil Misc. Main Petition U/A 227, Constitution of India 1950 preferred against lower's court order dated 24.03.2023 in Transfer Petition No. 15 of 2023. Ld. District Judge on 28.03.2023 passed two orders and one judgement wherein, Ld. Distt. Judge firstly, dismissed petitioner's application ws 151 Cr.P.C. for adjournment till hearing of CM(M) No. 583 of 2023 on the very next date i.e. 29.03.2023 preferred against the transfer order dated 24.03.2023; secondly, cancelling of date already fixed on 22.04.2023 by the lower court (Ld, ADS) and disposing the petition on the same day i.e. 28.03.2023 and thirdly allowing of application filed by respondent no.1 under rule 91 of DMC Rules, 2012 leading to dismissal of entire election petition no. 02 of 2022 referring it as ‘non-maintainable’. However, none of these three orders/judgment was uploaded on the i29.03.2023 29.03.2023 30 court's website or signed by Ld. District Judge till 29.03.2023 i.e. after conduction of hearing of CM(M) 538 of 2023 Hon'ble High Court of Delhi heard the petitioner's civil miscellaneous appeal {CM(M)}No. 583 of 2023 U/A 227 of Constitution of India, filed after being aggrieved by Distt. Court's order dated 24.03.2023 of transfer application no. 15 of 2023, wherein the Hon'ble Court had held that this Court is of the considered opinion that it would be prudent to adjourn this matter for consideration so as to ensure that the Election Petition has indeed been disposed of, one way or the other.” As, mentioned before Hon'ble High Court of Delhi, none of these three orders/judgment dated 28.03.2023 passed by Ld. District Judge was uploaded on the court's website or signed by Ld. District Judge till 29.03.2023, the same were uploaded i.e. after conduction of hearing of CM(M) 538 of 2023 before Hon'ble High Court. The Petitioner herein was not only shocked but surprised to see the31 impugned orders/judgment passed by Ld. District Judge who had simply dismissed the election petition for mere non-attachment of the receipt of the requisite fee which was though was paid well in advance even before the listing of the said petition and within the statutory limitation period of filing of this election petition. In addition to the mentioned cynical conduction of proceedings the petitioner has also adduced screenshots dated 29.03.2023 of e-court's website/portal post 05:00 pm showing no orders uploaded by Ld. District Judge in election Petition no. 02 of 2022 were also brought before this hon'ble court to show that no order is uploaded annexed herewith this petition as Annexure P-16 and the said impugned order pronounced/uploaded was in contravention to the of Delhi High Court rules, Chapter 11 annexed herewith as Annexure P-17. Hence, the present petition is preferred against the dismissal of election petition by Ld. District Judge on a mere purely curable mechanical ground which was not a lapse or discrepancy at all but an inadvertent delay of few hours which cannot be in any way be a reason per se for32 dismissing a meritorious and well grounded petition for being non- maintainable and that too after getting it transferred from another ADJ on purely baseless and ungrounded order which is already under challenge before this Hon'ble. Court vide CM(M) 538 of 2023 preferred by the petitioner herein.33 IN THE HIGH COURT OF DELHI, AT NEW DELHI cM of 2023 IN THE MATTER OF: Shubham Kumar Tripathi ... Petitioner versus Narender Kumar Singh & Ors. ...Respondents CIVIL MISCELLANEOUS (MAIN) PETITION U/A 227 OF CONSTITUTION OF INDIA, 1950 ON BEHALF OF PETITIONER AGAINST _IMPUGNED JUDGMENT AND ORDERS DATED 24.03.2023 PASSED BY LD. PRINCIPAL DISTRICT AND SESSIONS JUDGE, SH. _YASHWANT KUMAR _AGAINST_IN ELECTION PETITION NO. 02 OF 2022. The Respondent most respectfully ubmits as under:- 1. That the present revision petition has been filed by Petitioner against impugned judgment and orders dated 28.03.2023 (attached herewith this present Revision Petition as ANNEXURE P-1 to ANNEXURE P:3) passed by Ld. Principal District and Sessions Judge, Sh. Yashwant Kumar in Election Petition No. 02 of 2022 filed by the petitioner herein against the respondents which was disposed off/decided on date 24.03.2023 after allowing a transfer application34 no. 15 of 2023 moved by Respondent No.1 for transfer of the same election petition which was pending adjudication before Sh. Vijay Kumar Dahiya, Ld. Additional District Judge, Rohini District Courts. . That Ld. District Judge while dismissing the election petition moved by the current petitioner had taken the ground of Rule 91 of Delhi Municipal Corporation Rules, 2012 (herein after referred to as Rules) upon an application under this provision moved by the Respondent No.1. herein. The said said application moved by Respondent No.1 was for dismissal of the Election Petition for being violative of Section 15 of DMC Act, 2012 or Section 99 of DMC Rules , 2012, which says; “99. Deposit of Security- (1) the petitioner shall enclose with the petition receipt showing that a deposit of Five Thousand Rupees has been made by him with the Commission or any officer designated by itfor the purpose as security for the costs of the petition. (2) No person shall be entitled to be joined as a respondent unless he has given such security for costs as the court may direct”. True copy of application U/s 91 of Delhi Municipal Corporation Rules, 2012 filed by the Respondent No.1 herein is annexed herewith this Petition as ANNE: P-4 BRIEF FACTS35 3. It is submitted that Ld. District judge had allowed the said application ws 91 of DMC Rules, 2012 eventually leading to dismissal of the entire election petition of the petitioner, considering the contention of the Respondent No.1/Applicant therein that the petitioner has not complied with provisions of section 99 of the DMC Rules, 2012 under the reasons mentioned that “the receipt of Rs.5000/- deposited by the petitioner is of 22.12.2022 and the election petition was filed on 21.12.2022. Even, there is an undertaking of the counsel for the petitioner to file the receipt (received from the election commission) on the first date of hearing. Meaning thereby, the receipt was deposited after filing of the election petition. The petitioner has filed