# State of Bombay v. Suj;reme Gener(!l lillms Exchange Lid

- **Citation:** [1960] 3 S.C.R. 650
- **Court:** Supreme Court of India
- **Decided:** 1959-11-23
- **Case number:** Civil Appeal No. 151 of 1960
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bombay-v-suj-reme-gener-l-lillms-exchange-lid-1887
- **Pages:** 19

## Headnote

Election-Nomination, rejection of-Non-mention of age in
nomination paper-If defect of substantial
nature-Omission, if
amounts to defect-Scrutiny-When enquiry necessary-Electoral
Roll-Entry regarding age-How far conclusive-Representation of
the People Act, 1951 (43 of 1951), ss. 33 and 36-Representation of
the People Act, 1950 (43 of 1950), ss. 16 and 19.
Thirteen candicates filed their nomination papers for election
to the Legislative Assembly of Madhya Pradesh.
The nomination of U was rejected on the
ground
that he failed to give a
declaration as to his age as required in the nomination paper.
After the poll the appellants were declared duly elected.
Thereupon one of the unsuccessful candidates J filed an elecion petition challenging the election of the appellants, inter alia, on the
ground that the nomination of U had been improperly rejected.
The Election Tribunal dismissed
the petition holding
that
U
made no attempt before the
returning officer to remedy the
defect in the nomination paper,
that the defect could not in law
have been remedied at the stage of the scrutiny, that the defect
was of a
substantial character
and that
the rejection
of the
nomination was proper. On appeal the High
Court held that at
the time of the scrutiny U had offered to
supply the omission
but the returning officer had refused to allow him to do so, that
the ret_urning officer was
bound to make
a summary enquiry
before rejection,_ the nomination,
that the non-mention of age in
the nomination paper was not a defect of a substantial character
and that the rejection of the nomination was improper and consequently allowed the appeal and set aside the election of the
appellants:
-
3 S.C.R.
SUPREME COURT REPORTS
651
__.._!
Held, that the omission to give the declaration as to age in
the nomination paper was a defect of substantial character within
the meaning of s. 36( 4), Representation of the People Act, 1951,
and the rejection of the nomination for such an omission was
proper.
- '
Rattan Anmol Singh v. Atma Ram, [1955] 1 S.C.R. 481, Pranlal Thakorlal Munshi v. Indubhai Bhailabhai Amin, (1952) 1 E.L.R.
182, Rup Lal v. 'fugaraj Singh, (1958) 15 E.L.R. 484, Brii Sunder
Sharma v. Election Tribunal, Jaipur, (1956) 12 E.L.R. 216, Balasubrahmanyan v. Election Tribunal, Vellore, (1953) 7 E.L.R. 496
and Ramayan Shukla v. Rajendra Prasad Singh (1958) 16 E.L.R.
491, referred to.
Durga Shankar Mehta v. Thakur Raghuraj Singh, [1955]
1 S.C.R. 267,
Pratap Singh v. Sri Krishna Gupta,
A.I.R. 1956
S.C. 140 and K.arnail Singh v. Election Tribunal Hissar,
[1954]
10 E.L.R. 189, distinguished.
Pt. Charanjit Lal Ram Sarup v. Lohri Singh Ram Narain,
A.LR. 1958 Punj. 433, disapproved.
The word "defect" in s. 36( 4) included an omission to specify
the details prescribed in the oomination. The distinction drawn
in English cases between an
"omission" and "inaccurate description" depended upon the specific provisions of the English
statutes and did not obtain under the Indian Law.
The Queen v. Tugwell, (1868) 3 Q.B. 704 and Baldwin v. Ellis,
(1929) 1 K.B. 273, distinguished.
Cases falling under s. 36(2)(b)
must be distinguished
from
those falling
under s. 36(2)(a).
Where the
nomination paper
did not comply with the provisions of s. 33 of the Act the case
fell under s. 36(2)(b) and the
defective nomination
had to be
4· accepted or rejected according as the defect was of an unsubstantial or of a substantial character. In such a
case it was not
necessary for the returning officer to hold any enquiry.

## Text

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1960
State of Bombay
v.
Suj;reme Gener(!l
lillms Exchange
Lid.
S.K. Da.J.
1960
Af,,-il 22.
650
SUPREME COURT REPORTS
[1960]
substantive right and an enactment which does so is
not
retrospective unless it says
so expressly
or by
necessary intendment.
\Ve are, therefore, of the view that the High Court
was right in the view it took, and the orders of refund
of excess court
fees which it passed were correct in
law.
Accordingly, the appeals fail and are dismissed with
costs.
There will be one set of costs, as the appeals
have been consolidated and heard together.
Appeals dismissed.
BRlJENDRALAL GUPTA AND ANOTHER
v.
j\\'ALAPRASAD AND OTHERS.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
K. C. DAS GUPTA, JJ.)
Election-Nomination, rejection of-Non-mention of age in
nomination paper-If defect of substantial
nature-Omission, if
amounts to defect-Scrutiny-When enquiry necessary-Electoral
Roll-Entry regarding age-How far conclusive-Representation of
the People Act, 1951 (43 of 1951), ss. 33 and 36-Representation of
the People Act, 1950 (43 of 1950), ss. 16 and 19.
