1 IN THE HIGH COURT OF BOMBAY AT GOA APPLICATION IN ELECTION PETITION NO. 2 OF 2010 IN ELECTION PETITION NO. 2 OF 2007 Shri Somnath Zuvarkar, son of Datta Zuvarkar, major, Indian National, r/o 'Satyam', Shankarwadi, Taleigao, Goa. ... Petitioner versus Shri Atanasio Monseratte, son of Joe Monseratte, major, Indian National, r/o 167, Galli, Taleigao, Goa. ... Respondent Shri Ryan Menezes, Advocate for the Petitioner. Shri A. N. S. Nadkarni, Senior Advocate with Shri M. S. Sonak, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 21ST JULY, 2010. ORAL JUDGMENT Heard. 2. The Petitioner is a defeated candidate at the election held on 2-6-2007, and had filed an election petition under Section 100(1)(d)(i) of the 2 Representation of the People Act, 1951 on the ground that the nomination of the Respondent, the returned candidate, could not have been accepted as he was not a Member of UGDP(United Goans Democratic Party), and that had materially affected, the result of the election. 3. The trial of the petition went almost at snail's pace, thanks to both parties. The trial of the petition was over, in that both the parties had completed their evidence. Thereafter, the Petitioner changed his advocate and filed an application for amendment and the same came to be rejected by this Court, by Order dated 13-8-2009. The Petitioner having preferred a Special Leave Petition against the said Order, the same was not entertained by the Hon'ble Supreme Court. 4. The Petitioner now seeks withdrawal of the said election petition contending that his application for amendment was dismissed and that the Petitioner now finds that the grounds as made out by him in the petition are not adequate to make out a case in support of the Petitioner, and/or are not available to him under applicable law. The Petitioner has stated that it will be difficult for him to make out a case for his election petition to be allowed for the election of the Respondent, to be quashed. The Petitioner therefore has sought leave to withdraw the election petition. 3 5. The withdrawal of the election petition has been opposed by the Respondent, by reply dated 15-7-2010, contending that the application is not maintainable as it does not fall within the parameters of the Representation of the People Act, 1951(Act, for short), and, therefore the same is liable to be dismissed. It is stated that in terms of Section 98 of the Act, the High Court is required, at the conclusion of the trial of the election petition, to make an Order either dismissing the election petition or declaring the election of all or any of the returned candidates to be void. It is stated that after the trial is completed, it is not permissible for the Petitioner to withdraw the election petition, and the Petitioner cannot be allowed to withdraw the election petition under Section 109 of the said Act. It is stated that Section 98 mentions the word “shall”, and, therefore an Order dismissing the petition or declaring the election void is imperative. It is stated that the withdrawal has been filed with ulterior motive to gain political advantage as the Petitioner is a defeated candidate and wants to contest the next election on Congress ticket, and with the intention of getting such a ticket, the application for withdrawal has been filed. It is also stated that it is not permissible for the Petitioner to withdraw after making the Respondent to face the ordeal of the entire trial. 6. Section 98 of the Act deals with the decision of the High Court. It provides that at the conclusion of the trial of an election petition the High Court shall make an order - 4 (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. 6.1 Section 109 of the Act deals with withdrawal of election petition, and, sub-section(1) thereof provides that an election petition may be withdrawn only by leave of the Court. Sub-Section(2) of Section 109 provides that where an application for withdrawal is made under sub-section (1), notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette. 6.2 Further procedure for the withdrawal of an election petition has been laid down in Section 110 of the Act, and, sub-section(1) thereof provides that 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. Sub-Section (2) of Section 110 of the Act provides that 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. 5 6.3 Sub-Section (3) of Section 110 states as follows:- (3) If the application is granted - (a) the petitioner shall be ordered to pay the costs of the respondents theretofore 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. 7. Shri Ryan Menezes, the learned Counsel appearing on behalf of the Petitioner submits that the Petitioner has complied with the provisions of sub-section (2) of Section 109 of the Act. Shri Menezes, the learned Counsel submits that the grounds for withdrawal has been mentioned in the application, and that the Petitioner now feels that the ground made out by the Petitioner is not adequate to make out a case in support of the Petition and/or it may not be available to him under the law, and, therefore the Petitioner has decided to withdraw from the petition. Shri Menezes submits that nothing stated in Section 98 of the Act can come in the way of the Petitioner, in withdrawing the 6 petition in view of Section 109 of the said Act which specifically allows withdrawal of a petition with the leave of the High Court. Learned Counsel submits that the provisions of Sections 98 and 109 have got to be read together and harmoniously. Shri Menezes submits that even in case the Petitioner is allowed to withdraw, the petition will not come to an end, as others interested will be in a position to pursue the petition, and this has been provided by clauses (b) and (c) of sub-section (3) of Section 110 of the Act. Shri Menezes submits that the withdrawal could be rejected only in cases contemplated by sub-section (2) of Section 110 which provide that the withdrawal will be refused in a case where the Court is of the opinion that the application has been induced by any bargain or consideration which ought not to be allowed and that the Respondent's objection is not based on the said provision of sub-section (2) of Section 110 of the Act. Learned Counsel submits that the objections taken by the Respondent are frivolous, and, therefore the objections be rejected, and the petition be allowed to be withdrawn. 