LexAMRIT LAL AMBALAL PATEL versus HIMATBHAI GOMANBHAI PATEL & ANOTHER
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A B ·. c - D E F •• G H AMRIT LAL AMBALAL PATEL v. HIMATBHAI GOMANBHAI PATEL & ANOTHER May 3, 1968 [J. C. SHAH AND V. BHARGAVA, JJJ. The Representation of the People Act (43 of 1951), ss. 36(2)(a) and lOO(l)(a) and (d)-Age of returned candidate below 25 on the date fixed for scrutiny of nominations-If election to be set aside. The appellant was the successful candidate in the 1967 State Legislative Assembly Elections. The 21st January, 1967 was the date fixed for the scrutiny of nominations and the actual polling took p]ace on 18th Feb- ruary, 1967. The election of the appdlant was challenged on the ground that he was .not oualified to be chosen to fill the seat as he was less than 25 years of age. · The High Court set aside the election on the ground that the appellant's nomination paper should have been rejected under s. 36(2) (a) of the Representation of the People Act, 1951. In appeal to this Court, HELD : ( 1) The evidence conclusively showed that the appellant was in fact born on 25th January, 1942, and not on 15th January, 1942 as contended by him. [280 CJ (2) Under s. 36(2)(a) the nomination paper of a candidate is to be rejected if he is not qualified under Art. 173 of the constitution on the 'date Pxed for the scrutiny of nominations, that is. if he had not attained the age of 25 years on that date. Consequently, the nomination paper of the appellant was liable to be rejeceod under s. 36(2)(a). Since, by the im- p'roper acceptance of the appellant's nomination, the result of the election was materially affected, the e.lection had to be declared void under s. IOO(l)(d)(i) o'f the Act. [281 H: 282 A-B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1603 of 1967., Appeal from the judgment and order dated SeP'tem ber 14 1967 of the Gujarat High Court in Election Petition No. 4 of 1967. I. N. Shroff, for the appellant. S. T. Desai, P. C. Bhartari for J. B. Dadachanji, for respon- dent No. 1. The Judgment of the Court was delivered by Bhargava, J. There were three candidates for election to the Gujarat State Legislative Assembly from Ankleshwar Constitu- ency .No. 144. Respondent No. 1 in the appeal was one of the candidates who, on being unsuccessful, filed the election petition against the appellant who, as a rival candidate, succeeded in the election. Respondent No. 2 was another defeated candidate in the General Elections. The last date for nomination was 20th 278 SUPREME COURT REPORTS [1969] I S.C.R. January, 1967. The nomination papers were scrutinised on 21st January, 1967. 23rd January, 1967 was the date for with- drawals and the actual polling took place on 18th February, 1967. The result was declared on 22nd February, 1967. The elecuon of the appellant was challenged by the election peti- tioner on the ground that the appellant was not qualified to be chosen to fill the seat in the State Legislature on the date of nomi- nation, because he was born on 19th February, 1943 and was less than 25 years of age. The appellant contested this assertion and pleaded that he was born on 15th January, 1942, so that he had attained the age of 25 years even before the date of nomi- nation. The High Court of Gujarat. af!er taking evidence of both parties. arrived at the finding tliat the appellant's date of birth was 25th January, 1942, and set aside the election of the appellant on the ground that his nomination paper was wrongly accepted when it should have been rejected under section 36(2) A B c D (a) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act"). The appellant has challenged this decision of the High Court in this appeal under s. l !6A of the Act on two grounds. The first ground is that the High Court has wrongly arrived at the finding that the date of birth of the appel- lant was 25-1-1942 and should have held that the appellant was actually born on 15-1-1942. The second ground urged in the alternative is that, in any case, even if the appellant was born on 25-1-1942. he was more than 25 years of age on the 18th Febru- ary. 1967 when the election took place, so that his election could~: E not be set aside on the ground that he was disqualified from being I chosen as a member of the State Legislature. ! The first ground raises only a question of fact on which the High Court has recorded a finding against the appellant, even though the finding does not fully accept the case p
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