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2001 DIGILAW 334 (GAU)

Abu Saleh Najmuddin v. L. Pangchu

2001-12-21

P.G.AGARWAL

body2001
P.G. AGARWAL, J. — Heard Mr. N.M. Lahiri, learned senior counsel for the respondent and Mr. A.M. Mazumdar, learned senior counsel for the petitioner. 2. In the last general Election held on 10.5.2001, Sri Jamal Uddin Ahmed, hereinafter referred as ‘respondent’ for the convenience, was declared elected to the Assam Legislative Assembly from No. 5, Badarpur Legislative Assembly Constituency. The said election was challenged by the Abu Saleh Najmuddin, the Election Petitioner, hereinafter referred to as the ‘petitioner’, in Election Petition No. 16 of 2001. The said Election Petition was assigned to this Court by Hon’ble Chief Justice u/s 80A(2) of the Representation of the People Act for short the ‘Act’. 3. The respondents had filed Misc. Case No. 26 of 2001 praying for dismissal of the Election Petition u/s 86(1) of the Act mainly on the plea that the Election Petition was not filed in a proper manner and as such, it is not maintainable under the law. 4. Sri Lahiri, learned senior counsel has submitted that the Election Petition was filed before the Stamp Reporter of this Court and it was not presented before the High Court as required under the Act. The case of the respondent is that filing of Election Petition before the Stamp Reporter does not satisfy the requirement of Section 81 of the Act. Moreover, the last date of filing Election Petition was 27.6.2001, but the Stamp Reporter applied his mind to the petition and a note was put up on 3.7.2001 only and as such, petition is barred under the law. 5. The case of the petitioner is that the Election Petition was presented in person before the Stamp Reporter-cum-Commissioner of Affidavit on 26.6.2001 i.e. well within the period of limitation. Petitioner has also referred to Chapter VIII-A of the Gauhati High Court Rules and the relevant portion of which reads as follows : "An Election Petition under S. 80-A of the . Representation of the Peoples Act may be presented duly verified in the form prescribed under Ss. 82 and 83 of the said Act, before the Stamp Reporter of this Court with a Court fee of Rs.6 affixed thereon, within 45 days from the date of election of the returned candidate, or if there are more than otte returned candidate at the election and the elates of their election are different, the latter of those two dates." 6. Sri Lahiri, learned Senior Advocates for the respondents has submitted that the High Court has got no power to frame rules in the matter of Election Petition as the Act does not provide for such Rule making power to the High Court. In support of his submission, the learned counsel has referred to the decision of the Patna High Court in the case ofSayeed Sahabuddin -Vs- M.G. Akbar, 1991 (2) BLH 326. The respondent has also placed reliance on the decision of Madhya Pradesh High Court in the case ofRaman Lal - Vs- Shib Pratap, 1978, Indian Law Report, page 569. 7. The matter need not be detained us any longer as because this Court in the case of Abdul Jabbar -Vs- Syeda Anwara TaimurandOrs., (1986) 1 GLR, 257 held as follows : "The High Court has power to frame Rules as provided under Article 225 of the Constitution. Section 117 also provided that the costs and security for costs of the petition are to be deposited in accordance with the Rules of the High Court. The High Court has framed the Rules under Article 225 and/or other provisions enabling in this behalf prescribing procedure for presentation of an Election Petition filed under Section 80A. In the Rules it has been provided that an Election Petition may be presented to the Stamp Reporter. These Rules are not framed under any provision of the Act. The Rule is not inconsistent with the provisions in Section 81 as the Section 81 has not provided the "instrumentality" to whom an Election Petition is to be presented under Section 81. Section 81 also does not provide or specify that the petition shall be presented to the Chief Justice or a Judge of the High Court. In M. Karunanidhi (supra) (1983) 1 SCC 473 AIR 1983 SC 558 , the Supreme Court observed: "There are different sets of rules framed by different High Courts under Article 225 of the Constitution regulating the practice and procedure to be observed in all the matters coming before the High Court in exercise of its jurisdiction under Section 80A of the Act." Although the above observation of the Supreme Court, does not relate to the proposition which is under consideration in the present case, it has its own value and it reinforces the above view of mine. The High Court is a legal entity. The High Court is a legal entity. It consists of not only the Chief Justice and other Judges but also officers of various departments. When the Stamp Reporter receives the Election Petition or the Election Petition is presented to the stamp Reporter he does not do it as a delegate of the High Court. The Stamp Reporter is a limb of the High Court and not a delegate as the stamp Reporter is entrusted to perform his duties under the rules. By framing the Rules, the High Court has not parted itself with the power to act under the Act. The Chief Justice is the Head of the body. The Judges and other officers are limbs or parties of the body (High Court). It is therefore concluded that the said Rules are not inconsistent with the Article 328 (b) and the provisions of Section 81 or any other provisions of the Act. For the foregoing the reasons contentions of the respondent 1 that the Rule of this High Court prescribing for presentation of an Election Petition to the Stamp Reporter is in violation of Article 329(b) and Section 80,80A and 81 and that the petition is to be presented to the Chief Justice or a Judge of the High Court must fail. As such, issues 1,2 and 3 are decided in favour of the petition. However, it is made clear that this decision relates only to the part of the rule prescribing for presentation of an Election Petition to the Stamp Reporter, and not other parts of the Rules. The counsel also has not assailed the other parts of the Rules although some parts of the rules have not been happily worded". 