Case: N. T. Veluswami Thevar, Vs. G. Raja Nainar And Others

2. The facts are that during the general elections which were held in 1957 six persons including the appellant, Valuswami Thevar, respondent 2, Chellapandian, and respondent 4, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli. At the time of the scrutiny which was on 1st February 1957, Chellapandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Government-aided school, and that he was therefore disqualified under S. 7, cls. (d) and (e), Representation of the People Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection, the returning officer observedS. Arunachalam is not present at the time at scrutiny of nominations nor any authorised agent at his could take notice at the objection and file a reply. In view of the objection which has not been cleared by Sri S. Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sri S. Arunachalam is disqualified under Ss. 7 (d) and (e) of Act 43 of 1951. Accordingly his nomination is rejected.The five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on 10th March 1957, the appellant who scarred the largest number of votes was declared elected.4. On 18th April 1957, Raja Nainar, respondent 1, who was not a candidate but a voter filed E. P. No. 109 of 1957 praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one. The appellant filed a written statement in which he pleaded that Arunachalam was not qualified to be chosen not merely on the ground put forward by Chellapandian before the returning officer but also on the grounds that he was interested as a partner in contracts for the execution of works for the Government, and that further he had entered into an agreement with the District Board, Chittoor, to serve as a teacher in that Board, and that his nomination paper was therefore rightly rejected. Raja Nainar then came out with the application, I. A. No. 5 of 1957, out of which the present proceedings arise, to strike out the additional grounds of disqualification raised in the statement of the appellant on the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification which was not taken before the returning officer, and that accordingly the new grounds put forward by the appellant should be struck out.5. By its order dated 17th August 1957 the Tribunal held that the question to be decided by it was whether there was a valid nomination paper, and that to decide that it could go into grounds other than those which were put forward before the returning officer, and, in that view, dismissed the application. The correctness of this order was challenged by Raja Nainar in two Writ Petitions Nos. 675 and 676 of 1957, preferred under Art. 226. Therein, he repeated his contention that it was not competent to the Tribunal to enquire into any but the grounds which had been put forward before the returning officer, and prayed that a Writ of Certiorari be issued to quash the order in I. A. No. 5 of 1957 and a Writ of Prohibition, to restrain the Tribunal from enquiring into the new grounds raised by the appellant.6. These applications were heard by a Bench of the Madras High Court consisting of Rajagopalan and Rajagopala Ayyangar, JJ., who upheld the contention of the petitioner, and stated their conclusion in those termsare clearly at opinion that the enquiry before the Tribunal must be restricted to the objections which the Returning Officer had to consider and decide, but not necessarily to the material placed before the Returning Officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material, even if that material be other than that placed before the Returning Officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the Returning Officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not, for instance, that of a returnedfurther objection was also taken before the learned Judges that as the decision of the Election Tribunal was open to appeal under S. 116A of the Act, the Court should, in exercise of its discretion under Art. 226, decline to entertain writ petitions against interlocutory orders. But the learned Judges held that as the Tribunal had no jurisdiction to entertain grounds other than those which were put forward before the Returning Officer, writs could issue under Art. 226. In the result, they quashed the order of the Election Tribunal in I. A. No. 5 of 1957, and issued a Writ of Mandamus directing it to dispose of the application afresh in accordance with law as laid down in the judgment. It is against this judgment that the present appeals have been preferred on leave granted by this Court under Art. 136, and the point that arises for decision is whether in an election petition questioning the propriety of the rejection of a nomination paper under S. 100 (1) (c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forward before the returning officer.The facts are that during the general elections which were held in 1957 six persons including the appellant, Valuswami Thevar, respondent 2, Chellapandian, and respondent 4, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli. At the time of the scrutiny which was on 1st February 1957, Chellapandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Government-aided school, and that he was therefore disqualified under S. 7, cls. (d) and (e), Representation of the People Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection, the returning officer observedS. Arunachalam is not present at the time at scrutiny of nominations nor any authorised agent at his could take notice at the objection and file a reply. In view of the objection which has not been cleared by Sri S. Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sri S. Arunachalam is disqualified under Ss. 7 (d) and (e) of Act 43 ofAccordingly his nomination is rejected.e five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on 10th March 1957, the appellant who scarred the largest number of votes was declared elected.4. On 18th April 1957, Raja Nainar, respondent 1, who was not a candidate but a voter filed E. P. No. 109 of 1957 praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one. The appellant filed a written statement in which he pleaded that Arunachalam was not qualified to be chosen not merely on the ground put forward by Chellapandian before the returning officer but also on the grounds that he was interested as a partner in contracts for the execution of works for the Government, and that further he had entered into an agreement with the District Board, Chittoor, to serve as a teacher in that Board, and that his nomination paper was therefore rightly rejected. Raja Nainar then came out with the application, I. A. No. 5 of 1957, out of which the present proceedings arise, to strike out the additional grounds of disqualification raised in the statement of the appellant on the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification which was not taken before the returning officer, and that accordingly the new grounds put forward by the appellant should be struck out.5. By its order dated 17th August 1957 the Tribunal held that the question to be decided by it was whether there was a valid nomination paper, and that to decide that it could go into grounds other than those which were put forward before the returning officer, and, in that view, dismissed the application. The correctness of this order was challenged by Raja Nainar in two Writ Petitions Nos. 675 and 676 of 1957, preferred under Art.Therein, he repeated his contention that it was not competent to the Tribunal to enquire into any but the grounds which had been put forward before the returning officer, and prayed that a Writ of Certiorari be issued to quash the order in I. A. No. 5 of 1957 and a Writ of Prohibition, to restrain the Tribunal from enquiring into the new grounds raised by the appellant.6. These applications were heard by a Bench of the Madras High Court consisting of Rajagopalan and Rajagopala Ayyangar, JJ., who upheld the contention of the petitioner, and stated their conclusion in those termse clearly at opinion that the enquiry before the Tribunal must be restricted to the objections which the Returning Officer had to consider and decide, but not necessarily to the material placed before the Returning Officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material, even if that material be other than that placed before the Returning Officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the Returning Officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not, for instance, that of a returnedr objection was also taken before the learned Judges that as the decision of the Election Tribunal was open to appeal under S. 116A of the Act, the Court should, in exercise of its discretion under Art. 226, decline to entertain writ petitions against interlocutory orders. But the learned Judges held that as the Tribunal had no jurisdiction to entertain grounds other than those which were put forward before the Returning Officer, writs could issue under Art.In the result, they quashed the order of the Election Tribunal in I. A. No. 5 of 1957, and issued a Writ of Mandamus directing it to dispose of the application afresh in accordance with law as laid down in the judgment. It is against this judgment that the present appeals have been preferred on leave granted by this Court under Art. 136, and the point that arises for decision is whether in an election petition questioning the propriety of the rejection of a nomination paper under S. 100 (1) (c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forward before the returning officer.e facts are that during the general elections which were held in 1957 six persons including the appellant, Valuswami Thevar, respondent 2, Chellapandian, and respondent 4, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli. At the time of the scrutiny which was on 1st February 1957, Chellapandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Government-aided school, and that he was therefore disqualified under S. 7, cls. (d) and (e), Representation of the People Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection, the returning officer observedS. Arunachalam is not present at the time at scrutiny of nominations nor any authorised agent at his could take notice at the objection and file a reply. In view of the objection which has not been cleared by Sri S. Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sri S. Arunachalam is disqualified under Ss. 7 (d) and (e) of Act 43 ofy his nomination is rejected.e five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on 10th March 1957, the appellant who scarred the largest number of votes was declared elected.4. On 18th April 1957, Raja Nainar, respondent 1, who was not a candidate but a voter filed E. P. No. 109 of 1957 praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one. The appellant filed a written statement in which he pleaded that Arunachalam was not qualified to be chosen not merely on the ground put forward by Chellapandian before the returning officer but also on the grounds that he was interested as a partner in contracts for the execution of works for the Government, and that further he had entered into an agreement with the District Board, Chittoor, to serve as a teacher in that Board, and that his nomination paper was therefore rightly rejected. Raja Nainar then came out with the application, I. A. No. 5 of 1957, out of which the present proceedings arise, to strike out the additional grounds of disqualification raised in the statement of the appellant on the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification which was not taken before the returning officer, and that accordingly the new grounds put forward by the appellant should be struck out.5. By its order dated 17th August 1957 the Tribunal held that the question to be decided by it was whether there was a valid nomination paper, and that to