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2002 DIGILAW 366 (GAU)

Utpal Dutta v. Indra Gogoi

2002-08-29

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J.— The maintainability of the Election Petition No. 7/2001 presented by the opposite party/election petitioner has been challenged in this misc. application by the applicant/respondent who has been declared elected as the member of the Assam Legislative Assembly from No. Ill Lakhimpur Legislative Assembly in the last General Assembly Election held on 10.5.01. In the election petition, the election petitioner who was a candidate from Indian National Congress Party in the said election, has sought for a declaration of the election of the applicant/respondent belonging to Asom Gana Parishad party to be void on the ground of corrupt practice. 2. The following are the two issues raised questioning the maintainability of the election petition. (1) Whether Rule 1 of Chapter VIII-A of the Gauhati High Court Rules (for short "the Rules") particularly insofar as it relates to presentation of election petition before Stamp Reporter, is unauthorised, without jurisdiction and ultra vires Article 329(B) of the Constitution of India as well as Sections 80, 80-A and 81 of the Representation of the People Act, 1951 (for short, the 'Act'). (2) Whether presentation of election petition before Stamp Reporter is in sufficient compliance of Section 80,80-A and 81 of the Act. 3. Heard Mr N. Choudhury, the learned counsel for the applicant/respondent, the returned candidate and Mr S.S. Dey, the learned counsel appearing on behalf of the election petitioner/opposite party. 4. Since the questions involved relate to the vires of the Rules, also heard Mr A.K. Phukan, the learned Advocate General, Assam who has been requested by this Court vide order dated 7.2.2002 to Assist this Court in deciding the aforesaid questions of law. 5. The key point set in motion for adjudication herein primarily centres round the interpretation of Sections 80, 80 A and 81 of the Act read with Articles 329(b) of the Constitution of India. 6. Before delving upon the rival contentions of the parties at length and deducing discreetly the legal position on the anvil of juridical dissection in order to arrive at the final outcome in the case in hand, it would be apt and expedient to have a close look on those provisions of law noted above along with other relevant provisions of law to be referred and relied herein. 7. 7. Article 329(b) of the Constitution beginning with a non-obstante clause provides that "notwithstanding anything in this Constitution" no election to either House of Parliament or to the House or either house of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. By virtue of Entry 72 in List-1 of the Seventh Schedule read with Articles 246(1) and 327 of the Constitution, Parliament is the appropriate Legislature to designate the authority that .shall adjudicate election petition. 1Therefore the power to specify an authority /or the presentation of an election petition and the manner in which such an election petition is to be presented is vested solely with the Parliament, being the appropriate Legislature. Accordingly Parliament enacted the Act as a special statute law providing for the manner in which an election petition is to be presented, tried and decided. 8. Section 80 of the\Act envisages that no election shall be called in question except by an election petition presented in accordance with the previsions of this Part, i.e. Part-VI of the Act. Section 80-A provides that the Court having jurisdiction to try an election petition shall be the High Court. Such jurisdiction of the High Court is to be exercised ordinarily by a Single Judge of the High Court and the Chief Justice shall Assign one or more Judges for that purpose. So the High Court is designated as 'such authority' to try an election petition in terms of Article 329(b) of the Constitution. 9. According to the mandate of Section 81, an election petition may be presented on one or more of the grounds specified in Sections K)O(l) and 101 to the High Court by any candidate of such election or any elector within forty-five days from the date of election of the returned candidate. Again Section 86 clearly enshrines that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81 or 82 or 117. Section 117 deals with security for costs and under this provision the High Court has been given power to make Rules for the limited purpose of fixation of the quantum of security deposit. Section 117 deals with security for costs and under this provision the High Court has been given power to make Rules for the limited purpose of fixation of the quantum of security deposit. The power to make Rules has been vested upon the Central Government by Section 169(1) which speaks that the Central Government may, after consulting the Election Commission, by notification in the official Gazette, make Rules for carrying out the purposes of the Act. Section 169(2) enumerates the matters for which the Rules may be framed but does not provide the matter relating to presentation of election petition. The Conduct of Election Rules, 1961 has been framed under Section 169 but the same also does not prescribe any manner for presentation of an election petition to the High Court. Therefore it is seen that besides Sections 117 and 169, there is no other enabling provision within the Act for the purpose of making Rules for the trial of election case. 10. On the other hand Article 225 of the Constitution states that the jurisdiction of any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court including any power to make Rules of Court shall be the same as immediately before the commencement of the Constitution while according to Article 215, the High Court shall be a Court of record having all the powers of such a Court. A combined reading of these two Constitutional provisions, undoubtedly goes to spell out that the High Court shall have the unrestricted power to frame Rules. But the point that requires consideration is whether such power is available to the High Court, being the authority designated to try an election petition under this Special Act, to make Rules to regulate the presentation of the election petition as provided in Section 81(1) of the Act. 11. Reference to Section 129 of the Code of Civil Procedure is also relevant in the context of the present case. It provides for Rule making power of the High Court to regulate its own procedure in the exercise of its original civil jurisdiction. 12. Addressing both the questions, being inter-related, Mr Choudhury, has forcefully argued that the High Court has no power to frame its own Rules in relation to election matter more particularly as regards the presentation of the election petition. 12. Addressing both the questions, being inter-related, Mr Choudhury, has forcefully argued that the High Court has no power to frame its own Rules in relation to election matter more particularly as regards the presentation of the election petition. Referring to Rule 1 of Chapter VIII A of the Rules, it is argued that the same has been framed under Section 80A of the Act but surprisingly Section 80-A does not provide any Rule making power. Attention of this Court has been drawn to the relevant provision of the said Rules with its publication in Official Gazette wherein it shows that Rule in question was framed under Section 80A. The relevant provision of the Rules is extracted as under.