# •, ? BIRAD MAL SINGHVI v. ANAND PUROHIT - **Citation:** [1988] Supp. 2 S.C.R. 1 - **Court:** Supreme Court of India - **Decided:** 1988-08-02 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/birad-mal-singhvi-v-anand-purohit-10089 - **Pages:** 23 ## Headnote •, ? BIRAD MAL SINGHVI A v. ANAND PUROHIT AUGUST 2, 1988 [E.S. VENKATARAMIAH AND K.N. SINGH, JJ.l B Representation of the People Act, 1951-Sections 33(5), 36(2) (b), 80, 83, 87, 93 and 116. Nomination-Scrutiny of-Returning Officer to be satisfied candidate eligible to contest electiolLEnquiry-Summary in nature-No scope for elaborate enquiry-Candidate to satisfy Returning Officer C about eligibility-Election petition-Not an appeal against order of Returning Officer rejecting nomination-Fresh material can be adduced by candidate before High Court to support eligibility. Candidate an elector of different constituency-Proof of name in D concerned electoral roll-Onus on candidate to prove-No duty of Returning Officer to refer relevant electoral roll and verify eligibility. Nomination paper-Rejection on ground candidate has not completed 25 years of age-Election petition-Documents showing date of birth-Evidentiary value in proving age. E Indian Evidence Act, 1872-Section 35-Entry relating to date of birth in school register-Relevant and admissible-Entry regarding age in school register-Not much evidentiary value to prove age in absence of material on which the age was recotded. Election to the State Legislative Assembly of Rajasthan for JodhF pur City Constituency, was held in the year 1985. Nomination papers were filed on 8.2.1985 and the date of scrutiny was 9.2.1985. In all 45 candidates filed their nominations, after scrutiny and withdrawal, 21 candidates contested the election. After polling and the counting of votes, the appellant was declared elected having obtained majority of G votes. The respondent who was an elector in the Jodhpur City Constituency filed an election petition before the High Court challenging the appellant's election, on the ground that the result of election was materially affected on account of improper rejection of nomination H 1 r ' 2 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. A papers of 3 candidates, namely, Smt. Umrao Ben, Hukmi Chand and . Suraj Prakash Joshi. It was pleaded that Smt. Ben was an elector in the Sardarpura Assembly Constituency the Returning Officer wrongly rejected her nomination paper without affording an opportunity to her to produce a copy of the electoral roll, that Hukmi Chand and Suraj Prakash Joshi both were more than 25 years of age on the date of the B nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a ~andidate as they were below 25 years of age. ... t The appellant contested the election petition. It was asserted that Smt. Ben had failed to file a certified copy of the relevant entry in the c electoral roll of Sardarpura Constituency along with her nomination, that she further failed to produce a copy of the electoral roll at the time of scrutiny and the returning officer therefore rightly rejected her nomination paper. In respect of Hukmi Chand and Suraj Prakash Joshi, it was pleaded that none of the two candidates were present before th1'. returning officer at the time of scrutiny and since the entries D contained in the electoral roll indicated that they were below 25 years of .... age the returning officer rightly rejected their nomination papers, and that the rejection of the 3 nomination papers was proper and the result of the election was not materially affected on account of the rejection of the name. IE The High Court allowed the election petition and set aside the appellant's election. It held that the nomination paper of Smt. Umrao Ben was validly rejected as she had failed to comply with section 33(5) of the Representation of Peoples Act inasmuch as she failed to produce the copy of the electoral roll or a certified copy of the extract relating ' to entry of her name in the electoral roll. It further held that the f nomination papers of Hukmi Chand and Suraj Prakash Joshi had been rejected improperly by the Returning Officer as both t.he candidates ,, had attained the qualifying age of 25 ## Text _Characters 0–39,808 of 62,576. This is a partial read: ask again with offset=39808 for what follows._ •, ? BIRAD MAL SINGHVI A v. ANAND PUROHIT AUGUST 2, 1988 [E.S. VENKATARAMIAH AND K.N. SINGH, JJ.l B Representation of the People Act, 1951-Sections 33(5), 36(2) (b), 80, 83, 87, 93 and 116. Nomination-Scrutiny of-Returning Officer to be satisfied candidate eligible to contest electiolLEnquiry-Summary in nature-No scope for elaborate enquiry-Candidate to satisfy Returning Officer C about eligibility-Election petition-Not an appeal against order of Returning Officer rejecting nomination-Fresh material can be adduced by candidate before High Court to support eligibility. Candidate an elector of different constituency-Proof of name in D concerned electoral roll-Onus on candidate to prove-No duty of Returning Officer to refer relevant electoral roll and verify eligibility. Nomination paper-Rejection on ground candidate has not completed 25 years of age-Election petition-Documents showing date of birth-Evidentiary value in proving age. E Indian Evidence Act, 