Allahabad High Court
Smt Jyoti Singh vs Smt Geeta Devi And 25 Others on 18 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 29.07.2025 Delivered On: 18.09.2025. HIGH COURT OF JUDICATURE AT ALLAHABAD Matters Under Article 227 No. - 13501 of 2023 Smt. Jyoti Singh ..Petitioners(s) Versus Smt. Geeta Devi and 25 others Respondents(s) Counsel for Petitioners(s) : Ashish Kumar Singh, Rakesh Kumar Srivastava Counsel for Respondent(s) : Dharnidhar Pandey, Kamal Kumar Singh, Ram Karan, Sudhir Kumar Mishra Court No. 9 HONBLE MANISH KUMAR NIGAM,J.
1. Heard Shri Ashish Kumar Singh and Shri Rakesh Kumar Srivastava, learned counsel for the petitioner, Shri Dharnidhar Pandey, Shri Kamal Kumar Singh, Shri, Ram Karan, Shri Sudhir Kumar Mishra, learned counsel for the respondents and perused the record.
2. This petition has been filed challenging the order dated 14.12.2023 passed by District Judge, Basti in Election Petition No. 1 of 2022 rejecting the application filed by the petitioner under Order 7 Rule 11 C.P.C. for rejection of the election petition.
3. Brief facts of the case are that election for the post of member of Zila Panchayat was held on 29.04.2021. Counting was done on 02.05.2021. The petitioner contested the election for member of Zila Panchayat for Ward No. 41 and in the counting held on 02.05.2021, the petitioner was declared elected as member from Ward No.41. Respondent no. 1 also contested the election for Ward No. 41 but was unsuccessful. Respondent no. 1 filed election petition no. 1 of 2021 under Section 27 of U.P. Kshetra Panchayat and Zila Panchayat Act, 1961 (hereinafter referred to as the Act of 1961) before the judge as provided under Section 27 of the Act of 1961 on 30.06.2021. After being noticed, the petitioner filed application (Paper No. 73 Ga 2) for rejection of election petition on the ground that the election petition was not presented by the election petitioner/respondent no. 1 personally. The petitioner also filed another application (Paper No. 130 Ga 2) and prayed that the order dated 13.07.2022 passed by the election tribunal be reviewed/recalled. From the facts as brought on record in the present writ petition, it is apparent that election petition was filed through virtual mode on 30.06.2021. On 30.06.2021, following order was passed:
आज यह चुनाव याचिका की पत्रावली कम्प्यूटर अनुभाग से प्राप्त हुई।
आदेश ग्राह्यता के बिन्दु पर सुनवाई हेतु पत्रावली पेश हुई। आवेदिका की तरफ से कोई उपस्थित नहीं है।
पत्रावली ग्राह्यता के बिन्दु पर सुनवाई हेतु दिनांक02.07.2021 को पेश हो। नियत तिथि तक मुंसरिम अपनी आख्या प्रस्तुत करें।"
4. On 12.07.2021, following order was passed by the District Judge, Basti/Election Tribunal:
Case called out. Learned counsel for the applicant is present.
Heard and perused the report of Sadar Munsarim. As per report of Sadar Munsarim, this election petition is time barred by 25 days. Application paper no. 7c/2 along with affidavit paper no. 8c/2 has been moved by the applicant u/s 5 Limitation Act to condone the delay in filing the election petition.
Register as civil misc. case. Issue notice to O.Ps. Steps be taken within a week. Put up on 26.07.2021 for objection and disposal of application paper no. 7c/2.
