Chaugule Vs. Bhagwat
[Civil Appeal No.3373
of 2012 arising out of SLP (C) No.5776 of 2012]
J U D G M E N T
ALTAMAS KABIR, J.
1.
Leave
granted.
2.
The
Appellant herein was elected to the Maharashtra Legislative Assembly from the
240-Omerga Legislative Assembly Constituency, which was reserved for a
Scheduled Caste candidate. His election was challenged by one Shri Yadavrao,
son of Bhimrao Suryawanshi, who was also a Scheduled Caste candidate. In order
to contest the elections, the said Shri Yadavrao had filed three nomination
forms which were all rejected by the Returning Officer on the ground that the
proposers name was not included in the voters list. Accordingly, the Returning
Officer found Shri Yadavrao to be ineligible to contest the said elections as a
candidate.
3.
On
26th September, 2009, Shri Yadavrao filed Writ Petition No.6474 of 2009,
challenging the rejection of his nomination form which had been submitted by
him as an independent candidate. On 1st October, 2009, the High Court allowed
the Writ Petition and quashed the order of the Returning Officer. The order of the
High Court was challenged by the Election Commissioner before this Honble
Court, in which notice was issued and the impugned judgment was stayed. Consequently,
Shri Yadavrao name was not included in the ballot paper and he was unable to
contest the elections.
4.
The
elections were conducted on 22nd October, 2009, and the Appellant herein was
declared elected from the said Constituency. Shri Yadavrao challenged the
Appellants election by way of Election Petition No.5 of 2009 filed before the
Aurangabad Bench of the Bombay High Court on 1st December, 2009. While the
Election Petition was pending hearing, on 25th November, 2010, Shri Yadavrao
filed an application for withdrawal of the Election Petition filed by him. After
hearing Shri Yadavrao in person, the High Court recorded the fact that the Election
Petitioner was no longer interested in the Election Petition and wanted to withdraw
the same. On the said materials, the High Court allowed the application filed by
Shri Yadvrao, particularly when no corrupt practice had been alleged in the Election
Petition. The Election Petition was, therefore, disposed of as withdrawn. At
that point of time, there was no pending application from any person wanting to
be substituted in place of the Election Petitioner, Shri Yadavrao son of
Bhimrao Suryawanshi.
5.
Within
14 days of the said order having been passed, on 8th December, 2010, the
present Respondent, Bhagwat, son of Maruti Danane, filed Civil Application
No.35 of 2010 under Section 110(3)(c) of the Representation of the People Act, 1951,
hereinafter referred to as the 1951 Act, in Election Petition No.5 of 2009,
which had been disposed of as withdrawn, for substituting his name as Election
Petitioner in place of Shri Yadavrao. Such application was filed by Shri
Bhagwat for substituting his name as the Election Petitioner in place of Shri
Yadavrao, despite the fact that he had neither filed any nomination paper, nor contested
the election. Furthermore, he did not even allege any corrupt practice against the
Appellant, but filed the said Application No.35 of 2010, only on the ground that
he was entitled to continue with the Election Petition under Section 116 of the
1951 Act.
6.
After
considering the submissions made on behalf of the respective parties regarding
the right of the Respondent to be substituted in the Election Petition filed by
Shri Yadavrao, the High Court held that on a conjoint reading of Section 78(b),
Section 81(1) and Section 110(3)(c) of the 1951 Act, the Applicant, Shri
Bhagwat, was entitled to be substituted in place of Shri Yadavrao for continuing
the Election Petition, notwithstanding that the same had already been allowed
to be withdrawn on the application filed by Shri Yadavrao under Section 110(3)(c)
of the aforesaid Act. The present appeal is directed against the said order of the
High Court allowing the application for substitution filed by Shri Bhagwat in
the Election Petition which had been filed by Shri Yadavrao and had also been
allowed to be withdrawn.
7.
