Partly allowed

Vidya Stokes v. Election Commission of India

Himachal Pradesh HC25 Oct 2017CWP/2387/2017

Case brief

AI extract

What is this about?

In a writ petition challenging the rejection of her nomination for the Theog Assembly Constituency, the Court noted objections regarding two INC candidates. Ultimately, the petitioner sought to withdraw the petition, which the Court permitted without adjudicating the merits, leaving the issues open for future appropriate proceedings.

What did the court decide?

Withdrawal of the writ petition permitted; issues not adjudicated on merits; liberty to agitate before appropriate forum reserved.

Vidya Stokes Vs Election Commission of India — Election Law | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2387 of 2017

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Date of Decision : October 25, 2017

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Smt. Vidya Stokes …Petitioner

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versus

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Election Commission of India & others …Respondents.

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Coram:

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The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon’ble Mr. Justice Sandeep Sharma, Judge.

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For the Petitioner	:	Mr. B.C. Negi, Senior Advocate, with Mr. Pranay Pratap Singh, Advocate.
For the Respondents	:	Mr. Shrawan Dogra, Advocate General, with Mr. Romesh Verma,
		Additional Advocate General, for Returning Officer – respondent No.2.

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Sanjay Karol, ACJ (Oral)

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Elections to the Legislative Assembly of State

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of Himachal Pradesh were announced by the Election Commission of India on 16.10.2017. As per the prescribed schedule, last date for filing nominations was 23.10.2017; scrutiny of the forms was to take place on 24.10.2017; and candidates could withdraw their nomination by 26.10.2017.

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For the Legislative Assembly Constituency No.61 – Theog in Himachal Pradesh, on 23.10.2017, petitioner Smt. Vidya Stokes filed her nomination as a

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…2…

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candidate of a National Political Party, i.e. Indian National Congress. However, prior thereto, same day, another candidate Shri Deepak Rathore (respondent No.3) also filed his nomination as an official candidate of the same National Political Party. Significantly, both the official candidates, alongwith their nomination forms, submitted Form-A and Form-B, prescribed under the provisions of Paragraphs 13(b), 13(c), 13(e) and 13A of the Election Symbols (Reservation and Allotment) Order, 1968, claiming themselves to be the official candidates.

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On 24.10.2017, the date fixed for scrutiny of the forms, two candidates, i.e. Shri Rakesh Verma (respondents No.4) and Shri Rakesh Singha (respondent No.5) raised objection that without rescinding the candidature of respondent No.3, who had filed his nomination, earlier in point in time, nomination form submitted by the petitioner was invalid. Based on such objection, the Returning Officer, in writing, afforded opportunity, both to the petitioner and respondent No.3, calling upon them to respond to such objections. 4. Same day, respondent No.3 filed his response, clarifying that on 24.10.2017, at about 1.10 p.m., he learnt the factum of the President of the Political

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…3…

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Party having issued original letter alongwith Form-B in favour of the petitioner, as such, he has decided to go with the decision of the President and that, petitioner be considered as an official candidate. Petitioner also responded by moving an application dated 24.10.2017, seeking permission to place on record certain documents, including a fresh Form-B 23.10.2017. It is in this Form, for the first time, official version of the Political Party that earlier Form-B, issued in favour of respondent No.3, as party’s approved candidate, stands rescinded, was made known. But then, this Form was not placed on record at the time of filing of nominations.

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Vide separate orders dated 24.10.2017, the Returning Officer rejected both the application for placing on record additional material and also the nomination of the petitioner, which are now subject matter of the present petition, so filed under Article 226 of the Constitution of India. For the purpose of ready reference, we deem it necessary to reproduce the impugned orders as under:

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Order No.1

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“Decision of Returning Officer accepting or rejecting the nomination paper.

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…4…

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I have examined this nomination paper in accordance with Section 36 of Representation of People Act, 1951 and decide as follows;-

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Whereas, during the process of scrutiny it is observed that Indian National Congress has set up two candidates as their approved candidates in pursuance of Paragraphs – 13(b),(c) and (e) of the Election Symbols (Reservation and Allotment) Order, 1968” with respect to 610Theog Assembly Constituency for contesting the General Assembly Election, 2017.

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Whereas, during the process of scrutiny Sh Manohar Lal, Election Agent of Sh Rakesh Verma, BJP Candidate and Sh Rakesh Singha, CPI(M) Candidate filed objection that Indian National Congress Party has set up two candidates Sh Deepak Rathour and Smt Vidya for the 61-Theog Assembly Constituency Election in contravention of the provision of paragraph 13-A of “The Election Symbols (Reservation and Allotment) Order, 1968” without rescinding the candidature of earlier candidate i.e. Sh Deepak Rathour, which was found valid.

