DEV KANTA BAROOAH Vs. KUSHA RAM NATH AND ANR.
LAWS(GAU)-1958-4-8
HIGH COURT OF GAUHATI
Decided on April 17,1958

DEV KANTA BAROOAH Appellant
VERSUS
Kusha Ram Nath And Anr. Respondents


Referred Judgements :-

BALDWIN V. ELLIS [REFERRED TO]
RATTAN ANMOL SINGH VS. ATMA RAM [REFERRED TO]
HARI VISHNU KAMATH VS. AHMAD ISHAQUE [REFERRED TO]
PRATAP SINGH VS. KRISHNA GUPTA [REFERRED TO]
P N BALASUBRAHMANYAN VS. ELECTION TRIBUNAL OF NORTH ARCOT AT VELLORE [REFERRED TO]


JUDGEMENT

H. Deka, J. - (1.)THESE are two connected matters. One is an appeal by Dev Kanta Barooah against the decision of the Election Tribunal presided over by Mr. R. Labhaya, whereby the election of the appellant for the general seat in the Assam Legislative Assembly from the Nowgong double member Constituency was set aside, and the other is a petition in connection with this appeal by one Beliram Das who was one of the candidates for the reserved seat in the same constituency, alleging that the judgment of the Election Tribunal was bad so far as it refused to set aside the election of the Scheduled Caste candidate Mahendra Nath Hazarika, who was returned for the reserved seat in the same constituency.
(2.)THE facts shortly put are as follows: Kusharam Nath who was one of the candidates for the general seat in the Nowgong Constituency of the Assam Legislative Assembly called in question the election of Dev Kanta Barooah by a petition under Section 81 of the Representation of the People Act alleging that his nomination paper or papers were illegally rejected by the Returning Officer on scrutiny on 1 -2 -57. The petitioner filed five nomination papers for election to the general seat of the Nowgong Constituency of the Assam Legislative Assembly, - -three of them being filed on the 23rd January and the other two on 28 -1 -1957, which was declared to be the last date for receiving nomination papers.
No error or omission was detected by the Returning Officer or Officers on the date of presentation of these nomination papers and they were duly endorsed after verification, as provided under Section 33(4) of the Representation of the People Act. The first three papers were received by the Deputy Commissioner of Nowgong who was the Returning Officer for Nowgong Constituency and the other two were received by the Additional Deputy Commissioner who was then the Assistant Returning Officer for the said constituency. The papers came up for scrutiny on 1 -2 -1957 before the Returning Officer Mr. Rahman who on an objection raised on behalf of Dev Kanta Barooah rejected the nomination papers of the petitioner by his order or orders dated 1 -2 -57 purported to be under Section 36(2)(b) of the Representation of the People Act (which for the purpose of shortness we shall hereafter call 'the Act').

As a result of this order, the petitioner was deprived of his right to stand as a candidate and Dev Kanta Barooah was returned from the general seat by beating his two other rivals. Mahendra Nath Hazarika - -respondent No. 5 in this appeal - -was declared elected for the seat reserved for the members of the Scheduled Caste in that constituency. The election of Dev Kanta Barooah alone was questioned on the ground that the nomination paper or papers of Kusharam Nath for the general seat was illegally rejected by the Returning Officer.

The case was resisted by Dev Kanta Barooah and Mahendra Nath Hazarika who filed a joint written statement alleging inter alia that the nomination papers were correctly rejected inasmuch as the name of the constituency was not properly stated therein against relevant entries in the forms. Section 100(1)(c) of the Act provides that subject to the provisions of Sub -section (2), if the Tribunal is of opinion that any nomination has been improperly rejected, the Tribunal shall declare the election of the returned candidate to be void. Therefore the material issue was whether the nomination of Kusharam Nath was improperly rejected by the Returning Officer by his order of 1 -2 -57. The two relevant issues framed by the Tribunal run as follows:

Issue No. 3: Whether the nomination papers filed by the petitioner were valid and were improperly rejected.

Issue No. 4: Whether the Section of Respondent No. 1 is illegal and void.

Before entering into the merits of the case we might refer to the relevant provisions of the Act and rules framed thereunder which would be of importance in connection with the subject -matter under appeal. The relevant portion of Section 33 of the Act runs as follows: "33. Presentation of nomination paper and requirements for a valid nomination. - -(1) On or before the date appointed under Clause (a) of Section 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 Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.

* * * *

(4) 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:

Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked.

From Sub -section (1) of Section 33 reproduced above, it will appear that the nomination paper has to be completed in the prescribed form and signed by the candidate and by an elector of the Constituency as proposer. The 'prescribed' form in this case coming under Rule 4, is form 2B given in the schedule and the relevant part thereof for the purpose of this case is as follows:

"Form 2B Nomination Paper(See Rule 4) Election to the Legislative Assembly of ....(State)(To be filled by the proposer)

I 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 father/husband .......

(3.)FULL postal address of candidate ...........


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.