Thirteen candicates filed their nomination papers for election
to the Legislative Assembly of Madhya Pradesh.
The nomination of U was rejected on the
ground
that he failed to give a
declaration as to his age as required in the nomination paper.
After the poll the appellants were declared duly elected.
Thereupon one of the unsuccessful candidates J filed an elecion petition challenging the election of the appellants, inter alia, on the
ground that the nomination of U had been improperly rejected.
The Election Tribunal dismissed
the petition holding
that
U
made no attempt before the
returning officer to remedy the
defect in the nomination paper,
that the defect could not in law
have been remedied at the stage of the scrutiny, that the defect
was of a
substantial character
and that
the rejection
of the
nomination was proper. On appeal the High
Court held that at
the time of the scrutiny U had offered to
supply the omission
but the returning officer had refused to allow him to do so, that
the ret_urning officer was
bound to make
a summary enquiry
before rejection,_ the nomination,
that the non-mention of age in
the nomination paper was not a defect of a substantial character
and that the rejection of the nomination was improper and consequently allowed the appeal and set aside the election of the
appellants:
-
3 S.C.R.
SUPREME COURT REPORTS
651
__.._!
Held, that the omission to give the declaration as to age in
the nomination paper was a defect of substantial character within
the meaning of s. 36( 4), Representation of the People Act, 1951,
and the rejection of the nomination for such an omission was
proper.
- '
Rattan Anmol Singh v. Atma Ram, [1955] 1 S.C.R. 481, Pranlal Thakorlal Munshi v. Indubhai Bhailabhai Amin, (1952) 1 E.L.R.
182, Rup Lal v. 'fugaraj Singh, (1958) 15 E.L.R. 484, Brii Sunder
Sharma v. Election Tribunal, Jaipur, (1956) 12 E.L.R. 216, Balasubrahmanyan v. Election Tribunal, Vellore, (1953) 7 E.L.R. 496
and Ramayan Shukla v. Rajendra Prasad Singh (1958) 16 E.L.R.
491, referred to.
Durga Shankar Mehta v. Thakur Raghuraj Singh, [1955]
1 S.C.R. 267,
Pratap Singh v. Sri Krishna Gupta,
A.I.R. 1956
S.C. 140 and K.arnail Singh v. Election Tribunal Hissar,
[1954]
10 E.L.R. 189, distinguished.
Pt. Charanjit Lal Ram Sarup v. Lohri Singh Ram Narain,
A.LR. 1958 Punj. 433, disapproved.
The word "defect" in s. 36( 4) included an omission to specify
the details prescribed in the oomination. The distinction drawn
in English cases between an
"omission" and "inaccurate description" depended upon the specific provisions of the English
statutes and did not obtain under the Indian Law.
The Queen v. Tugwell, (1868) 3 Q.B. 704 and Baldwin v. Ellis,
(1929) 1 K.B. 273, distinguished.
Cases falling under s. 36(2)(b)
must be distinguished
from
those falling
under s. 36(2)(a).
Where the
nomination paper
did not comply with the provisions of s. 33 of the Act the case
fell under s. 36(2)(b) and the
defective nomination
had to be
4· accepted or rejected according as the defect was of an unsubstantial or of a substantial character. In such a
case it was not
necessary for the returning officer to hold any enquiry.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
151 of 1960.
Appeal by special
leave from
the judgment and
order dated November 23, 1959,
of the Madhya Pradesh High Court, Jabalpur, in First Appeal No. 78 of
>-
1959, arising
out of the judgment and order dated
May 12, I 959,
of the Election Tribunal, Raigarh, in
Election Petition No. 76/1957.
. )
...,,
G. S. Pathak and G. C. Mathur, for the appellants.
N. C. Chatterjee, S. K. Kapur,
Y. S. Dharamathikaree and A. G. Ratnaparkhi, for respondent No. 1.
1960.
April 22.
The Judgment of the Court was
delivered by
GAJENDRAGADKAR, ].-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
1960
Brijendralal Guj1ta
v.
Jwalaprasad
Gajendragadkar J.
196(}
Bnj'endralal Gupta
v.
Jwalaprasad
Gajcndragadkar J.
652
SUPREME COURT REPORTS
[1960]
rnbsLantial character under s. '.Hi(4-) of the Represenla-
·~
ti on 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 February 25, 1%7, polling took
place at the General Election to the Madhya Pradesh
Legislative Assembly from the Mamendragarh Double
Member Constituency.
Thirteen candicates had offered
themselves for election either for the general or the
reserved seat at the said
election.
