D. Biswas, J.
1. The opposite party herein, filed Election Petition No. 2/2001 challenging the election of the Respondent Shri Banendra Kumar Mushahary to the Assam Legislative Assembly from Gouripur Constituency in the last election held on 10-5-2001. The Respondent Shri Mushahary in this application challenged the maintainability of the election petition on the ground that the election petitioner is not an elector or a candidate in the election and the election petition was not presented in person by the election petitioner on 20-6-2001 in accordance with the provisions of law.
2. The election petitioner in his reply specifically averred that he is the person whose name appears against Serial No. 1445 in the electoral roll of the Polling Station No. 86 (KA) at Dihidarpar M. V. School and that he had contested the election in the year 2001. It is further submitted that the election petition was presented in person by him on 20-6-2001 before the Stamp Reporter, an officer duly empowered under Rule 1 of Chapter VIII-A of the Gauhati High Court Rules.
3. I have heard Shri N.M. Lahiri, learned senior counsel for the applicant (respond
ent) and Shri A. M. Mazumdar, learned senior counsel for the opposite party (election petitioner).
4. During the course of argument, the following questions were raised for determination by this Court:--
(1) Whether the Chapter VIII-A of the High Court Rules providing for presentation before Stamp Reporter is unauthorized, without jurisdiction and is ultra vires Article 329(b) of the Constitution as well as Section 80, 80A and 81 of the Representation of the People Act, 1951?
(2) Whether the election petition was presented in person by the Election Petitioner on 20-6-2001 in accordance with the law or even before Stamp Reporter?
5. Before the above two questions are addressed, I would like to dispell the confusion sought to be created regarding the identity of the election petitioner. It would appear from the copy of the electoral list available on record that Mohibul Haque, son of Fayzal Haque, aged-40 years has been recorded as a voter of the aforesaid constituency against Serial No. 1445 of the Polling Station No. 86 (KA). In the election petition, the name as inserted appears to be 'Md. Mohibul Haque'. Learned counsel for the applicant argued that 'Md. Mohibul Haque' cannot be 'Mohibul Haque' as described in the electoral list, particularly with reference to the age mentioned in the verification of pleadings. In the verification instead of 40, the age appears to have been recorded as 44 years. In my opinion, the grounds aforesaid do not inspire confidence of this Court. The word 'Md.' prefixed before the name Mohibul Haque is a common word generally used by the Mohammanden persons and insertion of this word 'Md.' cannot be a ground to hold that the election petitioner Md. Mohibul Haque is not 'Mohibul Haque', recorded as a voter against Serial No. 1445. The election was held in the year 2001 and the voter list was prepared prior to that. The discrepancy in age recorded in the voter list and in the election petition are not of much significance to come to a conclusion that the election petitioner is a person other than 'Mohibul Haque'.
6. So far the first question is concerned, Shri Lahiri, Learned senior counsel argued at length to bring home the point that Chapter VIII-A of the High Court Rules which provides for presentation of election petition before the Stamp Reporter is unauthorized and without jurisdiction. To appreciate the argument advanced, we may refer to the provisions of Article 329(b) of the Constitution. It reads as follows :--
'329. Bar to interference by Courts in electoral matters.
Notwithstanding anything in this Constitution--
(a) .....
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.'
7. From Article 329(b), it is clear that the presentation of an election petition has to be before such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. Entry 72 of List-I of the Seventh Schedule of the Constitution read with the provisions of Article 246(1) show that appropriate legislature within the meaning of Article 329(b) of the Constitution of India is the Union Parliament. The Representation of the People Act, 1951 was enacted by the Parliament providing for the manner in which an election petition is to be tried and decided. This Act is a complete Code in itself and an election to the State Legislature can only be challenged in the manner as provided in the Act of 1951. The presentation of an election petition has to be in compliance with the provisions made therein. The law settled by the Apex Court is that the concept known to the common law and equity must remain stranger to the election law which has to be decided in strict compliance with the provisions of the Representation of the People Act, 1951. This view is available in the judgments of the Hon'ble Supreme Court in Punnuswamy, AIR 1952 SC 64; Jyoti Basu, AIR 1982 SC 983; Karunanidhi, AIR 1983 SC 558 and Dhartipakar, AIR 1987 SC 1477. The sanctity of an election, therefore, has to be preserved and cannot be lightly interfered.
8. Prior to 14-12-1966, Election Commission was vested with the jurisdiction to try elettion petition and the deeming provisions in Sub-section (2) of Section 81 provided that election petition presented to the Secretary of the Commission would be deemed to have been presented to the Election Commission. The provisions as it stood prior to the amendment in 1996 are as follows :--
'(2) An election petition shall be deemed to have been presented to the Election Commission.
