MISSION RANJAN DAS Vs. HAFIZ RASHID AHMES CHOUDHURY

JUDGEMENT

(1.) An objection to the maintainability of the election petition having been put on record by the applicant/returned candidate, this Court by order dated 19/10/2001 has framed the following two preliminary issues for deciding the question of maintainability of the election petition.

(2.) As the aforesaid two issues framed by order dated 19/10/2001, involve mixed questions of fact and law, parties were allowed to adduce evidence. The opposite party/election petitioner has examined three witnesses to establish that the election petition filed by him is maintainable. No witness has been examined on behalf of the applicant/returned candidate.

(3.) In so far as Issue No. 1 is concerned, the requirement of Section 81(1) of the Act read with Rule 1 of Chapter VIIIA of the Gauhati High Court Rules is that an election petition must be presented by the election petitioner in person before the Stamp Reporter within 45 days of the date of declaration of result which in the instant case can be determined to be 28.6.2001. PW-1 is the election petitioner himself. According to him, after the decision to file the election petition was taken, on or about 25.6.2001 the election petitioner was informed by his advocates that the election petition has been made ready for filing. Accordingly, on the evening of 25.6.2001, the election petitioner visited the office of his counsel and the election petitioner satisfied himself as regards to the contents of the election petition. On 26.6.2001, the election petitioner took away the election petition and nine copies thereof from the office of his counsel and requested one Jainul Abedin, PW-2, a junior counsel to come to his residence in the morning of 27.6.2001 so that the election petition could be filed. PW- I/the election petitioner has further stated that in the morning of 27.6.2001, when PW-2 came to his residence, he in the presence of PW-2 signed all pages of the election petition and the copies thereof except the first pages and the affidavit. At about 1 p.m. of 27.6.2001, the election petitioner alongwith PW-2 came to the High Court with the election petition and copies thereof for presentation before the Stamp Reporter. On reaching the office of the Stamp Reporter (PW-3), he met his engaged counsel Shri A.B. Choudhrury who was busy with some other work. Thereafter, the election petitioner occupied a chair in front of the Stamp Reporter and executed the affidavit before the Oath Commissioner. The Stamp Reporter was working as the Oath Commissioner also. After the affidavit was executed and necessary seals and signatures were affixed, the election petitioner/PW-1 signed on the first pages of the election petition and the copies with the following endorsement - Filed by Hafiz Rashid Ahmed Choudhury, the petitioner in person - 27.6.2001". Thereafter, the election petition and the copies were placed on the table of the Stamp Reporter and the Stamp Reporter was informed that the election petition is being presented. The Stamp Reporter examined the contents of the election petition and counted the copies and informed PW-1 that the election petition was found to be alright. Thereafter, according to PW-1, one Rajkumar Singh, believed to be the Filing Assistant, was called by the Stamp Reporter and the election petition and the copies alongwith all enclosures were handed over to the Stamp Reporter to the said person. The aforesaid person was asked to affix necessary seals and endorsement and enter the particulars in the filing register. PW-2 accompanied the Filing Assistant Rajkumar Singh and came back to the table of the Stamp Reporter after about 15/20 minutes. The election petition and the copies were handed back to the Stamp Reporter. PW-1 has further deposed that he had a look at the check slip as well as the first page of the election petition. In so far as the election petition is concerned, he found a round seal somewhere in the bottom of the first page with the date - 27.6.2001. PW-1 has also deposed that on the left side of the top portion of the check slip there is an initial with the date 28.6.2001. Thereafter, as the Stamp Reporter had informed the PW-1 that the presentation had been done as required, PW-1 alongwith his counsels left the office. PW-1 has proved the Election petition filed by him which has been marked as Ext. P-1. He has also proved the endorsement with the signature and date appearing on the first page of the election petition as Ext.P-1(1). The round seal of the Filing Assistant has been proved as Ext.P-1(2). This witness has proved Ext.P-2 namely the check slip and P-2(1) namely the initial of the Filing Assistant. He claims to be conversant with the signature and initials of the Filing Assistant as in the course of his legal practice in the High Court, he had the occasion to deal with the aforesaid Filing Assistant in the normal course of office work. No cross examination of PW-1 has been made by the opposite party/returned candidate except a mere suggestion to the effect that the election petition was not presented in person before the Stamp Reporter on 27.6.2001.