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Interlocutory Application For Election Petition Rejection: In Gauhati High Court

An application to the Court in any action, appeal, or procedure already pending in Court, other than a proceeding to execute a decision or order, is referred to as an interlocutory application. The High Court Of Gauhati upheld this through a single learned bench JUSTICE KALYAN RAI SURANA in NIJAM UDDIN CHOUDHURY V. MOON SWARNAKAR [I.A.(Civil)/1609/2021].

Facts of the case – The returning candidate has filed an interlocutory application for election petition rejection, registered and numbered as I.A.(C) 1609/2021. The petitioner, among other things, argues that the interlocutory application is not viable in his written objection.

According to the learned senior counsel for the petitioner, both interlocutory petitions were liable to be rejected at the threshold because they were neither filed before this Bench appointed to take up the related election petition nor filed after getting prior authorization from Bench. Under the requirements of The Representation of People Act, 1951, it has been argued that an Election Petition must be filed before this High Court. It is argued that under Section 87 of the 1951 Act and the note annexed to Rule 4 of Chapter VIII-A of Part II of the GHC Rules, every election petition would be heard by the High Court in line with the CPC as closely as possible. It has also been proposed that in the event of any overlapping provisions in the CPC and GHC Rules, the GHC Rules will take precedence. The following cases are cited in support of the assertions mentioned above (i) Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266 (para-17), (ii) Kailash v. Nankhu, (2005) 4 SCC 480 (paras 5 to 10), (iii) Maya Mathew v. the State of Kerala, (2010) 4 SCC 498 (paras 12 & 13), (iv) Sajjan Sikaria v. Shakuntala Devi Mishra, (2005) 13 SCC 687 (para 3, 4), (v) Paul Roy Paske v. the State of Nagaland, 2014 (2) GLT 834 (para 12 & 13).

The learned senior counsel for the respondent has argued that the language of Rule 10 of Chapter VIII-A of Part II of the GHC Rules should be read as if the filing is to be done at the High Court Registry. But only with the approval of the assigned Bench hearing the election petition. It is argued that the Court’s Judge cannot be expected to perform ministerial duties such as registering an interlocutory application, which the Court’s Filing Section must handle. It is also argued that the Rule’s text does not prevent the filing of an interlocutory application without first obtaining approval. The following cases are cited in support of the assertions mentioned above (i) Jamal Uddin Ahmed v. Abu Saleh Najimuddin & Anr., (2003) 4 SCC 257, (ii) Abdul Jabbar v. Syeda Anwara Taimur & Ors., (1986) 1 GLR 257 (para 3, 4, 6, 7), (iii) Melhupra Vero v. Vamuzo, (1990) 1 GLR 290.

The Court is of the considered view that, based on a clear interpretation of Section 80A of the 1951 Act, the High Court shall have jurisdiction to try election petitions. Such power shall be exercised generally by a single Judge. The addition of Sub-Section (2) clarifies that election petitions can be filed with the High Court. If just one Judge on the High Court, he will hear all election petitions. It is evident from a combined reading of Section 80A(2) and the clause added to it that if the High Court has more than one Judge, the Chief Justice has the authority to designate one or more Judges to hear election petitions.

The question, in this case, is whether the filing of these two interlocutory petitions before the High Court’s Filing Section rather than this Bench renders the filing of the interlocutory application unsatisfactory enough to result in dismissal of the interlocutory application. Therefore, It is clarified that the observations made herein are confined to the issue raised in these two interlocutory applications and that they are not intended to set a binding precedent for the interpretation of Rule 10 of Chapter VIII-A of Part-II of the GHC Rules, which is left open to be decided in a proper case.

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Reviewed by Rangasree. 

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