- "The Assam Gazette, Mar, 22,1967 Part ll (B) Orders, Notification and Rules of the High Court of Assam. In the High Court of Assam and Nagaland at Guwahati. The 8th March, 1967 No. HC.XI-4/65/1626-R.C. In suppression of all previous Rules, the High Court of Assam and Nagaland has been pleased to make the following Rules for election petitions filed in this Court under Section 80A of the Representation of the People Act 1951 as amended up to date which will take immediate effect. Correction Slip No. 35 of the Assam High Court Rules page 73. The existing Rules under Chapter VIII A as inserted by Correction Slip No. 13 of the High Court Rules are deleted and the following new Rules inserted:- Chapter VIIIA Special provisions relating to procedure in election petitions under the Representation of the Peoples Act, 1951 as amended by Act No. XL VII of 1966. 1. An election petition under Section 80A of the Representation of the People Act may be presented duly verified in the form prescribed under Section 82 and 83 of the said Act before the Stamp Reporter of this Court with a Court Fee of Rs.6.00 affixed thereon within 45 days from 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...." 13. It is seen that Chapter VIIIA of the Rules having been framed under Section 80A of the Act, was incorporated on 8.3.67 by Correction Slip No. 35 into the Rules and the same was published on official Gazette on 22.3.67. It is seen that Chapter VIIIA of the Rules having been framed under Section 80A of the Act, was incorporated on 8.3.67 by Correction Slip No. 35 into the Rules and the same was published on official Gazette on 22.3.67. But a bare reading of Section 80A reveals that no Rule making power has been conferred upon the High Court under this special provision of law to make Rule for presentation of the election petition. 14. Mr Choudhury has further contended that the instant election petition has not been presented before this High Court in accordance with the provisions of Section 81(1) but the same was presented by the petitioner to the Stamp Reporter who is a member of Clause II(C) Grade of the High Court Service and the said presentation of election petition before the Stamp Reporter is no presentation in the eye of law. According to him, a combined reading of Section 80,80-A and 81 of the Act shows that the election petition has to be presented by the candidate personally before the High Court which means that the same must be presented before the Hon'ble Chief Justice or any other Judges of the High Court so assigned by the Hon'ble Chief Justice. Therefore, the presentation of the election petition to the Stamp Reporter under Rule 1 of Chapter VIII-A of the Rules is not a lawful compliance of the provision of Section 81(1) of the Act and the same deserves dismissal under Section 86 of the Act. 15. According to him while Article 329(b) of the Constitution explicitly embodies that the election petition must be presented to such authority and in such manner under any law made by the appropriate Legislature i.e. Parliament but no procedure for such presentation of an election petition has been prescribed by the Parliament in the Act itself. Therefore a bare scanning of Section 80-A of the Act clearly projects 'such authority' as the High Court only. Prior to amendment of the Act in the year 1966 (Act 47 of 1966), the jurisdiction to try the election petition was vested upon the Election Commission and by the then Section 81 sub-clause 2 of the Act there was a deeming provision that the presentation of the election petition to the Secretary of the Commission, would be deemed to have been presented to the Election Commission. But after amendment, Section 81 of the Act has been amended by inserting the word 'High Court' replacing 'Election Commission'. It is stated that Article 216 of the Constitution stipulates 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. His submission is that as the High Court is comprised of the Chief Justice and other judges and when an election petition is required to be tried only by a Single Judge of the High Court on assignment by the Chief Justice, the election petition must be presented by the election petitioner personally before the High Court that is before the Chief Justice or any other Judges assigned for such purpose by the Chief Justice. It is contended that the Hon'ble the Chief Justice being the repository of the power to assign and also being a Single Judge by himself, shall be the High Court for the purpose of Section 80-A and 81 of the Act, but as soon as His Lordship assigns any other Single Judge, he shall cease to be so. Unless there is one or more permanent Judges for election matters like Company matter, the Chief Justice himself shall act as the High Court whenever necessary. 16, His further contention is that the presentation of election petition is itself being a judicial function and the High Court being such authority, the Stamp Reporter neither can be equated with the High Court nor can be authorised to discharge the judicial function. It is pleaded that when the High Court has been designated as only the authority under the Act for presentation of the election petition, no such power as regard presentation of election petition can be delegated to any other authority like Stamp Reporter by the High Court itself. In an effort to drive home this point on power of delegation, Mr Choudhury has relied on the following passage of S.A. De Smith in his Judicial Review of Administrative Action (Fourth Edition page 298): "It is well known principle of law that when power has been confined to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another. Special Tribunals and public bodies exercising functions broadly analogous to judicial are also precluded from delegating their powers of decision unless there is expressly authority to that effect..." 17. In view of the above observation of S.A. De Smith, the learned counsel has forcefully stated that the High Court, having been entrusted with the jurisdiction to try and decide the election petition, in absence of any express power of delegation, has no power to make Rule 1 in Chapter VIII A of the Rules providing for presentation of the election petition before the Stamp Reporter. Referring to Section 117 and 169 of the Act, as already noticed above, Mr Choudhury has argued that since those provisions also do not prescribe any manner for presenting an election petition to the High Court and in absence of any other enabling provision in the Act, the High Court cannot be called upon to prescribe the manner of presentation of the election petition. To buttress the argument the learned counsel has cited the relevant portion of the Apex Court's decision in paragraph 18 of Satya Narain-Vs-Dhuja Ram and Ors. reported in AIR 1974 SC 1185 which reads as follows:- "We may only add here that, in the absence of any provision under the Act or the Rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. It may be noted that Sec. 169 of the Act provides that the Central Government is the authority to make Rules after consulting the Election Commission and in sub-section (3) thereof the Rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in Section 117 of the Act." Accordingly it is stated that no power has been given to High Court to make Rules for such purpose and as such the Rule in question is liable to be held as unauthorised, without jurisdiction and violative of Section 80,80-A and 81 of the Act. 18. 