5. On 12.07.2021, Munsarim submitted its report mentioning therein that the petition has been filed with delay of 25 days. Munsarim report dated 12.07.2021 is quoted as under:
आख्या श्रीमान जी, प्रस्तुत चुनाव याचिका अन्तर्गत धारा 27 (2) (ए) (बी) उ०प्र० क्षेत्र पंचायत एवं जिला पंचायत अधि० 1961 सपठित रूल-4 उ०प्र०जिला पंचायत/सेटिीमेन्ट आफ डिस्यूट्स रिलेटिंग टू मेम्बरशिप रूल्स 1994, श्री बाल कृष्ण चौधरी एडवोकेट द्वारा प्रस्तुत किया गया। चुनाव याचिका इस न्यायालय के अधिकार सीमा क्षेत्र के अन्तर्गत पर्याप्त न्याय शुल्क व आदेशिका शुल्क सहित 25 दिन मियाद बाहर दाखिल है। प्रार्थनापत्र अन्तर्गत धारा-5 मियाद अधिनियम दिया गया है।
चालान फार्म से सेक्योरिटी मनी मु0 250/- जरिए चालान जमा कर चालान फार्म दाखिल किया गया है। श्री बाल कृष्ण चौधरी एडवोकेट का वकालतनामा दाखिल हे। मुसन्ना पर्याप्त है।
सादर समर्थित ह०अस्पष्ट प्रशासनिक अधिकारी दिनांक 12.07.2021
6. Thereafter, several dates were fixed and on 13.07.2022, the Munsarim report was rejected by the District Judge, Basti/Election Tribunal relying upon the orders passed by the Supreme Court. The order dated 13.07.2022, is quoted as under:
दिनांक 13.07.2022 पत्रावली पेश हुई। पुकार करायी गयी। उभय पक्ष के विद्वान अधिवक्ता उपस्थित। उभय पक्षों को, मुंसरिम आख्या व आपत्ति प्रलेख संध्या 49ग2 पर सुना गया।
याचिनी के विद्वान अधिवक्ता द्वारा मुंसरिम आख्या पर आपत्ति प्रलेख संख्या 49 ग 2 प्रस्तुत कर मुंसरिम आख्या दिनांकित 12.07.2021 को निरस्त किये जाने की याचना किया गया है एवं याचिनी के अधिवक्ता द्वारा प्रलेख संख्या 54ग1/1 लगायत 54 ग1/22, माननीय उच्चतम न्यायालय में योजित प्रकीर्ण प्रार्थना पत्र संख्या 665/2021 SMW (C) No. 3/2020 IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION में पारित आदेश की छाया प्रति दाखिल किया गया है।
माननीय उच्चतम न्यायालय के उक्त आदेश के आलोक में याचिनी द्वारा प्रस्तुत आपत्ति प्रलेख संख्या 49ग2 स्वीकार करते हुए, मुसरिम आख्या दिनांकित 12.07.2021 निरस्त किया जाता है अतएव मुंसरिम को आदेशित किया जाता है कि माननीय उच्चतम न्यायालय के उक्त निर्णय के आलोक में पुनः अपनी आख्या प्रस्तुत करे। पत्रावली मुंसरिम आख्या के साथ वास्ते सुनवाई दिनाँक 15.07.2022 को पेश हो।
जनपद न्ययाधीश बस्ती।"
7. By order dated 14.12.2023, the District Judge, Basti/Election Tribunal has rejected the applications filed by the petitioner being application No. 73 Ga 2 and 130 Ga 2 for rejecting the election petition, hence, the present petition.
8. It has been contended by learned counsel for the petitioner that the election petition was not presented by the respondent no. 1 personally rather the same was presented through advocate and therefore, the election petition ought to have been rejected by the tribunal in view of the provisions of Sub Rule (3) of Rule 4 of U.P. Zila Panchayat (Settlement of Dispute Relating to Membership) Rules, 1994, (hereinafter referred to as the the Rules, 1994).
9. Per contra, learned counsel for the respondents submitted that the election petition was presented during the Covid-pandemic period and because of the Covid restrictions, the petition could have been filed through e-filing mode. In the present case, the petition has been filed through e-filing mode and at the time when the petition was entertained by the tribunal i.e. on 12.07.2021, the petitioner was present and therefore, it cannot be said that the provisions of Sub-rule (3) of Rule 4 of the Rules, 1994 has not been complied with. Learned counsel for the respondent has invited attention of this Court to the order dated 30.06.2021 passed by the tribunal which has been quoted above and relied upon the endorsement made before the order that आज यह चुनाव याचिका की पत्रावली कम्प्यूटर अनुभाग से प्राप्त हुई।" On 30.06.2021, the petition was directed to be put up for admission on 12.07.2021 along with Munsarim report. Learned counsel for the respondent further submitted that on 12.07.2021, the petitioner was present along with his counsel before the Munsarim who has submitted the report on 12.07.2021 and therefore there is sufficient compliance of Sub-rule (3) of Rule 4 of the Rules, 1994.