1872-Section 35-Entry relating to date of birth in school register-Relevant and admissible-Entry regarding age in school register-Not much evidentiary value to prove age in absence of material on which the age was recotded. Election to the State Legislative Assembly of Rajasthan for JodhF pur City Constituency, was held in the year 1985. Nomination papers were filed on 8.2.1985 and the date of scrutiny was 9.2.1985. In all 45 candidates filed their nominations, after scrutiny and withdrawal, 21 candidates contested the election. After polling and the counting of votes, the appellant was declared elected having obtained majority of G votes. The respondent who was an elector in the Jodhpur City Constituency filed an election petition before the High Court challenging the appellant's election, on the ground that the result of election was materially affected on account of improper rejection of nomination H 1 r ' 2 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. A papers of 3 candidates, namely, Smt. Umrao Ben, Hukmi Chand and . Suraj Prakash Joshi. It was pleaded that Smt. Ben was an elector in the Sardarpura Assembly Constituency the Returning Officer wrongly rejected her nomination paper without affording an opportunity to her to produce a copy of the electoral roll, that Hukmi Chand and Suraj Prakash Joshi both were more than 25 years of age on the date of the B nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a ~andidate as they were below 25 years of age. ... t The appellant contested the election petition. It was asserted that Smt. Ben had failed to file a certified copy of the relevant entry in the c electoral roll of Sardarpura Constituency along with her nomination, that she further failed to produce a copy of the electoral roll at the time of scrutiny and the returning officer therefore rightly rejected her nomination paper. In respect of Hukmi Chand and Suraj Prakash Joshi, it was pleaded that none of the two candidates were present before th1'. returning officer at the time of scrutiny and since the entries D contained in the electoral roll indicated that they were below 25 years of .... age the returning officer rightly rejected their nomination papers, and that the rejection of the 3 nomination papers was proper and the result of the election was not materially affected on account of the rejection of the name. IE The High Court allowed the election petition and set aside the appellant's election. It held that the nomination paper of Smt. Umrao Ben was validly rejected as she had failed to comply with section 33(5) of the Representation of Peoples Act inasmuch as she failed to produce the copy of the electoral roll or a certified copy of the extract relating ' to entry of her name in the electoral roll. It further held that the f nomination papers of Hukmi Chand and Suraj Prakash Joshi had been rejected improperly by the Returning Officer as both t.he candidates ,, had attained the qualifying age of 25 years on the date of nomination. • Aggrieved by the aforesaid judgment, the appellant preferred an appeal to this Court under section 116-A of the Representation of • G People Act, 1951. On the questions whether: (1) the returning officer had validly rejected the nomination papers of Smt. Umrao Ben, Hukmi Chand and '-= Suraj Prakash Joshi, and (2) the respondent had proved in accordance with law that Hukmi Chand and Suraj Prakash Joshi whose nomination H papers were rejected by the Returning Officer had attained the age of 25 years on January 1, 1984. ' "' B.M. SINGHVI '· ANAND 3 Allowing the appeal, setting aside the order of the High Court and dismissing the election petition, the Court. HELD: l(a). Section 33 of the Act provides for presentation of nomination paper and it further lays down the requirements of a valid nomination. Section 33(5) requires a candidate who is an elector of a different constituency, to file a copy of the electoral roll of the constituency as a certified copy of the relevant entries along with his nomination paper. If a candidate is unable to comply with these requirements at the time of filing the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the electoral roll of the constituency of the relevant part thereof or a certified copy of the relevant entries of the roll before the returning officer at the time of scrutiny. [9A-EJ (b) The Legislature thus provides two opportunities to such a candidate for proving his eligibility to contest the election, one at the time of filing the nomination paper and the other at the stage of scrutil\Y. If the candidates fail to avail of either of the two opportunities his nomination paper is liable to be rejected. [9E-F] (c) Non-compliance with section 33(5) is fatal to the nomination ·and no other mode is prescribed by the Act for proving the eligibility of A B c D the candidate. Section 33(5) prescribes a particular mode to prove eligibility of a candidate to contest election and section 36(2)(b) provides E penal consequences. [IOA] (d) Section 33(5) of the R.P. Act lays down a mandatory require- .men! for a valid nomination. The purpose is to satisfy the returning officer that the candidate is eligible to contest the election and if he fails to satisfy the returning officer in the manner prescribed, the penalty