MOHD. ABUBAKKAR SIDDIQUEversusMUSTAFA SHAHIDUL ISLAM AND ORS.

A                   MOHD. ABUBAKKAR SIDDIQUE
                                v.
                  MUSTAFA SHAHIDUL ISLAM AND ORS.

                               JANUARY 18, 2CCO
B
             [DR. AS. ANAND, 0, S. RAfENDRA BABU Al"ID
                          R.C. LAHOTI, JJ.]
                                                                                     \
                                                                                     I
          Representation of People Act, 1951: Sections 109 and 110.                  '

C         Election Petition--Withdrawal of-Application for substifll-
    tion--Limitation period for filing-Reckoning of.

         Election petition filed by Respondent No. 16-Challenge to t:lectiun of
  returned candidate, Respondent No. 1--0n 29th April, 1997 application filed
D for withdrawal of election petition-On 14th July, 1997, notices of the
  withdrawal application were issued and published in the Officia! Gazette as
  well as in local English newspaperj·--On 2.9.97, the withdrawal application
  was allowed and as mandated by Section 110 of the Act, a notification about
  the same was publishe~The notification was published in the new:.paper
  Assam Tribune, on 12th September, 1997---lt was also published in the
E Government Gazette, on 20th September, 1997--0n 30th September, 1997 the
  appellant filed an application seeking pennission for substitution to be able
  to carry the proceedings in the election pefltion under Section 100(3)(c) of the
  Act-On 3rd October, 1997 the appellant also filed another application for
  the same relief-Both the applications dismissed on the ground that they were
p barred by limitation as prescribed under Section 110 of the Ac~Appeal
   before this Court--Hel~The High Court erroneously calculated the period
   of limitation from the publication of the notice in the English daily Assam
   Tribune of 12.9.97 rather than from the date of publication in the Official
   Gazette-The period of 14 days ought to have been calculated from the date
   of publication of the withdrawal notice in the Official Gazette i.e. 20th
G September, 1997---Both applications were within the statutory period of 14
   days calculated from the date of publication of the notice in the Official
   Gazette.

           CIVIL APPELLATE Jt.;RISDICTION: Civil Appeal No. 2057 of
H 1999.
                                         270
         MOHD. A. SIDDrQt;f v. MUSTAfA SHAHID CL ISLAM                   271

     From the Judgment and Order dated 6.12.97 of the Assam High                A
Court in M.C. No. 125/97 in E.P. No. 7 of 1996.

      Ms. NargoL'car, Shujat Husain and D.M. Nargolkar for the Appellant.

      Gopal Subramaniam, Krishna Sharma, J.R. Luwang and Mrs. S.
Janani, for the Respondent No. 1.                                               B

      Vijay Hansaria for M/s. Jain Hansaria & Co. for the Respondent No.
14.

      The following Order of the Court was delivered :
                                                                                c
       Mohammed Idris Ali, re~pondent No. 16 in this appeal by special
leave, filed an election petition under Section 80, read with Section 80-A
of the Representation of the People Act, 1951, (hi::reinafter reforred to as
the Act), calling in question the election of re~pundent No. 1 Shri Mustafa
Shahidul Islam, l!S a member of the Assam Legislative Assembly from 83          D
DHING Legislative Constituency Assembly in the gem:ral elections held in
1996. Various allegations were made in the election petition with prayer
for a pjrection for re-counting of votes polled in the dectiun and thereafter
to declare the election of respondent No. 1 as void under Section
100(1 )( d)(iii) and (iv) and to declare the dcction petitioner to haw been     E
duly elected from the said Assembly Constituency. The election petition
came to be registered as Election Petition Nu. 7 of 1996 in the Gauhati
High Court. The election petition was resisted by the returned candidate.
Some of the other candidatt:s, who had filed their nomination papers and
contested the elections, however, remained ex-parte in the High Court.
                                                                                F
       The election petitioner had contested the election as a candidate
nominakd by All India Congress (Tiwari), while the returned candidate -
respondent No. 1 contested the elections sponsored by Indian National
Congress (I). It appears that in the meanwhile All India Congress (Tiwari)
and Indian National Congress (I) merged and on account of that merger,
both the election petitioner and the returned candidate became members G
of the same political party. At this stage, the election petitioner filed an
application under Section 109 of the Act seeking to withdraw the election
petition. This application was filed on 29th April, 1997. On 14th July, 1997,
notices of the withdrawal application were issued and published in the
Official Gazette as well as in local English newspapers. On 2.9.97, the H
     272                  SL'PRE).fE COCRT REPORTS                [2000[ l S.C.R.
A withdrawal application was allowed and as mandated by Section 110 of the
     Act, a notification about the same was published. The notification came to
     be published in the newspaper Assam Tribune, Ex. P.3. on 12th September,
     1997. It was also published in the Government Gazette, Ex. P-4, on 20th
     September, 1997.