Mr. Brijendralal
Gupta, appellant I and Thakur Raghubir Singh.
appellant. 2, were the Congress candidates while respondents I and 7
had been
adopted by the
Praja
Socialist Party, respondent 4 and one Sadhuram by
the .Jan Sangh and the remaining candidates had filed
their nominations as independent candidates. Udebhan
Tiwari, resnondent 5, had omitted to make the declaration regard,ing his age in his nomination paper. This
~
defect was discovered at the time of the scrutiny of
the nomination papers on February I, 1957, and as a
result bis nomination paper was rejected by the returning· officer.
Subsequently respondent G 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 I and 2 were declared duly -....
elected to the General and the Reserved seat respective-
.ly.
Thereupon Jwalaprasad. respondent l, filed an
election petition under s. 81 of the Act challenging the
election of the appellants on severa] grounds, one of
which was that the nomination of respondent 5 had
been improperly reject.eel.
He, therefore, prayed that
the election of the appellants should be declared void
and he him.self shonlci'be declared as having been duly ·•
elected.
This election
petition was made over for
trial to the Election Tribunal, Raigarh.
On the contentions raised by the parties before it
the Election Tribunal framed as many as 49 issues;
but in the present appeal we are concerned with only
three of them which related to the
rejection of the
,..
nomination
of respondent 5.
These
three
issues
were (I) whether the nomination paper of respondent .'i
w:is improperly rejce1ul liccnusc of the omission to
- .
-
3 S.C.R.
SUPREME COURT REPORTS
653
fill in the age in the prescribed column, (2) whether at
the time of the scrutiny respondent 5 was personally
present and brought to the notice of the returning
officer that his age ·was above 25 and the omission is
simply accidental, and (3) if so, whether the rejection
of the said nomination paper has rendered the whole
election void ab initio under s. 100(1 )( c) of the Act.
The Tribunal held that respondent 5 did not make any
attempt to rectify the defect in the nomination paper,
that the returning officer could not in law have allowed
respondent 5 to remedy the said defect at the stage of
the scrutiny of the nomination, and that the error in the
.nomination was a defect of
a substantial
character
with the result that the rejection of the nomination
paper was according to the Tribunal proper. In accordance with these findings
the Tribunal dismissed the
election petition.
Respondent l then. preferred an appeal against the
decision of the Tribunal before 'the High Court of
Madhya Pradesh at Jabalpur under s. l 16A 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 non-mention 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. lOO(l)(c) of the Act.
It is
against this decision of the High Court that the appellants have come to this Court by special leave.
The learned counsel for the appellants wanted to
challenge the correctness of the finding recorded by the
High Court that respondent 5 offered to correct the
defect in his nomination paper by supplying evidence
;i bout his age and that the returning officer had refused to give him an opportunity to do so.
It is true
that on this question the Tribunal had found in favour
of .the appellants; but, in our opinion, it was open to
the High Court to
consider the
correctness or the
21-6 SCI/ND/82
1960
Brijendtalal Gupta
v.
Jwa!aprasad
Gajendragadkar J.
1960
Brijendralal Gupta
v.
Jwalaprasad
Gajendragadkar :J.
654
SUPREME COURT REPORTS
[1960]
propriety of the said finding because the jurisdiction
of the High Court under s. l 16A of the Act is wide
enough and is not confined to questions of law.
It has
been urged before us that the decision on this narrow
question of fact depends upon the appreciation of oral
evidence led by the parties, and it was suggested that
the High Court was not justified in interfering with
the conclusion of the Tribunal on that point.
We are
not impressed by this argument.
We would, therefore, deal with the present appeal on the basis that
respondent 5 attempted to
rectify the
omission but
was not allowed
to do so by
the returning officer.
Therefore,
if the defect in the nomination paper of
respondent 5 was not of a substantial
character the
High Court's decision would be right;
on the other
hand,
if the said defect is of a substantial character
then the rejection of respondent 5·, nomination paper
would be proper and the fact that respondent 5 was
not allowed an opportunity to rectify the said omission
would make no difference
in law.
That is how the
only point which calls for our decision is whether the
omission 111
question is a
substantial
defect under
s. 36(4) of the Act.
Before dealing with this question it is relevant to
refer to ss. 33, 34 and read s. 36.
Section 33 provides
for the
presentation of the
nomination
paper and
prescribes the
requirements for
a valid nomination.
Section 33(1) is important for our purpose.
It provides
that on or before the cbtc appointed under cl. (a) of
s. 30 each candidate shall, either in person or by his
proposer, between the hours of eleven o'clock in the
forenoon and three o'clock in the afternoon deliver to
the returning officer at the place specified in this behalf
in the notice issued under s. 31 a
nomination paper
completed in the prescribed form and signed by the
candidate ancl by an
elector of the
constituency as
proposer.
Section 33(2) lays
clown that
a candidate
shall not be deemed to be qualified to be chosen to fill
a reserved seat unless his nomination paper contains
a declaration prescribed by it.
Sub-section (3) deals
with the case of a candidate who,
having held any
office referred to in cl. (f) of s. 7, has been dismissed
and a period of five years has
not elapsed since the
(
~ I
-
i
~-
3 S.C.R.
SUPREME COURT REPORTS
655
dismissal,
and lays down that the nomination paper
of such a person shall be accompanied by a certificate
as specified.