18. At this stage, an attempt to substantiate his contention to the effect that the election petition needs to be presented either to the Hon'ble the Chief Justice or any other Single Judge on being assigned by the election petitioner in person following the directive of Sections 81(1) of the Act. Mr Choudhury has, as an instance, cited a recent case of such presentations of election petition before the Hon'ble Chief Justice of this High Court. The case under reference is Election Petition No. 1/2001. One Padmanath Sarma, the election petitioner in the above mentioned election petition presented the election challenging the election of one Hitendra Nath Goswami, before the Hon'ble Chief Justice of this Court on 13.6.2001. Certified copy of the order dated 13.6.2001 has been produced by the learned counsel before this Court and the same is perused and kept as a part of the record. The following is the text of the order passed by the Hon'ble Chief Justice on 13.6.2001:- "13.6.2001 Presented before the Hon'ble the Chief Justice (Acting) at 10.30 a.m. by the petitioner in person along with Mr R.N. Mittol, Advocate. Sd/- R.S. Mongia, Chief Justice Gauhati High Court 13.6.2001". It is submitted that the above presentation is the actual presentation authorised under Section 81(1) of the Act and the presentation before the Stamp Reporter as directed in Rule 1 of Chapter VIII A of the Rules is manifestly contrary to the command of Sections 80, 80A and 81 of the Act. 19. Arguing on these vital issues, Mr A.K. Phukan, the learned Advocate General, Assam has contended that the Act itself along with its provisions under Section 80(A) and 81 is very clear and umambiguous. The word 'High Court' appears in Section 80(A) clearly indicates that 'High Court' includes the entire establishment of the High Court. The Stamp Reporter as authorised under the Rule-1 of Chapter VIIIA of the Rules is a limb of the High Court and accordingly a competent authority for presentation of an election petition which is only a ministerial act and as such no doubt can be cast on the validity of the Rule-1 of Chapter VIII(A) of the Rules. Magnifying his submission Mr Phukan has gone to the extent that assuming but not conceding that Rule-1 Chapter VIII-A is ultra vires. Magnifying his submission Mr Phukan has gone to the extent that assuming but not conceding that Rule-1 Chapter VIII-A is ultra vires. Article 329(B) of the Constitution as well as Section 80(A) and 81 of the Act, but the High Court has always been vested with its extra-ordinary power of inherent jurisdiction under Article 225 read with 215 of the Constitution of India, the provisions of which are already mentioned above. According to the learned Advocate General, if the High Court is ordained by the Constitution under Section 81 of the Act read with Article 329 (b) of the Constitution to decide election petitions, then the High Court, being a Court of Records within the meaning of Article 215 of the Constitution and also being the superior Court with ample power of inherent jurisdiction under Article 225, shall have unrestricted power to frame Rules relating to the election matter including for the proper and adequate presentation of an election petition to carry out the mandate of the statute law. Referring to Section 87 of the Act, it is further submitted that it is the dictate of law that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure (CPC) and in view of such applicability of CPC, the High Court is also authorised to exercise the inherent power embodied under Section 151 of the Code of Civil Procedure. Reliance has been made by Mr Phukan on a decision of this Court reported in 2002(1) GLT 701 (Banendra Kumar Mushahary-Vs-Md. Mohibul Hoque). 20. In the said case, this Court, taking on board exactly similar and identical contentions, as advanced in the present case, urged on behalf of the respondent/ applicant in the related election petition, had the occasion to deal with the vires of the Rule-1 of Chapter VIIIA of the Rules. Relying on a decision of the Apex Court in Monohar Joshi- Vs-Nitin B Patil and another ( AIR 1996 SC 796 ) this Court Ruled that the function involved in an election petition is essentially clerical in character as no exercise of judicial power is contemplated in the Act in the act of presentation and its acceptance. Relying on a decision of the Apex Court in Monohar Joshi- Vs-Nitin B Patil and another ( AIR 1996 SC 796 ) this Court Ruled that the function involved in an election petition is essentially clerical in character as no exercise of judicial power is contemplated in the Act in the act of presentation and its acceptance. If any vacuam appears in presentation of the election petition, the same can be filled up by the High Court in exercise of inherent power since the Rule in this behalf will not be in clash with any provisions of law made by appropriate legislature. 21. Remonstrating strongly against the contentions and arguments canvassed on behalf of the applicant/respondent, Mr Dey, learned counsel appearing for the election petitioner/opposite party, has forcefully pleaded that as regards the presentation of election petition before the Stamp Reporter in terms of the Rules has already been held by this Court as valid presentation and in support of his submissions he has relied on the decisions of this Court in Abdul Jabbar-Vs-Syeda Anowara Taimur reported in (1986) 1 GLR 257 which has been reiterated in Saingura-Vs-F Sapa and others reported in (1990)2 GLR (NOC) 48 and N. Vero-Vs-Vamizo (1990)1 GLR 290. In Abdul Jabbar's case (supra), this Court Ruled that the High Court, being a legal entity, consists of not only the Chief Justice and other Judges but also officers of various departments and 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. It was held that the Stamp Reporter is a limb of the High Court and not a delegate as he is entrusted to perform his duties under the Rules. 