Calcutta High Court
Kalyan Chaubey vs Sadhan Pande And Ors on 22 February, 2023
1
OD-1
ORDER SHEET
EP/9/2021
IA NO: GA/2/2022, GA/3/2022
IN THE HIGH COURT AT CALCUTTA
Election Petition Jurisdiction
ORIGINAL SIDE
KALYAN CHAUBEY
VS
SADHAN PANDE AND ORS.
BEFORE:
The Hon'ble JUSTICE JAY SENGUPTA
Date : 22nd February, 2023
Appearance:
Mr. Rachit Lakhmani, Adv.
Mr. Vikas Singh, Adv.
...for the Election Petitioner
Mr. Jishnu Choudhury, Adv.
Mr. Swarajit Dey, Adv.
...for respondent no.3
Mr. Anirban Ray, Adv.
Mr. Piyush Agarwal, Adv.
Ms. Utsha Dasgupta, Adv.
...for respondent no.8
The Court: The respondent nos. 3 and 8 had filed applications for
leave to file written statements. Affidavits have been exchanged on these
applications.
Mr. Jishnu Choudhury, learned counsel representing the respondent
no. 3, submits as follows. On 16.08.2021 the present election petition was
admitted and notices were issued. Adjournments were prayed on behalf of
the respondent no. 1 who was the returned candidate from the Assembly as
he was suffering from serious ailments. In fact, he went into coma and
passed away on 20.02.2022. All these long the petitioner did not object to
the prayers for adjournments made on behalf of the said respondent. On
20.07.2022 the petitioners made his intention clear that he would continue
with the prosecution. Thereafter, this Court issued a notice under Section
116 and the same was published. Pursuant to the publication of notice, the
respondent no. 3 entered appearance and decided to contest the petition. He
prayed for leave to file written statement. If the original respondent n o. 1
would have been alive, prayer (c) and would have depended on prayers (a)
and (b). But, after his death, the entire complexion changed. Now, prayer (c)
is to be independently decided. On the other hand, the petitioner's intention
is to non-context. This is contrary to the spirit of the Representation of
Peoples Act. Here, contested adjudication should be preferred. In the
interest of justice, any delay occasioned in making such prayer for filing
written statement may be condoned.
Mr. Anirban Ray, learned counsel appearing on behalf of the
respondent no. 8, submits as follows. Section 116 of the Representation of
Peoples' Act was very much applicable in the instant case. As per the
provision after a notice is issued in terms of Section 116, it shall be open to
anyone, even an existing respondent, to decide to contest the petition.
Reference may also been made to Section 87 of the said Act. It is always
open to the present petitioner who had contested the said allegations to enter
appearance and seek leave to file written statement. Although the time for
filing of a written statement may be termed as mandatory in commercial
suits, but in regular suits the same is essentially directory in nature. On this,
reliance is placed on the judgment reported at (2005) 4 SCC 480. The
respondent no. 8 had inadvertently misplaced the original notice and this
was not disputed in the opposition. He is interested in the petitioners' prayer
that the latter should be declared a winner. Rule 101 states that this Court
can declare any other person a winner. This can best be decided on contest.
The respondent no. 8 saw the subsequent notice and decided to come. After
the death of the Respondent no. 1, the rights of the respondent no. 8 have
crystallized more. Now, he too can fairly be declared a winner. On the
question of bona fide, as the respondent no. 1 is there no more, there is no
question of any collusion. Moreover, the petitioner has also made allegations
against the independent candidates as would be apparent from paragraphs 32
and 33 of the petition. It is pertinent to state that no ex parte hearing was
even directed, only the intention of the petitioner to move ex parte was
recorded. On facts, the delay does not affect the trial. If taken from the
action under Rule 116, delay is of 3 days.
