D.P.GUPTA, J. - (1.) THE petitioner Loombaram, by his application dated Feb. 13, 1979 has submitted that tinder the provisions of Section 112 of the Representation of the People Act, 1951, (hereinafter referred to as 'the Act') Ramjiwan, who had also applied to be substituted as a petitioner in the above mentioned election -petition in place of the deceased petitioner Umed Ram, should also be substituted as a petitioner on such terms and conditions as to security or otherwise as this Court may deem proper. The allegation of the petitioner Loombaram is that Ramjiwan 'appears to be in hand and glove with the respondent Shri, Ramnarain' and although he was not interested in being substituted as a petitioner in place of late Shri Omedram, yet he filed an application for substitution merely in order to delay the proceedings in this election petition. The aforesaid allegation may co may riot be correct, yet the question Which requires consideration is, as to whether all the persons, who apply for being substituted, as petitioners under Sub -section (3) of Section 112 of the Act, should necessarily be brought on the record, of course, subject to the Imposition of conditions regarding payment of security or otherwise, or it is discretionary with the Court to substitute person such or come of the applicants for substitution as the Court may consider proper?
(2.) WHILE deciding the, application for substitution by my order dated January 12, 1979, I came to the conclusion that the application for substitution submitted by Loombaram on August. 17, 1978 and by Ramjiwan on August 19, 1978 were within time and both of them were electors of the Bilara Assembly Constituency and as such were qualified td be substituted as petitioners in place of late Umedram. But I directed that Loombaram should be substituted as the petitioner considering the fact that he was real brother of the original petitioner; late Shri Umedram and had taken interest in the proceedings for substitution. The application of Ramjiwan was rejected on the ground that he had not taken any interest in the proceedings relating to the substitution of the petitioner and as such he did not appeal to be a serious contender for being substituted as a petitioner in, the election petition. In these circumstances, a further question will also emerge for consideration as to whether the part of the order dated January 12, 1979 rejecting the application of Ramjiwan for substitution as a petitioner in the election petition can be recalled by this Court? Mr. L.R. Mehta learned Counsel for the petitioner Loombaram argued that this Court has no discretion in the matter of substitution of a person as a petitioner under Sub -section (3) of Section 112 of the Act, if it is found that such person was duly qualified to file an election petition in the matter himself and if he has applied for substitution within the period prescribed, after the publication of the notice of abatement of the election petition under Sub -section (2) of Section 112 of the Act, Mr. K.N. Joshi appearing for Ramjiwan strongly supported the submission of Mr. Mehta and argued that the provisions of Sub -section (3) of Section, 112 are mandatory and that Ramjiwan was entitled to be substituted as a petitioner, as he might have himself been a petitioner in the election petition, as originally 'instituted and he had applied for substitution within the prescribed period of 14 days from the date of publication of the notice of abatement of the election petition. On the other hand, Mr. Singhvi learned Counsel tot the respondent, argued that if there were numerous applicants for being substituted as petitioners, in place of the deceased petitioner,' the Court has a judicial discretion to exercise and decide as to who amongst the various applicants should be allowed to be brought on record as petitioner in the election petition. Sub -section (3) of Section 112 of the Act, which is relevant for the present purpose, reads as; under, - 112(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. It may be pointed out that similar provisions for substitution have bee a provided in Clause (c) of Sub -section (3) of Section 110 in case the petitioners are allowed to withdraw from the election petition and also under Section 116 of the Act, on the death of the respondent in the election petition. The purpose of making these provisions, for giving public notice of withdrawal or of abatement of the election petition on the death of the sole petitioner or the survivor of the several petitioners or on the death of the sole respondent or the contesting respondent is that they have been incorporated in the Act because an election petition, once filed, is a matter which concerns the entire Constituency and as such, a petitioner may not unilaterally be allowed to withdraw the petition without giving notice of withdrawal in the Constituency, to which the petition relates, nor can such an election petition be allowed to be dismissed by abatement on account of the several petitioners or the survivor of the several petitioners of the death of the sole or contesting respondent, nor can it be allowed to proceed expsrte on account of the death of the sole respondent or the sole contesting respondent, unless public notice of such abatement is issued and any person, who might have been a petitioner in respect of the election petition, can apply to be substituted as a petitioner on the death of the sole petitioner or the survivor of several petitioners or as a respondent on the death of the sole respondent or the contesting respondent. The provisions for substitution have been considered by Bhagwati, J. Inamati Millappa Bassappa v. Desai Basavraj Ayyappa and Ors. XLI ELR 296 and the legal position has succinctly summarised by his lordship as under, - The above provisions go to show that an election petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a petitioner is entitled be substituted, on the fulfilment of the requisite conditions and upon such terms as the Tribunal may think fit, in place of the party withdrawing and even the death of the sole petitioner or of the survivor of several petitioners does not put an end to the proceedings but they can be continued by any person who might himself have been a petitioner. Even if the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is another respondent who is opposing the petition a similar situation arises and the opposition to the petition can be continued by any person who might have been a petitioner, of course on the fulfilment of the conditions prescribed in Section 116. These provisions therefore show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner. Thus, an election petition once filed cannot be dropped merely because of the intention of the existing petitioners to withdraw or on account of the death of the sole petitioner or the survivor of the several petitioners or even on the death of the sole respondent or the sole contesting respondent, if there is a person ready and willing to be substituted as petitioner or respondent who might have himself filed an election petition. Even the resignation of a returned candidate from his seat does not cause the petition to abate nor the subsequent death of the petitioner, whose nomination paper was alleged to be improperly rejected nor his subsequent election to the upper House could effect the maintainability of the petition.
(3.) SO far, there is no controversy between the learned Counsel for the patties that the election contest cannot be allowed to become in fructuous so long as there is a person available who might himself have been the petitioner in the original election petition, provided he applies within the period of fourteen days from the publication of the notice of withdrawal or abatement or upon the death of the sole respondent or contesting respondent. The election contest, therefore, widely differs from an ordinary civil litigation, as it cannot to withdrawn as a result of compromise or collusion between the parties or by abatement on the death of the sole petitioner or a sole surviving petitioner or the sole respondent or a sole contesting respondent, as the entire Constituency may have an interest in either maintaining the status quo or in case the election of the returned candidate is set aside, in setting up some other deserving candidate. It has been observed by their Lordships of the Supreme Court that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding, unknown to the common law and not only the candidate who took part in the election may be interested in the election petition, but the voters of the Constituency are substantially interested in it, because, an election petition is an essential part of the democratic process. Thus, the election petition is not a suit between two persons or parties but it is a proceeding in which the Constituency itself is the principal interested party and a petitioner cannot withdraw or abandon a part of his claim on analogy of Order XXIII VI, CPC no it can abate on the death of the sole petitioner or the sole surviving petitioner or the sole respondent or the contesting respondent in case a person who [might himself have been a petitioner, is ready and willing to be substituted as a petitioner or respondent, as the case may be.;