‘Electoral misconduct by the presiding officer himself’: Top Court declares AAP-Congress candidate Kuldeep Kumar as Mayor of Chandigarh Municipal Corporation
Chief Justice D.Y. Chandrachud, Justices J. B. Pardiwala & Manoj Misra [20-02-2024]

Read Order: Kuldeep Kumar v. U.T. Chandigarh and Others[ SC- Civil Appeal No. 2874 of 2024]

LE Correspondent

New Delhi, February 27, 2024: The Supreme Court last week set aside an earlier result of the Chandigarh Mayoral Polls while declaring the petitioner-Kuldeep Kumar, a candidate fielded by an alliance between the Aam Aadmi Party and the Indian National Congress, as the winner. The Top Court has also issued a show cause notice to the Presiding Officer Anil Masih for unlawfully altering the course of the election.

The factual background of the case was that Vinay Pratap Singh, IAS, Deputy Commissioner, Union Territory of Chandigarh acting in his capacity as the Prescribed Authority directed the convening of a meeting of the Councillors in terms of Section 38 of Punjab Municipal Corporation Act 1976 (Act) on January 18, 2024.

A writ petition under Article 226 of the Constitution was instituted by the appellant in the High Court seeking a direction to the Deputy Commissioner to ensure that free and fair elections for the posts of Mayor, Senior Deputy Mayor, and Deputy Mayor of the Corporation and the elected Councillors take place. Two candidates were in the fray for the post of Mayor. The appellant, Kuldeep Kumar, was a candidate fielded by an alliance between the Aam Aadmi Party and the Indian National Congress. The second candidate, Manoj Kumar Sonkar, the eighth respondent was a candidate set up by the Bharatiya Janta Party. The Presiding Officer declared the result of the election in favour of the eighth respondent.

Alleging electoral malpractices by the presiding officer/seventh respondent during the counting of votes, the appellant instituted a writ petition before the High Court of Punjab & Haryana. A Division Bench declined to stay the result of the election. In pursuance of the directions of the Top Court, the entire record pertaining to the election of the Mayor was sequestered under the custody of the Registrar General of the High Court, including (i) the ballot papers; (ii) the video footage of the electoral process; and (iii) all material in the custody of the Returning Officer/Presiding Officer. The appeal before the Supreme Court arose from the interim order of the Division Bench.

It was the case of the petitioner that a deliberate effort was made by the Presiding Officer to treat eight of the votes which were cast in favour of the appellant as invalid and to declare the eighth respondent as the elected candidate on the basis that he had secured sixteen votes. It was submitted that the electoral process had been vitiated by the misconduct of the presiding authority, as a consequence of which the democratic process leading up to the election of the Mayor of the Chandigarh Municipal Corporation had been seriously impaired.

On behalf of the Presiding Officer, it was urged that the entire process of the election was not only video recorded but both the contesting candidates and their representatives were present in the assembly hall where the counting took place. It was submitted that apart from initialing the ballot papers, the Presiding Officer placed certain marks in the bottom half of the eight ballots which were treated as invalid based on his assessment that these ballots had already been defaced.

Referring to the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 1996 which govern the elections to the post of Mayor, the 3-Judge Bench of Chief Justice D.Y. Chandrachud, Justice J. B. Pardiwala and Justice Manoj Misra clarified that Regulation 6(10) stipulates when the ballot paper would be treated as invalid and provides for three eventualities. The first is where a member votes for more candidates than one. The second eventuality is where the member places any mark on the paper by which he may be identified. The third eventuality is if the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful for which candidate the vote has been cast. Regulation 6(11) provides that as soon as the period fixed for casting of the votes is over, the presiding authority shall open the ballot box and initial each ballot paper.

The Bench took note of the fact that the Presiding Officer had signed each of the ballot papers. However, the video footage indicated that he had also placed certain marks on some of the ballot papers. This was corroborated when the Presiding authority/seventh respondent, who was present before this Court, stated that besides signing the ballot papers, he had placed his mark on eight ballot papers during the counting of the votes. He stated that he did so as he found that the ballot papers were defaced and sought to highlight them.

The Bench was of the opinion that in the eight ballots, the vote had been duly cast in favour of the appellant. Further, the Presiding Officer had evidently put his own mark on the bottom half of the ballots to create a ground for treating the ballot to have been invalidly cast. “In doing so, the Presiding Officer has clearly acted beyond the terms of his remit under the statutory regulations. These regulations have been framed by the Municipal Corporation in exercise of powers conferred by Section 65 of the Act as extended to the Union Territory of Chandigarh”, it added.

Noting that none of the eventualities of Regulation 6(10) were fulfilled in this case, the Bench observed that the ballots had not been defaced when the Presiding Officer put his mark at the bottom. The ballots left no manner of doubt about the candidate for whom the ballot was cast. However, it was evident that the Presiding Officer was guilty of a serious misdemeanour in doing what he did in his role and capacity as Presiding Officer.

“It is evident that the Presiding Officer in the present case has made a deliberate effort to deface the eight ballots which were cast in favour of the appellant so as to secure a result at the election by which the eighth respondent would be declared as the elected candidate”, the Bench said while further adding, “The conduct of the Presiding Officer must be deprecated at two levels. Firstly, by his conduct, he has unlawfully altered the course of the Mayor’s election. Secondly, in making a solemn statement before this Court on 19 February 2024, the Presiding Officer has expressed a patent falsehood, despite a prior warning, for which he must be held accountable.”

After a perusal of the result sheet, the Bench held that while the appellant was reflected to have polled twelve votes, eight votes cast in favour of the appellant were treated as invalid. Each of those eight invalid votes was in fact validly cast in favour of the appellant. Adding the eight invalid votes to the twelve votes which the Presiding Officer recorded to have been polled by the appellant would make his tally twenty votes. The eighth respondent had polled sixteen votes.

Thus, the Bench ordered, “For the above reasons, we have come to the conclusion that the result, which was declared by Shri Anil Masih, the Presiding Officer is plainly contrary to law and would have to be set aside.” It was further directed by the Top Court that the result of the election as declared by the Presiding Officer be quashed and the appellant, Kuldeep Kumar, be declared as  the validly elected candidate for election as Mayor of the Chandigarh Municipal Corporation.

The Apex Court also directed the Registrar (Judicial) to issue a notice to show cause to Shri Anil Masih of the Chandigarh Municipal Corporation who was the Presiding Officer of the election, as to why steps should not be initiated against him under Section 340 of the Code of Criminal Procedure 1973. The Bench concluded the matter by saying, “In order to maintain the purity of the electoral process, the little cross on the little bit of paper must be made only by the metaphorical little man walking into the little booth and no one else.”