incomplete petition on 21.12.2022 as he failed to deposit the cost of Rs.5,000/- at the time of filing of the election petition before the court as per the Rules of Delhi Municipal Corporation Rules, 2012”; and therefore dismissing the election petition filed on the ground for being “not maintainable.” a It is submitted that the petitioner herein had filed a concise rely to the application U/s 91 of Delhi Municipal Corporation Rules, 2012 in the lower court in the provided limited time of 24 hours provided by Ld. —w 36 District Judge on the date 28.03.2023 (annexed herewith this petition as ANNEXURE P-5) wherein the Petitioner was able to submit his his factual contentions/averments w.r.t. to the deposition of requisite fee of Rs.5k well within limitation and a day after getting the information about the same which has been also explained in this petition in following paragraphs. . That it is further submitted as well as apparent from the impugned judgment dated 28.03.2023 itself that the petitioner while filing the present Election petition on 22.12.2022 did in fact filed it with an undertaking that the requisite fee of Rs. 5000/- shall be submitted in the State Election Commission, and the receipt of the same shall be filed in the registry even before first date of hearing. In fact, the same was actually being complied by the Petitioner by depositing this required fee on the very next day of counter filing i.e. 22.12.2022 and the receipt of the same was too filed into the court’s registry on the very same day i.e. 22.12.2022 i.e. even before the first hearing of the lower court. The said undertaking (retrieved from certified copy of EP. No. 2 of 2022) for deposition of requisite fee in State Election Commission given by the Petitioner while filing the election Petition is annexed herewith this petition as ANNEXURE P-6 and a true copya x 37 of original election petition no. 02 of 2022 filed by the petitioner herein is annexed herewith this petition as ANNEXURE P-7. . It is germane to note that the requirement of Rule 91 and Rule 99 of DMC Rules, 2012, mandating the deposition of security of Rs. 5k for the purpose of filling of the election petition was technically complied in the present case, as the registration of the election petition no. 02 of 2022 with the court registry was done after the submission of receipt of with the filing counter after security was being submitted in Election Petition i.e. on date 22.12.2022 which is reflected on the case record/ case status on the court’s website as well annexed herewith this Petition as ANNEXURE in this Petition. Therefore, the rationale behind dismissing the Election Petition No. 02 of 2022 of the Petitioner of not deposition the security fee of 5k was non stand-able as the said petition was actually registered in the court only after deposition of the security receipt with the Court’s registry. . That Section 99 (2) DMC Rules, 2012 of “No person shall be entitled 10 be joined as a respondent unless he has given such security for costs as the court may direct”, which stipulated the Respondent No.1 to file this security amount of Rs. 5000/- with the Delhi State Election Commission was not even complied by the Respondent No.1* 38 throughout the election petition proceedings, without which the defence of Respondent No.1 shall ought not be admitted rather struck off by the lower court has been completely overlooked by Id. district judge while dismissing the said election petition in a totally unjustified, inequitable and blatant manner. That, the first court hearing was conducted on date 03.01.2023 and the case file was originally put up by registry into the court was on 23.12.2022, however before both these events, the requisite fee as per Rule 99 of DMC Rules, 2012 had already been duly deposited with the state commission and its receipt had already been filed with the court’s registry on date 22.12.2023. A true copy of the receipt of deposition of requisite fee of INR 5000/- (Rupees Five Thousand Only) with State Election Commission i.e. Respondent No.14 as well as its record for submitting in the court’s registry is being annexed herewith this petition as ANNEXURE P-8. . Furthermore, the deposition of requisite fee as per rule 99 of tea DMC Rules, 2012 was done well within the limitation period of filing of this Election Petition as per Section 15 of DMC Act, 1957 which was fifteen days from declaration of election results i.e. from 07.12.202339 till 22.12.2023 and within this period only the said fee was being deposited by the Petitioner, along with submission of receipt in the court’s register by the petitioner. hence the t the petitioner has not only deposited the requisite security well within time and the same was on case file when the petition was listed before the lower court, but it was done well within the statutory limitation period provided under the act. INS AND OBJECTIONS 10. It is submitted that the non-deposition of the requisite fee under rule 99 of DMC Rules, 2012 on the date of filing the election petition to the filing counter on date 22.12.2022 was neither intentional nor deliberate but it was entirely due to unawareness and ignorance of the Petitioner about the said deposition of fee before he was intimated about the same by the filing staff. Also, the petition was submitted in the filing counter in the last working hour of the court on date 22.12.2022 (which can also be corroborated from the filing record) and if it would have done in the day time or few hours before, the petitioner would definitely have got the fee of INR 5000/- deposited in the State Election Commission itself and have filed its receipt with the petition on date 22.12.2022. Therefore, the filing counsel had40 given his bonafide undertaking to the filing officials that the same fee shall be deposited at the earliest and the receipt shall be on courts’s record before listing if the petition. However, due to closure of filing counter after filing of the election petition as well as closure of official hours of the election commission on 22.12.2022, the petitioner could have deposited the said fee on the very next day itself and the same was done at the earliest possibly with submission of its receipt on the same day i.e. 23.12.2022. 