GANGA SINGH v. MANSA RAM — 1998 DIGILAW 176 (HP)

JUDGMENT P.K. PalIi, J. : Both these election petitions (Election Petition Nos. 5 and 6 of 1998) are directed against one and the same respondent Shri Mansa Ram who has been returned from 59-Karsog (Reserved) Assembly Constituency to Himachal Pradesh Vidhan Sabha in the election held on February 28; 1998. Election Petition No. 5 has been filed by Shri Ganga Singh on the ground that his nomination papers stand wrongly rejected by the concerned Returning Officer. Election Petition No. 6 has been filed by one Shri Mehar Singh elector appearing -at serial No. 481 in Part No. 68 of the Electoral Roll for the said constituency. He too is aggrieved against the improper rejection of the nomination papers of Shri Ganga Singh, petitioner in the other petition. Since the pleas taken in both these petitions are identically the same, reply on behalf of the respondent is also the same and the same set of issues have been framed by this Court vide order dated August 12, 1998, both these petitions are consequently taken up to be disposed of by a common judgment. 2. Facts are taken from Election Petition No. 5 of 1998, (Ganga Singh v. Mansa Ram). 3. Petitioner Shri Ganga Singh filed his nomination papers on February 3,1998 for contesting the Vidhan Sabha seat The Returning Officer rejected the nomination papers on February 5. 1998. Elections were held on February 28, 1998, counting was held on March 2, 1998 where after respondent Shri Mansa Ram was declared elected by a margin of 1932 votes defeating his nearest rival Shri Joginder Pal who had contested the election as a candidate of the Bhartya Janta Party. It has been said in the petition that at the time of the scrutiny of the nomination papers, the petitioner was also present. The Returning Officer examined the nomination papers and it was found that the petitioner had not mentioned his age in the relevant column of Part III of the nomination form and the same had been left blank. 4. It has been said in the petition that the petitioner invited the attention of the Returning Officer to the affidavit which he had filed along with the nomination papers, he had given Ins age. as -43 years. 4. It has been said in the petition that the petitioner invited the attention of the Returning Officer to the affidavit which he had filed along with the nomination papers, he had given Ins age. as -43 years. Attention of the Returning Officer was also drawn to the Voters List where his name figured at serial No. 42 and his age 43 years ,it 30 stood indicated mere. This information had also been supplied by the petitioner in the nomination form itself. 5. Nomination of the petitioner is said to have been rejected on technical ground whereas the inadvertent omission was not a defect of substantial character which otherwise stood supplied in the affidavit filed along with the nomination form. According to the petitioner, these submissions made by him were not considered and the nomination papers filed by him have been rejected improperly. Certified copy of the nomination form has been placed on record as annexure P-l and copy of the relevant portion of the electoral roll has been placed as annexure P-2. 6. According to the petitioner, the nomination papers filed by him were complete in all respects and suffered from no defect of substantial character. The affidavit filed along with the nomination papers, according to the petitioners, formed part and parcel of it and even if the omission in respect of the disclosure of age was there, it stood fulfilled and supplemented by the affidavit. The omission in not mentioning the age is said to be insignificant This illegal and improper rejection of the nomination papers of the petitioner is said to have unlawfully deprived him from the contest. 7. It is further said that the purpose to mention age is to ensure compliance with the provisions of Article 173 (B) of the Constitution of India which requires that the candidate should not be below the age of 25 years. There is no upper age prescribed for the purpose of contesting elections to the Assembly. Apart from this, the age also stood mentioned in the electoral roll which was available with the Returning Officer and his pointed attention was drawn towards it. It has been further pleaded that under Section 36 of the Representation of People ActJ951, here-in-after referred to as the Act, omission to mention age in the nomination form is not a ground for rejecting it. It has been further pleaded that under Section 36 of the Representation of People ActJ951, here-in-after referred to as the Act, omission to mention age in the nomination form is not a ground for rejecting it. More over, sub-section (4) of Section 36 of the Act clearly mandates that the Returning Officer shall not reject any nomination on the ground of any defect which is not of substantial character. 8. In any case, according to the petitioner, the Returning Officer should have permitted the petitioner to correct the technical error or the defect could have easily been over-looked. This illegal rejection of the nomination, according to the petitioner, on a purely narrow, rigid and technical approach has caused material prejudice and injustice to him inasmuch as he stands deprived of his lawful as well as constitution right to contest for the seat of the Assembly Constituency. 9. Finally, it has been said that the case of the petitioner being a Scheduled Caste candidate, stood on a different pedestal as he belongs to a socially, economically and educationally weaker section. A liberal and benevolent interpretation should have been given by the Returning Officer at the time of scrutiny of the nomination papers. 10. In the reply filed from the side of the respondent, several preliminary objections have been raised. It is said in the reply that an election petition can be filed only if the nomination papers have been improperly rejected and the petitioner has not been able to make out a case that how the nomination paper in this particular case has been improperly rejected. The petitioner Ganga Singh has, admittedly, not given his age in the nomination paper and the relevant column in this respect has been left blank by him. The nomination paper is, thus, said to be incomplete and was not in conformity with the requirement of Section 33 of the Act. The requirement is said to be mandatory end any mistake to mention the same, the nomination form deserved to be rejected outright and the Returning Officer had no other option. 11. It is also said that under Section 33(4) of the Act, the Returning Officer is fully authorised to check and thereafter satisfy himself that the nomination paper filed by a candidate is perfectly in order and once it is found to be lacking in mandatory- requirement, it has to be rejected. 12. 11. It is also said that under Section 33(4) of the Act, the Returning Officer is fully authorised to check and thereafter satisfy himself that the nomination paper filed by a candidate is perfectly in order and once it is found to be lacking in mandatory- requirement, it has to be rejected. 