Manohar
Joshi Vs. Bhaurao Ragoji Patil Through Legal Representatives [1992] INSC 5 (14
January 1992)
Ojha, N.D. (J) Ojha, N.D. (J) Rangnathan, S. Ramaswami, V. (J) Ii
CITATION:
1992 AIR 1449 1992 SCR (1) 31 1992 SCC Supl. (1) 747 JT 1992 (1) 184 1992 SCALE
(1)37
ACT:
Representation
of the People Act. 1951: Sections 112 and 117- Election Pettin-Application for
substitution-- Presentation of-Deposit of security amount for cost-When to be
made-Order of substitution-Court to specify amount of deposit or give reasons
if deposit is not required.
HEAD NOTE:
One
`B' filed an Election Petition challenging the appellant's election as M.L.A.
On the death of `B' the Election Petition abated, and the same was published in
accordance with Section 112 (2) of the Representation of the People Act, 1951.
Upon the said publication, four applications including those of the Respondents
were filed before the High Court for substitution in place of the deceased
petitioner. The High Court allowed the two applications by the Respondents and
dismissed the other two applications.
The
appellant-M.L.A. has preferred the present appeal by special leave, against the
High Court's order substituting the Respondents in the Election Petition.
On
behalf of the appellant, it was contended that the High Court was wrong in
holding that the question of providing security deposit for costs would arise
only after an order for substitution is made; and that the respondent could
have been directed to be substituted only after they had actually deposited the
amount of security.
On
behalf of the respondents, it was contended that when four applications had
been made for substitution an order had first to be passed indicating the names
of the applicants who were to be substituted and only thereafter the security
amount could be deposited Dismissing the appeal, this Court
HELD :
1. The High Court was right in holding that simulatane- 32 ous deposit of any
amount as security for costs at the time of presentation of the applications
for substitution was not necessary. On a plain reading of Section 117 of the
Representation of the People Act, 1951 the said requirement is applicable at
the time of presenting an Election Petition. An application for substitution
made under sub- section (3) of Section 112 consequent upon the Death of the
election petitioner cannot be put at par with the presentation of an election
petition. [34FG]
2. The
right to apply to be substituted accrues on fulfilment of two conditions, viz.
that the person making the application should be one who might himself have
been a petitioner and that the application is made within fourteen days of the
publication made under sub-section (2) of Section 112. He, however, becomes
entitled to be substituted only upon compliance with the conditions, if any, as
to security. The applications made by the respondents could not, therefore, be
dismissed on the ground that no amount was deposited as security for costs at
the time of presenting the said applications. [35A-C]
3.
While considering an application for substitution court has to consider as to
whether any deposit is to be made or not as security for costs and if it is to
be made what is the amount which has to be deposited. If the Court comes to the
conclusion on the facts of a given case that no amount is to be deposited as
security for costs an order of subscription simpliciter would be sufficient.
The fact that no deposit as security is to be made with reason therefore would,
however, have to be simultaneously stated in the order of substitution. On the
other hand, if the Court comes to the conclusion that some amount has to be
deposited by the applicants who are proposed to be substituted, as security for
costs, the amount should be simultaneously specified in the order of
substitution and the entitlement of such applicant to be substituted should be
made subject to compliance with the condition of depositing the amount so
specified. [35E-G]
4. In
the instant case, the respondents were directed to deposit the security amount,
in the same order permitting their substitution, and it was deposited the very
next day.
In
view of this circumstance, even though the order appealed against may not be
said to be in strict compliance with the requirements of sub-section (3) of
Section 112 of the Act, the order is not interfered with. [35H; 36A, B]
CIVIL
APPELLATE JURISDICTION : Civil Appeal No. 112 (NCE) of 1992.
33
From the Judgment and Order dated 5.8.1991 of the Bombay High Court in
Application Nos. 1, 2, 3 and 4 of 1991 in Election Petition No. 24 of 1990.
P.P. Rao
P.H. Parekh and Chetna Anand for the Appellant.
Goapl Subramanium
and M.N. Shroff for the Respondents.
The Judgement
of the Court was delivered by OJHA, J. Special leave is granted.
This
appeal has been preferred against the order dated 5th August, 1991 of the Bombay High Court on miscellaneous applications made
in Election Petition No. 24 of 1990. The appellant was elected to the Maharashtra
Legislative Assembly from the Sadar Constituency. One Bhaurao Ragoji Pati filed
Election Petition NO. 24 of 1990 challenging the said election. He however,
died on 4th June 1991. He being the sole petitioner the
election petition consequent upon his death abated under sub-section (1) of
Section 112 of the Representation of the People Act, 1951 (hereinafter referred
to as the Act). This fact was published as contemplated by sub-section (2) of
Section 112 of the Act. Upon the said publication four applications including
one each by the respondents were made under sub-section (3) of Section 112 of
the Act for being substituted in place of the deceased petitioner. The
applications made by the respondents were allowed by the order appealed against
whereas the other two applications were dismissed with certain observations.
The
appellant who was the successful candidate at the election has in the present
appeal challenged the order substituting the respondents in the election
petition in place of the deceased petitioner. In support of this appeal Learned
counsel for the appellant has urged two grounds.
