Uttarakhand High Court
Smt. Dimpal vs Rajesh Baluni And Others on 9 October, 2015
Equivalent citations: AIR 2016 UTTARAKHAND 17, (2016) 132 REVDEC 47, (2016) 2 UC 867, 2016 (118) ALR SOC 21 (UTR)
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2554 of 2015 (M/S)
Smt. Dimpal ........ Petitioner
versus
Rajesh Baluni & others ........ Respondents
Mr. Rajendra Dobhal, Sr. Advocate assisted by Mr. Devang Dobhal,
Advocate for the petitioner.
Mr. V.K. Kohli, Sr. Advocate assisted by Ms. Rajni Supyal, Advocate for
respondent no. 1.
Mr. Sanjay Bhatt, Advocate for respondent no. 11.
Mr. A.K. Joshi, Addl. C.S.C. for the State / respondent no. 12.
U.C. Dhyani, J. (Oral)
By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 22.09.2015, passed by learned District Judge, Dehradun, in Election Petition no. 83 of 2014.
2) Election for the post of Member of Sherpur Ward, Zila Panchayat, Dehradun was held, in which petitioner was declared elected. Aggrieved against the same, an election petition was filed by respondent no. 1, alleging, among other things, that the petitioner was below 21 years of age. The District Judge / Election Tribunal allowed the election petition of respondent no. 1 and declared the election of the petitioner for the post of Member of Sherpur Ward, Zila Panchayat, Dehradun, as void on the ground that she was not eligible to contest the said election being below 21 years of age, and respondent no. 1 was declared elected for the post of Member of Sherpur Ward, Zila Panchayat, 2 Dehradun, vide judgment and order dated 22.09.2015. Aggrieved against the same, present writ petition has been filed by the petitioner.
3) Section 18-C of the U.P. Kshettra Panchayats and Zila Panchayats Act, 1961, reads as under:
"Right to vote etc. -Except as otherwise provided by or under this act, every person whose name is for the time being, included in the electoral roll for the territorial constituency of a Zila Panchayat shall be entitled to vote at any election thereto and be eligible for election to the membership or to any office in the Zila Panchayat:
Provided that a person who has not completed the age of twenty-one years shall not be qualified to be elected as a member or office bearer of the Zila Panchayat."
It, therefore, follows that only a person who has completed the age of 21 years is alone eligible to contest election as a Member or office bearer of the Zila Panchayat.
4) After hearing learned counsel for the parties and having gone through the documents brought on record, this Court is seized with the following questions:
(a) What was the age of the petitioner when she contested the election of Member of Zila Panchayat?
(b) Was the Election Tribunal justified in declaring respondent no. 1 as elected for the post of Member of Zila Panchayat, Sherpur Ward?3
5) Learned Senior Counsel for the petitioner relies upon Annexure 4 and other documents to submit that the date of birth of the petitioner is 05.05.1992. Learned Senior Counsel heavily relies upon the certificate issued by the Registrar, Births and Deaths to the petitioner, which was supposedly issued on 15.08.1992.
6) Learned Senior Counsel also relies upon paragraph 18 of a decision rendered by Hon'ble Apex Court in CIDCO vs Vasudha Gorakhnath Mandevlekar, (2009) 7 SCC 283, which is being reproduced here-in-
below for facility:
"The deaths and births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent. [based upon Birad Mal Singhvi vs Anand Purohit, AIR 1988 SC 1796]."
7) Paragraph 15 of the Birad Mal Singhvi's case (supra) is also being reproduced here-in-below for convenience:
"The High Court held that in view of the entries contained in the Exs. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in 4 any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding 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 & Ors. v. Jyotish Chandra Acharya Chowdhury, AIR 1941 CAL. 41, 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, Sakhi Ram v. Presiding Officer, Ghanchi Vora Samsuddisn Isabhai vs. State of Gujarat and Radha Kishan Tickoo v. Bhushan Lal Tickoo. 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 of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Sri Jagannath Prasad, K. Paramalali v. I.M. Alangam, Krishna Rao Maharu Patil v. Onkar Narayan Wagh."
