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2004 DIGILAW 475 (GAU)

Pabindra Deka v. Monoranjan Das

2004-08-16

B.BISWAS

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JUDGMENT D. Biswas, J. 1. This miscellaneous application under Order 7, Rule 11 read with Section 151 of the Code of Civil Procedure has been filed for rejection of the Election Petition No. 19 of 2001 filed by the opposite party (election Petitioner) challenging the election of the applicant (Respondent No. 1) from No. 42 Patacharkuchi Legislative Assembly on the ground of corrupt practices. 2. According to the applicant, the election petition is not maintainable as it was filed beyond the period of limitation, and without complying with the provisions of Sections 81 and 83 of the Representation of the People Act, 1951. In addition, it is pleaded that the election petition is devoid of material facts, does not disclose the ingredients of corrupt practice and, therefore, without cause of action. Besides, the election petition is also assailed for want of proper verification. 3. The opposite party (election Petitioner) filed objection refuting the above contentions. 4. I have heard Mr. K. Agarwal, learned Counsel for the applicant and also Mr. C.K.S. Barua, learned senior Counsel for the opposite party. 5. Firstly, I would like to deal with the question of limitation. Section 81 of the Act of 1951 provides that the election petition shall be filed within the period of 45 days from the declaration of the result. According to Shri Agarwal, the result of the election was declared on 14.5.2001 and the period of limitation of 45 days was over on expiry of 28.6.2001. The election petition was presented before the Stamp Reporter only on 4.7.2001. Shri Agarwal further submitted that the election petition was filed before the Filing Section of the High Court on 27.6.2001 i.e. one day before the expiry of the period of limitation. According to Shri Agarwal, the delay in presenting the same before the Stamp Reporter is fatal. 6. Referring to the provisions in Chapter-VHI-A of the Gauhati High Court Rules, 1967, Shri Agarwal urged that the election petition is liable to be dismissed since it was not presented before the Stamp Reporter as per provisions contained therein. 7. There is no dispute that the election petition was presented before the Filing Section of the High Court within the period of limitation. There was apparently a few days delay in presenting the same before the Stamp Reporter. 7. There is no dispute that the election petition was presented before the Filing Section of the High Court within the period of limitation. There was apparently a few days delay in presenting the same before the Stamp Reporter. Whether this delay on the part of the official of the Filing Section in presenting the election petition before the Stamp Reporter will lead to the dismissal of the election petition. 8. Rule 1 of Chapter-VIII-A of the Gauhati High Court Rules, 1967 reads as follows : 1. An election petition under Section 80-A of the Representation of the Peoples Act may be presented duly verified in the form prescribed under Sections 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 latter of those two dates. Every such petition shall be accompanied by-.... 9. It would appear from above that the Rule 1 of Chapter VIII-A of the Gauhati High Court Rules 1967 requires presentation of the election petition before the Stamp Reporter within 45 days from the date of election of the returned candidate. In the instant case, the petition was presented before the Filing Section and not before the stamp reporter. The provisions available in Chapter-VIII-A do not provide for presentation of an election petition before the Filing Section. It is, therefore, obvious that the procedure prescribed in Chapter-VIII-A of the Gauhati High Court Rules, 1967 have not been complied with in the instant case. The petition was also not presented before the High Court i.e. either before the Chief Justice or the Designated Judge as is contemplated in Section 81 of the Representation of the People Act, 1951. 10. In Chandra Kishore Jha, Appellant v. Mahabir Prasad and Ors. Respondents, AIR 1999 SC 3558 , dealing with the question of similar nature arising from the decision of the Patna High Court, the Hon'ble Supreme Court held as follows : 11. In our opinion, reliance on Rule 24 of Chapter XXI-E read with Rule 13(iii) of Chapter II, Part I of the High Court Rules is misplaced. Respondents, AIR 1999 SC 3558 , dealing with the question of similar nature arising from the decision of the Patna High Court, the Hon'ble Supreme Court held as follows : 11. In our opinion, reliance on Rule 24 of Chapter XXI-E read with Rule 13(iii) of Chapter II, Part I of the High Court Rules is misplaced. The plain phraseology of Rule 6 read with the proviso thereto makes it abundantly clear that formal presentation of an election petition can be made only to the designated Judge