Firstly,
it has been submitted that a direction requiring the respondents to furnish
security as contemplated by sub- section (3) of Section 112 as a condition
precedent should have been given before ordering them to be substituted and the
High Court committed an error in holding that the question of providing
security would arise only after an order for substitution is made. The second
submission made by learned counsel for the appellant is that even though the
respondents have been required to forthwith deposit in Court towards security a
sum of Rs. 2,000 each, that part of the order has been made only after first
directing them to be substituted in place of the original petitioner. According
to learned counsel the respondents could have been directed to be substituted
34 only after they had actually deposited the amount of security. The order
appealed against having been passed according to learned counsel in breach of
the mandatory requirement of sub-section (3) of Section 112 of the Act is
liable to be set aside.
For
the respondents on the other hand, it has been urged by their learned counsel
that when four applications had been made for substitution an order had first
to be passed indicating the names of the applicants who were to be substituted
and it is only such applicants who were to be substituted could thereafter be
required to deposit any amount as security.
In
order to appreciate the respective submissions made by learned counsel for the
parties, sub-section (3) of Section 112 of the Act may be reproduced. It reads
as hereunder :
"112(1).
... ... ...
(2)
... ... ...
(3)
Any person who might himself have been a petitioner may, within fourteen days
of such publication, apply to be substituted as petitioner and upon compliance
with the conditions, if any, as to the security, shall be entitled to be so
substituted and to continue the proceedings upon such terms as the High Court
may deem fit." (Emphasis supplied) Before the High Court it was urged on
behalf of the appellant that since the respondents had not deposited any amount
as security for the costs of the petition as contemplated by Section 117 of the
Act their applications were liable to dismissed. It is while repelling this
submission that the High Court made the aforesaid observation namely, that the
question of providing security would arise only after an order for substitution
is made.
The
High Court, in our opinion, does not appear to have committed any error in
holding that simultaneous deposit of any amount as security for costs at the time
of presentation of the applications for substitution was not necessary. On a
plain reading of Section 117 he said requirement is applicable at "the
time of presenting an election petition".
An
application for substitution made under sub-section (3) of Section 112
consequent upon the death of the election petitioner cannot be put at par to
the presentation of an election petition. It is to be noticed in this behalf
that sub-section (3) of Section 112 does not contain the requirement of
depositing any amount of security for costs at the time of presenting the
substitution application. It permits a person who might 35 himself have been a
petitioner to apply to be substituted as petitioner within fourteen days of the
publication made under sub-section (2). The applicant, however, becomes
entitled to be so substituted only upon compliance with the conditions, if any,
as to security. In other words, the right to apply to be substituted accrues on
fulfilment of two conditions : (i) that the person making the application
should be one who might himself have been a petitioner and (ii) that the
application is made within fourteen days of the publication made under
sub-section (2) of Section 112.
He,
however, becomes entitled to be substituted only upon compliance with the
conditions, if any, as to security .
The
applications made by the respondents could not, therefore, be dismissed on the
ground that no amount was deposited as security for costs at the time of
presenting the said applications. It is true that the observations referred to
above were made by the High Court while repelling the submission made on behalf
of the appellant on the basis of Section 117 but to us it appears that the
observation as made is rather too wide. Sub section (3) of Section 112, in our
opinion, contemplates simultaneous application of mind by the High Court on the
question as to whether the applicant should be substituted or not and also on
the question as to what amount of security for costs, if any, is to be
deposited by the person who is to be ordered to be substituted. The observation
that the question of providing security will arise only after an order for
substitution is made does not obviously conform with the requirement of
sub-section (3) of Section 112 of the Act.
Unlike
Section 117 of the Act sub-section (3) of Section 112 uses the words "if
any" between the words "upon compliance with the conditions" and
"as to security". While considering, therefore, an application for
substitution the Court has also to consider as to whether any deposit is to be
made or not as security for costs and if is to be made what is the amount which
has to be deposited. If the Court comes to the conclusion on the facts of a
given case that no amount is to be deposited as security for costs an order of
substitution simpliciter would be sufficient. The fact that no deposit as
security is to be made with reason therefor would, however, have to be
simultaneously stated in the order of substitution. On the other hand, if the
Court comes to the conclusion that some amount has to be deposited by the
applicants who are proposed to be substituted, as security for costs the amount
should be simultaneously specified in the order of substitution and the
entitlement of such applicant to be substituted should be made subject to
compliance with the condition of depositing the amount so specified. This, in
our opinion, is the true import of sub- section (3) or Section 112 of the Act.
Coming
to the facts of the instant case it would be seen as noticed earlier that the
respondents were directed by the same order which permitted their substitution
"to forthwith deposit in Court towards security a sum of Rs. 36 2,000
each, "We have been informed by learned counsel for the respondents that
this condition was complied with by the respondents on the very next day of the
passing of the order appealed against. In view of this circumstance, we are of
the opinion that even though the order appealed against may not be said to be
in strict compliance with the requirements of sub-section (3) of Section 112 of
the Act it is not a fit case for interference under Article 136 of the
Constitution.
In
view of the foregoing discussion, this appeal fails and is accordingly
dismissed. In the circumstances of the case, however, the parties shall bear
their own costs.
G.N.
Appeal dismissed.
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