Abdul Jabbar vs Syeda Anwara Taimur and Others

Manisana, J.—At the last general election of the State Legislative Assembly of Assam held in 1983, the Petitioner and the Respondents 1 and 2 contested as candidates from Dalgaon Legislative Constituency. The Respondent 1 secured 15605 Votes, the Petitioner secured 14051 and the Respondent 2 secured 3443 votes. As such, the responent I was duly declared elected to the Assam Legislative Assembly from Dalgaon Constituency on 22nd February 1983. The Petitioner has challenged the election of the Respondent 1 on various grounds in this Court.

The notice of the election petition has been served on each of the Respondents and the Respondent 1 Syeda Anwar Taimur, has filed an application dated 16th June, 1983 for dismissal of the petition u/s 86(1) of the Representation of People Act, 1951(the Act, for short) stating that the election petition was not presented in the manner and method prescribed for the presentation of an election petition under Sections 80, 80A and 81 of the Act and the Conduct of Election Rules, 1961 that the Rule-1 of Chapter VIII-A of the Rules of the Gauhati High Court, which provides that an election petition may be presented to the Stamp Reporter of the High Court, is violative of Sections 80, 80A and 81 of the Act and Rule 1 of Chapter VIII-A of the Gauhati High Court Rules is arbitrary, illegal and null and void, that the election petition was not presented or filed by the Petitioner in person, or by his recognised agent or by his counsel; that on 8th April, 1983, a Bandh for 7 (seven) hours was called in the State of Assam and on 8th April, 1983 the functioning of the High Court was affected by the said Bandh call as except for a few Hon''ble Judges, no office employee of the High Court could attend his duties in the sections and the Filing Section was closed after the door was initially opened for about an hour or so in the morning; that on 8th April, 1983, due to the said Bandh call the Stamp Reporter-cum-Commissioner of Oaths did not attend work and in fact he did not sign the Daily Attendance Register along with other assistants in his section. It is also stated that the filing register shows that no filing was recorded on 8th April, 1983 and although the records of the present election petition shows that the affidavit of the election Petitioner was sworn and he was identified on 8th April, 1983 at 1 P.M.; and it bears the seal of the High Court dt. 8th April 1983 but this position Is not correct in view of the fact stated above, the Respondent 1 has further stated that the Filing Section remained closed at the relevant time, namely at 1 P.M. on 8th April, 1933 and the report of the Stamp Reporter was made on 11 April, 1983 but the filing register records the filing of the election petition only as on 13th April 1983, vide tender No. 2361/39 and the filing register does not show that the election petition was presented on 8th April 1983 and therefore the election petition is barred by limitation u/s 81 of the Act.

Thereafter six preliminary issues have been framed and the contesting parties have adduced evidence. The issues framed are as follows:

(1) Whether Rule 1 of Chapter VIII A of the Gauhati High Court Rules which provides for presentation of the election petition before the Stamp Reporter of the High Court is ultra vires Article 329(b) of the Constitution and Section 169 of the Representation of People Act, 1951 as amended?

(2) Whether the said rule which provides for presentation of the petition before the Stamp Reporter of the High Court is void, being violative of Sections 80, 80A, and 81 of the Representation of the People Act, 1951, as amended?

(3) Whether the presentation of the election petition-before the Stamp Reporter of the High Court is in compliance with the provision of Section 81 of the Act? If not, whether the petition is liable to be dismissed u/s 86 of the Act?

(4) Whether the petition is liable to be dismissed not being presented within time, as provided under Sub-section (1) of Section 81 of the Representation of the People Act, 1951, (a) inasmuch as the petition was not presented on 8th. April, 1983 as alleged in paragraphs 15 to 21 of the Written Statement of Respondent No. 1, and (b) inasmuch as the petition has not been filed within 45 days from the date of election of the Respondent No. 1 to 68, Dalgaon Assembly Constituency?

(5) Whether the election petition was presented by the candidate, Petitioner, in accordance with Sub-section (1) of Section 81 of the Representation of the People Act, 1951? If not, whether the petition is liable to be dismissed u/s 68 of the Act, 1951?