8. Shri A. N. S. Nadkarni, the learned Senior Counsel on behalf of the Respondent, submits that an election petition cannot be taken as ordinary suit for a party to approach with a prayer for withdrawal at any time, as contemplated by Order 23, C.P.C. Learned Senior Counsel submits that withdrawal of the election petition cannot be allowed after the conclusion of trial, and, therefore the application for withdrawal needs to be disposed off 7 along with the petition in terms of Section 98 of the Act. Learned Senior Counsel submits that there can be other grounds on which withdrawal could be based, besides those which have been set out in sub-section (2) of Section 110 of the Act, and in this context, learned Senior Counsel has placed reliance on a Full Bench decision of the Punjab & Haryana High Court in the case of Jugal Kishore v. Doctor Baldev Parkash(AIR 1968 Punjab & Haryana 152) wherein the Full Bench has observed that:- “There is a well-settled rule of interpretation of statutes that, as far as possible, all the words used in a statute should be given their natural meaning. I have, therefore, no hesitation, in my mind, in holding that sub-sections (1) and (2) of section 110 only enumerate two cases in which the application for leave to withdraw must necessarily be dismissed. It does not, however, lay down and there is nothing either in section 110 or any other provision of the Act which fetters the judicial discretion of the Court to disallow such an application if the circumstances so warrant. It is neither proper nor feasible to make an attempt to lay down categories of cases in which leave should be refused or given by the Court. Each case has to be dealt with according to its own peculiar circumstances. However, one general rule of guidance in all such cases, where judicial discretion is to be exercised, is to see whether the application for withdrawal is made bona fide or whether it is merely a 8 garb for escaping the consequences which would otherwise result”. 8.1 The Full bench has also stated :- “No doubt, one of the well recognized principles is that the purity of the elections must be maintained by not stifling a proper enquiry in an election petition. At the same time, there is another principle equally well recognized by the Courts that the election of a duly elected candidate should not be lightly set aside and there is a further well-established principle that by delaying tactics of one party, the other should not be unnecessarily harassed”. 8.2 Learned Senior Counsel submits that the Petitioner has wasted much time of the Court during which several causes could have been settled, and that the withdrawal of the petition is nothing but a ploy to avoid adverse result of the petition. 9. I am not impressed with the submissions of the learned Senior Counsel as regards the interpretation sought to be placed on Section 98 of the Act. The Petitioner having realised that his petition is likely to fail, has filed an application for withdrawal. It must be said to the credit of the Petitioner, that the Petitioner has not allowed the petition to be dismissed for default since 9 such a course was open to the Petitioner, as indulged in by many a litigant. The Apex Court in Dr. P.N.T. Thera(AIR 1984 SC 135) has recognized this position by stating that an election petition is liable to be dismissed by situations covered by Order 9, or Order 17 C.P.C. This principle was earlier recognized by the Full Bench in Jugal Kishore v. Doctor Baldev Parkash(supra). 10. Chapter III in general, and Section 86 of the Act in particular deals with the trial of election petitions. Section 87 of the Act deals with the procedure to be followed before the High Court, and sub-section (1) thereof provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the prodedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits: Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. 10 10.1 Section 98 of the Act which, as already seen, provides that at the conclusion of the trial of an election petition the High Court shall make an order - (a) dismissing the election petition; or (b) declaring the election petition of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. 10.2 The procedure for withdrawal of an election petition is provided under Chapter IV, and more particularly by Section 109 onwards of the Act. Sub-Section (1) of Section 109 of the Act provides that an election petition may be withdrawn only by leave of the Court. Sub-Section (2) of Section 109 deals with the procedure to be followed for withdrawal. 