and the consequences which are specified in section 36(2)(b) must follow. Section 33(5) is not directory instead it is mandatory in nature. [IOF] F (e) An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescriberl by section 33(5) of G the Act and if he fails to do that, he must suffer the consequences contemplated by section 36(2)(b) of the Act. It is not open to a candidate who fails to comply with section 33(5) to put the blame on the returning "< officer for the rejection of his nomination paper. The returning officer is under no legal obligation to make amends for the omission of a candidate, especially when the omission relates to a mandatory H requirement. [!OG-IIA] A B c D 4 SUPREME COURT REPORTS [1988] Supp. 2 S;$.:.R· (f) The law does not enjoin the returning officer to send for the electoral roll from his office to verify the eligibility of a candidate. The law casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in section 33(5) of the Act and if he fails to do that the retuning officer is bound to reject the nomination paper, he has no option in the matter. [ l lB] (g) The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the .,. eligibility of a candidate. [UC] In the instant case, there is no dispute that Smt. Umrao Ben failed to comply with the requirement of section 33(5) of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof, or the certified copy of the relevant entries along with her nomination paper. Nor she had produced any of the three documents before the returning officer at the time of scrutiny. In such circumstances the returning officer rightly rejected Umrao Ben's nominatioin paper. [lOB] Sri Baru Ram v. Shrimati Prasanni & Ors., [1959] SCR 1403; Narbada Prasad v. Chhagan Lal & Ors., [1969] 1 SCR 499; Parmar Himatsingh Jugatshingh v. Patel Harmanbhai Narsibhai, [1974] 3 SCR 453; Avadh Raj Singh v. fugal Kishore Gupta, [1979] l SCC 228 and E Ranjit Singh v. Pritam Singh & Ors., [1966] 3 SCR 543, referred to. F 2(a) During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election. [14F] \ • (b) Enquiry during scrntiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer's order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an G election petition are not in the nature of appeal against the order of the returning officer. It is an original proceeding. l 15C l (c) In the instant case, on the basis of the entries contained in the electoral roll the Returning Officer held that the two candidates did not ~ possess the requisite qualification of age as required by Article 173 of H the Constitution to contest the election. Accordingly he rejected both ~ B.M. SINGHVI v. ANAND 5 the nomination papers. In the absence of any material before the reA turning officer, the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them. But his decision is not final. In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date. If on the basis of the material B placed before the High <;:our! it is proved that the candidate whose .... nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election. [14G-15B] 3(a) To render a document admissible under section 35 of the Evidence Act three conditions must be satisfied, firstly, entry that is c relied on must be one in a public or other official book, register or record, ·secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. [21B] .; (b) An entry relating to date of birth made in the school register is D relevant and admissible under section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. [21C] E (c) Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the school's register is made on the informa- ) tion given by parents or someone having special knowledge of the fact, the same would have probative value. [20A) F (d) The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. [20B] (e) The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by G the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the ·"\ ·entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. [20C) H 6 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. A In the instant case, nomination papers of two candidates Hukmi Chand and Suraj Prakash Joshi were rejected by the Returning Officer on the ground that they had not attained the age of 25 years at the time of filing nomination papers. In the election petition copies of extract of school register, certificate and mark list of Secondary Education B Board were produced. The High Court committed serious error in accepting the dates of birth as mentioned in the documents. The High Court's entire approach in considering the question of dates of birth was misconceived. The burden to prove 1 this fact in issue was on the respondent who was the election petitioner. In fact the burden was ... on him to prove his case by producing Hukmi Chand and Suraj Prakash Joshi or their parents to prove or corroborate the dates of birth as c mentioned in the school register and the certificate. No adverse inference could be drawn against the appellant for not examining them. [22C-G; 23C-D] Raja Janaki Nath Roy & Ors. v. Jyotish Chandra Acharya D Chowdhury, AIR 1941 CAL. 41; Jagan Nath v. Moti Ram & Ors., [1951] Punjab 377; Sakhi Ram & Ors. v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur & Ors., [1966] Patna 