decide that it could go into grounds other than those which were put forward before the returning officer, and, in that view, dismissed the application. The correctness of this order was challenged by Raja Nainar in two Writ Petitions Nos. 675 and 676 of 1957, preferred under Art., he repeated his contention that it was not competent to the Tribunal to enquire into any but the grounds which had been put forward before the returning officer, and prayed that a Writ of Certiorari be issued to quash the order in I. A. No. 5 of 1957 and a Writ of Prohibition, to restrain the Tribunal from enquiring into the new grounds raised by the appellant.6. These applications were heard by a Bench of the Madras High Court consisting of Rajagopalan and Rajagopala Ayyangar, JJ., who upheld the contention of the petitioner, and stated their conclusion in those termse clearly at opinion that the enquiry before the Tribunal must be restricted to the objections which the Returning Officer had to consider and decide, but not necessarily to the material placed before the Returning Officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material, even if that material be other than that placed before the Returning Officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the Returning Officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not, for instance, that of a returnedr objection was also taken before the learned Judges that as the decision of the Election Tribunal was open to appeal under S. 116A of the Act, the Court should, in exercise of its discretion under Art. 226, decline to entertain writ petitions against interlocutory orders. But the learned Judges held that as the Tribunal had no jurisdiction to entertain grounds other than those which were put forward before the Returning Officer, writs could issue under Art.In the result, they quashed the order of the Election Tribunal in I. A. No. 5 of 1957, and issued a Writ of Mandamus directing it to dispose of the application afresh in accordance with law as laid down in the judgment. It is against this judgment that the present appeals have been preferred on leave granted by this Court under Art. 136, and the point that arises for decision is whether in an election petition questioning the propriety of the rejection of a nomination paper under S. 100 (1) (c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forward before the returning officer.e facts are that during the general elections which were held in 1957 six persons including the appellant, Valuswami Thevar, respondent 2, Chellapandian, and respondent 4, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli. At the time of the scrutiny which was on 1st February 1957, Chellapandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Government-aided school, and that he was therefore disqualified under S. 7, cls. (d) and (e), Representation of the People Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the Government. In upholding this objection, the returning officer observedS. Arunachalam is not present at the time at scrutiny of nominations nor any authorised agent at his could take notice at the objection and file a reply. In view of the objection which has not been cleared by Sri S. Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sri S. Arunachalam is disqualified under Ss. 7 (d) and (e) of Act 43 ofy his nomination is rejected.e five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on 10th March 1957, the appellant who scarred the largest number of votes was declared elected.4. On 18th April 1957, Raja Nainar, respondent 1, who was not a candidate but a voter filed E. P. No. 109 of 1957 praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one. The appellant filed a written statement in which he pleaded that Arunachalam was not qualified to be chosen not merely on the ground put forward by Chellapandian before the returning officer but also on the grounds that he was interested as a partner in contracts for the execution of works for the Government, and that further he had entered into an agreement with the District Board, Chittoor, to serve as a teacher in that Board, and that his nomination paper was therefore rightly rejected. Raja Nainar then came out with the application, I. A. No. 5 of 1957, out of which the present proceedings arise, to strike out the additional grounds of disqualification raised in the statement of the appellant on the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification which was not taken before the returning officer, and that accordingly the new grounds put forward by the appellant should be struck out.5. By its order dated 17th August 1957 the Tribunal held that the question to be decided by it was whether there was a valid nomination paper, and that to decide that it could go into grounds other than those which were put forward before the returning officer, and, in that view, dismissed the application. The correctness of this order was challenged by Raja Nainar in two Writ Petitions Nos. 675 and 676 of 1957, preferred under Art., he repeated his contention that it was not competent to the Tribunal to enquire into any but the grounds which had been put forward before the returning officer, and prayed that a Writ of Certiorari be issued to quash the order in I. A. No. 5 of 1957 and a Writ of Prohibition, to restrain the Tribunal from enquiring into the new grounds raised by the appellant.6. These applications were heard by a Bench of the Madras High Court consisting of Rajagopalan and Rajagopala Ayyangar, JJ., who upheld the contention of the petitioner, and stated their conclusion in those termse clearly at opinion that the enquiry before the Tribunal must be restricted to the objections which the Returning Officer had to consider and decide, but not necessarily to the material placed before the Returning Officer at the stage of the summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and validity of those objections on