in the open Court and "if on any Court day the Judge is not available on account of temporary absence or otherwise, the petition may be presented before the Bench hearing civil applications and motions". Thus, the High Court Rules do not prescribe any other mode of presentation of an election petition except in the open Court either before the designated election Judge or before the bench hearing civil applications and motions, where the designated election Judge is not available on account of temporary absence or otherwise. The presentation of an election petition to the Registrar has not been prescribed as a mode of presentation of an election petition by the Rules. An election petition is not included in any of the clauses of Rule 13. The learned designated election Judge rightly found that presentation of the election petition to the Bench Clerk on 16.5.1995 at 4.05 p.m. was not a proper presentation under the Rules. In the absence of any provision in the Rules, presentation of an election petition to the Registrar would not stand at any better footing than the presentation of the petition to the Bench Clerk. An election petition being purely statutory remedy, nothing is to be read into the Rules-nothing is to be presumed-which is not provided for in the Rules. Rule 24 (supra) cannot advance the case of the returned candidate any further because of the absence of mention of an election petition in Rule 13 (supra). 12. An election petition being purely statutory remedy, nothing is to be read into the Rules-nothing is to be presumed-which is not provided for in the Rules. Rule 24 (supra) cannot advance the case of the returned candidate any further because of the absence of mention of an election petition in Rule 13 (supra). 12. In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner by Rule 6 of Chapter XXI-E. No other mode of presentation of an election is envisaged under the Act or the Rules thereunder and, therefore, an election petition could, under no circumstances, be presented to the Registrar to save the period of limitation. It is a well settled salutary principle that if a statute provides for a thing to be done in that manner and in no other manner. See with advantage: Nazir Ahmad v. King Emperor 63 Ind App 372 : AIR 1936 PC 253 (2); Rao Shiv Bahadur Singh v. State of Vindhya Pradesh 1954 SCR 1098 : AIR 1954 SC 322 ; State of Uttar Pradesh v. Singara Singh AIR 1964 SC 358 : (1964) 1 SCWR 57. An election petition under the Rules could only have been presented in the open Court up to 16.5.1995 till 4.15 p.m. (working hours of the court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done. However, we cannot ignore that the situation in the present case was not of the making of the Appellant. Neither the designated election Judge before whom the election petition could be formally presented in the open Court nor the Bench hearing civil applications and motions was admittedly available on 16.5.1995 after 3.5 p.m., after the Obituary Reference since admittedly the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 p.m. Law does not expect a party to do the impossible - impossibilium nulla obligatio est - as in the instant case, the election petition could not be filed on 16.5.1995 during the Court hours as far all intend and purposes, the court was closed on 16.5.1995 after 3.15 p.m. 11. Enunciating the principles of law as above, the Hon'ble Supreme Court, however, with the aid of Section 10 of the General Clauses Act saved the situation for the election Petitioner in that case on the ground that on that day, it was impossible for the Petitioner to present the election petition before the designated election Judge or the Bench hearing civil applications and motions authorized to accept the election petition in the absence of the designated Judge as because, after the Obituary Reference, the High Court was closed. But the situation here is not of that nature. There is nothing on record to show that on 27.6.2001, neither the Chief Justice nor the Stamp Reporter was not available in Court before whom the election petition could be filed. 12. If we go by the ratio available in the aforesaid judgment of the Hon'ble Supreme Court, obviously the presentation of the election petition, in the instant case, before the Filing Section has to be held as bad in law. The election petition is not a right in common law nor equity. It is purely statutory right and, therefore, the mandate of the statute has to be followed. The provisions of Section 81 of the Act of 1951 and the provisions of Chapter-VHI-A of the Gauhati High Court Rules, 1967 lay down the manner in which and the authority before whom the election petition is to be presented. Therefore, any deviation from the above prescribed mode of presentation will render the presentation of an election petition invalid. In the instant case, the election petition was presented before the stamp reporter after expiry of the period of limitation. Under no circumstances, going by the provisions of law as referred to above and the ratio available in the judgment of the Hon'ble Supreme Court, this Court can agree with Shri Baruah, learned senior Counsel for the opposite party (Petitioner) that the presentation of the election petition before the Filing Section would also tantamount to presentation before the stamp reporter. 