459; Ghanchi •· Vora Samsuddish lsabhai v. State of Gujarat, [1970] Gujarat 178; Radha Kishan Tickoo & Anr. v. Bhushan Lal Tickoo & Anr., [1971] J & K 62; Jagdamba Prasad v. Sri Jagannath Prasad & Ors., 42 ELR E 465; K. Paramalali v. L.M. Alangam & Anr., 31 ELR 401; Krishna Rao Maharu Patil v. Onkar Narayan Wagh, 14 ELR 386; Brij Mohan Singh v. Priya Brat Narain Sinha & Ors., [1965] 3 SCR 861; Ram Murti v. State of Haryana, AIR 1970 SC 1029 and Mohd. lkram Hussain v. State of U.P. & Ors., AIR 1964 SC 1625, referred to. F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 574 • ' (NCE) of 1987. From the Judgment and Order dated 18.2.1987 of the Rajasthan High Court in S.B. Elec. Pein. No. 8 of 1985. G Dr. N.M. Ghatate, S.V. Deshpande and Abhishek Singhvi for the Appellant. G.L. Sanghi, Jitender Sharma, P. Gaur and M.R. Calla for the Respondent. The Judgment of the Court was delivered by: " H • B,M. SINGHVI v. ANAND [SINGH, J.] 7 SINGH, J. This appeal under Section 116-A of the Representation of People Act 1951 (hereinafter referred to as the Act) is directed against the judgment and order of the High Court of Rajasthan dated 18. 2.1987 setting aside the election of the appellant to the State Legislative Assembly of Rajasthan from Jodhpur City Assembly Constituency. A B Election to the State Legislative Assembly of Rajasthan from the constituency No. 183 Jodhpur City was held in the year 1985; nominations papers were filed by 8.2.1985 and the date of scrutiny was 9.2.1985 . .In all 45 candidates filed their nominations. After scrutiny and withdrawal 21 candidates contested the election, after polling and counting of votes the appellant was declared elected having obtained · C majority of votes. Anand Purohit, respondent who is an elector in the Jodhpur City Constituency No. 183 filed an election petition before the High Court challenging the appellant's election, on the ground that the result of election was materially affected on account of improper rejection of nomination papers of three candidates namely, Smt. Umrao Ben, Hukmichand and Suraj Prakash Joshi. The respondent pleaded D that Smt. Umrao"Ben was an elector in Sardarpura Assembly Constituency, the returning officer wrongly rejected her nomination paper, without affording opportunity to her to produce a copy of the electoral roll. He further pleaded that Hukmichand, and Suraj Prakash Joshi both were more than 25 years of age on the date of their nomination, yet the returning officer rejected their nomination _papers on the E ground 'that they were not qualified to be a candidate as they were below 25 years of age. The appellant contested the election petition. He asserted that Umrao Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura constituency along with her nomination, she further failed to produce copy of the electoral roll at the time of scrutiny and therefore the returning officer F rightly rejected her nomination paper. As regards Hukmichand and Sura j Prakash Joshi, the appellant pleaded that none of the two candidates was present before the returning officer at the time of scrutiny and since the entries contained in the electoral roll indicated that they were below 25 years of age the returning officer rightly reje~ted their nomination paper. The appellant further asserted that the rejection of G the three nomination papers was proper and the result of the election was not materially affected on account of the rejection of the aforesaid three nomination papers. The High Court held that the nomination paper of Smt. Umrao Ben was validly rejected as she had failed to comply with Section 33(5) of the Act inasmuch as she had failed to produce a copy of the electoral roll or a certified copy of the relevant H A B 8 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. extract relating to entry of her name in the electoral roll in Sardarpura constituency. The High Court further held that nomination papers of Hukmichand and Suraj Prakash Joshi had been rejected improperly by the returning officer as both the candidates had attained the qualifing age of 25 years on the date of nomination. On these findings the High Court set aside the appellant's election by its judgment and order dated 18.2.1987. Aggrieved by the said judgment the appellant has preferred this appeal under Section 116 of the Act. The controversy in the present appeal relates to the validity of the orders of the returning officer rejecting the nomination paper of Smt. Umrao Ben, Hukmichand and Suraj Prakash Joshi. We would C · first examine the validity of the order of the returning officer rejecting Smt. Umrao Ben's nomination paper, which was questioned by the Respondent before us. There is no dispute that Umrao Ben was not an elector in the Jodhpur City Assembly Constituency No. 183. She was an elector in Sardarpura Assembly Constituency. In her nomination paper she had given the details of the relevant entry contained in the D electoral roll of Sardarpura Assembly Constituency, but her nomination paper was not accompanied by a certified copy of the relevant entry in the electoral roll of Sardarpura constituency nor she had produced a copy of the electoral roll or the relevant part thereof before the returning officer at the time of scrutiny. Therefore the returning