PETITIONER:
BRIJENDRALAL GUPTA AND ANOTHER
Vs.
RESPONDENT:
JWALAPRASAD AND OTHERS.
DATE OF JUDGMENT:
22/04/1960
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1960 AIR 1049 1960 SCR (3) 650
CITATOR INFO :
D 1972 SC 580 (23)
R 1975 SC1274 (2)
ACT:
Election-Nomination, rejection of-Non-mention of age in
nomination Paper-If defect of substantial nature-Omission,
if amounts to defect-Scrutiny-When enquiry necessary-
Electoral Roll-Entry regarding age How far conclusive-
Representation of the People Act, 1951 (43 of 1951) ss. 33
and 36-Representation of the People Act, 1950 (43 of 1950),
ss. 16 and 19.
HEADNOTE:
Thirteen candidates filed their nomination papers for
election to the Legislative Assembly of Madhya Pradesh. The
nomination of U was rejected on the ground that he failed to
give a declaration as to his age as required in the
nomination paper. After the poll the appellants were
declared duly elected. Thereupon one of the unsuccessful
candidates J filed an election petition challenging the
election of the appellants, inter alia, on the ground that
the nomination of U had been improperly rejected. The
Election Tribunal dismissed the petition holding that U made
no attempt before the returning officer to remedy the defect
in the nomination paper, that the defect could not in law
have been remedied at the stage of the scrutiny that the
defect was of a substantial character and that the rejection
of the nomination was proper. On appeal the High Court held
that at the time of the scrutiny U had offered to supply the
omission but the returning officer had refused to allow him
to do so, that the returning officer was bound to make a
summary enquiry before rejecting the nomination, that the
non-mention of age in the nomination paper was not a defect
of a substantial character and that the rejection of the
nomination was improper and consequently allowed the appeal
and set aside the election of the appellants:
651
Held, that the omission to give the declaration as to age in
the nomination paper was a defect of substantial character
within the meaning of s. 36(4), Representation of the People
Act, 1951, and the rejection of the nomination for such an
omission was
proper.
Rattan Anmol Singh v. Atma Ram, [1955] 1 S.C.R. 481, Pranlal
Thakorlal Munshi v. lndubhai Bhailabhai Amin, (1952) 1
E.L.R. 182, Rup Lal v. jugaraj Singh, (1958) 5 E.L.R. 484,
Brij Sundar Sharma v. Election Tribunal, Jaipur, (1956) 12
E.L.R. 216, Balasubyahmanyan v. Election Tribunal, Vellore,
(1953) 7 E.L.R. 496 and Ramayan Shukla v. Rajendra Prasad
Singh (1958) 16 E.L.R. 491, referred to.
Durga Shankar Mehta v. Thakur Raghuraj Singh, [1955] S.C.
140 and Karnail Singh v. Election Tribunal Hissar, [1954] 10
E.L.R. 189, distinguished.
Pt. Charanjit Lal Ram Sarup v. Lohri Singh Ram Narain,
A.I.R. 1958 Punj. 433, disapproved.
The word " defect" in S. 36(4) included an omission to
specify the details prescribed in the nomination. The
distinction drawn in English cases between an " omission "
and " inaccurate description" depended upon the specific
provisions of the English statutes and did not obtain under
the Indian Law.
The Queen v. Tugwell, (1868) 3 Q.B. 704 and Baldwin v.
Ellis, (1929) 1 K.B. 273, distinguished.
Cases failing under s. 36(2) (b) must be distinguished from
those falling under s. 36(2) (a). Where the nomination
paper did not comply with the provisions of s. 33 of the Act
the case fell under s. 36(2) (b) and the defective
nomination had to be accepted or rejected according as the
defect was of an unsubstantial or of a substantial
character. In such a case it was not necessary for the
returning officer to hold any enquiry.
JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 151 of 1960.
Appeal by special leave from the judgment and order dated
November 23, 1959, of the Madhya Pradesh High Court,
Jabalpur, in First Appeal No. 78 of 1959, arising out of the
judgment and order dated May 12, 1959, of the Election
Tribunal, Raigarh, in Election Petition No. 76/1957.
G. S. Pathak and G. C. Mathur, for the appellants.
N.C. Chatterjee, S . K. Kapur, Y. S. Dharamadhikaree and
A. G. Ratnaparkhi, for respondent No. 1.
1960. April 22. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-Does the failure of a candi- date to
specify his age as required by the prescribed form of the
nomination paper amount to a defect of a
652
substantial character under s. 36(4) of the Representation
of the People Act, 43 of 1951 (hereinafter called the Act)?
