Judgment

GAJENDRAGADKAR, J. : On September 15, 1959, after this appeal was argued before us, we announced our decision that the appeal had failed and was dismissed with costs, and we stated that our judgment will follow. Accordingly the present judgment is now being delivered in the said appeal.

2. Was the nomination paper of Kusharam Nath, respondent 1, improperly rejected by the returning officer ? - that is the short question which falls to be considered in this appeal by special leave.

3. The said question arises in this way. The Nowgong constituency of the Assam Legislative Assembly which is a double-member constituency was called upon to elect two members to the Assam Legislative Assembly, one from the Scheduled Castes and the other from the general body of the electorate. Dev Kanta Barooah, the appellant, filed his nomination paper for election to the general seat and respondent 1 filed five nomination papers for the said seat. Baliram Das, respondent 4, and Mahendra Nath Hazarika, respondent 5, filed their nomination papers for the reserved seat whereas two other candidates had filed their nomination papers for the reserved seat whereas two other candidates had filed their nomination papers for the general seat. On February 1, 1957, the nomination papers of all the candidates were scrutinised by the returning officer; an objection was raised on behalf of the appellant against the nomination papers filed by respondent 1. This objection was upheld by the returning officer who rejected all the nomination papers of respondent 1 under S. 36(2)(b) of the Representation of the People Act, 1951 (Act 43 of 1951) (hereinafter called the Act). The rejection of the said nomination papers was based on the finding that they did not comply with the provisions of S. 33(4) of the Act.

4. Subsequently on March 2, 1957, election took place for the said constituency and the counting of votes followed on March 3, 1957 and March 5, 1957. In the result the appellant was declared duly elected to the general seat and respondent 5 to fill the reserved seat.

5. Respondent 1 then challenged the election of the appellant by his Election Petition No. 9 of 1957 on the ground that his own nomination papers had been improperly rejected by the returning officer. The appellant and respondent 5 resisted this petition. On December 12, 1957, the Election Tribunal allowed the petition and set aside the election of the appellant on the ground that the nomination papers of respondent 1 had been improperly rejected. Against this decision the appellant filed an appeal before the Assam High Court (First Appeal No. 56 of 1957)* under S. 116A of the Act. The learned judges of the High Court agreed with the view taken by the tribunal and dismissed the appeal preferred by the appellant on April 17, 1958. The appellant then applied for and obtained special leave from this Court to appeal against the said decision of the High Court. That is how this appeal has come before us and the only point which it raises for our decision is whether the High Court was in error in confirming the finding of the tribunal that the nomination papers of respondent 1 had been improperly rejected by the returning officer.

6. It would be relevant at this stage to refer very briefly to the relevant provisions of the Act. The petition filed by respondent 1 asked for a declaration that the election of the appellant is void under S. 100, sub-sec. (1)(c) of the Act. If it is shown that the nomination papers of respondent 1 had been improperly rejected the election of the appellant would have to be declared to be void. This position is not in dispute. The defect in the nomination papers which had been successfully urged by the appellant before the returning officer is alleged to be covered by S. 36, sub-sec. 2(b) of the Act. This clause deals with cases where there has been a failure to comply with any of the provisions of S. 33 or S. 34 of the Act. Section 36(3) provides that, if a candidate has file