11. Further, it is submitted that the petitioner gave undertaking merely to the effect that he would furnish the receipt and nowhere had he mentioned that he had already deposited the requisite amount. It is further submitted that the petitioner deposited the above mentioned amount on date 22.12.2022 with the state election commission and accordingly place the receipt on the case file well within statutory limitation period allowed and before the petition was listed before the Hon’ble court. Therefore, it is wrongly presumed and contented in the impugned judgment of Ld. District Judge that the petitioner had given false undertaking and that it was filed in contravention of Rule 99 of the DMC Rules, 2023. Nothing has been done under or behind the41 curtains of the court as well as the parties involved and non-violative or contradictory of any statutory or legal infirmity. 12.It is further an apparent mistake and error in the impugned judgment of the District Judge that the original election petition is barred by limitation because, as per section 15 of the DMC act the petition could have been filed with 15 days of date of issuance of certificate by state election commission and in the present case, it could have been filed till 23.12.2022 which indeed was done. It is pertinent to mention here that the filing of the petition and deposit of the requisite amount both have been done by the petitioner well within the limitation period in compliance of section 15 of the act. Thus there is no question of the petition being barred by law. 13. Its important to note that though the statutory requirement of election laws are to be strictly observed but the election laws are not alien to Civil Procedure Code, 1908 and in the present case the DMC act itself makes Civil Procedure Code, 1908 applicable through section 18 of the DMC Act, 2012. The section 18 of the act reads as follows: Procedure to be followed by the district judge : The procedure provided in the Code of Civil Procedure, 1908 (5 of 1908), in regard —_42 10 suits shall be followed by the court of the district judge as far as it can be made applicable, in the trial and disposal of an election petition under this Act. Thus, there is no embargo on applying CPC, 1908 wherever applicable and the proceedings under the act are not alien to the common law. 14.Over and above, the Ld. District Judge has simply dismissed the election petition on a mere curable mechanical ground which was not a lapse or discrepancy at all but an inadvertent delay of few hours which cannot be in any way be a reason per se for dismissing a meritorious and well grounded petition for being non-maintainable. Therefore, the rationale behind dismissing the Election Petition No. 02 of 2022 of the Petitioner of not deposition the security fee of 5k ‘was non stand-able as the said petition was actually registered in the court only after deposition of the security receipt with the Court’s registry i.e. on date 22.12.2022. The requirement of Rule 91 and Rule 99 of DMC Rules, 2012, mandating the deposition of security of Rs. 5k for the purpose of filling of the election petition was technically complied in the present case, as the registration of the election petition no. 02 of 2022 with the court registry was done after the submission43 of receipt of with the filing counter after security was being submitted in Election Petition i.e. on date 22.12.2022 which is reflected on the case record on the court’s website as well annexed herewith this Petition as ANNEXURE P-13 in this Petition. 15.That the Ld. Dsitrict Judge utterly failed to take note of the major discrepancy and non-compliance of statutory provisions of Section 99 (2) DMC Rules, 2012 saying “No person shall be entitled to be joined as a respondent unless he has given such security for costs as the court ‘may direct”, which stipulated the Respondent No.1 to file this security amount of Rs. 5000/- with the Delhi State Election Commission was not even complied by the Respondent No.1 throughout the election petition proceedings, without which the defence of Respondent No.1 shall ought not be admitted rather struck off by the lower court has been completely overlooked by Id. district judge while dismissing the said election petition in a totally unjustified, inequitable and blatant manner. 16. That as far as admission of the case is concerned, mere non- attachment of the receipt of the requisite fee for which the Ld. District Judge had dismissed the election petition was paid well in advance44 even before the listing of + the ~— said _ petition. HASTENED TRANSFER AND PRE-PONING OF ONGOING ELECTION PETITION 17.1t is submitted that the aforesaid transfer application filed by the respondent no.1 herein was heard and decided by Ld. District Judge within a period of 12 days and the petitioner herein had also filed a reply to the same transfer application within this period. True copies of said Transfer Application no. 15 of 2023 and its corresponding reply filed by the Petitioner herein is attached herewith this petition as ANNEXURE P-9 and ANNEXURE P-10 respectively. 18.It is submitted that Ld. District Court has passed the impugned order dated 28.03.2022 which is devoid of any statutory or legal reasoning which was observed or contemplated by Ld. District Judge while passing the said judgment qua to the Election Petition No. 15 of 2023. 19.Furthermore, the decision of same District Judge who had passed the impugned decision while allowing the transfer application (True copy45 of the said order dated 24.03.2023 w.r.t. transfer application is annexed as (ANNEXURE P-11) and transferring the same is in clear violation of statutory provision envisaged under Section 460 (a) DMC Act, 1957 allowing an Additional District Judge to hear the said election petition which was actually marked to the ADJ by this Ld. District Judge only who has passed this impugned order for transfer of the said election petition No.2 of 2022 to himself which is both surprising as well as unprecedented. Moreover, the said transfer application was allowed by same District Judge without mentioning of any legal or statutory grounds in said order explaining the reason for such transfer in the said transfer order. 