That is the point of law which arises for our decision in
the present appeal. The said point arises in this way. On
February 25, 1957, polling took place at the General
Election to the Madhya Pradesh Legislative Assembly from the
Mamendragarh 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 I 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, bad
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,
respondent 1, filed an election petition under s. 81 of the
Act challenging the election of the appellants on several
grounds, one of which was that the nomination of respondent
5 had been improperly rejected. He, therefore, played that
the election of the appellants should be declared void and
he himself should be declared as having been duly elected.
This election petition was made over for trial to the
Election Tribunal, Raigarh.
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
respondent 5. These three issues were (1) whether the
nomination paper of respondent 5 was improperly rejected
because of the omission to
653
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 the 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 petition.
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 5’s 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 5’s 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 this decision of the High Court that the
appellants have come to this Court by special leave.
The learned counsel for the appellants wanted to challenge
the correctness of the finding recorded by the High Court
that respondent 5 offered to correct the defect in his
nomination paper by supplying evidence about his age and
that the returning officer had refused to give him an
opportunity to do so. 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
85
654
propriety of the said finding because the jurisdiction a 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 Darrow 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 Court’s decision
would be right on the other hand, if the said defect is of a
substantial character then the rejection of respondent 5’s
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 36(4) of
the Act.
Before dealing with this question it is relevant to refer to
ss. 33, 34 and read s. 36. Section 33 provides for the
presentation of the nomination paper and prescribes the
requirements for a valid nomination. Section 33(1) is
important for our purpose. It provides that on or before
the date appointed under el. (a) of IS. 30 each candidate
shall, either in person or by his proposer, between the
hours of eleven o’clock in the forenoon and three o’clock in
the afternoon deliver to the returning officer at the place
specified in this behalf in the notice issued under s. 31 a
nomination paper completed in the prescribed form and signed
by the candidate and by an elector of the constituency as
proposer. Section 33(2) lays down that a candidate shall
not be deemed to be qualified to be chosen to fill a
reserved seat unless his nomination paper contains a
declaration prescribed by it. Sub-section (3) deals with
the case of a candidate who, having held any office referred
to in el. (f) of s. 71, hag been dismissed and a period of
five years has not elapsed since the
655
dismissal, and lays down that the nomination paper of such a
person shall be accompanied by a certificate as specified.
Sub-section (4) requires that on the presentation of a
nomination paper the 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 those entered in the electoral rolls. The proviso
to this subsection requires the returning officer to permit
any clerical or technical error in the nomination paper in
regard to the said names or numbers to be corrected, and
where necessary, it authorises him to direct that any
clerical or printing error in the said entry shall be
overlooked. We are not concerned with the remaining two
sub-sections of s. 33. Section 34 deals with deposits and
provides that a candidate shall not deemed to be duly
nominated for election from a constituency unless he
deposits or causes to be deposited the amounts as prescribed
in cls. (a), (b) and (c). Section 36 deals with the
scrutiny of nomination&, authorises the returning officer to
hold an enquiry,, ,prescribes the procedure to be followed
by him in holding such an enquiry, required him to endorse
his decisions on the points raised in the scrutiny, and to
prepare a list of validly nominated candidates that is to
say, whose nominations have been found valid, and to affix
it to his notice board. Section 36(1) provides that on the
date fixed for the scrutiny of nominations under s. 30, the
candidates and the other persons specified in it may attend
at such time and place as the returning officer may appoint,
and the returning officer shall give them all reasonable
facilities for examining the nomination papers of all
candidates which have been delivered within the time and in
the manner laid down in s. 33. Sub-section (2) deals with
the examination of nomination papers by the returning
officer, and it provides that the said officer shall decide
all objections which may be made to any nomination, and may,
either on such objection or on his own motion after such
summary enquiry, if any, as he thinks necessary, reject any
nomination on any of the-following grounds,-(a) that the
candidate either is not qualified or is disqualified for
being chosen to till
656
the seat under any of the following provisions that may be
applicable, viz., Arts. 84, 102, 173 and 19 1, and Part 11
of this Act, (b) that there has been a failure to comply
with any of the provisions of section 33 or section 34, or
(c) that the signature of the candidate or the proposer on
the nomination paper is not genuine. Sub-section (4) 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. Sub-section (5) prescribes the
procedure for the scrutiny, and subs. (6) requires that the
returning officer shall endorse on each nomination paper his
decision accepting or rejecting the same and in case of
rejection he shall record in writing a brief statement of
his reasons for such rejection. Sub-section (7) provides
that for the purpose of this section a certified copy of an
entry in the electoral roll for the time being in force of a
constituency shall be conclusive evidence of the fact that
the person referred to in that entry is an elector for that
constituency unless it is proved that he is subject to a
disqualification mentioned in s. 16 of the Representation of
the People Act, 1950 (43 of 1950). Sub’section (8) requires
the returning officer to prepare a list of validly nominated
candidates and affix it to his notice board.
