Rahul Silawat vs Shri Tulsiram Silawat
2021 Latest Caselaw 3733 MP

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 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
                      E. P. No.25 of 2019
         (Rahul Silawat vs. Tulsiram Silawat and others)

Indore, dated :30.07.2021


      Heard through Video Conferencing.
      Shri R. S. Chhabra, learned counsel for the applicant.
      Shri S. C. Bagadiya, learned Senior Counsel with Shri Akash
Sharma, learned counsel for the respondent No.1.

Shri V. Godha, learned Government Advocate for the State. This order seeks to dispose of the application (IA No.1314/2021) filed under Section 110(3)(c) of the Representation of the People Act, 1951 (for brevity "the Act") seeking to be substituted in place of the petitioner and be permitted to continue the proceedings of the instant election petition.

2. The original election petition had been filed questioning the election result of the respondent No.1 in respect of Sanwer Constituency of Madhya Pradesh Legislative Assembly Elections, 2018. The original petitioner had contested the election from the Constituency as an independent candidate. The election result was declared on 11.12.2018. The respondent No.1 was declared a returned candidate. Subsequently, the election petition was filed on 25.01.2019 and during the course of pendency of the aforesaid application, Sanwer Constituency fell vacant on account of resignation of the respondent No.1 from his position as a Member of Legislative Assembly as also the Member of the Indian National Congress. The aforesaid seat had fallen vacant on 14.03.2020. Subsequently, bye-elections of Sanwer Constituency were notified by the Election Commission of India and the respondent No.1 again contested the bye-elections as a candidate of

THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE E. P. No.25 of 2019 (Rahul Silawat vs. Tulsiram Silawat and others)

Bhartiya Janata Party. The petitioner subsequently filed an application on 09.10.2020 seeking withdrawal of the election petition.

3. This Court had earlier allowed the withdrawal application on 12.10.2020 but subsequent to filing the review petition, the election petition was revived on 18.12.2020. The applicant was substituted in place of the petitioner as "a person who might himself have been a petitioner" and as such is qualified and competent to be substituted in place of the petitioner.

4. In the reply, the respondent No.1 has stated that the original petitioner had contested the election as an authorised candidate of Bhartiya Janata Party whereas, the present applicant is a member of the electoral and he cannot step into the shoes of the petitioner. Further, the applicant has not filed any objection before the Returning Officer during the course of submissions of the nomination form in the year 2018, that the applicant has not stated that he had read and understood the election petition. Once the original petition had been rendered infructuous because of withdrawal application, filing of such application for substitution cannot be considered to be bonafide exercise of right by the applicant.

5. It would be appropriate to reproduce Section 110(3)(c) of the Act, which reads as under :-

Section 110(3)(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

THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE E. P. No.25 of 2019 (Rahul Silawat vs. Tulsiram Silawat and others)

to continue the proceedings upon such terms as the High Court may deem fit.

6. The applicant has sought his substitution submitting that he is "a person who might himself have been a petitioner under Section 110 (3)

(c) of the Act.

7. Learned Senior Counsel for the respondent No.1 in his oral submissions has drawn Court's attention to the Apex Court judgement of Chaugule vs. Bhagwat, 2012 (5) SCC 127. In the aforesaid citation, election petition had been filed by the original petitioner on the ground that his nomination paper had been wrongly rejected by the Returning Officer and thus, the applicant had sought his judgement in personam whereas, the substitution applicant had sought his judgement in rem and he was therefore, not entitled for any such relief. Learned Senior Counsel for the respondent No.1 has drawn Court's attention to para-16 of the aforesaid judgment, which reads as under:-

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.

8. Learned Senior Counsel submits that in the present case also, the applicant is seeking judgement in rem whereas the original petitioner had sought judgement in personam. It is further submitted that in the

THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE E. P. No.25 of 2019 (Rahul Silawat vs. Tulsiram Silawat and others)

original petition, it has been mentioned that the respondent No.1 did not disclose certain social accounts in his nomination forms and the electorate such as the applicant had raised no such objection at earlier point of time. Hence, the application is sought to be rejected.

9. Learned counsel appearing on behalf of the applicant in his submission has sought to differentiate the facts of the original petition with that cited in the Apex Court judgement in the sense that the original petitioner did not raise any question marks regarding rejection of his nomination papers and all the grounds taken in the petition are available to the applicant also and the original petitioner himself had sought a judgement in rem and not in personam. The Court's attention was drawn to Section 100(1)(b) and 100(1)(d) of the provisions of Section 100 of the Act, which empowers the High Court to declare the return of candidate to be void if there is any corrupt practices committed by the returning candidate or there has been improper acceptance of any nomination. He has further drawn Court's attention to various parts of the original petition in which grievance has been raised regarding the corrupt practice adopted by the respondent No.1 and it has been stated that in the nomination form, number of columns were left blank whereas, in the second nomination form in subsequent bye-elections, all the columns have been filled up. It is also submitted that there is no such mandate to state that the applicant has read and understood the election petition and such submission is hyper-technical in nature. He also submits that even though the assembly has been dissolved, the applicant can still allowed to be substituted and there is no bar despite the developments which have taken place in the matter.

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10. Considered.

11. Perusal of Section 100 of the Act makes it clear that the allegations regarding corrupt practices by the returning candidate as also the result of the election being materially affected by improper acceptance of any nomination would pave way for declaring the elections of the returning candidate to be void. The aforesaid provision is being reproduced as under :-

100. Grounds for declaring election to be void.-- [(1) Subject to the provisions of sub-section (2) if 3 [the High Court] is of opinion--

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act 9 [or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate 1 [by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non--compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE E. P. No.25 of 2019 (Rahul Silawat vs. Tulsiram Silawat and others)

[(2)] If in the opinion of 2 [the High Court], a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied--

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and 5 [without the consent], of the candidate or his election agent;

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(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents,

12. Learned counsel for the applicant has drawn Courts attention to para-17 of the original petition in which allegations have been made regarding not filling up of various details in columns in the nomination form by the respondent No.1 and consequent improper acceptance of his nomination by the Returning Officer (para-24), which relates to the grounds as contained in Section 100(1)(d)(ii) of the Act. In para-23, the allegations of adoption of corrupt practices by the respondent No.1 by concealing the information and also by giving false information have been levelled, which correspond to Sections 100(1)(b) and 100(1)(d)(ii) of the Act.

13. The aforesaid pleadings are not in the nature of private grievance of the original petitioner but is of a nature which could be raised by any member of the public. Thus, the judgement which was sought was judgement in rem and not judgement in personam allowing a member

THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE E. P. No.25 of 2019 (Rahul Silawat vs. Tulsiram Silawat and others)

of the electorate to step into the shoes of the original petitioner. Hence, the applicant satisfies the standard indicated under Section 110(3)(c) of the Act i.e., the applicant is "a person who might himself have been a petitioner".

14. Consequently, I.A. No.1314/2021 stands allowed. The applicant is competent to be substituted in place of the petitioner and permitted to continue in the process of election petition.

15. Let appropriate amendments be carried out in the original petition within seven days.

16. Matter be listed after a week.

(Shailendra Shukla) Judge gp

Digitally signed by GEETA PRAMOD Date: 2021.07.31 17:20:44 +05'30'