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TMI Blog1988 (8) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Purohit, respondent who is an elector in the Jodhpur City Constituency No. 183 filed an election petition before the High Court challenging the appellant's election, on the ground that the result of election was materially affected on account of improper rejection of nomination papers of three candidates namely, Smt. Umrao Ben, Hukmichand and Suraj Prakash Joshi. The respondent pleaded that Smt. Umrao Ben was an elector in Sardarpura Assembly Constituency, the returning officer wrongly rejected her nomination paper, without affording opportunity to her to produce a copy of the electoral roll. He further pleaded that Hukmichand, and Suraj Prakash Joshi both were more than 25 years of age on the date of their nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age. The appellant contested the election petition. He asserted that Umrao Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura constituency along with her nomination, she further failed to produce copy of the electoral roll at the time of scrutiny and therefore the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court held that the returning officer had rightly rejected the nomination paper of Umrao Ben and there was no question of improper rejection of her nomination paper. Sri G.L. Sanghi, learned Counsel for the respondent challenged the correctness of the High Court's findings on this question. He urged that since the Returning Officer who was holding the scrutiny of nomination papers relating to the Jodhpur Assembly constituency was also the returning officer of Sardarpura Assembly constituency, he should have verified the entry of Umrao Ben's name from the electoral roll of Sardarpura Assembly Constituency which must have been with him. He urged that Umrao Ben's request to verify entries relating to her name from the electoral roll of Sardarpura Assembly constituency was ignored by the returning officer, and further her request for grant of time to produce electoral roll was also rejected. He urged that object of Section 35 of the Act was merely to ascertain as to whether a candidate whose nomination paper was scrutinised was an elector or not and since the electoral roll of Sardarpura Assembly Constituency was already with the returning officer he could have verified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 36(2)(b) makes it apparent that if a candidate who is an elector of a different constituency fails to prove his eligibility in the manner prescribed by Section 33(5) of the Act, his nomination paper is liable to be rejected for the non compliance of Section 33(5) of the Act. These provisions are plain which admit of no other interpretation. Non-compliance with Section 33(5) is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate. Section 35(5) prescribes a particular mode to prove eligibility of a candidate to contest election and Section 36(2)(b) provides penal consequences. Therefore Section 35(5) is mandatory in nature. There is no dispute that Umrao Ben failed to comply with the requirement of Section 33(5) of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof, or the certified copy of the relevant entries along with her nomination paper. Nor she had produced any of the three documents before the returning officer at the time of scrutiny. In the circumstances the returning officer rightly rejected Umrao Ben's nomination paper. 6. Shri G.L. Sanghi, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jodhpur City Constituency. The law does not enjoin the returning officer to send for the electoral roll from his office to verify the eligibility of a candidate. The law casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in Section 33(5) of the Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter. The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the eligibility of a candidate. 7. In Sri Baru Ram v. Shrimati Prasanni and Ors. [1959]1SCR1403 this Court interpreted Section 33(5) and Section 36(2)(b) and observed as under: Section 33(5) requires the candidate to supply the prescribed copy and Section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toral roll was rejected on the ground of some technical defect but the other two nominations were rejected on the ground that copy of the electoral roll was not filed along with them. This Court held that the returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers. The Court further held Section 33(5) did not require that a copy must be filed with each nomination paper or that any copy should be filed at all as it was open to a candidate to produce the copy before the returning officer at the time of scrutiny. The Court held that the purpose of filing the copy is to ensure that the returning officer was able to check whether the candidate concerned was qualified or not and that purpose would be effectively served even if only one copy was filed with one nomination paper and no copies were filed along with the other nomination papers. While considering Sections 33(5) and 36(4) of the Act the Constitution Bench held that Section 33(5) required that it was the copy produced by the candidate which should show that he was qualified or not and for that purpose a copy produced by the candidate should be complete whether it was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he oral and documentary evidence produced by the respondent the High Court has recorded findings that Hukmichand as well as Suraj Prakash Joshi both had attained the age of 25 years on the relevant date 1.1.1984 and their nomination papers had been rejected improperly by the Returning officer, which materially affected the result of the election. 