(6) Whether there has been non-compliance of Sub-section (3) of Section 81 of the Act, 1951, inasmuch as no copy of the challan showing deposit of Rs. 2,000/- as security was served along with the true copy of the petition on the Respondent No. 1, as mentioned in paragraph 17 of the election petition. If so, whether the election petition is liable to be dismissed u/s 86 of the Act, 1951?

Re: Issues 1, 2 and 3:

Rule 1 of Chapter VIII. A of the Gauhati High Court rules runs:

An Election petition u/s 80 A of the Representation of People 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. 600 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, Every such petition shall be accompanied by:

(a) as many copies thereof as there in Respondents mentioned in the petition together with one extra copy, all the copies being fully attested by the Petitioner under his own signature to be a true copy of the petition and as many envelopes as there are Respondents bearing requisite postage stamps to enable service to be effected by registered post with acknowledgement due;

(b) as many printed forms of notices, duly filled in, as there are Respondents;

(c) an affidavit in support of the contents of the petition as prescribed in Rule 83(c) of the aforesaid Act where necessary, and

(d) a chalan showing the deposit of Rs. 2,000/- (Rupees two thousand) into the State Bank of India, Gauhati Branch in favour of the Registrar of this Court, as security for the costs of the petition.

Provided that such deposit in respect of petition to be filed in the Benches at Kohima, Imphal and Agnrtala may be made in the State Bank of Kohima, Imphal and Agartala, as the case may be, in favour of the Deputy Registrar of the Bench concerned.

Note (1)- The petition shall be legibly type-written or printed in the English language, on durable foolscape paper or other paper similar to it in size and quality, book wise, one side of the paper, with not more than 20 or less than 18 lines, of about 10 words in each line, on each page and with an inner margin of about an inch arid a quarter-wide.

Note (II)- Any petition which is presented out of time and without any of the above mentioned requisites duly satisfied shall forthwith be returned by the Stamp Reporter for refilling.

Mr. N.M. Lahiri learned Counsel for the Respondent 1, has submitted that the Rule prescribing for presentation of the election petition to the Stamp Reporter is violative of Article 329(b) and Sections 80, 80A and 81. He has submitted that Section 81 provides that an election petition shall be presented to the High Court, Under Article 216, every High Court shall consist of a Chief justice and such other Judges as the President may from time to time decided it necessary to appoint. The learned Counsel has also submitted that the expression ''consist of'' means ''composed of.'' Therefore, it excludes other officer''s of the High Court other than the Chief Justice and other Judges and that the High Court means full Court and in certain oases the Chief Justice alone. Keeping in view the non-obstinate Clause in Article 329(b) of the Constitution and the provision of Section 81, the election petition must, be presented to the Chief Justice or to a Judge of the High Court. Therefore, the Rule which provides for presentation to the Stamp Reporter is against provisions in Article 329(b) and Sections 80, 80A, and 81.

My attention has been drawn to a series of decisions of the Supreme Court, in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, , Sri Baru Ram Vs. Prasanni and Others, , Krishan Gopal Vs. Sri Prakashchandra and Others, , Hukumdev Narain Yadav Vs. Lalit Narain Mishra, Satya Narain v. Dhuja Ram AIR 1974 SC 11 Sharif-ud-din Vs. Abdul Gani Lone, , Jyoti Basu and Others Vs. Debi Ghosal and Others, , M. Karunanidhi Vs. Dr. H.V. Hande and Others, A close realing and analysis of the decision of the Supreme Court, in short, shows that where a right or liability is created by a special statute, which gives a special remedy for enforcing it, and remedy provided by the statute must be strictly followed or availed of The right to vote or stand as a candidate for an election is not a civil right but a creature of statute or special law and it must be subject to limits imposed by it. The Act has furnished a complete Code for challenging an election and the election must be challenged in the manner provided under the Act. The concept of common law right and equity is and must remain alien or stranger to the election law or election dispute. However, the Supreme Court has not held that an election petition shall be presented to the Chief Justice or to a Judge of the High Court.