It is clear that s. 33 requires that a nomination paper must
be completed in the prescribed form and signed by the
candidate and by the elector of the constituency as
proposer. The form prescribed in that behalf is Form No.
2B. The relevant portion of the prescribed form reads
thus:-
Form 2B.
Nomination Paper
(See rule 4)
Election to the Legislative Assembly of………(State)
(To be filled in by the proposer)
I hereby nominate…………….as a candidate for election
from the……………… Assembly Constituency.
1. Full name of proposer………………
2. Electoral roll number of proposer…………
3. Name of candidate’s ++father/husband…………..
4. Full postal address of candidate………..
5. Electoral roll number of candidate………..
Date …… Signature of proposer.
657
(To be filled by the candidate)
1, the above-mentioned candidate, assent to this nomination
and hereby declare-
(a) that I have completed…………. years of age;
(b) that the symbols I have chosen are in order of
preference
(i) ………………………….
(ii) …………………………. and
(iii) ………………………….
Date Signature of candidate.
Strike out one of the alternatives as necessary.
It is common ground that the first part of the nomination
paper which has to be filled in by the proposer was in order
and the second part was duly ‘signed by the candidate but
failed to declare his age as prescribed by (a) above. When
the returning officer noticed this omission he made an order
rejecting respondent 5’S nomination. The brief statement of
reasons which the returning officer has recorded shows that
he held that the failure of respondent 5 to declare his age
cannot be treated as clerical or technical error, but is of
a substantial nature since declaration as to age was
necessary in order to entitle a candidate to be qualified
under Art. 173 of the Constitution. The returning officer
has also noted that he took the objection suo moto and
rejected the nomination paper of respondent 5. Thus there is
no doubt that respondent 5’s 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 5’s 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 Act.
On behalf of the appellants it has been conceded before us
that the omission in question undoubtedly constitutes
failure to comply with the provisions of A. 33, and so it
attracts the provisions of s. 36(2)(b) of the Act, but it is
urged that the said omission does not amount to a defect
under s. 36(4) much less a defect which is of a substantial
character. The argument is
658
that s. 36(4) can apply only to such cases of non-compliance
with s. 33 which can be said to amount to defects and not
others, and since the omission in question is not a defect
there is no scope for invoking the provisions of that, sub-
section. In support of this argument reliance has been
placed on two English decisions. In The Queen v. Tugwell
(1) Cockburn, C. J., held that the 9 votes whose validity
was impeached had to be struck off because they had not
complied with s. 32 of the Municipal Corporation Act (5 & 6
Wm. 4, c. 76) and so s. 142 could not cure their defect.
The voting papers in question contained the Christian name
and the surname of the candidate and his place of abode and
nothing more, whereas s. 32 required that they should also
contain the description of the candidate. In other words,
there was a total omission to supply the description
required by s. 32. It was, however, urged that the said
omission should be treated as inaccurate description, and so
the validity of the impugned votes should be sustained under
s. 142 which provides, inter alia, that no inaccurate
description of any person shall hinder the full operation of
the Act in respect of such person provided that the
description of such person is such as to be commonly
understood. Cockburn, C. J., held that in the cases of the
9 votes in question they were not dealing with the
inaccurate description but a total omission of description
which is one of the things required by s. 32, and so s. 142
was inapplicable. It appears that Lush,J., and Hannen,J.
agreed with the conclusion of the Chief Justice with some
hesitation. To the same effect is the decision in Baldwin
v. Ellis (2). In that case the omission to state in the
nomination paper the name of the parish for which the person
nominated was qualified as a local government elector was
held to be non compliance with the requirements of rule 4 of
the Rural District Councillors Election Order, 1898, and
that the said omission could not be cured by s. 13 of the
Ballot Act of 1872 since that section applied only to cases
where there had been a wrongful admission of a nomination
paper and not to those where a nomination paper had been
rejected. It was also
(1) (1868) 3 Q.B 704
(2) (1929) 1 K.B 273.
