Shankar Arakh v. Motilal — 1995 DIGILAW 532 (MP)

JUDGMENT 1. Shri Shanker Arakh, who was an. elector in the electoral roll of Jabalpur Centre Legislative Constituency No. 196, contested the election for Legislative Assembly from Panagar Legislative Assembly No. 193 (Reserved). He could not succeed in the battle of ballots. Shri Motilal, the respondent No.1, was declared duly elected from the said Legislative Assembly Constituency. Shri Shanker Arakh has challenged the election of respondent No. 1 by means of Election Petition No. 4/94 seeking reliefs for declaration of the election of respondent No.1 as void as well as for his declaration as duly elected. During the pendency of the election petition, the petitioner Shanker Arakh died on 4.9.1994 and this Court on the statement being made by Shri Jagdish Tiwari, Advocate regarding the death of the petitioner directed for the publication of the information as required under sub-section (2) of section 112 Representation of People's Act, 1951 (for brevity hereinafter referred to as' the Act'). The order of the Court dated 6.12.94 is as extracted below :- "6.12.94: Learned counsel for the petitioner Shri Jagdish Tiwari, states that the sole petitioner in the election petition had died. Accordingly, in view of the provisions contained under section 112 of the Representation of Peoples Act, 1951, the petition stands abated. In view of above the petition is abated. Since the petition is abated, in pursuance to the requirement of provisions contained in sub-section (2) of section 112 of the Act, let the fact be published in such local Hindi Daily newspaper having circulation in the town as may be chosen by the Registry. The publication may be made within a period of ten days. The publication would be done at the State cost. Let the petition may be posted on 20th February, 1995 along with the report regarding publication together with the newspaper which contains the• publication. " 3. Consequent upon the publication, three persons approached this Court for being substituted in place of the deceased; (1) Rajesh son of Gaya Prasad whose application is numbered as I.A. No. 8/95; (2) Deepchand son of Sahjade and his application is numbered as I.A. No. 9/95 and (3) Mahmood son of Majeed whose application is numbered as I.A. No. 10/95. In I.A. No. 8/95 the prayer is that this Hon'ble Court be pleased enough to grant permission to the applicant and he be substituted as petitioner in the interest of justice. In I.A. No. 8/95 the prayer is that this Hon'ble Court be pleased enough to grant permission to the applicant and he be substituted as petitioner in the interest of justice. In I.A. No. 9/95 the prayer is the same as is in the I.A. No. 8/95. In I.A. No. 10/95 the prayer is that the applicant be permitted to be impleaded as petitioner. 4. Heard Shri S.K. Dixit, Advocate appearing for the applicant in I.A. No. 10/95. Shri Jagdish Tiwari, Advocate represents the applicants in I.A. No. 8/95 and I.A. No. 9/95. The case was posted Yesterday (3.7.1995) but after hearing at some length, it was adjourned for today and names of the learned counsel for the applicants Shri S.K. Dixit and Shri Jagdish Tiwari and the counsel for the opposite party Shri LS. Baghel and Shri G.S. Baghel are shown in the cause-list. Shri Jagdish Tiwari is not present. Butsince the controversy involved in the case is identical, I do not consider it proper to dismiss I.A. No. 8/95 & I.A. No. 9195 in default. 5. Learned counsel for the opposite party. Shri Baghel raised following three-fold preliminary objections:-- . (i) I.A. Nos. 8/95 & 9/95 are not accompanied by any affidavit, though they are substitution applications and under the Rules of the Court, substitution application requires to be supported by an affidavit of the person concerned. I.A. No. 10/95 though supported by an affidavit, the affidavit is not of the concerned person, the applicant. Such application should be supported by the affidavit of the concerned person i.e. applicant himself. (ii) All the above-referred three applications are not presented by the applicants themselves but are presented by the learned counsel authorised by the applicants by means of Vakalatnamas. (iii) The applicants have failed to satisfy the mandatory requirement of law as per provisions of sub-section (3) of section 112 of the Act read with section 117 of the Act and as such all the three applications deserve to be rejected straightway. 6. In support of the submissions regarding I.A. Nos. 8/95 and 9195 that they are not supported by any affidavit, learned counsel for the opposite party, Shri Baghel invited the attention of the Court to the provisions of sub-rule (1) Clause (viii) of Rule 16 as contained in Chapter IV of the Rules of the Court. 