If the proposition of the learned Counsel as already stated is well founded, the Rule will be void. It is therefore, to find out whether an election petition shall be presented as contended. For the purpose of trial, Sub-section (2) of Section 80A has specified the "instrumentality" through which the jurisdiction of the High Court to try an election petition shall be exercised, that is the Judge or one of the Judges who has or have been assigned by the Chief Justice. But Section 81 has not provided any procedure for the purpose of presentation of an election petition. In other words, Section 81 has not specified the ''instrumentality'' through which an election petition is to be received. Therefore the ''instrumentality'' through which election petition is to be received is to be trusted out.

The High Court has power to frame Rules as provided under Article 225 of the Constitution. Section 117 also provides that the costs and security for costs of the petition are to be deposited in accordance with the Rules of the High Court. The High Court has framed the Rules under Article 225 and/or other provisions enabling in this behalf prescribing procedure for presentation of an election petition filed u/s 80A, Io the Rules it has been provided that an election petition may be presented to the Stamp Reporter. These Rules are not framed under any provision of the Act. The Rule is not inconsistent with the provisions in Section 81 as the Section 81 has not provided the ''instrumentality'' to whom an election petition is to be presented u/s 81. Section 81 also does not provide or specify that the petition shall be presented to the Chief Justice or a Judge of the High Court. In M. Karunanidhi Vs. Dr. H.V. Hande and Others, the Supreme Court observed:

There are different sets of rules framed by different High Courts under Article 225 of the Constitution regulating the practice and procedure to be observed in all the matters coming before the High Court in exercise of its jurisdiction u/s 80A of the Act;

Although the above observation of the Supreme Court, does not relate to the proposition which is under consideration in the present case, it has its own value and it reinforces the above view of mine.

The High Court is a legal entity. It consists of not only the Chief Justice and other Judges but also Officers of various departments. When the Stamp Reporter receives the election petition or the election petition is presented to the Stamp Reporter be does not do it as a delegate of the High Court. The Stamp Reporter is a limb of the High Court and not a delegate as the Stamp Reporter is entrusted to perform his duties under the rules. By framing the Rules, the High Court has not parted itself with the power to act under the Act. The Chief Justice is the Head of the body. The Judges and other Officers are limbs or parts of the body (High Court). It therefore concluded that the said Rules are not inconsistent with the Article 329(b) and the provisions of Section 81 or any other provisions of the Act.

For the foregoing the reasons contentions of the Respondent 1 that the Rule of this High Court prescribing for presentation of an election petition to the Stamp Reporter is in violation of Article 329 (b) and Section 80, 80A and 81 and that the petition is to be presented to the Chief Justice or a Judge of the High Court must A such, issues 1, 2 and 3 are decided in favour of the Petitioner. However it is made clear that this decision relates only to the part of the Rule prescribing for presentation of an election petition to the Stamp Reporter, and not other parts of the Rules. The counsel also has not assailed the other parts of the rules although some parts of the Rules have not been happily worded.

Re: Issue No. 4:

By whom an election petition is to be presented? Mr. Lahiri has submitted that an election petition must be presented by the candidate himself though the word, ''himself'' or ''personally'' have not been incorporated in the body of the Section 81. learned Counsel has drawn my attention to a decision of the Supreme Court in Sheo Sadan Singh Vs. Mohan Lal Gautam, and another decision of the Madhya Pradesh High Court in Ramanlal 56 ELR 174 ; AIR 1978 NOC 182.

In Raja Dhruv Dev Chand Vs. Harmohinder Singh and Another, the Supreme Court has held that the election petition presented by an Advocate''s clerk in the immediate presence of the candidate to the Registrar of the High Court, is in substance though not in form, it was presented by the candidate himself, Full facts of the case are not in judgment. However, the decision shows that if the clerk was not authorized to present the election petition, the presence of the candidate himself was a valid presentation u/s 81, or, if the clerk was authorized to present the petition, under the High Court Rules, the presence of the candidate implied that an election petition must be presented by the candidate himself. Be that as it may, the decision of the Supreme Court shows that presvatation of an election petition is not a mere or idle formality.

