MODI, J.—This is an election appeal under Sec. 116-A of the Representation of the People Act (No. 43) of 1951 (hereinafter called the Act).

2. The appellant Shri Balji was a candidate for election to the House of the People from the Jhunjhunu Parliamentary Constituency at the general election held in January, 1962. The respondent Shri Murarka Radheyshyam Ramkumar was declared successful at this election. There were more than a dozen other candidates at the election in question, but we are not concerned with them. The appellants nomination paper was rejected by the Returning Officer Shri V.I. Rajagopal P.W. 2 (Collector, Jhunjhunu) at the time of the scrutiny which was held on the 22nd January, 1962. A copy of the order of rejection of the nomination paper is Ex. 13. It shows that neither the candidate Shri Balji nor his proposer Abdul Gani nor any election agent or representative on his behalf was present at the time of the scrutiny. The reason for the rejection was stated to be that the proposer Abdul Gani had given his electoral roll number as 105, Ward No. 13 (Nawalgarh) ; but the name of Atmaram son of Ramgopal appeared in the relevant Electoral roll against the said particular and wrong particulars given by the proposer constituted a defect of a substantial nature. The order also shows that all present at the time of the scrutiny were given full opportunity to examine the nomination form before the final decision was given. Aggrieved by this decision, the appellant filed an election petition to the Election Commission of India, New Delhi, on the 13th April, 1962, which was referred for disposal to Shri Roop Singh Rathore, District Judge, Jhunjhunu as the Election Tribunal.

3. The principal contentions raised by the appellant election petitioner in his application are:

(1) That the nomination paper was filed by the candidate and his proposer before the Returning Officer on the 19th January, 1962, at 2-58 P.M. and was received by the Assistant Returning Officer Shri K. C. Jain (vide receipt Ex. 2) without any objection and at that time the numbers on the electoral roll both of the candidate and the proposer had been checked up ;

(2) that in the receipt Ex. 2 which was given by the said Assistant Returning Officer to the appellant, it was mentioned that the scrutiny of the nomination papers would take place at 2-58 on the 22nd January, 1962, which led the petitioner and the proposer to believe that the scrutiny of his nomination form would not take place before the time so indicated, and yet the Returning Officer held the scrutiny at 11 A.M. on the 22nd January, 1962, behind the back of the petitioner and his proposer, and that he had done so deliberately to help the respondent Shri Murarka who was a Congress candidate, and

(3) That the Returning Officer had fallen into a serious error of law in holding that the supply of wrong electoral number from a wrong electoral roll was a defect of a substantial character. The appellants version on this aspect of the case was that the proposer was a resident in the town of Nawalgarh and that the particulars which were given in the nomination form in the shape of his electoral roll number were inadvertently given from the municipal electoral roll for the town of Nawalgarh (Ex. 4) inasmuch as his number in that electoral roll was 105 in Ward No. 13 thereof. It is submitted hat the correct electoral roll number of the appellants proposer Abdul Gani in the relevant (Nawalgarh) Assembly Constituency electoral roll was No. 96 in Ward No. 15. It may be conveniently pointed out here that this number should have been mentioned in the nomination paper as No. 96 Part 57 of the Nawalgarh Assembly Constituency. Be that as it may, the position taken up by the election petitioner was and is that this defect was of a clerical nature and was of a non-substantial character and, therefore, should not have been allowed to prevail by the Returning Officer. It is further stressed in this connection that if the s

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