The failure to specify the age in the nomination paper is a defect of a substantial character under s. 36(4) of the Representation of the People Act, 1951.

P.B.GAJENDRAGADKAR, J.:

(1) 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 s. 36(4) of the Representation of the People Act, 43 of 1951 (hereinafter called the Act)? That is the point of law which arises for our decision in the present appeal. The said point arises in this way. On 25/02/1957, polling took place at the General Election to the Madhya Pradesh Legislative Assembly from the Mamendragarh Double Member Constituency. Thirteen candidates had offered themselves for election either for the general or the reserved seat at the said election. Mr. Brijendralal Gupta, appellant 1 and Thakur Raghubir Singh, appellant 2, were the Congress candidates while respondents 1 and 7 had been adopted by the Praja SocialistParty, respondent 4 and one Sadhuram by the Jan Sangh and the remaining candidates had filed their nominations as independent candidates. Udebhan Tiwari, respondent 5, bad omitted to make the declaration regarding his age in his nomination paper. This defect was discovered at the time of the scrutiny of the nomination papers on 1/02/1957, and as a result his nomination paper was rejected by the returning officer. Subsequently respondent 6 withdrew his candidature with the result that eleven candidates took part in the contest. After the polling took place and the votes secured by the contesting candidates were counted appellants 1 and 2 were declared duly elected to the General and the Reserved seat respectively. Thereupon Jwalaprasad, respondent 1, filed an election petition under s. 81 of the Act challenging the election of the appellants on several grounds, one of which was that the nomination of respondent 5 had been improperly rejected. He, therefore, played that the election of the appellants should be declared void and he himself should be declared as having been duly elected. This election petition was made over for trial to the Election tribunal, Raigarh.

(2) ON the contentions raised by the parties before it the Election tribunal framed as many as 49 issues; but in the present appeal we are concerned with only three of them which related to the rejection of the nomination of respondent 5. These three issues were (1) whether the nomination paper of respondent 5 was improperly rejected because of the omission to fill in the age in the prescribed column, (2) whether at the time of the scrutiny respondent 5 was personally present and brought to the notice of the returning officer that his age was above 25 and the omission is simply accidental, and (3) if so, whether the rejection of the said nomination paper has rendered the whole election void ab initio under s. 100(1)(c) of the Act. The tribunal held that respondent 5 did not make any attempt to rectify the defect in the nomination paper, that the returning officer could not in law have allowed respondent 5 to remedy the said defect at the stage of the scrutiny of the nomination, and that the error in the nomination was a defect of a substantial character with the result that the rejection of the nomination paper was according to the tribunal proper. In accordance with these findings the tribunal dismissed the election petition.

(3) RESPONDENT 1 then preferred an appeal against the decision of the tribunal before the High court of Madhya Pradesh at Jabalpur under s. 116A of the Act. The High court has allowed the appeal; it has held that respondent 5 had at the time of the scrutiny offered to supply the omission but the returning officer refused to allow him to do so, that the returning officer was bound to make a summary enquiry before rejecting respondent 5s nomination paper, and that the nonmention of the age in the nomination paper was not a defect of a substantial character. In consequence, according to the High court, the rejection of respondent 5s nomination paper was improper; that is why the High court s