Case: Viveka Nand Giri Vs. Nawal Kishore Sahi

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 nobodys 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, t he 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 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; an d 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."4. 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.5. 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 appellants election is consequently void under s. 100 (1)(c) of the Act on the ground of improper rejection of the nomination paper. I

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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.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 appellants election is consequently void under s. 100 (1)(c) of the Act on the ground of improper rejection of the nomination paper.