22. It is contended by the learned counsel that the question whether the Rule regarding presentation of election petition before the Stamp Reporter is violative of Section 80, 80-A and 81 of the R.P.A. as well as Article 329(b) of the Constitution, has also been decided by this Court in Abdul Jabbar's case (supra) that Rule 1 of the Chapter VIII-A of the Rules is valid under the law and provisions made therein regarding presentation of the election petition before the Stamp Reporter is equally intra-vires. According to him when the High Court has been conferred with the jurisdiction for an adjudication of an election petition, it is implicit that the High Court has, within its plenary power, the authority to frame procedural provision of law facilitating to exercise its jurisdiction vested upon it by the Parliament. His submission is that the High Court being a Court of record having inherent power under Article 215 and 225 of the Constitution, the point that has also been urged by the learned Advocate General, has been vested with ample power to frame its own Rules and procedure. Therefore, the provisions of Chapter VIII-A Rule 1 is not in conflict but in total conformity with the provisions of the Act. Mr Dey has further contended that under Section 169(2) of the Act, the adjudication of election dispute has been expressly kept outside the purview of the Rule making power. His point is that such omission is deliberate and conscious because the Parliament in its wisdom thought it to be proper not to overlap the inherent Rule making authority of the High Court vested under the Constitution. Hence the interpretation that only the Central Government has been given the Rule making power under Section 169 and that in absence of any Rule made by the Central Government in accordance with Section 169 regulating the procedure of filing an election petition before the High Court, no election trial can take place, would strike at the very root of the democratic polity. Election process being the cornerstone of our democratic polity set up under the Constitution, adjudication of dispute regarding election confers a very valuable right of a candidate and even an elector can seek judicial intervention for the purpose of maintaining a purity and sanctity of electoral process. This right cannot be curtailed and/or taken away and/ or abridged in any manner on the plea of iron framing of Rule by the Central Government while the High Court itself has been inherently conferred with the power to frame its own procedure. Keeping in view this inherent power, which has been exercised by the High Court in framing rules as such, there is no scope for confrontation of this Rule with Article 329(b) of the Constitution as well as Section 80, 80-A of the Act. Keeping in view this inherent power, which has been exercised by the High Court in framing rules as such, there is no scope for confrontation of this Rule with Article 329(b) of the Constitution as well as Section 80, 80-A of the Act. It is further contended that as a cardinal principle of law that once an authority is embedded with a jurisdiction to perform statutory duty, in such case unless, there is anything expressly provided under the statute, the authority embedded with such power is also empowered to regulate use of such power of jurisdiction. Because otherwise the power of jurisdiction granted to the authority would become meaningless which can never be the intention of the law makers. 23. To bolster up this submission, the learned counsel has relied on a decision of Allahabad High Court rendered in Nawab Khan-Vs-Vishwanath Shastri reported in AIR 1993 Allahabad 104 wherein the vires of similar provision of Allahabad High Court Rules regulating the mode of presentation of election petition under the Act came up for consideration. It was held by the Allahabad High Court in paragraph 7 and 12 of the decision that as no regulatory provisions for presenting an election petition to the High Court have so far been prescribed by the statute or the Rules framed thereunder, it is open to the High Court, being a superior Court and a Court of Record to frame appropriate Rules to discharge its constitutional and statutory duty, namely trial of the election petition filed before it by the election petitioner. It was observed that for the Parliamentarian or the Rule making authority acting under Section 169 of the Act, it would be quite difficult to frame suitable regulatory provisions with that precision with which they may be framed by the High Court and this is why the legislature has not intruded in the area for over the years though enabling provisions are specified in the Constitution as well as the statute. 24. 24. In the backdrop of such extensive rival contentions and submissions addressed on behalf of the parties as well as the arguments of the learned Advocate General and also in view of the precedents cited herein above, this Court now proposes to proceed to analyse critically the extent of authorisation for such presentation of an election petition before the Stamp Reporter under the provisions of the Constitution and statute law being referred above vis-a-vis the scope of exercise of inherent power by the High Court in framing regulatory pertaining to the presentation of election petition. 25. It goes without saying that the election is the bed-rock and foundation on which our democracy stands. If the democracy in its truest sense is to thrive and flourish, elections to the Parliament, State Legislatures and Panchayats need to be free and fair and within constitutional mandate. Proper and efficient functioning of the democratic freedom depends on adequate and substantive compliance of election law and procedure. The purity and sanctity of election must be maintained and preserved in order to achieve this cherished democratic ideals. Keeping this essence in mind, the architects of our Constitution, curving out an area in the Constitution itself under Part XV, had engrafted the sacred provisions relating to election covered by Article 324 to 329. The crucial point taken up for adjudication in the case in hand stems from Article 329(b). As already stated, being empowered by Article 329(b) the Parliament legislated the Act. The Act itself is made as a special piece of legislation for the sole purpose of regulating exclusively the process of election including presentation , trial and decision of the election dispute. Therefore, to maintain the sacredness and grace of the election process under the Act, the election petition is made to be a simple and pure statutory proceeding to which neither common law nor do the principles of equity apply save and except only those Rules which the statute frames and applies. This is a special enactment with the special purpose wherein special jurisdiction has been entrusted to the High Court. Being vested with such power to decide the election dispute, the High Court is designated to try the same within the four corners of the statute. The Act itself is self contained statute and a complete code. An election can only be challenged in the manner prescribed in the Act. Being vested with such power to decide the election dispute, the High Court is designated to try the same within the four corners of the statute. The Act itself is self contained statute and a complete code. An election can only be challenged in the manner prescribed in the Act. The trial of an election dispute commences with the presentation of the election petition before the High Court and such presentation has to be made in its strict compliance of the provisions of the Act as already referred above. 