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2011 DIGILAW 932 (GAU)

Naba Kumar Doley v. Bharat Chandra Narah

2011-11-28

BROJENDRA PRASAD KATAKEY

body2011
ORDER B.P. Katakey, J. 1. The respondent No. 1/returned candidate by means of the present application, has raised the question of maintainability of the election petition filed by the election petitioner questioning the election of the returned candidate to the Assam Legislative Assembly from No. 112 Dhakuakhana (ST) Legislative Assembly Constituency. The question of maintainability of the election petition has been raised on the ground of violation of Section 81(1) of the Representation of People of Act, 1951 (in short the Act) contending that the election petition was not presented to the Officer authorized by Rule 1 of Chapter VIII-A of the Gauhati High Court Rules (in short the Rules) within the period of limitation prescribed by sub-section (1) of Section 81 of the Act. I have heard Mr. A.K. Bhattcharya, learned senior counsel for the applicant/returned candidate and Mr. S.S. Dey learned counsel appearing for the opposite party/election petitioner. 2. Retiring to sub-section (1) of Section 81 of the Act it has been contended by Mr. Bhattacharyya, learned senior counsel that an election petition calling in question any election is to be presented to the High Court by a candidate at such election or by any elector within 45 days from the date of election of the returned candidate. Such presentation to the High Court, according to the learned senior counsel, is to be made to the person authorized by the High Court under the Rules and in the instant case, before the Stamp Reporter of the High Court, in view of Rule 1 of the Chapter VIII-A of the Rules, which provides for presentation of the election petition before the Stamp Reporter of the Court, and such presentation must be within 45 days from the date of election of the returned candidate. Referring to the 'detail report' of the Stamp Reporter, which is available on the records of the election petition No. 2/2011, it has been submitted that the Stamp Reporter on 20.7.2011 submitted the report relating to the presentation of the election petition on that date personally by the election petitioner. Such presentation before the Stamp Reporter being beyond 45 days from the date of election of the returned candidate, the election petitioner is barred by time. Such presentation before the Stamp Reporter being beyond 45 days from the date of election of the returned candidate, the election petitioner is barred by time. It has also been submitted that filing of the election petition on 24.6.2011 without being presented to the Stamp Reporter as required under the Rules, would not amount to presentation of the election petition within the meaning of sub-section (1) of Section 81 of the Act. The learned senior counsel, therefore, submits that the election petition deserves to be dismissed for noncompliance of the previsions of Section 81 of the Act, in view of the provisions contained in Section 86(1) of the Act requiring dismissal of the election petition which does not comply with the provisions of Section 81 or 82 or 117 of the Act. Mr. Bhattacharyya in support of his contention has placed reliance on the decision of the Apex Court in Chandra Kishor Jha v. Mahavir Prasad and others, reported in AIR 1999 SC 3558 ; Jamal Uddin Ahmed v. Abu Saleh Najmuddin and another, reported in (2003) 4 SCC 257 and a Single Bench judgment of this Court in Pabindra Deka v. Monoranjan Das, reported in 2005 (2) GLT 133. 3. Mr. Dey, learned counsel appearing for the opposite party/election petitioner, on the other hand, has submitted that sub-section (1) of Section 81 of the Act requires presentation of the election petition by any candidate or by any elector to the High Court within 45 days from the date of election of the returned candidate, without, however, specifying the Officer of the High Court before whom such presentation is to be made. The learned counsel further submits that the High Court by framing Rule 1 of Chapter VIII-A of the Rules authorizes the Stamp Reporter to receive the election petition, before whom the election petition is to be presented, which being the administrative or ministerial act, non-compliance of the same may not be the ground for rejection of the election petition, as the election petition should not be dismissed at the threshold on the slightest pretext of one kind or the other, which may or may not have any material bearing on the factors to be strictly adhered to in such matters. The learned counsel referring to the date of filing of the election petition by the election petitioner personally i.e. on 24.6.2011 as well as the date when the affidavit was sworn before the Commissioner of Oath, who is also holding the post of the Stamp Reporter, dated 24.6.2011 and also the date seal of the High Court put in the election petition, which is 24.6.2011, submits that it was, in fact, presented to the Stamp Reporter on 24.6.2011, who may, because of other administrative or ministerial act required to be performed, signed the 'detail report' on 20.7.2011, which in any way cannot be construed presentation of the election petition on 20.7.2011 and not on 24.6.2011. The learned counsel further submits that for the inaction or delay in signing the said report by the Stamp Reporter relating to the presentation of the election petition, the election petitioner cannot be made to suffer when the election petitioner has no control over the functioning of the Stamp Reporter and he also cannot compel the Stamp Reporter to furnish his report on the date of presentation. The learned counsel, therefore, submits that the election petition was presented as required by law within 45 days from the date of declaration of the result of the returned candidate. 