11. Although the procedure to be followed in an election petition, is set out by Section 87 of the Act, Section 23, C.P.C. would be inapplicable as far as withdrawal is concerned in view of special provision having been made by Section 109 of the Act. In other words, Order 23, Rule 1, C.P.C. would have applied to an election petition but for the provision of Section 109 contained in Chapter IV of the Act. Order 23, Rule 1, gives absolute right to the plaintiff to withdraw. Section 109 of the Act, does not, and that is because an election petition is seen as a matter not only between candidates who 11 contested the election against each other but also the voters of the constituency who also have a substantial interest in an election petition as an election is an essential part of democratic process. That is why the right to withdraw is circumscribed. Citizens at large have also an interest in seeing that all elections are fair and free and not vitiated by corrupt practices and that is why provision is also made for substitution of one Petitioner by another. Section 98 and Section 109 of the Act are entirely different provisions, applicable to different situations, and placed by the legislature in different Chapters. One is not controlled by the other. The purposes to be served by the said provisions are distinct and different, both can stand together as there is no disharmony between them. If the interpretation sought to be given by the learned Senior Counsel is given, Section 109 will be rendered otiose and that could never have been the intention of the legislature. That apart, it is seen that Section 109 dealing with the withdrawal comes later. There is another principle of interpretation which could be followed, alternatively, i.e. where there is a general provision(Section 98) which, if applied in its entirety, would neutralise a special provision(Section 109) dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.(Page 510, N.S.Bindra's Interpretation of Statutes, 8th edition). 12 12. In my view, the application deserves to succeed. It is not the case of the Respondent that the Petitioner is withdrawing the petition for reasons stipulated by sub-section (2) of Section 110 of the Act. The Petitioner who now feels after his amendment application has been rejected that his petition may not succeed in law, in my view, cannot be compelled and told that the election petition has now necessarily to be disposed of on merits and withdrawal cannot be allowed. As already stated, since the Petitioner has now chosen to withdraw from the election petition, it is not too late in the day not to allow his withdrawal and compel him to argue the petition and invite an adverse order. The application, therefore, deserves to succeed but with costs in terms of clause (a) of sub-section (3) of Section 110 of the Act. 13. But costs for whom? Costs should follow that event is an old adage, rarely followed. Not that costs cannot be imposed on a successful party. Section 35 C.P.C. deals with costs. Sub-Section (1) provides that subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers. Sub-Section (2) provides that where the Court directs 13 that any costs shall not follow the event, the Court shall state its reasons in writing. Section 119 of the Act also deals with costs. That again is another special provision made in the Act. It states that the costs shall be in the discretion of the High Court: Provided that where a petition is dismissed under clause (a) of section 98, the returned candidate shall be entitled to the costs incurred by him in contesting the petition and accordingly the High Court shall make an order for costs in favour of the returned candidate. No doubt, the administration of justice is the sovereign fucntion of the State but the State does incur lot of expenditure of public money for maintenance of Courts, by way of salary of Judges, staff, buildings, stationery, electricity, water, etc. State is run by taxes paid by the citizens. Court time is precious. Use of Court time by one has the effect on the availability of it for use of others. Time taken in this petition could have been utilized to dispose off other cases, as submitted by learned Seneior Counsel. True, every citizen has right to use Court's time but not to waste or misuse it. Those who waste or misuse must pay for it. This is one of the causes which delays the disposal of cases. In Ramesh Bodhraj Nagpal and another v. Smt. Prakashkumar Sardar Deelipsingh and another(2009(4) ALL MR 370) this Court has stated that: 14 “In my view, time has now come to consider status of another party eligible to costs. That another party, in my view, prima facie, is the State Government. The availability of the infrastructure and staff to the Courts functioning within the territory of the State is the primary responsibility of the State Government. For discharging this primary responsibility, State has to carve out some funds, probably which could be utilised for development activities in the larger public interest. Therefore, in an appropriate case, costs considering the facts and circumstances and time taken by the litigation may be imposed, payable to the State Government”. 13.1 The Petitioner also needs to pay costs to the Respondent who has been compelled to incur costs to defend the petition, for his time and inconvenience. In defending a petition, it is said that a Respondent not only incurs expenses but also spends time and effort, at times also bears hurt to his emotions. 13.2 The Petitioner will therefore have to pay costs, both for wasting the time of the Court as well as making the Respondent to incur the costs in defending the Petition. The said costs are quantified at Rs.40,000/-. Rs.20,000/- to be paid into the account of the State Government and the balance of Rs.20,000/- shall be paid to the Respondent. In reality, the actual costs incurred by the State and the Respondent must be much more. 15 Respondent would be entitled to receive Rs.20,000/-, if any, deposited by the Petitioner under Section 117 of the Act. 14. The application for withdrawal therefore is hereby granted. Petitioner to comply with the provisions of clause (b) of sub-section (3) of Section 110 of the Act within a period of four weeks. The notice of withdrawal shall be published in the Official Gazette as well as in one English newspaper and the other in a Konkani newspaper circulating in this State. The withdrawal is subject to compliance of the provisions of clauses (a) and (b) of sub-section (3) of Section 110 of the Act. 15. Election Petition shall stand over to six weeks i.e. 1-9-2010. N. A. BRITTO, J. RD