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CASE NO.:

Appeal (civil) 1860 of 2003

PETITIONER:

JAMAL UDDIN AHMAD

RESPONDENT:

ABU SALEH NAJMUDDIN AND ANR.

DATE OF JUDGMENT: 28/02/2003

BENCH:

R.C. LAHOTI & BRIJESH KUMAR

JUDGMENT:

JUDGMENT

2003 (2) SCR 473

The Judgment of the Court was delivered by R.C. LAHOTI, J. Leave granted in

all the SLPs.

A common question of law arises for decision in all the three appeals. It

would suffice to state the facts of one of the cases to have a glimpse of

the backdrop events in which the question has emerged for decision. In

Civil Appeal No. 1860/2003 arising out of SLP (C) No. 6098/2002 the

appellant contested the last election to legislative assembly from 'No.5

Badarpur Legislative Assembly Constituency of Assam' held on 10.5.2001. The

appellant was declared duly elected. On 27.6.2001 the contesting respondent

filed an Election Petition under Section 80/81 of the Representation of the

People Act, 1951 (hereinafter RPA, for short), laying challenge to the

appellant's election. The Election Petition was presented before Stamp

Reporter-cum-Oath Commissioner of the High Court of Assam. The Stamp

Reporter received the election 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 suffice to

state that similar objections that were preferred by the respondents in the

High Court (appellants before us) disputing the validity of the

presentation of the respective election petitions, which had been presented

before the Stamp Reporter, have been overruled.

We have heard the learned counsel for the parties led by the learned Senior

Advocates on both the sides. We are satisfied that there is no merit in

these appeals and the same are liable to be dismissed.

The submissions made on behalf of the appellants led by Shri R.K. Jain,

Senior Advocate, may briefly be noticed. It was submitted that under

Article 329 of the Constitution no election to either House of Parliament

or to the Houses of the Legislature of the State shall be called in

question except by an election petition presented to such authority and in

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such manner as may be provided for by or under any law made by an

appropriate Legislature. The RPA, provides for the conduct of elections to

the Houses of Parliament and to the Houses of the Legislature of each

State, and for the decision of disputes arising out of or in connection

with such elections, amongst other things. Chapter II deals with

presentation of election petitions to High Court. Under Section 80, no

election shall be called in question except by an election petition

presented in accordance with the provisions of this Part. Under Section 80-

A the Court having jurisdiction to try an election petition shall be the

High Court. Such jurisdiction shall be exercised ordinarily by a Single

Judge of the High Court and the Chief Justice, shall, from time to time,

assign one or more judges for that purpose. Section 81 provides for

presentation of petitions, Section 86 deals with the consequences of non-

compliance. These provisions are reproduced hereunder:-

"81 Presentation of petitions.-(1) An election petition calling in 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 High Court by any

candidates at such election or any elector within forty-five days from, but

not earlier than the date of election of the returned candidates or if

there are more than one returned candidate at the election and 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."

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 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.

On behalf of the private respondents, the learned counsel led by Mr. S.B.

Sanyal, learned Sr. Advocate placed reliance on the following rules framed

by Gauhati High Court contained in Chapter VIIIA.

"Chapter VIII-A Special provisions relating to procedure in election

petitions under the Representation of People Act, 1951 as

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amended by Act No. XLVII of 1966

1. An election petition under S. 80-A of the Representation of Peoples Act

may be presented duly verified in the form prescribed under Ss.82 and 83 of

the said Act, 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, or if there are more than one returned candidate at the

election and the dates of their election are different, the latter of those

two dates. Every such petition shall be accompanied by-

(a) as many copies thereof as there are 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

stamp 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 petitions as

prescribed in R.83 (c) of the aforesaid Act where necessary, and

(d) a chalan 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 (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 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.

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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?

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.

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

in that jurisdiction to make out a warrant and secure production of the

person charged with the offence; power conferred on Magistrate to grant

maintenance under Section 125 of the Code of Criminal procedure 1973 to

prevent vagrancy implies a power to allow interim maintenance; power

conferred on a local authority to issue licences for holding 'hats' or

fairs implies incidental power to fix days therefor; power conferred to

compel cane growers to supply cane to sugar factories implies an incidental

power to ensure payment of price. In short, conferment of a power implies

authority to do everything which could be fairly and reasonably regarded as

incidental consequential to the power conferred.

"For a long time the courts have, without objection from Parliament,

supplemented procedure laid down in legislation where they have found that

to be necessary for this purpose. But before this unusual kind of power is

exercised it must be clear that the statutory procedure is insufficient to

achieve justice and that to require additional steps would not frustrate

the apparent purpose of the legislation", said Lord Reid in Wiseman v.

Boardman, [1971] AC 297, 308. "If a statute is passed for the purpose of

enabling something to be done, but omits to mention in terms some detail

which is of great importance (if not actually essential) to the proper and

effectual/performance of the work which the statute has in contemplation,

the courts are at liberty to infer that the statute by implication empowers

that detail to be carried out.' (Craies on Statute LAW, Seventh Edition, p.

