_ > discrepancy im age of candidate as mentioned in. the nomination paper.and in ' electoral
- VIVEKA NAND GIRI. oo v. -
+ NAWAL KISHORE SAHI ' B . “+ + February 16, 1984 . , “fS. “Murraza FAZzAL ‘ALI, A. VARADARATAN AND: ry Oo * RANGANATHH Misra, ml - nes
Representation of: the People Act, 1951 Section 36 -(4)-Nomination paper-— C
Yr roll—Rejection of nomination paper—Whether valid and proper. : . :
’ The appe llant v was elected to the State Legislative Assembly and the first respon- ; dent, the defeated candidate filed an Election Petition for setting aside the election ° a. 2
_~as being void on account.ofii improper erjection of the nomination papers of one of the candidates by the Returning Officer. It was contended that the Returning J) Officer rejected four nomination papers submitted by the candidate, three on the
' ground that the serial‘number and part number of the candidates were wrong .
with reference to.the electoral roll, and the fourth on the ground¢that there was. |. difference in the age of the candidate. ry 4 . : .
The High. Court held-that ib nomination paper could be rejected unless the defect - .. *f _wa’ of a substantial character, and that. the difference in the age of the candidate , 4 ‘as given in the electoral.roll and the nomination paper was: nota material error and no, opportunity having been given to: the.candidate when thé nomination papers” were filed to femove any defect, the rejection of the nomination papers by the Return- . al ~ ’ ing Officer was improper, ‘and the election of the appellant w was set saside as being a void'on that sround.- mo ; ad
Dismissing “the appeal, Do es FF
HELD: 1. The rejection of the nomination paper on the ground of difference in the age.was improper, for having regard to the'provisions of section -36(4) of the - of the Representation of thé People Act, 1951 the defect is not, of 4 substantial ° character. The‘ appellant’s election. is consequently void under section 100° (1){c) of the Act on the ground of improper rejection of the nomination paper. [564 E-F] ’. In the instant case, the difference in the age of the candidate, as entered in the electoral roll and the nomination paper would fall under the category.of ‘inaccurate description’ mentioned in the proviso to séction 33(4) and it was therefore obligatory
- on the ‘part of the Returning Officer to have it corrected or to overlook it having cd regard to the language of the. said proviso. [563 H; 564.A]
2, A p2rson to be entitled to be registered in the electoral. roll for a consti- *
. buoncy sh should bg 21 years of age on the quatifying’ date and a person to be chosen, ft co
-_ VIVEKA NAND }. NAWAL. KISHORE Voradarajay 7. yo 559
1. to fi Ifa seat in the: Lesislatute ofa State: should not be jess. than. 25 years of age. yi. The substantiat requirement as regards” the question of the age of the candidate, . at.
«of age and should have besn registered in the electoral roll - for that constituency and
“snot whether there-was a difference of 4 years in the age of the candidate as mentioned -
‘a "in the electoral roll and the nomination paper as in,the instant case. The difference ‘ in age is *not an error of substantia! character. [562 G -H; 564 ED] , 0
. fe as . : . cae! Civ Avsertare JURISDICTION : Civil Apps No; 10811 « of 1983" aan From the judgment and’ “01 der dated 1l- 10-83 of the Paina High ok _ Cour i: EP. 27 of 1980. rere os as
. Dr. L. M. Singh K N. Rai and, AM. Singh for the appellant.
Say
*. a “ER Sing, A. Sharan & Solanan Khurshid ‘for the respondent,
+ a f s,
: ) DP. Singh; and DP. Mukbier ‘jee for the inter vener...
“* The Judgment of the court was Aclivered by > VARADARAJAN, J. This appeal under s. 116(A) ofthe Represerita-
:tion of People Act, 1951, hereinafter, teferred to as.thé ‘Act’ arises out
“of the judgment ofa learned Single. J udge’ of the Patna ‘High Court in’ >» Etection Petition No. .27 of, 1980, setting aside the appellant’s - elec- tion to the Bihar Legislative Assemb'y from Nos.64, Rui Saidpur’ . AUersineney on the ground that the election is void on account of . linoroper Tejection of the: nomination papers ‘of one “Ram Kuniar -
. Jha, The election petition was filed by the first respondent, Nawal . Kishore Sahi, the defeated candidate. The : election * was’ held on
31- 531989 and the results were announced on 1-6- 1980 after; the. coun- :
ting. The appellant who - contested as the Congréss (J). ‘candidate
4, secured 38 ;463 votes while the respondent who contested as the Janata
'- Parly candidate secured 26,991 votes. The other candidates secured much less and the appell ant who secured a majority of 1J,472 votes
; over the respond2at was. ‘declared elected by the Returning Officer. * . After having heard the learned counsel: for the parties wé - dismissed -
_ Proceed to give, the reasons. © ¥ ; The respondent pressed only: one > ground duting the trial before th> jexracd Single Judge and that was the alleged improper rejection _ of the nomisation papers of Ram Kumar, Jha who filed four. nomnation papers j numbered. as 39.. to 42. The Proposer in the nomination .
we : . . t :
, the tints of sc. -utiny of nomitation paper’is that. he’ should have completed 25 years’ °
. the appe al without costs on 8-2- 1984’ for teasons to follow. Now \ we ;
‘
. -
-H to B-3.