12. The respondent has also said that the petition if read as a whole, does not disclose the material facts and hence the same is liable to be dismissed for not complying with the mandate of Section 83 of the Act. It is being said that the petitioner, has not given any reason as to why and in what manner the omission has taken place and material facts in this respect are completely missing in the petition. 13. It is next said that the affidavit which was given along with the nomination paper, has no longer sanctity and cannot be said to be a substitute of the nomination paper nor it could be termed as curing the defect which appeared in the nomination paper itself. The affidavit is said to have been filed in entirely a different context there is no legal mandate for filing it and this requirement has now been made under the instructions issued by the Election Commission of India and even if these are not strictly followed, nothing hinges on it. 14. It is also said by the respondent that the Returning Officer could not allow the mistake to be corrected even if any request had been made by the petitioner and in fact no such request was ever made. It is also said that the mistake has been committed intentionally with a purpose to get the nomination paper rejected so as to lay challenge to the election of the respondent in the Court. It is said to be an act of deep rooted conspiracy by the petitioner in connivance with the opponents of the respondent. 15. A plea, has also been taken that the copy supplied to the respondent is not the true, copy of the petition. The omission is said to be intentional. Challenge has also been made to the verification part of the petition. In para 10 it has been said that only nine voters had actually signed the nomination paper whereas the mandatory requirement is of ten voters. The omission is said to be intentional. Challenge has also been made to the verification part of the petition. In para 10 it has been said that only nine voters had actually signed the nomination paper whereas the mandatory requirement is of ten voters. The true translation filed by the petitioner is said to be false and mis- leading. Though one Saran Pat had not signed the nomination form in Hindi, yet the petitioner has deliberately translated it in the manner so as to project that he has actually put his signatures on it. 16. On merits, it has been said that since the nomination papers were not properly filed the same stood rightly rejected. It has been wrongly said in the petition that the nomination form was complete in all respect whereas factually it is a wrongly said in the petition that the nomination form was .complete in all respect whereas factually it is a wrong averment. A Hand Book which is supplied td the candidates, stipulates that the non- mentioning of the age in this nomination paper is a defect of substantial nature and leads to reject of the nomination paper. The relevant portion from the instructions has been attached with the reply as Annexure R-2 in the documents filed by the respondent. It has been further said that the petitioner from the very beginning was a non-serious candidate, and was used as a reserved material to impugn the election of the respondent! The lacuna in the nomination paper was intentionally kept. The electors are said to have given a clear and fair verdict in favour of the respondent by electing him from the constituency. 17. It has been denied that the petitioner had invited the attention of the Returning Officer to the affidavit as well as to the electoral roll as stated in the petition. The filing of the affidavit and giving the age of the petitioner could not cure the defect in the nomination form nor could it be said to be a part of it. 18. The filing of the affidavit and giving the age of the petitioner could not cure the defect in the nomination form nor could it be said to be a part of it. 18. If is further said that once it is found that the provisions of Section 33 of the Act have not been complied with, the case would squarely fall within Section 36(2) (b) of the Act and die Returning Officer is not bound to hold any enquiry under Section 36(2)(a) of the Act is respect of the age of the candidate. The idea behind the mentioning of the age and particulars of the voters is to cross check the information given by the candidate in the nomination form. 19. Finally, it is said that the petitioner could not derive any benefit nor his case could be examined sympathetically in view of the fact that being a Schedule Caste, socially, economically and educationally belongs to a weaker section of the society. The petitioner is said to be literate as he has meticulously filled in the form as well as the other papers and has further signed in English as well as in Hindi . 20. In the replication the averments made in the reply have been denied and those taken in the petition stand reiterated. 21. Out of the controversy, noticed above, following issues were framed by this Court on August 12,1998 : 1. Whether there is no cause of action available to the petitioner to file the present election petition? OPR. 2. Whether the petition is liable to be dismissed because it lacks in material facts? OPR. - 3. Whether the copy of the election petition as supplied to the answering respondent is not a true copy of the election petition and hence the election petition is liable to be dismissed because of the non-compliance with Section 81 of the Representation of People Act? OPR. 4. Whether the petition is barred by limitation? OPR. 5. Whether the petition has not been properly verified? If so, its effect? OPR. 6. Whether the nomination papers of Sh. Ganga Singh were wrongly rejected? If so, its effect? OPP. 7. Relief. 22. On the insistence of the learned counsel for the parties, the first five issues were ordered to be treated as preliminary. OPR. 5. Whether the petition has not been properly verified? If so, its effect? OPR. 6. Whether the nomination papers of Sh. Ganga Singh were wrongly rejected? If so, its effect? OPP. 7. Relief. 22. On the insistence of the learned counsel for the parties, the first five issues were ordered to be treated as preliminary. Learned counsel appearing for both the parties had stated at the Bar that they did not desire to lead any evidence to prove these issues. Consequently, the case was listed for arguments. 23. Before the judgment starts, I would like, to record a deep sense of appreciation for the arguments addressed by Mr. Malkiat Singh Chandel, learned counsel appearing for the petitioner, as well as Mr. Satya Pal jain, learned senior Advocate appearing from the side of the respondent. It may be placed on record that both of them have been very fair in their submissions in order to assist the Court in respect of the interpretation of the statute as well as the case law. 24. Though only issues No. 1 to 5 were ordered to be treated as preliminary, yet learned counsel for the parties have also addressed arguments on issue No. 6 which would be taken notice of and shall be dealt with in the judgment. 