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Whereas, as per the documents submitted before Returning Officer 61-Theog Assembly Constituency before 3.00 PM on last date of filing nomination i.e. 23.10.2017, The Indian National Congress has approved of Paragraph-13A of the Election Symbols (Reservation and Allotment) Order, 1968 which provides that in case more than one notice in Form-B is received by the Returning Officer in respect of two or more candidates and the Political Party fails to indicate in such notices in Form-B that the earlier notice or notices in Form-B has or have been rescinded, the Returning Officer shall accept the notice in Form-B in respect of

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…5…

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the candidate whose nomination paper was first delivered to him and the remaining candidate or candidates in respect of whom also notice or notices in Form-B has or have been received by him shall not be treated as candidate set up by such Political Party.

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Therefore, in view of valid objections raised by both these objectors and as per provisions of Paragraph-13A of the Election Symbols (Reservation and Allotment) Order, 1968 and submitted documents by 3.00 PM, the nomination of Smt Vidya bearing Serial No.12, presented at 2.35 PM on 23.10.2017 is not treated as candidate set up by Indian National Congress Party for 61-Theog Assembly Constituency being delivered later in contravention of the provisions under 13-A of The Election Symbols (Reservation and Allotment) Order, 1968 and not further supported by 10 Proposers to be considered as Independent Candidate. Therefore, the nomination of Smt Vidya bearing serial No 12 delivered at 2.35 PM on 23.10.17 is hereby rejected.

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Announced.

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Sd/-

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Returning Officer 61-Theog Assembly Constituency

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Place; Theog Date; 24.10.2017”

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Order No.2

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“24.10.2017 5.50 PM

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Sh Deepak Rathour, set up a INC Candidate submitted his written reply at around 4.25 PM to the notice stating therein that it has come to his notice that

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State President, Prad3esh Congress Committee Shri Sukhwinder Singh Sukhu has issued original letter alongwith Form-B in favour of Smt Vidya Stokes including him. And if, the candidature of Smt Vidya Stokes is considered valid as per Rule, than he does not have any objection.

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In view of the reply submitted by Sh Deepak Rathour, Candidate Set up by INC and as per the provisions contained in Paragraph-13A of Election Symbols (Reservation and Allotment) Order, 1968 and revised Form-B duly rescinding the candidature of Sh Deepak Rathour submitted today on 24.10.2017 at 11.10 AM by Sh Shyam Verma, Election Agent of Smt Vidya Stokes.

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As per the provisions of Sectin-33 of the Representation of People Act, 1951, the nomination alongwith Form-A and Form-B should be submitted to the Returning Officer on or before 3.00 PM on the last date of nomination, whereas the revised Form-B submitted through Electino Agent on 24.10.2017 can not be considered as valid as act ibid.

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Therefore, the claim presented by Smt Vidya Stokes through her Election Agent is set aside in view of the above discussion, provisions of laws, facts and circumstances and documents submitted.

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Sd/-

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Returning Officer, 61-Theog AC”

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Having heard Mr. B.C. Negi, learned Senior

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Counsel appearing for the petitioner at length, who has painstakingly taken us through the decisions rendered by the Hon’ble Supreme Court of India in Mohinder Singh Gill

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…7…

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& another v. The Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 405 [Constitution Bench (Five Judges)]; Rakesh Kumar v. Sunil Kumar, (1999) 2 SCC 489; and Election Commission of India through Secretary v. Ashok Kumar & others, (2000) 8 SCC 216, we are unable to persuade ourselves to allow prayer of grant of ad-interim stay and interfere with the orders passed by the Returning Officer, more so in view of Constitutional mandate under Article 329(b) and prohibition under Section 100 of the Representation of Peoples Act, 1951 [Sub-section (c) of Section (1)].

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At this stage, Mr. B.C. Negi, learned Senior Advocate, under instructions, seeks permission to withdraw the present petition, reserving liberty to agitate the issues, if so required and desired, in accordance with law, before an appropriate forum. None can have any objection to the same.

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As such, present petition is permitted to be withdrawn, clarifying that this Court has not adjudicated the issues on merits and left them open to be decided in an appropriate proceeding at an appropriate stage, if so required and desired.

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Writ petition stands disposed of accordingly,

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so also pending application(s), if any.

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( Sanjay Karol ), Acting Chief Justice

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October 25, 2017(sd)

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( Sandeep Sharma ), Judge.

Vidya Stokes v. Election Commission of India

Case brief

What is this about?

What did the court decide?

Vidya Stokes v. Election Commission of India

Case brief

What is this about?

What did the court decide?

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