Judgment

SHAH, J. : At the general elections held in February 1967 the appellant polled the largest number of votes and was declared elected to the Punjab Vidhan Sabha from the Zira Constituency. The first respondent S. Mohinder Singh, who was a candidate at the election applied to the High Court of Punjab for setting aside the election of the appellent on the ground that the nomination of the appellant who was not a voter in the Zira Constituency was improperly accepted by the Returning Officer, for the appellant had failed to file before the scrutiny a copy of the electoral roll or the relevant part thereof or a certified copy of the relevant entries of the poll pertaining to the constituency to which he belonged, and that the result of the election to the Zira Constituency insofar as it concerned the appellant was materially affected by improper acceptance of his nomination. The High Court upheld the contention and set aside the election of the appellant and declared the election of the appellant void under S. 100 (1) (d) (i) of the Representation of the People Act, 1951. Against that order the appellant has appealed to this Court.

2. The name of the appellant is included as a voter in the Gidderbha Constituency, and his name is not included in the list of electors in the Zira Constituency. But on that account he was not disqualified from standing for election from the Zira Constituency. The validity of the election of the appellant was challenged only on the ground that the appellant had failed to produce before the scrutiny of nomination papers, the electoral roll, or a certified copy of the relevant entries in that roll concerning him.

3. By sub-s. (4) of S. 33 of the Act the returning officer is directed to satisfy himself when the nomination paper is presented that the names and electoral numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. Sub-section (5) provides that where the candidate is an elector of a different constituency a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall unless it has been filed along with the nomination papers, be produced before the returning officer at the time of scrutiny. The appellant not being an elector in the Zira Constituency, he had to produce either with the nomination paper or at the time of scrutiny the relevant part of the electoral roll, or a certified copy of the relevant entries in the electoral roll Section 36 deals with the scrutiny of nomination. By sub-s. (2) of Section 36 it is provided :

"(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objections, or on his own motion after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds :

(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :

Articles 84, 102, 173 and 191.

(b) that there has been a failure to comply with any of the provisions of Section 33 or section 34 : or

(c) * * * *

By sub-section (4) the returning officer is enjoined not to reject any nomination paper on the ground of any defect which is not of a substantial character. Sub-section (7) of Section 36 provides :

"For the purposes of this section, 8 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 section 16 of the Representation of the People Act, 1950."

4. This Court in Baru Ram v. Smt. Prasanni, 1959 SCR 1403 observed at p. 1418 (of SCR).