Sub-section (4) requires that on the
presentation of a
nomination paper
the
returning
officer shall satisfy himself that the names and electoral
, roll numbers of the
candidate and his
proposer as
entered in the nomination paper are the same as those
entered in the electoral rolls.
The proviso to this subsection requires the returning_ officer · to permit any
clerical or technical error in the nomination paper in
regard to the said names or numbers to be corrected,
and where necessary, it authorises him to direct thatany clerical or printing error in the said entry shall be
overlooked.
vVe are not concerned with the remaining two sub-sections of s. 33.
Sectiop 34 deals with
deposits and
provides that a candidate shall not be
deemed to be duly
nominated for
election from a
constituency unless he deposits or causes to be deposited the amounts as prescribed in els. (a), (b) an.d (c).
Section 36 deals
with the scrutiny
of nominations,
authorises the returning officer to hold
an enqmry,
prescribes the
procedure to
be followed
by him in
holding such an enquiry, requires him to endorse his
decisions on the points raised in the scrutiny, and to
prepare a list of validly nomiuated candidates, that is
to say, whose nominations have been found valid, and
to affix it to his notice board.
Section 36( I) provides
that on the date fixed for the scrutiny of nominations
under s. 30,
the candidates and the
other persons
specified in it may attend at such time and place as
the returning officer may appoint,
and the returning
officer shall give them all reasonable facilities for
examining the nomination papers of all candidates
which have been delivered within the time and in the
manner laid down in s. 33.
Sub-section (2) deals with
the examination of nomination papers by the returning officer, and it provides that the said officer shall
decide all objections which may be made to any nomination, and may, either on such objection or on his
own motion, after such summary enquiry, if any, as
he thinks necessary reject any nomination on any of
the following grounds,-(a) that the candidate either
is not qualified or is disqualified for bein&l" chosen to fill
'
1960.
Brijendralal Gupta
v.
Jwalaprasad
Gajendragadkar-J.
1960
Brijendralal Gupta
v.
Jwalaprasad
Gajendragadkar j.
I
656
SUPREME COURT REPORTS
[ 1960]
the seat under any of the following provisions that may
be applicable, viz., Arts. 84, 102, 173 and 191, and Part
II of this Act, (b) that there has been a failure to comply
with any of the provisions of section 33 or section 34, or
(c) that the sig·nature of the candidate or the proposer
on the nomination paper is not: genuine. Sub-section (4)
lays clown that the returning officer shall not reject
any
nomination paper on the ground of any defect
which is not of a substantial character.
Sub-section (5)
prescribes the procedure for the scrutiny, and subs. (6) requires that the returning officer shall endorse
on each
nomination paper
his decision
accepting
or rejecting the same and in case of rejection he
shall record in writing a brief statement of his reasons
for such rejection.
Sub-section (7) provides that for the
purpose of this section a certified copy of an entry in
the electoral roll for the time being in force of a constituency shall· be conclusive evidence of the fact that
the person referred to in that entry is an elector for
that constituency unless it: is proved that he is subject
to a disqualification mentioned in s. 16 of the Representation of the People Act, 1950 (4.~ of 1950).
Subsection (8) requires the returning officer to prepare a
list of validly nominated candidates and affix it to his
notice board.
It is
clear that s. 33 requires
that a nomination
paper must be completed in the prescribed form and
signed bv the candidate and by the elector of the
constituency as proposer.
The form prescribed in that
behalf is Form No. 2B.
The relevant portion of the
prescribed form reads thus:-
Form 2B.
Nomination Paper
(See rule 4)
Election to the Legislative Assembly of. ............. (State)
(To be filled in by the proposer)
J hereby nominate . ........................ as a candidate
for election from the .................. Assembly Constituency.
1.
Full name of proposer. . . . . . . . . . . . . . . . . . . . ......... .
2.
Electoral roll number of proposer ... ............... , .. .
3.
Name of candidate's ttfather/husband ............... .
4.
Full postal address of candidate ... .
5.
Electoral roll number of candidate . ............... .
Date. ........ .
Signature of proposer.
L
-
\. .....
. ) -
3 S.C.R.
SUPREME COURT REPORTS
657
(To be filled by the can di date)
1960
I, the above-mentioned candidate, assent to this nomination
and hereby· declareBrijendralal Gupta
(a) that I have completed.. . . . . . . . years of age;
(b) that the symbols I have chosen are in order of preference
( i)
(ii)
(iii)
and
Date ....... .
Signature of candidate.
ttStrike out one of the alternatives as neces<>ary.
It is
common ground
that the first part of the
nomination paper which has to be . filled in by the
proposer was in order and the second part was duly
signed by the candidate but failed to declare his age
as prescribed by (a) above.
vVhen the returning officer
noticed this
omission he
made an order
rejecting
respondent 5·,
nomination.
