CHAUGULEversusBHAGWAT

                     (2012) 3 S.C.R. 1031


                         CHAUGULE                                  A
                               v.
                          BHAGWAT
               (Civil Appeal No. 3373 of 2012)

                        APRIL 4, 2012
                                                                   B
  [ALTAMAS KABIR & SURINDER SINGH NIJJAR, JJ.]

      Representation of the People Act, 1951 - s.110(3)(c) -
 Withdrawal of election petition - Right to be substituted in
place of the original election petitioner - Election petition filed C
 by 'Y' had been allowed to be withdrawn on an application filed
 by 'Y' - Substitution application filed by respondent in the said
 Election petition after it had already been allowed to be
 withdrawn - Allowed by High Court - Justification of - Held:
 Not justified - Clause (c) of s. 110(3) permits "a person, who o
 might himself have been a Petitioner", to apply for substitution
 as Petitioner in place of the party withdrawing - However the
 said expression has to fit in the facts of each case - The
 expression "a person who might himself have been a
 Petitioner'; would not apply in a case like the present one, in E
 which the right to be exercised did not concern the actions of
 the person elected on the grounds, as contemplated in
 ss.100(1) and 101 of the Act, which provide for grounds for
 declaring the elections to be void - In the instant case, the
 complaint in the Election Petition was that the nomination F
paper of the Election Petitioner 'Y' had been wrongly rejected
 by the Returning Officer - Respondent, who had been
 substituted in place of 'Y', did not have the same interest as
 'Y' - The election Petition filed by 'Y' was an action in
personam and, was, therefore, confined to his own situation G
- 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 - Grievance of the original Election
 Petitioner 'Y' was not against the elected candidate, but
                              1031                                 H
    1032    SUPREME COURT REPORTS                [2012] 3 S.C.R.


A against the action of Returning Officer in rejecting his
  nomination paper - Once the Election Petitioner 'Y' decided
    not to pursue the matter, the Election Petition could not have
    been continued by the Respondent.

         The appellant was elected to the Maharashtra
8
    Legislative Assembly. 'Y', an independent candidate, filed
    Election Petition contending that his nomination paper
    was wrongly rejected by the Returning Officer. While the
    Election Petition was pending hearing, 'Y' filed application
    for withdrawal of the Election Petition. The High Court
C   allowed the application, particularly since no corrupt
    practice had been alleged in the election petition and the
    election petition was, therefore, disposed of as
    withdrawn. Within 14 days of the said order, Respondent
    filed application under Section 110(3)(c) of the
D   Representation of the People Act, 1951, in the said
    Election Petition, which had been disposed of as
    withdrawn, for substituting his name as Election
    Petitioner in place of 'Y'. Respondent had neither filed any
    nomination paper, nor contested the election and did not
E   even allege any corrupt practice against the Appellant. He
    filed the said application, only on the ground that he was
    entitled to continue with the Election Petition under
    Section 116 of the Act. The High Court held that on a
    conjoint reading of Section 78(b), Section 81 (1) and
F   Section 110(3)(c) of the Act, the respondent was entitled
    to be substituted in place of 'Y' for continuing the Election
    Petition, notwithstanding that the same had already been
    allowed to be withdrawn on the application filed by 'Y'.
    Hence the present appeal.
G
        Allowing the appeal, the Court

         HELD: 1.1. Section 81 of the of the Representation
    of the People Act, 1951 disqualifies the Respondent from
    maintaining an election petition, since he was not entitled
H
               CHAUGULE v. BHAGWAT                       1033


to invoke any of the grounds set out in Sections 100(1)           A
and 101 of the Act. [Para 13] [1039-8]
     1.2. Section 110 of the Act refers to the procedure for
withdrawal of the Election Petition. Clause (c) of Section
110(3) permits a person, who might himself have been a
                                                                  B
Petitioner, to apply for substitution as Petitioner in place
of the party withdrawing. However 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 'Y' was an action in personam
and, was, therefore, confined to his own situation. Had it        C
been an action in rem, the High Court may have been
justified in substituting the Respondent in place of the
original Election Petitioner. The complaint in the Election
Petition was that the nomination paper of the Election
Petitioner had been wrongly rejected by the Returning             D
Officer. The Respondent, who had been substituted in
place of 'Y', did not have the same interest as 'Y' and,
accordingly, the High Court misconstrued the provisions
of Section 110(3)(c) of the Act in applying the conditions
literally, without even satisfying itself that the order fit in   E
the facts of the case. [Paras 14, 15] [1039-C; 1040-8-E]
    1.3. The expression "a person who might himself
have been a Petitioner", would not apply in a case like
the present one, in which the right to be exercised does
                                                                  F
not concern the actions of the person elected on the
grounds, as contemplated in Sections 100(1) and 101 of
the 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      G
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. [Para 16] [1040-F-
H]                                                                H
    1034       SUPREME COURT REPORTS              [2012] 3 S.C.R.


A       Nandiesha Reddy v. Kavitha Mahesh (2011) 7 SCC 721
    - cited.

                         Case Law Reference:
        (2011) 1 sec 121            cited                Para 11
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3373 of 2012.

       From the Judgment & Order dated 28.11.2011 of the High
  Court of Judicature at Bombay Bench at Aurangabad in Civil
C Application No. 35 of 2010 in Election Petition No. 5 of 2009.

        Anant Bhushan Kanade, K.V. Sreekumar for the Appellant.

        Sudhanshu S. Choudhari for the Respondent.
D       The Judgment of the Court was delivered by

        ALTAMAS KABIR, J. 1. Leave granted.

        2. The Appellant herein was elected to the Maharashtra
E Legislative Assembly from the 240-0merga 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
F 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.

G      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
H Returning Officer. The order of the High Court was challenged
   CHAUGULE v. BHAGWAT [ALTAMAS KABIR, J.]                  1035


by the Election Commissioner before this Hon'ble Court, in           A
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 22nd October, 2009,
                                                                     B
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 1st
December, 2009. While the Election Petition was pending              C
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      D
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       E
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          F
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           G
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
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    1036    SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A   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,
8
  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
C 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
D 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
E 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
F 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
G 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.

H       8. Attempting to draw a distinction between the provisions
   CHAUGULE v. BHAGWAT [ALTAMAS KABIR, J.]                 1037


of Section 110 and Section 116, which deals with abatement          A
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       B
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        c
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       D
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      E
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           F
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           G
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
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    1038    SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A 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.
8
    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
C   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.
D   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
E   110(3)(c) of the 1951 Act. Reference was made to the decision
    of this Court in Nandiesha Reddy Vs. Kavitha Mahesh [(2011)
    7 sec 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
F   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
G   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
H of the respective parties, we are unable to sustain the judgment
   CHAUGULE v. BHAGWAT [ALTAMAS KABIR, J.]                    1039


of the High Court or to accept the submissions made by Mr.             A
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       8
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 :                                                C

    "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.                                o
           (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.
                                                                       E
            (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;
                                                                       F
     (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
             thereupor the notice shall be published accordingly;
                                                                       G
     (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   H
    1040    SUPREME COURT REPORTS                    (2012] 3 S.C.R.


A               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
8
  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,
C 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
D 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,
E 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)
F 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
G 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.
H
   CHAUGULE v. BHAGWAT [ALTAMAS KABIR, J.]                1041


     17. We, therefore, have no hesitation in setting aside the   A
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   B
no order as to costs.

B.B.B.                                        Appeal allowed.