Orissa High Court
Smt. Gitanjali Bisoi vs Smt. Bidyulata Muduli And Anr. on 24 June, 2004
Equivalent citations: 100(2005)CLT155
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. This Election Appeal is directed against the judgment and order dated 10th November, 2003 passed in M.J.C. No. 52 of 2002 declaring the Election of the appellant to be illegal, void and unconstitutional and also declaring respondent No. 1 elected as Member, Zilla Parishad, Girila Zone, Kotpad-2.
Respondent No. 1 was the election-petitioner before the Learned District Judge, Koraput and she had filed an application under Section 32 of the Zilla Parishad Act for declaration that the election of Respondent No. 1 as Member, Zilla Parishad, Girila Zone, Kotpad-2 held on 21.2.2002 is illegal, void and unconstitutional and consequently for declaring the election-petitioner elected for the said post.
2. The case of the election-petitioner is that as per the election programme, election was scheduled to be held in the year 2002 and nominations were filed on 21.1.2002. The nomination papers were scrutinized on 22.2.2002 and after the election, results were finally published on 2.3.2003. In the said election, the appellant was declared to have been elected for the post. The case of the election-petitioner is that the appellant was a minor and had not completed 18 years of age and that though such an objection was raised at the time of scrutiny of nomination papers, nomination papers were illegally accepted. According to the election-petitioner, unless a candidate attain the age of 21 years, she can not contest for the election and on that ground alone, the election of the appellant is liable to be set aside. Apart from the above ground, the election-petitioner also took a ground that out of the 300 valid votes polled in the favour of the election-petitioner, counting was not done properly and more than 100 ballot papers were rejected illegally. The further case of the election-petitioner is that she having polled the next highest votes in the said election, the election of the appellant be set aside and she be declared elected for the post. The present appellant filed counter stating that she was aged about 23 years on the date of election and she had completed 22 years of age. According to her, the date of birth is 13.8.1980 and in the voter's list in year 2002, her age has been shown as 22 years. Her further case is that in the School Admission Register her age was reduced by 4 years because of late admission, as there was no school in the village. It was also the case of the appellant that the Admission Register should not be taken to have shown the correct date of birth because of reasons stated above.
3. On the pleadings of the parties, the Learned District Judge framed three issues and the most relevant issue which was pressed by both the parties is with regard to the age of the appellant. The election-petitioner in order to substantiate her case, examined two witnesses including herself and also proved the School Admission Register for the year 1992-93. The appellant examined two witness including herself and also proved certain documents such as voter's list, Horoscope to prove that her age was more than 18 years on the date of filing of nomination. The Learned District Judge on analysis of the evidence both oral and documentary adduced on behalf of the parties held that the appellant was below the required age on the date she filed the nomination paper and accordingly, she was not eligible to contest in the election and only on that ground the election of the appellant was declared to be illegal and void. The respondent No. 1 having polled next highest number of votes was declared to be elected.
4. Shri Mishra, the Learned Counsel appearing for the appellant challenged the finding of the Learned District Judge with regard to the age of the appellant on the ground that in the School Admission Register the date of birth had been purposefully reduced by 4 years as there was no school at that point of time and therefore that should not be taken into consideration for the purpose of assessing the age of the appellant at the time of filing of the nomination paper. It was also contended by Shri Mishra that the voter's list, Ext. B and other documents produced on behalf of the appellant clearly indicate that she was above 21 years on the date of filing of nomination paper and there was no reason to discard such evidence and accept the entry made in the School Admission Register to come to a conclusion that the appellant was below the required age on the date of filing of nomination paper. The Learned Counsel appearing for the respondent No. 1, on the other hand, submitted that the School Admission Register is the document on which much reliance can be placed by any Court to ascertain the age of a person and the Learned District Judge having done so, there is no illegality in the finding of the Learned District Judge that the appellant was below the required age on the date of filing of nomination paper.
