Udai Lal Jain vs Bheem Raj Meena

R.R. Yadav, J.—Instant Election Petition is posted today for disposal of substitution application moved under Sub-section (3)of section 112 of the Representation of the People Act, 1951 (for short ''the Act of 1951''). The applicant-petitioner was granted ten days time on 15-10-98 to file rejoinder to the reply of the substitution application filed by the respondent opposing substitution application. In spite of time granted to file rejoinder, no rejoinder has been filed.

I have heard learned counsel appearing on behalf of the applicant-petitioner Mr. Govind Mathur and learned counsel Mr. Manish Singhvi appearing on behalf of the respondent.

Learned counsel for the respondent invited my attention towards objections raised in the reply, which are not controverted by the applicant-petitioner by filing rejoinder. It is urged by the learned counsel for the respondent that a bare perusal of Sub-section (3) of Section 112 of the Act of 1951 clearly shows that an application for substitution can be made within a period of fourteen days from the date of publication as envisaged under Sub-section (2) of the said Section. The application for substitution filed by applicant-petitioner Udai Lal Jain, nowhere disclosed that his application is filed within fourteen days of such publication as envisaged under Sub-section (2) of Section 12 of the said Act. In these circumstances, no cause of action accrued for filing the present substitution application. It is next contended that no certified copy of electoral roll has been filed by applicant-petitioner Udai Lal Jain in support of the fact that he is voter of Aspur Assembly Constituency of Rajasthan (136). It is condition precedent to establish that the applicant is a voter of Aspur Assembly Constituency (136) and in absence of such proof, the present substitution application of applicant-petitioner Udai Lal Jain is not maintainable. It is also argued by the learned counsel for the respondent that security for costs Rs. 2,000/- has not been deposited.

In reply, learned counsel for the petitioner stated, that security of costs of Rs. 2,000/- has already been deposited by the applicant Udai Lal Jain, It is urged by the learned counsel for the petitioner that substitution application cannot be dismissed on the ground that no security amount for costs has been deposited at the time of presenting the substitution application within the meaning of Sub-section (1) of Section 117 of the said Act. There is a substance in the argument of the learned counsel for the petitioner.

A close scrutiny of Sub-section (3) of Section 112 of the Act of 1951 clearly reveals that it does not contain any such requirement of depositing the security amount for costs at the time of presentation of the substitution application. I am of the view that even if security for costs is deposited later on after presenting the substitution application, it is to be treated valid deposit of security for costs as contemplated under Sub-section (3) of Section 112 of the said Act.

In the present case security for costs amounting to Rs. 2,000/- has already been deposited by the applicant-petitioner, therefore, his substitution application cannot be rejected on the ground of non-deposit of security for costs at the time of presentation of substitution application.

As regards entitlement of applicant-petitioner Udai Lal Jain to file the present substitution application he was required to establish that he is a voter of Aspur Assembly Constituency (136). This fact can be proved by producing a certified copy of the electoral roll of Assembly Constituency (136). In failure to do so, the applicant-petitioner is not entitled to move the present substitution application. The present substitution application moved by applicant-petitioner Udai Lal Jain, is liable to be rejected on the aforesaid ground without any further discussion.

The other ground raised by the learned counsel for the respondent regarding publication and moving of an application within a period of fourteen days from the date of publication postulated under Sub-section (2) of Section 112 of the said Act is left open for consideration in some other appropriate case.

This Court takes judicial notice of the fact that Election Commission of India has notified General Assembly Elections in the Slate of Rajasthan which is scheduled to take place on 25-11-1998. In such a situation the present Election Petition has outlived its utility and no useful purpose would be served to continue a futile election petition.

As a result of the aforesaid discussion, the substitution application moved by applicant-petitioner Udai Lal Jain is hereby rejected with a direction to the office of the Registry to refund the security amount of Rs. 2,000/- deposited by applicant-petitioner Udai Lal Jain within reasonable period.

In view of the aforesaid facts and circumstances, the present Election Petition stands abated.