Case: Brijendralal Gupta And Another Vs. Jwalaprasad And Others

On February 25, 1957, polling took place at the General Election to the Madhya Pradesh Legislative Assembly from the Manendragarh Double Member Constituency. Thirteen candidates had offered themselves for election either for the general or the reserved seat at the said election. Mr. Brijendralal Gupta, appellant 1 and Thakur Raghubir Singh, appellant 2 were the Congress candidates while respondents 1 and 7 had been adopted by the Praja Socialist Party, respondent 4 and one Sadhuram by the Jan Sangh and the remaining candidates had filed their nominations as independent candidates Udebhan Tiwari, respondent 5, had omitted to make the declaration regarding his age in his nomination paper. This defect was discovered at the time of the scrutiny of the nomination papers on February 1, 1957, and as a result his nomination paper was rejected by the returning officer. Subsequently respondent 6 withdrew his candidature with the result that eleven candidates took part in the contest. After the polling took place and the votes secured by the contesting candidates were counted appellants 1 and 2 were declared duly elected to the General and the reserved seat respectively. Thereupon Jwalaprasad, respondent2. On the contentions raised by the parties before it the Election Tribunal framed as many as 49 issues; but in the present appeal we are concerned with only three of them which related to the rejection of the nomination of respondent5. These three issues were (1) whether the nomination paper of respondent 5 was improperly rejected because of the omission to fill in the age in the prescribed column, (2) whether at the time of the scrutiny respondent 5 was personally present and brought to the notice of the returning officer that his age was above 25 and the omission is simply accidental, and (3) if so, whether the rejection of the said nomination paper has rendered the whole election void ab initio under S. 100 (1) (c) of the Act. The Tribunal held that respondent 5 did not make any attempt to rectify the defect in the nomination paper, that the returning officer could not in law have allowed respondent 5 to remedy the said defect at the stage of the scrutiny of the nomination, and that the error in nomination was a defect of a substantial character with the result that the rejection of the nomination paper was according, to the Tribunal proper. In accordance with these findings the Tribunal dismissed the election petition3. Respondent 1 then preferred an appeal against the decision of the Tribunal before the High Court of Madhya Pradesh at Jabalpur under S. 116A of the Act. The High Court has allowed the appeal; it has held that respondent 5 had at the time of the scrutiny offered to supply the omission but the returning officer refused to allow him to do so, that the returning officer was bound to make a summary enquiry before rejecting respondent 5s nomination paper, and that the non-mention of the age in the nomination paper was not a defect of a substantial character. In consequence, according to the High Court, the rejection of respondent 5s nomination paper was improper; that is why the High Court set aside the election of the appellants under S. 100 (1)(c) of the Act. It is against decision of the High Court that the appellants have come to this Court by special leave.

Reasoning: It is true that on this question the Tribunal had found in favour of the appellants; but, in our opinion, it was open to the High Court to consider the correctness or the propriety of the said finding because the jurisdiction of the High Court under S, 116A of the Act is wide enough and is not confined to questions of law. It has been urged before us that the decision on this narrow question of fact depends upon the appreciation of oral evidence led by the parties, and it was suggested that the High Court was not justified in interfering with the conclusion of the Tribunal on that point. We are not impressed by this argument. We would, therefore, deal with the present appeal on the basis that respondent 5 attempted to rectify the omission but was not allowed to do so by the returning officer. Therefore, if the defect in the nomination paper of respondent 5 was not of a substantial character the High Courts decision would be right; on the other hand, if the said defect is of a substantial character then the rejection of respondent 5s nomination paper would be proper and the fact that respondent 5 was not allowed an opportunity to rectify the said omission would make no difference in law. That is how the only point which calls for our decision is whether the omission in question is a substantial defect under S. 36 (4) of the Act5. Thus there is no doubt that respondent 5 omitted to specify his age before he signed his nomination paper and in that sense his nomination paper has not been completed in the prescribed form. The question which arises for our decision is whether respondent 5s omission to specify his age in his nomination paper amounts to a defect, and if yes, whether it is a defect of a substantial character under S. 36 (4) of the ActIn our opinion, having regard to the context it would be unreasonable to hold that the word defect under S. 36(4) excludes all cases of omission to specify the details prescribed by the statute in the nomination paper. We must accordingly reject the appellants argument that the omission in question is not a defect under S. 36 (4)The High Court has held that the Returning Officer ought to have held an enquiry under S. 36 (2) (a) and satisfied himself whether or not respondent 5 was eligible to stand for the election. In our opinion the