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PETITIONER: MANOHAR JOSHI

       Vs.

RESPONDENT: BHAURAO RAGOJI PATIL THROUGHLEGAL REPRESENTATIVES

DATE OF JUDGMENT14/01/1992

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) RANGNATHAN, S. RAMASWAMI, V. (J) II

CITATION:  1992 AIR 1449            1992 SCR  (1)  31  1992 SCC  Supl.  (1) 747 JT 1992 (1)   184  1992 SCALE  (1)37

ACT:      Representation  of the People Act. 1951:  Sections  112 and  117-  Election  Pettin-Application  for  substitution-- Presentation of-Deposit of security amount for cost-When  to be  made-Order  of substitution-Court to specify  amount  of deposit or give reasons if deposit is not required.

HEADNOTE:      One  ‘B’  filed an Election  Petition  challenging  the appellant’s  election  as  M.L.A. On the death  of  ‘B’  the Election  Petition  abated, and the same  was  published  in accordance with Section 112 (2) of the Representation of the People   Act,  1951.   Upon  the  said   publication,   four applications  including those of the Respondents were  filed before  the  High  Court for substitution in  place  of  the deceased  petitioner.   The  High  Court  allowed  the   two applications by the Respondents and dismissed the other  two applications.      The appellant-M.L.A. has preferred the present appeal by special  leave, against the High Court’s order  substituting the Respondents in the Election Petition.      On  behalf of the appellant, it was contended that  the High  Court  was  wrong  in holding  that  the  question  of providing security deposit for costs would arise only  after an  order for substitution is made; and that the  respondent could  have been directed to be substituted only after  they had actually deposited the amount of security.      On  behalf  of the respondents, it was  contended  that when  four  applications had been made for  substitution  an order  had  first to be passed indicating the names  of  the applicants  who were to be substituted and  only  thereafter the security amount could be deposited      Dismissing the appeal, this Court      HELD  :  1. The High Court was right  in  holding  that simulatane-                                                   32 ous deposit of any amount as security for costs at the  time of presentation of the applications for substitution was not necessary.   On  a  plain  reading of  Section  117  of  the Representation of the People Act, 1951 the said  requirement

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is  applicable  at  the  time  of  presenting  an   Election Petition.   An application for substitution made under  sub- section (3) of Section 112 consequent upon the Death of  the election   petitioner  cannot  be  put  at  par   with   the presentation of an election petition. [34FG]      2.  The  right to apply to be  substituted  accrues  on fulfilment  of two conditions, viz. that the  person  making the application should be one who might himself have been  a petitioner and that  the application is made within fourteen days  of  the  publication made  under  sub-section  (2)  of Section   112.    He,  however,  becomes  entitled   to   be substituted  only  upon compliance with the  conditions,  if any,   as  to  security.   The  applications  made  by   the respondents could not, therefore, be dismissed on the ground that  no amount was deposited as security for costs  at  the time of presenting the said applications. [35A-C]      3.  While considering an application  for  substitution court  has  to consider as to whether any deposit is  to  be made  or not as security for costs and if it is to  be  made what is the amount which has to be deposited.  If the  Court comes to the conclusion on the facts of a given case that no amount is to be deposited as security for costs an order  of subscription simpliciter would be sufficient.  The fact that no  deposit as security is to be made with  reason therefore would,  however,  have to be simultaneously  stated  in  the order  of  substitution.  On the other hand,  if  the  Court comes to the conclusion that some amount has to be deposited by  the  applicants who are proposed to be  substituted,  as security  for  costs, the amount  should  be  simultaneously specified  in the order of substitution and the  entitlement of  such applicant to be substituted should be made  subject to compliance with the condition of depositing the amount so specified. [35E-G]      4.  In the instant case, the respondents were  directed to deposit the security amount, in the same order permitting their substitution, and it was deposited the very next  day. In view of this circumstance, even though the order appealed against may not be said to be in strict compliance with  the requirements  of sub-section (3) of Section 112 of the  Act, the order is not interfered with. [35H; 36A, B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  112 (NCE) of 1992.                                                   33      From  the  Judgment  and Order dated  5.8.1991  of  the Bombay High Court in Application Nos. 1, 2, 3 and 4 of  1991 in Election Petition No. 24 of 1990.      P.P. Rao P.H. Parekh and Chetna Anand for the Appellant.      Goapl Subramanium and M.N. Shroff for the Respondents.      The Judgement of the Court was delivered by      OJHA, J. Special leave is granted.      This appeal has been preferred against the order  dated 5th  August, 1991 of the Bombay High Court on  miscellaneous applications made in Election Petition No. 24 of 1990.   The appellant   was  elected  to  the  Maharashtra   Legislative Assembly  from the Sadar Constituency.  One  Bhaurao  Ragoji Pati filed Election Petition NO. 24 of 1990 challenging  the said election.  He however, died on 4th June 1991.  He being the  sole petitioner the election petition  consequent  upon his death abated under sub-section (1) of Section 112 of the Representation of the People Act, 1951 (hereinafter referred to as the Act).  This fact was published as contemplated  by

