DEV KANTA BAROOAH Vs. KUSHARAM NATH

JUDGEMENT

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

(2.) ON 15/09/1959, after this appeal was argued before us, we announced our decision that the appeal had' failed and was dismissed with costs, and we stated that our judgment will follow. Accordingly the <PG>1126</PG> present judgment is now being delivered in the said appeal.

(3.) IT would be relevant at this stage to refer very briefly to the relevant provisions of the Act. The petition filed by respondent 1 asked for a declaration that the election of the appellant is void under S. 100, sub-sec., (1)(c) of the Act. If it is shown that the nomination papers of respondent 1 had been improperly rejected the election of the appellant would have to be declared to be void. This position is not in dispute. The defect in the nomination papers which had been successfully urged by the appellant before the returning officer is alleged to be covered by S. 36, sub-sec, 2(b) of the Act. This clause deals with cases where there has been a failure to comply with any of the provisions of S. 3.3 or S. 34 of the Act. Section 36(3) provides that, if a candidate has filed more nomination papers than one any defect in any one of them would not defeat the candidature of the candidate if there is another nomination paper which had been properly filed and in respect of which no irregularity had been committed. This provision shows that before respondent 1st nomination is rejected it must be proved that all the nomination papers filed by him are defective under S. 36(2)(b). . This position also is not in dispute. Section 36(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. In other words, even if a nomination paper is found to be defective it can be rejected only if the defect in question is of a substantial character.