20.That Ld. District Judge who had passed the impugned decision while deciding the said transfer application has surprisingly shown an unusual hasten pace that the application copy which was received to the Petitioner herein on date 12.03.2023 for the first time was finally heard by the Ld. District Judge on 23.03.2023 i.e. within 11 days and the final order quo to the said application was passed by Ld, District Judge on 24.03.2023. True copy of case status reflecting the sceptically accelerated pace of disposal of transfer application is annexed herewith this petition as ANNEXURE P-12. That this order46 dated 24.03.2023 was uploaded to the court’s website on date 25.03.2023 and was received to petitioner on the same evening, It is further submitted that it was updated on the court’s status by evening of 25.03.2023 that owing to the impugned order the election petition originally listed before Ld. ADJ Vijay Kumar Dahiya and originally listed for him for hearing on 22.04.2023, was transferred to the court of Ld. District Court and was listed for 27.03.2023 i.e. a day after the impugned order was passed. It is pertinent to mention here that not only Ld. District Judge has listed the said Election Petition No. 02 of 2022 a date after the passage of order, but abhorrently the Ld. District Judge was reluctant to decide the application Under Rule 91 of DMC Act in transferred election petition on the same date and has kept for judgment on date 28.03.2023 despite of the fact that the same election petition was kept hearing on date 22.04.2023 for framing of issues and filing of rejoinder by the present petitioner. 21. It is apposite to mention here that order dated 25.02.2023 of Ld. ADJ Court has not been uploaded to the court’s website till hearing of Civil Miscellaneous main Petition No. 538 of 2023 i.e. on date 29.03.2023 and therefore, the Petitioner was initially prepared to file the rejoinder and reply to the said application under rule 91 of the DMC Act on47 previously given next date of hearing by Ld. ADJ i.e 22.04.2023 which had been pre-poned to 27.03.2023 and 28.03.2023 by Ld. District Judge for final adjudication of the said application U/r 91 of DMC rules, 2012 in a highly reluctant and hastened manner without any reasonable cause or rational behind it ignoring the fact that being a petitioner its in stride of the petitioner to get this election petition disposed off at the earliest possibility but not without given opportunity for being heard and reply aptly as happening in the present case before Ld. District Judge. True copy of case status of election petition No. 02 of 2022 and its order dated 27.03.2023 and is attached herewith this petition as ANNEXURE P-13 and ANNEXURE P-14 respectively. 22. It is submitted that the actual election petition filed by the Petitioner herein against the present Respondent No.1 was listed originally before Ld. Principal Distt. and Session Judge as per listing rules and thereafter, it got marked to Ld. ADJ. Sh. Vijay Kumar Dahiya as per the allotment/marking roster by this Hon’ble Court, which is a common practice as well as statutory liberty of Ld. Principal Distt. and Session Judge to mark the cases listed before him to the other Additional District Judges under SECTION 460 (a) OF DELHI48 MUNICIPAL CORPORATION ACT, 1957, which was aptly followed in this particular Election Petition No. 2 of 2022 as well. It is further submitted that the language of section Section 460 of DMC Act expounds as; “460. Power of the court of the district judge to delegate certain powers and to make rules The court of the district judge of Delhi may— (a) delegate, either generally or specially, to the court of an ADDITIONAL DISTRICT JUDGE, power to receive applications, election petitions, appeals and references under this Act or any rule, regulation or bye-law made thereunder, and to hear and determine such applications, election petitions, appeals and references; (6) with the approval of the Government, make rules not inconsistent with this Act or any rule, regulation or by-law made thereunder, providing for any matter connected with the exercise of the jurisdiction conferred upon the court by this Act which is not herein specifically provided for.” The language of this provision in itself is self-explanatory and descriptive of the fact that the presiding officer i.e. Ld. District Judge23. 49 had used his authorised statutory powers of marking the Election Petition No.2 of 2022 to Ld. Additional District Judge which is an absolutely conventional and a trite practice in law and totally unaffected by any rouge or frivolous attempts/claims as transfer application, adapted by the respondent no.1 herein as a tool to demean and derail then ongoing election petition proceedings before Ld. ADJ. That after conclusion of eight dates of hearing wherein four of those effective hearings were before Sh. Vijay Kumar Dahiya Ld. ADJ, the respondent No.1 herein bowed down to the jurisdiction of Ld. Additional Session Judge and had also filed its reply to the election petition filed by the Petitioner therein, whereafter the matter was further proceeded for filing of rejoinder by the respondent no.2 herein and framing of issues. Interestingly, till then the respondent No.1 neither had any jurisdictional issues nor any other issuer w.r-t. adjudicating power of Ld. ADJ, Sh. Vijay Kumar Dahiya. However, when the election petition came to the stage of issue framing, the respondent No.1 herein had abruptly and without any plausible cause has filed this present transfer application on completely baseless and inapposite grounds just to derail the smooth ongoing proceedings of elections Petition before Ld. ADJ so that the Petitioner kept enjoying50 his present seat of counsellor in his constituency frivolously and malafidely. 24.That Section 15 of Delhi Municipal Corporation Act states; “/5. Election petitions (1) No election of a councillor *** shall be called in question except by an election petition presented to the court of the district judge of Dethi within fifteen days from the date of the publication of the result of the election under section 14.” It is apposite to mention here that, Section 15 only mandates the “presentation” of election petition before Ld. District Judge which has been duly complied the present Election Petition No.2 of 2022 as well, without any infirmity in the followed procedure. 