officer rejected her nomination paper. The High Court held that the E returning officer had rightly rejected the nomination paper of Umrao Ben and there was no question of improper rejection of her nomination paper. Sri G .L. Sanghi, learned counsel for the respondent challenged the correctness of the High Court's findings on this question. He urged that since the Returning Officer who was holding the scrutiny of nomination papers relating to the Jodhpur Assembly F constituency was also the returning officer of Sardarpura Assembly constituency ,_he should have verified the entry of Umrao Ben's name from the electoral roll of Sardarpura Assembly Constituency which must have been with him. He urged that Umrao Ben's request to verify entries relating to her name from the electoral roll of Sardarpura Assembly constituency was ignored by the returning officer, and G further her request for grant of time to produce electoral roll was also rejected. He urged that object of Section 35 of the Act was merely to ascertain as to whether a candidate whose nomination paper was scrutinised was an elector or not and since the electoral roll of Sardarpura Assembly Constituency was already with the returning officer he could have verified the entries from that electoral roll. The H .returning officer had acted in an unreasonable manner in refusing to ~ 9 ' B.M. SINGHVI v. ANAND [SINGH, J.] do that and in rejecting her nomination paper. We find no merit in A these submissions. Section 33 of the Act provides for presentation of nomination paper and it further lays down the requirements of a valid nomination. Sub-section (5) of the Section 33 is as under: B "where the candidate is an elector of a different consti- ... tuency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in -such roll shall, unle•s it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny." c The above provision requires a candidate who is an elector of a different constituency, to file a copy of the electoral roll of cons tituency or a relevant part of that roll or a certified copy of the relevant entries along with his nomination paper. These documents are necessary to show that the candidate is an elector of a different constiD tueocy, and he is eligible .. to contest the election. If a candidate is unable to comply with these requirements at the time of filing the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the ele.ctoral roll of the constituency or the relevant part thereof or a certified copy of the relevant entries of the roll before the returning officer at the time of scrutiny. The LegisE lature pro~ides .two opportunities to such a candidate for proving his eligibility to contest the election one at the stage of filing the nomination paper and the other at the stage of scrutiny. If the candidate fails } of avail either of the two opportunities his nomination paper is liable to be rejected. Section 36 of the Act provides that on the date of scrutiny of nomination papers the returning officer shall examine the F ' nomination papers and shall decide air objections which may be made I to any nomination and he may either on objection or on his own motion, after holding such summary inquiry, if any, reject any nomination on the grounds specified in clauses (a), (b) and (c) of sub-section (2). Section 36(2)(b) provides for the rejection of the nomination paper on the candidate's failure to comply with any of the provisions of G Section 33 or Section 34 of the Act. Section 33(5) read with Section 36(2)(b) makes it apparent that if a candidate who is an elector of a different constituency fails to prove his eligibility in the manner " prescribed by Section 33(5) of the Act, his nomination paper is liable to be rejected for the non compliance of Section 33(5) of the Act. These provisions are plain which admit of no other interpretation. H JO SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. t A Non-compliance with Section 33(5) is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate. Section 35(5) prescribes a particular mode to prove eligibility of a candidate to contest election and Section 36(2)(b) provides penal consequences. Therefore Section 35(5) is mandatory in nature. There is no dispute that Umrao Ben failed to comply with the requireB men! of Section 33(5) of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof, or the certified copy of the relevant entries along with her nomination paper. .,. Nor she had produced any of the three documents before the returning officer at the time of scrutiny. In the circumstances the returning officer rightly rejected Umrao Ben's nomination paper. c Shri G.L. Sanghi, learned counsel then urged that Section 33(5) of the Act was directory and it was open to a candidate to prove his eligibility by any other mode. He urged that Umrao Ben's request to the returning officer to verify her entry from the electoral roll of Sardarpura Assembly Constituency which was in his custody (as he D was the returning officer of Sardarpura Assembly Constituency also) was ignored and he refused to grant her time to produce the necessary documents. In the election petition there was no pleading that Umrao Ben had made any such request or that the returning officer had refused to grant her time. The