* o
560 SUPREME COURT REPORTS [1984] 2 sor.
paper No.,39 was one Nand Lal Sah while the proposer in the riomi- :
nation paper No. 40 was one Ganesh Prasad Gaur. The proposer in’ the nomination papers Nos: 41 and 42 was Ram Kumar Jha’s own brother Birendra Kumar Jha who has given evidence on the side .of ..
- the a ppzltat.as RW-9. Allthe four nomination papers of Ram Kumar ' Jha were presented to the Returning Officer RW-7 on 2-5-1980 and he scrutinised all the nomination papers.of Ram Kumar Jha. Ram Kumar “Tha had mentioned: ‘the serial number and part number as 415 and 13
:_ respectively in the nomination paper No. 39, as 391 and ‘17 in the nomi: | .. * nation paper No. 40, ‘as 324 and 14 in the nomination paper Ne. 41° ‘and as 326 and 14 in the nomination paper, No. 42. The.Returning |
Officer rejected the nomination paper No. 39 on the ground that the ™
. serial number.and part number of the cdndidate were wrong with ‘reference to the electoral roll Ex. 4, nominaticn paper No. 40 on. the ground that the serial number and part number ‘of the candidate were wrong and the age of. the candidate was not mentioned, nomination _ paper No. 4 on the ground that: the serial number of the candidate was.wrong and nomination paper No. 42 on the ground that there was difference in the age of the candidate. Ram Kumar Jha had decla-_
‘sed in ‘his nomination paper No. 42 dated 2-5-1980 in regard to which the argument was confined before us that he has completed 33 years of age while itis common ground that in the electoral roll Ex. 4 prepa- _red in the year 1980 his age is mentioned. as 37 years. The Returning,
‘ Officer has.deposed as RW-7 about the rejection of those four nomi- .
naton pap2ts Ex. 2 to 2, © ‘on the above grounds by his orders Ex. B .
.
-§. 100 (1) (c) of the ASt provides that if the High Court is of the .
opinion that any namination paper has been improperly rejected it shall- declare the election of the returned candidate to be void. On ‘ a consideration of the evidence available on the record and the argu- ments of the learned counsel for the, parties in the light of the authori- - ties placed before him the learned Single Judge found that no. nomination paper could be rejected unless the defect is of a substantial chara- ctér as pointed out even in para 13(i) of the Handbook for Returning ~ Officers issued by the Election Commission ‘of India and that the diffe--
- rence in the age of the candidate as given in the electoral roll and the nomination paper is not a material error and‘no opportunity was given to the candidate, Ram Kumar Jha when the nomination papers were filed on 2-5-1980 to remove a np cere though s. 33(4) of the Act lays down that on the presentation
Y : » ee - the nomination papers the Returning - Officer shall. satisfy himself that the names and. electoral roll: numbers
, e ,
”
VIVEKA NAND . NAWAL SISHORE (Voradarajan, J. )- " 56).
¢ of ‘the candidates and their proposers as entered in the nomination. papets are the samé as those entered in the electoral roll. The learned...
Judge held ‘that the rejection of the nomination papets, Exs. 2,2-a.. - and 2-c by the Returning Officer was improper, In that view he allowed, a
: A the election petition without costs only to the extent of setting aside>.”
—: the appeallant’s election as being void which was the re only. relief f prayed for in ‘the election petition. : ..
efore vs, Dr. L.M.. Singhvi, Senior ‘Counsel who appeared for the appellant proceeded to draw our attention to the evidence of cer-
. tain witnesses including that of Ram Kumar Jha’s brother Birendra _-Kumar Jha, RW-9 for proving: that Ram: Kumar Jha had. filed the - _ nomination papers pursuant to some collusion with the object 6f enab- - ling an_ election, petition being’, filed against any successful candidate. But for want of. sp2cific allegation about any collusion.or fraud and | also an issue regarding any collusion we declined to hear any argument on the question of collusizn. Consequently, the only point which was’
canvassed before us ‘by,Dr. ‘Singhvi appearing. for the appellant and «
Mr. L.R. Singh appearing for the respondent was as. to’ whether the nomination papers of Ram Kumar Jha‘ were improperly rejected by the Returning Officer and the “appellant? s election is therefore void
. under. s. 100. 0-0) (c) of. the the. Act.
v
. . Ss. 3306) of the Act lays down that nothing in that section shall
_prevent any candidate from being nominated by more than one nomi- | nation paper. But the proviso thereto. says that not more than four
“nomitation papers shal] be presented by or,on behalf of any candidate- or accepted by the Returning Officer for. election i in the same constituency. S. 19 ofthe Act lays down that subject to the earlier provisions ‘
‘contained in Part 3 of the Act every person who -is not léss than 21 - years of age om the qualifying date and is ordinarily resident in a ‘con- stituency shall be: entitled to be xegistered in the electoral roll. for that ” constitutency, Therefore, a’ person to be. entitled to be registered if the electtoal-roll for the constituency should ordinarily be a resident:
in that constitutency and should not be less than 21 years of age on.
the qualifying date. Article 173 of the Constitution prescribing the ° qualification for membership of a State Legislature lays down that a person shall not be qualified to be chosen to fill a seat in the Legislature
'_ of a State ‘unless he is a citizen ‘of India, and ‘makes and ; subscribes before some person authorised in that behalf by the Election Commis-
_ sion an oath or affirmation according fo the form set ‘out'for-the pur- pose i in ‘the Third Schedule, and i is, in thé. case of a seat in the Legisla- oa
' ww ae.
