Viveka Nand Giri Vs. Nawal Kishore
Sahi [1984] INSC 33 (16 February 1984)
VARADARAJAN, A. (J) 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 aside 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 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]
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 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 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 Legislative
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 him 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 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 nomination
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.
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