The Delhi high court on Tuesday set aside the decision of Mayor Shelly Oberoi to call for a repoll to elect six members of the Municipal Corporation of Delhi standing committee and directed her to declare forthwith the results of the poll held on February 24 while treating the "disputed vote" to be in favour of Bharatiya Janata Party councillor Pankaj Luthra.
Justice Purushaindra Kumar Kaurav said the mayor, also the returning officer, acted beyond her powers and her decision was impermissible as it was "not based on any material relevant to the issue".
"The action of mayor/RO of rejecting the ballot and declaring it to be invalid, after the stage of scrutiny had reached and the quota successfully ascertained, the same is bad in law," the judge said in his 76-page order.
"The respondent no.4-Mayor/RO is directed to declare the result in form no.4, forthwith while treating the disputed vote to have been validly cast in favour of Mr Pankaj Luthra," ordered the judge.
The court's order came on petitions by BJP councillors Kamaljeet Sehrawat and Shikha Roy against the mayor's decision to order repoll for six MCD standing committee seats, amid the running feud between the saffron party and the Aam Aadmi Party.
The petitioners had alleged that the mayor, who belongs to AAP and was the returning officer, wrongly invalidated one of the votes and interdicted the election process upon finding the results "politically unpalatable".
The court noted that of the six elected candidates, there were three members each from BJP and AAP with no invalid ballot being found after scrutiny but, subsequently, the mayor declared one vote as invalid and did not declare the results but announced repoll.
Citing the Municipal Secretary, the court said the vote that was declared invalid had been cast in favour of Luthra.
The court emphasised that once the stage of scrutiny is over, re-scrutinising ballot papers cannot be legally permissible under law and, if such an exercise is allowed, the election process could never come to a halt.
In the present case, the court added, the poll took place, scrutiny was conducted and the quota was ascertained, and so non-declaration of result would be an act of disrespect towards the voters. It said the "entire approach" the mayor was contrary to the legal regime.
"Stopping the election process prematurely would result in an incomplete or inaccurate count of votes, which could lead to disputes, claims of fraud and a lack of confidence in the election results. The same has happened in the instant case. Such an approach would ultimately undermine the democratic process and the legitimacy of the elected officials," the court said.
"In the interest of democracy, fairness and respect of the electoral process must be maintained. It is crucial to see the election process attains its finality even if the outcome is not in favour of a particular party.
"It is inherent in a democratic setup that an agency which is entrusted the task of holding the elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day," it stated.
The court also observed that "the subsequent disturbance which is alleged to have taken place after the counting was over has no bearing" on the rejection of ballot paper as it was a "subsequent act which has taken place on account of the decision of the Mayor/RO in not declaring the result as per result sheet".
If any party has any grievance with respect to this aspect they are free to take appropriate recourse in accordance with law, the court said.
"This court is therefore of the considered opinion that the entire approach of the mayor/RO is contrary to the provisions of The Delhi Municipal Corporation (Procedure & Conduct of Business) Regulations, 1958 and the People (Conduct of Election and Election Petition) Rules, 1956. The decision taken by the mayor/RO is nothing but a colourable exercise of power," the court said.
"Writ petitions are allowed. The impugned notice dated 24.02.2023 is hereby set aside," the court ordered.
The mayor had on February 24 announced fresh polling for electing six members of the MCD standing committee on February 27 at 11 am amid clashes between the BJP and AAP councillors in the municipal House. The high court had stayed the repoll on February 25.
Oberoi had told the court that re-polling was essential to ensuring free and fair elections following the "ruckus" in the House .
Roy's petition, filed through advocate Neeraj, said the poll was conducted in a peaceful manner and there was no occasion for the mayor to recall the elections.
The petitioners had argued that there is no enabling provision in law which empowered the mayor to call for a repoll or a recounting.