relevant material, even if that material be other than that placed before the Returning Officer. The Tribunal has no jurisdiction to investigate the truth or validity of the objections which were not put forward before the Returning Officer, and which he had therefore no occasion to consider. Once again we have to point out that we are discussing only the position of a candidate whose nomination was rejected, and not, for instance, that of a returnedr objection was also taken before the learned Judges that as the decision of the Election Tribunal was open to appeal under S. 116A of the Act, the Court should, in exercise of its discretion under Art. 226, decline to entertain writ petitions against interlocutory orders. But the learned Judges held that as the Tribunal had no jurisdiction to entertain grounds other than those which were put forward before the Returning Officer, writs could issue under Art.In the result, they quashed the order of the Election Tribunal in I. A. No. 5 of 1957, and issued a Writ of Mandamus directing it to dispose of the application afresh in accordance with law as laid down in the judgment. It is against this judgment that the present appeals have been preferred on leave granted by this Court under Art. 136, and the point that arises for decision is whether in an election petition questioning the propriety of the rejection of a nomination paper under S. 100 (1) (c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forward before the returning officer.

Reasoning:
This in our view, is quite correct. The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100 (1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returningthe argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under S. 36(4) of the Act. The learned Judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under S. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar v. T. Raghuraj Singh, 1955-1 S C R 267 : (A I R 1954 S C 520), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer.12. In support of his contention that it is only the ground that is urged before the returning officer that can be raised before the Tribunal, Mr.Sinha, learned counsel for the respondent, relies on the provision in S.36 (6) that when a nomination paper is rejected, the returning officer should record his reasons therefor. The object of this provision, it is argued, is to enable the Tribunal to decide whether the order of the returning officer is right or not, and by implication it confines the scope of the enquiry before the Tribunal to the ground put forward before the returning officer.This contention is, in our opinion, unsound. Now, when a nomination paper is accepted, S. 36(6) does not require that any reason should be recorded, therefor. If the contention of the respondent is right, it would follow that acceptance of a nomination paper can never be questioned. But that would be against S. 100 (1)(d)(i), and it must therefore be held that an acceptance can be questioned on all the grounds available under S. 36(2). Section 100(1)(d)(i) deals with improper acceptance of a nomination paper, and if the word "improper" in that provision has reference to the matters mentioned in S. 36(2), it must have the same connotation in S. 100(1)(c) as well.The word "improper" which occurs in both S.100(1)(c) and S.100(1)(d)(i) must bear the same meaning in both the provisions, unless there is something in the context to the contrary, and none such has been shown.13. There is another difficulty in the way of accepting this argument of the respondent. A candidate may be subject to more than one disqualification, and his nomination paper may be questioned on all those grounds. Supposing that the returning officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objections, notwithstanding that, under S. 36(2) he has to decide all the objections, is it open to the respondents in the election petition to adduce evidence on those objections? According to the respondent, it is not, so that if the decision of the returning officer on the objection on which he rejected the nomination paper is held to be bad, the Tribunal has no option but to set aside the election under S.100 (1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be anomalous, but he says that the Law of Election is full of anomalies, and this is one of them, and that is no reason for not interpreting the law on its own terms.It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other, not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies.Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in S. 36(2).The question now under consideration came up directly fop decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur, 1954-9 E L R 193 , (A I R 1954 Raj 204  ), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in S. 36 (2) of the Act, and that such a plea, it taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar, 1953-15 E L R 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.18. As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon.The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Art. 226.It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 S C B 428 : ((S) A I B 1955 S C 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A,and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should beset right in an appeal under that section.In this view, it would be a proper exercise of discretion under Art. 226 to decline to interfere with interlocutoryin our view, is quite correct. The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100 (1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returninge argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under S. 36(4) of the Act. The learned Judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under S. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar v. T. Raghuraj Singh, 1955-1 S C R 267 : (A I R 1954 S C 520), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer.