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AAP's Kuldeep Kumar becomes Chandigarh Mayor; show cause notice to Anil Masih
Published : Feb 20, 2024, 3:02 pm IST
Updated : Feb 20, 2024, 4:31 pm IST
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Chandigarh Mayor Election 2024 Row Supreme Court Hearing BJP vs AAP vs Congress
Chandigarh Mayor Election 2024 Row Supreme Court Hearing BJP vs AAP vs Congress

The top court said, "8 votes shall be treated as valid."

Chandigarh Mayor Election 2024 Row: In a major development in the Chandigarh Mayor election 2024 row, the Supreme Court on Tuesday declared the petitioner Kuldeep Kumar as the validly elected candidate for the post of Mayor of Chandigarh Municipal Corporation. The top court also directed the Registrar Judicial to issue a notice to Anil Masih, to show cause as to why steps should not be initiated against him under Section 340 CrPC.

What happened in the Supreme Court? 

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The CJI asked if the judicial officer had come with the ballots as the bench would like to see the 8 ballots which were invalidated. The Judicial officer then handed over the ballots to the bench. CJI confirmed, "Kuldeep Kumar is one candidate, and Manoj Sonkar is the other candidate?" To this, Sr Advocate Gurminder Singh (for Kuldeep Kumar), said, "Yes, there were only two candidates." 

CJI then showed the ballots to the lawyers. He said, "All 8 have received the stamp for Kuldeep Kumar. The votes were cast for Kuldeep Kumar. What he (the returning officer) does is, he puts a single line. Just one line, as seen in the video." 

Likewise, the Chief Justice of India, said that "Mr.Masih, yesterday you told us that you put the lines because the ballot papers were defaced. Where is the ballot paper defaced?" 

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Similarly, Anil Masih checked the ballots along with his lawyer Sr Adv Mukul Rohatgi. They were also joined by Kuldeep Kumar's lawyers Gurminder Singh and Sr Adv AM Sighvi. Gurminder Singh said, "It is just a single line, it won't invalidate the ballots. It's just a touch of the pen." Singhvi said, "The person (Masih) had the gall to do it on video, keep quiet, come to court, and think that he could get away. He was misleading all of us."

To this, Rohatgi (Masih's lawyer) said, "He is entitled to sign. In the first one, there is a small dot... some are folded from the top. He has by that line tick, he has been identified for disqualification. He may be right or wrong. That is his assessment. Why he was looking at the camera? There was a commotion and he was checking if the camera was working. It is not as if it was a guilty man looking at the camera."

CJI said, "We will direct that the votes at the poll shall be recounted and these 8 shall be treated as valid and results be declared based on that."

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Rohatgi said, "I have no problem, what I say is that let someone examine if what he did was wrong." To this, Singhvi said, "Nobody can have the fruits of one's wrongs... and the man (Masih) is defending till the end... in the face of the Supreme Court" 

Gurminder Singh said, "They asked the ballots to be folded so that the ink won't spread....he said, he is very well aware of why the dot is there and is misleading the senior counsel..he strictly told to fold so that the ink won't come to the other candidate."

The video of the voting process of Jan 30 was played in the Court. CJI said, "Let all of them see the video... a little entertainment is good for everybody!" CJI said that the petitioners have given the relevant timeline of the video. "Otherwise all of us will be here till 5.45," CJI laughed.

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Rohatgi said, "He was declaring the votes ... they have snatched away the ballots..."

Justice Pardiwala said, "Yesterday, he admitted that he ticked the ballots. We have seen the video, that after the declaration of results, the commotion happened."

Justice Pardiwala: Why did he tick the ballots?

Rohatgi: He explains that he assessed that certain ballots were invalid. He is not a thief. It was his assessment.

Singhvi: An imaginary assessment!

The Supreme Court bench sought the response of Sr Adv Maninder Singh, the winner of the mayoral election (who later resigned).

Maninder Singh said, "As per the statute, if there is a vacancy in the post of Mayor, then there has to be a fresh election." He added, "The prayer in the petition was also for a re-election." 

Maninder Singh further said, "Even if your lordships conclude that the election has to be set aside, as per statutory mechanism, a fresh election has to be done. That will be fair to us too."

Singhvi said, "The provision will apply only if there is a valid election. They want fresh elections because they want the benefit of the time during which they possibly got people to defect. On a lighter vein, horse-trading is a term insulting horses."

Gurminder Singh said, "At any stage of the election, your lordships can go back if their conduct warrants so..."
 
Maninder Singh said, "The prayer is to set aside the election and for a fresh election, not to declare the petitioner as the winner." 

Bench started dictating the order: 

"Section 38 of the Punjab Municipal Corporation Act 1976 is extended to the UT of Chandigarh. It provides that the Corporation on its first meeting shall elect its Chairperson, known as the Mayor of the Corporation. Section 60(a) and Regulation 6(1) of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulation 1996 provide that the meeting of the election of the Mayor shall be convened by the Divisional Commissioner, who is the prescribed authority, who shall nominate a councillor, who is not a candidate for the election, to preside over the meeting." 

"Sri Vinay Pratap Singh IAS, Dy Commissioner of UT Chandigarh, acting in his capacity as the Prescribed Authority, directed the convening of the meeting of the councillors in terms of Section 38 at 11 AM, Jan 18, 2024. Sri Anil Masih, one of the councillors who was not standing for the election, was nominated as the Presiding Authority. The agenda of the meeting was to conduct the election of Mayor, Sr Dy Mayor and Dy Mayor. The present case relates to the election to the post of Mayor."

"A writ petition under Article 226 was instituted by the petitioner in the Punjab and Haryana High Court seeking a direction to the Dy Commissioner to ensure that free and fair election takes place to the post of Mayor, Sr Dy Mayor, Dy Mayor of the Corporation and the appointment of a Commissioner under the auspices of the Court to supervise the election process."

"During the course of the hearing of the petition, the petitioner submitted that he would be content if a direction was issued to the official respondents to acknowledge the acceptance of withdrawal of the candidature of certain persons for the three electoral posts and with a direction that persons nominated by the contested candidates may be permitted to observe the proceedings. The petitioner also sought a direction for video recording of the election process." 

"In response to the above request, the respondents representing the authorities, inter alia, stated that the entire voting process will be video recorded. It was stated that Chandigarh police will ensure free and fair elections take place. In view of this position, the petition was disposed of by HC."

"A fresh round of litigation then took place before the HC since the elections were not conducted on Jan 18, 2024. The election could not take place as the Presiding Officer had taken leave of absence on the ground of ill health."

"The elections were rescheduled to take place on Feb 6, 2024. The order postponing the elections was also challenged before the High Court. On 23 Jan, the HC observed that the postponement of the election for 18 days was unreasonable. By judgment dated 24 Jan, the HC directed that there was no valid ground for the postponement of the elections. Consequently, by setting aside the order dated Jan 18, 2024, the HC directed that the elections to the post of Mayor, Sr Dy Mayor, Dy Mayor shall be conducted on 30 Jan 2024."

"The program for the elections was notified on Jan 26, 2024. The election for the post of Mayor was conducted on Jan 30, 2024. Two candidates were in the fray for the post of Mayor. The petitioner Kuldeep Kumar was a candidate set up in an alliance between the AAP and INC. From the submissions before the Court, it appears that the alliance came into being after nominations were filed on Jan 16, after which certain candidates withdrew."

"The second candidate, Manoj Kumar Sonkar, 8th respondent, was the candidate set up by the Bhartiya Janata Party. A total of 35 councilors were eligible to vote at the election of Mayor. Apart from this, the Member of Parliament from the UT was eligible to cast a vote. Therefore, there were 36 eligible voters."

"Election to the post of Mayor is governed by Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 1996. Regulation 6 provides for the election of the Mayor, including the process of nomination, withdrawal of candidatures, and the conduct of the election by secret ballot."

"Clauses 9 to 13 of Regulation 6 have a material bearing on the subject matter of the present dispute. The results were announced by Anil Masih, the Presiding Officer, on Jan 30, 2024. The result sheet which tabulated the outcome is reproduced below.."

"The results sheet indicates that of the 36 votes that were polled, 8 were treated as invalid. Of the 28 valid votes which remained, the petitioner holds 12 votes while the 8th Respondent holds 16 votes. The Presiding Officer declared the results. This led to the institution of a writ petition in PH HC. A division bench of the HC declined to stay the election and directed that the petition be posted after 3 weeks. The proceedings before this Court were instituted at that stage."

"In pursuance of the previous orders, the entire election materials were sequestered with the Registrar General of the HC, including ballot papers, and video footage. The entire record has been produced today in a sealed condition by a judicial officer."

"During the course of video footage, it emerged that Shri Anil Masih, the Presiding Officer, has signed each of the ballot papers. Regulation 6(11) provides that the Presiding Authority shall open the ballot box and initial each ballot paper."

"The video footage appeared to indicate that the presiding authority also placed certain marks on some of the ballot papers. On 19 Feb 2024, the Presiding Authority, who was present before this Court, stated that besides signing the ballot papers he had placed marks on 8 ballot papers and he did so as he found the ballot papers were defaced."

"In terms of Regulation 6(9), a councilor can vote for only one candidate. While voting, each member has to place a cross (x) on the right-hand side of the ballot paper opposite the candidate whom he wishes to vote, after which the ballot paper has to be folded and inserted in the ballot box."

"Regulation 6(10) states when a ballot paper will be treated as invalid. Clause 10 provides for three eventualities. First is where a member votes for more candidate than one. Second eventuality is where the member places any mark on the paper by which he may be identified. The third eventuality is that if the mark indicating the vote is placed in such a manner making it doubtful as to which candidate the vote has been cast."

