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.• VIVEKA NAND GIRi

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, NA VI AL K!Sf!:ORE SAHI

February 16, !984 ..

. [S. MURTAZA FAZ~L ALI, A. VAAADARAJAN AND

RANGANATH MISRA, .JJJ

Ri!presentatton of _the People At. 1951 Section 36 (4}-Nomiffation papeTiiscr, pancy in age of candidate as mentioned rn.'the nom1ndt101r paper. and tn electoral roll-Rejectron .of no1n1nation pdper-Whether vcil1d and proper.

T, li.e ap_pellant was elected to tJie State Legislative Asseffibly and the first rspon ient, the defeated candidate. -filed an Election Petition for settingaside the election '"as being void bn accotint, of, iffiproper erjection of the nomination paper's .of one of the candidates by the .Returning Officer. t was c:Ontended tha.'t. the Returning Officer rejected four ri01nination papers submitted-by the candidate, three on the ground that 'the serial 'number aUd part number o'f 'the caD.didates Wiere wrong withreference to_ the el_ectoral roll, .and the fourth on the. ground-that there was. dlfferenfe in the ageof the candi_date.

The High Court beld, that no nomination pit per cOUld be rejected qnless the defect was of a substantial character,· and that the difference in the age of the candidate ·as given in the electoral.roll arld the nomination paper Was not a material enor and no. opiJortunity haviilg been given to ihe.cindidate when the nOmination papers were filed tO re.move an:Y defect, the rejection of the nomination papers by the.Return- . ing Officer Was_ improper, and the election of the appeJlant \vas set sside as being VQid on that grounp.: ' '

Dismissing 'the appeal,

HELD: 1. The rejettio:n of the n.Omination paper on the grond of difference in the age. was improper, fof having rcgafd to the :provisions of sectiofl 36(4) of :the or the Repreentation 'Of the Peop'!e Act, 1951 the defect is not,. of a substantial . character. The' appellant's election. iS 'consequently void under sectio.n 1 oo (l)(c) .of the Act on th_e gound of improper rejection of the nomination paper.- [564 E-F]

In the :instat _cise, the differ.;:nc~ in the age of the cadidate,· as entered i~ the G electoral ro_ll arid the omination paper wollld fall under th, e categoryof 'inaccurate

de3Cripti.on' mentiond in the prC>viso tO" section 33(4) and it was theefore.obligatory ·

on the_ part of.the .Returniilg Officer to have it corrected or to overlook it having regard to the-language f the said proviso. [563 H; 564.A]

. 2.

A. p:!rsori to be entitfoci to be registered in the electoral. roll for a consti- ·. tUency should be~ 21 years of age on thi qualifying._dateand. a pers_on to be chosen, . . ' -

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VIVEKA NANO v. NA WAL KISHORE (Voradarajah, J.) .. 559 . ' . . .

to fill a seat l-n 'tle Lcgislat.ute .. of a. S_tt~· hOuid iot be. iess. than .25 yars f age.

The sbstanti.il_requirment as regards'-the questiori of the age bf the candidate, _at . fhe tin1:! of sc, utin.Y of nqrnitiµ.tion papef'iS that. he_'shOuld have completed. 25 'Years of age and :=; hould l1a.ve b~:::n registered in the elcctora-1 roll for that constituency and

.•, notw!tet~r threwas_a differe11ce of 4.Years in the age of th_c candidate as n1entio'ne'd .' in th;;: clect?ra~ roll an~ , th:) no'mination pap'ei.-as in, the in_stant case. The (Jifference

inagc is "'not t'n error of subStantif1T character. [562 G-B"; 564 C-D] ~. . . . . . . . . i .

CIVIL APPELLATE JuRJSD!CtION : Civil Appeal Nti: 1081l. of 1983•'

ll~ ' From the judgmeut and''oi:der d•ted 11-1.0-83 otthe .Patna High Court in, t.P .. 27 of i980. , ' , ' . '• .

Dr. f;,.M. Si11ghvi, KN. Rai and A.M. Singh vi for th7 appellant.

