The High Court has the inherent power to fill the vacuum in the manner of presentation of election petitions until appropriate legislation is enacted.

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 (respondent) 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 Sec. 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 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