MOHD. ABUBAKKAR SIDDIQUE versus MUSTAFA SHAHIDUL ISLAM AND ORS.

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, a member of the Assam Legislative Assembly from 83 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 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.

p. 271, margin C

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 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.

pp. 271–272, margin F

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, 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 substitution application. By the order impugned in this appeal both the applications filed by the appellant were dismissed on the ground that the applications were barred by limitation as prescribed under Section 110 of the Act.

p. 272, margin B

We have heard learm:d counsel for the appellant.

p. 272, margin D

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 either. Respondent no. 1 is also not present personally. The other respondents have already been set ex-partc. We are, then:fon:, disposing of this appeal after hearing learned counsel for the appellant and cart:fully perusing the record including the counter affidavit filed by respondent no. 1 in response to the notice at the stage of the special lcavt: petition. Section 110 of the Act provides :

p. 272, margin E

"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 the petitioners.

p. 272, margin G

(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.

p. 273, margin A

(3) If thi:: application is granted -

p. 273, margin A

(a) the pt:titioner shall be ordered to pay tht: costs of the n:spondt:ntR tht:ort:for incurred or such portion then:of as the High Court may think fit;

p. 273, margin B

(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 accordingly;

p. 273, margin B

(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·

p. 273, margin C

the High Court may deem fit."

p. 273, margin D

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 in the Official C1azette and in such other manner as it may specify. Subclause (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 the High Court, he may be permitted to continue the proceedings.

p. 273, margin D

Clause (b ), thus, unmistakably suggests that it is a mandatory requirement 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 Uazetlt: and not in substitution of it. If the datt: of publication in any other manner precedes 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 limitation from the publication of the notice in the English daily Assam Tribune 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 (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.

pp. 273–274, margin F

The High Court, under the circumstances, folt in error in dismissing the substitu.ion applications filed by the appellant on the ground of limitation 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 limitation. The High Court shall take further appropriak skps expeditiously.

p. 274, margin C

The appeal succeeds and is, <1ccordingly aHowed. Ther.: shall, however, be no order as to costs insofar as this appeal is concerned. T.N.A. Appeal allowed.

p. 274, margin E