Supreme Court of India
VIVEKA NAND GIRIversusNAWAL KISHORE SAHI
- Citation
- 1984 INSC 34
- Decided
- 16 February 1984
- Disposal
- Dismissed
- Bench
- S MURTAZA FAZAL ALI
Holding
The rejection of the nomination paper on the basis of the age discrepancy was improper as the defect was not of substantial character, rendering the election void under Section 100(1)(c) of the Representation of the People Act, 1951.
Summary
The appellant, having been elected to the Bihar Legislative Assembly, challenged the rejection of four of his nomination papers by the Returning Officer, particularly the paper rejected on the ground of a four‑year age discrepancy between the electoral roll and the nomination. The respondent, the defeated candidate, filed an election petition seeking to set aside the election on the basis that the nomination papers were improperly rejected. The Supreme Court examined whether the age difference constituted a substantial defect under Section 36(4) of the Representation of the People Act, 1951, and whether the Returning Officer was obliged to correct or overlook such an inaccurate description under Section 33(4). The Court held that the age discrepancy was merely an inaccurate description, not a substantial defect, and that the Returning Officer should have corrected or overlooked it. Consequently, the rejection of the nomination paper was deemed improper and the appellant's election was declared void under Section 100(1)(c) of the Act. The appeal was dismissed.
Issues considered
- Whether the rejection of a nomination paper on the ground of a discrepancy in the candidate's age is a defect of substantial character under Section 36(4) of the Representation of the People Act, 1951.
- Whether the Returning Officer is required to correct or overlook an inaccurate description of age as per Section 33(4) of the Act.
- Whether the election is void under Section 100(1)(c) of the Act due to improper rejection of the nomination paper.
Legislation cited
- Representation of the People Act, 1951s. 100(1)(c), s. 19, s. 33(4), s. 33(6), s. 36(4)
Subjects
election lawnomination papersage discrepancyelectoral rollsubstantial defectvoid electionRepresentation of the People Act
Judgment
• ,.
'
...• ..
.•
558
•
A
)ia··
VIVEKA NAND GIRi
v..
•
, ·NAVI AL K!Sf!:ORE SAHI
B
.. February 16, !984
. [S. MURTAZA FAZ~L ALI, A. VAAADARAJAN AND· :f
RANGANATH MISRA, .JJJ
'
~~~
Ri!presentatton of _the People A~t. 1951 Section 36 · (4}-Nomiffation papeT-
iiscr,pancy in age of candidate as mentioned rn.'the ·nom1ndt101r paper. and tn electoral
c ;
roll-Rejectron .of no1n1nation pdper-Whether vcil1d and proper.
T,li.e ap_pellant was elected to tJie State Legislative Asseffibly and the first r~spon
ient, the defeated candidate. -filed an Election Petition for setting- aside 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 D
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
with- reference to_ the el_ectoral roll, .and the fourth on the. ground-that · there was.
dlfferenfe in the age- of the candi_date.
..
The· High Court beld,that n·o· nomination pit per cOUld be rejected qnless the defect
was of a substantial character,· and that the difference in the age of the candidate ~
E
··as given in the electoral.roll arld the nomination paper Was· not a material en·or 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 s~side as being
VQid ·on that grounp.: ' ' ...
Dismissing 'the appeal,
F
HELD: 1. The rejettio:n of the n.Omination paper on the· gr·o~nd of difference ....
in the age. was improper, fof having rcgafd to the :provisions of sectiofl ·36(4) of :the
., ·~
or the Repre~entation 'Of the Peop'!e Act, 1951 the defect is not,. of a substantial .
character. The' appellant's election. iS 'consequently void under sectio.n 1oo· (l)(c)
.of the Act on th_e g~ound of improper rejection of the nomination paper.- [564 E-F]
In the :insta~t _cise, the differ.;:nc~ in the age of the ca~didate,· as entered i~ the G
electoral ro_ll arid the ~omination paper wollld ·fall under th,e category~of 'inaccurate
de3Cripti.on' mention~d in the prC>viso tO" section 33(4) and it was the~efore.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- ·. H
tUency should be~ 21 ·years of age on thi qualifying._date- and. a pers_on to be chosen,
. . ·' -
"
. -
I
. '
,. VIVEKA NANO v. NAWAL KISHORE (Voradarajah, J.) .. ·559
. ' . . .
to fill a seat l-n'tl~e S_t~t~· ~hOuid i~ot
·Lcgislat.ute ..of a. be. iess. than .25 y~ars ~f
age. A
The s~bstanti.il·_requir~ment 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
.•,not·w!tet~~r th~re·was_a differe11ce ·o·f 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
in·agc is "'not .
