Bharat Pandurang Dhokane vs Yeshwantrao Kankarrao Gadakh and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 610

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
R.G. Deshpande, J.
Dr. Bharat Pandurang Dhokane..... Petitioner.
Versus
Yeshwantrao Kankarrao Gadakh another..... Respondents.
Election Petition No. 1 of 1998, decided on 18-8-1999.
Advocates appeared :
K.N. Bhatt Sr.C. with Pradeep Rajgopal A.B. Naik, for petitioner.
V.R. Manohar, Sr.C. with S.B. Deshmukh, for respondent No. 1.

Headnote:Section 11-Constructive res judicata-Where election petition urging same points decided in writ petition under this circumstance principle Of constructive res judicata can be applied.-In pursuance of the judgment of the Supreme Court in connection with the election petition, the respondent was declared disqualified for a period of four years. The respondent made a representation and requested the authorities concerned (i.e. the Chief Election Commissioner, etc.) to reinstate his name immediately on expiry of the period of his disqualification in the electoral roll of the concerned constituency. Since no action was taken by the authorities concerned and since the respondent wanted to contest the then ensuing election to the Legislative Council, the respondent approached the High Court through writ petition. The writ petition was allowed and the name of the respondent actually stood reinstated in the electoral roll of the concerned constituency before the last date of submission of his nomination paper. The High Court observed that the respondents right as a voter must be deemed to have been restored immediately the period of disqualification came to an end. Thereafter, the review application at the instance of the Chief Electoral Officer was rejected by the High Court by a reasoned order. The judgment of the High Court in writ petition and in the review application happened to be a subject-matter of challenge before the Supreme Court at the instiillce of the present petitioner by way of the special leave petition and it was qismissed by the Supreme Court. Thus, the judgment of the High Court in writ petition was virtually upheld by the Supreme Court, it became final and conclusive as far as it related to the inclusion of the respondents name in the electoral roll and acceptance of his nomination paper for election of the Legislative Council. In the present election petition, the petitioner urged the same points which were virtually concluded by the High Court and the Supreme Court.
       Even though the election petitioner was not a party to the earlier proceedings in the High Court, the decision of the High Court in writ petition, decision on review application and confirmation of both the judgments by the Supreme Court in the special leave petition would amount to constructive res judicata and oust the jurisdiction of the High Court to entertain the election petition on the same points. Since the election petitioner himself had preferred the special leave petition, there was no point in his agitating that the said decision was totally foreign to him and he was in no way concerned with the same. The writ petition was filed by the respondent for inclusion of his name in the electoral roll. In the said petition, the Chief Election Commissioned, etc. were the parties and there was no question of the election petitioner being a party to that petition. Though the election petitioner was not a party to the earlier decisions of the High Court, they would be binding on him as his special leave petition against those decisions was rejected by the Supreme Court. The argument those decisions would not be binding on him and it was still open for him to challenge the some, would be totally in contravention of the doctrine of merger. The judgment of the High Court had merged into that of the Supreme Court to which the petitioner was a party.
       In the present case, the Supreme Court after considering a well reasoned and speaking order of the High Court dismissed the special leave petition. The presumption, therefore, by necessary implication would be that the Supreme Court did take into consideration all those points which were decided by the High Court. This also would amount to Supreme Court having taken into consideration the merits of the case and it can be concluded that whatever could have been decided expressly, implicity or even constructively while dismissing the special leave petition could not be now reopened through the present petition. Hence the order of the High Court having been merged in the order of the Supreme Court, applying the wholesome rule of res judicata, it would not be open for the present election petitioner to agitate the same points again (1998) 3 SCC 119, (1986) 4 CC 146 and (1997) 6 SCC 78-Distinguished.
       Order VII, Rule 11-Election petition. - In this case it was held that non-disclosure of cause of action regarding on election petition entitles so Court to rejection election petition.
       Sections 36(7) and 62(1)-Inclusion of name of electoral roll.-Inclusion of name of elector in electoral roll and acceptance of nomination cannot be challenged.

JUDGMENT - R.G. DESHPANDE, J.:---The present election petition is filed challenging the election of the respondent No. 1 as a member of the Legislative Council from Ahmednagar; District Ahmednagar in the election held on 29th December, 1997, the result of which was declared on 31st December, 1997. The present respondent No. 1 contested the Legislative Council election of the Maharashtra Legislative Council from Ahmednagar, District Ahmednagar constituency (hereinafter referred to as "the Constituency" for the purposes of brevity). The petitioner also contested the said election and was sponsored by Shiv Sena party. The present respondent No. 1 was a candidate of Indian National Congress (I). There was a third candidate, namely, Dilip Kumar Gandhi, who was fielded by Bharatiya Janata Party (B.J.P.). Thus, in the fray, there were in all three candidates. The elections were held on 29th December 1997; whereas counting of votes was conducted on 31st December, 1997 and, on the same day, the results were declared. The respondent No. 1 was declared elected as he had secured 220 votes out of 320; whereas the petitioners secured 91 votes.

2.This case has got a bit chequered history. The respondent No. 1 in the year 1991 was elected in Parliamentary elections from 39, Ahmednagar (South) constituency. However, the said election of the respondent No. 1 was set aside by this Court in Election Petition No. 2/91 vide its judgment dated 30th March 1993, on the ground that the present respondent No. 1 was found guilty of corrupt practices under section 123 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act of 1951"). The present respondent No. 1 had challenged that judgment and order of the High Court before the Supreme Court vide Appeal No. 2115/1993 which was partly allowed by the Supreme Court by its judgment dated 19-11-1993. However the decision of the High Court as regards the corrupt practices was upheld by the Supreme Court. In view of the judgment of the Supreme Court, referred to above, the present respondent No. 1 was disqualified under the provisions of section 8-A of the Act of 1951.

3.In pursuance of the above-said judgment of the Supreme Court, a notification dated 10-6-1994 was issued by the Honourable President of India, whereby the respondent No. 1 was declared disqualified for a period of four years from 19-11-1993 that is the date of the judgment of the Supreme Court. Needless to mention that the Honourable President of India, in accordance with the provisions of sub-section (3) of section 8-A of the Act of 1951, had sought the necessary opinion from the Election Commission. The respondent No. 1 moved necessary applications to various authorities i.e. District Election Officer, the Chairman, Election Commission of India and the Chief Electoral Officer on 19-9-1997 informing them that his disqualification was to expire on 18-11-1997, and that his name be reinstated in the electoral roll, then existing, immediately on the said expiry of disqualification. However, the petitioner contends, in this petition, that respondent No. 1 did not move any application before the Electoral Registration Officer which, according to the petitioner, was mandatory, in accordance with the provisions of section 24 of the Representation of the People Act, 1950 (which is hereinafter referred to as "the Act of 1950"). According to the petitioner in pursuance of the provisions of section 6(1) of the Act of 1951, the name of the respondent No. 1 could not have ben included in the final electoral roll on or before 1-1-1998 and such non-inclusion, therefore, according to the petitioner, was correct.

4.Since the name of the respondent No. 1 was not included in the final electoral roll of the constituency, it became a subject-matter of challenge under Article 226 of the Constitution of India, at the instance of the respondent No. 1, vide Writ Petition No. 5205/97. The contention of the present respondent No. 1 in that petition

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1999 Supreme(Bom) 610

Cases Referred (4)