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2017 Supreme(Gau) 843
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SUMAN SHYAM, J.
Sri. Chandan Kumar Sarkar, Son of Late Bijay Chandra Sarkar – Applicant
Vs
Sri. Nirmalendu Banikya, Son of late Kandarpa Banikya @ Kandarpa Narayan Banikya – Opposite Party
IA(C) 2009 of 2016 in El. Pet 2 of 2016
Decided On : 15-09-2017
For the Applicant : Mr. J. Deka, Adv.
For the Opposite Party : Mr. M.U. Mamud, Adv.
Headnote:
Representation of Peoples Act, 1951 – Section 86(1) – Learned counsel appearing for the applicant – Application filed under Section 86(1) of the Representation of Peoples Act, 1951, by means of which, the applicant, who is the respondent no. 8 in the connected Election petition, has assailed the maintainability of the election petition on the grounds mentioned therein – From a perusal of the averments made in the application, it is apparent that the following contentions have been advanced by the applicant in support of his plea regarding maintainability of the election petition – Election petition is barred under the Law of Limitation since the same has been presented before the Stamp Reporter beyond the period of 45 days from the declaration of the results –Held, no doubt true that after the decision of this court in the case of Abdul Jabbar (Supra), law is well settled that an election petition has to be personally presented by the petitioner before the Stamp Reporter of the High Court within 45 days from the date of declaration of the results failing which, the same shall be held to be barred by limitation. But as has been held above, in the present case, the election petition had been presented by the petitioner before the Stamp Reporter within time – Therefore, the decisions relied upon would be of no assistance to him in the facts of the case – Application is devoid of any merit and therefore, stands rejected.
Heard Mr. J. Deka, learned counsel appearing for the applicant. Also heard Mr. M.U. Mahmud, learned counsel appearing for the opposite party/election petitioner.
2. By this order, I propose to dispose of the application filed under Section 86(1) of the Representation of Peoples Act, 1951, by means of which, the applicant, who is the respondent no. 8 in the connected Election petition, has assailed the maintainability of the election petition on the grounds mentioned therein.
3. From a perusal of the averments made in the application, it is apparent that the following contentions have been advanced by the applicant in support of his plea regarding maintainability of the election petition :-
(a) The election petition is barred under the Law of Limitation since the same has been presented before the Stamp Reporter beyond the period of 45 days from the declaration of the results.
(b) The election petition was not personally presented by the petitioner as per the mandate of Section 81 of the Act of 1951 and
(c) The opposite party/election petitioner has failed to make attestation in the accompanying copies of the election petition marking them as “true copies”.
4. By referring to the materials available on record, Mr. Deka, learned counsel for the applicant, submits that the election to the No. 35 Abhayapuri South (SC) Legislative Assembly Constituency was held on 11/04/2016 and the results were declared on 19/05/2016. Reckoned from 19/05/2016, the time for presenting the election petition was available under the law till 03/07/2016 i.e. for a period of 45 days. However, in the present case, the election petition was presented before the Stamp Reporter of this Court only on 16/07/2016 which was beyond the period of 45 days. It is also the submission of Mr. Deka that the election petition was neither presented personally by the petitioner nor were the copies attested as true copies. Since, the petition had been presented in contravention of the mandatory provision of section 81 of the Act of 1951, the same is not maintainable in the eye of law and is therefore, liable to be dismissed in limine.
5. Referring to the provisions contained in Chapter VIII-A of the Gauhati High Court Rules, 2015, Mr. Deka submits that an election petition filed under Section 80-A of the Representation of Peoples Act, 1951 must be presented before the Stamp Reporter of this Court with a Court Fee of Rs. 6/- affixed thereon, within 45 days from the date of election of the returned candidate. In the present case, although the election petition was shown to have been filed on 24/06/2016, yet, in reality, submits Mr. Deka, it was presented before the Stamp Reporter only on 16/07/2016.
6. By referring to the endorsement made in the case record as well as the statements made in the application, Mr. Deka submits that the categorical statements made in the application to the effect that the election petition was not personally presented by the election petitioner has remained un-rebutted. Therefore, it is established on the face of the record that the election petitioner had not personally presented the election petition as per prescription of law. Since Section 81 of the Act of 1951 requires the candidate to personally present the election petition, an omission to do so, according to Mr. Deka, would have fatal consequences and would constitute a ground for dismissal of the election petition on such count alone. In support of his aforesaid arguments, Mr. Deka has placed reliance on the following decisions :-
1. Abdul Jabbar Vs. Syeda Anwara Taimur and others reported in (1986) 1 GLR 257.
2. Pabindra Deka Vs. Monoranjan Das reported in 2005(2) GLT 133.
3. Jamal Uddin Ahmed Vs. Abu Saleh Najimuddin and others reported in (2003) 4 SCC 257.
4. G.V. Sreerama Reddy and another Vs. Returning Officer and others reported in (2009) 8 SCC 736.
7. Resisting the arguments advanced by the learned counsel for the applicant, Mr. Mahmud contends that the election petition