Mr. Rachit Lakhmani, learned counsel representing the petitioner,
submits as follows. It is true that a notice ought to have been and has
actually been issued under Section 116 of the Representation of the Peoples'
Act. However, the respondent nos. 3 and 8 were already there in the list of
respondents as having contested the said election. They had chosen not to
appear in the matter despite notice. Therefore, it is not open to them to claim
that they would contest the petition hereafter pursuant to the notice given
under Section 116 of the Act. First, the notice is meant for those others
including anyone among the public to come and contest the petition, but it
would not include an existing respondent who had chosen not to appear thus
far. On this, reliance is placed on the decision reported at AIR 1958 SC 698.
In view of this, if the respondents prays for leave to file the written
statements, they have to explain the delay even prior to the issuance of
notice under Section 116. Such explanation is not available in the
applications. Reliance is placed on the decision reported at (2013) 12 SCC
649. There is also a lack of bona fide on their part as it appears that they are
now trying to espouse the cause of the purported wining candidate belonging
to a particular political party. As no allegations had been made against the
said respondents in the election petition, there is hardly any scope for them
to take any stand in the proceeding.
I heard the submissions of the learned counsels appearing on behalf of
the parties and perused the applications and the affidavits filed.
This is an exceptional case where the proceedings in an election
petition had to be adjourned for days together because of the serious ill-
health of the winning candidate/respondent. After several months of
struggle, the said respondent succumbed to his ailments. During this period
the petitioner had been gracious enough not to object to the prayers for
adjournment.
After a notice was published in terms of Section 116 of the
Representation of Peoples Act, respondent nos. 3 and 8 gradually appeared
and sought to contest the proceeding.
In this context, it may be worthwhile to quote the provision of Section
116 of the Act. "116. Abatement or substitution on death of respondent.--If
before the conclusion of the trial of an election petition, the sole respondent dies or
gives notice that he does not intend to oppose the petition or any of the respondents
dies or gives such notice and there is no other respondent who is opposing the
petition, [the High Court] shall cause notice of such event to be published in the
Official Gazette, and thereupon any person who might have been a petitioner may,
within fourteen days of such publication, apply to be substituted in place of such
respondent to oppose the petition, and shall be entitled to continue the proceedings
upon such terms as [the High Court] may think fit."
The expression ".....and there is no other respondents who is
opposing the petition, the High Court shall cause notice of such event to be
published......" needs special attention. The term "no other respondent who
is opposing the petition" would fairly include a respondent who in spite of
being made a respondent was not appearing to oppose the petition. Had the
intention of the Legislature been to exclude the other existing respondent/s
from responding to the notice under Section 116 of the Act, then, it would
have made it clear in the statute.
Therefore, I do not find any merit in the petitioner's contention that it
is only a person other than the existing non-appearing respondent who can
respond to a notice under Section 116 of the Code.
However, here the respondents are not seeking to substitute the
deceased, but to treat the publication of notice as their moment of reflection.
The explanation of delay for the prior period is thus implicit in the
prayers of the respondents.
Even otherwise, a respondent who had contested the election might
not have been aggrieved with the election process, but would still for a valid
reason not like the present petitioner to be declared a winner in the event of
death of the returned candidate or may even, in such event, be in a position
to stake claim to be the winner in terms of Rule 101. The petitioner cannot
force any of the respondent to take a particular stand or deny their right to
take an independent stand in the proceeding.
Besides, it appears that the petitioner has made some allegations in the
election petition, even against the independent candidates.
The whole purpose of Section 116 of the Act is to have the proceeding
continued and contested on merits so that the real truth comes out after
hearing the parties.
Juxtaposed with the above, the purported delay in praying for
extension of time to file written statements pales into insignificance.
In view of the above and in the interest of justice, I find that the
respondent nos. 3 and 8 have made out a good case for condoning the delay
and allowing their applications for filing written statements.
Accordingly, the applications to file written statements are allowed.
Let the respondent nos. 3 and 8 file their written statements within 30 days.
Accordingly, GA 2 of 2022 and GA 3 of 2022 are disposed of.
Discovery and inspection shall be completed by 29.03.2023.
List the matter on 05.04.2023.
Urgent photostat certified copies of this judgment may be delivered
to the learned Advocates for the parties, if applied for, upon compliance
of all formalities.
(JAY SENGUPTA, J.)
Sm/
