VERY IMPORTANT POINT
Publication of notice of withdrawal of election petition in Official Gazette is mandatory and publication of notice in newspaper is in addition to publication in Official Gazette. 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 Section 110(3)(c) to apply for substitution would not commence unless publication in Official Gazette has also taken place.

ORDER

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 a 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(1)(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.

2. The election petitioner had contested the election as a candidate nominated 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.

3. 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 100(3)(c) of the Act. In this application reference is made to the withdrawal notice published in the Assam Tribune in its issue dated 16th September, 1997. It transpires that on 3rd October, 1997 the appellant also filed another application for the same relief (registered as Misc. Case No. 125 of 97). In this application, reference is made to the withdrawal notice published in the Assam Tribune dated 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.

4. We have heard learned counsel for the appellant.

5. 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 respondents have already been set ex-parte. We are, therefore, disposing of this appeal after hearing learned counsel for the appellant and carefully perusing the record including the counter affidavit filed by respondent No. 1 in response to the notice at the stage of the special leave petition.

Section 110 of the Act provides :

"110. Procedure for withdrawal of election petitions.-(1) If there are more petitioners than one, no applic