VIVEKANAND GIRI Vs. NAWAL KISHORE SAHI

JUDGEMENT

(1.) This appeal under Section 116 (A) of the Representation of the People Act, 1951, hereinafter referred to as the 'Act' arises out of the judgment of a learned single Judge of the Patna High Court in Election Petition No. 27 of 1980, setting aside the appellant's election to the Bihar Legislative Assembly from No. 64, Rui Saidpur constituency on the ground that the election is void on account of improper rejection of the nomination papers of one Ram Kumar Jha. The election petition was filed by the first respondent, Nawal Kishore Sahi, the defeated candidate. The election was held on 31-5-1980 and the results were announced on 1-6-1980 after the counting. The appellant who contested as the Congress (I) candidate secured 38,463 votes while the respondent who contested as the Janata Party candidate secured 26,991 votes. The other candidates secured much less and the appellant who secured a majority of 11,472 votes over the respondent was declared elected by the Returning Officer. After having heard the learned counsel for the parties we dismissed the appeal without costs on 8-2-1984 for reasons to follow. Now we proceed to give the reasons.

(2.) The respondent pressed only one ground during the trial before the learned single Judge and that was the alleged improper rejection of the nomination papers of Ram Kumar Jha who filed four nomination papers numbered as 39 to 42. The proposer in the nomination paper No. 39 was one Nand Lal Sah while the proposer in the nomination paper No. 40 was one Ganesh Prasad Gaur. The proposer in the nomination papers Nos. 41 and 42 was Ram Kumar Jha's own brother Birendra Kumar Jha who has given evidence on the side of the appellant as RW-9. All the four nomination papers of Ram Kumar Jha were presented to the Returning officer RW-7 on 2-5-1980 and he scrutinised all the nomination papers of Ram Kumar Jha. Ram Kumar Jha had mentioned the serial number and part number as 415 and 13 respectively in the nomination paper No. 39, as 391 and 17 in the nomination paper No. 40, as 324 and 14 in the nomination paper No. 41 and as 326 and 14 in the nomination paper No. 42. The Returning Officer rejected the nomination paper No. 39 on the ground that the serial number and part number of the candidate were wrong with reference to the electoral roll Ex. 4, nomination paper No. 40 on the ground that the serial number and part number of the candidate were wrong and the age of the candidate was not mentioned, nomination paper No. 41 on the ground that the serial number of the candidate was wrong and nomination paper No. 42 on the ground that there was difference in the age of the candidate. Ram Kumar Jha had declared in his nomination paper No. 42 dated 2-5-1980 in regard to which the argument was confined before us that he has completed 33 years of age while it is common ground that in the electoral roll Ex. 4 prepared in the year 1980 his age is mentioned as 37 years. The Returning Officer has deposed as RW-7 about the rejection of those four nomination papers Ex. 2 to (sic) on the above grounds by his orders Exs. B to B-3.

(3.) Section 100 (1) (c) of the Act provides that if the High Court is of the opinion that any nomination paper has been improperly rejected it shall declare the election of the returned candidate to be void. On a consideration of the evidence available on the record and the arguments of the learned counsel for the parties in the light of the authorities placed before him the learned single Judge found that no nomination paper could 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 the difference in the age of the candidate as given in the electoral roll and the nomination paper is not a material error and no opportunity was given to the candidate, Ram Kumar Jha when the nomination papers were filed on 2-5-1980 to remove any defect though S. 33 (4) of the Act lays down that on the presentation of the nomination papers the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidates and their proposers as entered in the nomination papers are the same as those entered in the electoral roll. The learned Judge held that the rejection of the nomination papers, Exs. 2, 2-a and 2-c by the Returning Officer was improper. In that view he allowed the election petition without costs only to the extent of setting aside the appellant's election as being void which was the only relief prayed for in the election petition.