IMPORTANT POINT
Person not entitled to invoke grounds of sections 100(1) and 101 are disqualified to maintain an election petition u/s 81 of the 1951 Act.

Judgment :-

ALTAMAS KABIR, J.

1. Leave granted.

2. The Appellant herein was elected to the Maharashtra Legislative Assembly from the 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.

3. On 26th September, 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 1st October, 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 was stayed. Consequently, Shri Yadavrao’s name was not included in the ballot paper and he was unable to contest the elections.

4. The elections were conducted on 22nd October, 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 1st December, 2009. While the Election Petition was pending hearing, on 25th November, 2010, Shri Yadavrao filed an application for withdrawal of the Election Petition filed by him. 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 Yadvrao, 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 The Election Petition was, therefore, disposed of as withdrawn.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 8th December, 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 a