In Ramanlal AIR 1978 NOC 182 ; 56 EIR 174 , the Madhya Pradesh High Court has held that where the manner of presentation is prescribed in the election law, its scope can not be extended or enlarged by importing into the provisions something from the general law. Therefore, the presentation of the election petition ought to have been made by the candidate himself. Although the words ''himself'' or ''personally'' have not been incorporated in the body of the Section 81, the intention of the legislature is clear. Is the view of the Madhya Pradesh High Court correct? A reading of Article 329(b) with Sections 81,82, 83 and 117 shows that the manner of presentation an election petition is provided. In the series of the cases of the Supreme Court referred to above, the Supreme Court has held that the common law and equity are alien or foreign to the election dispute and that the Act has furnished a complete Code for challenging an election and the election must be challenged t in the manner provided under the Act. u/s 81, the election petition may be presented by the candidate at an election, In A. Madan Mohan Vs. Kalavakunta Chandrasekhara, the Supreme Court observed:

It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above this Court clearly held that if the arguments of the Appellant (in that case) were to be accepted, it would be stretching and straining the language of Sections 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once for all.

The decision of the Supreme Court reveals that the word ''candidate'' is to be interpreted literally and strictly to promote the object of the Act. As such, an advocate cannot be said to be a candidate, under the Act. In view of the discussion above, I respectfully agree with the conclusion reached by the Madhya Pradesh High Court, and I hold that the election petition must be presented by the candidate himself.

The next question which arises for consideration is whether P.W. 3, Buzarbarua, Commissioner of Oaths-cum. Stamp Reporter, was present on 8th April 1983. The Petitioner examined 4(four) witnesses, namely Petitioner himself (P.W. 1), K.V. Gopalachari (P.W. 2), Buzarbarua (P.W. 3 ), and Borthakur Advocate (P.W. 4). P.W., Gopalachari, was the Deputy Registrar (J) of the High Court of the e relevant time. His statement as P.W. 2 was that although there was a Bandh call on 8th April 1983, he attended the office. There was sitting of a Division Court in Court No. 1. On that day, as the Bench Clerk and the Stenographer did not attend the Court, he wrote Orders which were dictated in Court No. 1. When he was in the office of the Registrar (J), Barthakur, Advocate, (P.W. 4) entered into the office of the Registrar (J) at about 11.30 A.M. along with another person and told him that they had come to file an election petition, but he could not find the Stamp Reporter, Buzarbarua (P.W. 3) and they gave the original election petition to him in the office of the Registrar (J). He telephoned Mr Saikia, Deputy Registrar (A) for sending Buzarbarua (P.W. 3) as the last date for filing the election was on 8th April 1983. He also requested Barthakur (P.W. 4) to wait for some time as Buzarbarua (P.W. 3) was expected to come soon to the High Court. After some time, when be was in his office, Buzarbarua (P.W. 3) entered into his office and he handed over the original election petition to Buzarzarua P.W. 3 to do the needful. P.W. 3 Buzarzarua who was the Stamp Reporter-cum-Commissioner of Oath stated that on 8th April, 1983, be could not come to the office due to Bandh call. He, however, came to the High Court at about 12.30 hours as Mr. Saikia informed him that the Deputy Registrar (J) had telephoned Mr. Saikia to send him the office to attend an urgent duty relating to an urgent petition. He went to the High Court as directed by Mr. Saikia and went to the office of the Deputy Registrar (J) at about 12.30 hours. The Deputy Registrar (J) handed over the original election petition to him asking him to do the needful, P.Ws. 1 and 4 also stated about their entering into the office of the Registrar (J), handing over of the original election petition to the Deputy Registrar(P.W. 2), waiting for coming of the Commissioner of oaths and handing over of the original petition again to Buzarbarua (P.W. 3) as stated by P.Ws. 2 and 3. The statements of is 1 to 4 corroborated each other. The Deputy Registrar (J) is an independent witness. There is no material to disbelief. The statements of P.Ws. 1 to 4 relating to the attendance of P.W. 3, the Commissioner of Oaths. The P.W. 3 stated that be did not sign the attendance Register (EX. R-1) on 8th April, 1983. The non-existence of the signature of the P.W. 3 in the attendance register in the circumstances of that case is a weak and negative evidence. This evidence is to be read along with the other evidence. Considering the evidence on records, I conclude that the Commissioner of Oaths-cum-Stamp Reporter was present on 8th April, 1983 at about 12.30 hours.

