1 CA No.35/2010 in EP 5/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.35 OF 2010 In ELECTION PETITION NO.5/2009 BHAGWAT MARUTI DANANE VERSUS CHAUGULE DNYANRAJ DHONDIRAM ... Advocate for Applicant : Mr.VD Sapkal with Mr.LC Patil Advocate for Respondent : Mr.NP Patil-Jamalpurkar ***** CORAM : K.U.CHANDIWAL, J. DATE : 28th NOVEMBER, 2011. PER COURT : 1) Heard learned Counsel for the parties extensively and finally. 2) The applicant prays to allow him to continue Election Petition No.5/2009 by substituting him as petitioner in place of Yadavrao Bhimrao Suryawanshi, who has withdrawn the petition on 25th November, 2010. 3) Mr.Sapkal, learned Counsel for the applicant, submits that there is no legal bar to move such application for substitution of petitioner, which is in tune with Section 110(3) (c) of Representation of Peoples Act, 1951 (hereinafter to be referred as the said Act). 2 CA No.35/2010 in EP 5/2009 4) The applicant is a valid voter in 240 Omerga (S.C.) Legislative Assembly Constituency, his name is figuring in the voters list at Serial No.221 of Part 57 of the list of Wadgaon, Tq. Lohara. The applicant has annexed the relevant extract of voters list of 240 Omerga Legislative Assembly Constituency. The applicant also illustrates, he has interest in purity of the election and hence this attempt. 5) Learned Counsel for the applicant submits, the applicant has complied with all the mandatory requirements, including presenting his application within stipulated period of fourteen days. This is so explained, that on 25th November, 2010, when the matter was placed for recording of evidence of the witnesses, original petitioner – Yadavrao made an application, seeking to withdraw the Election Petition. This Court permitted to withdraw by passing an elaborate order. Within the time frame of fourteen days, indeed, on the very day of permitting such withdrawal, an application in terms of Section 110(3)(c) of the said Act, for substitution of the applicant as petitioner, is moved. 6) Mr.Patil-Jamalpurkar for the respondent (returned candidate) submits, Yadavrao had filed 3 CA No.35/2010 in EP 5/2009 the Election Petition, as he felt his nomination form was erroneously rejected by the Returning Officer. According to him, the application for withdrawal was moved on behalf of said Yadavrao by Shri Sapkal, Advocate and it is not now open for Mr.Sapkal to move again for the applicant. The application is moved with ulterior motives. 7) The learned Counsel further submits that the application is beyond the scope and ambit of section 110(3)(c)of the said Act as it stipulates to qualify and control for making such application. The Section contemplates, "a person, who might himself have been the petitioner". 8) Learned Counsel for Respondent has placed reliance to the judgment of the Supreme Court in the matter of Nandiesha Reddy Vs. Mrs. Kavitha Mahesh – 2011 (6) Supreme 537, wherein the Hon'ble Supreme Court held, - "Having complied with the requirements of the provision, the election petitioner was held to be a candidate". The scope of Section 81 of the said Act was also discussed. The learned Counsel further placed reliance to the Constitution Bench judgment in the matter of Mithilesh K. Sinha Vs. Returning Officer for Presidential Election – 1993 Supp. (4) SCC 386 = 1992 (S) JT 479. Indeed, this Constitution Bench 4 CA No.35/2010 in EP 5/2009 judgment is the subject of discussion in the earlier matter of Nandiesha Reddy (cited supra). 9) Mr.Patil further submits that the applicant has no cause of action as the election was contested by Yadavrao on the ground of erroneous rejection of his nomination form. These contentions, to repeat are devoid of the legal position explained hereinafter. 10) In fact, the observations of the Supreme Court in the matter of Nandiesha Reddy, flowing in paragraph 13 are against the respondent, the returned candidate. Reference in paragraph 10 was to the judgment in 1992(5) JT 479 and paragraph 13 of the said Constitution Bench judgment. However, the Supreme Court in the matter of Nandiesha Reddy, after discussing the Constitution Bench judgment, dwelt upon the scope of Sections 81 and 33 of the Act. In this scenario, the observations in paragraph 13, referred above, carry weightage and importance, which reads as under : "From a plain reading of the aforesaid provision it is evident that an election petition calling in question any election can be presented by any candidate at such election. Candidate, in our opinion, would not be only such person whose nomination form has been accepted for scrutiny or whose name 5 CA No.35/2010 in EP 5/2009 appears in the list of validly nominated candidate, that is to say, candidates whose nominations have been found valid. Here, in the present case, the Election Petitioner's plea is that the Returning Officer declined to accept the nomination paper. We are of the opinion that when a nomination paper is presented it is the bounden duty of the Returning Officer to receive the nomination, peruse it, point out the defects, if any, and allow the candidate to rectify the defects and when the defects are not removed then alone the question of rejection of nomination would arise. Any other view, in our opinion, will lead to grave consequences and the Returning Officers may start refusing to accept the nomination at the threshold which may ensure victory to a particular candidate at the election. This is fraught with danger, difficult to fathom. Section 33(4) of the Act casts duty on a Returning Officers to satisfy himself that the names and the electoral roll numbers of the candidates and their proposers as entered in the nomination paper are the same as in the electoral rolls and, therefore, in our opinion, the Election Petitioner for the purpose of maintaining an election petition shall be deemed to be a candidate." 11) The canvass of facts projected by Mr. Patil, that Section 81 of the Act, cannot be read in juxtaposition to aid the application in terms of Section 110(3)(c) of the said Act, is devoid of merit. The scheme of the Act informs in Section 79(b) of the Act, according to which, a "candidate" means, - a person, who has been or claims to have been duly nominated as a candidate 6 CA No.35/2010 in EP 5/2009 at any election. Crystal position, indicated in Section 79(b) of the Act, if read with provisions of Section 81(1), which speak of "presentation of a petition", there would be clarity. An Election Petition, calling in question any election, is to be presented on one or more of the grounds specified in terms of sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector. 12) Explanation provided to section 81(1) informs, the term of "elector" means, a person, who was entitled to vote at the election to which election petition relates, whether he has voted at such election or not. 13) Taking above situation of law, as indicated in terms of Section 81 and the term of "elector", being explained, it goes without saying that the person interested, like the applicant, has a scope to seek substitution in the election petition. This is more so, the ground for declaring an election to be void are conceived in section 100, which inform (100(c)) that any nomination has been improperly rejected). Thus, reading section 81(1), explanation therein with Section 100 and the scheme formulated in Section 110(3)(c) of the said Act, I find the applicant herein squarely 7 CA No.35/2010 in EP 5/2009 fits within the bracket of "any person" as involved in the said section. Thus, a person, who might himself have been the petitioner, as referred by Mr. Patil, is to be read in tune with Section 81(1) with its explanation and Section 100 of the said Act. 14) In the present case, the application for substitution, was moved within the prescribed period of limitation of fourteen days. Any observations made, while permitting withdrawal of the election petition by the petitioner Yadavrao in the order dated 25.11.2010, will not deviate the legal position to brand that the present application is activated with malice or occasioned with ulterior motives. When the law does not prohibit exercise of rights flowing in tune with the scheme of special statute, no other meaning or subtraction can be drawn to it. Consequently, the application moved by the applicant for substitution is allowed. 15) Heard. Since Mr.Patil has to challenge the order, it is stayed up to 31st January, 2012. S.O. to 1st February, 2012. (K.U.CHANDIWAL) JUDGE bdv/