26. In a chain of Apex Court's decisions starting from the Ponnuswami's case (N.P. Ponnuswami-Vs-Returning Officer, Namakkal Constituency Namakkal, Salem Dist and Ors. reported in AIR 1952 SC 64 ), Jagan Nath 's case (Jagan Nath vs. Jaswant Singh & Ors. reported in AIR 1954 SC 210 ) to Jyoti Basu 's case (Jyoti Basu and Ors.-Vs-Debi Ghosal and Ors. reported in AIR 1982 SC 983 ), the law has been settled that the election list is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law. The concept familiar to common law and equity, hence, must remain stranger to election law which needs to be decided strictly in accordance with the provision of the Act and the Constitution. In the other words, it may be said that an election dispute cannot be lightly interfered with and the same must be presented, tried and decided within the limitation imposed by the Act which is itself a creature of the statute with specific aim and object to deal with election dispute. 27. In Jyoti Basu's case (supra) the Apex Court did observe in paragraph 8 as follows:- "A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those Rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dea1" with by the different provisions of the Act." The view expressed above has been endorsed in subsequent decisions of the Supreme Court namely (i) Arun Kumar Bose-Vs-MohdFurkanAnsari, ( AIR 1983 SC 1311 ); (ii) Ram Chand Bhatia-Vs-Hardayal (AIR 1986 717; (in) Dhartipakar Madan Lal-Vs-Rajiv Gandhi (AIR 1987SC 1577); (iv) Upadhayaya Hargovind Devshanker Vs. D.V. Solanki ( AIR 1988 SC 915 ) (v) C. Narayanaswami -Vs-C.K. Jaffer Shariff (1994) Supp (3) SCC 170) and (vi) Rama Kant Pandey-Vs-Union of India ( AIR 1993 SC 1766 ). 28. Applying the ratio of Jyoti Basu's case (supra), it may be safely held that it is a mandatory requirement for strict compliance of the provisions of Section 80, 80A and 81 of the Act in presentation of the election petition before the High Court. Being bound by the aforesaid precedents, this Court does find sufficient force in the submissions of the learned counsel for the applicant/respondent. Being bound by the aforesaid precedents, this Court does find sufficient force in the submissions of the learned counsel for the applicant/respondent. It is felt that in terms of provisions of Section 80A read with Article 216 of the Constitution, the High Court means the Hon'ble Chief Justice and other Hon'ble Judges of the High Court and as per requirement of the said provisions of law including Section 81(1), the election petition must be presented by the election petitioner personally either before the Hon'ble Chief Justice or any other Hon'ble Judges Assigned for such purpose by the Hon'ble Chief Justice. Reason is obvious. The Act designates the High Court as the 'such authority' as envisaged under Article 329(b) of the Constitution. Therefore when an election petition is needed to be tried only by the learned Single Judge of the High Court on his such Assignment by the Hon'ble Chief Justice, the election petitioner has to present his election petition before High Court meaning thereby before the Hon'ble Chief Justice or any other assigned Hon'ble judge, taking into account the procedure of placement of election petition and its subsequent assignment by the Hon'ble Chief Justice. Be it mentioned that all individual election cases are first taken up by the Hon'ble Chief Justice for Assignment on being placed before him by the Registry and thereafter only, the same is assigned to some other Hon'ble Single Judge. The statute has conferred the jurisdiction on the High Court only to entertain election petition for its tribal subject to fulfillment of various conditions precedent inter alia provided under Section 81, 82 and 83 of the Act so corresponding to presentation of such an election petition. A duty is cast on the High Court to see if there is compliance of the aforesaid law which is essentially a judicial function. Be it noted that, as already argued, the word 'High Court' was inserted by- the Amendment Act 47 of the 1966 by replacing word 'Election Commission' that too without a deeming provision as provided earlier and hence the specific legislative intendment is only to mean either the Hon'ble Chief Justice or the Hon'ble Single Judge permanently or well in advance Assigned for the purpose. Therefore, in no case, any authority other than the Hon'ble Chief Justice or Hon'ble Single Judge can be designated as 'such authority' for the purpose of presentation in absolute obedience of the provisions of Section 80, 80A and 81. 29. It is the usual procedure of the High Court that all the election cases after being presented before the Stamp Reporter by the election petitioner in person are placed before the Hon'ble the Chief Justice for assigning the same to Hon'ble Single Judge of this Court to hear the election petition. Thereafter the Hon'ble Chief Justice in exercise of power conferred upon him under Section 80A(2) of the Act assigns one such Hon'ble Judge of the High Court for trial of the election petition. The said normal practice may be well understood by referring to the format of such placement the election petition before the Hon'ble Chief Justice and thereafter His Lordship's Assignment to one of Hon'ble Judges of this Court for such trial and the said format is extracted as under: As regards placement of the election petition before the Hon'ble the Chief Justice: "Shri.............................................petitioner has presented an election petition u/s 80, 80A and 100 of the Representation of the People Act, 1951, before this Court personally on ...........................calling in question the election of respondent No. 1 of........................................ Constituency of the State of Assam with the prayer for declaring and holding that the election of respondent No. 1 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 for 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 - Dy. Registrar (I&E)..." As regards assignment by the Hon'ble Chief Justice to other Hon'ble Judge of the High Court - "Ref.:- trial of election petition filed by Shri.................................................................... In exercise of the powers conferred under Section 80A(2) of the Representation of the People Act, 1951 as amended by the Representation of the People (Amendment) Act, 1966 (No. 47 of 1966)1 hereby assign the Hon'ble Mr Justice ........................................Judge, Gauhati High Court, the duties of exercising the jurisdiction of the High Court in regard to the trial of election petition filed by .........................................on....................... Chief Justice." 30. Chief Justice." 