Manisana, J. - (1.)AT the last general election of the State Legislative Assembly of Assam held in 1983, the Petitioner and the Respondents 1 and 2 contested as candidates from Dalgaon Legislative Constituency. The Respondent 1 secured 15605 Votes, the Petitioner secured 14051 and the Respondent 2 secured 3443 votes. As such, the respondent I was duly declared elected to the Assam Legislative Assembly from Dalgaon Constituency on 22nd February 1983. The Petitioner has challenged the election of the Respondent 1 on various grounds in this Court.
(2.)THE notice of the election petition has been served on each of the Respondents and the Respondent 1 Syeda Anwar Taimur, has filed an application dated 16th June, 1983 for dismissal of the petition under Section 86(1) of the Representation of People Act, 1951(the Act, for short) stating that the election petition was not presented in the manner and method prescribed for the presentation of an election petition under Sections 80, 80A and 81 of the Act and the Conduct of Election Rules, 1961 that the Rule -1 of Chapter VIII -A of the Rules of the Gauhati High Court, which provides that an election petition may be presented to the Stamp Reporter of the High Court, is violative of Sections 80, 80A and 81 of the Act and Rule 1 of Chapter VIII -A of the Gauhati High Court Rules is arbitrary, illegal and null and void, that the election petition was not presented or filed by the Petitioner in person, or by his recognised agent or by his counsel; that on 8th April, 1983, a Bandh for 7 (seven) hours was called in the State of Assam and on 8th April, 1983 the functioning of the High Court was affected by the said Bandh call as except for a few Hon'ble Judges, no office employee of the High Court could attend his duties in the sections and the Filing Section was closed after the door was initially opened for about an hour or so in the morning; that on 8th April, 1983, due to the said Bandh call the Stamp Reporter -cum -Commissioner of Oaths did not attend work and in fact he did not sign the Daily Attendance Register along with other assistants in his section. It is also stated that the filing register shows that no filing was recorded on 8th April, 1983 and although the records of the present election petition shows that the affidavit of the election Petitioner was sworn and he was identified on 8th April, 1983 at 1 P.M.; and it bears the seal of the High Court dt. 8th April 1983 but this position is not correct in view of the fact stated above, the Respondent 1 has further stated that the Filing Section remained closed at the relevant time, namely at 1 P.M. on 8th April, 1933 and the report of the Stamp Reporter was made on 11 April, 1983 but the filing register records the filing of the election petition only as on 13th April 1983, vide tender No. 2361/39 and the filing register does not show that the election petition was presented on 8th April 1983 and therefore the election petition is barred by limitation under Section 81 of the Act.
Thereafter six preliminary issues have been framed and the contesting parties have adduced evidence. The issues framed are as follows:

(1) Whether Rule 1 of Chapter VIII A of the Gauhati High Court Rules which provides for presentation of the election petition before the Stamp Reporter of the High Court is ultra vires Article 329(b) of the Constitution and Section 169 of the Representation of People Act, 1951 as amended?

(2) Whether the said rule which provides for presentation of the petition before the Stamp Reporter of the High Court is void, being violative of Sections 80, 80A and 81 of the Representation of the People Act, 1951, as amended?

(3) Whether the presentation of the election petition -before the Stamp Reporter of the High Court is in compliance with the provision of Section 81 of the Act? If not, whether the petition is liable to be dismissed under Section 86 of the Act?

(4) Whether the petition is liable to be dismissed not being presented within time, as provided under Sub -section (1) of Section 81 of the Representation of the People Act, 1951, (a) inasmuch as the petition was not presented on 8th. April, 1983 as alleged in paragraphs 15 to 21 of the Written Statement of Respondent No. 1, and (b) inasmuch as the petition has not been filed within 45 days from the date of election of the Respondent No. 1 to 68, Dalgaon Assembly Constituency?

(5) Whether the election petition was presented by the candidate, Petitioner, in accordance with Sub -section (1) of Section 81 of the Representation of the People Act, 1951? If not, whether the petition is liable to be dismissed under Section 68 of the Act, 1951?

(6) Whether there has been non -compliance of Sub -section (3) of Section 81 of the Act, 1951, inasmuch as no copy of the challan showing deposit of Rs. 2,000/ - as security was served along with the true copy of the petition on the Respondent No. 1, as mentioned in paragraph 17 of the election petition. If so, whether the election petition is liable to be dismissed under Section 86 of the Act, 1951?

(3.)RE : Issues 1, 2 and 3:
Rule 1 of Chapter VIII. A of the Gauhati High Court rules runs:

An Election petition under Section 80A of the Representation of 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 Rs. 600 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 later of those two dates, Every such petition shall be accompanied by:

(a) as many copies thereof as there in Respondents mentioned in the petition together with one extra copy, all the copies being fully attested by the Petitioner under his own signature to be a true copy of the petition and as many envelopes as there are Respondents bearing requisite postage stamps to enable service to be effected by registered post with acknowledgement due;

(b) as many printed forms of notices, duly filled in, as there are Respondents;

(c) an affidavit in support of the contents of the petition as prescribed in Rule 83(c) of the aforesaid Act where necessary, and

(d) a challan showing the deposit of Rs. 2,000/ - (Rupees two thousand) into the State Bank of India, Gauhati Branch in favour of the Registrar of this Court, as security for the costs of the petition.

Provided that such deposit in respect of petition to be filed in the 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 (1) - 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, 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 arid 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 refilling.

Mr. N.M. Lahiri learned Counsel for the Respondent 1, has submitted that the Rule prescribing for presentation of the election petition to the Stamp Reporter is violative of Article 329(b) and Sections 80, 80A and 81. He has submitted that Section 81 provides that an election petition shall be presented to the High Court, Under Article 216, every High Court shall consist of a Chief justice and such other Judges as the President may from time to time decided it necessary to appoint. The learned Counsel has also submitted that the expression 'consist of' means 'composed of.' Therefore, it excludes other officer's of the High Court other than the Chief Justice and other Judges and that the High Court means full Court and in certain cases the Chief Justice alone. Keeping in view the non -obstinate Clause in Article 329(b) of the Constitution and the provision of Section 81, the election petition must, be presented to the Chief Justice or to a Judge of the High Court. Therefore, the Rule which provides for presentation to the Stamp Reporter is against provisions in Article 329(b) and Sections 80, 80A and 81.

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