-D a
*
562°, SUPREME COURT REPORTS. "1984 2 s.0R:
he * tive Assembly, not less than 25 years 's of age e and, ‘in. the'case of a ‘seat in the Legislative ‘Council, not less than 30 years of age, and possesses such other quatifications as may be’ prescribed in that behalf by or -
- under any law made by Parliament. Therefore, a person, to be entitled to be chosen to.filla seat in the Legislative Assembly of a State should be not fess than 25 years of age. In thé present case Ram Kumar Jha
IU is noted in the electoral] roll, Ex.:4 prepared in 1980 as being 37 years’ .
old while he has declared in.the nomination ‘paper No. 42 marked as:
Ex: 2-c that he had completed 33 years of age. AS stated earlier the
‘nomination paper had been rejected by the Returning Officer, RW-7 “on the ground that there is difference ‘in the age of the candidate bet-
Ween what has been mantioned in the electoral roll and the nomination paper and it ‘is not based on-any other ground, It is nobody’s case that the Returning Officer found any difficulty regarding the : identity of-the candidate, Ram Kumar Jha on account of this difference.
in the agé ‘mentioned in an electoral goll*and the nomination paper. ‘. The point for’ consideration therefore is whether the ‘rejection of this moimination paper by the Returning Officer on the ground. of difference in the age in the electoral rol and the nomination paper is improper.
S. 33(4) of the Act lays down that on the presentation of a nomination:
paper, tlie Returning Officer shall satisfy himself that’ the names and electoral roll numbers of the carididate, and his proposer . as entered.
in'the nomination paper are the same as entered in the electoral: rolls.’
The proviso to that sub- section Teads thus:
“Provided that ho misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate ‘sor his proposer or any other. person, or in regard to any ‘place entioned in the electoral roll or the nomination paper and no
' clerilcal, technical or printing errér in regard to the electoral roll
- numbers of any such person in the electoral roll ‘or the 1 nomi: “nation paper, shall, affect the full operation of the electoral roll“
‘ .or the nomination-paper with. respect to such person or place
- in any case whether the description in. regard to-the name of the .— person or place is such as.to be commonly understood; andthe. © returning. officer shall permit any-such misnomer or inaccurate .
description or clerical, technical or printing error to be corrected
'’, and where necessary, direct that any such misnomer, inaccurate
; description, clerical, technical or printing ertor in the electoral
‘roll or in the nomination paper shall be. overlooked.”
‘
We are of the o opinion that the difference i in’ the age of the Gan- "date, Ram Kumar Sha as enteréd i in the: electoral roll and’ the nousi- ya
-a*
_ tial requirement as regards the question of age of the candidate, Ram_
- VIVBKA NAND Y. NAWAL” KisHORE (Voradargjan, J) +. $63
“nation: -paper would fall ‘under the category of! inaccurate description’ mentioned i in the above proviso and that it was: obligatory on the part of the- Returning Officer to have it corrected. or, to ‘overlook it having a
“Fegard to the language of the Proviso.
| §. 36(4) of the Act lays down that’ the Returning Officer gall ‘ not reject any’ nomination paper on the ground of. any: defect which : is not of a substantial ‘character. As stated earlier, a person to be .
entitled to be registered i in the electoral roll-for a constititency should _ :
* be 21 years of age on the qualifying date‘and a° ‘person to ‘be chosen to fill a seat im-the Legislature of a State should not be less than 25, ;
years of age. Ram ‘Kumar Jha. had declared i in the nomination paper No, 42 that he had completed 33 years of age. Therefore,. the substan-
Kumar Jha was that at the’ time of scrutiny of noniination paper he
.. should have completed 25 years of age and should have been degistered ;
in the electoral’ roll for: that’ constituency and not whether there was a difference of 4 years in the agé of the candidate as mentionéd in the
_ electoral roll and the nomination paper. The difference jn our opinion
, is not an error of substantial character. As the. rejection of the nomi-. - nation paper No.-42 wassnot on the ground that there was. any difficulty .as regards identity,on account of the difference - in the age mentioned in the electoral roll and the nomination’ paper we are clearly ef the opinion that the rejection of the nomination paper on the ground
’ of difference in the age was improper, for- having regard to Provisions
AS of s. 36(4) of the Act the defects not of a substantial character and we
“hold that the appellant’ s election is consequently ‘yoid-under s..100-
(1) (©) ofthe Act on the ground of improper rejection of the nomi- - pation paper. It is for this reason that we ‘dismissed the appeal without:
any order a as to costs a as mentioned above.
UNV.K. . - a o oa Appeal dismissed,