30. Taking into account the aforesaid procedure of placement and subsequent assignment by Hon'ble the Chief Justice, this Court is of the view that when Registry can place the election petition before the Hon'ble Chief Justice for the purpose of assignment of the same to one of other Hon'ble Judges for trial of the same, the same can also be placed before the Hon'ble the Chief Justice or other assigned Hon'ble Judge after performing all relevant formalities being of clerical in nature, in order to register the presentation of the election petition by the election petitioner in person instead of authorising the Stamp Reporter, being an employee of the High Court, under Rule 1 of Chapter VIII A of the Rules to accept the said election petition on being presented before him by the election petitioner in person. An ordinary reading of Section 80A and 81, in the opinion of this Court, goes to show that the act of presentation itself is a judicial function and the same cannot be equated with the administrative function of High Court. Hence, a Stamp Reporter, at any rate, cannot be permitted to perform such judicial function. The Stamp Reporter is mainly to perform ministerial act and his duty is only to carry out the formalities as regards the filing, checking of limitation, receiving the extra copies of the petition etc. of an election petition as is usually done in case of filing of other matters like writ petitions, appeals, misc. applications etc. After completion of such formalities, the election petition has to be placed before the Hon'ble Chief Justice or any other Hon'ble Single Judge/Judges permanently or well in advance assigned, as noticed in company matters, in order to comply the requirement of Section 81(1) relating to presentation of the same by the election petitioner in person. As already cited, the example of presentation of the election petition before the Hon'ble Chief Justice by the election petitioner in person on 13.6.2001, manifestly goes to show that the same was the perfect and correct presentation of election petition before the High Court in the truest compliance of Section 80, 80 A and 81 of the Act. 31. As already cited, the example of presentation of the election petition before the Hon'ble Chief Justice by the election petitioner in person on 13.6.2001, manifestly goes to show that the same was the perfect and correct presentation of election petition before the High Court in the truest compliance of Section 80, 80 A and 81 of the Act. 31. In view of what has been discussed and observed above, this Court, with all respect and humility at its disposal, would like to differ with the views expressed in Abdul Jabbar's case (supra) as well as Banendra Kumar Mushahary's case (supra) as regards the presentation of election petition before the Stamp Reporter. In Abdul Jabbar's case, this Court held that the High Court, being a legal entity, consists of not only the Chief Justice and other Judges but also Officers of various departments and as such the Stamp Reporter is a limb of the High Court and not a delegate as he is entrusted to perform his duties under the Rules. Accordingly it was held that the presentation of election petition to the Stamp Reporter in terms of Chapter-VIII A, Rule 1 of the Rules is not in violation of Article 329(b) and Section 80,80A and 81 of the Act. In said case, it was also held that the function involved in the presentation of an election petition is essentially clerical in character. In arriving at the said finding, the Court relied on paragraph 20 of the decision in Monohar Joshi's case (supra) wherein they Apex Court dealing with Section 81,82 and 117 held that Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of those Sections. The Supreme Court held that Section 81(1) requires the checking of limitation with reference to the admitted facts and sub-section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented when Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition. As regards Section 117, the said provision requires verification of the deposit of security in the High Court in accordance with Rules of the High Court. As regards Section 117, the said provision requires verification of the deposit of security in the High Court in accordance with Rules of the High Court. Thus, the compliance of Section 81, 82 and 117, it was held, was to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation. This entire act was held to be a ministerial act. Deferentially it may be noted that nowhere in the relied paragraph the Hon'ble Supreme Court did hold that the presentation of election petition before the officers of High Court as a ministerial act. As settled by the Apex Court herein, there is no doubt that anything like checking of limitation with reference to the admitted facts under Section 81(1) as well as the comparison of the copy accompanying the election petition with the election petition itself under Section 81(3) is a ministerial act. But million dollars question is whether presentation of an election petition according to Section 81(1) before the Stamp Reporter, being authorised by Rule 1 of Chapter VIII A of the Rules framed by the High Court under Section 80 A, will be called a ministerial act. In considered opinion of this court, such presentation of election petition cannot be a ministerial act but a judicial function which needs to be discharged only by the High Court, meaning thereby, by the Hon'ble Chief Justice or the assigned Hon'ble Judge, being the such authority, before whom only one presentation of election petition needs be made. 32. Equally the argument that the view opined in Nawab Khan's case (supra) is squarely applicable in the instant case, cannot be accepted. This Court, after having carefully gone through the above referred decision, respectfully, would like to defer with the opinion expressed therein. With all humility, it can not be approved that the High Court, being the Superior Court and Court of Record can frame Rules for regulating the presentation of the election petition which may be more effective, efficient and convenient. This Court is of the view that when there is no express or specific provision laid down in the Act itself, keeping in view of the special character of the Act, High Court is not empowered to frame any Rules for regulating such presentation. 33. This Court is of the view that when there is no express or specific provision laid down in the Act itself, keeping in view of the special character of the Act, High Court is not empowered to frame any Rules for regulating such presentation. 33. A bare reading of Section 80A seemingly makes it ample clear that the provision does not speak of any Rule making power vested upon the High Court. In absence of any express provision of delegation of power as observed by S.A. De Smith (supra) and Sarya Narain's case (supra) High Court is precluded from delegating its own power so entrusted upon it by Section 80A by making the Stamp Reporter as the authority before whom the presentation of election petition is to be made by the election petitioner in person. Applying the maxim 'delegatus non-potest delegare' (A delegate cannot further delegate its power), this delegation of power of presentation by the High Court to be Stamp Reporter is impermissible. According to Salmond "Delegated Legislation means that which proceeds from any authority other than the sovereign power and is therefore dependant for its continued existence and validity on some superior or supreme authority." (See - Salmond Jurisprudence, 12th Edition, page 116), Bearing in mind such concept of Delegated Legislation, it may be safely held that when the legislature has specifically entrusted the High Court to discharge a judicial function as "such authority", the High Court cannot delegate such power to its officers to carry out that mandate. 