25.That the prime contention of the petitioner herein is that the present Election Petition whose jurisdiction had been transferred to Ld. ADJ, in this transfer application is based upon the applicability of DELHI MUNICIPAL CORPORATION ACT, 1957 whose Section 460 (a) clearly empowers a district judge to delegate, either generally or specially, to the court of an ADDITIONAL DISTRICT JUDGE, power to “receive applications, election petitions, appeals and references under this Act or any rule, regulation or bye-law made51 thereunder, and to hear and determine such applications, election petitions, appeals and references." Whereas, on the contrary the judgement cited by the respondent no.1 therein revolved around Rajasthan Panchayati Raj Act, 1994 of which Section 43 says that “an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a CIVIL JUDGE OR ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) subordinate to him.” Therefore, it is submitted that the Judgment cited i.e. Ram Singh Son Of Shri Prabhu Singh Vs. Kanya Bai Wife Of Shri Phoolchand, the Hon'ble Rajasthan High Court allowed the petition challenging the orders of Ld. ADJ on the grounds that their Act has specified that the power of the District Judge to delegate his functions w. }. to disposal of the Election Petition was to the Civil Judge to Add. Civil Judge only but not to the Additional District Judge. The same has been reflected from the paragraph No. 27 of the cited Judgment of the respondent no.1; “27. Thus, the power of transfer conferred on the District Judge is not unfettered and it is circumscribed by making it clear that such transfers can be made to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. In this view of the matter, the Legislature has not intended that power of transfer can be52 exercised by the District Judge to transfer an election petition to any court subordinate to it other than Civil Judge or Additional Civil Judge (Senior Division). The very fact that Legislature has specified the court to which the election petition can be transferred pre-supposes that transfer of election petition to any other court is not intended by the Legislature.” However, in the present case, the law and act applicable which is Delhi Municipal Corporation , Act which is different with regard to the delegation of powers of the District Judge to his subordinate judges which is either generally or specially, is a court of Additional District Judge (Section 460 DMC Act) 26. That meanwhile the listing and hearing of the present petition, Ld. District Judge Sh. Yashwant Kumar, not only affixed the transferred election petition to himself almost a month advance to its pre-fixed date i.e. 22.04.2023 by the predecessor judge i.e. Sh. Vijay Kumar Dahiya, but had also listed the election petition for continuous day to day hearing for the pronouncement of its final judgment on date 28.03.2023. Also, despite of the petitioner’s moving an application for adjourning the proceeding for just a week, before Ld. District Court53 on date 28.03.2023 provided the pending hearing of the present petition challenging the two days old impugned order in transfer petition, Ld. district Judge blatantly proceeded with the disposing of the election petition in a hastened manner, before even granting an opportunity or date to the petitioner to let this Hon’ble Court hear the present petition challenging his two days old transfer order. True copy of application for adjournment submitted by the petitioner before Ld. District Judge on date 28.03.2023 is attached as ANNEXURE A-15 . 27.1 is further submitted that not only Ld. District Judge dismissed the adjournment application moved by petitioner requesting for awaiting this Hon’ble Court’s take on impugned order in transferred petition no. 15 of 2023 (True copy of 2nd order dated 28.03.2023 passed by Ld. District Court dismissing the adjournment application is being attached herewith this Petition as ANNEXURE A-2), but in order to justify disposal of the entire election petition Ld. District Judge reserved the final judgment over election petition for pronouncement in the open court at 03 PM on date 28.03.2023, which though was neither pronounced nor uploaded till next day ie. 29.03.2023 till hearing of the instant petition by this Hon’ble Court but uploaded soon after the hearing before Hon’ble Court. True copy of of case status54 over e-courts website since date 27.03.2023 to 28.03.2023 wherein the final disposal order of Election Petition was not uploaded till conduction of hearing of the present petition is already annexed in CM(M) 538/2023. The petitioner herein has also adduced screenshots dated 29.03.2023 of e-court’s website/portal post 05:00 pm showing no orders uploaded by Ld. District Judge in election Petition no. 02 of 2022 were also brought before this hon’ble court to show that no order is uploaded annexed herewith this petition as ANNEXURE P-16. 28. That it is imperative to take this Hon’ble Court’s attention to the fact that the way adopted by Ld. Distt. Judge in uploading/pronouncing orders/judgment dated 28.03.2023 was uploaded suspiciously later just after conduction of hearing in CM(M) No. 538 of 2023 and not pronounced in open court was in clear contravention of Delhi High Court rules upon judgment and decree under Volume 1 Chapter 11 annexed herewith this petition as ANNEXURE P-17. 29.Therefore, the cited judgement by the respondent no.1 in the transfer application was utterly misconstrued and not at all applicable to the present transfer case as well as to the election petition at all and is being cited to mislead and deviate the Hon’ble Court.55 REFLECTION OF AVERMENTS OF ELECTION ORIGINAL ELECTION PETITION FILED BY THE PETITIONER 30.That the returned candidate, i.e; the respondent No. herein during the impugned election had submitted his affidavit U/s 32A of Delhi Municipal Corporation Act, 1957 as per the election rules for the contesting candidates but the Respondent No.1 has not disclosed the very material fact of his asset that is one Royal Enfield Electra 350- ES Motorcycle having registration No. DL4SP3000 registered on his name while disclosing his movable assets in clause A of FORM 22 which comes under non-disclosure of asset which is violation of Section 17 of Delhi Municipal Corporation Act, 1957. A true copy of declaration affidavit by respondent No.1 submitted in Delhi Municipal Elections 2022 and copy of Registration details of Royal Enfield Motorcycle of Respondent No.1 are annexed herewith the original election petition No. 02 of 2022 as Annexure P-1 and Annexure P-2 therein. 