The brief statement of
reasons which the returning officer has recorded shows
that he held that the failure of respondent 5 to declare
his age cannot be treated as clerical or technical error
but is of a substantial nature since declaration as to
age was necessary in order to entitle a candidate to be
qualified under Art. 17 3 of the
Constitution. The
returning officer has also noted that he took the objection suo moto and rejected the nomination paper of
respondent 5.
Thus there is no doubt that respondent 5 omitted to specify his age before he signed his
nomination paper and in that sense his nomination
paper has not been completed in the prescribed form.
The question which arises for our decision is whether
respondent S's
omission to
specify
his age in his
nomination paper
amounts to a defect,
and if yes,
·whether it is a defect of a substantial character under
s. 36(4) of the Act.
.
On behalf of the appellants it; has
been conceded
before us th;it the omission in question undoubtedlv
constitutes failure
to comply with
the provisions of
s. 33, and so it attrncts the provisions of s. 36(2)(b) of
the Act, but it is urged th;it the said omission does nor
amount to a defect under .s. 36(4) much less a defect
which is of a substantial character. The argument is
v.
Jwalaprasad
Gajendragadkar J.
1960
Brijendralal Gupta
v.
:Jwalaprasad
Gajendragadkar ,].
658
SUPREME COURT REPORTS
[1960]
that s. 36(4) can apply only to such cases of non-compliance with s. 38
which can be
said t:o amount Lo
defects and not
others,
and since the
om1ss10n m
question is not a defect there is no scope for invokmg
the provisions of that sub-section.
In support of this
argument reliance has been placed on
two English
decisions. Jn The Que"n v. Tugwell(') Cockburn, C. J.,
held that the 9 votes whose validity was impeached
had to be struck off because
they had not complied
with s. 32 of the Municipal Corporation Act (5 & (j
\'\Tm.
4,
c. 76)
and so s. 142 could not cure their
defect.
The voting papers in question contained the
Christian name and the surname of the candidate and
his place of abode and nothing more,
whereas s. 32
required that they should also contain the descript10n
of the candidate.
In other words,
there was a total'
omission to supply the description required by s. 32.
It was, howe1·er,
urged !'hat the said omission should
be treated as inaccurate description, and so the validity of the impugned votes should be sustained under
s. 142 which provides,
inter alia,
that no inaccurate
description of any person shall hinder the full opera·
tion of the Act in respect of such person provided that
the description of such person
is such as to be commonly understood.
Cockburn, C.J., held that in the
cases of the 9 votes in question they were not dealing
with the inaccurate description but a total omission of
description which is
one of the things
required by
s. '32, and so s. 142 was inapplicable.
It appears that
Lush, .J ., and Hannen, J., agreed with the conclusion of
the Chief Justice with some hesitation. To the same
effect is the decision in Baldwin v. Ellis (').
In that
case the omission to state in the nomination paper the
name of the parish for which the person nominated
was qualified as a local government elector was held
to be non-compliance with the requirements of rule 4
of the Rural District Councillors Election Order, 1898,
and that the said omission could not be cured by s. 13
of the Ballot Act of 1872 since that section applied
only to cases where there had been a wrongful admission of a nomination paper and not to those where a
nomination
paper had
been rejected.
It was
also
(1) (1868) 3 Q.B. 704.
(2) (1929)1 K.B. 273.
•
-
/
I
3 S.C.R.
SUPREME COURT REPORTS
659
held that the omission in question cannot be treated
. as inaccurate description of
the person
nominated
within rule 13
of the Order of 1898 but was a clear
non-compliance with the requirements of rule 4 of that
Order and as such it 'vas not cured
by rule 33.
It
would thus be seen that in both the decisions the question as to whether the particular omission amounted
to an inaccurate description was decided in the light
of the specific provision of the statute,
and so
they
cannot sustain the broad
argument that in no case
can omission be
treated as a defect.
\Ve may also
incidentally
point out that Halsbury has read these
decisions in the same way (').
On the other hand the dictionary meaning of the
word "defect" is
"lack or absence of something
essential to completeness", and in that sense omission
to specify the age can. and would be treated as a defect
under s . .%(4).
Defect also means "a flaw or a fault
or an imperfection";
but whether or not it includes
an omission must necessarily depend upon the context
in which the word is used.
In our opinion, having
regard to the context it would be unreasonable to hold
that the word
"defect" under s.-36(4)
excludes all
cases of omission to specify the
details prescribed by
the statute
in
the nomination paper.
V1'e
must
accordingly reject the appellants'
argument that the
omission in question is not a defect under s. %(4).
The next question which we must consider is
whether in the case of such an omission it was obligatory on the
returning officer to
hold an enquiry
under s. 36(2) of the Act.
The High Court has held
that the
returning ·officer
ought to
have held an
..__ enquiry under s. 36(2)(a) and satisfied himself whether
or not respondent 5 was eligible to stand for the election.