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sub-section  (2) of Section 112 of the Act.  Upon  the  said publication  four  applications including one  each  by  the respondents  were made under sub-section (3) of Section  112 of  the Act for being substituted in place of  the  deceased petitioner.   The applications made by the respondents  were allowed by the order appealed against whereas the other  two applications were dismissed with certain observations.      The  appellant who was the successful candidate at  the election  has  in the present appeal  challenged  the  order substituting  the  respondents in the election  petition  in place of the deceased petitioner.  In support of this appeal Learned  counsel  for the appellant has urged  two  grounds. Firstly,  it has been submitted that a  direction  requiring the respondents to furnish security as contemplated by  sub- section  (3) of Section 112 as a condition precedent  should have  been given before ordering them to be substituted  and the  High  Court  committed an error  in  holding  that  the question  of  providing security would arise only  after  an order for substitution is made.  The second submission  made by learned counsel for the appellant is that even though the respondents have been required to forthwith deposit in Court towards  security a sum of Rs. 2,000 each, that part of  the order  has been made only after first directing them  to  be substituted in place of the original petitioner.   According to learned counsel the respondents could have been  directed to be substituted                                                   34 only  after  they  had  actually  deposited  the  amount  of security.   The  order appealed against having  been  passed according  to  learned counsel in breach  of  the  mandatory requirement of sub-section (3) of Section 112 of the Act  is liable to be set aside.      For  the  respondents on the other hand,  it  has  been urged  by their learned counsel that when four  applications had  been  made for substitution an order had  first  to  be passed indicating the names of the applicants who were to be substituted  and it is only such applicants who were  to  be substituted  could  thereafter be required  to  deposit  any amount as security.      In order to appreciate the respective submissions  made by  learned  counsel  for the parties,  sub-section  (3)  of Section  112  of  the Act may be reproduced.   It  reads  as hereunder :           "112(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  the security, shall be entitled to  be  so           substituted  and to continue the proceedings  upon           such  terms  as  the High  Court  may  deem  fit."           (Emphasis supplied)      Before  the  High Court it was urged on behalf  of  the appellant  that since the respondents had not deposited  any amount  as  security  for  the  costs  of  the  petition  as contemplated  by Section 117 of the Act  their  applications were  liable  to  dismissed.  It  is  while  repelling  this submission   that   the  High  Court  made   the   aforesaid observation namely, that the question of providing  security would  arise only after an order for substitution  is  made. The  High  Court, in our opinion, does not  appear  to  have committed  any error in holding that simultaneous deposit of any amount as security for costs at the time of presentation

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of the applications for substitution was not necessary.   On a  plain  reading  of Section 117  he  said  requirement  is applicable at "the time of presenting an election petition". An  application for substitution made under sub-section  (3) of  Section  112 consequent upon the death of  the  election petitioner  cannot be put at par to the presentation  of  an election petition.  It is to be noticed in this behalf  that sub-section  (3)  of  Section  112  does  not  contain   the requirement  of depositing any amount of security for  costs at the time of presenting the substitution application.   It permits a person who might                                                   35 himself have been a petitioner to apply to be substituted as petitioner  within  fourteen days of  the  publication  made under  sub-section  (2).  The  applicant,  however,  becomes entitled to be so substituted only upon compliance with  the conditions,  if  any, as to security.  In other  words,  the right  to apply to be substituted accrues on  fulfilment  of two conditions : (i) that the person making the  application should  be one who might himself have been a petitioner  and (ii)  that the application is made within fourteen  days  of the  publication made under sub-section (2) of Section  112. He,  however, becomes entitled to be substituted  only  upon compliance  with  the conditions, if any, as to  security  . The   applications  made  by  the  respondents  could   not, therefore,  be  dismissed on the ground that no  amount  was deposited  as security for costs at the time  of  presenting the  said  applications.  It is true that  the  observations referred  to  above  were  made  by  the  High  Court  while repelling the submission made on behalf of the appellant  on the  basis  of  Section 117 but to us it  appears  that  the observation as made is rather too wide.  Sub section (3)  of Section  112,  in  our  opinion,  contemplates  simultaneous application of mind by the High Court on the question as  to whether the applicant should be substituted or not and also on the question as to what amount of security for costs,  if any,  is to be deposited by the person who is to be  ordered to  be  substituted.  The observation that the  question  of providing  security  will  arise only  after  an  order  for substitution  is  made does not obviously conform  with  the requirement  of sub-section (3) of Section 112 of  the  Act. Unlike Section 117 of the Act sub-section (3) of Section 112 uses  the words "if any" between the words "upon  compliance with   the   conditions"  and  "as  to   security".    While considering, therefore, an application for substitution  the Court  has also to consider as to whether any deposit is  to be  made or not as security for costs and if  is to be  made what is the amount which has to be deposited.  If the  Court comes to the conclusion on the facts of a given case that no amount is to be deposited as security for costs an order  of substitution simpliciter would be sufficient.  The fact that no  deposit as security is to be made with  reason  therefor would,  however,  have to be simultaneously  stated  in  the order  of  substitution.  On the other hand,  if  the  Court comes to the conclusion that some amount has to be deposited by  the  applicants who are proposed to be  substituted,  as security  for  costs  the amount  should  be  simultaneously specified  in the order of substitution and the  entitlement of  such applicant to be substituted should be made  subject to compliance with the condition of depositing the amount so specified.  This, in our opinion, is the true import of sub- section (3) or Section 112 of the Act.      Coming  to  the facts of the instant case it  would  be seen  as noticed earlier that the respondents were  directed by  the  same order which permitted  their  substitution  "to

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forthwith deposit in Court towards security a sum of Rs.                                                   36 2,000  each, "We have been informed by learned  counsel  for the respondents that this condition was complied with by the respondents on the very next day of the passing of the order appealed  against.  In view of this circumstance, we are  of the opinion that even though the order appealed against  may not be said to be in strict compliance with the requirements of  sub-section (3) of Section 112 of the Act it is  not  a fit   case  for  interference  under  Article  136  of   the Constitution.      In view of the foregoing discussion, this appeal  fails and  is accordingly dismissed.  In the circumstances of  the case, however, the parties shall bear their own costs. G.N.                                      Appeal dismissed.                                                   37