Appearing
in support of the Appeal, Mr. Anant Bhushan Kanade, learned Senior Advocate,
drew our attention to Section 81 of the 1951 Act, which deals with presentation
of petitions. Section 81 provides that an Election Petition calling in question
any election may be presented by any candidate at such election or any elector
within the period specified. Mr. Kanade also drew out attention to Section 110
of the above Act, which indicates the procedure for withdrawal of Election
Petitions which under Section 109 could be done only with the leave of the High
Court. Placing reliance on clause (c) of Sub-Section (3) of Section 110, Mr.
Kanade urged that it has been specifically indicated therein that a person who might
himself have been a Petitioner, may within 14 days of the publication of the results,
apply to be substituted as Petitioner in place of the party withdrawing, and
upon compliance with the conditions, if any, as to security, would be entitled
to be so substituted and to continue the proceedings upon such terms as the
High Court might deem fit.
8.
Attempting
to draw a distinction between the provisions of Section 110 and Section 116,
which deals with abatement or substitution on death of the Respondent, Mr.
Kanade pointed out that under Section 116 in the event of the death of the sole
respondent, or giving notice that he did not intend to oppose the Petition or
any of the Respondent dying or giving such notice that there is no Respondent
who is opposing the Petition, the High Court is required to cause notice of
such event to be published in the Official Gazette and thereupon any person who
might have been a Petitioner (emphasis supplied) may, within 14 days of such
publication, apply to be substituted in place of such respondent to oppose the
Petition and would be entitled to continue the proceedings upon such terms as the
High Court thought fit.
9.
Mr.
Kanade submitted that in the present case the provisions of Section 110 stood attracted
and not 116, since this case involved withdrawal of the Election Petition by
the Election Petitioner and is not a case of abatement or substitution on death
of the Respondent. While in Section 110(3)(c) the expression a person has been
used, in Section 116 the expression any person has been used. He urged that
only a person who could have a similar interest as that of the Election Petitioner
could, therefore, be permitted to be substituted in place of the Election Petitioner
to continue the proceedings initiated by the Election Petitioner.
10.
Mr.
Kanade, therefore, urged that the Respondent herein, who had been allowed to be
substituted in place of the Election Petitioner, had not filed any nomination
paper in the election in question and the High Court had misconstrued the expression
who might himself have been a petitioner (emphasis supplied) in its application
to him. Mr. Kanade contended that the expression was not meant to apply to
anybody or everybody. By allowing the substitution of the Respondent to enable him
to continue with the proceedings, which had been withdrawn by the Election
Petitioner, would be over-reaching the provisions of Section 110(3)(c) of the 1951
Act. Mr. Kanade submitted that the aforesaid expression would have to be logically
interpreted to apply to a given situation and that the present situation was
not one such situation where such substitution should have been allowed.
11.
On
behalf of the Respondent it was submitted by Mr. K.V. Viswanathan, learned
Senior Advocate, that the language of Section 110(3)(c) was very clear and that
the expression a person (emphasis supplied) used therein meant that any person
who was eligible to be a Petitioner in an Election Petition, was entitled to be
substituted in place of the original Election Petitioner to enable him to
continue with the proceedings. Mr. Viswanathan contended that the aforesaid
expression being general in nature, could not exclude the Respondent who was a
registered voter and, therefore, was an elector within the meaning of Section 2(1)(e)
the 1951 Act.
Mr. Viswanathan
submitted that the High Court had rightly interpreted the aforesaid expression
and, since, the Respondent had an interest in the elections in which the
Appellant had been elected, he had every right to be substituted in place of the
original Election Petitioner in terms of Section 110(3)(c) of the 1951 Act.
