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PETITIONER: VIVEKA NAND GIRI

       Vs.

RESPONDENT: NAWAL KISHORE SAHI

DATE OF JUDGMENT16/02/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA MISRA RANGNATH

CITATION:  1984 AIR  856            1984 SCR  (2) 558  1984 SCC  (3)  10        1984 SCALE  (1)290  CITATOR INFO :  D          1985 SC 847  (24)

ACT:      Representation of  the People Act, 1951 Section 36 (4)- Nomination  paper-   discrepancy  in  age  of  candidate  as mentioned in  the nomination  paper and  in electoral  roll- Rejection of nomination paper-Whether valid and proper.

HEADNOTE:      The appellant  was elected  to  the  State  Legislative Assembly and  the first  respondent, the  defeated candidate filed an Election Petition for setting aside the election as being  void   on  account   of  improper  rejection  of  the nomination papers  of one of the candidates by the Returning Officer.  It   was  contended  that  the  Returning  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.      The High  Court held  that no nomination paper could be rejected unless  the defect  was of a substantial character, and that the difference in the age of the candidate as given in the  electoral roll  and the  nomination paper  was not a material error  and no  opportunity having been given to the candidate when  the nomination  papers were  filed to remove any defect,  the rejection  of the  nomination papers by the Returning Officer  was improper,  and the  election  of  the appellant was set saside as being void on that ground.      Dismissing the appeal, ^      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  the People Act, 1951 the defect is not of a  substantial   character.  The   appellant’s  election  is consequently void under section 100 (I)(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

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nomination  paper   would  fall   under  the   category   of ‘inaccurate description’ mentioned in the proviso to section 33(4) and  it was  therefore obligatory  on the  part of the Returning officer  to have  it corrected  or to  overlook it having regard  to the  language of the said proviso. [563 H; 564 A]      2. A  person to  be entitled  to be  registered in  the electoral roll  for a constituency should be 21 years of age on the qualifying date and a person to be chosen 559 to fill  a seat  in the Legislature of a State should not be less than  25 years  of age.  The substantial requirement as regards the  question of  the age  of the  candidate, at the time of  scrutiny of nomination paper is that he should have completed 25 years of age and should have been registered in the electoral  roll for  that constituency  and not  whether there was  a difference  of  4  years  in  the  age  of  the candidate  as  mentioned  in  the  electoral  roll  and  the nomination paper  as in  the instant case. The difference in age is  not an error of substantial character. [562 G-H; 564 C-D]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10811 of 1983      From the judgment and order dated 11-10-83 of the Patna High Court in E.P. 27 of 1980.      Dr.L.M. Singhvi,  K.N. Rai  and A.M.  Singhvi  for  the appellant.      L.R. Singh,  A.  Sharan  &  Solaman  Khurshid  for  the respondent.      D.P. Singh, and D.P. Mukherjee for the intervener.      The Judgment of the court was delivered by      VARADARAJAN, J.  This appeal  under s.  116(A)  of  the Representation of  people Act, 1951, hereinafter referred to as the  ‘Act’ arises out of the judgment of a learned Single Judge of  the Patna High Court in Election Petition No.27 of 1980, setting  aside the  appellant’s election  to the Bihar Legislative Assembly  from No.  64, Rui Saidpur constituency on the  ground that  the election  is  void  on  account  of improper rejection of the nomination papers of one Ram Kumar Jha.  The   election  petition   was  filed   by  the  first respondent, Nawal  Kishore Sahi, the defeated candidate. The election  was   held  on  31-5-1980  and  the  results  were announced on  1-6-1980 after the counting. The appellant who contested as the Congress (I) candidate secure 138,463 votes while the  respondent who  contested  as  the  Janata  Party candidate  secured,   26,991  votes.  The  other  candidates secured much  less and  the appellant who secured a majority of 11,472  votes over the respondent was declared elected by the  Returning  Officer.  After  having  heard  the  learned counsel for  the parties  we dismissed  the  appeal  without costs on  8-2-1984 for  reasons to follow. Now we proceed to give the reasons.      The respondent Pressed only one ground during the trial before the  learned   Singh Judge  and that  was the alleged improper rejection of the nomination papers of Ram Kumar Jha who filed  four nomination  papers numbered as 39 to 42. The proposer in the nomination 560      paper No.39  was one Nand Lal Sah while the proposer in the nomination  paper No. 40 was one Ganesh Prasad Gaur. The proposer in  the nomination  papers Nos.  41 and  42 was Ram