"The grievance of the petitioner, urged by Dr.Abhishek Manu Singhvi and Mr.Gurminder Singh, Senior Advocates, is that the video footage leaves no manner of doubt that the Presiding Officer, while initialiing the ballot paper, had purported to place an ink mark at the lower half of the ballot and this happened in the case of 8 ballots which were cast in favour of the petitioner. Consequently, it was submitted that a deliberate attempt was made by the Presiding Officer to treat 8 votes cast in favour of the petitioner as invalid to declare the 8th respondent as the elected candidate on the basis that he has secured 16 votes."

"It is urged that the 8 votes, which were treated as invalid, were wrongly treated to be so, this being a result of the marks which were put by the Presiding Officer on the 8 ballots which have been cast in favour of the petitioner. Hence, it is submitted that the electoral process has been vitiated by the misconduct of the Presiding Authority."

"Mr Mukul Rohatgi, senior counsel, for the Presiding Authority, urged that the entire process of election was not only video recorded but all the contesting candidates and their representatives were present in the assembly hall where the counting took place. Rohatgi submitted that apart from initialing the ballot papers, Mr.Masih had placed certain marks on 8 ballots on the basis of his understanding that these ballots were defaced."

"Mr Maninder Singh, for 8th respondent, submitted that the relief which was sought by the petitioner before HC was to set aside the election and to conduct a fresh election. During the pendency of this proceeding, the 8th respondent resigned, and hence it was submitted that a fresh election will have to be held in terms of Section 38(3)"

"Mr. Tushar Mehta, Solicitor General appeared for the UT. Regulation 6(9) indicates that at the time of voting, each member has to place a cross on the right-hand side of the ballot paper opposite the name of the candidate whom the member wishes to vote. The ballot paper is then folded and placed in the ballot box."

"It is evident from the physical inspection of the eight ballots which were treated to be invalid that in each of the ballots, the votes were cast by the member in favour of the petitioner. The Presiding Officer has placed a single line in the bottom half on each of the ballots treated to be invalid."

"It is evident that in each of the 8 ballots, the vote has been duly cast in favour of the petitioner. The Presiding Officer has evidently put his own mark for the purpose of treating the ballot as invalid. In doing so, the Presiding Officer has acted beyond his remit of statutory regulations."

"There is no dispute that in each of the 8 ballots, the votes are cast in favour of one person. Likewise, no mark on the ballot will indicate that the person who cast the vote will be identified. The third ground, which evinces a situation where the mark is placed in such a manner making it doubtful for which candidate the vote has been cast, evidently does not arise on a plain perusal of the ballot. Even if the mark placed by the Presiding Officer is taken into consideration, that mark does not create any doubt on whom the vote is cast."

"The Presiding Officer is guilty of misdemeanor. The Presiding Officer has made a deliberate attempt to deface 8 ballots that were cast in favour of the petitioner so that the 8th respondent will be declared as the elected candidate.​ Yesterday, the Presiding Officer made a solemn statement before this Court that he had done so as the 8 ballots were defaced. It is evident that none of the ballots are defaced." 

"The conduct of the Presiding Officer has to be deprecated at two levels. Firstly, he has unlawfully altered the course of the Mayoral election. Secondly, in making a solemn statement before this Court on 19 Feb, the Presiding Officer expressed falsehood for which he must be held accountable."

"For the above reasons, we have come to the conclusion that the results declared by the Presiding Officer are unlawful and have to be set aside. We order accordingly."

"During proceedings, the 8th respondent resigned. The senior counsel on behalf of the 8th respondent submitted as per provisions, that there has to be a fresh election. In the writ petition which was instituted before the PH HC, the petitioner, had inter alia, sought the setting aside of the election process and for the holding of the fresh election process afresh and consequential reliefs."

"The setting aside of the election process is a wider relief. We are of the view that setting aside the entire election process is inappropriate as the only infirmity is found in the counting process. Setting aside the entire election process will compound the destruction of the democratic principles that happened due to the conduct of the Presiding Officer." 

"This Court is duty bound to ensure that the democratic process is not set at naught by such subterfuges. We are therefore of the view that the Court must step in such exceptional circumstances to ensure that the basic democratic mandate is ensured.​"

"From the result sheet, while the petitioner got 12 votes, the 8 votes which were treated as invalid wrongly, were validly passed in favour of the petitioner. Adding the 8 votes would make his tally 20 votes. The 8th respondent on the other hand polled 16 votes."

"The petitioner is declared to be the validly elected candidate for the post of Mayor of Chandigarh Municipal Corporation." The result declared by the Presiding Officer is set aside. A fit case is made out for the initiation of proceedings under Section 340 CrPC against Anil Masih. Registrar Judicial is directed to issue a notice to Anil Masih, to show cause as to why steps should not be initiated against him under Section 340 CrPC.

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ROZANA SPOKESMAN

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