8) Learned Senior Counsel for the petitioner also placed reliance upon paragraph 19 of the judgment delivered by Hon'ble Supreme Court in Iswarlal Mohanlal 5 Thakkar vs Paschim Gujarat Vij Company Limited and another, (2014) 6 SCC 434, which reads as under:
"Therefore, in view of the above judgments we have to hold that the High Court has committed a grave error by setting aside the findings recorded on the points of dispute in the award of the Labour Court. A grave miscarriage of justice has been committed against the appellant as the respondent should have accepted the birth certificate as a conclusive proof of age, the same being an entry in the public record as per Section 35 of the Evidence Act, 1872 and the birth certificate mentioned the appellant's date of birth as 27.06.1940, which is the documentary evidence. Therefore, there was no reason to deny him the benefit of the same, instead the respondent Board prematurely terminated the services of the appellant by taking his date of birth as 27.06.1937 which is contrary to the facts and evidence on record. This date of birth is highly improbable as well as impossible as the appellant's elder brother was born on 27.01.1937 as per the school leaving certificate, and there cannot be a mere 5 months' difference between the birth of his elder brother and himself. Therefore, it is apparent that the school leaving certificate cannot be relied upon by the respondent Board and instead, the birth certificate issued by BMC which is the documentary evidence should have been relied upon by the respondent. Further, the date of birth is mentioned as 27.06.1940 in the LIC insurance policy on the basis of which the premium was paid by the respondent to the Life Insurance Corporation on behalf of the appellant. Therefore, it is only just and proper that the respondent should have relied on the birth certificate issued by BMC on the face of all these 6 discrepancies as the same was issued on the order of JMFC."
9) The Hon'ble Supreme Court has held time and again that the date of birth as mentioned in High School certificate will have primacy over other documents. As per High School certificate the date of birth of the petitioner is 05.05.1995 and not 05.05.1992. The same date of birth was mentioned in her Intermediate Examination certificate. It was admitted to the petitioner before the learned Election Tribunal that when she filled up the form of registration of her marriage, her age was 18 years (as on 07.06.2013, the date of marriage and registration thereof on 12.07.2013).
10) Learned Senior Counsel for respondent no. 1 drew attention of this Court towards paragraph 4 of the decision rendered by Hon'ble Allahabad High Court in Meenu vs III Addl. District and Sessions Judge, Kanpur Dehat, (2001) 92 RD 551. The same reads as under:
"It is endubitable fact that the date of birth of the petitioner as incorporated in the High School certificate is 05.03.1981. Nomination papers were filed on 16.06.2000. Only those persons who have completed 21 years of age on the date of nomination are entitled to contest the election. On 16.06.2000, the petitioner, according to her date of birth as recorded in the High School certificate was less than 21 years of age. The petitioner does not rely on the date of birth as recorded in the High School Certificate as its correctness was challenged. The petitioner, therefore, got herself 7 medically examined by the Chief Medical Officer who had issued a certificate on 04.08.2000 putting the estimated age of the petitioner as 23 years. On the strength of the medical opinion, the petitioner claims that her age on the date of filing of nomination paper was above 21 years. It would not be out of place to mention that the medical opinion can never be precise or exact. It given approximate idea of the age based on the ossification test. In such opinion, there is always a variation of 2-3 years on both the sides. On the face of the date of birth as recorded in the High School certificate, the medical opinion cannot prevail. There is a decision of this Court on the point reported in 1993 R.D. 119 (H.C.) Kuber Nath Tewari v. Additional District Judge, Battia and others, in which it was held that the date of birth given in the High School certificate has to be accepted as correct date of birth for the purpose of deciding a election petition. If the date of birth of the petitioner as recorded in the High School certificate is accepted in that event she was undoubtedly less than 21 years of age on the date of filing of the nomination paper and accordingly, she was not eligible to contest the election. Her election, therefore, has been rightly held to be void."
