Judgment

GOSWAMI, J.:- This appeal under Section 116-A of the Representation of the People Act 1951 (briefly the Act) is directed against the judgment of the High Court of Gujarat dismissing the election petition of the appellant who is an elector from Mahudha constituency for the Gujrat State Legislative Assembly. The appellant challenged the election of the respondent who had been declared duly elected to the State Legislative Assembly from this particular constituency in the general elections to the Legislative Assembly held in March 1972. The appellant s principal ground of challenge was that at time of the scrutiny of the nomination papers on February 9, 1972, the Returning Officer improperly rejected the nomination paper of one Christian Suleman Jivabhai (hereinafter to be described for brevity as Jivabhai). Jivabhai was not an elector in the Mahudha Constituency of the Legislature Assembly. He was an elector from Shahpur Constituency in Ahmedabad City. Along with the nomination form Jivabhai had enclosed a certified copy of the corrigendum to the Electoral Roll issued by the Registration Officer, who was officer-in-charge of preparation of the Electoral Rolls. On objection being raised by the respondent the nomination paper of Jivabhai was rejected on the ground that the provisions of Section 33 (5) of the Act were not complied with inasmuch as he has not produced a certified copy of all relevant entries in the Electoral Roll before the Returning Officer at the time of scrutiny of the nomination papers. What was produced was only the certified copy of the corrigendum issued by the Electoral Registration Officer which showed the correction in the name of Jivabhai. Originally, Jivabhai was shown in the Electoral Roll as Christian Soloman Jivabhai and by the correction shown in the corrigendum, the name of "Soloman" was substituted by the name "Suleman". The correct name, therefore, stands as "Christian Suleman Jivabhai as a result of the corrigendum. It appears that the practice of the Electoral Registration Officer is not to issue a corrected Electoral Roll every time some entry in the Electoral Roll is amended or corrected but the officer issues corrigenda and amendment lists without making any alterations in the original Electoral Roll. The High Court accepted the objection with regard to the non-compliance of Section 33 (5) of the Act and rejected the nomination paper of Jivabhai.

2. The appellant contends that the High Court committed an error of law in rejecting the nomination paper of Jivabhai in view of the provisions of S. 36 (4) of the Act. Section 33 provides for presentation of nomination papers and requirements for a valid nomination. We are concerned in this appeal with sub-section (5) of that section which may be quoted:

33 (5) "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 along with the nomination paper, be produced before the returning officer at the time of scrutiny".

Section 36 provides for scrutiny of nominations and we may quote sub-section (4) of that section which is material.

36 (4) "The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character."

In the present case, Jivabhai whose nomination paper was rejected, submitted along with his nomination paper only a certified copy of the corrigendum of the particular entry in the Electoral Roll. Since he was an elector of another constituency, namely Shahpur, and was contesting in the Mehudha constituency, he was required under Section 33 (5) to produce before the Returning Officer at the time of scrutiny either a copy of the Electoral Roll of Shahpur constituency or of the relevant part thereof or a certified copy of the relevant entries in the Electoral Roll of Shahpur constituency. In the instant case, Jivabhai