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L:R. Singh, A.Shara11 & Svlama11 Khurshid. ror the. respondent. ' . ' '. .

D.P. Si11gh; and D, P, MukhiHjee for the intei'vener. . . .• ·, ..

.. - . ·~ The Judgment, of the court was delivered by

', VARADA.RA.JAN, .t. This appeal under s. I 16(A) of-the Represerita- :.tion of People Act, 1951, hereinafterrefqrcd to as, the. 'Ac( arises out , of the judgment ofa learned Single. Judge.ofthc Patna High Court in Elyction Petition, No. 27 of 1980, setting aside the apr.ellant's, elec- , !ion to the Bihar Legislative' sse; nh'y from No~ 64, Rui Saidi:mr' I .constituency on the ground tl1at t.he election is V<{id on account , of

:··~;1.1n~_roper .rjection Of thy: ndmination papers 'of one 'Ram Kumar . . Jin. The election petition was filed by the first respondent, Nawal

Kcshore Sah;'. 'tl1e defeated candidate. The : el.ection : 'was' .• held ori

3.1~5,)980 and the results were announced on 1:6-1980 after, the.cgun- i' ting._ Tho appellant who contested as the Congress <Jl. andidate secure:\ 38;463 votes while. tne tespondent who eontested as the Janata.

Party candidote secured 26,991 votes'. The other candidates secured

• . ' ' 4 . - . " . much less ai1d tlie appcllaµt who secured a majority of 11,472 .votes over the respovi:bi\t was. de_clared elected by the Returning Officer. After having heard the learned counsel.' for (he parties w6 dismissed ·. the appeal without co; t& on 8-2-I9S4'for reasons to follow: Now we

prceed to give. the reasons . ..

. t' . ' ' . . . •. . .. . . The respondent ore.ssed onlY. ohe ground during the trial before

th~ 'ie.tr.1:d Single Judge a_nd thai was the alleged improper rejectidin

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or the nomination papers of Ram Kumar, Jha who filed four nom-

. H _nation papers nun; ibered.as 39 to 42. The proposer in tQ.e nomination,

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SUPREME COURT REPORTS

(1984] 2 S.C.R.

paper No .. 39 was cine Nand Lal Sah while the proposer in the nomination paer No. 40 was one Ganesh Pt'asad Ciarir. The proposer in. 'ihe'nomination papers Nos. 41 and 42 was am Kumar Jha's own brother Birendra Kumar Jha who has given evidence on the. side of the appeltatas R Wc9, Ail, the four nomination papers of Ram Kumar Jha were presented to the Returning Officer RW-7 .on 2-5-1980 and he

scrutiised all' the nomination papes.of Ram Kumar 'Jha. Ram Kumar 'Jha had mentioned.the serial number and part number as 415.and 1.3

respctively in the nomination paper No. 39, as 391and17 in' the nomi' ·.nation.paper N9. 40, as 324 and 14 in the nomination paper N~. 41:, and it$ 326 and 14 in the nomination paper o. 42 .. The Returning Officer.rejected the nomination papEr No. 39 on the ground that the seriid number .and part 'number of the candidate were wrong with reference to ihe electoral roll Ex. 4, noniinati.cri paq No. ~O on the ground that the serial number and part number of the candidate. were . wrong -ad t_he 'age of the candidate was 'not mentioned, nomination. paper.No. 41 on the ground that the serial number of the candi~.ate was wrong and _nomination paper No. 42 on the i; round that there was difference in the age of the candidate. Ram Kumar J.ha had decla- . red in bis nomination paper No. 42 dated 2-5-1980 in regard to wicb ·

the argument was confined before ns that he. has completed 33 years ;(age while it.iscommon ground that in the electoral roll Ex. 4 prepa- ' . red iii. the year 1980 bis age is mentioned as 37 years: The Returning Oflber has deposcd as RW~7 about the rejection of those four nominaton p1pcts Ex. 2 to 2, (c) on the above grounds by his orders Ex. B to B-3. . .