25. At the outset, Mr. Satya Pal Jain, learned counsel appearing for the respondent, has been very fair to state at the Bar that he does not press issues No.3, 4 and 5. Consequently, these three issues do not survive for determination and are disposed of as not pressed. 26. Issues No. 1, 2 and 6: Mr. Sayta Pal Jain, learned senior Advocate appearing for the respondent, while opening his address of arguments, contends that" nowhere in the petition any submission has been made that Shri Ganga Singh, petitioner made a request to the Returning Officer to correct the mistake or omission in the nomination paper in respect of his age. At this very stage my attention has been invited to the other petitioner which has been filed by Shri Mehar Singh. At this very stage my attention has been invited to the other petitioner which has been filed by Shri Mehar Singh. In para 4 at page 5 it has been said that: "After the rejection of nomination form the petitioner also went to the Returning Officer and requested him to re-consider his decision as age of Shri Ganga Singh was available to him from the affidavit forming part of the nomination paper and also from the Election Roll, but he refused to accede to the request." 27. Mr. Jain is at pains to contend that this is the most material fact which does not find mention in the petitions filed by Shri Ganga Singh. It is being argued that the petition does not disclose as to how many person were present at that time and the petition lacks in supplying full particulars in this respect. 28. Mr. Jain further proceeds to submit that Shri Mehar Singh, petitioner has not clarified as to in which capacity he was present there because only a candidate or his authorised agent is permitted at the time of scrutiny and this person either tells a lie or is over-ambitious so as to be supplemental and complemental to the other petitioner Shri Ganga Singh. Mr. Jain further contends that even if the petitioner had made any request to rectify the error, the Returning Officer had no right or authority to permit him to correct it as the law on the subject was absolutely clear and the nomination filed by the petitioner for lack of necessary averments was liable to be rejected. 29. Mr. Jain has further laid stress on the language of the petition employed by the petitioner in order to show that a reading of the petition as a whole does not disclose any cause of action least a triable cause of action. The nomination papers annexures P-l and P-2 filed by the petitioner along with the petition have been brought to my notice to project that the petitioner had filled in all the columns neatly, perfectly, without any error and meticulously it is not understood as to how item No.l (a) under Part-Ill which appears on the reverse of the nomination paper, was left unnoticed or was purposely not filled in for some ulterior motive. 30. At page 16 of the paper book is the nomination paper which the petitioner had filled in English. 30. At page 16 of the paper book is the nomination paper which the petitioner had filled in English. The petitioner had stated himself belonging to Rashtriya Janta Party which though registered, jet is an unrecognised political party. On the reverse of this document is given Part -III. It starts as: "I, the candidate, mentioned in Part -I, Part-II (Strike out which is not applicable) assent to the nomination and hereby declare ; (a) that I have completed years of age." The column, as noticed above, ban been left blank without anything written therein. 31. At page 17 is the nomination form which was filed by the petitioner in Hindi script. On the front page serial numbers as well as electoral roll numbers of the voters have been given under column No.4 but against these names under the head "signatures", only nine signatures appear and the person appearing at No.4- Saranpat- has not put his signatures on it. This is said to be a fatal defect and the nomination could be rejected even on this ground. On the back of this document is "BHAG III" in Hindi the language and the column is in Hindi script and identically the same which is in English and has been noticed above. This column is, against blank. At page 18 is the English transaction of the nomination paper and against the name of Saranpat "Sd/-" appears, meaning thereby to indicate that he had signed it as noticed above. 32. Mr. Jain is at pains to contend that this omission is intentional and is an attempt on the part of the petitioner to play fraud on the elector. It has to be further noticed that the word "(a)" of item No. 1 of Part III has been encircled in black ink in both the forms and in the petition there is no avernment as to by whom this encircle has been put It was for the petitioner to explain and give particulars of it. 33. At the end of this nomination paper Part-V is give in which deals with the decision of the Returning Officer accepting or rejecting the nomination paper. 33. At the end of this nomination paper Part-V is give in which deals with the decision of the Returning Officer accepting or rejecting the nomination paper. It has been said therein that he has examined the nomination paper in accordance with Section 36 of the Representation of People Act, 19S1 and it is said that the candidate has failed to specify his age and column (a) of Part -III has been left blank, hence the nomination paper is rejected. Identically the order in Hindi script has been passed on the second nomination paper which was filled in Hindi. 34. It is sought to be argued that there is a presumption of correctness to the official acts and the order nowhere indicates that the petitioner had made any request to the Returning Officer seeking permission to correct the mistake or error in respect of the supply of age as was the requirement Mr. Jain has further laid stress that in the petition it has been said more than once that the nomination form submitted by the petitioner was complete in all respects whereas factually it is not Even the translation which is said to be. true, is not correct and there is an attempt on the part of the petitioner to mis-lead the Court. 35. Mr. Jain has further read out Sections 31 to 33 as well as Section 36 of the Act to further highlight his submissions. It is being pressed that once the Court comes to the conclusion that no triable cause of action can be inferred from the reading of the petition, it has to be dismissed at the very threshold and the time of the court should not be permitted to be wanted nor the respondent should be put to trial. 36. After making these submissions, Mr. Jain has taken me to issue No. 6 and states that the Court may readily accept what has been said by the petitioner in the petition to be a gospel truth and on examination of the nomination as well as the case law, if the Court finds mat the nomination papers filed by the petitioner were not improperly rejected, the election petition deserves to be dismissed outright without proceeding further. 