31.Also, Respondent No.1 has not disclosed about his licensee gun he is having on his name bearing license No. ODRH/1/2011/6. Having a licensee gun is not something which can be left from mentioning assets ~56 but Respondent No.1 has willingly did so in order to have undue influence and effect over the voters which in itself is sheer abuse of the rules and laws of elections. Delhi Police Licensing Authority which is Respondent No.12 in the present case has been adduced to verify the same. As a matter of fact a gun which is a deadly weapon is not something casual which can be left or missed from declaring one’s assets and other details especially when one has stepped into a taking for such a huge as well as delicate responsibility of being people’s representative and public servant. That Section 32A of The Delhi Municipal Corporation Act, 1957, stipulates a contesting or winning candidate/Respondent no.1 that; “324. Declaration of assets.-(1) Every councillor shall, not later than thirty days after making and subscribing the oath or affirmation under sub-section (1) of section 32 and before the last day of the same month in each succeeding year, file with the Mayor a declaration in such form as may be prescribed by rules by the 2[3[Central Government], of all the assets owned by him and members of his family and. such declaration shall form part of the records of 4[5[the Corporation]. Explanation--For the purposes of this sub-section, family means the spouse and dependant children of the councillor.57 (2) A person shall be disqualified for being a councillor— (a) if he fails to file a declaration referred to in sub-section (1); or (b) if he files a declaration under that sub-section which is either ‘false or which he knows or believes to be false.” 6. Further Section 17 of Delhi Municipal Corporation Act, 1957 states that, 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 on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a councillor 1*** under this Act, or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or (c) that any nomination paper 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 of any nomination, or58 (ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent, or (iii) by the improper acceptance or refusal of any vote or reception of any vote which is void, or (iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the court shall declare the election of the returned candidate to be void. (2) If in the opinion of the court, a returned candidate has been guilty by an agent of any corrupt practice, but the court is satisfied (a) that no such corrupt practice was committed at the election by the candidate, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate; (b) that the candidate took all reasonable means for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents;59 then the court may decide that the election of the returned candidate is not void. Section 100 of the 1951 Act provides for grounds for declaring election to be void. Section 100(1) which is relevant for the present purpose reads as under: 31. "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, insofar as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance or any nomination, or —_60 (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 any 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.” 32. That the Election Commission of India vide order dated 27.03.2003 issued an order saying; “1, Whereas, the superintendence, direction and control, inter alia, of all elections to Parliament and to the Legislature of every State are vested in the Election Commission by Article 324 (1) of the Constitution of India; 2, And whereas, the Hon'ble Supreme Court of India had, by its order dated 2nd May, 2002, in Civil Appeal No.7178 of 2001 — Union of India Vs Association for Democratic Reforms and another, held as follows: -61 “The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under art 324 of the Constitution of India from each candidate seeking election to Parliament or a state legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:- (1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine? (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof. (3) The assets (immovable, movable, bank balances etc) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues. (5) The educational qualifications of the candidate.”62 And whereas, the Election Commission had, in pursuance of the above referred Judgement and Order dated 2nd May, 2002 of the Hon’ble Supreme Court and in exercise of the powers, conferred on it by Article 324 of the Constitution, directed by an Order dated 28th June, 2002, inter alia, in para 14 of the said Order as follows:- "(1) Every candidate at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to all the five matters, specified by the Hon'ble Supreme Court and quoted in para 5 above (reproduced in para 3 herein), in an affidavit, the format whereof is annexed hereto as Annexure-1 to this order. (2) The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned. (3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon'ble Supreme Court and the nomination of the candidate concerned shall be63 liable to rejection by the retuming officer at the time of scrutiny of nominations for such non-fumishing of the affidavit. (4) Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him: Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summary inguiry conducted by him at the time of scrutiny of nominations under section 36 (2) of the c, and only the information so verified shall be taken into account by him ‘for further consideration of the question whether the same is a defect of substantial character.64 (5) The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media. (6) If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above.” PRIMARY OBJECTIONS OF THE PETITIONER 33. That learned First Court, has not afforded opportunity of hearing to the petitioner. The Election Petition raising the grave electoral misconduct committed by Respondent No.1, was decided in extreme haste and manner with which proceeding was conducted fails to account for the urgency to prepone the hearing already fixed on 22.04.2023 especially when Leamed First Court was apprised that its Order dated 24.03.2023 having effect of transferring the matter65 previously pending before Learned ADJ to itself is under judicial review before this Hon’ble Court. 