In our opinion the High Court was in error in
coming to this conclusion. If the nomination paper
of respondent 5 did not comply with the provisions of
s. ,g3 the case fell squarely under s. 36(2)(b)
and the
only question which can
arise in such a .case is
whether or not the defect arising from the failure to
comply with the provisions of s. 33 is of a substantial
character or not.. If the defect is not of a substantial
(3) Halsbury's "Laws of England", Vol, 14, 3rd Ed., paragraph 172, foot-note
(a) on p. 95.
1960
Brijendralal Gupta
v.
Ju,alaprasad
Gajendragadkar J.
1960
Brijettdralal Gupta
v.
Jwalaprasad
Gajendragadkar J.
660
SUPRE:tvlE COURT REPORTS
[1960]
character the
returning· oJ!iccr
shall not reject the
nomination paper on the
ground of the said defect:
if, on the other hand,
the defect is of a substantial
character the returning officer has t.o reject the nomination· paper 011 the ground of the said· defect.
That
is the effect of the provisions of s. 36(2)(b) and ( 4) read
together.
An
enquiry
which
is
necessary
under
s. 36(2)(a) may and can be held for instance in cases
where the nomination paper shows the
age of the
candidate as above 2.'i,
but an objection ·has been
raised that in
fact he is
below 25 and as such incompetent to stand
for
election
under
Art.
173
of the Constitution;
in other words,
the impugned
nomination has complied with the provisions of s. 33
and
as such does
not fall
under s. B6(2)(b)
at all.
neverthele.js the validity
of the nomination
can be
challenged on the ground that in fact Art. J 73 is not
complied with.
Cases falling under this class must be
distinguished from cases falling under s. 36(2)(b).
In
the latter class of cases the failure to comply with the
provisions of s. 83 being established there is no scope
for any enquiry under s.
36(2)(a).
Once the alleged
non-compliance
is proved,
the defective nomination
falls to be accepted or rejected according· as the defect
is of an unsubst;mtial or of a substantial
character.
Therefore, it is not right to holcl that. even after the
returning
officer was satisfied
that the omission to
specify his age showed that the nomination paper of
responclcnt .5 had not complied with the provisions of
s. 33, he should still
have held
an enquiry under
s. %(2)(a).
Non-compliance
with the
provisions of
s. 33 itself would justify the rejection of the nomination paper provicled of course that the defect ansmg
from the non-compliance in question is of a substantial
character.
That takes us
to the question as to
whether the
failure to
specify the age
in the nomination paper
amounts to a defect of a substantial character under
s. 36(4.) or nor.
There is little doubt that. the age of
the candidate is as important as his identity, and in
requiring· the candidate
to specify his
age the prescribed form has g·iven a place of importance to the
dccbration abont tl1c
candidate's
age.
.Just: as the
-
- '
--
3 S.C.R.
SUPREME COURT REPORTS
661
nomination paper must show the full name of the
1960
candidate and his electoral roll number, and just as
..
--:--
the nomination paper must be duly signed
by
the Bryendralal
Gupta
candidate, so must it contain the declaration by the
v.
fi
h
h
Jwalaprasad
candidate about his age.
It is signi cant t at t. e
statement about the age of the candidate is required Gajendragatlkar .7.
to be made by the candidate above his signature and
is substantially treated as his
declaration
in
that
behalf.
That being the requirement of the prescribed
nomination form it is difficult to hold that the failure
to specify the age does not amount to a defect of a
substantial character.
The prima facie eligibility of
the person to stand
as a candidate which depends
under Art. 173 of the Constitution, inter alia, on his
having completed the age of 2.5 years is an important
matter, and it is in respect of such an
important
matter that the prescribed form requires the candjdate
to make the declaration. .
It would,
we think, be
unreasonable to hold that the failure to make a declaration on such an important matter is a defect of an
unsubstantial character.
In this connection, it is relevant to refer to the fact that the declaration as to the
symbols which the prescribed form of the nomination
paper requires the candidate to make is by the proviso
to rule 5 given a subsidiary place.
The proviso to
rule 5 shows that any non-compliance with the provisions of sub-rule (2) of rule 5 shall not be deemed
to be a defect of a substantial character within
the
meaning of s. 36, sub-s. (4).
In
other words,
this
proviso seems to suggest that, according to the rulemaking authority, failure to comply with the requirements as to the declaration of symbols as specified in
rule 5, sub-rule (2), would have been treated as a defect
of a substantial character; that is why
the proviso
expressly provides to the contrary.
This would incidentally show that the failure to specify the age cannot be treated as a defect of an unsubstantial character.
On behalf of the respondents it has, however, been
urged before us that the returning officer should not be
astute to reject the nomination papers on technical
grounds, and that in the present case the returning
officer should have looked at the electoral roll and
satisfied himself that respondent 5 was duly qualified
22-6 SCI/ND/82
662
SUPREME COURT REPORTS
[1960]
1960
to stand for the election.
His age is 48 and it was
shown in the electoral roll against his name.
It was
Brijendrnlal
G'•Pta thus a simple matter of looking at the electoral roll to
v.
be satisfied that the omission to specify the age in the
Jwalap,·asad
nomination form was no more than a technical breach
Gajendragadkar J. of the requirements of s.' 33. We are not impressed
by this argument.
