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 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  

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challenged 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 22nd 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 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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.   

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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  

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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  

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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.

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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 Dated:04.04.2012

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