High Court has on appreciation of evidence held that no request for time was made by Smt. Umrao Ben E and no request for verifying the entry relating to her from the electoral roll of Sardarpura Assembly Constituency was made. But even assuming that the returning officer had refused to verify the relevant entries relating to Umrao Ben from the electoral roll of Sardarpura Assembly Constituency, he had acted in accordance with law. No exception could be taken to his conduct. Section 33(5) of the Act lays down a F mandatory requirement for a valid nomination. The purpose of Section 33(5) of the Act is to satisfy the returning officer that the , candidate is eligible to contest the election and if he fails to satisfy the \ returning officer in the manner prescribed by Section 33(5) of the Act, the penalty and the consequences which are specified in Section 36(2)(b) must follow. Section 33(5) is not directory instead it is manG datory in nature. An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescribed by Section 33( 5) of the Act and if he fails to do that, he must suffer the consequences contemplated by Section 36(2)(b) of the Act. It is not open to a candidate who fails to comply with Section 33(5) of the Act • to put the blame on the returning officer for the rejecting his nominaH tion paper. The retuning officer is under no legal obligation to make } B.M. SJNGHVI v. ANAND [SINGH, J.] 11 .amends for the omission of a candidate, especially when the omission relates to a mandatory requirements. Apart from this legal aspect, even on facts, the Returning Officer, in his testimony before the High Court, had stated that the electoral roll of Sardarpura Assembly Constituency was not with him at the time he had taken up the scrutiny of nomination paper of Jodhpur City Constituency. The law does not enjoin the returning officer to send for the electoral roll from his office to verify the eligibility of a candidate. The Jaw casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in Section 33(5) of the Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter. The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the eligibility of a candidate. In Sri Baru Ram v. Shrimati Prasanni & Ors., [1959] SCR 1403 this Court interpreted Section 33(5) and Section 36(2)(b) and observed as under: A B c D "Section 33(5) requires the candidate to supply the prescribed copy and Section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescdbed evidence and provides a penalty for his failure E to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of Section 33(5) is not mandatory but is directory, because the statute itself has made it clear that the failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a partiF cular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement·should lead to any other consequences.'1' Repelling the argument that failure to comply with the requirement of Section 33( 5) was not a defect of substantial nature and the returning officer could be satisfied by other modes that the candidate's name was entered as an elector in another constituency, the Court held G that the satisfaction of the returning officer was required to be made in accordance with the statutory requirement and if a candidate failed to H 12 SUPREME COURT REPORTS [ 1988] Supp. 2 S.C.R. t A comply with that requirement the returning officer could not be satisfied by any other mode. The Court further held that the failure to comply with the requirement of Section 33(5) was a defect of substantial nature which could not be ignored under Section 36(4) of the Act. ·1 he view taken in Sri Baru Ram's case (supra) has been followed in Narbada Prasad v. Chaggan Lal & Ors., [1969] I SCR 499; Parmar B Himatsingh Jugatsingh v. Patel Harmanbhai Narsibhai, [ 1974].3 SCR 453 and Avadh Raj Singh v. Jugal Kishore Gupta, [1979] 4 SCC 328. Learned counsel for the respondent sought support from a Constitu- ,__ lion Bench decision of this Court in Ranjit Singh v. Pritam Singh & Ors., [ 1966] 3 SCR 543 for his submission that failure to comply with section 33(5) wa> not a defect of substantial character. We have carec fully gone through the decision but we do not find anything therein to support the respondent's contention instead it supports the view taken by us. In Ranjit Singh's case (supra) a candidate who was not an elector of the constituency had filed three nomination papers. Along with one of his nomination paper he had filed a copy of the electoral roll of the constituency where his name was entered as an elector, with a view to D comply with the requirement of Section 33(5) of the Act. He had not filed similar copies along with other two nomination papers. The nomination paper with which the candidate had filed a copy of the electoral roll was rejected on the ground of some technical defect but the other two nominations were rejected on the ground that copy of the electoral roll was not filed along with them. This Court held that E the returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers. The Court further held Section 33(5) did not require that a copy must be filed with each nomination paper or that any copy should be filed at all as it was open to a candidate to produce the copy before the returning officer at the time