- (1.) This appeal is filed by the appellant Dewan Joynal Abedin against the judgment dated 2/12/1986 of the High court at Gauhati setting aside his election to the Legislative Assembly of Assam at the election held on 16/12/1985 from the 22-Salmara South Legislative Assembly Constituency on an election petition filed by respondent 1 Abdul Wazed alias Abdul Wazed Miah in Election Petition No. 2 of 1986.
(2.) The last date for making nominations for election from the aforesaid constituency was 22/11/1985 and the date for the scrutiny of nominations was 23/11/1985. The appellant, respondent 1 and the second respondent Bazlul Basit were the three candidates on whose behalf nomination papers had been filed before the expiry of the lime fixed for making nominations. Respondent 3, M. Bhattacharjee, was the Returning Officer. At the time of the scrutiny respondent 2 raised objection to the nomination of respondent 1 on the ground that respondent 1 had not completed 25 years of age on the date of scrutiny as required by Article 173 (b) of the Consultation which provided that a person was not qualified to be chosen to fill a seat in the legislature of a State unless he was in the case of a seat in the Legislative Assembly not less than 25 years of age and in the case of a seat in the Legislative council not less than 30 years of age. The proposer of one of the nomination papersfiled on behalf of respondent 1 prayed for some time to refute the objection. The Returning Officer, however, proceeded to reject the nomination papers filed on behalf of respondent 1 on 23/11/1985 holding that respondent 1 had not completed 25 years of age and therefore was not qualified to be a member of the Legislative Assembly. The election process continued with only the appellant and the second respondent as the candidates and after the poll the appellant was declared as having been elected on the basis of the larger number of votes secured by him. Thereupon respondent 1 filed the election petition before the High court out of which this appeal arises contending that he had in fact completed 25 years of age on the date of his nomination and that the rejection of his nomination papers was erroneous. Respondent 1 further contended that on account of the rejection of his nomination papers the election of the appellant was liable to be set aside under S. 100 (1 (c) of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') which provided that the election of a successful candidate was liable to be set aside on the ground that any nomination had been improperly rejected. In the course of his written statement the appellant raised several pleas, and of them three were material for purposes of this case. First he pleaded that respondent 1 had not completed 25 years of age on the date of scrutiny of nominations and therefore the nomination papers had been rightly rejected; secondly he pleaded that respondent 1 had not subscribed an oath as required by Article 173 (a) of the Constitution and therefore respondent 1 was not qualified to contest the election and thirdly he pleaded that respondent 1 was also disqualified to be chosen to fill a seat in the legislature of the State as on the date of scrutiny of the nominations respondent 1 had a subsisting contract entered into by him with the government of Assam under which he had been treated as a lessee of the Phulbari Ghat Ferry for the period between 1/04/1985 and 31/03/1986. Respondent 1 pleaded that he had completed the age of 25 years on the date of scrutiny of nomination, that he had subscribed an oath as required by Article 173 (a) of the Constitution and that while it was true that he had entered into such a contract he had been released from the said contract on 21/11/1985 by the Executive Engineer concerned and therefore there was no subsisting contract between him and the government of Assam on the date of scrutiny. On the basis of these pleas issue 5 and issue 6 were framed by the High court which read as Follows : 5. Whether the nomination paper of the petitioner has been improperly rejected If so, whether the election of the respondent is void
(3.) After recording the evidence produced by the parties the learned judge of the High court who tried the election petition held that respondent 1 had completed the age of 25 years on the date of scrutiny and therefore he had thenecessary qualification for being a member of the Legislative Assembly. He accordingly held on the first part of issue 5 in favour of respondent 1. On the second part of issue 5 the learned judge held that the appellant had not proved that respondent 1 had not subscribed an oath as required by law. On issue 6 the learned judge held that respondent 1 had been relieved from the charge of Phulbari Ghat Ferry with effect from 21/11/1985 and herefore there was no subsisting contract between respondent 1 and the government of Assam on the date, of scrutiny of nominations and therefore respondent 1 was not disqualified under S. 9-A of the Act. In view of his findings recorded on issues 5 and 6 the learned judge came to the conclusion that the rejection of the nomination papers filed on behalf of respondent 1 was improper and therefore the election was liable to be set aside. He accordingly set aside the election of the appellant. Aggrieved by the judgment of the learned judge the appellant has filed this appeal under S. 116-A of the Act.;