37. Mr. 37. Mr. M.S. Chandel, learned counsel appearing for the petitioner, in reply to the arguments advanced by Mr, Jain, argues that the nomination paper of Shri Ganga Singh were rejected by the Returning Officer at the time of scrutiny without any objection being raised to that effect by any one. It is further being submitted that the non-mentioning of the date is not a fatal defect entailing rejection of the nomination paper* and the omission which is bona fide, stood supplied by the accompanying affidavit filed along with the nomination papers where the candidate had given his age as 43 years. Mr. Chandel, thus, proceeds to submit that the accompanying affidavit was the part and parcel of the nomination papers and the age having been given in the affidavit meets the requirement of the provisions in case it is held to be mandatory. It is sought to be urged that the annexures which are filed or attached along with the nomination paper?, are to be treated as part of the nomination itself. Sub-section (2) of Section 33 of the Act is pressed by the learned counsel to further highlight his submissions and it reads as under: "(2) In a constituency; where any seat is reserved, a candidate shall not be deemed- to. be. qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Schedule Caste or, as the case may be, a Schedule Tribe of the State." 38. It is being argued from the side of the petitioner that the omission is purely inadvertent and possibly escaped notice of the candidate. The argument further proceeds that the candidate being a Scheduled Caste candidate, is not well conversant with the procedure and being extremely backward, socially, economically and educationally in companion with the other people, a liberal and benevolent interpretation to the provisions contained in Section 33 (2) of the Act should have been adopted rather than a narrow, rigid, technical and purely literal construction as given by the Returning Officer. 39. 39. It is also being argued that besides the affidavit, there was material before the Returning Officer consisting of electoral roll where the name, full description of the candidate as well as his age had been given and in case it was found that there was an omission on the part of the candidate to fill in the column giving his age, the Returning Officer should have given an opportunity to him to fill in the column by giving his correct age or an enquiry should have been made in respect of the age of the candidate. 40. Learned counsel has further relied upon the judgment given by the Supreme Court reported in AIR1984 SC 1513, (Ganu Ram v. Rikhi Ram Kaundal & Anr.J. In this case the election was challenged on the ground of improper acceptance of the nomination paper by the Returning Officer. It was argued that the nomination paper was not in order since it did not contain a declaration by the candidate specifying the particular caste of which he was the member and the area in relation to which the said caste had been declared to be a Scheduled Caste in the State. 41. On objection being raised by the election petitioner, the High Court set aside the election and it was held that the nomination paper could not be regarded as valid in view of the fact that it did not contain a declaration specifying the particular caste of which the candidate was the member and further the area in relation to which the said caste is a Scheduled Caste in the State. This judgment of the High Court was challenged in the Supreme Court and the Honble Court interpreted Section 33 of the Act wherein the requirement in respect of the nomination paper has to be in the prescribed form and Form 2-B is said to be a self-contained one. On analysis, it was found that the nomination paper had been made in the prescribed form and there was no legal prohibition against the other requisite particulars being furnished in a separate paper appended to the form instead of writing them out in the form itself. On analysis, it was found that the nomination paper had been made in the prescribed form and there was no legal prohibition against the other requisite particulars being furnished in a separate paper appended to the form instead of writing them out in the form itself. In the given situation, it was held that the annexures appended to the form should be treated as part of the nomination paper and since the candidate had appended the certificate as an annexure to the nomination paper, it shall have to be treated forming part of it. A declaration had been made that the candidate belonged to the Scheduled Caste of "Lohar" must be understood and treated as a declaration by the candidate in the nomination form within the meaning of sub-section (2) of Section 33 of the Act. 42. In the given situation, it was further observations and is further at plains to contend that this was an identical case like the one of the petitioner and, therefore, the affidavit filed along with the nomination papers had given the age of the candidate and being part of the nomination paper, should have been accepted in supply of the proof of the age. The Returning Officer has illegally and improperly rejected the nomination paper. 43. After having heard the learned counsel for the parties at length and on careful examination of the submissions, pleadings and other material placed on record as well as the case law cited at the Bar, I am of the considered opinion that the petition is liable to be dismissed straightway was not disclosing a tribable cause of action and the objections raised from the side of the respondent are upheld. 44. It would be better if the relevant provisions contained in the statute are taken note of before proceeding further in the matter. The provisions which have been referred to by the learned counsel for the parties, are from Sections 31 to 36 of the Act. 45. A notification under Section 30 has to be issued and thereafter the Returning Officer under Section 31 is to give public notice of .the election inviting nominations of the candidates specifying the place where these are to be delivered. 45. A notification under Section 30 has to be issued and thereafter the Returning Officer under Section 31 is to give public notice of .the election inviting nominations of the candidates specifying the place where these are to be delivered. Section 32 prescribes that a person may be nominated as a candidate for election to fill a seat if he qualifies to be chosen under the provisions of the Constitution as well as this Act Section 33 deals with the presentation of nomination papers and requirement for a valid nomination. 46. On the date appointed under clause (a) of Section 30, the candidate or his proposer, in the given situation, is to deliver the nomination papers to the Returning Officer complete in the prescribed form which is to be signed by the candidate and by an elector of the constituency. Under the proviso to this Section, a candidate who is not setup by the recognized political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency. Sub-section (2) of Section 33 of the Act has already been reproduced above in the earlier part of this judgment. It would be thereafter sub-section (4) and sub-section (5) which are relevant to be taken notice of. Sub-section (2) of Section 33 of the Act has already been reproduced above in the earlier part of this judgment. It would be thereafter sub-section (4) and sub-section (5) which are relevant to be taken notice of. These are reproduced hereunder: (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 110 misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any .case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer, shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary direct that any such misnomer, inaccurate description clerical, technical or printing error k the electoral roll or in the nominal paper shall be overlooked." "(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constitutency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filled along with the nomination paper, be produced before the returning officer at the time of scrutiny." 