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TMI Blog2003 (2) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, conducted the preliminary scrutiny thereof, and, along with his note, put up the same before the Designated Election Judge. The appellant respondent before the High Court) on being noticed and having been served with a copy of the election petition, filed an application raising preliminary objection to the maintainability of the petition, seeking its dismissal in limine under Section 86 of the Act for non-compliance with Section 81 of the Act. The gist of the plea raised by the appellant is that the Election Petition should have been presented either before the Designated Election Judge or the Chief Justice of the High Court; and that the presentation before the Stamp Reporter is invalid under Section 81 of the Act; and therefore, the petition is liable to be dismissed without trial. The learned Designated Election Judge has overruled the objection preferred by the appellant and held that the election petition was properly presented. In forming this opinion the learned Designated Election Judge has relied on Chapter VIIIA of the High Court Rules which will be noticed hereafter at an appropriate place. The facts in the other two appeals are similar and it would suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to vote at the election to which the election petition relates, whether he has voted at such election or not. 86. Trial of election petitions.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation.- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A. xxx xxx xxx xxx Developing their submissions further, the learned counsel appearing for the appellants submitted that an election petition has to be presented to the High Court. Under Articles 214 and 216 of the Constitution, there shall be a High Court for each State and every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint. The Constitution and the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Benches at Kohima, Imphal and Agartala 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 (I). The petition shall be legibly type-written or printed in the English language on durable foolscap paper or other paper similar to it in size and quality, book-wise, on 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 and 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 refiling. It was submitted on behalf of the respondents that the presentation having been made in conformity with the Rules, no exception can be taken to its validity. To this the learned counsel for the appellants replied by submitting that the only provision which empowers the rules being framed under the Act is contained in Section 169, which contemplates the rules for carrying out the purposes of the Act being made by the Central Government after consulting the Election C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct No.47 of 1966. It is a constitution Court and a Court of record having plenary jurisdiction. Dealing with Statutes conferring power; implied conditions, judicial review , Justice G.P. Singh states in the Principles of Statutory Interpretation (Eighth Edition 2001, at pp. 333,334) that a power conferred by a statute often contains express conditions for its exercise and in the absence of or in addition to the express condition there are also implied conditions for exercise of the power. An affirmative statute introductive of a new law directing a thing to be done in a certain way mandates, even if there be no negative words, that the thing shall not be done in any other way . This rule of implied prohibition is subservient to the basic principle that the Court must, as far as possible , attach a construction which effectuates the legislative intend and purpose. Further, the rule of implied prohibition does not negative the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. To illustrate, an Act of Parliament conferring jurisdiction over an offence implies a power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd v . Haji Daud Haji Harun Abu and Ors., [1966] 11 SCC 23, this Court held that the conferral of incidental and ancillary powers necessarily flown from the conferral of the substantive power. It is well settled that where a substantive power is conferred upon a court or tribunal, all incidental and ancillary powers necessary for an effective exercise of the substantive power have to be inferred . Undoubtedly clause (b) of Article 329 of the Constitution speaks of an election petition being presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. The Representation of the People Act, 1951 is such law made by the Parliament. Section 80A of the Act confers jurisdiction to try an election petition upon the High Court. By no stretch of imagination it can be said that the presentation of an election petition is part of the trial of an election petition. Section 81 of the Act prescribes limitation, the manner and requirements of presentation and that the election petition may be presented to the High Court. The term High Court in Section 81 has been used to denote an institution and not literally the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times. The Judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions post-decision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done (Law Lexicon, Ibid., p. 1234). In ministerial duty nothing is left to discretion; it is a simple, definite duty. Presentation of election petition to the High Court within the meaning of Section 81 of the Act without anything more would mean delivery of election petition to the High Court through one of its officers competent or authorized to receive the same on behalf of and for the High Court. Receiving an election petition presented under Section 81 of the Act is certainly not a judicial function which needs to be performed by a judge alone. There is no discretion in receiving an election petition. An election petition, when presented , has to be received. It is a simple, definite duty. The date and time of presentation and the name of person who presented (with such other particulars as may be prescribed) are to be endorsed truly and mechanically on the document presented. It is a ministerial function simplicitor. It can safely be left to be performed by one of the administrative or ministerial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petition; or (b) when it is sent by registered post and is delivered to the Secretary to the Commission or the officer so appointed. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Sub-Section (1) of the above said provision required the election petition being presented to the Election Commission. Sub-Section (2) provided for the election petition being delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission or even being sent by registered post and delivered to the Secretary to the Commission or the officer appointed so as to be deemed to have been presented to the Election Commissioner. While High Court has been substituted in place of Election Commission in sub-Section (1), sub-Section (2) of the erstwh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Shri Saingura v. Shri F. Sapa and Ors., (1990) 2 GLR (NOC) 48. So is the view taken by the High Court of Allahabad in Nawab Khan v. Vishwanath Shastri, AIR (1993) Allahabad 104. We find ourselves in agreement with the view so taken by the learned single judges of Gauhati and Allahabad High Courts. During the course of hearing a recent decision by a learned single Judge of Gauhati High Court in Utpal Dutta v. Indra Gogoi, (Misc. Case No. 13/2001 in E.P.No.7/2001 decided on 29.8.2002) was brought to our notice wherein Rule 1 of Chapter VIIIA of Gauhati High Court Rules has been struck down as ultra vires of Sections 80, 80A, 81 of the RPA read with Article 329 (b) of the Constitution. It was forcefully submitted by the learned counsel for the appellants that the rule having been struck down as ultra vires, it would be deemed to be non-existent and therefore all the election petitions presented to the Stamp Reporter of Gauhati High Court would be non est and such election petition cannot be set down for hearing and be tried. The question of the vires of the abovesaid rule does not directly arise for decision before us as the same was not put in issue in any of the three case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h decision does not run counter to any rule of law it is binding and must be upheld. Strange consequences would follow if the submission made on behalf of the appellants and the reasoning which has prevailed with the learned single Judge of Gauhati High Court in Utpal Dutta v. Indra Gogoi, (supra) was to be accepted. The jurisdiction to try an election petition has been conferred by the Parliament on the High Court so as to carry out the mandate of Article 329 of the Constitution. Neither the Parliament nor the Central Government have exercised their power by designating an authority to whom the election petition can be presented. There is a void left open by legislation. The gap is not to be found in the jurisdiction created nor in the substantive provision; the gap is in the field of procedural law, for failure to specifically enact an incidental or ancillary provision which would enable the statutory right of an election petitioner being exercised so as to enable the election petition, in the hands of the election petitioner reaching the High Court-the competent jurisdiction, for being subjected to hearing and trial. We have to attribute an intention to the Parliament that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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