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Kumar Jha’s  own brother  Birendra Kumar  Jha who  has given evidence on  the side of the appellate as RW-9. All the four nomination papers  of Ram  Kumar Jha  were presented  to the Returning Officer RW-7 on 2-5-1980 and he scrutinize all the nomination papers  of Ram  Kumar  Jha.  Ram  Kumar  Jha  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  nomination paper  No. 40,  as  324  and  14  in  the nomination paper  No. 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 candidate  were wrong  with reference  to the electoral roll  Ex. 4, nomination 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. 41 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  declared 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 it  is common  ground that in the electoral roll Ex. 4 prepared 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 nomination papers Ex. 2 to 2, (c) on the above grounds by his orders Ex.B to B-3.      S.100 (1)  (c) of  the Act  Provides that  if the  High Court is  of the  opinion that any nomination 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 arguments of the learned  counsel  for  the  parties  in  the  light  of  the authorities placed  before him the learned Singh Judge found that no nomination paper could be rejected unless the defect is of  a substantial  character as  pointed out even in para 13(i) of  the Handbook  for Returning Officers issued by the Election Commission  of India and that the difference in the age of  the candidate as given in the electoral roll and the nomination papers 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  any defect though  s. 33(4)  of the  Act lays  down that  on the presentation of  the  nomination  on  papers  the  Returning Officer shall  satisfy himself  that the names and electoral roll numbers 561 of the  candidates and  their proposers  as entered  in  the nomination papers  are the  same as  those  entered  in  the electoral roll. The learned Judge held that the rejection of the nomination  papers, Exs.2,  2-a and 2-c by the Returning Officer was  improper. In  that view he allowed the election petition without  costs only, to the extent of setting aside the appellants  election as  being void  which was  the only relief prayed for in the election petition.      Before  us,   Dr.  L.M.  Singhvi,  Senior  Counsel  who appeared for  the appellant  proceeded to draw our attention to the  evidence of  certain 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  of enabling an election petition being  filed against  any successful candidate. But for want of specific allegation about any collusion or fraud and also  an issue  regarding any  collusion we  declined to hear  any   argument   on   the   question   of   collusion. Consequently, the  only point  which was canvassed before us

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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 (I) (c) of the Act.      S. 33(6)  of the  Act lays  down that  nothing in  that section shall  prevent any candidate from being nominated by more than one nomination paper. But the proviso thereto says that not more than four nomination papers shall be presented by or  on  behalf  of  any  candidate  or  accepted  by  the Returning officer  for election in the same constituency. S. 19 of  the  Act  lays  down  that  subject  to  the  earlier provisions contained  in Part  3 of the Act every person who is not  less than 21 years of age on the qualifying date and is ordinarily  resident in  a constituency shall be entitled to  be   registered  in   the  electoral   roll   for   that constituency. Therefore,  a person  to  be  entitled  to  be registered in the electoral roll for the constituency should ordinarily be a resident in that constituency 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  Commission an  oath or  affirmation according to  the form  set out for the purpose in the Third Schedule, and, is, in the case of a seat in the Legisla- 562 tive Assembly,  not less  than 25  years of  age and, in the case of  a seat in the Legislative Council, not less than 30 years of age, and possesses such other qualifications 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 fill a seat in the Legislative Assembly of a State should be not  less than  25 years  of age. In the present case Ram Kumar Jha  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 between  what has  been mentioned 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 age  mentioned in  an electoral  roll and the nomination paper. The  point for consideration therefore is whether the rejection of  this nomination paper by the Returning officer on the ground of difference in the age in the electoral roll and the  nomination paper  is improper.  S. 33(4) of the Act lays down  that on  the presentation  of a nomination paper, the Returning  officer shall  satisfy himself that the names and  electoral  roll  numbers  of  the  candidate,  and  his proposer as  entered in the nomination paper are the same as entered in  the electoral  rolls. The  proviso to  that sub- section reads thus:           "Provided   that   no   misnomer   or   inaccurate      description or clerical, technical or printing error in      regard to  the name of the candidate or his proposer or      any other  person, or  in regard to any place mentioned      in the  electoral roll  or the  nomination paper and no      clerical, technical  or printing error in regard to the      electoral roll  numbers  of  any  such  person  in  the

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    electoral roll  or the  nomination 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;  and the  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      error in  the electoral roll or in the nomination paper      shall be overlooked."      We are of the opinion that the difference in the age of the candidate,  Ram Kumar  Jha as  entered in  the electoral roll and the nomi- 563 nation paper  would fall  under the  category of ‘inaccurate description’ mentioned  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 regard to the language of the proviso.      S. 36(4)  of the  Act  lays  down  that  the  Returning Officer shall  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 in the electoral  roll for a constituency should be 21 years of age on the qualifying date and a person to be chosen to fill a seat in the Legislature of a State should not be less than 25  years  of  age.  Ram  Kumar  Jha  had  declared  in  the nomination paper  No. 42  that he  had completed 33 years of age. Therefore,  the substantial  requirement as regards the question of  age of the candidate, Ram Kumar Jha was that at the time  of scrutiny  of nomination  paper he  should  have completed 25 years of age and should have been registered in the electoral  roll for  that constituency  and not  whether there was  a difference  of  4  years  in  the  age  of  the candidate  as  mentioned  in  the  electoral  roll  and  the nomination paper.  The difference  in our  opinion is not an error of  substantial character.  As the  rejection  of  the nomination paper No. 42 was not 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 of the opinion that the rejection  of   the  nomination   paper  on  the  ground  of difference in  the age  was improper,  for having  regard to provisions of  s. 36(4)  of the  Act the  defect is  not  of substantial character  and  we  hold  that  the  appellant’s election is consequently void under s. 100 (1)(c) of the Act on the ground of improper rejection of the nomination paper. It is  for this  reason that we dismissed the appeal without any order as to costs as mentioned above. N.V.K.                                     Appeal dismissed. 564