650
held that the omission in question cannot be treated as
inaccurate description of the person nominate within rule 13
of the Order of 1898 but was a clear non-compliance with the
requirements of rule 4 of that Order and as such it was not
cured by rule 33. It would thus be seen that in both the
decisions the question as to whether the particular omission
amounted to an inaccurate description was decided in the
light of the specific provision of the statute, and so they
cannot sustain the broad argument that in no case can
omission be treated as a defect. We may also incidentally
point out that Halsbury has read these decisions in the same
way (3).
On the other hand the dictionary meaning of the word ”
defect” is “lack or absence of something essential to
completeness”, and in that sense omission to specify the age
call and would be treated as a defect under s. 36(4).
Defect also means ” a flaw or a fault or an imperfection”;
but whether or not it includes an omission must necessarily
depend upon the context in which the word is used. In 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 next question which we must consider is whether in the
case of such an omission it was obligatory on the returning
officer to hold an enquiry under s. 36(2) of the Act. 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 is 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
(3) Halsbury’s ‘Laws of England”, Vol. 14, 3rd Ed.,
paragraphs foot-note (a) on p. 95.
660
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 Dot 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 character.
That takes us to the question as to whether the failure to
specify the age in the nomination paper amounts to a defect
of a substantial character under s. 36(4) or not. There 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 candidate’s age. Just as the
661
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 declara-
tion 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-s. (4). In other
words, this proviso seems to suggest that, according to the
rule making authority, failure to comply with the require-
ments 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 can. not be treated as a
defect of an unsubstantial character.
On behalf of the respondents it has, however, been urged
before us that the returning officer should not be astute to
reject the nomination papers on technical grounds, and that
in the present case the returning officer should have looked
at the electoral roll and satisfied himself that respondent
5 was duly qualified 86
662
to stand for the election. His age is 48 and it was shown
in the electoral roll against his name. It was thus a
simple matter of looking at the electoral roll be satisfied
that the omission to specify the age in the nomination form
was no more than a technical breach of the requirements of
s. 33. We are not impressed by this argument. As we have
already observed, in cases of non-compliance with s. 33
which attract the provisions of s. 36(2)(b), there would be
no occasion to hold an enquiry under s. 36(2)(a). The only
point to consider in such cases would be whether the defects
in question are substantial or not; and so the argument that
the returning officer could have easily verified the age of
respondent 5 is not really material in construing s. 36(4).
In this connection it is relevant to consider the effect of
the presumption which is raised under s. 36(7) of the Act
and its effect. As we have already noticed, under s. 36(7)
a certified copy of the entry in the electoral roll shall be
conclusive evidence of the fact that the person referred to
in that entry is an elector for that constituency ; but it
must be remembered that this presumption is raised for the
purposes of this section and it is made expressly subject to
the last clause of this subsection, that is to say, the
presumption can arise unless it is proved that the person in
question is subject to any of the disqualifications men-
tioned in s. 16 of the Act of 1950. The use of the
adjective ” conclusive ” which qualifies” evidence ” is
technically inappropriate because the presumption arising
from the production of the certified copy is by no means
conclusive.
It is also significant that in regard to the conclusive
character of the relevant evidence the material provision as
it stood originally has been subsequently amended by Act 27
of 1956. Originally the provision was that the relevant
entry shall be conclusive evidence of the right of any
elector named in that entry to stand for election or to
subscribe the nomination paper as the case may be. The
Legislature apparently thought that the presumption
authorised by these words was unduly wide, and so, by the
amendment, the prima facie and rebuttable presumption is now
limited
663
to the capacity of the person concerned to be treated as an
elector and nothing more, and that too unless it is proved
that he suffers from any disqualification’ mentioned in s.
16. Section 16 to which reference has thus been made
prescribes disqualifications for registration in an
electoral roll under three heads,-(a) that the person is not
a citizen of India, (b) that he is of unsound mind and
stands so declared by a competent court, or (c) is for the
time being disqualified from voting under the provisions of
any law relating to corrupt and illegal practices and other
offences in connection with elections. Thus the position is
that the certified copy of the relevant entry would prima
facie show that the person concerned is not subject to any
of the said disqualifications, but this prima facie
presumption can be rebutted by evidence to the contrary.