34. That Be it ingeminated, on 29.03.2023 the impugned order allegedly dated 28.03.2023 was uploaded to the court’s website in the evening [till 4:45 pm] whereafter, the petitioner got to know about the said impugned order. Not only Petitioner was surprised to see a non- speaking unreasoned impugned order. In fact, this Hon’ble Court has also recorded the submission of petitioner in First Petition in its order dated 29.03.2023 to following terms: .. “4% Tearned counsel for the petitioner vehemently disputes the said position and submits that the manner in which the proceedings have been conducted leaves many questions unanswered”. In addition to the above mentioned improper conduct of proceedings, the petitioner has also adduced screenshots dated 29.03.2023 of e- court’s website/portal post 04:45 pm showing no orders was uploaded by Ld. District Judge in election Petition No. 02 of 2022. This fact was also laid before this Hon’ble Court with screen shots. Surprisingly, soon after this Hon’ble Court’s proceedings on 29.03.2023. which has 466 culminated at 4:45 pm and while the counsels were moving out of this court’s premises the impugned order was found to be uploaded. 35. That in addition to questions of propriety of impugned Order, on merits, the reasoning of Leamed First Court is clearly a jurisdictional ertor so much so that the fulcrum of impugned Order is that petitioner has not deposited the cost of Rs.5000 at the time of lodging of petition and therefore, it contravenes Rule 99 of DMC Rules. Impugned Order in returning this finding has lost sight of fact that the requisite deposit ‘was made well before matter was registered and Election Petition was numbered and was laid before the Court for adjudication only after deposition of the said fee. Any reasonable reading of Rule 99 does not implore an interpretation that merely because, for reasons beyond petitioner's control, if the requisite deposit could not be effected on the date of lodging, however the same was done the very next day and was well within limitation to lodge the election petition, the petitioner can be non suited. 36. That the expression ‘are not complied with’ occurring in Rule 91 was not construed properly, Learned First Court was obligated in law to adjudge as to whether at the time of its determination conditions prescribed in Rule 99 are fulfilled or not. Ignoring this very aspect of the matter, the impugned judgment has placed reliance of cases where67 ww admittedly on the date of determination there was no ‘deposit of cost’. The essential distinguishing feature of present case was lost sight of completely to commit and error of law apparent. 37.That the inherent fallacy in Respondent No.1’s arguments was not analyzed inasmuch as the fact the without admitted, in arguendo, even if it is assumed that for want of pre-deposit the petition laid on.....was non est, the infirmity making it so was cured the very next day and that too within outermost period of limitation and precisely for reason, the election petition was numbered after compliance of said requirement. 38. That the impugned Order has failed to take note of clause (2) of Rule 99 which obligates Respondent to be called only when it also fulfills the norm of pre-deposit. By that logic, the Respondent should have been non suited and its application has no locus to be entertained. 39. That unlike other statutes where legislation itself ordains of pre- deposit, in this case it is mere a rule which so obligates. In law the unless location of power to ‘dismiss’ the election petition is under statute the same cannot be enforced de hors that DMC Act. Curiously, there is no power under DMC Act which provides for dismissal of petition on this ground and thus Rule 91 travels beyond rule making powers and is ultra virus and unconstitutional.68 40. That it is settled law that in election matters, the statute must provides the grounds for setting aside of election, so shall be the case for dismissal of election petition. Both these aspects are essential legislative functions and cannot be delegated to be performed by delegated legislations. 41. That the manner taken by Ld. Distt. Judge in uploading/pronouncing orders/judgment dated 28.03.2023 is violative of Delhi High Court tules upon judgment and decree under Volume | Chapter 11. 42.That the election under challenge pertains to Rithala Municipal Ward ive. North-West , Delhi which falls within the jurisdiction of this Hon'ble High Court Court. 43.That the petitioner has no other speedy and efficacious remedy available except to approach this Hon'ble court by way of the present petition. 