V.M. Kanade, J.

1. Civil Application No. 7661/02 is filed by respondent No. 1 Under Order VII, Rule 11 of the Code of Civil Procedure read with Section 86 of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act"), praying for dismissal of the Election Petition on the ground that it does not comply with the provisions of Section 83 of the said Act.

FACTS

2. 2. The elections of the Maharashtra Legislative Council from Nagpur Division Graduate Constituency were announced in May 2002. The election programme was published which is reproduced hereinbelow :

a) Last date for nomination : b) Date of scrutinyc) Date of withdrawald) Date of Poll : 23 e) Date of countingf) Place of counting

1. 3. Respondents 1 and 2 along with some other candidates filed their respective nomination papers for contesting the said election. Respondent No. 1 was an official candidate of Bhartiya Janta Party whereas respondent No. 2 was an independent candidate. The other candidates had withdrawn their forms and, therefore, they have not been impleaded as respondents in the Petition.

2. 4. Respondent No. 2 withdrew his candidature on 8-6-2002 which was the last date of withdrawal of nominations. After withdrawal of the nomination paper of respondent No. 2, the Returning Officer declared the respondent No. 1 as elected unopposed.

3. 5. The petitioner in the Election Petition is a voter in the Election for the Maharashtra Legislative Council from Nagpur Division Graduate Constituency and his name was included in the voters list for the Nagpur Division Graduate Constituency and, therefore, the petitioner states that he has a right to vote at the election and he is entitled to file the instant petition.

4. 6. In the Election Petition in para No. 4 the petitioner has stated as follows :

"That as already stated hereinabove, as per the, election programme announced by the respondent No. 3, 8-6-2002 was the last date for withdrawal of nomination. The respondent No. 2 was on the said date reported to be in Mumbai before the then Governor and Chancellor of Nagpur University, Dr. P.

C. Alexander in connection with a matter related to Nagpur University in a petition filed by the respondent No. 2. Thus, in other words, the respondent No. 2 was not at Nagpur on the said date, which was the last date for withdrawal of nomination papers. However, to the utter shock, surprise and dismay of everybody concerned, it was announced that the nomination paper of the respondent No. 2 has been withdrawn on 8-6-2002 and it was claimed that this was done by his brother. Pursuant to the said alleged withdrawal of the nomination paper of the respondent, nobody else was left in the field to contest the election and since the respondent No. I was the only candidate left, he was declared elected unopposed to the Maharashtra Legislative Council.

1. 7. The petitioner in the Election Petition, therefore, did not have personal knowledge about the said fact. What he has stated is that he had learnt about the said fact that respondent No. 2 was at Bombay and that his brother had withdrawn the nomination paper.

2. 8. It is further alleged in the petition that the petitioner complained to various authorities including the Returning Officer, Nagpur Division Graduate Constituency as also the Election Commissioner of India. It is alleged that Shri Govindrao Adik - President of Maharashtra Pradesh Congress Committee to whom the petitioner had marked the copy of the complaint also made a representation to the Returning Officer and Election Commissioner. The main contention of the petitioner to the Election Petition is that the Returning Officer had not followed the procedures in respect of the mandate given by the said Act and Rules for the withdrawal of the Nomination Papers. It is alleged in para No. 7 as follows :

"These provisions mandate that the withdrawal of the nomination paper could be done only by a candidate contesting the election or his proposer and