47. Under sub-section (7), a candidate is not permitted to contest from more than two Parliamentary or Assembly constitutencies as prescribed therein. Section 34 deals with the deposits and unless a candidate has deposited the desired sum, he shall not be deemed to be duly nominated for election from a constituency. Section 35 requires the notice of nomination and the time as well as place for their scrutiny. 48. Section 34 deals with the deposits and unless a candidate has deposited the desired sum, he shall not be deemed to be duly nominated for election from a constituency. Section 35 requires the notice of nomination and the time as well as place for their scrutiny. 48. Section 36 deals with the scrutiny of nominations and on the date fixed for the scrutiny of nominations, the candidates, their election agents, proper of the candidate and one other person who is duly authorised in writing by the candidate, would attend at-such time and place as fixed by the Returning Officer and the Returning Officer shall give to them reasonable facilities for examining the nomination appears of the candidates which nave been delivered within time and in the manner prescribed. It may be noticed that under cub-section (1) of this Section, no other person except those mentioned, is to be present there. 50. It has not been disclosed in the petition filed by the elector as to how and in what capacity he was present at the time of scrutiny and how he was authorised and by whom to object to the rejection of the nomination paper filed by candidate Shri Ganga Singh in the other petition. 51. Sub-section (2) of Section 36 of the Act makes it obligatory on the part of the Returning Officer to examine the nomination papers and decide the objections which are made and may either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the grounds mentioned thereafter. Thereafter are gives the grounds on which the nomination paper have to be rejected. 52. Under the statute, a candidate is entitled to file four nomination papers and even if one out of the four nomination papers is found to be in order , the nomination cannot be rejected 53. At this stage, notice may also be taken of the Conduct of Election Rules, 1961. Rule 4 under Part-II requires that every nomination paper presented under sub-section (1) of Section 33 of the Act shall be completed in such one of the Forms 2A to 2B as may be appropriate. At this stage, notice may also be taken of the Conduct of Election Rules, 1961. Rule 4 under Part-II requires that every nomination paper presented under sub-section (1) of Section 33 of the Act shall be completed in such one of the Forms 2A to 2B as may be appropriate. The proviso adds that failure to complete or defect in completing, die declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of Section 36 of the Act. 54. At page 72 of the documents supplied by the respondent is the relevant extract from the Hand Book of Instructions which are given to the candidate/Clauses (6) to (9) are relevant for the purposes of the decision. Clause (6) lays down the objections which may be raised to the nomination paper. It incorporates that under Section 36(4) of the Act, the Returning Officer would not reject any nomination paper on the ground of any defect which is not of a substantial character. . . 55. Under clause (7), a candidate or his authorised agent is given the right to impress upon the Returning Officer that nomination be not rejected on any flimsy or technical grounds nor the nomination paper be rejected for inaccurate description in the name of the candidate or the proposer or inaccurate description of anyplace. 56. Clause (8) prescribes mat in case the Returning Officer rejects a nomination paper on technical, unsubstantial or flimsy ground, it may be regarded as improper rejection and may have the effect of avoiding the entire election. 57. Clause (9) lays down that omission of age of the candidate in the nomination paper is a defect of a substantial character. (Emphasis supplied). It further records: "Remember that the omission to specify your age in the nomination paper is a defect of substantial character and is sure to lead to the rejection of your nomination paper." Clause (10) thereafter deals with the grounds for rejection of the nomination papers. 58. A look at the nomination paper, on the face of it, project that each and every column has been meticulously filled in English as well as in Hindi. 58. A look at the nomination paper, on the face of it, project that each and every column has been meticulously filled in English as well as in Hindi. Clauses which are not relevant, stand scored out and it is not understood as to how and in what situation the column requiring the age of the candidate to be given therein escaped notice of the candidate and was left blank. 59. Mr. Chandel, learned counsel appearing for the petitioner, has been very fair to concede that if this nomination paper is looked upon as it is without any other material which was available before the Returning Officer, the omission would be fatal and the nomination may have to be rejected in the given situation. All what is emphasised by the learned counsel in this respect is that when the affidavit accompanying die nomination paper was available to the Returning Officer where age of the candidate had been given, the nomination paper could not be rejected as not in conformity with the provisions of the statute. 60. It is at this stage that perusal of the affidavit becomes necessary. The affidavit appears at page 38/61 of the record. This affidavit it required to be submitted for the purposes of Section 8 of the Act in the prescribed proforma. It is further to be added that the information furnished in the enclosed proform a is tine to the best of his knowledge and belief and nothing material has been concealed there-from. Proforma is at page 64 and the purpose, as would appear from the face of it, is to specify or give information of any conviction by a Court of law and if so, further details are to be supplied. 61. It has been admitted by the learned counsel for the parties at the Bar that in case this affidavit had not been annexed to the nomination paper, the nomination could be rejected on that score. On the top of this affidavit, after giving as his fathers name, the candidate has given his age as 43 years. 