There is yet another aspect of this matter to which
reference may be made. The rebuttable presumption which
arises under s. 36(7) merely refers to the status of the
person concerned as an elector. Let us consider what this
presumption means. An elector under s. 2, sub-s.1, (e), of
the Act in relation to a constituency means ” a person whose
name is entered in the electoral roll of that constituency
for the time being in force and who is not subject to any of
the disqualifications mentioned in s. 16 of the Act of
1950″.
That takes us to the conditions prescribed by s. 19 of the
Act of 1950 for registration in the electoral roll. Section
19 provides that subject to the foregoing provisions of Part
III of the said Act every person who, on the qualifying date
(a) is not less than 21 years of age, and (b) is ordinarily
resident is a constituency, shall be entitled to be
registered in the electoral roll for that constituency.
Thus when a presumption is raised under s. 36(7) it may mean
prima facie that the person concerned is not less than 21
years of age and is ordinarily resident in that
constituency; but for the validity of the nomination paper
it has to be proved that the candidate has completed 25
years of age. Art. 173 of the Constitution which prescribes
the qualification for membership of State Legislature
provides
664
that a person shall not be qualified in that behalf unless
he (a) is a citizen of India, (b) is, in the case of a seat
in the Legislative Assembly, not less than 25 years of age,
and (c) possesses such other qualifications as may be
prescribed in that behalf by or under any law made by
Parliament. Confining ourselves to the requirement about
age it is obvious that the presumption raised under s. 36(7)
would not be enough to justify the plea about validity of
the nomination paper because the said presumption only tends
to show that the person concerned has completed 21 years of
age.It is clear that in regard to persons between 21 to 25
years of age their names would be registered in the
electoral and so they would be electors if otherwise
qualified and yet they would not be entitled to stand for
election to the State Legislature. Thus it would not be
correct to assume that a reference to the certified copy of
the electoral roll would in every case decisively show that
the age of the candidate satisfied the test prescribed by
Art. 173 of the Constitution; in other words, the
requirement about the completion of 25 years of age is
outside the presumption under s. 36(7), and that must be the
reason why the prescribed nomination form requires that the
candidate in signing the said form must make a declaration
about his age. This consideration supports our conclusion
that the declaration about the age is a matter of importance
and failure to comply with the said requirement cannot be
treated as a defect of an unsubstantial character.
It now remains to consider some of the decisions which were
cited before us by the learned counsel for both the parties.
In Rattan Anmol Singh v. Atma Ram(1) this Court has held
that the attestation required in the case of proposers and
seconders who are not able to write their names is not a
technical or unsubstantial matter, and so the failure to
comply with the said requirement would amount to a defect of
a substantial character. The appellants contend, and with
some force, that this decision supports their case that like
the attestation required in the case of an illiterate
proposer or seconder the declaration as to the
(1) [1955] 1 S.C.R 481,
665
age of the candidate is a matter of substantial importance,
and failure to comply with the requirement of the prescribed
form in that behalf cannot be treated as a defect which is
not of a substantial character. In Pranlal Thakorlal Munshi
v. Indubhai Bhailabhai Amin (1), the Election Tribunal,
Baroda, has held that the omission by the candidate to
mention his age in the nomination paper is a defect of a
substantial character and that his nomination paper had been
properly rejected on that account. The appellants have
naturally relied on this decision in support of their case.
The appellants have then referred us to certain decisions
where the effect of the failure to specify the electoral
roll number or other particulars has been considered, and it
has been held that the failure in question amounts to a
substantial defect under s. 36(4) of the Act. (Vide: Rup Lal
v. Jugraj Singh (2 ); Brij Sundar Sharma v. Election
Tribunal, Jaipur (3 ); Balasubrahmanyan v. Election
Tribunal, Vellore (4); and Ramayan Shukla v. Rajendra Prasad
Singh (5). By parity of reasoning the appellants contend
that the failure to mention the age is undoubtedly a
substantial defect. It is unnecessary for us to consider
the merits of these decisions.
On the other hand the respondents have relied on the
decision of this Court in the case of Durga Shankar Mehta v.
Thakur Raghuraj Singh (6). Indeed it appears from the
judgment of the High Court under appeal that in coming to
its decision the High Court was influenced by certain
observations made by Mukherjea, J., as he then was, in
dealing with the case of Durga Shankar (6). In that case
the validity of the election of Vasant Rao, respondent 2,
was challenged before the Election Tribunal on the ground
that he was not eligible to stand for election since at all
material times he was under 25 years of age. It was, how-
ever, clear that no objection was taken before the returning
officer in respect of the nomination paper of respondent 2,
and the said nomination paper had been accepted by
there turning officer. The question
(1) (1952) 1 E.L.R. 182.(2) (1958) 15 E.L.R 484.