111). Cui jurisdictio data est, ea quoque concessa esse videntur, sine

quibus jurisdictio explicari non potuit- "Where an act confers

jurisdiction, it impliedly also grants the power of doing all such acts, or

employing such means, as are essentially necessary to its execution." (See,

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Maxwell on Interpretation of Statutes, Eleventh Edition, p. 350). Referring

to Maxwell (ibid), Sutherlands's Statutory Construction and Domat's Civil

Law, the law was thus stated, as a "firmly established rule", by this Court

in Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi, [1969] 2 SCR 65.

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. In Chief Executive Officer and Vice-Chairman, Gujarat Maritime

Board 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 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'.

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

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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.

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. The High Court, in authorizing an official

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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.

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.

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."

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

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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 CURIAF 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.

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.

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

cases the orders passed wherein are the subject matter in these appeals. It

would suffice for us to observe that going into the vires of the rules is

an intellectual exercise in futility, for, it would lead us nowhere.

Herbert Broom states in the preface to his celebrated work on Legal Maxims

- "In the Legal Science, perhaps more frequently than in any other,

reference must be made to first principles." The fundamentals or the first

principles of law often articulated as the maxims are manifestly founded in

reason, public convenience and necessity. Modern trend of introducing

subtleties and distinctions, both in legal reasoning and in the application

of legal principles, formerly unknown, have rendered an accurate

acquaintance with the first principles more necessary rather than

diminishing the values of simple fundamental rules. The fundamental rules

are the basis of the law; may be either directly applied, or qualified or

limited, according to the exigencies of the particular case and the novelty

of the circumstance which present themselves. In Dhannalal v. Kalawatibai

and Ors., [2002] 6 SCC 16, this Court has held, "when the statute does not

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provide the path and the precedents abstain to lead, then sound logic,

rational reasoning, common sense and urge for public good play as guides of

those who decide."

Whether the High Court has the power to frame the rules under the provision

of the RPA, or not, is a question which need not be gone into. As we have

already held, the High Court and the Chief Justice, as the case may be,

have the power to frame rules and issue directions regulating the own

affairs and conduct of business in the High Court. Even in the absence of

rules or directions if there is any practice prevailing under which the

administrative or ministerial functions of the High Court are being

performed, unless there be something inherently objectionable or

impermissible about it the same should be allowed to prevail if it

satisfies the test of being incidental and essential to the performance of

the main judicial functions of the High Court. The rules may not be

referable to the provision of the RPA as the source of power of the High

Court - on which we express no opinion as the same is not necessary- the

fact remains that such rules manifest the administrative decision of the

High Court to which the Chief Justice is a party. Inasmuch as such 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 the High Court having been conferred with the

substantive jurisdiction to hear and try an election petition, the making

of provision for all incidental and ancillary matters was left to the High

Court which can either continue with the existing practice of receiving

petitions and documents just as in other civil jurisdiction exercised by

it, or could make or devise convenient and workable procedure of receiving

election petitions and other documents presented to it in exercise of the

jurisdiction conferred by the Act.

Recently in High Court of Judicature of Rajasthan v. P.P. Singh and Anr.,

JT (2003) 1 SC 403, a question arose as to power and propriety of the High

Court and the Chief Justice delegating or referring administrative matters

of the High Court for the opinion of a Committee of Judges and acting

thereon. A few observations made by this Court in this context are apposite

to the case on hand. "Whereas control over the subordinate Courts vests in

the High Court as a whole, the control over the High Court vests in the

Chief Justice. [See All India Judges' Association v. Union of India and

Ors., [1992] 1 SCC 119]. In State of Uttar Pradesh v. Batuk Deo Pati

Tripathi and Anr., [1978] 2 SCC 102, keeping in view the nature of the

power conferred by the Constitution on the High Court, this Court held that

it is wrong to characterize as "delegation" the process whereby the entire

High Court authorizes a Judge or some of the Judges of the Court to act on

behalf of the whole Court. Delegation has to be distinguished from

authorization. Authorisation effectuates the purpose of Article 235 and

indeed without it the control vested in the High Court over the subordinate

Courts will tend gradually to become lax and ineffective. Administrative

functions are only a part, though an important part, of the High Court's

constitutional functions. Judicial functions ought to occupy and do in fact

consume the best part of a Judges's time. For balancing these two-fold

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functions it is inevitable that the administrative duties should be left to

be discharged by some on behalf of all the Judges. Judicial functions brook

no such sharing of responsibilities by any instrumentality.

In The State of Punjab and Anr. v. Shamlal Murari and Anr., [1976] 1 SCC

719 at page 722, this Court held "Procedural law is not to be a tyrant but

a servant, not an obstruction but an aid to justice. Procedural

prescriptions are the hand maid and not the mistress, a lubricant not a

resistant, in the administration of justice. Where the non-compliance,

though procedural, will thwart fair hearing or prejudice the doing of

justice to parties, the rule is mandatory. But, grammar apart, if the

breach can be corrected without injury to a just disposal of the case, the

court should not enthrone a regulatory requirement into a dominant

desideratum. After all, courts are to do justice, not to wreck this end

product on technicalities." Irrationality, perversity and hyper-

technicality are out of place while interpreting the Statutes or testing

the vires of legislation.

We do not find any fault with the election petitions having been presented

to and received by the Stamp Reporter of the High Court of Gauhati. The

learned Designated Election Judge has rightly overruled the preliminary

objection preferred by the respondents. All the appeals are held devoid of

any merit and liable to be dismissed. They are dismissed accordingly and

with costs. Counsel fee Rs. 5000.