6 were framed by the High Court which read as follows Whether the numberination paper of the petitioner has been improperly rejected?
The last date for making numberinations for election from the aforesaid companystituency was 22nd November, 1985 and the date for the scrutiny of numberinations was November 23, 1985.
The appellant, the Ist respondent and the second respondent Bazlul Basit were the three candidates on whose behalf numberination papers had been filed before the expiry of the time fixed for making numberinations.
On the basis of these pleas Issue No.
The election process companytinued with only the appellant and the second respondent as the candidates and after the poll the appellant was declared as having been elected on the basis of the larger number of votes secured by him.
In support of his case 7 the Ist respondent had examined three witnesses, P.W. 2 Aripulla, P.W. 3 Sirajul Islam and P.W. 6 Habibar Rahman.
In the companyrse of his written statement the appellant raised several pleas, and of them three were material for purposes of this case.
3, M. Bhattacharjee, was the Returning officer.
The case thereafter was adjourned to a subsequent date for hearing to enable the learned companynsel to make their submissions on the above question also.
It is admitted by the Ist respondent that he was the lessee of the tolls of the said public ferry for the period between 1.4.1985 and 31.3.1986 but his case, however, was that he had been relieved from the said companytract on 21.11.
If so, whether the election of the respondent is void?
The Ist respondent pleaded that he had companypleted the age of twenty five years on the date of scrutiny of numberination that he had subscribed an oath as required by Article 173 a of the Constitution and that while it was true that he had entered into such a companytract he had been released from the said companytract on 21.11.1985 by the Executive Engineer companycerned and therefore there was numbersubsisting companytract between him and the Government of Assam on the date of A scrutiny.
and iii whether the Ist respondent held an office of profit under the Government of Assam by virtue of being a lessee of the right to companylect the toll at the ferry?
From the Judgment and order dated 2.12.1986 of the High Court of Gauhati in Election Petition No.
l 1.1985, that is on the date of scrutiny of the numberination papers, the Executive Engineer had at the request of the appellant, allegedly made on 18.11.1985 released the petitioner from the companytract and that the order of release had been made after the scrutiny was over.
At the time of the scrutirly respondent number 2 raised objection to the numberination of respondent No.
4 NCE of 1987.
on the question of the age of the Ist respondent there is practically numberevidence adduced on behalf of the appellant.
The Electoral Roll, which was marked as Exhibit 7, in the case showed that the Ist respondent was aged 29 years.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
First he pleaded that the Ist respondent had number companypleted 25 years of age on the date of scrutiny of numberinations and therefore the numberination papers had been rightly rejected, secondly he pleaded that the Ist respondent had number subscribed an oath as required by Article 173 a of the Constitution and therefore the Ist respondent was number qualified to companytest the election and thirdly he pleaded that the Ist respondent was also disqualified to be chosen to fill a seat in the Legislature of the State as on the date of scrutiny of the numberinations the Ist respondent had a subsisting companytract entered into by him with the Government on Assam under which he had been treated as a lessee of the Phulbari Ghat Ferry for the period between 1.4.1985 and 31.3.1986.
The proposer of one of the numberination papers filed on behalf of the respondent No.
The Returning officer, however, proceeded to reject the numberination papers filed on behalf of the Ist respondent on 23.11.1985 holding that the Ist respondent had number companypleted 25 years of age and therefore was number qualified to be a member of the Legislative Assembly.
S and Issue No.
The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal is filed by the appellant Dewan Joynal Abedin against the judgment dated December 2, 1986 of the High Court at Gauhati setting aside his election to the Legislative Assembly of Assam at the election held on the 16th December, 1985 from the 22 Salmara South Legislative Assembly Constituency on an election petition filed by respondent No.
Govind Mukhoty, Anil Nauriya and Mrs. Rekha Pandey for the Appellant.
The Ist respondent further companytended that on account of the rejection of his numberination papers the election of the appellant was liable to be set aside under section 100 1 c of the Representation of the People Act, 1951 hereinafter referred to as the Act which provided that the election of a successful candidate was liable to be set aside on the ground that any numberination had been improperly rejected.
1 on the ground that respondent No.
Ist respondent had been relieved from the charge of Phulbari Ghat Ferry with effect from 21.
ii whether the companytract in question said to have been entered into by the Ist respondent with the Government of Assam to companylect the toll at the ferry was a companytract for the execution of any works undertaken by the Government of Assam attracting section 9 A of the Act and if so whether the said companytract was subsisting on the date of scrutiny of numberination?
or, Whether the numberination paper of the petitioner was liable to be rejected as alleged in para 7 of the written statement?
Miss Halida Khatoon, Abdul Sattar and R.C. Kaushik for the Respondents.
2 of 1986.
Respondent No.
Thereupon the Ist respondent filed the election petition before the High Court out of which this appeal arises companytending that he had infact companypleted 25 years of age on the date of his numberination and that the rejection of his numberination papers was erroneous.
1 prayed for some time to refute the objection.
2 of 1986.
There were other incidental companyditions in the agreements.
1 Abdul Wazed alias Abdul Wazed Miah in Election Petition No.
He also produced his High School Leaving Certificate Exhibit 12 which showed that he was above 25 years on the date of the numberination.
The High Court had, therefore, to companysider the question whether the order of release had been made on the 21.11.1985 or on 25.11.1985 after the scrutiny of numberination papers.
Considering the High School Leaving Certificate Ext 12 Electoral Roll Ext 7 and oral evidence of PW 2 Aripulla, PW 3 Silajul Islam and PW 6 Habibar Rahman, it is companycluded on the age of the petitioner on the date for making numberination or scrutiny of numberination that he had companypleted the age of 25 years.
1 had number companyp leted 25 years of age on the date of scrutiny as required by Article 173 b of the Constitution which provided that a person was number qualified to be chosen to fill a seat in the Legislature of a State unless he was in the case of a seat in the Legislative Assembly number less than twenty five years of age and in the case of seat in the Legislative Council number less than thirty years of age.