10. Learned counsel for the petitioner submitted that as per the law laid down by this Court in case of Devendra Yadav v. District Election Officer/District Magistrate, Mau reported in 2011 (9) ADJ 219, the petitioner has to be personally present before the tribunal/judge at the time of presentation of the election petition and has further submitted that even assuming (though not admitted), respondent no. 1 was present before the Munsarim will not be in compliance of the Sub-rule (3) of Rule 4 of the Rules, 1994. Learned counsel submitted that according to Section 27 of the Act of 1961 read with Sub-rule (3) of Rule 4 of the Rules, 1994, the petition is to be presented before the Judge personally by the election petitioner. Learned counsel for the petitioner further submitted that on 12.07.2021 it has been mentioned by the tribunal that case called out. Learned counsel for the applicant is present which is indicative of fact that the petitioner was not present before the court when the matter was taken up by the tribunal. It has also been submitted by learned counsel for the petitioner that presence of election-petitioner (though not admitted) before the Munsarim will not be in compliance of Sub-rule 3 of Rule 4 of the Rules, 1994. Presentation of election petition before the Munsarim will not be proper proper presentation of the election petition as the Munsarim has only to perform certain ministerial function such as giving report etc. the presentation is only to be made before Judge personally.
11. Learned counsel for the respondent submitted that according to Section 27 of the Act of 1961, dispute if any regarding election shall be referred to Judge. Sub-rule (3) of Rule 4 of the Rules, 1994 only requires that the election petition has to be presented personally. It does not in so many words mentions that election petition has to be presented before the Judge personally. Learned Counsel for the respondent further submitted that as per Rule 11 of the Rules, 1994, procedure provided in C.P.C. regarding suits will be followed in election petition, if the same is not inconsistent with Act of 1961 or Rules of 1994. Election petition can be validly presented before the Munsarim in view of the provision of C.P.C. and General Rule Civil, 1957 for presentation of suits. The election petition presented in person before Munsarim will be in sufficient compliance of the Sub-rule (3) of Rule 4 of the Rules, 1994.
12. Before considering the rival submissions, it is relevant to note the relevant provisions of the statute regarding the election petition.
13. Section 27 of the Act of 1961 provides for resolution of dispute as to the membership and disqualification. Section 27 of the Act of 1961 is quoted as under:
27. Disputes as to membership or disqualification. (1) If any dispute arises as to whether a particular person is a member of the Zila Panchayat under [clause a] [Substituted by U.P. Act No. 9 of 1994.] of Section 18, the dispute shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding.
(2) If a dispute arises as to whether a person -
(a)has been lawfully chosen [x x x] [Omitted by U.P. Act No. 9 of 1994.] a member of a Zila Panchayat under Section 18; or
(b)has ceased to remain eligible for being chosen [x x x] [Omitted by U.P. Act No. 9 or 1994.] a member [x x x] [Omitted by Section 17(2) of U.P. Act No. 2 of 1963.] of the Zila Panchayat for the purposes of Section 20, or
(c)has become disqualified to be Adhyaksha or [x x x] [Omitted by U.P. Act No. 44 of 2007 (w.e.f. 20.08.2007).] for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding.
14. Section 27 provides that dispute shall be referred in the manner prescribed to the judge whose decision shall be final and binding. The procedure for filing the election petition has not been prescribed by the Act of 1961. The State of U.P. has framed rules in exercise of powers under Section 237 of the Act of 1961 read with Sub-section (1) and Clauses A & B of Sub-section (2) of Section 27 of the Act 1961, namely, U.P. Zila Panchayat (Settlement of Dispute Relating to Membership) Rules, 1994. Rule 4 of the Rules, 1994 provides for manner of raising dispute as to whether a person has lawfully chosen as member of Zila Panchayat. Rule 4 of the Rules, 1994 is quoted as under:
4. Manner of raising disputes under Section 27(2)(a) and (b)- (1) if a dispute arises as to whether a person has been lawfully chosen under clause (b) of sub-section (1) of Section 18 the matter shall be referred by means of a written petition by any person who could legally be a candidate at such choosing to the Judge within thirty days of the date of choosing.
