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1986 Supreme(Gau) 123
GAUHATI HIGH COURT
Manisana, J.
Abdul Wazed & Abdul Wazed Miah -Appellant
Versus
Dewan Joynal Abedin and Two Others. -Respondent
Election Petition No. 2 of 1986
Decided On : 02-12-1986
S.R.Bhattacharjee, H.R.Choudhury, H.A.Sarkar, F.Ali, D.N.Choudhury, A.N.Sarma, A.M.Choudhury
The court clarified that a candidate can be said to have been nominated only when the Returning Officer finds him to be validly nominated after the scrutiny of nomination papers, as provided under Section 36(8) of the R.P. Act.
Headnote:
ELECTION LAW - NOMINATION - REJECTION - AGE OF CANDIDATE - OATH OR AFFIRMATION - DISQUALIFICATION - LEASE OF FERRY - TERMINATION.
Fact of the Case:
The petitioner, Abdul Wazed, challenged the election of the respondent, Dewan Joynal Abedin, to the Legislative Assembly of Assam on the grounds that his nomination was improperly rejected by the Returning Officer for not completing 25 years of age on the date of scrutiny of nominations. The petitioner also alleged that he was disqualified under Section 9A of the Representation of People Act (R.P. Act) as he had a subsisting contract with the Government of Assam for the lease of tolls of a ferry.
Finding of the Court:
The court found that the petitioner had completed the age of 25 years on the date of making nominations or scrutiny of nominations based on the evidence of witnesses, the High School Leaving Certificate, and the Electoral Roll. The court also held that the petitioner had made and subscribed an oath or affirmation in compliance with Article 173 of the Constitution and the R.P. Act. Regarding the disqualification under Section 9A of the R.P. Act, the court found that the petitioner was relieved of the charges of the ferry on 21.11.1985 and, therefore, was not disqualified.
Issues: 1. Whether the petitioner's nomination was improperly rejected? 2. Whether the petitioner was disqualified under Section 9A of the R.P. Act? 3. Whether the election of the respondent was void?
Ratio Decidendi: 1. The court held that the petitioner's nomination was improperly rejected as he had completed the age of 25 years on the date of making nominations or scrutiny of nominations and had made and subscribed an oath or affirmation in compliance with Article 173 of the Constitution and the R.P. Act. 2. The court held that the petitioner was not disqualified under Section 9A of the R.P. Act as he was relieved of the charges of the ferry on 21.11.1985.
Final Decision: The court declared the election of the respondent to the Legislative Assembly of Assam from the 22 Salmara South Legislative Constituency to be void and set it aside. The office was directed to take necessary action under Section 103 of the R.P. Act. The respondent was ordered to pay costs of Rs. 1,000/- to the petitioner.
The petitioner Abdul Wazed has questioned the election of the respondent - 1, Dewan Joynal Abedin to the Legislative Assembly of Assam by the 22 - Salmara South Legislative Assembly Constituency. The petitioner has challenged the election on the grounds, inter alia, that his nomination has been improperly rejected by the Returning Officer by holding that he has not completed 25 years of age on the date appointed for scrutiny of nominations. The case of the petitioner is that the last date for making nominations was 22.11.85. The date for scrutiny of nominations was on 23.11.85. On the date for making nominations or scrutiny of nomination, he was aged 29. An objection was raised by the respondent-2 Bazlul Basit before the Returning Officer by filing an application (Ext.-8) falsely stating that the petitioner has not completed the age of 25. The Returning Officer by an order dated 23.11.85 (Ext-11) rejected the nomination of the petitioner. The proposer of the petitioner Gulzar Khan (PW 5) filed an application on 23.11.85 (Ext-9) praying for a two-days time as the next date was Sunday to refute the objection. The Returning Officer rejected the petition. On 23.11.85 at about 3.30 p.m., the petitioner filed an application (Ext-10) before the Returning Officer for reconsideration of the order of rejection. It was also rejected.
2. The respondent-1 is the only contesting respondent out of the three respondents. The case of the respondent-1 is that the petitioner has not completed the age of 25 years on the date for scrutiny of nominations. The petitioner, in compliance with the provisions under R.P. Act and Article 173 of the Constitution, did not make or subscribe an oath. Therefore, nomination papers of the petitioner were liable to be rejected. The petitioner was also disqualified to be chosen to fill in a seat in the Legislature of the State as on the date for making nominations as well as on the date for scrutiny of nominations the petitioner had subsisting contract entered into by him with the Government of Assam. On the date for scrutiny of nominations the petitioner had a subsisting contract of lease of the tolls of ferry at Phulbari Ferry Ghat for ferrying across the river Jinjiram. The lease was from 1.4.85 to 31.3.86. The election petition is also not maintainable on the grounds stated in the written statement.
3. The following issues were framed :
1. Whether the election petition is maintainable as alleged in the written statement ?
2. Whether the election petition suffers from non-joinder of necessary parties ?
3. Whether the election petition is barred by limitation ?
4. Whether the election petition is barred by waiver, estoppel and acquiescence ?
5. Whether the nomination paper of the petitioner has been improperly rejected ? If so, whether the election of the respondent is void ?
Or,
Whether the nomination paper of the petitioner was liable to be rejected as alleged in para 7 of the written statement 1
6. Whether the petitioner incurred disqualification under Section 9A of the Representation of People Act ?
7. Whether the petitioner is entitled to any relief ?
FINDINGS
4. The respondent-1 has not pressed Issues 1 to 4. Accordingly, they are decided in favour of the petitioner.
5. Re issue 5, - PW 2 Aripulla Sheikh, PW 3 Sirajul Islam, the petitioner (PW 4), PW 5 Guljar Khan and PW 6 Habibar Rahman are witnesses who speak about the age of the petitioner. Electoral Roll (Ext-7) and High School Leaving Certificate (Ext-12) are the documentary evidence regarding the age of the petitioner. The respondent-1 has not produced any witness or document relating to the age of the petitioner.
6. High School Leaving Certificate (Ext-12) shows the age of the petitioner as 16 years 8 months on the 1st March, 1976. Therefore, on 22.11.85 or 23.11.85, the petitioner was more than 25 years. In the Electoral Roll (Ext-7) the age of the petitioner is shown as 29 years.
7. The evidence of the PW 2 Aripulla Sheikh is that he