High Court was in error in coming to this conclusion. If the nomination paper of respondent 5 did not comply with the provisions of S. 33 the case fell squarely under S. 36(2) (b) and the only question which can arise in such a case in whether or not the defect arising from the failure to comply with the provisions of S. 33 is of a substantial character or not. If the defect is not of a substantial character the Returning Officer shall not reject the nomination paper on the ground of the said defect; if, on the other hand, the defect is of a substantial character the returning officer has to reject the nomination paper on the ground of the said defect. That is the effect of the provisions of S. 36(2) (b) and (4) read together. An enquiry which is necessary under S. 36 (2) (a) may and can be held for instance in cases where the nomination paper shows the age of the candidate as above 25, but an objection has been raised that in fact he is below 25 and as such incompetent to stand for election under Art. 173 of the Constitution; in other words, the impugned nomination has complied with the provisions of S. 33 and as such does not fall under S. 36 (2) (b) at all, nevertheless the validity of the nomination can be challenged on the ground that in fact Art. 173 is not complied with. Cases falling under this class must be distinguished from cases falling under S. 36(2) (b). In the latter class of cases the failure to comply with the provisions of S. 33 being established there is no scope for any enquiry under S. 36 (2) (A). Once the alleged non-compliance is proved the defective nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character. Therefore, it is not right to hold that even after the Returning Officer was satisfied that the omission to specify his age showed that the nomination paper of respondent 5 had not complied with the provisions of S. 33, he should still have held an enquiry under S. 36 (2) (a). Non-compliance with the provisions of S. 33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the non-compliance in question is of a substantial characterThere is little doubt that the age of the candidate is as important as his identity, and in requiring the candidate to specify his age the prescribed form has given a place of importance to the declaration about the candidates age. Just as the nomination paper must show the full name of the candidate and his electoral roll number, and just as the nomination paper must be duly signed by the candidate, so must it contain the declaration by the candidate about his age.It is significant that the statement about the age of the candidate is required to be made by the candidate above his signature and is substantially treated as his declaration in that behalf.That being the requirement of the prescribed nomination form it is difficult to hold that the failure to specify the age does not amount to a defect of a substantial character.The prima facie eligibility of the person to stand as a candidate which depends under Art. 173 of the Constitution, inter alia, on his having completed the age of 25 years is an important matter, and it is in respect of such an important matter that the prescribed form requires the candidate to make the declaration. It would, we think, be unreasonable to hold that the failure to make a declaration on such an important matter is a defect of an unsubstantial character.In this connection it is relevant to refer to the fact that the declaration as to the symbols which the prescribed form of the nomination paper requires the candidate to make is by the proviso to rule 5 given a subsidiary place. The proviso to rule 5 shows that any non-compliance with the provisions of sub-rule (2) of rule 5 shall not be deemed to be a defect of a substantial character within the meaning of S. 36, sub-sec. (4).In other words, this proviso seems to suggest that, according to the rule-making authority, failure to comply with the requirements as to the declaration of symbols as specified in rule 5 sub-rule (2) would have been treated as a defect of a substantial character; that is why the proviso expressly provides to the contrary. This would incidentally show that the failure to specify the age cannot be treated as a defect of an unsubstantial characterIt appears that the Election Tribunal also found that on the evidence adduced before it, it could not be determined with any amount of certainly as to whether at the time of filing the nomination paper Mr. Pirthi the candidate in question was above or below 25 years of age. That is why it was held that the rejection of the nomination paper could not be said to be improper. One of the points urged before the Punjab High Court was that the omission to state the age was not a defect of a substantial character but the High Court did not feel called upon to give a firm finding on this point, because in the case before it there was not only the impugned omission but there was also no material before the Returning Officer whereby that omission could be made good. We ought, however, to add that though on the facts proved in that case the election petition should have been dealt with under S. 36 (2) (b) and (4) it was apparently considered as falling under S. 36 (2) (a) and that, as we have already pointed out, is not the true legal position. Besides there are certain general observations made in the judgment which would indicate that the High Court was inclined to hold that the defect arising from the failure to declare the age in the nomination form was not of a substantial character. It is unnecessary to add that these observations do not correctly represent the effect of S. 36 (2) (b) and S. 36 (4) of the Act.