Deciding Authority : Supreme Court
Date of Judgement : 18/01/2000
Bench : DR. AS. ANAND CJ & S. RAJENDRA BABU & R.C. LAHOTI
Facts : 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.
Judgement: 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-dent 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.
A bare perusal of Section 110 (3)(b) of the Representation of the People Act, 1951 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 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.
Held : Appeal Allowed .
Tejasv Anand ,IV th Year, AMITY LAW SCHOOL,DELHI.
A COMPREHENSIVE WEBSITE FOR ALL LEGAL DEVELOPMENTS