Syed Shahabuddin v. M. J. Akbar — 1990 DIGILAW 34 (PAT)

Judgment S. C. Mookherji, J. 1. This is a petition under Sec.80-A and 81 read with Sec.100 (l) (c) of the Representation of the Peoples Act, 1951 (hereinafter referred to as the Act only) by the petitioner Syed Shahabuddin calling in question the election of M. J. Akbar to the Lok Sabha from 23-Kishanganj parliamentary constituency in the general election held in November, 1989 on the ground that the petitioners nomination paper was improperly rejected by the Returning Officer. 2. It appears that the Election petition was presented before the office on 11th December 1989 and subsequently, filed before the Registrar of the court on 18th December 1989. The maintainability of the petition has been questioned, question is whether the Election has been legally and properly presented before the High Court in accordance with Sections 80 and 81 of the Act. 3. The learned Counsel for the petitioner has submitted that since no judge was assigned by the Hon ble the Chief Justice to exercise the jurisdiction of the High Court to hear and dispose of the Election petition arising out of the General election of the Lok Sabha (Parliament) held in the year 1989 till the date of the filing of the Election petition, the same was filed before the Registrar of the Court under Chapter III of the Patna High Court rules (hereinafter to be referred to as the Rules), who in absence of the judge was competent to receive the petition. 4. Section 81 of the Act deals with the presentation of the petition which runs as follows : "an Election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (i) of Sec.100 and Sec.100 (1) to the High Court by any candidate at any such election or any election within 45 days from, not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. . . . . . " It is thus, obvious that the presentation of petition should be before the High court. . . . . . " It is thus, obvious that the presentation of petition should be before the High court. 5 The constitution of "high Court" has been defined in Article 216 of the Constitution of India which states that "every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint". This clearly indicates that the "high Court" does not include the Registrar, who is at best an officer of the court. 6. Chapter XXI-E of the Patna High Court Rules, which has been framed in conformity with the Act, lays down the Rules for the disposal of election Petitions filed under Sec.81 of the Act i. e. the presentation of petitions. Under Rule l (c) "the Court" shall mean the High Court of judicature at Patna and under l (d) "the Judge" shall mean the Judge or judges of High Court, who, from time to time, have been assigned by the chief Justice under sub-section (2) of Sec.18-A of the Representation of poples Act, 1951 for exercising the jurisdiction of the High Court under subsection (1) of Sec.80-A of the Act. 7. Rule 6 of Chapter XXI-F provides the forum for presentation of the election petition by any candidate at such election or any elector, which runs as follows : "subject always to the order of the Judge, before a formal presentation of the Election Petition is made to the Judge in open Court, it shall be presented to the Stamp Reporter of the Court, who shall certify thereon if it is in time and in conformity with the requirements of the Act and the Rules in this behalf, or is defective and shall thereafter return the petition to the petitioner for making the formal presentation after removing the defects, if any:] provided that if on any Court day Judge is not available on account of temporary absence or otherwise, the petition may be presented before the Bench hearing civil application and motions. " As stated above, the present Election petition was presented before the office/stamp reporter on 11th December 1989 and subsequently, filed before the registrar of the Court on 18th December, 1989. " As stated above, the present Election petition was presented before the office/stamp reporter on 11th December 1989 and subsequently, filed before the registrar of the Court on 18th December, 1989. It is true that no Judge was assigned by Hon ble the Chief Justice to exercise the jurisdiction of the high Court to hear and dispose of the Election petition arising out of the general Election of the Lok Sabha (Parliament) held in the year 1989 on or before the filing of the present petition. In the daily list of the High Court dated 8th of January, 1990 it was notified that Hon ble the Chief Justice assigned this Court to exercise the jurisdiction of the High Court, but on the date of filing the petition, i. e. on 18th December, 1989, the Bench bearing civil applications and motions was available. The Election petition was not presented before that Bench in absence of the Judge and that having not been done, the petition must be held to have not been filed before the appropriate forum as provided under Sec.81 of the Act and Rule 6 of Chapter XXI-E of the High Court Rules. That being the position, filing of the petition before the Registrar of the Court cannot be treated to be a valid one. The petitioner in the circumstances, cannot resort to the provisions of Chapter III of the High Court Rules to be the appropriate forum to file the petition. 8 The result is, that there was no proper presentation of the petition in the eye of law and accordingly, the present Election petition must be held to be not maintainable. I need not consider the other objections raised by the office, in view of my finding that the Election petition has not been properly presented. Petition dismissed.