Delhi High Court refuses to reject plea challenging election of AAP MLA Durgesh Pathak

New Delhi: The Delhi High Court has refused to reject a petition challenging the election of AAP MLA Durgesh Pathak in the 2022 assembly bypolls.

The petition has challenged Pathak's election as a lawmaker from the Rajinder Nagar Assembly constituency here in the June 2022 bypolls on the grounds of indulging in corrupt practices.

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, in a 103-page order passed on Monday, dismissed the application of Pathak seeking rejection of the election petition filed against him, saying there was no justification to do so at this stage.

The high court listed the election petition before roster bench on July 22 for further proceedings.

Petitioner Rajan Tewari, who claimed to be a voter in the Rajinder Nagar constituency, challenged the election on the grounds of non-disclosure of criminal antecedents, holding an office of profit on the date of scrutiny of nomination, suppression of Income Tax returns of financial year 2019-20 and disclosure of an incorrect valuation of shares in a company in the nomination form.

The petitioner alleged that apart from indulging in corrupt practices as envisaged under Section 123 of the Representation of the People (RP) Act, Pathak had willfully and intentionally concealed facts which would amount to undue influence under the Act.

The Aam Aadmi Party (AAP) leader, in his application, claimed that the petition has failed to disclose a cause of action and the allegation of non-disclosure of criminal antecedents is premised on the fact that he had failed to mention details pertaining to an FIR.

His counsel submitted that Pathak's name was not mentioned in the list of accused in the FIR and relevant provisions of the law would establish that a candidate is under an obligation to disclose details of only such criminal cases in which either charges may have been framed by a court or where cognisance may have been taken.

The high court noted that "broad and sweeping allegations" have been made by Tewari alleging corrupt practice, undue influence and improper acceptance of a nomination.

"It becomes evident and apparent that there is a manifest failure on the part of the election petitioner having asserted that the improper acceptance of the nomination or a corrupt practice or non-compliance with the provisions of the Constitution, Act, Rules or Orders made thereunder had materially affected the results of the election," it said. The court, however, said it was conscious of the indubitable position in law that a petition cannot be rejected in part.

"Consequently, although we have found in favour of the applicant (Pathak) insofar as the office of profit, disclosure of ITR and overestimation of shareholding questions are concerned,... the question of whether a disclosure with respect to an FIR is required in law, the meaning to be ascribed to the expression -- pending criminal case -- are issues which are clearly triable.

"We consequently find no justification to reject the election petition at this stage and on that score," it said.

The petitioner has sought that the election be declared null and void on account of the AAP leader allegedly indulging in "corrupt practices".

He has argued that the MLA omitted to disclose in his nomination papers the existence of an FIR against him for the alleged commission of offences under the Indian Penal Code and the Information Technology Act, which is in violation of the RP Act.

He has further claimed that Pathak also held an 'office of profit' as a member of the Delhi Commission for Protection of Child Rights at the time of election and should, therefore, be disqualified.