4. I have considered the submissions of the learned counsel for the parties and also perused the records of election petition No. 2/2011. 5. The result of the election of the aforesaid constituency was declared on 13.5.2011. The last date for filing the election petition, the period of limitation prescribed by sub-section (1) of Section81 of the Act being 45 days, was over on 27.6.2011. The election petition was filed on 24.6.2011 by the election petitioner supported by an affidavit sworn by him before the Commissioner of Oath on 24.6.2011. The date seal of the High Court containing the date 24.6.2011 was also put in the election petition. It, however, appears from the 'Detail report' which is available on record of the election petition, that the same was signed by the Stamp Reporter on 20.7.2011. In the said report, it has been mentioned that the election petition supported by an affidavit was personally presented by the election petitioner "today'' within 45 days from the date of the result of the returned candidate. 6. In the said report, it has been mentioned that the election petition supported by an affidavit was personally presented by the election petitioner "today'' within 45 days from the date of the result of the returned candidate. 6. Sub-section (1) of Section 81 of the Act requires presentation of an election petition, calling in question any election, to the High Court by any candidate at such election or any elector within 45 days from the date of election of the returned candidate. It does not prescribed before which officer of the High Court such election petition is to be presented. The High Court, however, framed the Rules authorizing the person, who is to receive such election petition filed under Section 80A of the Act. Rule 1 of Chapter VIII-A of the Rules provides that the election petition under Section 80A of the Act may be presented duly verified in the form prescribed under Section82 and 83 of the said Act, before the Stamp Reporter. For better appreciation Rule 1 of Chapter VIII-A of the Rules is quoted below:-- An election petition under Section 80A of the Representation of People Act, 1951 may be presented duly verified in the form prescribed under Section 82and 83 of the said Act, before the Stamp Reporter of this Court. 7. The Apex Court in Chandra Kishore Jha (supra), while considering the provisions of sub-section (1) of Section 81 of the Act and also the Patna High Court Rules providing for presentation of the election petition to the Stamp Reporter of the Court, has held that in order to constitute proper presentation of an election petition within the meaning of sub-section (1) of Section 81 of the Act, such presentation must be in the manner as provided in the High Court Rules, as no other mode of presentation of an election petition is envisaged under the Act or the Rules framed thereunder. 8. 8. In Jamal Uddin Ahmed (supra), the Apex Court was called upon to decide as to whether the presentation of the election petition under sub-section (1) of Section 81 of the Act must be before the Chief Justice or the Judge to constitute valid presentation as the said provision requires such presentation before the High Court and whether the presentation before the Stamp Reporter, in terms of the provisions contained in the High Court Rules would be valid presentation under sub-section (1) of Section 81 of the Act. The Apex Court has opined that presentation of an election petition to the High Court within the meaning of Section 81 of the Act without anything more would mean delivery of an election petition to the High Court though one of its officers competent or authorized to receive the same on behalf of and for the High Court. It has further been opined that receiving an election petition presented under Section 81 of the Act is not judicial function which needs to be performed by a Judge but a ministerial function simpliciter, which can safely be left to be performed by one of the administrative or ministerial staff of the High Court and such function can be delegated or to be performed through someone authority by the Rules. 9. A Single Bench of this Court in Pabindra Deka (supra) has held that to constitute a valid presentation within the meaning of sub-section (1) of Section 81 of the Act the election petition is to be presented before the Stamp Reporter in view of Rule 1 of Chapter VIII-A of the Rules framed by the High Court and the presentation of such election petition before the filing section does not tantamount to presentation before the Stamp Reporter. In the said case, the election petition was dismissed under Section 86 of the Act by holding that since the election petition was presented before the Stamp Reporter, as required under the Rules but before the filing section, the election petition was not presented as required under sub-section (1) of Section 81 of the Act. 10. In the said case, the election petition was dismissed under Section 86 of the Act by holding that since the election petition