NABA KUMAR DOLEY Vs. BHARAT CHANDRA NARAH

JUDGEMENT

(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. 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, 1999 AIR(SC) 3558 Jamal Uddin Ahmed v. Abu Saleh Najmuddin and another, 2003 4 SCC 257 and a Single Bench judgment of this Court in Pabindra Deka v. Monoranjan Das, 2005 2 GauLT 133.

(3.) Mr. Dey, learned counsel appearing for the opposite party/election petitioner, on the other hand, has submitted that subsection (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.