SURENDRA NATH Vs. MAHENDRA PRATAP SINGH

JUDGEMENT

(1.) General Elections to the Uttar Pradesh Legislative Assembly took place in the year 1985 and in 270 Jhunsi Legislative Assembly Constituency election was held on 2-3-1985, in which the respondent was declared as having been elected. The petitioners also submitted their nomination papers for the said Constituency. Whereas, the nomination papers Nos. 75 and 76 of the petitioner No. 1 were rejected, the nomination papers of the petitioner No. 2 were accepted. The contention of the petitioners being that the nomination papers of the petitioner No. 1 were improperly rejected, they have filed this petition with a prayer that the election of the respondent be declared void on the grounds, as contained in clause (c) of sub-section (1) of Section 100 of the Representation of the People Act, 1951 (for short 'the Act 1951') and that a fresh election for 270 Junsi Assembly Constituency be ordered.

(2.) Admittedly, the petitioner No. 1 filed two nomination forms Nos. 75 and 76; in one of them the proposer was Sri Vijaya Bahadur and in the other, Sri Om Prakash was the proposer and neither form contained a declaration of his age. As the age was not specified by the petitioner No. 1 in his both the nomination forms, the Returning Officer rejected the same for that reason. The case of the petitioner is that the nomination forms of the petitioner No. 1 were wrongly rejected by the Returning Officer; that in support of age, the petitioner No. 1 filed a certified copy of the extract of electoral roll and a photostat copy of the High School certificate; that an endorsement with regard to both the documents was made in one of the nomination forms; that the age of the petitioner No. 1 in both the said documents was shown as more than 25 years; that mere omission to specify age in the nomination forms was not a defect of substantial character; that the Returning Officer was under a legal duty to afford an opportunity to the petitioner No. 1 to rectify the mistake before rejecting the nomination forms; that the Returning Officer legally erred in not having considered the proof, produced by the petitioner No. 1 in support of his age and in having rejected the nomination forms, without affording any opportunity to the petitioner to rectify the mistake; that the petitioner No. 1 having been fully qualified to contest the election and his nomination forms having been illegally rejected by the Returning Officer, the election of the respondent deserved to be declared as void.

(3.) The respondent filed his written statement denying the contentions of the petitioners. It is denied that the petitioner No. 1 filed any certified copy of the extract of the electoral roll and photostat copy of the High School certificate with the nomination forms. It is stated that the endorsement in one of the nomination forms regarding certified copy of the extract of electoral roll and photostat copy of the High School certificate having been filed with the nomination forms, was inserted after the scrutiny and rejection of the nomination forms. It is averred that the failure to specify age in the nomination forms constituted a defect of substantial character within the meaning of Section 36(4) of the Act, 1951, and, therefore, the Returning Officer was fully justified in having rejected the nomination forms of the petitioner No. 1. It is denied that the Returning Officer was under a legal duty to make a summary enquiry and afford an opportunity to the petitioner No. 1 to rectify the mistake under Section 36(2)(a). it is averred that the instant case is covered by clause (b) of sub-section (2) of Section 36, inasmuch as no declaration as to age was given in the nomination forms and consequently Section 33 was not complied with. No declaration regarding the age having been given in the nomination forms, the respondent contended that the nomination papers of the petitioner No. 1 could not be said to have been completed in the prescribed form within the meaning of Section 33. It is also averred that there being a failure to comply with the provisions of Section 33 within the meaning of clause (b) of sub-section (2) of Section 36, no enquiry was required to be made under clause (a) of sub-section (2) of Section 36. It is stated that the documentary proof in support of age could be looked into by the Returning Officer only when a declaration of age was duly made by a candidate. In alternative, the respondent contended that even if it is assumed for argument sake that the certified copy of the extract of electoral roll and photostat copy of the High School certificate were filed with the nomination papers, they could not cure the defect of substantial character that arose in the nomination papers. The contention of the respondent is that both the petitioners are hand in glove and that at the behest of the petitioner No. 2, the petitioner- No. 1 deliberately omitted to specify his age in the nomination forms with the sinister motive. It is said that the petitioners were sure of the victory of the respondent and, therefore, failure to specify age in the nomination forms was pre-planned to challenge the election of the respondent.