62. The matter would not, in my opinion, improve the case of the petitioner because the affidavit has not been annexed for the purposes of supplying his age but for the purposes specified therein, that is per requirement of Section S of the Act. 62. The matter would not, in my opinion, improve the case of the petitioner because the affidavit has not been annexed for the purposes of supplying his age but for the purposes specified therein, that is per requirement of Section S of the Act. The affidavit cannot, in my opinion, be termed as part of the nomination paper it self nor would it amount to an enclosure to the nomination paper in respect of the supplying of the age of the candidate. This opinion expressed by me is based on the case law on the subject notice of which would be taken here-in-after in this judgment. 63. I further find that the reading of the petition; in its entirety does not disclose a triable cause of action. By "triable cause of action" I mean that the reading of the petition makes out a case for further trial if it can given indication that the petition, even if it is accepted at its face value, shall have some chance of its acceptance. In case the Court finds that no triable cause of action is made but, the petition has to be rejected at the very threshold and the time of the Court as well as of the respondent is not to be waged. The law on the subject has been made very clear by the Supreme Court that even where a single material fact has been omitted, it would mean an incomplete cause of action and the petition must be dismissed under exercise of the powers of the Civil Procedure Code as given in Order 6 Rule 16 as well as Order 7 Rule 11 (a). An election petition under the! law established, would be Summarily dismissed if it does not furnish cause of action. Law laid down it Rajiv Gandhis case, reported in AIR 1986 SC 1253, (Azhar Hussain v. Rajiv Gandhi), can be read with advantage in this respect. . 64. In AIR 1982 SC 983, (Jyoti Basu & Ors. v. Debt Chosai & Ors. J, the nature of the right under the statute stands explained. In para 8 of the said judgment it has been observed that: "8. A right to elect, foundamental though it is to democracy, is, anomal- ously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right So is the right to be elected. In para 8 of the said judgment it has been observed that: "8. A right to elect, foundamental though it is to democracy, is, anomal- ously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, it what the statute lays down. In the trial of election disputes, Court is put in a straight jacket Thus die entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and against no such election may be questioned except in the manner provided by the Representation of the People Act So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common taw or Equity. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common taw or Equity. We see mat we must seek an answer to the question within me four comers of the statute." 65. As to what is meant by supplying full particulars in clause (b) of Section 83 (1) of the Act as well as requirement of furnishing material facts under clause (a), has been elaborately discussed in (1991)3 SCC 375, (FA. Suppa & Ors. v. Singor & Ors.) The requirement of Section 83(1) (a) of the Act is that every election petition shall contain a concise statement of material facts on which the petitioner relies. It would mean entire bundle of facts which would constitute a cause of action and must be stated in the petition. The next requirement is in respect of the supply of full particulars alleged against a returned candidate. As noticed above, the omission to supply even one material fact is enough to reject the petition for non-disclosure of the cause of action. 66. Though in the petition filed by the elector Mehar Singh it has been stated that he had raised and pressed that the nomination should not be rejected and he was presented there along with other persons, but the averment is conspicuously missing in the petition filed by Shri Ganga Singh. It has already been noticed that in the petition it has not been explained as to how Mehar Singh was presented there on the scene and for whom and by what authorisation. These facts were essential to be pleaded and the petitioners can be dismissed summarily on that score alone. 67. Further more, it is nowhere said in the petition filed by Shri Gang Singh, petitioner that any request was made by him to the Returning Officer seeking correction of the omission or that the attention of the Returning Officer was brought to some other material placed in this respect. It would be another thing to be considered that even if this material was before the Returning Officer, could the same be held to be a substitute for non- disclosure of the age in the nomination paper itself. 68. It would be another thing to be considered that even if this material was before the Returning Officer, could the same be held to be a substitute for non- disclosure of the age in the nomination paper itself. 68. The stage is now set to take notice of the law laid down as early as 1960 reported in AJR 1960 SC 1049", (Brijendralal Gupta & Anr. v. Jwalaprasad & Ors). The judgment is directly on the point and the only question before the Supreme Court was in respect of the omission to specify the age of a candidate for election in the nomination paper. The question as is formulated ?n the beginning of the judgment is like this : "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 substantial character under Section 36(4) of the Representation of the People Act?" Respondent No.5 in that case had omitted to make declaration regarding his age in his nomination paper. The defect was discovered at the time of scrutiny and resultantly, his nomination paper was rejected by the Returning Officer, The Election Tribunal held that no attempt was made by the candidate to rectify the defect in the nomination paper and the Returning. Officer could not, in law, have, allowed him. to remedy the said, defect at die stage of scrutiny of the nomination, the error was a defect of substantial character with the result that rejection of the nomination paper was, according to the Tribunal, proper. 69. An appeal was taken to the High Court of Madhya Pradesh. The appeal was allowed and the High Court held that since respondent No.5 at the time of scrutiny offered to supply the omission but the Returning Officer refused to allow him to do so, the Returning Officer was bound to make an enquiry before rejecting the nomination paper and that the non-mentioning of the age was not a defect of substantial character. The High Court, in the situation, held that the rejection of the nomination paper was improper. The election was set aside under Section 100(1) (c) of the Act 70. Appeal was taken to the Supreme Court. The High Court, in the situation, held that the rejection of the nomination paper was improper. The election was set aside under Section 100(1) (c) of the Act 70. Appeal was taken to the Supreme Court. After having scrutinised and interpreted Sections 33 to 36 of the Act, it was held that the requirement of Section 33 is that a nomination paper must be completed in the prescribed form and signed by the candidate in the prescribed form and signed by the candidate and by the elector of the constituency as proposer. At page 1052 of the report, nomination paper has been reproduced and it is identical with the one in question. First part of the paper is to be filled in by the proposer whereas the second part is to be duly signed by the candidate. It is not denied that in the present case the column was left blank. It that case the objection was taken by the Returning Officer suo motu in rejecting the nomination paper. Two questions were considered one whether the omission to specify the age amounts to a defect and if yes, then whether it is a defect of substantial character under Section 36(4) of die Act ? 