(3) (1956) 12 E.L.R. 216.(4) (1953) 7 E.L.R. 496.
(5) (1958) 16 E.L.R. 491.(6) [1955] S.C.R. 267.
666
which was raised before this Court was whether the
acceptance of respondent 2’s nomination paper could be said
to be improper, and this Court held that the acceptance
would have been improper if the want of qualification was
apparent on the electoral roll itself or on the face of the
nomination paper and the returning officer overlooked that
defect or if any objection was raised and enquiry made as to
the absence of qualification in the candidate and the
returning officer came to the wrong conclusion on the
materials placed before him. Since neither of these things
had happened in that case, the Court held that the
acceptance must be deemed to be a proper acceptance. Even
so it was observed that the validity of respondent 2’s
election could be challenged under s. 100(2)(c) of the Act.
With that aspect of the matter we are, however, not
concerned in the present appeal. It would thus be clear
that in the case of Durga Shankar (1) this Court had no
occasion to consider the scope and effect of s. 36(2Xb) and
(4) of the Act at all, and so the observations made in the
judgment on which reliance had been placed by the
respondents in support of their plea that an enquiry should
have been held in the present case do not really help us.
The said observations must, with respect, be read in the
context of the dispute which was raised before this Court in
that case. The respondents have also relied upon the
decision of this Court in Pratap Singh v. Shri Krishna Gupta
(2). In that case this Court has no doubt observed that
courts should not adopt a technical attitude in dealing with
election matters and that ” it is the substance that must
count and it must take precedence over mere form ; but in
appreciating the effect of these observations it is
necessary to bear in mind the points which arose for
decision in that case. It was the failure of the candidate
to mention his occupation as required by rule 9 (1)(i) on
which the validity of his nomination was impeached, and in
dealing with that point this Court had to consider the
effect of s. 23 of the C. P. and Berar Municipalities Act, 2
of 1922, which provided that anything done or any proceeding
taken under the said Act shall not be questioned on account
(1) [1955] 1 S.C.R. 267
(2) A.I.R. 1956 S.C. 140, 141,
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of any defect or irregularity not affecting the merits of
the case. So the short point which the Court had to decide
was whether the defect in the nomination form affected the
merits of the case, and it held that there was no doubt that
the said failure, could riot possibly affect the merits of
the case. It was in the context of this legal position that
the Court disapproved of the technical attitude adopted by
the High Court in dealing with the question of the validity
of the impugned nomination. It is significant, however,
that even in that case the Court has referred with approval
to its earlier decision in the case of Rattan Ammol Singh
(1). There is another decision of this Court on which the
respondents have relied. That is the case of Karnail Singh
v. Election Tribunal, Hissar (2). It appears that in that
case the nomination paper of Sher Singh had been rejected on
the ground that column 8 in the nomination form was not duly
filled up. The defect to which objection was taken was that
the name of the sub-division had not been stated under the
relevant columns, though on evidence it was quite clear that
there was no defect in identifying the candidate and that
the candidate himself pointed out to the returning officer
the entry of his name in the electoral roll, and this Court
held that the defect in question was purely technical and
that the Tribunal was perfectly right in holding that the
nomination paper had been improperly rejected. It is
difficult to see how this decision can assist the
respondents at all. As we have already pointed out the
omission to make a declaration about the age is, in our
opinion, an omission to comply with the substantial
requirement prescribed by the form and it cannot be compared
with the omission with which this Court was concerned in the
case of Karnail Singh (2).
There is one more decision on which the respondents have
relied. In Pt. Charanjit Lal Ram Sarup v. Lahri Singh Ram
Narain (3) the Punjab High Court was dealing with a case
where the nomination paper of a candidate had been rejected
not only on account of the omission to state the age in the
nomination paper but also for the reason that no evidence
was led by the
(1) [1955) 1 S.C.R. 481. (2) (1954) 10 E.L.R. 189.
(3) A.I.R, 1958 Punj. 433.
668
candidate concerned or by his representatives or agents to
show that the candidate had completed his 25 years though
the returning officer had directed that such evidence should
be led. It appears that the Election Tribunal also found
that on the evidence adduced before it could not be
determined with any amount of certainty 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.
In the result the appeal is allowed, the decision of the
High Court is set aside and that of the Tribunal restored
with costs throughout.
Appeal allowed.
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