The next question which arises for consideration is whether the election petition was presented in terms of the expression "presentation" used in Section 81. The word ''presentation'' has many different significations in the context and circumstances in which it is used. Tie dictionary meaning of ''presentation'' is delivering; filing; showing. A mere depositing of the petition and marking of filing by the clerk is not a filing. The paper is said to be filed when it is delivered or deposited to the proper office or custodian for keeping it on file. A file mark or endorsement on the petition is merely an evidence of filing and not actual tiling since filing is delivery to the proper officer or clerk for his acceptance for record in his office.

In the present case, evidence shows that P.W. 3 bad three functions, namely, Superintendent of Filling Section, Stamp Reporter and Commissioner of Oaths. His function as the Stamp Reporter was different from that of the Commissioner of Oaths. As a Commissioner of Oaths, be was to administer Oaths to the Petitioner and do other duties prescribed under the High Court Rules relating to affidavit. As a Stamp Reporter he was to apply his mind to the petition and accompanying the requisites and for racking his note.

The Commissioner of Oaths (P.W. 3) stated:

Mr. Barthakur told that he wanted to file that election petition that very day as it was the last day for filing the election-petition. He filed the petition before me that day. I accepted it and opened another almirah of the filing assistant and brought out the rubber stamp of the filing section, I put the rubber stamp of the filing section, Ext. P.3 is the seal which I put on that day i.e. 8th April 1983 on the first page of the election petition. I did not make any entry in any register and I kept the petition in the almirah of the filing assistant.

The evidence of P.W. 3 above shows that be just put the lubber stamp of the Filing Section and kept the petition in the almirah of the Filing Assistant, He did not make any entry in any register. His evidence further shows that the dealing assistant was to scrutinise first and then the petition was to be placed before him for examination, He examined and scrutinised the petition only on 11th April 1983 according to the Rules of the High Court. Therefore, he did not apply his mind to the petition as he did not examine the petition on 8th April 1983. Though it was the duty of the Filing Assistant, be only put the filing mark. As already stated above mere marking of filing mark is not actual filing. In this view of the matter, there was no filing at all in accordance with law and the filing will be deemed to have been made on 11th April 1983 in the context of this case.

The learned Counsel for the Respondent-1 has drawn my attention to the entries in respect of the present petition, Ex. R. II made on 8th April 1983, Ex. R-2(I) made on 13th April 1983 showing the tender No. as 2361/39, Ex. R-7(1), Note of the Dealing Assistant made on 2lst April 1983, Ex. R-10, Note of the Deputy Registrar (J) made on 21st April 1983 and Ex. R-6 showing the figure ''11'' overwritten. The learned Counsel has submitted that these entries shows that the election petition was not filed at all on 8th April 1983. These exhibits entries do not help the Respondents as the person who had made the entries have not been examined. The Respondent 1 examined three witnesses namely, R.W. 1 Respondent-1 herself R.W. 2, Suakat Ali, Advocate and R.W. 3, the Registrar (J). The evidence of R.W. 2, Suakat Ali, Advocate is relevant in connection with the Issue No. 4. His evidence is that as requested by the Respondent-1 he made an enquiry on 9th April 1983 about the filing of the election petition in the filing section, and be also met the Stamp Reporter and be ascertained from him that no election petition was filed till that time. P.W. 3 denied this statement. The statement of R.W. 2, Suakat Ali, is not corroborated by any other evidence or witness.

For the foregoing reasons. I bold that the election petition will be deemed to have been filed or presented on 11th April 1983 and that since the last date of filing the election petition was 8th April 1983 the election petition is barred by limitation. Therefore, the issue No. 4 is decided against the Petitioner.

