NARAYAN YESHWANT NENE Vs. RAJARAM BALKRISHNA RAUT

JUDGEMENT

(1.) AN election was held in the Parliamentary Cons-tituency for Meeting a representative from the Kolaba District. One Rajaram Balkrishoa Rant was declared elected by the Election Commissioner. Thereafter. one Narayan Yeshwaut None (whom we shall hereafter refer to as "nene") applied to set aside the election on the ground that Rajaram Balkrishna Rait had been guilty of corrupt practices which had vitiated the election. That application was dismissed by the Tribunal constituted under the Representation of the People Act, 1951. Against the order passed by that Tribunal, an appeal was preferred to this Couer under Section 116a of the Act. That appeal teas placed for hearing before Mr. Justice S. T. Desai and Mr. Justice Miabhoy on 17-6-1958. It appears Irons the judgment recorded that alter ar-gumenths were heard by the Court on the merits of the dispute, a suggestion was thrown out by the Court that the petition for setting aside the election he abandoned in the larger interest of the public. The learned advocates who appeared on behalf of Nene and Raut after considering the suggestion informed the Court that the appeal need not be proceeded with. Thereafter, Mr. R, B. Kotwa], who appeared on behalf of None, stated that his client desired to withdraw the petition and the appeal may be allowed to be withdrawn. Mr. Sule, who appeared on behalf of Raut, stated that his client has no objection in the Petition and the appeal he-ing permitted to be withdrawn. The Court then proceeded to pass the final order as follows:

(2.) ON 4-8-1958 one Jagannath Bhau Patil, who is the petitioner in this application has applied for being substituted as an appellant and for prosecuting the appeal. He contended that the proceeding for setting aside an election on the ground of corrupt practices is not merely a proceeding in which the two parties before the Court are concerned, but it is a dispute in which the entire electorate is concerned, and, having regard to the provisions of Section 110 of the Representation of the People Act, 1951, read with Section 116a of the Act, the appeal could not have been permitted to be withdrawn by the Court which heard the appeal. It is urged that the order allowing withdrawal of the appeal was without jurisdiction, when it was not followed by the publication of a notice of withdrawal of the appeal, and, therefore, the applicant he permitted to be substituted for the original appellant and to prosecute the appeal. When rule was issued the Court requested the Advocate General to appear and assist the Court as amicus curiae. This application is now placed before us for hearing and the learned Advocate General has appeared before us.

(3.) SECTION 110 of the Represent at ion of the People Act. 1951, provides by the first Sub-section that if there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the Petitioners. By Sub-section (2), it is provided that no application for withdrawal shall be granted if in the opinion of the Election Commission or of the Tri-bunai, as the case may be, such application has been induced by any bargain or consideration which ought not to be allowed. By Sub-section (3), it is provided that if the application is granted, an order as to costs shall be passed; and the notice of withdrawal shall be published in the Official Gazette by the Election Commission or by the Tribunal, as the case m;iy be; and a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions of Section 117 as to security, shall be entitled to he so substituted and to continue the proceeding upon such terms as the Tribunal may think fit. It is evident from Section 110 of the Representation of the People Act thai an application for withdrawal which is not bona fide may not be allowed by the Tribunal or the Election Commission, and, even if the application is granted, any person who was entitled to present the petition, may upon such terms, as the Tribunal imposes, continue the proceeding. This provision sufficiently indicates that a proceeding for setting aside an election is one in which the entire electorate is interested, and may not be abandoned without due notice to the voters. That is further made clear by Sections 112 to 115, whereby any person, who might himself have been a petitioner, is permitted to come on the record and to prosecute the petition of a person dying before its disposal. By Section 116, an election proceeding may be continued even after the death of the original respondent against a substituted respondent. There can be no doubt therefore, that once a proceeding under the Representation of the People Act has readied the Election Commission or the Tribunal, those authorities must hear and dispose it of on its merits,