8. The decision in Abdul Jabbar (supra) was endorsed by this Court again in the case of Melhapra -Vs- Vamizo (1990) 1 GLR 290 and in the case of Sri Saingura -Vs- Shri F. Sapa, (1990) 2 GLR (NOC) 48, this Court held that an Election Petition need not be presented to the Chief Justice or the Judge, but can be presented to any other officer of the High Court specified in the rules or authorised on their behalf. 9. 9. The Allahabad High Court has also taken similar view in the case of Nawab Khan -Vs- Vishwanath Shastri, AIR 1993 Allahabad, 104, it was held as follows : "In the case in hand, a conjoint reading of Article 329(b) of the Constitution, Section 80 and Section 81 of the Act clearly points out that Election Petitions presented to the High Court have to be tried thereby. When power to hold trial has been conferred #n the High Court power to make regulatory, provisions is incidental to that power and, therefore* apart from Article 325, the power to make rules under Chapter XV-A for regulating Election Petitions can be found to exist under Article 329(b) of the constitution itself and under the relevant, statutory provisions." Reiterating the decision of this Court in the above referred decisions it is held that the High Court has the power to make rules, lay down the procedure in the matter of presentation of Election Petition and disposal of the same provided that rules are not inconsistent with the Act. In the present case, no fault could be found with the presentation of the Election Petition before the Stamp Reporter. 10."The learned counsel for the petitioner has further submitted that there is discrepancy in the Office note and: in the affidavit filed by the petitioner The relevant portion of the office note reads as follows: "Petitioner has presented:an Election Petition U/S.80, 80A, 81 and 100 of the Representation of the People Act, 1951, before this Court personally on 27.6.2001 calling in question me Election of Respondent No.2 of No. 5 Badarpur Legislative Assembly, Constituency of the State of Assam with the prayer for declaring and holding that the Election of Respondent No, 2 is void. The petition is in time and also in form as per report of the Stamp Reporter at reverse side of page 1 of the petition. The matter is placed before the Hon’ble the Chief Justice (Actg.) foe favour of his Lordship’s order for assigning on Hon’ble Judge of this Court to hear the Election Petition as required under Rule 2 Chapter-VIII(A) of the High Court Rules." In para 4 of the affidavit filed by the petitioner; it is stated that the Election Petitioner presented the Election Petition is person before the Stamp Reporter-cum-Commissioner of Affidavit of this Hon’ble High Court on 26.6.2001. It is* therefore, submitted that either the note given by this Registry regarding the presentation of petition on 27.6.2001 or the assertion of the petitioner are not correct. On perusal of the Election Petition, it is seen that the affidavit was sworn by the Election Petitioner on 26.5.2001 before the Commissioner of Affidavit and there is note/endorsement to that effect by the Commissioner of Affidavit giving the date of 26.6.2001, I, therefore, find that there is no discrepancy in the office note and the affidavit sworn by the petitioner. 11. The learned counsel for the respondents; has further submitted that the Stamp Reporter applied his mind to the Election Petition subsequently to 27.6.2001 and a report of the Stamp Reporter vide dated 3.7.2001. It is, therefore, submitted that the Election Petition should be deemed to have been filed 3.7.2001 and held on 27.6.2001. The requirement of law is that the Election Petition is to be presented within 45 days. There is no requirement that it is to be processed within 45 days. Moreover, once the Election Petition is presented properly within time frame; the Election Petitioner has got nothing else to :do with the processing of the said Election Petition, as it is the duty of the Officers of the Court only, over which Election Petitioner has got no control. Hence, for inaction on the part of the Officers of the Court, petitioner cannot be blamed. Moreover, Stamp Reporter cannot be given such wide power to defeat the right of the Election Petitioner to challenges the Election Petition. At this stage, I would like to re-capitulate the earlier observation of this Court in the case of Shri Saingura (supra;), which are as follows "I am not, prepared to hold that simply because a petition before the Court happens to be an Election Petition, the procedural, requirement should be construed in a mechanical or pedantic manner without any regard to the object sought to be achieved thereby. The law does not require the Court, while dealing with an Election Petition, to construe the pleading in such a hypertechnical manner and to make a microscopic examination thereof with a view to finding out a slip here or a deviation there which may be used as a ground for the rejection of the petition in limine in the name of maintaining to democratic process or the purity of election. In my opinion, the procedural requirement in an election case also should be construed in the same manner as in case under the C.P.C. The approach of the Court should not be reject the Election Petition, in limine, on every possible pretext of non-compliance to with one or more of the procedural requirements unless the law itself, in clear terms, mandates it to do so. It should be remembered that every procedural requirement is intended to serve a particular purpose and to hold the Court in the administration of justice. The object of the various procedural requirements in election law is to provide machinery by means of which the Court may dispense justice in election disputes. These are merely a part of the adjective law dealing with the procedure alone and must be construed only in a manner which is consistent with the object sought to be achieved. These are intended to advance the course of justice not to obstruct or retard the course of justice. It must be remembered that the well settled principle is that as far as possible no proceeding in a Court of law should be allowed to be defeated on mere technicalities.” 12. In view of the above, it is held that the Election Petition was presented properly by the candidate himself within the period of limitation and as such, no case for summary dismissal of the same is made out. Misc. Case stands dismissed.