5. From the arguments advanced by the Learned Counsel for the parties as well as a perusal of the impugned judgment, it appears that the only question that is required to be determined in this appeal is as to whether the appellant was above the required age on the date of filing of nomination or not ? I am of the view that in order to find out the correct date of birth, it is necessary to examine the oral and documentary evidence adduced on behalf of the parties. The election-petitioner who examined herself as P.W. 1 has stated that after coming to know that the date of birth of the appellant was 16.7.1984, she filed objection at the time of scrutiny but the same was not accepted. In cross-examination, she has stated that she had obtained information from the application filed by the petitioner for appointment as a Sikhya Karmi available in the Office of B.D.O., Kotpad. In her cross-examination, she has admitted that in the voter's list of 2002 the age of the appellant has been described as 22 years. P.W. 2 working as a peon in the Government High School, Koraput was sent by the Headmaster of the school for production of the School Admission Register and the School Leaving Certificate of the appellant. In the School Admission Register, 1992-99 (Ext. 1), at serial No. 0163 an entry has been made in respect of the appellant. Her date of birth has been noted in column 9 in figures and in column 10 in words. In columns 9 and 10, her date of birth has been shown as 16.7.1984. The same date has been indicated in the School Leaving Certificate issued in her favour. Though this witness has been cross-examined at length, nothing substantial has been brought in. The entries made in Ext. 1 clearly indicate that not only in figure but also in words in columns 9 and to respectively the date of birth of the appellant has been described as 16th July, 1984. The School Leaving Certificate, which has been exhibited in the proceeding also indicates that her date of birth was 16.7.1984. Therefore, it is clear from the evidence adduced from the side of the election-petitioner that in the School Admission Register as well as in the School Leaving Certificate the date of birth has been described as 16.7.1984. As against this, the evidence adduced on behalf of the election-petitioner, the appellant, it appears that she has given a reason with regard to the said entry in her evidence. She was examined as O.P.W. 1. She in her evidence has stated that her date of birth is 13th August, 1980 and the entry made in the School Admission Register is incorrect as the age was reduced by 4 years because of the reasons that she had become 9 years old at the time of admission in the school. According to her, the correct date of birth is 13.8.1980 for all purpose and the Horoscope and the Voter's Identity Card clearly indicate that her age was 22 years as on 1.1.2002. Similar is the evidence of other witness examined on her behalf. In view of such nature of evidence adduced on behalf of both the parties, it is for the Court to decide as to whether the entry made in the School Admission Register as well as School Leaving Certificate should be accepted or the age indicated in the Voter's Identity Card is to be accepted. Reliance was placed by the Learned Counsel appearing for the respondent No. 1 on a decision of this Court in the case of Harekrishna Das v. Chairman, Paradeep Port Trust and Anr. reported in 99 (2005) CLT 43. In the said decision, the Court considered the value of the certificate issued by the Board of Secondary Education with regard to age. The Court held that certificate issued by the Board of Secondary Education in the High School Certificate Examination is much more authentic an acceptable than the affidavit filed by the party Without any supporting document with regard to the date of birth, as the certificate issued by the Board of Secondary Education is on the basis of the declaration made by the candidate in the School Admission Register or on the basis of a Birth Certificate. Relying on the above decision of this Court, it was contended by the Learned Counsel appearing for the respondent No. 1 that declaration having been made by the Appellant that her date of birth is 16.7.1984, the same should be accepted as genuine and correct. The Learned Counsel also relied upon a decision of the Apex Court in the case of State of Punjab v. Mohinder Singh reported in AIR 2005 SCW 1476. In the said decision, the Apex Court has also held that the school records have more probative value than horoscope. Some other decisions were also cited by the Learned Counsel appearing for the respondent No. 1 to show that the date of birth available in the School Admission Register has more probative value than any other document. After perusal of the aforesaid judgment cited by the Learned Counsel for the Respondent No. 1 and on analysis of the same, I am also of the view that the entries made in the School Admission Register have more probative value than the entry made in the Voter's Identity card. There is no evidence to show as to how in the Voter's Identity Card the age of the appellant has been described as 22 years whereas authenticated documents have been exhibited on the behalf of the election-petitioner that the date of birth is 16.7.1984. The reasons given by the appellant that because she was 9 years old at the time of entry in the school, her age has been reduced by 4 years cannot be accepted under any stretch of imagination. I am, therefore, of the view that the Learned District Judge has correctly decided the issue in favour of the election-petitioner.
I do not find any merit in the appeal and the same is dismissed.