34. That being the position, this Court is of the considered view that the High Court is being not empowered to make any Rule under Section 80A and the presentation of the election petition before the High Court itself being a judicial function, the Rule requiring the presentation of the election petition before the Stamp Reporter by the election petitioner in person appears to be not in conformity with the Section 80A and 81 of the Act. Consequently this Court does hold that the Rule 1 of Chapter VIII A of the Rules to the extent of presentation of election petition before the Stamp Reporter is unauthorised and ultra-vires Sections 80, 80A and 81 of the Act read with Article 329(b) of the Constitution of India. 35. A written Constitution is the Bible in the governance of a Country. All powers and rights flow from such Constitution. 35. A written Constitution is the Bible in the governance of a Country. All powers and rights flow from such Constitution. In country like India and USA, the Constitution has always been regarded as the supreme despite having amending provision within. In fact, democracy and free and fair election, being the basic structures of the Constitution, are immune from the amending process. The Act, being the statutory creation, springs from the mandate of such Constitution. In this context, this Court feels that Article 329(b) of the Constitution and the Act as well, may be reasonably referred to as the 'Grundnorm' and other 'norm' respectively as postulated by Hans Kelsen in his 'Pure theory of law'. According to Kelsen in every legal system, there is a hierarchy of norms leading up to a basic norm which is known as 'Grundnorm'. This theory of Kelsen provides that the study of any legal system is to be initiated with a very initial hypothesis of existence of a 'Grundnorm' which is the starting point in a legal system. Depending on such 'Grundnorm', a legal system branches out either downwards or upwards in gradation becoming more and more specific and detailed as it progress. Kelsen's solution was that in every legal order, no matter with what proposition one may begin, a hierarchy of 'oughts' is traceable back to some initial, fundamental 'ought' on which the validity of all the others ultimately rests. This he called the 'Grundnorm', the basic or fundamental norm (See - Dias-Jurisprudence, Fifth Edition p. 361 to 363). This 'Grundnorm theory' pronounced by Kelsen has been treated as most acceptable doctrine of positivist jurisprudence in the 20th Century. According to Kelsen who was extremely critical of social jurisprudence based on morality, religion and equity etc, law is 'what it is', and not 'what it ought to be'. This theory, as of any science, attempts to reduce chaos and multiplicity to unity. In democratic society, for instance, the people being the governed is the sovereign. The governed is the highest norm i.e. 'Grundnorm' which gives validity to other norms. That being so, our Constitution is the basic norm which has got its validity and effectiveness for being solemnly adopted, enacted and given to themselves by the people of India themselves by the people of India. The governed is the highest norm i.e. 'Grundnorm' which gives validity to other norms. That being so, our Constitution is the basic norm which has got its validity and effectiveness for being solemnly adopted, enacted and given to themselves by the people of India themselves by the people of India. So the Parliament is another form of hierarchy as it has got validity being the product of Indian Constitution. Therefore, applying the theory of 'Grundnorm' to Article 329(b) as well as the Act created by Parliament on being authorised by the Constitution, the purpose and intendment of our law makers reflected in the provisions of Section 80, 80A and 81 must be carried out within the parameters of those provisions. Those previsions need to be read as the law 'what it is' but not 'what it ought to be'. In the light of Jyoti Basu's case (supra), it is patently obvious that in the trial of election case right from the presentation of the election petition till the final verdict is pronounced, the Court is put in a straight jacket and the obligation laid down in those provisions must be discharged within cut and dried compass. In that view of the matter, the Court is of humble opinion that the presentation of election petition before the Stamp Reporter is not in sufficient compliance of those provisions of law. 36. In so far as the exercise of inherent power by the High Court, in absence of any express provision of rule making power in framing Rule 1 of Chapter VIII A of the Rules, is concerned, as argued by the learned Advocate General, Assam as well as the learned counsel appearing on behalf of the election petitioner, in considered view of this Court, there is no scope for acceptance of such 'inherent power theory' to be exercised by the High Court in dealing with those special provisions under this special legislation. According to Black's Law Dictionary (Sixth Edition, Page. 782) 'Inherent powers of Court' means the "inherent power" of a Court is that which is necessary for the proper and complete administration of justice and such power is resident in all Courts of superior jurisdiction and essential to their existence; e.g., sentencing and contempt powers. Equally, inherent power is also defined as "an authority possessed without its being derived from another. Equally, inherent power is also defined as "an authority possessed without its being derived from another. A right, ability, or faculty of doing a thing, without receiving that right, ability, or faculty from another. Powers originating from the nature of Government sovereignty, i.e., powers over and beyond those explicitly granted in the constitution or reasonably to be implied from express grants; e.g. in the foreign policy area, the executive's inherent powers have been held to confer authority upon the President to settle the claims of American nationals against a foreign state as part of a diplomatic agreement. These are 'inherent powers' resident in all Courts of superior jurisdiction. These powers spring not from legislation but from the nature and constitution of the tribunals themselves. Among the inherent powers of a Court of superior jurisdiction is that of maintaining its dignity, securing obedience to its process and Rules protecting its officers and jurors from indignity and wrong, rebuking interference with the conduct of its business, and punishing unseemly behaviour. It must necessarily be that the Court has inherent power to preserve its existence to fully protect itself in the orderly administration of its business. Its inherent power will not carry it beyond this (The Law Lexicon, 1997 Edition, P.942-943). The principle of inherent powers originates from the maxim "Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The plenary power needs to be exercised with caution and circumspection without any arbitrariness or capriciousness in appropriate cases depending in their factual matrix 'ex debito justitiae' to do real and substantial justice. 