6. In support of the submissions regarding I.A. Nos. 8/95 and 9195 that they are not supported by any affidavit, learned counsel for the opposite party, Shri Baghel invited the attention of the Court to the provisions of sub-rule (1) Clause (viii) of Rule 16 as contained in Chapter IV of the Rules of the Court. Rule 16 (1) (viii) is as extracted below :-"16 (1) The following petition shall be accompanied by an affidavit made by the petitioner or his counsel :-- (viii) for substitution of parties;" On the basis of above rule, learned counsel for the opposite party supported his submission and submitted that section 112 (3) of the Act speaks for substitution and for substitution, rule as extracted above would be applicable. Though the Chapter VII of the Rules of the Court contains the rules titled as "Rules Relating To Election Petitions", it does not deal with any such situation regarding substitution and as such whenever a question for substitution comes the aforesaid rule as extracted above would be attracted. He further submitted that the aforesaid rule requires the application for substitution to be supported by an affidavit, which may be either of the applicant himself or his counsel. 7. Since no one has appeared to oppose the submission as advanced by the learned counsel for the opposite party in connection with I.A. Nos. 8/95 and 9/95, I after considering the argument of the learned counsel for the opposite party, find that the submission has got force. The applications are substitution applications and in fact and in law the substitution application may be under any enactment that needs to be supported by an affidavit either of the applicant himself or of the counsel. The present applications (I.A. No. 8/95 and 9195) are not supported by any affidavit and as such these applications are not competent and deserve to be dismissed. 8. So far as I.A. No. 10/95 is concerned, Shri S.K. Dixit, counsel for the applicant, who has signed the application is present and he as well as counsel for the opposite party, Shri Baghel are heard. 9. Learned counsel for the applicant, Shri S.K. Dixit submitted that I.A. No. 10/95 is duly supported by an affidavit and as such, the principle as has been applied to I.A. Nos. 8/95 and 9/95 would not be applicable in his case. 9. Learned counsel for the applicant, Shri S.K. Dixit submitted that I.A. No. 10/95 is duly supported by an affidavit and as such, the principle as has been applied to I.A. Nos. 8/95 and 9/95 would not be applicable in his case. It is correct that the application is supported by an affidavit but the learned counsel for the opposite party submitted that the affidavit filed with the application is not the affidavit satisfying the requirement of the rule as has been mentioned earlier. The said affidavit is neither of the counsel for the applicant nor of the applicant himself. The applicant in I.A. No. 10/95 is Mahmood son of Majeed but the affidavit is filed by one Shekh son of Mazid. The applicant Mahmood has shown himself to be the resident of Pasi Mohalla, Ajijganj, Pasiana (Panagar). So far as the address is concerned, it has no relevance as "Pasiana" is mentioned in the address of the applicant as well as in the address of the person who has filed the affidavit. It is certain that Shekh is a person other than the applicant. Percentage of Shekh and applicant Mahmood is also different, Applicant Mahmood is shown to be the son of Majeed but Shekh is shown to be son of Mazid. 10. The affidavit filed in support of the 'application under section 112 (3) of the R.P. Act is not of the applicant therefore such an affidavit under the Rules of the Court as stated earlier would not be treated as a proper affidavit in support of the application (I.A. No. 10/95). Accordingly, this application is not competent. 11. The next submission is that applications for substitution have not been presented by the applicants themselves in person but have been presented through the lawyers engaged by them. In this connection learned counsel submitted that requirements of section 81 of the Act are not satisfied as section 81 of the Act requires that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or a by elector. The submission of the learned counsel is founded on this provision and he submitted that the applications deserve to be rejected under sub-section (1) of section 81 of the Act. The submission of the learned counsel is founded on this provision and he submitted that the applications deserve to be rejected under sub-section (1) of section 81 of the Act. Learned counsel for the applicant, Shri S.K. Dixit while resisting the objection of the counsel for the opposite party submitted that in fact it is not an election petition, but it is substitution application in election petition and, therefore, requirements of section 81 of the Act need not to be satisfied. The submission as advanced by the learned counsel for the applicant has got substance. The language of section 112 of the Act itself is clear and it indicates that on the death of election petitioner, the election petition abates but within time specified any elector makes an application for his substitution, then the abatement of the petition automatically gets set aside on substitution of the person and in this view of the matter, I am of the view1hat provisions of section 81 of the Act would not be attracted in such applications and the objections as made by the learned counsel for the opposite party has no merit. 