(2) If a dispute arises as to whether a person has ceased to remain eligible for being chosen a member, the matter shall in the manner as provided in sub-rule(1) be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat.
(3) Every petition under sub-rule (1) or sub-rule (2) shall be presented in person by the petitioner, and if there are more than one petitioners by any or all of them.
15. Rule 11 of the Rules,1994 provides for procedure for hearing of election petition. Rule 11 of the 1994 Rules is quoted as under:
11. Procedure before the Judge. (1) Except so far as provided by the Act or in these Rules, the procedure provided in Civil Procedure Code, 1908 in regard to suits shall in so far as it is not inconsistent with the Act or any provisions of these rules and it can be made applicable, be followed in the hearing of the petitions:
Provided that-
(a) any two or more petitions to the membership of the same person may be heard together;
(b) the Judge shall not required to record the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case;
(c) the Judge may, at any stage of the proceedings; require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent;
(d) for the purpose of deciding any issue, the Judge shall only be bound to order production of or to receive only so much evidence; oral or documentary as he considers necessary; and
(e) any person aggrieved from the decision of the Judge may apply for review to the Judge within 15 days from the date of the decision and the Judge may thereupon review the decision.
(2) The provisions of the Indian Evidence Act, 1872 (Act No. 1 of 1872) shall, subject to the provisions of the Act and these rules, be deemed to apply in all respects in the proceedings for the disposal of the petition.
16. Sub-rule (3) of Rule 4 of the Rules, 1994 provides that every petition under Sub-rule (1) & sub-rule (2) shall be presented in presence of petitioner (election petition) and if there are more than one petitioner, by any one or by all of them. The Rules, 1994 do not provide the manner in which the election petition or the authority before whom the election petition has to be presented. Rule 11 of the Rules, 1994 provides that the procedure provided in the Civil Procedure Code, 1908 with regard to the suits in so far as it is not inconsistent with the Act or any provision of these Rules and will be applicable and followed in the hearing of the petition. According to the Rule 11, the tribunal has to follow the procedure as prescribed by the C.P.C. for trial of suits except for otherwise provided by Act of 1961 or the Rules, 1994.
17. Section 26 of the C.P.C. provides for institution of a suit which is quoted as under:
26. Institution of suits.- (1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
18. Order 4 C.P.C. provides that commencement of suits by presentation of plaint. Order 4 of the C.P.C. is quoted as under:
ORDER IV INSTITUTION OF SUITS
1. Suit to be commenced by plaint-(1) Every suit shall be instituted by presenting a plaint in duplicate to the court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).
2. Register of suits-The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.
19. Rule 35 of General Rules Civil, 1957 provides for Munsarim's duty in respect of plaints, which is quoted as under:
35. Munsarim's duty in respect of plaints.- A Munsarim of a civil court appointed to receive plaints shall examine each plaint presented to him, and shall report thereon whether the provisions of the Code and the Court-fees Act, have been observed, [*] [The word 'and' deleted by Notification No. 396/VIII-b-203, dated 2-9-1971 (w.e.f. 30-7-1977).] whether the claim is within the jurisdiction of the court, constitutes a cause of action, and has been presented within the period prescribed for the institution of such a suit, [and whether the plaint is otherwise in proper form including that in a suit whether a notice under Section 80, C.P.C., necessary, such a notice has been given.] [Inserted by Notification No. 396/VIII-b-203, dated 2-9-1971 (w.e.f. 30-7-1977).] The Munsarim shall see that the actual date of the presentation of the plaint is entered upon the impressed stamp and adhesive label, if any, below the date of purchase endorsed on them.
On the back of all plaints the Munsarim shall note-
(a)date of presentation of the plaint;
(b)name of presenter;
(c)classification of suit; and
(d)court-fee paid.
20. It is also relevant to quote Rule 32 of the General Rule Civil which provides time for presenting application and the same is quoted as under:
32.Time for presenting applications.- Except as otherwise provided by these rules, applications and petitions which can be presented to the Munsarim of a court shall be received on any day other than an authorised holiday between 10.30 a.m. and such hour as may be fixed by the court: Provided that an application or petition presented after such hour and before 4 p.m. may be received on the ground, if any, of limitation or other urgent reason. Presiding Officers when accepting plaints or applications after court-hours will note on such papers the time of their presentation.