13. The Hon'ble Supreme Court in Jyoti Basu and Ors. Appellants v. Debi Ghosal and Ors. Respondents AIR 1982 SC 983 held as follows : 8. A right to elect, fundamental through 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. Appellants v. Debi Ghosal and Ors. Respondents AIR 1982 SC 983 held as follows : 8. A right to elect, fundamental through 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 the 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. 14. For the above reasons, the election petition not having been presented in accordance with the provisions of law had to be rejected. 15. It has been further pleaded that the election petition does not disclose material facts and the ingredients of corrupt practices alleged to have been resorted to by the returned candidate. The legality and propriety of the verification has also been questioned. 16. In para-5 of the election petition, allegations have been made of intimidation and booth capturing and snatching of ballot papers with the consent of the returned candidate. It is further alleged that the Petitioner himself witnessed chaotic condition prevailing in those areas and immediately rushed to the Returning Officer and lodged complaint regarding booth capturing. A large number of public also made a joint complaint to the Returning Officer. But the Returning Officer declined to accept the complaint submitted by the election Petitioner and the members of the public. In para-9, it is stated that there has been rigging in most of the polling station numbering about 17. Mention has been made of Polling Station No. 9, 9(A), 10, 11, 12, 13 and 14 where the returned candidate himself along with his men snatched away the ballot papers. In para-9, it is stated that there has been rigging in most of the polling station numbering about 17. Mention has been made of Polling Station No. 9, 9(A), 10, 11, 12, 13 and 14 where the returned candidate himself along with his men snatched away the ballot papers. The statement in para-11 of the election petition shows that the election Petitioner has seen the returned candidate threatening and driving away Petitioner's agent and agents of other candidates capturing the booth and taking away the ballot papers and marking the same in his favour. The complaint lodged before the Retuning Officer indicate that the allegations of corrupt practices primarily confine to intimidation, booth capturing and marking of ballot papers by the returned candidate and his agents. Allegations have also been made of irregularities in the counting process and special favour shown to the returned candidate. But the affidavit sworn in Form-25 does not disclose the source of information except election Petitioner's personal knowledge in respect of a few polling booths. There is also no verification of paragraphs 1 to 4 and 51 to 55. The complaint lodged by him to the Returning Officer (at page 74 of the election petition) has also not been verified. Various statements made in the election petition relating to corrupt practices do not disclose the source of information. The Petitioner has also not stated which of the allegations are true to his knowledge and which are true to his belief on information received. Therefore, it appears that the provisions of Section 83 have not been compiled with. The petition lacks details of material particulars in support of alleged corrupt practices. The defects in the verification are curable by way of amendment, in accordance with the provisions of the Code of Civil Procedure and such omission in the election petition may not be fatal. However, this does not admit of any opportunity for filling up the gap in the election petition about corrupt practices by way of amendment. The ratio available in Bashir Musa Patel, Appellant-v.-Satyawan Ganpat Jawkar and Ors. Respondents (1997) 1 SCC 751 clearly indicate that no opportunity can be given to the election petition to fill in the gap which would greatly prejudice the election Petitioner at the trial. 17. The ratio available in Bashir Musa Patel, Appellant-v.-Satyawan Ganpat Jawkar and Ors. Respondents (1997) 1 SCC 751 clearly indicate that no opportunity can be given to the election petition to fill in the gap which would greatly prejudice the election Petitioner at the trial. 17. For the reasons above and particularly for noncompliance of the provisions of Section 81 of the Representation of the People Act, 1951 and the provisions of Chapter-VIII-A of the Gauhati High Court Rules, 1967, the election petition is liable to be rejected. In the result, the election petition is rejected.