(a) when it is delivered to the Secretary to the Commission or to such other Officer as may be appointed by the Election Commission in this behalf --
(i) by the person making the petition, or
(ii) by a person authorized in writing in this behalf by the person making the peti-
tion; or
(b) when it is sent by registered post and is delivered to the Secretary to the Commission or the Officer so appointed.'
9. Section 81 of the Representation of the People Act, 1951 was amended by the Union Parliament by the Act No. 47 of 1966. The words 'Election Commission' in subsection (1) of Section 81 were substituted by the word 'High Court' and Sub-section (2) of Section 81 was deleted. A new Section 80A was inserted which came into force with effect from 14-12-1966. This new Section provides for trial of election petitions by the High Courts. It reads as follows :--
'80A. High Court to try election petitions--
(1) The Court having Jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose :
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interest of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.'
10. Shrt Lahiri, learned counsel argued that the jurisdiction vested in the High Court is to be exercised by a single Judge and the Chief Justice shall assign one or more Judges for trial of election petitions. The provision for trial of an election petition by a single Judge on assignment by the Hon'ble Chief Justice was provided to specify 'such authority and in such manner' as provided in Article 329(b) of the Constitution. According to Shri Lahiri, the provisions of Section 80A and 81 do not mean all the Judges of the 'High Court' as authority is reserved to the Chief Justice to assign one or more single Judges for trial of election petitions. Needless to say that more than one Judges may be assigned for trial of different election petitions. This Court agrees to the above submission that the single Judge assigned to try an election petition by the Hon'ble Chief Justice shall be the High Court within the meaning of Sections 80A and 81 of the Act of 1951 for the said case after assignment and prior to assignment, the Chief Justice being repository of power to assign and also being a single Judge by himself, shall be the High Court for the purpose of Sections 80A and 81. There cannot be any dispute with regard to this position of law.
11. According to Shri Lahiri, a reading of Section 81 of the Representation of the People Act and the ratio of the judgments mentioned above make it clear that an election petition has to be presented to the High Court within 45 days from the declaration of the result by any candidate or an elector in person. Thereby, Shri Lahiri tried to show that an election petition has to be presented before the Hon'ble Chief Justice or the learned single Judge or Judges permanently or well-in-advance assigned to try election petitions. To appreciate this contention, we may quote hereinbelow the provisions of Sub-section (1) of Section 81 of the Act of 1951 :--
'81. Presentation of petitions -- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
Explanation -- In this sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
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12. It would appear from Section 81 that an' election petition has to be presented within 45 days to the High Court by the candidate or the elector, as the case may be. The words 'High Court' inserted by the Amendment Act 47 of 1966, according to Shri Lahiri, mean either the Hon'ble Chief Justice or the learned single Judge/Judges permanently or well in advance assigned for the purpose. According to Shri Lahiri in no case any authority other than a learned single Judge can be designated as the authority for the purpose of presentation. In his opinion, it would be ultra vires of Section 81 of the Representation of the People Act, Shri Lahiri further argued that Article 329(b) of the Constitution mandate that appropriate legislature, the Parliament in the instant case alone is competent to make law providing the manner as to how the election petition is to be presented, tried and decided. This provision in Article 329(b) starts with an non obstante clause in exclusion of all other authorities. Section 117 of the Act of 1951 provides the rule making power of the High Court for the limited purpose of fixation of quantum of security deposit. There is no other enabling provision in the Act of 1951 which can be invoked by the High Court to prescribe the manner of presentation. In support of this, Shri Lahiri has referred to the decision of the Hon'ble Supreme Court in Salya Narain v. Dhuja Ram reported in 1974 (4) SCC 237 : AIR 1974 SC 1185. The Supreme Court held as follows :--
'.....in the absence of any provision under the Act or the Rules framed thereunder, the High Court Rules cannot confer upon the Registrar or Deputy Registrar any power to .....'.
13. Shri Lahiri, learned senior Counsel also referred to the observations of S.A. De Smith in his Judicial Review of Administrative Action (fourth edition. Page 298) which reads as follows :--
'It is well known principle of law that when power has been confined to a person in circumstances indicating that trust is being placed in his individual Judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another'.....special Tribunals and public bodies exercising functions broadly analogous to Judicial area also precluded from delegating their powers decision unless there is expressly authority to that effect.....'.
14. A careful consideration of the above submission and the provisions of law dis- cussed above clearly show that no power has been given to the High Court to make Rules providing for presentation of election petition either in Article 329(b) or in the Act of 1951. A conjoint reading of the provisions in Article 329(b) make it abundantly clear that presentation of an election petition has to be only in the manner as provided in the Act of 1951 by the Parliament. This view is manifest in the provisions of Section 80, which reads as follows :--
'80. Election petitions -- No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.'