. ~t'n error of subStantif1T.character. [562 G-B"; 564 C-D] ~.
. . .. . i· . B
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
k ...
vi for th7 appellant. c
. 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' E "
I .constituency on the ground tl1at t.he election is V<{id on account ,of
:··~;1.1n~_roper .r~jection 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 F
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
.G, ..
·. the appeal without co;t& on 8-2-I9S4'for reasons to follow: Now we
pr~ceed 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
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,
• ' ...
,.
.. (1984] 2 S.C.R.
560 SUPREME COURT REPORTS
A paper No .. 39 was cine Nand Lal Sah while the proposer in the nomi-
nation pa~er 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
B scruti~ised all' the nomination pape~s.of Ram Kumar 'Jha. Ram Kumar
·'Jha had mentioned.the serial number and part number as 415.and 1.3
resp~ctively 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 · r·
c seriid number .and part 'number of the candidate were wrong with
reference to ihe electoral roll Ex. 4, noniinati.cri pa~q No. ~O on the
ground that· the serial number and part number ·of the candidate. were .·
wrong -a~d 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
D 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 w~icb ·
' the argument was confined before ns that he. has completed 33 years ·
;(age while it.is·common 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 d·eposcd· as RW~7 about the rejection of those four nomi- ...(
E naton 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 argu-
't'
ments of the learned counsel for the. parties iti the light of the authori-
ties placed .before him the learned Single Judge found that no. nomina-
tion paper conld be rejected unless the defect is of a substantial chara-
cter as pointed out even in para 13(i) of the Handbook for Returning·
G 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
, N:AND V. NA.WAL ]\!SHOR~ (Voradarajan,
. viyEKA .. ~
J.) 561.'
•
of the candidates and' their .proposers as enter~d 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. B
. '
'. , . 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 E
prevent any cahdidate from being nominated by mo're than one nomi-
·. i.. . nation paper. B~t 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 consti-
tuency.· 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
F'
't . years of age on· the qualifying date and is ordinarily resident in a con- '
stituency shall be:entitled to be .registered in tlie electoral roll.for that·
c01{stitutency: Theref~re, · 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
."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 ·subs~ripes
before some person authorised in that behalf by the Election Commis-
sion an oath or affirmation according fo the-form set ·~uHor the pilr- ·H: .
. pose in tlie Third Schedufe, and is, in the case of a seat in the Legisla-
,. -
) . -- . ··' - . - ~ . .
•.
.. ·~ . . '~' -
562 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 .
vi
. under any la mad~ by Parliament:- Therefore, a person to be :entitled
to be chosen to.fill a seat in· the Legislative A~sembly of a State should • c
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 J,/
.
·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 nomi-
c nation 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(considerati~n therefore is whether the·rejection 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• .•
Th~ pr,oviso
.
to that sub-section . reads thus: . ·
E
"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 and·n9
cl"ilca'l, technical or printing error in regard to the electoral roil
.F · .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 nomination··paper 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 .
··G·· ' 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 ov~rlooked:" ··
·H- . We are of the opinioi1 thalthe difference in.the age of the aan-
date, Ram Kumar.
.
Jha. as entered in the· electoral
. .roll and· .the no111i-
'
·•
...
vrvsi:A NAND v..NAWAL''KISHOR.r(Voradarajan, J.) 563
·nation paper would fall uniter ihe .cat~gory
of 'inaccl)rate description'
rrientio"ned in the abbve proviso andlhat it was·obligatory on the part
of the· Returning Officer to .have it corrected or. 'to overlook it having
· regard to the .language of the proviso. .
• . ·.' • .. , I , ' ," . '' ·.
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 ' Jf
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 a·ge. 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
of
." should have completed 25 years age and should hiive been
in the electoral· roll for thatconstituency and not
'
whether.
a difference of 4 years in the age of the candidate as mentioned in the
.registered
• It .• ,..,
there was
electoral roll and the nomination paper: The difference .in our opinion ·u,
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 diffi-
culty as r~gards iderttiiyl.?n account of the difference i_n the age ineu-
ti<1ned .'in the el~ctora.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 nomi-
It
ution paper. 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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