37. A conjoint reading of Article 225 and 329(b) makes it vividly clear that the exercise of inherent jurisdiction by the High Court has been pre-eminently excluded by the Act itself framed under Article 329(b) of the Constitution. It can be safely held that Article 329(b) starting with a non-obstante clause 'notwithstanding anything in the Constitution' expressly overrides the inherent power saved by Article 225 which begins with the words 'Subject to the provisions of this Constitution'. Besides, the Act itself being a special one, provides no such power bestowing upon the High Court to exercise inherent jurisdiction. It can be safely held that Article 329(b) starting with a non-obstante clause 'notwithstanding anything in the Constitution' expressly overrides the inherent power saved by Article 225 which begins with the words 'Subject to the provisions of this Constitution'. Besides, the Act itself being a special one, provides no such power bestowing upon the High Court to exercise inherent jurisdiction. It would be pertinent to refer herein that Code of Civil Procedure (CPC) and Code of Criminal Procedure (CrPC) provides such inherent powers to the High Court under Section 151 CPC and Section 482 CrPC respectively. 38. It is settled law that inherent power is in the nature of extra-ordinary power available only to the High Court under CPC and CrPC to do a particular thing for the ends of justice or to prevent the abuse of the process of the Court when no express provision is available in the Code itself. As regards the exercise of inherent power of the High Court, the three principles may be taken into consideration which are - (1) The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) It should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and (3) It should not be exercised as against the express bar of law engrafted in any other provision of the Code. Even so, when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade area set a part for specific power under the same Code. There is no total ban on the exercise of inherent power where abuse of the process of the Court or other extra ordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more. (See (1) Madhu Limaye-Vs-State of Maharashtra, AIR 1978 SC 47 and (2) Raj Kapoor and Ors.-Vs-State (Delhi Administration) and Ors., AIR 1980 SC 258 ). In the light of such established principles, in the case in hand, the High Court cannot be permitted to exercise any inherent power when this special legislation does not confer upon the High Court any such jurisdiction of inherent power similar to CPC or CrPC. 39. In the light of such established principles, in the case in hand, the High Court cannot be permitted to exercise any inherent power when this special legislation does not confer upon the High Court any such jurisdiction of inherent power similar to CPC or CrPC. 39. In a decision of Ram Lakhan-Vs-Ram Charitra and others reported in AIR 1993 Allahabad 199 the Allahabad High Court held that the High Court under Article 215 of the Constitution is a Court of Record and is repository of all the powers which are of multi-dimensions and therefore every power is inherent in the High Court. While entertaining an application under Section 151 CPC in an election petition praying for recalling an ex-parte order passed by the Court to proceed with the election petition owing to non-representation on behalf of the respondent No. 1, the Court allowing the application observed that High Court retains the status of a Court and inherent powers under Section 151 are available to it in order to do justice by doing right and undoing the wrong in the course of administration of justice. It is correct that such power read with Section 87 of the Act can be exercised on consideration of the facts and circumstances of the case as evident in that case. But this Court is wondering whether such inherent power is available to High Court to make Rule to discharge judicial function relating to presentation of an election petition before the Stamp Reporter as provided under Section 81(1). The answer, in humble view of this Court, with all respect, would be 'No'. Both the Constitution and the Act as well, as reflected from the foregoing discussions, do not intent to empower the High Court to exercise its inherent power so inherited in it under Articles 215 and 225 of the Constitution. 40. An attempt has been made to impress this Court that High Court has been empowered to try the election petition in accordance with the procedure applicable under CPC as per Section 87 of the Act. But Section 87 deals only with the procedural aspect which is applicable for the trial of an election petition by the High Court as nearly as may be. That being so, this Court feels that Section 87 cannot be construed and interpreted for the purpose that the High Court can also exercise the inherent power under Section 151 QPC. But Section 87 deals only with the procedural aspect which is applicable for the trial of an election petition by the High Court as nearly as may be. That being so, this Court feels that Section 87 cannot be construed and interpreted for the purpose that the High Court can also exercise the inherent power under Section 151 QPC. Under this Special Statute, the question of exercising inherent power as authorised under Section 151 pertaining to presentation of election petition does not arise. 41. In the light of what has been stated above the Court is not impressed a wee bit by the submissions advanced on behalf of the respondent. It is also not possible to agree with the contentions that the vacuum appeared as regards the presentation of election petition before the High Court can be filled up by the High Court in exercise of its inherent powers. Reliance has been made on Banendra Kumar Mushahary's case (supra) in favour of such submission. Respectfully, this Court is not inclined to agree with the said view. The law is already settled that election law has to be strictly adhered to in its total conformity with the provisions enshrined therein. A democratic election administering the will of people can be dislodged and unsettled only in accordance with the procedure set out in the Act and Article 329(b) of the Constitution. It is already observed that common law concept must remain strange to the election. Therefore 'the inherent power' doctrine being very much a common law concept, is needed to be kept outside the arena of election law. 42. For the reasons, discussions and observations indicated hereinabove, this Court has no hesitation to hold that the Rule 1 of Chapter VIIIA of the Rules itself is ultra vires Section 80, 80-A and 81 of the Act read with Article 329(b) of the Constitution and as a sequal of the aforesaid finding the Court also does hold that the presentation of the election petition before the Stamp Reporter is not in strict and sufficient compliance of an contrary to the provisions of Section 80, 80-A and 81 of the Act. 43. In the result, misc. case is allowed. The related election petition is dismissed. However, no order is passed as regards the costs.