21. Normally, as per C.P.C. and the General Rule Civil, 1957 framed in this regard, suit is presented during regular court hours on a working day before the Musnsarim who is authorized to receive the plaints and has been given duty to examine the plaint as provided under Rule 35 of the General Rule Civil, 1957. Except in cases covered under Rule 32 of the General Rule Civil,1957 where the plaint or petition is presented after normal working hours i.e. 10:30 A.M. to 04:00 P.M., may be received on the ground, if any of the limitation or other urgent reason, by the Presiding Officer and on accepting the plaint or application after the court hours and Presiding Officer will note on such papers and mention the time of presentation of the application/plaint. Thus, from the combined reading of the Rule 35 read with Rule 32 of the General Rule Civil, 1957 it is apparent that normally, during the courts hours, the plaint or petition is to be presented before the Munsarim and only in case of urgency or last day of limitation, the petition may be presented before the Presiding Officer who shall note time of presentation, if he accept the same.
22. According to the petitioner, on combined reading of Section 27 of Act of 1961 and Rule 4 of the Rules, 1994, the election petition has to be presented before the Judge. The Judge has been defined under Sub-section 24 of Section 2 as District Judge and includes any other sub-ordinates Civil Judicial Officer named or designated by the District Judge in this behalf.
23. It has been contended by learned counsel for the petitioner that while interpreting special statute which is a self contained code, the court must consider the intention of the legislature. The reason for this fidelity towards the legislative intent is that the statute has been enacted with a specific purpose which must be measured from the wording of the statute strictly constructed. It has been further contended that the election petition being special remedy as provided under the statute and for the same procedure has been prescribed in the Rules,1994 and in view thereof the petition has to be presented before the Judge and not before the Munsarim taking aid of the provisions of C.P.C. read with General Rule Civil, 1957.
24. The election tribunal cannot entertain an election petition which is not presented before a Judge personally by the election petitioner but has been presented before the Munsarim as per the procedure provided under the C.P.C. Consequently, the presence of petitioner before the Munsarim on 12.07.2024 when the report was submitted by the Munsarim, is of no avail and is also against the mandate of Sub-rule (3) of Rule 4 of the Rules, 1994.
25. Learned counsel for the respondent has submitted that in case, presentation has been made in conformity with the procedure prescribed by the C.P.C., and General Rule Civil, 1957, no exception can be taken to its validity because a suit has to be presented before the Munsarim on a working day between the court hours, the presence of election petitioner before the Munsarim at the time of presentation will suffice the requirement of Sub-rule (3) of Rule 4 of the Rules, 1994.
26. The argument as made by learned counsel for the petitioner, prima-facie appears to be very attractive but in view of law laid down by the Supreme Court in case of Jamal Uddin Ahmad v. Abu Saleh Najmuddin and others reported in (2003) 4 SCC 257, has no substance. Identical argument was raised in case of Jamal Uddin Ahamd (Supra) before the Supreme Court in a matter arising from an election petition filed before the Guwahati High Court wherein as per the Rules of the Court, the election petition was presented before the Registry and the objection was taken by the elected candidate that the petition was to be presented as per the Representation of Peoples Act before the High Court, meaning thereby the presentation has to be made either before the Chief Justice or before a Judge designated for the purpose of hearing the election petition and could not be validly presented before the Registry as per the High Court Rules. Contention was repelled by the Supreme Court in case of Jamal Uddin Ahamd (Supra) and has held in paragraph no. 6, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18 & 19, which are quoted as under:
6. 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 do not provide for or specify the person to whom an election petition can be presented, and therefore, an election petition should be presented either to the High Court as defined by Articles 214 and 216 of the Constitution or at least to the Chief Justice or to the Judge designated by the Chief Justice as the Election Judge. In any case, the presentation of an election petition to the Stamp Reporter is wholly unwarranted and unsupportable in law. The High Court does not have jurisdiction to entertain and decide on merits a petition which has been presented to a Stamp Reporter, the presentation itself being a nullity.