10. Dr Chitale learned Counsel for the appellant urged that on the admitted facts and circumstances the Returning Officer could not be held to have acted improperly in rejecting the nomination papers of Hukmi Chand and Suraj Prakash Joshi. He urged that since at the time of the scrutiny neither of the two candidates nor their proposer nor anybody else appeared before the returning officer, or placed any material before him showing that either of the two candidates was qualified to contest the election having attained the age of more than 25 years, the returning officer had no option but to rely on the entries contained in the electoral roll and therefore the rejection of the nomination papers of Hukmi Chand and Suraj Prakash Joshi could not be said to be improper. Learned counsel further urged that if the returning officer did not act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not qualified to contest the election. In the absence of any material before the returning officer, the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them. But his decision is not final. In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date. It is open to the High Court to take a final decision in the matter notwithstanding the order of the returning officer rejecting the nomination paper. If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election. Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer's order rejecting the nomination paper was improper. It should be borne in mind that the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent. As regards Hukmi Chand the respondent produced Ex. 8 (a copy of scholars register) Ex. 9 (counter-foil of certificate of Board of Secondary Education) Ex. 10 (mark-sheet of Hukmi Chand) Ex. 11 (a copy of counter foil of certificate of Board of Secondary Education) relating to Suraj Prakash Joshi, and Ex. 12 (Tabulation record of marks obtained by Suraj Prakash Joshi). These documents were sought to be proved by Anant Ram Sharma PW 3 and Kailash Chand Taparia PW 5. Ex. 8 is a copy of the scholars register issued by the Head of the Government Higher Secondary School and entries contained therein show that Hukmi Chand had joined Government Middle School Palasani on 24.6.1972 and he had left the same on 10.6.1976 after having passed VIIIth class. In this document 13.6.1956 is mentioned as the date of birth of Hukmi Chand son of Sardar Mal. Ex. 9 is a certificate issued by the Board of Secondary Education Rajasthan certifying that Hukmi Chand Bhandari son of Sardar Mal Bhandari passed Secondary School Examination of 1974 from New Government Higher Secondary School Jodhpur, it also shows 13.6.1956 as date of birth of Hukmi Chand. Ex. 10 is a tabulation record containing the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Multi-purpose Higher Secondary School Jodhpur from where he passed the Secondary examination was also not produced, as it observed No attempt was made by the parties to get the application form for admission and transfer certificate produced from the New Government Higher Secondary School Jodhpur and similarly no application form for admission was got produced from the Government Middle School, Palasani. But still it can be presumed that the date of birth recorded in the Scholar's Register is based on the date of birth given in the application form initially submitted at Palasani and continued in the transfer certificate and the same was mentioned at the time of admission in the Government Multipurpose Higher Secondary School, Jodhpur (emphasis supplied). After making the aforesaid observations the High Court held that these documents were public documents within the meaning of Section 74 of the Evidence Act and therefore there was a presumption about the correctness of the date of birth mentioned therein. The High Court was conscious of the fact that in the absence of the evidence of the person who may have given information regarding the date of birth, the entries contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary School, Jodhpur since 1984. On the basis of the scholar's register he stated before the High Court that Hukmi Chand joined school on 24.6.1972 in 9th class and his date of birth as mentioned in scholar's register was 13.6.1956. He made this statement on the basis of the entries contained in the scholar's register Ex. 8. He admitted that entries in the scholar's register are made on the basis of the entries contained in the admission form. He could not produce the admission form in original or its copy. He stated that Hukmi Chand was admitted in 9th class on the basis of transfer certificate issued by the Government Middle School, Palasani from where he had passed 8th standard. He proved the signature of Satya Narain Mathur the then Principal who had issued the copy of the scholar's register Ex. 8. Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in Ex. 8. The evidence of Anantram Sharma merely proved that Ex. 8 was a copy of entries in scholar's register. His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy and Ors. v. Jyotish Chandra Acharya Chowdhury AIR1941Cal41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Moti Ram and Ors. [1951] Pun 377 : Sakhi Ram and Ors. v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur and Ors. [1966] Pat 459 : Ghanchi Vora Samsuddish Isabhai v. State of Gujarat [1970] Guj 178 and Radha Kishan Tickoo and Anr. v. Bhushan Lal Tickoo and Anr. [1971] J K 62. In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove the dates of birth of Hukmi Chand and Suraj Prakash Joshi. The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value. The High Court committed serious error in accepting the dates of birth as mentioned in the aforesaid documents. In our view the High Court's entire approach in considering the question of dates of birth was wholly misconceived. The burden to prove the fact in issue, namely, the dates of birth of Hukmichand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained in the electoral roll regarding the age o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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