Full Judgment Text
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CASE NO.:
Appeal (civil) 2057 of 1999
PETITIONER:
MOHD. ABUBAKKAR SIDDIQUE
RESPONDENT:
MUSTAFA SHAHIDUL ISLAM AND ORS.
DATE OF JUDGMENT: 18/01/2000
BENCH:
DR. AS. ANAND CJ & S. RAJENDRA BABU & R.C. LAHOTI
JUDGMENT:
JUDGMENT
2000 (1) SCR 270
The following Order of the Court was delivered :
Mohammed Idris Ali, respondent 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, (hereinafter referred to as the
Act), calling in question the election of respondent No. 1 Shri Mustafa
Shahidul Islam, as a member of the Assam Legislative Assembly from 83 DHING
Legislative Constituency Assembly in the general elections held in 1996.
Various allegations were made in the election petition with prayer for a
direction for re-counting of votes polled in the election and thereafter to
declare the election of respondent No. 1 as void under Section 100(l)(d)
(iii) and (iv) and to declare the election petitioner to have been duly
elected from the said Assembly Constituency. The election petition came to
be registered as Election Petition No. 7 of 1996 in the Gauhati High Court.
The election petition was resisted by the returned candidate. Some of the
other candidates, who had filed their nomination papers and contested the
elections, however, remained ex-parte in the High Court.
The election petitioner had contested the election as a candidate nominated
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 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
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.
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 100(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,
1997 the appellant also filed another application for the same relief
(registered as Misc. Case No, 125 of 97). In this application, reference is
made to the withdrawal notice 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-
tion application. By the order impugned in this appeal both the applica-
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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 learned counsel for the appellant.
Learned advocate on record for the contesting respondent submitted that the
brief of the case is no longer 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 else representing respondent no. 1 either.
Respondent no. 1 is also not present personally. The other respon-dents
have already been set ex-parte. We are, therefore, disposing of this appeal
after hearing learned counsel for the appellant and carefully perus-ing the
record including the counter affidavit filed by respondent no. 1 in
response to the notice at the stage of the special leave petition.
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 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 High Court, such application has been induced by any bargain or
consideration which ought not be allowed.
(3) If the application is granted -
(a) the petitioner shall be ordered to pay the costs of the respondents
therefor 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 14 days
of such application, 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."
A bare perusal of Section 110 (3)(b) shows that the High Court shall direct
the notice of the withdrawal (of the election petition) to be published in
the Official Gazette and in such other manner as it may specify. Sub-clause
(c) of Section (3) provides that within 14 days of such publication, a
person who might himself have been a petitioner may apply to be substituted
as a petitioner in place of the party withdrawing the election petition and
upon compliance with such conditions as may be imposed by 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 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 Gazette and not in
substitution of it. If the date of publication in any other manner precedes
the date of publication in the 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 petitioner would ordinarily not commence
unless publication in the Official Gazette has also taken place as in the
present case. The High Court erroneously calculated the period of limita-
tion from the publication of the notice in the English daily Assam Tribune
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of 12.9.97 rather than from the date of publication 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 Gazette
i.e. 20th September, 1997 and so calculated we find that the application
which was filed by the appellant (misc. case no. 125/97) as also the
earlier application (misc. case no. nil/97) filed by him were both within
the statutory period of 14 days calculated from the date of publication of
the notice in the Official Gazette.
The High Court, under the circumstances, fell in error in dismissing the
substitution applications filed by the appellant on the ground of limita-
tion only. The impugned order of the High Court, thus, cannot be sustained
and the same is hereby set aside. The case is remanded to the High Court
for proceeding further treating 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 appropriate steps expeditiously.
The appeal succeeds and is, accordingly allowed. There shall, how-ever, be
no order as to costs insofar as this appeal is concerned.