8. 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 Commission and by notification in the official gazette. Inasmuch as the Central Government has not framed any rules governing the presentation of election petition the rules framed by the High Court are invalid and cannot be given effect to or looked into for saving the validity of its presentation. It was also submitted that the right to contest for and hold an elective office is not a common law right but a right conferred by the Statute and so also the resolution of election disputes is not a common law remedy governed by ordinary law of the land; it is a special statutory remedy provided for by a special enactment, and therefore, any departure from the provisions of the Constitution or the Act cannot be countenanced. The Court would always be slow to interfere with the success of a winning candidate at the election and an election petition which does not strictly comply with the requirements as to its presentation shall be liable to be dismissed and thrown out by strictly interpreting the law.
9. The question which arises for decision is whether the High Court is at all competent to frame rules making provision for receiving the election petitions presented to the High Court under Section 81 of the RPA; and if the High Court is not competent to frame the rules, then whether in the absence of any provision in the Act or rules framed by the Central Government specifying the person who is competent to receive election petitions presented to the High Court, no petition can be presented; or, so long as there is no specific provision can it be inferred by reading Article 329 with Articles 214 and 216 of the Constitution that the election petition can be presented only to the High Court in the sense of the Chief Justice and other judges constituting the High Court for the time being sitting together to receive the election petition.
10. In our opinion, the controversy which has been raised is devoid of any merit. It is pertinent to note that in the RPA as originally enacted an election petition could be presented to the Election Commission and thereafter it was to be tried by an Election Tribunal. Act No.47 of 1966 has drastically amended chapter II of RPA and with effect from 14.12.1966 the jurisdiction to try election petitions has been conferred on the High Court. High Court is a Court which was pre-existing on the date of amendment brought into being by Act No.47 of 1966. It is a constitution Court and a Court of record having plenary jurisdiction.
12. 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 Court as constituted within the meaning of Article 216 of the Constitution. It would be an absurdity to assume that even though the election petition can be tried by a single Judge of the High Court in so far as presentation is concerned it must be to the "High Court" in the sense of the High Court consisting of a Chief Justice and other Judges appointed to the High Court (as contemplated by Article 216), i.e. presented to the Chief Justice and all the Judges sitting together. It is equally absurd to assume that a single Judge assigned or to be assigned with the trial of an election petition must himself receive the election petition. A Judge of the High Court may be designated as an Election Judge and assigned the trial of an election petition subsequent to its being received in the High Court. It may be that the Chief Justice has not designated an Election Judge under sub-Section (2) of Section 80A of the Act until an election petition was actually received in the High Court. Who then would receive the election petition? Do the Constitution and the RPA expect the Chief Justice himself to discharge the ministerial act of receiving an election petition presented to the High Court? Our answer is an emphatic 'no'.
13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the judges as per the rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be 'delegation' as also there can be 'authorization' in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and or behalf of the Court so as to aid the judges in discharge of the judicial functioning. Authorization may take the form of formal conferral or sanction or 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 the practice the greater is the strength. The Judges rarely receive personally any document required to be presented to the Court. Plaints, petitions, memoranda or other document required to be presented to the Court are invariably received by the administrative or ministerial staff, who would also carry out preliminary scrutiny of such documents so as to find that they are in order and then make the documents presentable to the judge, so that the valuable time of the Judge is not wasted over such matters as do not need to be dealt with personally by the Judge.
14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization.
"The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the state sets up to exercise the judicial function are called courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all state officials who are neither legislators nor judges"
(See Constitutional and Administrative Law, Philips and Jackson, Sixth Edition, p. 13). P. Ramnath Aiyer's Law Lexicon defines Judicial Function as the doing of something in the nature or in the course of an action in court, (p. 1015). The distinction between "Judicial" and "Ministerial Acts" is:
"if a judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially." (p. 1013-14).
Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, may be after making an enquiry, and the decision affects the rights and obligations of the parties. There is duty to act judicially. The judge may construe the law and apply it to a particular state of facts presented for the determination of controversy. A ministerial act, on the other hand, may be defined to be one which a person performs in a given 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 staff of the High Court which is as much a part of the High Court. It may be delegated or be performed through someone authorized. The manner of authorization is not prescribed.