. . • ij . . . S. ; I 00 (!) ( c )of the Act provides that if the High Court is of the . opinion that any nomination paper has been improperly rejected if shall declare the election of the returned candidate to be void. On a consideration of the evidence ava.ilable on the record and the arguments of the learned counsel for the. parties iti the light of the authorities placed .before him the learned Single Judge found that no. nomination paper conld 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 lhe diffe- rencc in the age of t.h~ candidate as given in the.electoral roll ar.d the nomination paper is not a material error and' no opportunity was given to the candidate; Ram Kumar Jha wben the nomination papers were filed on 2·5-1980 to remove ani:, defect' though s, 33(4) of the Act iays down that on the.presentation '6f \he nomination papers the Returning Officer shall. satisfy himself that the names and electoral roll numbers

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. viyEKA N:AND V. NA WAL ]\!SHOR~ (Voradarajan, J.) 561.' , . . . • of the candidates and' their .proposers as enterd in the nomination., A papets are the. same as those .entered in the electoral roll. The learned ..

Ju<ige held 'that the rejection ol, the nomination papers, Exs. 2,2-a and 2, c by the Returning'OJ!lcer was improper., I~ that view he allowed, the election. petition without costs only to the. extent of setting a.side ·. . the appeallant's election as being void whidi was the only relief prayed • • for in the election petition.

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Before ·.us, Dr.· L.M. Singhvi, Senior Counsel who appeared for the appellant proceeded to draw our attention to .the evidence of cer-

.-1.: .. ·.· tain witn!'sses including that of Ram Kumar Jha's brother Birendra

' Kumar Jha, RW-9 for proving that Ram Kumar Jha had. tiled the nomination p1pers pursuant io some collusion with the object 6f enab- . ling ali. . election. petitfon .beingj)led against' any successful candidat•. • But for want of specific aitegation about any collusion .or fraud and also an issue regarding any call.usion we cl.eclincd to hear any argument on the question. of collusiJn. Consequently, the only point which was call'\lassed before us 'by .Dr . .Singh vi 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 Offic_er and th6 -appeilailt's election -i~ "therefo":fe void under. s, JOO (1) (c) of the !he Act.

S. 33(6) 0f the Act lays down that nothing in .that ieetion shall prevent any cahdidate from being nominated by mo're than one nomi- ·. i. .. . nation paper. Bt t~ proviso theretp says that not more than four . nomination.papers shall be presen\ed by or.on behalf of any candi.date or a=pted by the R.etun:iirig Officer for. election in the .same constituency.· s.· 19 of"the.Ad lays down ihat subject to the earlier provisions contained in Part 3 of the Act every person who is noJ kss than 21 't . years of age on the qualifying date and is ordinarily resident in a constituency shall be:entitled to be .registered in tlie electoral roll.for that c01{stitutency: Therefre, a person to be entitled to be registered ifi . the electtoal ·.roll loi the constituency should ordinarily be a resident:

in that constituiency and should not be less tha.n 21 years qf age on

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. "tho qualifying d•te, Article 173 of the Cqnstitution prescribing the ·

qualification for membership .of a Staie Legislature lays down that a person shall not lie qualified to be chosen to fill aseat in the Legislature of a Sfafe unless he is a citizeri of India, and makes and subsripes before some person authorised in that behalf by the Election Commission an oath or affirmation according fo the-form set ·uHor the pilr- . pose in tlie Third Schedufe, and is, in the case of a seat in the Legisla-

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SUPRE\!E COURT

R,~PORTS

[1,84] 2' ~.C.11. •

. \ . . . . ' . - . ' . - tive Assembly, not less than 25 years of age and, in. the'caie of a seat in the Legislative Council, not less than 30 years of age,- and possesses such other qualifications as may be prescribed fit that behalf by or . . under any la vi mad~ by Parliament:- Therefore, a person to be :entitled to be chosen to.fill a seat in the Legislative Asembly of a State should be not\ess than 25 years of age. In the present case Ram Kumar Jha B. -' 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 tha.t he had compJeted 33 years .. of age. As stated earlier the

 nom\!lation paper had been rejected by the Returning Officer; RW-7 on the ground that tliereis differeJ1ce'in the age of the candidate bet- . . . . •' , \veon w:nt h'3 been m'ntioned in fhe electoral roll arid the nomination paper and it :is not based on any ther ground, It is nobody's

