Case Note & Summary
The petitioner, Somnath Zuvarkar, a defeated candidate in the election held on 2 June 2007, filed an election petition under Section 100(1)(d)(i) of the Representation of the People Act, 1951, challenging the election of the respondent, Atanasio Monseratte, on the ground that the respondent's nomination was improperly accepted as he was not a member of the United Goans Democratic Party (UGDP), which allegedly materially affected the election result. The trial proceeded slowly, and after both parties completed evidence, the petitioner changed his advocate and filed an amendment application, which was rejected by the High Court on 13 August 2009. A Special Leave Petition against that order was not entertained by the Supreme Court. Subsequently, the petitioner filed an application seeking withdrawal of the election petition, contending that the grounds made out were not adequate to make a case under applicable law and that it would be difficult to succeed. The respondent opposed the withdrawal, arguing that under Section 98 of the Act, at the conclusion of the trial, the High Court must either dismiss the petition or declare the election void, and that withdrawal after trial is not permissible under Section 109. The respondent also alleged ulterior motive to gain political advantage. The court examined Sections 98, 109, and 110 of the Act. It noted that Section 109 allows withdrawal only by leave of the court, and Section 110 provides the procedure. The court held that Section 98 applies only when the court is ready to pronounce its decision at the conclusion of the trial, and withdrawal can be sought before that stage. The court found that the petitioner's application was bona fide and not an abuse of process, as the petitioner genuinely believed his grounds were insufficient. The court allowed the withdrawal but imposed costs of Rs. 25,000 on the petitioner, payable to the respondent, to compensate for the ordeal of trial. The election petition was dismissed as withdrawn.
Headnote
A) Election Law - Withdrawal of Election Petition - Section 109, Representation of the People Act, 1951 - Leave of Court - The petitioner, a defeated candidate, sought withdrawal of his election petition after trial concluded, stating grounds were inadequate. The respondent opposed, arguing that Section 98 mandates dismissal or declaration of void at conclusion of trial. The court held that Section 109 permits withdrawal at any time before the decision is pronounced, and the court has discretion to grant leave. The withdrawal was allowed with costs of Rs. 25,000. (Paras 2-10) B) Election Law - Trial Conclusion - Section 98, Representation of the People Act, 1951 - Mandatory Decision - The court interpreted that Section 98 applies only after the trial is concluded and the court is ready to pronounce judgment. Withdrawal under Section 109 can be sought before that stage, and the court's discretion is not ousted by Section 98. (Paras 6-8)
Issue of Consideration
Whether an election petition can be withdrawn after the trial is concluded, and whether the court has discretion to grant leave under Section 109 of the Representation of the People Act, 1951 despite the mandatory language of Section 98.
Final Decision
The court allowed the application for withdrawal of the election petition, subject to payment of costs of Rs. 25,000 by the petitioner to the respondent. The election petition was dismissed as withdrawn.
Law Points
- Withdrawal of election petition
- Section 109 Representation of the People Act
- 1951
- Section 98 Representation of the People Act
- Leave of court
- Trial concluded
- Discretion of court