44. That the petitioner has not filed any other petition on same or similar grounds either before this Hon'ble court or before the Supreme Court of India. GROUNDS A) BECAUSE, Leamed First Court, has not afforded opportunity of hearing to the petitioner. The Election Petition raising the grave69 electoral misconduct committed by Respondent No.1, was decided in extreme haste and manner with which proceeding was conducted fails to account for the urgency to prepone the hearing already fixed on 22.04.2023 especially when Learned First Court was apprised that its Order dated 24.03.2023 having effect of transferring the matter pending before Learned ADS to itself is under judicial review before this Hon’ble Court. B) BECAUSE be it ingeminated, on 25.03.2023 the impugned order allegedly dated 24.03.2023 was uploaded to the court’s website in the evening [till 4:45 pm] whereafter, the petitioner got to know about the said impugned order. Not only Petitioner was surprised to see a non-speaking unreasoned impugned order. In fact, this Hon’ble Court has also recorded the submission of petitioner in First Petition in its order dated 29.03.2023 to following terms: .. “******, learned counsel for the petitioner vehemently disputes the said position and submits that the manner in which the proceedings have been conducted leaves many questions unanswered”. In addition to the above mentioned improper conduct of proceedings, the petitioner has also adduced screenshots dated70 29.03.2023 of e-court’s website/portal post 05:00 pm showing no orders was uploaded by Ld. District Judge in election Petition No. 02 of 2022. This fact was also laid before this Hon’ble Court with screen shots. Surprisingly, soon after this Hon’ble Court’s proceedings on 29.03.2023. which has culminated at 4:45 pm and while the counsels were moving out of this court’s premises the impugned order was found to be uploaded. C) BECAUSE in addition to questions of propriety of impugned Order, on merits, the reasoning of Learned First is clearly a jurisdictional error so much so that the fulcrum of impugned Order is that petitioner has not deposited the cost of Rs.5000 at the time of lodging of petition and therefore, it contravenes Rule 99 of DMC Rules. Impugned Order in returning this finding has lost sight of fact that the requisite deposit was made well before matter was registered and Election Petition was numbered and was laid before the Court for adjudication. Any reasonable reading of Rule 99 does not implore an interpretation that merely because, for reasons beyond petitioner’s control, if the requisite deposit could not be effected on the date of lodging, however the same was done the very71 next day and was well within limitation to lodge the election petition, the petitioner can be non suited. D) BECAUSE the expression ‘are not complied with’ occurring in Rule 91 was not construed properly, Learned First Court was obligated in law to adjudge as to whether at the time of its determination conditions prescribed in Rule 99 are fulfilled or not. Ignoring this very aspect of the matter, the impugned judgment has placed reliance of cases where admittedly on the date of determination there was no ‘deposit of cost’. The essential distinguishing feature of present case was lost sight of completely to commit and error of law apparent. E) BECAUSE furthermore, inherent fallacy in Respondent No.1’s arguments was not analyzed inasmuch as the fact the without admitted, in arguendo, even if it is assumed that for want of pre- deposit the petition laid on.....was non est, the infirmity making it so was cured the very next day and that too within outermost period of limitation and precisely for reason, the election petition was numbered after compliance of said requirement.72 F) BECAUSE impugned Order has failed to take note of clause (2) of Rule 99 which obligates Respondent to be called only when it also fulfills the norm of pre-deposit. By that logic, the Respondent should have been non suited and its application has no locus to be entertained. G) BECAUSE unlike other statutes where legislation itself ordains of pre deposit, in this case it is mere a rule which so obligates. In law the unless location of power to ‘dismiss’the election petition is under statute the same cannot be enforced de hors that DMC Act. Curiously, there is no power under DMC Act which provides for dismissal of petition on this ground and thus Rule 91 travels beyond rule making powers and is ultra virus and unconstitutional. H) BECAUSE itis settled law that in election matters, the statute must provides the grounds for setting aside of election, so shall be the case for dismissal of election petition. Both these aspects are essential legislative functions and cannot be delegated to be performed by delegated legislations.73 1) BECAUSE it is further an apparent mistake and error in the impugned judgment of the District Judge that the original election petition is barred by limitation because, as per section 15 of the DMC act the petition could have been filed with 15 days of date of issuance of certificate by state election commission and in the present case, it could have been filed till 23.12.2022 which indeed was done. It is pertinent to mention here that the filing of the petition and deposit of the requisite amount both have been done by the petitioner well within the limitation period in compliance of section 15 of the act. Thus there is no question of the petition being barred by law. J) BECAUSE the manner in which Ld. Distt. Judge gets orders/judgment dated 28.03.2023 uploaded in a delayed and suspicious manner especially just after conduction of hearing in CM(M) No. 538 of 2023 and not pronounced in open court is in clear contravention of Delhi High Court rules upon judgment and decree under Volume 1 Chapter 11 annexed herewith this petition as ANNEXURE P-17.74 K) BECAUSE Section 99 (2) DMC Rules, 2012 of “No person shall be entitled to be joined as a respondent unless he has given such security for costs as the court may direct”, which stipulated the Respondent No.1 to file this security amount of Rs. 5000/- with the Delhi State Election Commission was not even complied by the Respondent No.1 throughout the election petition proceedings, without which the defence of Respondent No.1 shall ought not be admitted rather being Struck off by the lower court has been completely overlooked by Id. district judge while dismissing the said election petition in a totally unjustified, inequitable and blatant manner. L) That, the first court hearing was conducted on date 03.01.2023 and the case file was originally put up by registry into the court was on 23.12.2022, however before both these events, the requisite fee as per Rule 99 of DMC Rules, 2012 had already been duly deposited with the state commission and its receipt had already been filed with the court’s registry on date 22.12.2023. A true copy of the receipt of deposition of requisite fee of INR 5000/- (Rupees Five Thousand Only) with State Election Commission i.e. Respondent No.14 as