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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
A. Lazar
Versus
M.K. Azhagiri & Others
O.A. No. 1358 of 2009 in Election Petition No.2 of 2009
Decided on: 01-09-2010
ELECTION LAW - SUBSTITUTION OF PETITIONER - SECTION 112(3) OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - APPLICANT SEEKING SUBSTITUTION AS PETITIONER IN PLACE OF DECEASED PETITIONER - APPLICANT WAS ALTERNATIVE CANDIDATE OF POLITICAL PARTY - APPLICATION FILED WITHIN 14 DAYS OF PUBLICATION OF FACTUM OF DEMISE OF ORIGINAL PETITIONER - APPLICANT IS ELECTOR WITHIN MEANING OF SECTION 2(E) READ WITH SECTION 81 OF THE ACT - APPLICATION IS MAINTAINABLE - APPLICANT IS ENTITLED TO BE SUBSTITUTED AS PETITIONER AND TO CONTINUE PROCEEDINGS - APPLICATION ALLOWED.
Fact of the Case:
Petitioner, an alternative candidate of a political party, sought substitution as Petitioner in place of deceased Petitioner in an Election Petition. The original Petitioner had filed the Election Petition challenging the election of the First Respondent and died during the pendency of the petition. The applicant filed the present Application for substitution within 14 days of the publication of the factum of demise of the original Election Petitioner. The applicant claimed that he was an elector within the meaning of Section 2(e) read with Section 81 of the Act and had the right to proceed and continue with the Election Petition under sub-section (3) of Section 112 of the Act.
Finding of the Court:
The Court held that the applicant was entitled to be substituted as Petitioner and to continue the proceedings. The Court found that the applicant had filed the Application within 14 days of the publication of the factum of demise of the original Election Petitioner, as prescribed under Section 112(3) of the Act. The Court also found that the applicant was an elector within the meaning of Section 2(e) read with Section 81 of the Act and had the right to proceed and continue with the Election Petition. The Court further held that the applicant was under an obligation to deposit a further amount of Rs.2,000/- towards security for costs, as the original Election Petitioner had deposited a sum of Rs.2,000/- as per Section 117(1) of the Act at the time of presenting the Election Petition.
Issues: 1. Whether the applicant was entitled to be substituted as Petitioner in place of the deceased Petitioner in the Election Petition? 2. Whether the applicant had complied with the requirements of Section 112(3) of the Representation of the People Act, 1951?
Ratio Decidendi: 1. Section 112(3) of the Representation of the People Act, 1951 allows any person who might himself have been a Petitioner to apply to be substituted as Petitioner within fourteen days of the publication of the factum of demise of the original Election Petitioner and upon compliance with the conditions, if any, as security, shall be entitled to be so substituted and to continue the proceedings. 2. The applicant had filed the Application within 14 days of the publication of the factum of demise of the original Election Petitioner, as prescribed under Section 112(3) of the Act. The applicant was also an elector within the meaning of Section 2(e) read with Section 81 of the Act and had the right to proceed and continue with the Election Petition.
Final Decision: The Court allowed the applicant's Application for substitution as Petitioner in place of the deceased Petitioner in the Election Petition. The Court directed the applicant to deposit a further amount of Rs.2,000/- towards security for costs, as the original Election Petitioner had deposited a sum of Rs.2,000/- as per Section 117(1) of the Act at the time of presenting the Election Petition.
1. This Application has been filed, praying to substitute the applicant A. Lazar as Petitioner in place of the deceased Petitioner late P. Mohan and continue the proceedings in the above Election Petition.
2. The case of the applicant is as follows:
2.1 He was the alternative candidate selected by the recognized political party CPI(M) along with P. Mohan for No.32, Madurai Parliamentary Constituency in the 15th Lok Sabha Election held in the year 2009. P. Mohan submitted his nomination. Applicant also submitted his nomination as the alternative candidate. Since the nomination of P. Mohan had been accepted, the applicant withdrew his nomination within the date fixed for withdrawal of nomination. He is interested in the outcome of the Election Petition. He is also aggrieved over the declaration, declaring the first Respondent as the returned candidate in the election in question forming subject matter of the Election Petition. He is ready and willing to continue the Election Petition substituting himself in the place of late P. Mohan, who died on 30.10.2009, based on the allegations and grounds raised in the Election Petition. He is entitled to substitute himself in place of the deceased sole Petitioner in the Election Petition and continue the proceedings as per Section 112 (3) of the Representation of the People Act, 1951 (in short, “the Act”)
2.2 He is an elector of 32, Madurai Parliamentary Constituency. He saw the paper publication in “The Hindu” daily Madurai Edition, dated 14.12.2009, publishing the factum of demise of the Election Petitioner. He is filing this Application within 14 days from the date of publication as contemplated under Section 112(3) of the Act.
2.3 Late P. Mohan has already furnished security as peer Section 117(1) of the Act. He is ready and willing to abide by any orders passed by this `Court under Section 112(3) of the Act, including depositing of another sum of Rs. 2,000/-, if directed. Hence, this application.
3. First Respondent has filed a Counter Affidavit, stating as follows:
3.1 Petitioner is not entitled to continue the proceedings on the basis of the amount deposited by late P. Mohan, the Election Petitioner, and he has no locus standi to take out this application to substitute himself in place of the deceased P. Mohan. The moment the applicant withdrew his nomination and he has not participated in the election, he is not entitled to challenges the order of the Returning Officer, declaring him (First Respondent) as the successful candidate. Further, the provision contemplated under Section 112 (3) of the Act does not in any way include the candidates who have withdrawn their nomination papers. It would only accommodate the persons, who have actually contested the election. Not having contested the election, the applicant cannot substitute himself as the applicant in place of the deceased P. Mohan. Also, having quit the election at the threshold itself, the applicant is not entitled to maintain the present Application for substitution on the ground raised by the deceased P. Mohan. The applicant has not made out any ground in the Affidavit to show that apart from being an alternative nominee, the precise fact that would entitle him to substitute himself as Petitioner and continue the proceedings.
3.2 The application for substitution cannot be maintained at the instance of the applicant as the original Petitioner-P. Mohan (deceased) had filed the Election Petition on his alleged personal information and on the information allegedly furnished to him by others. The applicant, who seeks to substitute himself, cannot proceed with the same, as he does not have any personal information on the allegation.
4. Fifth Respondent has filed a counter stating as follows:
4.1. Once a person has withdrawn his nomination, he cannot claim that he is aggrieved of the result declared by the twelfth Respondent. The application is in no way connected to the proceedings and he is a stranger. If he wants to
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