REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3373 OF 2012
(Arising out of SLP(C)No.5776 of 2012)
CHAUGULE … APPELLANT
Vs.
BHAGWAT … RESPONDENT
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 proposer’s
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 26
th
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
1
st
October, 2009, the High Court allowed the Writ
Petition and quashed the order of the Returning
Officer. The order of the High Court was
2challenged by the Election Commissioner before this
Hon’ble Court, in which notice was issued and the
impugned judgment was stayed. Consequently, Shri
Yadavrao’s name was not included in the ballot
paper and he was unable to contest the elections.
4. The elections were conducted on 22
nd
October,
2009, and the Appellant herein was declared elected
from the said Constituency. Shri Yadavrao
challenged the Appellant’s election by way of
Election Petition No.5 of 2009 filed before the
Aurangabad Bench of the Bombay High Court on 1
st
December, 2009. While the Election Petition was
pending hearing, on 25
th
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
3Court 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Petition was, therefore, disposed of as withdrawn.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 8
th
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
4place 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
5under 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
6Section 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
7Court 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
8of 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
9situation 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
1had 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.
112. 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
1High 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
1withdrawing. 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
1satisfying 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.
117. We, therefore, have no hesitation in setting
aside the judgment and order dated 28
th
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
Dated:04.04.2012
1