12. The third and last objection made by the learned counsel for the opposite party was to the following effect :-- "(iii) The applicants have failed to satisfy the mandatory requirement of law as per provisions of sub-section (3) of section 112 of the Act read with section 117 of the Act and as such all the three applications deserve to be rejected straightway." , It is an interesting proposition which needs a decision by this Court as learned counsel for the parties have not been able to point any decision on the point. 13. Learned counsel for the opposite party submitted that requirements of security as per section 117 of the Act has not been satisfied by any of the applicants and unless requirement of deposit of security is satisfied, no substitution application can be entertained and no person on such application can be allowed to be substituted as petitioner in the election petition. The relevant sub-section (3) of section 112 of the Act is as extracted below :- "112. The relevant sub-section (3) of section 112 of the Act is as extracted below :- "112. Abatement of election petitions.- (1) ________ (2) ________ (3) Any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit." The relevancy of this sub-section needs to be considered which contains the time limit within which one can apply to be substituted as petitioner in place of the petitioner. So far as question of time limit is concerned, there is no objection. The objection is regarding the satisfaction of the conditions. Learned counsel for the opposite party submitted that all the conditions as required for filing of the election petition need to be satisfied by the applicant seeking his substitution in the election petition as petitioner and in this connection he submitted that legislature has used the word "conditions" in plural which means not one but all the conditions. 14. This argument has to be tested by consideration of the words "if any" and "as to". Learned counsel for the opposite party has not been able to satisfy the Court as to why the phrase "if any" has been used by the legislature and if the phrase' 'if any" is deleted even then the sentence is complete and, therefore, the phrase "if any" cannot be ignored. It is a settled proposition of law that the legislature does not use the superfluous words and until and unless it becomes impractical for the Court the same meaning has to be attached to the words used by the legislature. He submitted that 'if any' means any of the conditions as remain not satisfied and he further submitted that the words "as to security" are only by illustrations of the requirement of law. Learned counsel for the applicant, Shri S.K. Dixit submitted that words "conditions, if any" mean condition imposed by the Court. 15. I find myself in difficulty in getting impressed with the arguments advanced by learned counsel for either side. 16. Learned counsel for the applicant, Shri S.K. Dixit submitted that words "conditions, if any" mean condition imposed by the Court. 15. I find myself in difficulty in getting impressed with the arguments advanced by learned counsel for either side. 16. Before dealing with the meaning of the phrases 'if any' and 'as to', the provisions of sections 117 and 121 of the Act need to be taken into consideration for the purposes of interpretation of the said phrases. Sections 117 and 121 of the Act are as extracted below :-- "117. Security for costs. -- (1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the costs of the petition. (2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct." . "121. Payment of costs out of security deposits and return of such deposits.-- (1) If in any order as to costs under the provisions of this Part there is a direction for payment of costs by any part to any person, such costs shall, if they have not been already paid, be paid in full, or so far as possible, out of the security deposit and the further security deposit, if any, made by such party under this part on an application made in writing in that behalf within a period of one year, from the date of such order to the High Court by the person in whose favour the costs have been awarded. (2) If there is any balance left of any of the said security deposits after payment under sub-section (1) of the costs referred to in that sub-section, such balance, or where no costs have been awarded or no application as aforesaid has been made within the said