Delhi High Court Refuses To Reject Plea Challenging Election Of AAP's Durgesh Pathak In Assembly Bypolls 2022

The Delhi High Court has refused to reject a plea challenging the election of Aam Aadmi Party leader Durgesh Kumar Pathak in the Assembly by-elections of 2022.

Pathak was declared as a winner from Rajinder Nagar constituency by defeating his nearest rival by a margin of 11,468 votes.

Justice Yashwant Varma rejected Pathak's application for rejection of the election petition filed by Rajan Tewari, a voter from the constituency in question.

Tewari challenged Pathak's election on the grounds that there was non- disclosure of criminal antecedents, he was holding an office of profit on the date of scrutiny of nomination and there was suppression of Income Tax Returns of Financial Year 2019-20.

It was Tewari's case that Pathak had apart from indulging in corrupt practices as envisaged under Section 123 of Representation of Peoples Act, willfully and intentionally concealed facts which would amount to undue influence under Section 123(2) of the Act.

Pathak then filed the application seeking rejection of the election petition, asserting that the plea failed to disclose a cause of action and was liable to be rejected on that score.

Justice Varma observed that there was a manifest failure on Tewari's part having asserted that the improper acceptance of nomination or a corrupt practice or non-compliance with the provisions of the Constitution, Act, Rules or Orders, had materially affected the results of the election.

The court said there was an apparent and evident failure to allege that Pathak was holding a post of member on the relevant date.

Although the court found in favor of Pathak the question of the office of profit, disclosure of ITR and overestimation of shareholding, but it said that the question of whether a disclosure with respect to a FIR was required in law, the meaning to be ascribed to the expression “pending criminal case” are issues which are clearly triable.

Tewari had alleged that Pathak had left out mentioning that he was named in an FIR registered in 2020 for the offences under Section 428, 468, 469 & 471 of the Indian Penal Code, 1860 and Section 66C of the Information Technology (Amendment) Act, 2008.

The court said that the aspect of declarations being made with respect to the FIR in question clearly gave rise to a triable issue, and was an aspect of contestation worthy of a more elaborate consideration.

“We consequently find no justification to reject the election petition at this stage and on that score. The application shall consequently stand dismissed. All rights and contentions of respective parties are kept open,” the court said.

The court thus listed the election petition before the roster bench on July 22, subject to appropriate orders of the Acting Chief Justice.

Counsel for Petitioner: Mr. Apoorv Kurup, Mr. Shoumendu Mukherji, Mr. Akhil Hasija, Ms. Akannksha Gupta, Mr. Gurjas Narula, Mr. Himanshu Pathak & Ms. Megha Sharma, Advs

Counsel for Respondents: Mr. Gautam Narayan, Mr. Karan Sharma, Ms. Asmita Singh, Mr. Rishabh Sharma & Mr. Rishikesh Kumar, Advs. for R-1

Title: RAJAN TEWARI v. DURGESH KUMAR PATHAK & ANR.

Citation: 2024 LiveLaw (Del) 758

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