15. The High Court, in authorizing an official to receive an election petition either by collective decision of all the Judges or under the directions of the Chief Justice of the High Court, does not 'delegate' any of its functions much less a judicial function; it merely 'authorizes' an official to do an act incidental to the main judicial functional of trial of an election petition which is entrusted to the High Court exercisable ordinarily by a single Judge of the High Court assigned by the Chief Justice for that purpose. Such authorization whether made by rules of the High Court or by decision of the Court or by an order of the Chief Justice shall hold good unless there be a provision to the contrary in the Act or in the rules framed by the Central Government in exercise of the powers conferred by Section 169 of the Act, which there is none.
16. It is not disputed that the Stamp Reporter is an official in the Gauhati High Court and a necessary part of the administrative staff performing functions of utility and responsibility in the administrative set up.
17. It will be useful to notice how Section 81 read prior to its amendment by Act No. 47 of 1966. The provision as originally contained in the Representation of Peoples Act, 1951 read as under:-
81. Presentation of petitions.-(1) An election petition calling 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 Election Commission 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 the 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.
(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 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 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."
18. 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 erstwhile Section 81 has been deleted without re-enacting a corresponding provision. The reason is more that obvious. The Parliament knew that so far as the Election Commissioner is concerned, it was considered necessary to trust only the Secretary to the Commission or such other officer as may be appointed by the Election Commission entrusted with the responsibility of receiving the election petition presented to the Election Commission. So far as the High Court is concerned, such a provision was not required to be enacted into the Act. Jurisdiction to try an election petition has been conferred on the High Court in place of the Election Tribunal. The High Court is a constitutional Court which was pre- existing. It is a Court of record and exercises plenary powers. The High Court being a pre-existing judicial institution also had rules, directions and practice already existing and prevalent and governing the reception of documents presented to it; the same would apply to election petitions. Cursus curiae est lex curiae- The practice of the Court is the law of the Court. Every Court is the guardian of its own records and the master of its own practice; and where a practice has existed, it is convenient, except in cases of extreme urgency and necessity, to adhere to it, because it is the practice, even though no reason can be assigned for it; for an inveterate practice in law generally stands upon principles that are founded in justice and convenience. (See Broom's Legal Maxims, Tenth Edition, p. 82). Even in the absence of Chapter VI1I-A In the Gauhati High Court Rules there would have been nothing wrong in the High Court or the Chief Justice authorizing any of its officers to receive the election petition presented to it so as to enable exercise of the jurisdiction conferred on the High Court by Chapter II of the Act. The Gauhati High Court thought it proper to incorporate Chapter VIII-A in its Rules in view of the amendment made in Chapter II of the Act.
20. We are therefore of the opinion that presentation of an election petition to the Stamp Reporter of the High Court of Gauhati is a valid presentation. Such has been the view taken by the High Court of Gauhati consistently. At least three decisions can be referred to immediately: Abdul Jabbar v. Syeda Anwara Taimur and Ors., (1986) 1 GLR 257, Shri Melhupra Vero v. Shri Vamuzo, (1990) 1 GLR 290 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.
27. In view of the law laid down by the Supreme Court in case of Jamal Uddin Ahmad (Supra) the election petition has to be presented as per the provisions of C.P.C. read with General Rule Civil before the Munsarim and not before the District Judge or any sub-ordinate Judge who is authorized to hear the election petition and therefore, presence of the election petitioner before the Munsarim would be in sufficient compliance of Sub-rule (3) of Rule 4 of the Rules,1994. The Full Bench decision of this Court in Case of Sumitra Devi v. Special Judge/Additional District & Sessions Judge & others (Misc. Single No. 9920 of 2018 decided on 12.06.2020), at page no. 9 of the judgment, the Full Bench of this Court has expounded as under:
However, the words "presented by any candidate' are significant. The word "presented' is derived from the word "present'. It conveys an act of presentation. One of the meaning assigned in the Chamber's dictionary (1993 Edition) to the word present', which appears apposite in the context of Section 12-C(3), is, to give, or furnish, specially formally or ceremonially; to deliver, convey or handover. Thus, the word presented' conveys an act of giving, filing or delivering, in the case of an election petition. The word "present' has been defined by the Oxford English Dictionary (Second Edition, 2014) to mean, the act of giving something to somebody especially at a formal ceremony.
