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Chaugule v. Bhagwat .
Factual and Procedural Background
The appellant was elected to the Maharashtra Legislative Assembly from Constituency No. 240 (Omerga), a seat reserved for Scheduled Caste candidates. His rival Scheduled Caste candidate, Shri Yadavrao Suryawanshi, had his three nomination forms rejected by the Returning Officer because the proposer’s name was absent from the voters’ list. Yadavrao challenged the rejection in Writ Petition No. 6474 of 2009; the High Court allowed the writ but its order was stayed by the Supreme Court, preventing his name from appearing on the ballot.
After the appellant was declared elected on 22-10-2009, Yadavrao filed Election Petition No. 5 of 2009 before the Aurangabad Bench of the Bombay High Court. On 25-11-2010, he applied to withdraw the petition. The High Court permitted withdrawal, noting that no allegation of corrupt practice had been made.
Within fourteen days of that withdrawal order, one Shri Bhagwat Danane (the present respondent)—an elector who had neither filed nomination papers nor contested the election—filed Civil Application No. 35 of 2010 under Section 110(3)(c) of the Representation of the People Act, 1951 (“RPA 1951”), seeking substitution as the petitioner. The High Court allowed substitution, reading Sections 78-B, 81(1) and 110(3)(c) conjointly. The appellant challenged that order before the Supreme Court.
Legal Issues Presented
- Whether, under Section 110(3)(c) of the Representation of the People Act, 1951, a person who neither filed nomination papers nor contested the election can be substituted as petitioner in an election petition that has been withdrawn by the original petitioner.
- Whether the High Court erred in construing the expression “a person who might himself have been a petitioner” to include any elector irrespective of his interest in the specific grounds raised in the original election petition.
Arguments of the Parties
Appellant's Arguments
- Section 110, not Section 116, governed the situation because this case involved withdrawal, not abatement upon death.
- The phrase “a person who might himself have been a petitioner” in Section 110(3)(c) is narrower than “any person” in Section 116; it permits substitution only of someone who could have filed a petition on identical grounds.
- The respondent never filed nomination papers and therefore lacked the same legal interest as the withdrawing petitioner; allowing substitution would overstretch Section 110(3)(c).
Respondent's Arguments
- The wording of Section 110(3)(c)—specifically “a person”—is broad and encompasses any elector who was eligible to file an election petition.
- As a registered voter, the respondent satisfied the definition of an “elector” under Section 2(1)(e) RPA 1951 and thus qualified for substitution.
- Citing Nandiesha Reddy v. Kavitha Mahesh (2011) 7 SCC 721, the respondent argued that the Returning Officer’s rejection of Yadavrao’s nomination was illegal, vitiating the election and justifying continuation of the petition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| (2012) 5 SCC 133 (title not specified in opinion) | Order staying the High Court’s decision that had set aside rejection of Yadavrao’s nomination. | Referenced only as background; not relied upon in the Supreme Court’s analysis in this appeal. |
| Nandiesha Reddy v. Kavitha Mahesh, (2011) 7 SCC 721 | Returning Officer should not summarily reject a defective nomination; candidate must be given an opportunity to cure defects. | Cited by the respondent to argue that rejection of nomination vitiated the election; the Supreme Court did not accept this submission. |
Court's Reasoning and Analysis
The Supreme Court began by noting that Section 81 RPA 1951 limits who may present an election petition; the respondent, having neither contested nor filed nomination, could not have invoked the grounds in Sections 100(1) or 101.
Examining Section 110, the Court emphasized clause (3)(c): only “a person who might himself have been a petitioner” may seek substitution after withdrawal. The expression requires contextual interpretation; it does not automatically embrace every elector.
The original petition was an action in personam—a personal grievance against the Returning Officer’s rejection of Yadavrao’s nomination, not an action in rem challenging the elected candidate’s conduct. Because the respondent lacked the identical interest and could not have filed a petition on that personal ground, he fell outside the scope of Section 110(3)(c).
The High Court, by applying the provision literally without assessing the nature of the original cause of action, misconstrued the statute. Consequently, its order permitting substitution was unsustainable.
Holding and Implications
Appeal Allowed – High Court order dated 28-11-2011 in Election Petition No. 5 of 2009 and Civil Application No. 35 of 2010 is set aside.
Immediate Effect: The substitution of Shri Bhagwat Danane as petitioner is annulled, effectively terminating the election petition proceedings. No order as to costs.
Broader Implication: The decision clarifies that under Section 110(3)(c) RPA 1951, only those who share the same actionable interest as the withdrawing petitioner—and who could themselves have maintained an election petition on the identical grounds—may seek substitution. No new precedent was created beyond this statutory interpretation.
Altamas Kabir, J.— Leave granted. The appellant herein was elected to the Maharashtra Legislative Assembly from 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.
2. On 26-9-2009 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 1-10-2009 WP No. 6474 of 2009 the High Court allowed the writ petition and quashed the order of the Returning Officer. The order of the High Court was challenged by the Election Commissioner before this Hon'ble Court, in which notice was issued and the impugned judgment WP No. 6474 of 2009 was stayed (2012) 5 SCC 133. Consequently, Shri Yadavrao's name was not included in the ballot paper and he was unable to contest the elections.
3. The elections were conducted on 22-10-2009 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 1-12-2009. While the election petition was pending hearing, on 25-11-2010 Shri Yadavrao filed an application for withdrawal of the election petition filed by him.
4. 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 Court allowed the application filed by Shri Yadavrao, 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 8-12-2010, 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 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 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 the 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.
8. Mr Kanade also drew our 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 Section 110, Mr Kanade urged that it has been specifically indicated therein that:
“110. (3)(c) a person who might himself have been a petitioner may, within fourteen days of 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, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court [might] deem fit.”
9. Attempting to draw a distinction between the provisions of Section 110 and Section 116, which deal 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 respondents dying or giving such notice that there is no respondent who is opposing the petition, the High 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.
10. Mr Kanade submitted that in the present case the provisions of Section 110 stood attracted and not Section 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 of the election petitioner to continue the proceedings initiated by the election petitioner.
11. 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 overreaching 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 situation where such substitution should have been allowed.
12. 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) of 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 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.
13. Reference was made to the decision of this Court in Nandiesha Reddy v. 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.
14. 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. 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.
15. 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 High Court, such application has been induced by any bargain or consideration which ought not to be allowed.
(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.”
16. As may be noticed, clause (c) of Section 110(3) permits a person, who might himself have been a petitioner (emphasis supplied) to apply for substitution as petitioner in place of the party 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.
17. 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 satisfying itself that the order was fit in the facts of the case.
18. 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 the 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.
19. We, therefore, have no hesitation in setting aside the judgment and order dated 28-11-2011, passed by the Aurangabad Bench of the Bombay High Court in Election Petition No. 5 of 2009 and Civil Application No. 35 of 2010. The appeal is, accordingly, allowed, but there will be no order as to costs.
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