11) In Eastern Coal Fields Limited and others vs Bajrangi Rabidas, (2014) 13 SCC 681, Hon'ble Apex Court has held in paragraph 17 of the judgment that there can be no iota of doubt that the date of birth mentioned in matriculation or higher secondary certificate has to be accepted as authentic.
812) In Manoj Kumar vs Government of NCT of Delhi and others (2010) 11 SCC 702, in paragraph 12 of the decision it was held by Hon'ble Supreme Court that while the matriculation certificate is a strong material, other equally relevant material cannot be ignored, particularly when the matriculation certificate has been corrected. In the instant case, as per matriculation certificate, the date of birth of the petitioner is 05.05.1995.
13) In Shah Nawaz vs State of Uttar Pradesh and another, (2011) 13 SCC 751, it was observed by Hon'ble Apex Court that medical opinion from Medical Board should be sought only when matriculation certificate or school certificate or any birth certificate issued by a corporation or by any panchayat or municipality is not available. In the instant case, the matriculation certificate is available to ascertain the date of birth of the petitioner.
14) Learned Election Tribunal has also appropriately discussed the oral evidence led by the parties to come to the conclusion that the petitioner was below 21 years when she contested the election of Member of Zila Panchayat. Needless to say that the petitioner has moved an application for correction of her date of birth in school records before the District Education Officer, which application has not been decided as yet, and is pending consideration before the Education Authorities. The fact remains that as on date, according to the High School certificate and Intermediate Examination certificate, her date of birth is 05.05.1995 and not 05.05.1992.
915) Learned Election Tribunal has also discussed the provisions of Juvenile Justice (Care and Protection of Children) Rules, 2007, to hold that a medical certificate would be taken into consideration only when the High School certificate is not there. There is no reason to interfere with the said finding of learned Election Tribunal, whereby the learned Tribunal concluded that the age of the petitioner, on the date when she contested the election of Member of Zila Panchayat, was below 21 years. Otherwise also, there is plethora of oral evidence also, to maintain that the petitioner was underage on the date when she contested the said election. Learned Court below has appropriately dealt with such evidence. This Court need not repeat the same.
16) This Court, therefore, affirms the finding of the learned Election Tribunal so far as the age of the petitioner is concerned. The first point of determination is thus answered in negative, i.e., in favour of respondent no. 1 and against the petitioner.
17) Learned Senior Counsel for the petitioner submits, as regard the second point of determination, that learned Election Tribunal was not correct in declaring respondent no. 1 as elected for the post of Member of Zila Panchayat in view of paragraph 14 of the judgment of Hon'ble Supreme Court rendered in the case of Prakash Khandre vs Dr. Vijaya Kumar Khandre and others, AIR 2002 SC 2345. Paragraph 14 of the said decision is of 10 importance and is being reproduced here-in-below for convenient:
"However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected."
18) It will also be useful to quote herein paragraph 8 of the judgment rendered by the Division Bench of Hon'ble Allahabad High Court in Nand Kishore vs State Election Commission through its Chief Election Commissioner, Lucknow and others, (2003) 1 UPLBEC 158, as below:
"In our opinion if there are more than 2 candidates there has to be a fresh election, and the person getting second highest number of votes cannot be declared to be elected. This is because if the voters had known that the 11 person who got the highest number of votes was disqualified to contest the election it is quite possible they would have voted for the person who got the third highest number of votes or some other candidate other than the person who got the second highest number of votes. As observed by the Supreme Court in Prakash Khandre case (supra) "if the disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability."
19) It is necessary for this Court to quote here-in- below some of the important provisions of the U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994 (for short hereinafter referred to as Election Disputes Rules, 1994), which read as under:
6. Relief that may be claimed by the petitioner. -
A petitioner may claim any or all of the following reliefs:
(a) that the choosing of a person as member of the Zila Panchayat is void, or that the member concerned has ceased to remain eligible for such membership; and
(b) that the choosing of a person as a member is void and that he himself or any other candidate has been duly chosen.