15. The mandate of the Union Parliament is that no election shall be called in question except by an election petition presented in accordance with the provisions of this Part. This Part means Part VI (Disputes Regarding Elections) of the Act of 1951. Section 81 in this Part provides that an election petition has to be presented before the 'High Court'. The mandate is conclusive and final. The words 'High Court' cannot be interpreted to include any other authority, not to speak of any official of the Registry.
16. Rule 1 of Chapter VIIIA of the Rules of Gauhatl High Court was incorporated vide Correction Slip No. 35 dated 8-6-1967. It was published in the Assam Gazette in its issue dated 22-3-1967. The rule reads as follows :--
'Special provisions relating to procedure in election petitions under the Representation of the People Act, 1951 as amended by Act No. XLVII of 1966.
1. An election petition under Section 80-A of Representation of the 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 Rest. 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-'.
17. The question is whether the said Rule have been framed under Section 80A of the Act of 1951. As already discussed above, Section 80A read with Section 80 clearly show that the High Court has not been vested with the powers to make Rules. The only Rule making power available to the High Court in Section 117 is in narrow campus and it cannot be enlarged to justify the validity of Rule 1 of Chapter VIII-A. The provisions of Section 80A of the Act cannot be interpreted to have vested with the Hon'ble Chief Justice any power to make Rules in this behalf or to delegate the statutory powers of the High Court to any other authority or person. The word 'High Court' incorporated in Sections 80A and 81 do not admit of such interpretation. Therefore, the provisions in the aforesaid Rule providing for presentation of an election petition before the Stamp Reporter, a Class-III (C-Grade) Officer of High Court Rules are not in keeping with the provisions of Article 329(b) of the Constitution as it cannot be said to have been framed under the enabling provision of the Act of 1951.
18. In Abdul Jabbar v. Sayeda Anwara Taimur, (1986) 1 GLR 257 it was held that Rule 1 of Chapter VIIIA of the Gauhati High Court Rules providing for presentation of election petition before the Stamp Reporter of the High Court is not ultra vires Article 329(b) of the Constitution as the Rules are framed under Article 225. Article 225 of the Constitution is relatable to the jurisdiction of the (existing) High Courts which reads as follows :--
'225. Jurisdiction of existing High Courts -- Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the Jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any manner concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.'
The words in Article 225 'subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature' clearly indicate that the High Court will have no unbriddled power to make rules under this Article. Article 329(b) which starts with a non obstante clause excludes all other provisions in the Constitution including the provisions of Article 225. The words 'subject to the provisions of this Constitution' in Article 225 and the non-obstante clause in Article 329(b) make it clear that as and when appropriate legislature enact the law providing the authority and the manner of presentation of election petition, any rule framed or provision made in exercise of powers under Article 225 shall cease to exist unless continuance thereof appears to be indispensible.
19. According to Shri Lahiri, learned senior Counsel, the functions assigned under. Sections 80A and 81 are essentially judicial in character and it cannot be equated with administrative function of the High Court. If the contention of Shri Lahiri is accepted, it would mean that presentation of an election petition to the Stamp Reporter is no presentation in the eye of law and it will invite dismissal of the election petition' at the threshold. The Rule 1 of Chapter VIII-A of the Gauhati High Court Rules cannot save the situation.
In Monohar Joshi v. Nitin Bhaurao Patil, reported in AIR 1996 SC 796, the question before the Hon'ble Supreme Court was whether non-compliance of Section 81 of the Act of 1951 would render the election petition liable to be dismissed under Section 86. The Hon'ble Supreme in Para 20 of the Judgment held as follows at page 803:--
'20. Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination of the election petition as presented. Sub-section (1) of Section 81 requires the checking of limitation with reference to the admitted facts and Sub-section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented. Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition. Section 117 requires verification of the deposit of security in the High Court in accordance with Rules of the High Court. Thus, the compliance of Sections 81, 82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the R.P. Act which is a judicial function. For this reason, the non-compliance of Section 83, is not specified as a ground for dismissal of the election petition under Section 86.'
20. The above observation of the Hon'ble Supreme Court that 'this is a ministerial act' sets at rest the controversy at hand. The function involved in the presentation of an election petition is essentially clerical in character. No exercise of judicial power is contemplated in the act of presentation and its acceptance. What is needed is the scrutiny of the election petition which is essentially clerical. Section 81 has been quoted hereinbefore. There appears to be a vacuum which speaks of presentation before the High Court and not the manner of presentation. This vacuum, in my opinion, can be filled up by the High Court in exercise of its inherent powers since the Rule in this behalf will not be in clash with any provisions of law made by the appropriate legislature. It is for this purpose, the continuance of the Rule appears to be indispensible till appropriate legislature provide the manner by legislation. Therefore, Rule 1 of Chapter VIIIA of the Gauhati High Court Rules need not be interfered on the given back-ground.
20-A. In the result, this miscellaneous application filed challenging the maintainability of the election petition is dismissed.