As we have already observed, in
cases of non-compliance with s. 33 which attract the
provisions of s. 36(2)(b), there would be no occasion to
hold an enquiry under s. 36(2)(a).
The only point to
consider in such cases would be whether the defects in
question are substantial or not; and so the argument
that the returning officer could have
easily verified
the age of respondent 5 is not
really
material
in
construing s. 36(4).
In this connection it is relevant to consider the
effect of the presumption which is raised under s. 36(7)
of the Act and its effect. As we have already noticed,
under s. 36(7) a certified copy of the
entry
in
the
electoral roll shall be conclusive evidence of the fact
that the person referred to in that entry is an elector
for that constituency;
but it must
be remembered
that this presumption is raised for the purposes of this
section and it is made expressly subject to the
last
clause of this sub-section, that is to say, the presumption can arise unless it is proved that the person in
question is subject to any of the disqualifications mentioned in s. 16 of the Act of I %0.
The use of the
adjective "conclusive" which
qualifies
"evidence" is
technically inappropriate because
the
presumption
arising from the production of the certified copy is by
no means conclusive.
It is also significant that in regard to the conclusive character of the relevant evidence the
material
provision as it stood originally has been subsequently
amended by Act 27 of 1956.
Originally the provision
was that the relevant entry shall be conclusive evidence of the right of any elector named in that entry
to stand for election or to subscribe the nomination
paper as the case may be.
The Legislature apparantly
thought that
the presumption authorised by
these
words was unduly wide, and so, by the amendment, the
prima facie and rebuttable presumption is now limited
-
3 S.C.R.
SUPREME COURT REPORTS
663
to the capacity of the person concerned to be treated
as an elector and nothing more, and that too unless
it is proved that he suffers from any disqualification
mentioned in s. 16.
Section 16 to which reference has
thus been made prescribes disqualifications for registration in an electoral roll
under three heads,-(a)
that the person is not a citizen of India, (b) that he is
of unsound mind and stands so declared by a competent court, or ( c) is for the time being disqualified
from voting under the provisions of any law relating
to corrupt and illegal practices and other offences in
connection with elections.
Thus the position is that
the certified copy of the relevant entry would prima
facie show that the person concerned is not subject to
any of the said disqualifications, but this prima facie
presumption can be rebutted by evidence to the
contFary.
There is yet another aspect of this matter to which
reference may be made.
The rebuttable presumption
which arises under s. 36(7) merely refers to the status
of the person concerned as an elector. Let us consider
what this presumption
means.
An
elector
under
s. 2, sub-s. 1, (e), of the Act in relation to a constituency
means
a person whose name is entered in the electoral roll of that constituency for the time being in
force and who is not subject to any of the disqualifications mentioned in s. 16 of the Act of 1950".
That takes us to the conditions prescribed by s. 19
of the Act of 1950 for registration in
the electoral
roll. Section 19 provides that subject to the foregoing
provisions of Part III of the said
Act every person
who, on the qualifying date (a) is not less than 21 years
of age, and (b) is ordinarily resident in a constituency,
shall be entitled to be registered in the electoral roll
for that constituency.
Thus when a presumption is
raised under s. 36(7) it may mean prima facie that the
person concerned is not less than 21 years of age and
is ordinarily resident in that constituency; but for the
validity of the nomination paper it has to be proved·
that the candidate has completed · 25 years of age.
Art. 173 of the Constitution which prescribes the quali~
fication for membership of State Legislature provides
J9(JU
Brijendralal Gupta
v.
Jwalaprasad
Gajendragadkar J.
1960
Bnjendralal
Gupta
v.
:Jwalaprasad
Gajendragadkar J.
664
SUPREME COURT REPORTS
[1960]
that a person shall not be qualified in that behalf unless he (a) is a citizen of India, (b) is, in the case of a
seat in the Legislative Assembly, not less than 25 years
of age, and ( c) possesses such other qualifications as
may be prescribed in that behalf by or under any law
made by Parliament.
Confining
ourselves
to
the
requirement about age it is obvious that the presumption raised under s. 36(7) would not be enough to
justify the plea about the validity of the nomination
paper because the said presumption only tends to show
that the person concerned has completed 21 years of
age.
It is clear that in regard to persons between 21
to 25 years of age their names would be
registered in the electoral roll and so they would be electors
if otherwise qualified and yet they would not be entitled to stand for election to the State
Legislature.
Thus it would not be correct to assume that a reference
to the certified copy of the electoral roll would in
every case decisively show that the age of the candidate satisfied the test prescribed by ArL 17 3 of the
Constitution; in other words, the requirement about
the completion of 25 years of age is outside the presumption under s. 36(7),. and that must be the reason
why the prescribed nomination form requires that the
candidate in signing the said form must make a declaration about his age.
This consideration supports our
conclusion that the declaration about the
age
is
a
matter of importance and failure to comply with the
said requirement cannot be treated as a defect of an
unsubstantial character.
