BRIJENDRALAL GUPTA Vs. JWALAPRASAD

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) DOES the failure of a candidate to specify his age as required by the prescribed form of the nomination paper amount to a defect of a 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 25/02/1957, 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 1 and Thakur Raghubir Singh, appellant 2, were the Congress candidates while respondents 1 and 7 had been adopted by the Praja SocialistParty, 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 1/02/1957, 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.

(3.) 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 nonmention 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.