period of one year the whole of the said security deposits may, on an application made in that behalf in writing to the High Court by the person by whom the deposits have been made, or if such person dies after making such deposits by legal representative of such person, be returned to the said person or to his legal representative, as the case may be." Section 117 of the Act makes a mandatory requirement for the filing of the election petition about the deposit of the security to the tune of rupees two thousand for the cost of the petition. Sub-section (2) of section 117 of the Act speaks of that during the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct. It means that the costs can be bf two categories. First, the cost statutorily fixed amounting to Rs. 2,000/-, which has to be deposited by the election petitioner at the time of presenting an election petition as per requirement of law. The other is the security which has to be deposited as per the direction of the Court. The purpose of the security so deposited is to meet the cost of the petition. Since there is two types of security, the legislature has used the word "conditions" in plural i.e. "conditions", and the phrase "if any" can be interpreted so to meet that any of the conditions. For illustration, suppose the applicant has deposited a sum of Rs; 2,000/- statutorily fixed, but during the pendency of the election petition the Court has directed for depositing further security and before deposit of the further security the petitioner had died then in that event, the order of the Court cannot be allowed to be violated. The person once claims to have stepped in the shoes of the petitioner, then he cannot get out of the liability of the petitioner but is required to deposit the security, as has been directed by the Court to the original petitioner. 17. The person once claims to have stepped in the shoes of the petitioner, then he cannot get out of the liability of the petitioner but is required to deposit the security, as has been directed by the Court to the original petitioner. 17. Further, sub-section (2) of section 121 of the Act speaks for refund of the security money either as a whole or as may be left over after awarding cost to the respondent. The refund has to be made to the person by whom the deposits have been made, or if such person dies after making such deposits to the legal representatives of such person. In this provision also the words used are "such deposits". Thus it covers both type of securities. In section 112 of the Act the words "as to" are used after the phrase "if any". In "Words And Phrases" Permanent Edition 4, the words "as to" mean as 'regards or about'. So the word 'security' is qualified by words 'as to'. It is not illustrated, it is expressed. 'As to' means about security or as regards the security. 18. The security deposited with the election petition is liable to be refunded to the heirs and legal representatives of the petitioner who has filed the election petition and that amount cannot be retained as a part of the petition so to be given to anyone who is seeking to be substituted as petitioner. The legislation purposely used the word 'abate' under section 112 of the Act. That means so far as that person is concerned, the petition is abated, and in view of this, the security deposited by the election petitioner who had died subsequently is liable to be refunded to the legal representatives of the deceased petitioner and that cannot be adjusted for the person who seeks to be substituted as petitioner: 19. In view of above, I come to the conclusion that under sub-section (3) of section 112 of the Act, requirement of deposit of security is a must and the same is a mandatory one and the person is entitled to be substituted to continue the process upon such terms as the High Court may deem fit only upon compliance of the conditions, if any, as to security. A person who makes an application for substitution of his name has no right to get his name substituted in an election petition which itself is statutorily abated. It is the resuscitation of the petition and resuscitation can only be done if the conditions of the law are satisfied. 20. In the present case I find that the applicants have failed to make compliance of the conditions as to deposit security provided under section 117 of the Act and as such the applications are incompetent and liable to be dismissed. 21. In view of above, all the three applications i.e. I.A. Nos. 8/95, 9/95 and 10/95 for substitution are rejected. In the facts and circumstances of the case, I make no order as to costs. 22. The statutorily abatement of the election petition stands. The election petition, as such, is dismissed as having abated. Let the order and the substance of decision be intimated to the Election Commission of India as well as to the Speaker, Madhya Pradesh Assembly, at Bhopal.