Reference was made to
the decision of this Court in Nandiesha Reddy Vs. Kavitha Mahesh [(2011) 7 SCC 721],
wherein it had been held that the nomination paper, even if defective, could
not be rejected by the Returning Officer at the inception and that the
Returning Officer was required to accept the petition and, thereafter, to give
an opportunity to the candidate to remove the defects and upon removal of the
defects, to accept the same. Mr. Viswanathan contended that in the instant case
the same not having been done, the rejection of the nomination paper of the
original Election Petitioner, Shri Yadavrao, was erroneous and the election,
therefore, stood vitiated and the election of the Appellant was, therefore,
liable to be set aside.
12.
Having
considered the submissions made on behalf of the respective parties, we are
unable to sustain the judgment of the High Court or to accept the submissions
made by Mr. Viswanathan on behalf of the Respondent.
13.
In
the very beginning it may be stated that Section 81 of the 1951 Act
disqualifies the Respondent from maintaining an election petition, since he was
not entitled to invoke any of the grounds set out in Sections 100(1) and 101 of
the 1951 Act.
14.
As
indicated hereinbefore, Section 110 refers to the procedure for withdrawal of
the Election Petition and is extracted hereinbelow : 110. Procedure for
withdrawal of election petitions.-
1. If there are more
petitioners than one, no application to withdraw an election petition shall be
made except with the consent of all the petitioners.
2. No application for
withdrawal shall be granted if, in the opinion of the High Court, such
application has been induced by any bargain or consideration which ought not to
be allowed.
3. If the application is
granted-
a. the petitioner shall
be ordered to pay the costs of the respondents therefore incurred or such
portion thereof as the High Court may think fit;
b. the High Court shall
direct that the notice of withdrawal shall be published in the Official Gazette
and in such other manner as it may specify and thereupon the notice shall be
published accordingly;
c. a person who might himself
have been a petitioner may, within fourteen days of such publication, apply to be
substituted as petitioner in place of the party withdrawing, and upon
compliance with the conditions, if any, as to security, shall be entitled to be
so substituted and to continue the proceedings upon such terms as the High Court
may deem fit.
15.
As
may be noticed, Clause (c) of Section 110(3) permits a person, who might
himself have been a Petitioner, (emphasis supplied) to apply for substitution
as Petitioner in place of the party withdrawing. However, as has been pointed
out by Mr. Kanade, the said expression cannot be held to apply across the board
in all cases, but has to fit in the facts of each case. In the instant case,
the Election Petition filed by Shri Yadavrao was an action in personam and, was,
therefore, confined to his own situation.
Had it been an action
in rem, the High Court may have been justified in substituting the Respondent
in place of the original Election Petitioner. In the instant case, the
complaint in the Election Petition was that the nomination paper of the Election
Petitioner had been wrongly rejected by the Returning Officer. The Respondent herein,
who had been substituted in place of Shri Yadavrao, did not have the same interest
as Shri Yadavrao and, accordingly, the High Court, in our view, misconstrued the
provisions of Section 110(3)(c) of the 1951 Act in applying the conditions
literally, without even satisfying itself that the order fit in the facts of
the case.
16.
We
are satisfied that the expression a person who might himself have been a
Petitioner, (emphasis supplied) would not apply in a case like the present one,
in which the right to be exercised does not concern the actions of the person
elected on the grounds, as contemplated in Sections 100(1) and 101 of the 1951
Act, which provide for the grounds for declaring the elections to be void. The grievance
of the original Election Petitioner was not against the elected candidate, but
against the action of Returning Officer in rejecting his nomination paper. Once
the Election Petitioner decided not to pursue the matter, the Election Petition
could not have been continued by a person, as contemplated in Section 110(3)(c)
of the aforesaid Act.
17.
We,
therefore, have no hesitation in setting aside the judgment and order dated
28th November, 2011, passed by the Aurangabad Bench of the Bombay High Court in
Election Petition No.5 of 2009 and Civil Application No.35 of 2010.
18.
The
appeal is, accordingly, allowed, but, there will be no order as to costs.
………………………………………J.
(ALTAMAS KABIR)
………………………………………J.
(SURINDER SINGH NIJJAR)
New
Delhi
April,
04 2012
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