It now remains to consider some of the decisions
which were cited before us by the learned counsel for
--
both the parties. In Rattan Anmol Singh v. Atma Ram(1)
~·
this Court has held that
the attestation required in
the case of proposers and seconders who are not able
to write their names is not a technical or unsubstantial
matter, and so the failure to comply with
the
said
requirement would amount to a defect of a substantial
character. The appellants contend, and with some
force, that this decision
supports their case that
like the attestation required in the case of an illiterate proposer or seconder the declaration as to the
(I) [1955] I S.C.R. 481.
3 S.C.R.
SUPREME COURT REPORTS
665
)
.
r-(
a:ge of the candidate is a matter of substantial importance, and failure to comply with the requirement of
the prescribed form in that behalf cannot be treated
as a defect which is not of a substantial character.
In Pranlal Thakorlal Munshi v.
Indubhai Bhailabhai
Amin ('), the Election Tribunal, Baroda, has held that
the omission by the candidate to mention his age in
the nomination
paper is a defect of a substantial
character and that his nomination paper had been
properly rejected on that account.
The appellants
have naturally relied on this decision in support of
their case.
The appellants have then referred us to
certain decisions where the effect of the
failure to
specify the electoral roll number or other particulars
has been considered, and it has been held that
the
failure in question amounts to a substantial
defect
under s. 36(4) of the Act. (Vide:
Rup Lal v. Jugraj
Singh ('); Brij Sundar Sharma v. Election Tribunal,
Jaipur ('); Balasubrahmanyan v. Election Tribunal,
Vellore ('); and Ramayan Shukla v. Rajendra Prasad
Singh ('). By parity of reasoning the appellants contend
that the failure· to mention the age is undoubtedly a
substantial defect. It is unnecessary for us to consider
the merits of these decisions.
-1 -
-
,,
On the other hand the respondents have relied on
the decision of this Court in the case of Durga Shankar Mehta v. Thakur Raghuraj Singh (').
Indeed it
appears from the judgment of the High Court under
appeal that in coming to its decision the High Court was
influenced by certain observations made by Mukherjea, J., as he then was, in dealing with
the case of
Durga Shankar (').
In that case the validity of the
..,
election of Vasant Rao, respondent 2, was challenged
before the Election Tribunal on the ground that he
was not eligible to stand for election since at all material times he was under 25 years of age. It was, how-
~ver, clear that no objection was taken before the
returning officer in respect of the nomination
paper
""I
of respondent 2, and the said nomination paper had
been accepted by the returning officer.
The question
(I) (1952) 1 E.L.R. 182.
(2) (1958) 15 E.L.R. 484.
(3) (1956) 12 E.L.R. 216.
(4)
(1953) 7 E.L R. 496.
(5) (1958) 16 E.L.R. 491.
(6) (1955) 1 S.C.R. 267.
1960
Brijendralal Gupta
v.
Jwalaprasad
Gajendragadkar J.
1960
Brijendralal Gupta
v.
Jwalaprasad
Gajendragadkar J.
666
SUPREME COURT REPORTS
[1960]
which was raised before this Court was whether
the
--. (
acceptance of respondent 2's nomination paper could
be said to be imporper, and this Court held that the
acceptance would have been improper if the want of
qualification was apparent on the electoral roll itself
or on the face of the nomination paper and the returning officer overlooked that defect or if any objection
was raised and enquiry made as to the absence of
•
qualification in the candidate and the returning officer
..
came to the wrong conclusion on the materials placed
~
before him. Since neither of these things had happened in that case, the Court held that the acceptance must
be deemed to be a proper acceptance. Even so it was
observed that the validity of respondent 2's election
could be challenged under s. 100(2)( c) of tbe
Act.
With that aspect of the matter we are, however, not
concerned in the present appeal.
It would thus be
"'-·
clear that in the case of Durga Shanlwr (') this Court
had no occasion to consider the scope and effect of
s. 36(2)(b) and (4) of the Act at all, and so the observations made in the judgment on which reliance had been
placed by the respondents in support of their plea that
an enquiry should have been held in the present case
do not really help us. The said observations
must,
with respect, be read in the context of the dispute
,
which was raised before this Court in that case.
The
respondents have also relied upon the decision of this
Court in Pratap Singh v. Shri Krishna Gupta (').
In
that case this Court has no doubt observed that courts
should not adopt a technical attitude in dealing >1<ith
election matters and that "it is the substance
that
must count and it must take precedence over mere
form"; but in appreciating the effect of these observa-
~
tions it is necessary to bear
in
mind
the
points
which arose for decision in that case.
It
was
the
failure of the candidate to mention his occupation as
required by rule 9(1 )(i) on which the validity of his
nomination was impeached, and in dealing with that
point this Court had to consider the effect of s. 23 of
the C. P. and Berar Municipalities Act, 2 of 1922_, which
,...
provided that anything clone or any proceeding taken
under the said Act sha 11 not be questioned on account
(1)
[1955] l S.C.R. 267.
(2) A.LR.