Re: Issue No. 5:

The question which now arises for consideration is who presented the election petition. At already stated, the original petition which was handed over to the Deputy Registrar (J) in office of the Registrar (J) by the lawyer of the Petitioner and/or the Petitioner was again handed over to the Commissioner of Oaths, Buzarbarua. P.W. 3 by the Deputy Registrar (J) in his office. The evidence of P.W. 3 shows that at the time of the alleged filing of the petition only the P.W. 3, the Commissioner of Oaths and P.W. 4, Burthakur, Advocate of the Petitioner, were the only persons in the room of the Commissioner of Oaths. The evidence of P.W. 3, further shows that he left the office room immediately after the Oath was administered to the Petitioner and keeping the election petition in the almirah of the Filling Assistant and that be did not make any entry on that day, and that only on 11th April 1983, as a Stamp Reporter, after marking the scrutiny of the election petition made the note (Ext. 4) on the back page of the petition to the effect that the petition was in form and in time. P.W. 3, Commissioner of Oaths did not say about the presence of the Petitioner at the time of the alleged filing of the election petition. As already stated above, the Petitioner came out immediately from the room of the Commissioner of Oaths after the Commissioner of Oaths administered Oath to him and he was waiting outside the room for his advocate and that when he left the room of the Commissioner of Oaths, his advocate P.W. 4. remained in the room of the Commissioner of Oaths. P.W. 4 remained in the room for about 10/12 minutes. P.W. 4. in the first part of his examination-in-stated that the Petitioner had filed the election petition through him as an advocate on 8th April 1983 Ex. R-6(2) on the first page of the petition shows that the petition was filed by the Petitioner through his advocate, P.W. 4, But the witness P.W. 4 stated a contradictory statement in the second part of his examination-in-chief. He stated that after completion of the formalities of affidavit the election petition was presented by the Petitioner in his presence to the Stamp Reporter. The statement of the P.W. 4 is not supported by the evidence of P.Ws. 1, 2 and 3. All those circumstances show that the petition was not presented by the Petitioner himself or personally and also that it was not patented by his advocate in the'' immediate presence of the Petitioner, The issue is therefore decided against the Petitioner.

Re: Issue No. 6:

As already stated above the lawyer of the Petitioner and/or Petitioner handed over the original petition to the Deputy Registrar (J) and the Deputy Registrar (J) again banded over the same to the Commissioner of Oaths. The evidence of P.W. 3 shows is that when Barthakur, P.W. 4, alleged to have filed election petition, only the original petition was filed. It therefore, shows that the petition was not accompanied by the copies of the election petition as provided u/s 81(3). P.W. 4 did not state that he filed the election petition with the copies of the election petition. P.W. 3 knew the importance of the election petition, and on 9th April, 1983, when the Filing Assistant/attended the office, he told about, the filing of the election petition. But he made the report on 11th April, 1983 only. His delay in making the report shows that the petition was not accompanied by the copies of the petition as provided u/s 81(3) and the copies and requisites were filed afterwards. The learned Counsel for the Respondent-1 has drawn my attention to the office notice made on 21st April, 1983 and submitted that the office notes show that the copies were filed on 21st April, 1983. These notes may be made afterwards. Considering the evidence on record, I conclude that when the election petition was filed the petition was not accompanied by the copies of the election petition as required u/s 81(3) and as such, there was non-compliance with the provision of Section 81(3) of the Act. It has been settled, in a series of decisions of the Supreme Court that if there is non-compliance with the provision of Section 81(3) of the Act, the petition is liable to be dismissed.

As regards the allegation that do copy of the challan showing deposit of Rs. 2000 (Rupees two thousand) as security served along with the true copy of the petition on the Respondent No. 1. There are no sufficient evidence on record to show that no copy of the challan showing the deposit was served to the Respondent 1. Petitioner Respondent-1 P.W. (1) also has w not stated that she did not receive any copy of the challan. If Therefore, the Respondent has failed to prove the Allegations. In this view of the matter, the first part of the issue is decided against the Petitioner and the second part of the issue is decided in favour of the Petitioner.

In the result, the petition is dismissed. No costs.