MCD standing committee re-election: Mayor acted in malafide manner after unpalatable result, HC told

Delhi Mayor Shelly Oberoi acted in a malafide manner when she called for re-election of six members of the MCD standing committee after finding the election results "politically unpalatable", BJP councillors alleged in the Delhi High Court on Thursday.

Senior lawyers appearing for the two councillors submitted before Justice Purushaindra Kumar Kaurav that Oberoi, also the returning officer (RO), invalidated one of the votes in a manner "unrecognised in law" and interdicted the election process.

The mayor had on February 24 announced fresh polling for electing six members of the Municipal Corporation of Delhi (MCD) standing committee on February 27 at 11 am amid clashes between the councillors of the BJP and the AAP in the municipal House.

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On petitions by councillors Kamaljeet Sehrawat and Shikha Roy, the high court had stayed the re-election on February 25.

Senior advocate Mahesh Jethmalani, appearing for Sehrawat, stated that invalidity of a vote has to be endorsed before ascertaining the quota which determines the winner but in the present case the mayor wrongly invalidated a vote at a subsequent stage.

"Once quota is fixed, how can anyone go back to validation? Quota is to see that after the first stage, who wins. If this is not malafide what is? Because of unpalatable result, you try to subvert the election," he argued.

"This is res ipsa loquitur (things speak for themselves). This shows the motive of the mayor. Mayor acted ex post facto on unfavourable result. Mayor acted blatantly malafidely is a good ground for interference of writ court," Jethmalani said.

Jethmalani was referring to the quota of votes each candidate was allotted by their respective parties to ensure their victory in preferential voting.

Senior advocate Jayant Mehta, appearing for Roy, emphasised that there is no enabling provision in law which empowers the mayor to call for a re-election or a re-counting and she also has no power to nullify the election process.

He also said there was no invalid vote at the relevant stage and "ex post facto scrutiny of ballot papers" cannot be permitted.

"There was no invalid vote and therefore quota was fixed. Only when result sheet was placed and when she found that it was not politically palatable, she revisited the votes," Mehta said.

He said the election process should be allowed to conclude as the ballot papers were still safe.

It is not her case that ballot papers were snatched away during any pandemonium, he said.

Mehta had earlier argued that once the election was completed, the RO had no discretion but to declare the results. "She cannot sit over it if the result is not to her liking," he said.

The Delhi Mayor had earlier submitted she had ordered a "re-poll" and not "re-election" in view of the commotion in the House and to ensure free and fair polls. A repoll involves fresh polling, while re-election entails start of the election process afresh right from the filing of nominations.

Senior advocate Rahul Mehra, representing the mayor, has said the petitions should not be entertained by the court at a stage when the election process is yet to be concluded.

On February 25, the high court had stayed the re-election of six members scheduled for February 27, saying the mayor prima facie acted beyond her powers in ordering a fresh poll.

The MCD House had witnessed ruckus on February 22 with members of the BJP and the AAP exchanging blows and hurling plastic bottles at each other during the polling for the posts.

The House was again rocked by clashes after fresh elections were held on February 24, and mayor Oberoi, an AAP leader subsequently alleged that a few members of the saffron party made a "life-threatening attack" on her.

The petitioners have contended in the high court that the mayor ordered a fresh election for February 27 without declaring the result of the poll held on February 24 in violation of regulation 51 of Delhi Municipal Corporation (Procedure & Conduct of Business) Regulations, which contains the prescribed procedure.

Roy’s petition, filed through advocate Neeraj, has said the poll was conducted in a peaceful manner and there was no occasion for the mayor to recall the elections.

The high court had issued a notice to the RO, the Delhi government, Delhi Lieutenant Governor and MCD on the two pleas while observing that prima facie the decision to hold a re-election in the present case was in violation of the regulation.

The high court had said the governing norms do not reflect that the mayor has the authority to declare the earlier election null and void and conduct a re-election without announcing the results of the previous poll held on February 24.

The counsel for the mayor had told the court she had no other option left but to declare the earlier poll as null and void as the process was vitiated due to the unruly behaviour of the members.

The lawyer had also alleged the mayor did not get adequate cooperation from the member secretary and technical experts.

The matter will be heard next on May 12.