8. Recrimination when seat claimed. -When in any petition it is claimed that the petitioner or any other candidate be declared to have been duly chosen in place of the returned candidate, any respondent may give evidence against such claim as if he had presented a 12 petition against the choosing of the person in whose favour the claim is made.
13. Orders of the Judge. -(1)(a) If the petition is found to be frivolous, the Judge shall dismiss the petition and award costs at his discretion.
(b) An order for costs passed by the Judge shall be executed by him on an application made in that behalf in the same manner as if it were a decree passed by him in a suit.
(2) If the Judge finds that the member against whom the petition has been filed was wrongly chosen under clause (b) of sub-section (1) of Section 18 has ceased to remain eligible for being chosen a member of the Zila Panchayat, he shall either -
(a) declare a casual vacancy to have occurred; or
(b) declare another candidate to have been duly chosen for the purposes of Section 18.
20) The aforesaid provisions are almost pari materia to the provisions contained in the Representation of the People Act, 1951. Relevant provisions of the same are being quoted here-in-below for convenience:
97. Recrimination when seat claimed. -(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election;
Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such 13 evidence unless he has, within fourteen days from the date of [commencement of the trial], given notice to [the High Court] of his intention to do so and has also given the security and the further security referred to in section 117 and 118 respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner.
98. Decision of [the High Court]. -At the conclusion of the trial of an election petition [the High Court] shall make an order -
(a) dismissing the election petition; or
(b) declaring the election of [all or any of the returned candidates] to be void; or
(c) declaring the election of [all or any of the returned candidates] to be void and the petitioner or any other candidate to have been duly elected."
101. Grounds for which a candidate other than the returned candidate may be declared to have been elected. -If any person who has lodged a petition has, in addition to calling inquestion the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and [the High Court] is of opinion -
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) That but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, 14 [the High Court] shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.
21) The decision rendered by Hon'ble Apex Court in Prakash Khandre's case (supra) is based upon the Representation of the People Act, 1951, and this Court has already observed above that the provisions of Election Disputes Rules, 1994 are almost pari materia to the provisions of the Representation of the People Act, 1951 and, therefore, the decision rendered by Hon'ble Apex Court in Prakash Khandre's case (supra) will squarely cover the present dispute.
22) Therefore, this Court is of the opinion that learned Election Tribunal has erred in declaring respondent no. 1 as elected to the post of Member of Zila Panchayat. That part of the impugned judgment, whereby respondent no. 1 was declared elected for the post of Member of Zila Panchayat should, therefore, be set aside.
23) Writ petition is partly allowed and partly dismissed. That part of the impugned order, whereby the election of the petitioner was declared as void on the ground that she was below 21 years of age, is hereby affirmed, but the second part of the order, whereby respondent no. 1 was declared elected for the post of Member of Zila Panchayat, is hereby set aside. As per the dictate of Rule 13(2)(a) of the U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 15 1994, if the Judge finds that the member against whom the petition has been filed was wrongly chosen under clause (b) of sub-section (1) of Section 18 has ceased to remain eligible for being chosen a member of the Zila Panchayat, he shall either declare a casual vacancy to have occurred; or
(b) declare another candidate to have been duly chosen for the purposes of Section 18.
24) Since according to the dictum of Hon'ble Supreme Court in Prakash Khandre's case (supra), condition (b) laid down under sub-rule (2) of Rule 13 of the Election Disputes Rules, 1994, could not have been made applicable to the case in hand, therefore, this Court holds in respect of such an election, that a casual vacancy has occurred. Respondent no. 11 (State Election Commission) is, therefore, directed to conduct a fresh election for the post of Member of Sherpur Ward, Zila Panchayat, Dehradun, in accordance with law.
Stay Application no. 11779 of 2015 also stands disposed of.
(U.C. Dhyani, J.) Dt. October 09, 2015 Negi