of scrutiny. The Court held that the purpose offiling F the copy is to ensure that the returning officer was able to check whether the candidate concerned was qualified or not and that purpose would be effectively served even if only one copy was filed with one nomination paper and no copies were filed along with the other nomination papers. While considering Sections 33(5) and 3q(4) of the Act the Constitution Bench held that Section 33(5) required that it was the G copy produced by the candidate which should show that he was qualilied or not and for that purpose a copy produced by the candidate should be complete whether it was of the roll or of the relevant part thereof. To such a case Section 36(4) had no application. Section 36(4) provided that returning officer should not reject.any nomination paper \" on the ground of any defect which was not of a substantial character. H Non-production of copy of the relevant part was a defect of a substan- B.M. SINGHVI '· ANAND [SINGH, J.l l3 tial character for it made it impossible to decide whether the candidate was qualified or not. Since qualification for contesting election was a matter of substantial character, the failure to produce a copy of the electoral roll which was incomplete was a defect of a substantial character it would invalidate the nomination paper. In this view 'Ye agree with the High Court that there had been .no improper rejection of the Umrao Ben's ·nomination paper, as the accidental circumstances that the returning officer was also the returning officer of the other constituency should not make any difference. A 'l As regards the rejection of the nomination paper of Hukmi Chand and Suraj Prakash Joshi are concerned the High Court has held that none of the two candidates was present before the Returning C Officer at the time of scrutiny nor any person on their behalf was present. In his nomination paper Ex. 2 Hukmi Chand had given a declaration that he had completed 26 years of age while Sura j Prakash Joshi had given declaration in his nomination paper Ex. 3 that he had completed 25 years of age. At the time of scrutiny no objection .was raised against their nomination paper by any party and none appeared D on behalf of the aforesaid two candidates. The Returning Officer found that according to the entries in the electoral roll the age of Hukmi Chand was 23 years similarly in the case of Suraj Prakash Joshi the entry in the electoral roll indicated that on the relevant date his age was 22 years. On the basis of the entries contained in the electoral roll the Returning Officer held that the two candidates did not possess the E requisite qualification of age as required by Article 173 of the Constitution to contest the election. Accordingly he rejected both the nomination papers. Before the High Court a controversy was raised as ~ to whether the two candidates were present at the time of scrutiny but '?n the evidence on record the High Court has held that neither of the two candidates nor any body on their behalf was present at the time of F scrutiny. Placing feliance on the oral and documentary evidenc.e produced by the respondent the High Court has recorded findings that Hukmichand as well ilS Suraj Prakash Joshi both .ha.d attained the age of 25 years on the relevant date i. J.1984 and their nomination papers had been rejected improperly by the Returning officer, which mJL rially affected the result of the election. G Dr Chitale learned counsel for ihe app¢llant urged that on the admitted facts and circumstances the Returning Officer could not be '( held to have acted improperly in rejetting the nomination papers of Hukmi Chand and Suraj Prakash Joshi. He urged that since at the time of the scrutiny neither of the two candidates nor their proposer nor H 14 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. A anybody else appeared before the returning officer, or placed any material before him showing that either of the two -candidates was qualified to contest the election having attained the age of more than 25 years, the returning officer had no option but to rely on the entries contained in the electoral roll and therefore the rejection of the nomi· B c D E F G nation papers of Hukmi Chand and Suraj Prakash Joshi could not be said to be improper. Learned counsel further urged that if the returning officer did not act improperly in rejecting the nomination paper of the aforesaid candidates, appellant's election could not be set aside on the basis of fresh or additional material placed before the High Court. Section 36 provides that on the date fixed for the scrutiny of nomfoation, the candidate, his election agent, proposer or any other person duly authorised in writing by the candidate may attend the proceedings at the time and place fixed for scrutiny. The returning officer is re· quired to give them all reasonable facility for examining the nomina· tion paper of all the candidates. Section 36(2) requires the returning officer to examine the nomination papers and to decide all objections which may be made to any nomination. He may, either on such objection or on his own motion, after such summary inquiry, if any, as he may think necessary, reject any nomination on any of the grounds specified under clauses (a), (b) an.