71. The word "defect" would mean a complete lack or absence of something essential to completeness. It would also mean a flaw or a fault or an imperfection. 72. On the question of holding an enquiry under Section 3 6(2) of the act, it was held that the High Court was in error in coming to this conclusion. It was held that if the nomination paper did not comply with the requirement of the provisions of Section 33 of the Act, the case fell squarely under Section 36(2) (b) of the Act. 73. If the defect is not of a substantial character, the Returning Officer shall not reject the nomination paper on the ground of the said defect. In case it is found to be o^ a substantial character, the Returning Officer has no option but to reject the nomination on that ground. 73. If the defect is not of a substantial character, the Returning Officer shall not reject the nomination paper on the ground of the said defect. In case it is found to be o^ a substantial character, the Returning Officer has no option but to reject the nomination on that ground. An enquiry could be held whether the nomination paper shows the age of the candidate as above 25 years but objection is raised that he is less than that In the situation, die Supreme Court ruled that in the latter clause of cases the failure to comply with the previsions of Section 33 of the Act being established, there is no scope of any enquiry under Section 36(2) of the Act. 74. Once it is found that there is an omission to specify the age, there is a complete non-compliance with the provisions and would justify the rejection of the nomination. . - . 75. In paragraph 10 of the report, it was held that there being requirement of the prescribed nomination form, it is difficult to hold that the failure to specify the age dogs not amount to a defect of substantial character. (Emphasis added.) The language used in this paragraph is : "It would, we think, be unreasonable to hold that the failure to make a declaration on such an important matter is a defect of a unsubstantial character. " 76. In the judgment given by die Allahabad High Court 26 years later, the learned single Judge of that Court in AIR 1986 Allahabad 290 has dealt with the idential question in respect of non-specification of age in the statutory Form2-B by the candidate. The defect was held to be of a substantial character and the nomination paper stood rightly rejected on that ground. The identical arguments as are being pressed before this court, were addressed in that case. In that case, the candidate had not specified his age in his both the nomination forms. The candidate in that case had filed a certified copy of the extract of the electoral roll as in this case. In addition to, a Photostat copy of the High .Court certificate with regard to both the documents was made in one of the nomination forms that the age was shown as more man 25 years. The candidate in that case had filed a certified copy of the extract of the electoral roll as in this case. In addition to, a Photostat copy of the High .Court certificate with regard to both the documents was made in one of the nomination forms that the age was shown as more man 25 years. An argument was pressed in service that the Returning Officer, in the given situation, was bound to afford an opportunity to the candidate to rectify the mistake before rejecting the nomination form. The argument Was repelled that since no declaration about the age had been given in the nomination paper, the Returning Officer was under no obligation to make any enquiry regarding the age before rejecting the nomination papers. The defect was found to be of substantial character within the meaning of sub-section (4) of Section 36 of the Act and being not a technical omission under the proviso of sub- section.(4) of Section 33, the Returning Officer was legally justified in having rejected both the nomination papers. 77. In para 9 of the report it has been held mat the declaration of age in the prescribed statutory form is mandatory and it is not open to a candidate to find out some other way to comply with these requirements. It further needs to be noticed that in para 9 it has also been said that the production of documentary evidence in support of age does not tantamount to a declaration which is required to be made by a candidate himself in Form 2-B. Thereafter the learned Judge has given the reasons for the declaration of age. 78. In column 2 at page 296, it was found that there is non-compliance -of law and it is not obligatory on the part of the Returning Officer to consider the certified copy of the extract of the electoral roll and photo copy of the High School certificate and treat them either as a declaration of age or a substitute thereof. The following lines need to be reproduced: "So long a declaration is not made, the, Returning Officer is under no obligation to look into any other material to come to the conclusion whether the constitutional requirement as to age has been satisfied;" (Emphasis supplied). 79. The following lines need to be reproduced: "So long a declaration is not made, the, Returning Officer is under no obligation to look into any other material to come to the conclusion whether the constitutional requirement as to age has been satisfied;" (Emphasis supplied). 79. It was further held that there was no scope of enquiry in the case where the Form 2-B shown of the declaration of age is delivered. Law laid down in AIR 1960 SC 1049 (supra) stands relied upon in this judgment. 80. In AIR 1975 SC \2iA, (Dharam Singh Rathi v. Hari Singh, M.LA. & Ors. ), while dealing with the nomination paper in paragraph 4 of the judgment it has been laid down that in certain type of defects detected at the time of the presentation of the nomination paper, the proviso to sub-section (4) empowers the Returning Officer to over-look such mistakes or to get them rectified, as the case may be. The defect in that case pertained to the non-supply of the Postal address and it was held that the same is not covered by the proviso to sub-section (4) of Section 33 of the Act. It was further held that the nomination paper stood rightly rejected. 81. The omission on the face of it may look very small or even insignificant is a given situation, but the provisions of the statute, however harsh these may be, have to be complied with and the Court is not left with any option to supplement it with its own wisdom. 