28. The presentation of plaint (election petition) is completed at that very moment when it was given/produced/furnished/delivered before the authority competent in the manner as prescribed by the C.P.C. as the provisions of C.P.C. are applicable in view of the Rule 11 of 1994 Rules.
29. Learned counsel for the petitioner further contended that from the order sheet, it is apparent that election petition was presented on 30.06.2021 and on 30.06.2021, nobody was present on behalf of the election petitioner and therefore, the court has fixed 12.07.2021 as the date fixed in the matter and has also been directed the Munsarim to submit its report on the date fixed. It has been further contended by learned counsel for the petitioner that presence of the petitioner on 12.07.2021 even before the Munsarim will not constitute a valid compliance of Sub-rule (3) of Rule 4 of the Rules,1994 as the petitioner was absent on 30.06.2021 as noted by the District Judge in its order dated 30.06.2021. This contention of the learned counsel for the petitioner is also misconceived for the reason that from the order sheet, it is clear that the petition was received from computer section by the District Judge, meaning thereby that the petition was filed through e-filing mode and after the filing of the petition through e-filing mode, the same was placed before the District Judge on 30.06.2021. Once, the petition is filed through e-filing mode, the person filing the petition has no control over the petition as to when the same will be taken by the concerned Judge specially during the Covid period when the physical presence of litigants as well as lawyers was prohibited by the orders of this Court. After the submission of petition by the computer section it is only when the petition was taken by the District Judge and the District Judge fixed date 12.07.2021 as the date fixed and has also called for a report from the Munsarim. Thus, 12.07.2021 will be the date on which the petitioner was supposed to be present. In the present case, the petitioner was present on 12.07.2021 before the Munsarim as the Munsarim report bears signature of the petitioner and finding of fact has been recorded by the District Judge in the order impugned, which is quoted as under:
इसी क्रम में मेरे द्वारा मुंसरिम आख्या दिनांकित 12-07-2021 का अवलोकन किया गया, जिसमें यद्यपि मुंसरिम द्वारा यह नहीं लिखा गया कि आवेदिका व्यक्तिगत रूप से उपस्थित है, किन्तु यह भी उल्लेखनीय है कि उक्त आख्या में कहीं पर भी यह भी नहीं लिखा कि याचिनी उपस्थित नहीं है जबकि याचिनी दिनांक 12-07-2021 को याचिका के पुस्त पर अपना हस्ताक्षर करती है। "ऐसी स्थिति में उसकी उपस्थिति पर प्रश्नचिन्ह नहीं लगाया जा सकता है।
30. The District Judge has also recorded a finding of fact in the order impugned which is quoted as under:
मेरे द्वारा याचिका के प्रथम पृष्ठ के पुश्त पर लिखित तथ्यों का अवलोकन किया गया।
उपरोक्त प्रथम पृष्ठ के पुस्त पर श्रीमती गीता देवी के हस्ताक्षर तथा उस हस्ताक्षर की तसदीक श्री बालकृष्ण चौधरी द्वारा किया जाना दर्शित है, जो दिनांक 12-07-2021 को किया गया है।
कहने का तत्पर्य यह है कि दिनाँक 12-07-2021 को याचिका की ग्राह्यता हेतु याचिका नियत की गयी और तद् दिनांक को याचिका के पुश्त पर गीता देवी के हस्ताक्षर उनके विद्वान अधिवक्ता द्वारा प्रमाणित है जो यह दर्शित करता है कि याचिनी दिनांक 12-07-2021 को उपस्थित थी।
31. From these finding of facts recorded by the District Judge, it is apparent that the election petitioner was present on 12.07.2021 and there is sufficient compliance of Sub-rule (3) of Rule 4 of the Rules,1994 specially considering the circumstance that Covid pandemic was there in full swing in the year 2021 and certain restrictions were imposed by this Court regarding the presence of litigant and counsel in the court proceedings.
32. In my view, no illegality has been committed by the court below in rejecting the application filed by the petitioner under Order 7 Rule 11 C.P.C. for rejection of the election petition.
33. The writ petition fails and is accordingly, dismissed.
(Manish Kumar Nigam, J.) September 18, 2025 Ved Prakash