.· ' case that the Returning Officer found any difficu.lty regarding the ·

identity of.the candidate, Ram Kumar Jha on account of this difference in the age mentioned in an \'lectoral toll'and the nomination paper.· ·.The point fo(consideratin therefore is whether therejection of this .nomination paper by the Returning Offioer on the ground .of difference D :'. inJhe age in the electoral rol and the nomination paper is improper .•

S. 33(4) of the Act lays down that on the.presentation ofa nomination paper, tl{c Returning Officer shall satisfy himself thar the names and electoral roll numbers of t)le ca1ididate,' and his proposer as entered in'the nomi1ption paper are the same as entered in the elecforal roll• .•

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Th~ pr, oviso 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. pn4idate > " '.or his proposer or any other. person, or in regard to any place

-· mci1tioned in the electoral rol! or the norilinatfoJ! pap.er andn9

cl"ilca'l, technical or printing error in regard to the electoral roil .numb•rs of any such person in" the electoral roll •or the nomi' 1iation paper, haH affect the full operation of ihe electoral roll: . . or the nominationpaper with respect .to such. person br place in any case whether t)1e descriptio.n in regard to the n.aine of the person or place is such as.to be commonly understood; and tho . retn; ning officer shal! permit any. such misnomer or inaccurate . ' description or clerical, technical or printing rror to be corr7cted ·

and where necessary, direct that any such mi'snomer, inaccurate . " descript!on, clerical, technical or printing ert0r i, n the eleetorill

--ro)l or.in the nomination paper shall be ovrlooked:" ··

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We are of the opinioi1 thalthe difference in.the age of the aandate, Ram Kumar. Jha as entered in the electoral roll and .the no111i- . . . . '

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vrvsi:A NAND v .. NAWAL''KISHOR.r(Voradarajan, J.) 563

nation paper would fall uniter ihe .catgory of 'inaccl)rate description' rrientio"ned in the abbve proviso andlhat it wasobligatory on the part of the Returning Officer to .have it corrected or. 'to overlook it having regard to the .language of the proviso. .

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S. 36(4) of the Act lays down that" the .R, eturnirig Officer shall ' not reject any nomination paper on the ground of any defect which '

is not of a substantial . character.· As stated earliei;, a person to be '.i. e.n.titled to be registered i11 the electiiral rol\for a constiti1tency should , . be 21 years of age on the qualifying cjate:and a person to 'be chosen

-\. _to fill a seat iri the Legislature :of a State should not be less than 25 years of age. Ram.Kumar .Jha had declared in the n:ominafion paper No. 42 tilat he had completed 33 years of age: Therefore, the s.ubstan-

• G.~. tial requirenieni as regards the question of age of the candidate, Ram.

Kumar Jha was that at the time of scrutiny of nomination paper he

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should have completed 25 years of age and should hiive been .registered

' • It .• ,.., in the electoral roll for thatconstituency 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 u error of s.ubstantial tharactcr. As tlie.rejectlon of ihe.nomi-. nation pap;:r No>42 was-not on the groun'd that there. was any difficulty as rgards iderttiiyl.?n account of the difference i_n the age ineuti<1ned .'in the elctora.I roll .arid the nomination pa per we are , clearly >- efihe opinion that ihe rejection of the nomination paper on the grouna of difference in the age ll'as improper, for having tiogard to provisions )...._. f s. 36(4) of the Acdhe defeC!, s not. of a sllbstantial c.haracter and we J.oJd that the appellant's election 1s consequently void under. s-c.100

(1) (c) ofthe Act on the ground of improper rejectio1i of the nomiution paper. It is for this reason 'that we dismissed the appeal without

any or<ler as to cpsts s , mentioned above. 't.··

Appeal, dismissed.

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