82. In AIR 1973 SC 178, (Prahladdas Khandelwal v. Narendra Kumar Salve,) the nomination paper was held to have been rightly rejected on account of an omission to mention the name: of the constituency. The omission was held to be of substantial character and would not fall within the provisions where the Returning Officer is enjoined either to get the defect rectified or ignore it. 83. Yet in another interesting case reported in AIR 1970 SC 110, (Ram Dayal v. Brijraj Singh & Ors.), it was a case of a nomination paper bearing thumb impression of the proposer which was not attested as required by Jaw. The defect was held to be substantial and it was further held that the same could not be remedied at the time of scrutiny and the rejection of the nomination paper was held not to be improper. 84. The defect was held to be substantial and it was further held that the same could not be remedied at the time of scrutiny and the rejection of the nomination paper was held not to be improper. 84. Notice may also to taken of one of the earliest judgments on election law by the Supreme Court in AIR 1954 SC 510, (Rattan Anmol Singh & Anr. v. Ch. Atma Ram & Ors.). It was held that where nomination papers are not signed either in one way or the other as contemplated by Section 33, they have not been subscribed because subscribing imports a signature and as the Act sets out the only kind of signature which it will recognise as signing for the purposes of the Act, there are no valid signatures of either a proposer or a seconder in the nomination paper, the Returning Officer is bound to reject them for failure to comply with Section 33 of the Act. 85. It was further held that attestation to the mark placed by an illiterate person on the nomination papers is as necessary and as substantial as an attestation in the case of a will and if there are no signatures and no mark, the form would have to be rejected and the absence could not be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which Rule 2(2) of the Rules, 1951 requires, is not any the less important and imperative. While interpreting Section 36(2)(d) of the Act, it was held that a total omission of an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been. The only jurisdiction the Returning Officer has at the scrutiny stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that (stage remedy essential defects or permit them to be remedied. 86. In one of the latest cases on election law reported in (1996) 5 SCC 312, (J.H. Patel v. Subhan Khan), the rejection of die nomination paper of a candidate on die ground of failure to make and subscribe oath or affirmation as required by Article 173 (a) of the Constitution of India, was held to be proper. It was held that the oath must be taken prior to the date of scrutiny of the nomination paper. It was held that the oath must be taken prior to the date of scrutiny of the nomination paper. Oath taken just before the commencement of the scrutiny of the nomination paper and certificate showing taking of oath in another constituency not produced before the Returning Officer, the rejection of the nomination paper was held to be not improper.. 87. After the aforesaid discussion, notice may be taken of the judgment cited by Mr. M.S. Chandel, learned counsel appearing for the petitioner, reported in (1984) 3 SCC 649, (Ganu Ram v, Rikhi Ram Kaundal & Ors.J. It may be noticed that the observations came to be made in the peculiar facts and circumstances present in that case. The law laid down in AIR 1960 SC1049 (supra) was not brought to the notice of their Lordships. That judgment has been given by three Honble Judges whereas this judgment has been rendered by two Hon’ble Judges. Nothing has been brought to my notice that the view taken in the year 1960 has been over ruled or diluted later. As it would appear, the judgment has been followed by the learned single Judge of the Allahabad High Court in the year 1986: Before the learned single Judge of the Allahabad High Court, this judgment, i.e. (1984)3 SCC649 which is equivalent to AIR1984 SC 1513 (supra), was pressed into service and has been taken note of by the learned Judge in para 10 at page 297 of the report and thereafter stands distinguished in the said judgment The law laid down in AIR 1960 SC (supra) was followed. 88. It may be noticed that no specific challenge has been made as to -how the order of rejecting the nomination appearing under Part-V of the nomination paper is wrong and illegal. Nothing is indicated in the order as to whether the attention of the Returning Officer was brought to any particular fact or document or any effort was made requesting him to remove the lacuna. This could otherwise be not permitted to be done, but there is a different matter. 89. Notice may also be taken that the English translation at page 5 7 of the nomination paper, filed in Hindi, is not correct. It has already been noticed above that Saranpat has not put down his signatures on the nomination papers appearing at page 33/33 of the record. 89. Notice may also be taken that the English translation at page 5 7 of the nomination paper, filed in Hindi, is not correct. It has already been noticed above that Saranpat has not put down his signatures on the nomination papers appearing at page 33/33 of the record. Surprisingly, in the English translation against his name appearing at serial No. 4 under column 5 "Sd/-" is typed out indicating that he has signed the nomination paper in Hindi It, thus, follows that the petitioner has not placed before the Court a correct translation in English and the copy supplied to the other side cannot, to that extent, be said to be a true copy of the petition. 90. It may also be noticed that under Section 33(4) of the Act, the Returning Officer on presentation of the nomination papers shall satisfy himself mat the names and electoral roll numbers of the candidate and his proposer, as entered in the nomination paper, are the same as those in the electoral rolls. It is only these two items where even if there is any inaccuracy in its description or there is a clerical, technical or printing error or any misnomer inaccurate description, clerical or printing error in the electoral roll or in the nomination paper which shall be over-looked by the Returning Officer. The provisions does not extend its scope Further than the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper which are to be compared with those entered in the electoral rolls 91. Judged from any angle, the defect in non-mentioning of the age by I the petitioner in the nomination paper is a defect of substantial character and the rejection of the nomination paper by the Returning Officer cannot be held to be illegal or improper. The objections raised from the side of the respondent are thus, upheld, issue No.l and 2 are held in favour of the respondent and issue No. 6 is found against the petitioner. 92. In sequence, both the petitions are ordered to be dismissed with costs which are assessed at Rs. 10.000/- in each of these petitions. Petition dismissed.