B        On 30th September, 1997 the appellant filed an application seeking
  permission for substitution to be able to carry the proceedings in the
  election petition under Section 1C0(3)(c) of the Act. In this application
  reference is made to the withdrawal notice published in the Assam Tribune
  in its issue dated 12th September, 1997. It transpires that on 3rd October,
C 1997 the appdlant also filed another application for the same relief
  (registered as ~isc. Case No. 125 of 97). In this application, reference is
  made to the withdrawal notic;: published in the Assam Tribune date 12th
  September, 1997 as also to the notice published in the Government Gazette
  dated 20th September, 1997. The returned candidate resisted the substitu-
D tion application. By the order impugned in this appeal both the applica-
  tions filed by the appellant were dismissed on the ground that the
  applications were barred by limitation as prescribed under Section 110 of
  the Act.

           We have heard learm:d counsel for the appellant.
E
            Learned advocate on record for the contesting respondent submitted
     that the brief of the case is no longt:r available with her and was unable to
     offer any assistance. She has at no point of time sought discharge in the
     case from the Court. There is none dse representing respondent no. 1
F    either. Respondent no. 1 is also not present personally. The other respon-
     dents have already been set ex-partc. We are, then:fon:, disposing of this
     appeal after hearing learned counsel for the appellant and cart:fully perus-
     ing the record including the counter affidavit filed by respondent no. 1 in
     response to the notice at the stage of the special lcavt: petition.

G Section 110 of the Act provides :

                 "110. Procedure for withdrawal of election petitions - (1) If
              there are more petitioners than one, no application to withdraw
              an election petilion shall be made except with the consent of ail
 H            the petitioners.
          MOHD A SIDDIQUE v. MUSTAFA SHAHID UL ISLAM                        273

            (2) No application for withdrawal shall be granted if, in the          A
         opinion of the High Court, such application has been induced by
         any bargain or consideration which ought not be allowed.

            (3) If thi:: application is granted -

             (a) the pt:titioner shall be ordered to pay tht: costs of the         B
         n:spondt:ntR tht:ort:for incurred or such portion then:of 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 >pt:cify and theri::upon the notice shall be published
                                                                                   c
         accordingly;

             (c) a person who might himself have been a petitioner may,
         within 14 days of such application, apply to be substituted as
         petitioner in place of the party withdrawing and upon compliance          D
         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."

       A bare pt:orusal of Section 110 (3)(b) shows that the High Court shall
direct the notici:: of the withdrawal (of the election petition) to be published   E
in the Official C1azette and in such other manner as it may specify. Sub-
clause (c) of Section (3) provides that within l4 days of such publication,
a person who might himself have been a petitioner may apply to be
substituted as a petitioni::r in place of the party withdrawing the election
petition and upon compliance with such conditions as may be imposed by             F
the High Court, he may be permitted to continue the proceedings.

      Clause (b ), thus, unmistakably suggests that it is a mandatory require-
ment that the High Court shall cause the notice of withdrawal to be
published in the Official Gazette. Apart from publication of the notice in
the Official Gazette, the notice may also be published in such other manner        G
as the High Court may specify. The expression "in the Official Gazette and
in such other manner as it may specify (emphasis supplied by us) clearly
suggests that publication in the newspaper or in any other manner is in
addition to the publication of the notice in the Official Uazetlt: and not in
substitution of it. If the datt: of publication in any other manner precedes       H
    274                   SUPREME COURT REPORTS                  [2C:J0] 1 S.C.R.
A the date of publication in tht.: Official Gazette, the period of 14 days
  prescribed in Clause (c) within which a person may apply to be substituted
  in place of the original election pditioner would ordinarily not commence
  unless publication in the Official Gazette has also takt:n place as in the
  present case. Tht: High Court erroneously rnlculated the period of limita-
  tion from the publication of the notice in the English daily Assam Tribune
B of 12.9.97 rather than from the date of puhlit:ation in the Official Gazette,
  Ex. P-4. The period of 14 days ought to have been calculated from the date
  of publication of the withdrawal notice in the Official Gazcth: i.e. 20th
  September, 1997 and so calculated w..: find that the application which was
  filt:d by the appdlant (misc. case no. i2:;:97) as also the earlier application
C (misc. case no. nil/97) filed by him were both within the. statutory period
  of 14 days calculated from the datt.: of publication nf the notice in the
  Official Gazette.

          The High Court, under the circumstances, folt in error in dismissing
    the substitu.ion applications filed by the appellant on the ground of limita-
D   tion only. The impugned order of the Hi~ Court, thus, cannot be sustained
    and the same is bereby set aside. The case is remanded to the High Court
    for proceeding J:irth.er tri:;ating the substitution application to have been
    filed under Section 110 of the Act within the prescribed period of limita-
    tion. The High Court shall take further appropriak skps expeditiously.
E         The appeal succeeds and is, <1ccordingly aHowed. Ther.: shall, how-
    ever, be no order as to costs insofar as this appeal is concerned.

    T.N.A.                                                      Appeal allowed.