was presented before the Stamp Reporter, as required under the Rules but before the filing section, the election petition was not presented as required under sub-section (1) of Section 81 of the Act. 10. The Apex Court in G.V. Sreerama Reddy and another v. Returning Officer and others, reported in (2008) 8 SCC 736, has also opined that sub-section (1) of Section 81 of the Act requires presentation of an election petition by a candidate or elector personally to the authorized officer of the High Court and failure to adhered to such course would be contrary to the said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation, in view of Section 86 of the Act. 11. Sub-section (1) of Section 81 of the Act, as discussed above, does not provide the Officer of the High Court before whom the election petition is to be presented. No Rule has been framed in that regard under the provisions of the said Act. The High Courts, however, have framed the Rules laying down the manner of presentation of such election petitioner authorizing the Officer to receive such election petition. In this High Court also Rules relating to the presentation of the election petition, as discussed above, has been framed, requiring presentation of such election petition before the Stamp Reporter. As discussed above, the Apex Court in Jamal Uddin Ahmed (supra) has opined that the presentation of the election petition within the meaning of Section 81of the Act would mean delivery of the election petition to the High Court through one of its officer competent to receive the same behalf of and for the High Court and such act of receiving an election petition is a ministerial function simpliciter, which can be left to be performed by one of the administrative or ministerial staff of the High Court. The inaction or delay in taking action on the part of the Officers of the Court can prejudice none. For such inaction/delay in taking action of the part of an officer in prompt reporting about presentation of the election petition, the election petitioner cannot be made to suffer. The inaction or delay in taking action on the part of the Officers of the Court can prejudice none. For such inaction/delay in taking action of the part of an officer in prompt reporting about presentation of the election petition, the election petitioner cannot be made to suffer. An election petition is not to be thrown out at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to strictly adhered to in such matters. It is the substance not the form which would matter, otherwise the returned candidate would not only be in the look out microscopically for any kind of technical lacunae or defect to abort the endeavour of the petitioner to bring to trial the issues relating to corrupt practices in the election. It is also a well settled position of law that the procedures are hand-maid of justice and not designed to trim the justice at the threshold. 12. In the backdrop of the legal requirement, as discussed above, I shall now proceed to deal with the factual aspect of the case in hand. It appears from the record, as noticed above, the election petition was filed by the election petitioner himself on 24.6.2011. The High Court has also put the date seal of 24.6.2011 signifying filing. The affidavit supporting the averments in the election petition was also sworn in before the Commissioner of Oath on 24.6.2011. The posts of Stamp Reporter and the Commissioner of Oath are holding by the same person, which is evident from the signature of the Commissioner of Oath and the Stamp Reporter. The Stamp Reporter has furnished the 'detail report' about presentation of the election petition, which was signed on 20.7.2011. In the said report, it has specifically been mentioned that the election petition was presented by the election petitioner personally during office hours "today" and within the period of limitation. The records of the election petition reveal presence of the election petitioner in the High Court for filing the election petition on 24.6.2011 and not on 20.7.2011. It is nobody's case that the election petitioner was not present before the High Court on 24.6.2011 or was present personally only on 20.7.2011. Hence "today" as mentioned in the 'detail report' signifies 24.6.2011. It is nobody's case that the election petitioner was not present before the High Court on 24.6.2011 or was present personally only on 20.7.2011. Hence "today" as mentioned in the 'detail report' signifies 24.6.2011. Therefore, going by the report submitted by the Stamp Reporter, which was signed on 20.7.2011, it can safely be held that the election petition was presented before the Stamp Reporter on 24.6.2011, though the Stamp Reporter has furnished the report on 20.7.2011. The election petitioner cannot be made to suffer for the delay in reporting or signing the report by the Stamp Reporter i.e. on 20.7.2011, though the election petition was presented on 24.6.2011, as such act of an officer of the Court cannot cause any prejudice to the election petitioner, who has no control over the functioning of the Stamp Reporter. 13. That being the position, I am of the view that there was proper presentation of the election petition by the election petitioner within the meaning under sub-section (1) of Section 81 of the Act and within the period of limitation prescribed. The miscellaneous application, therefore, devoid of any merit and hence dismissed.