Jharkhand High Court
Krishna Nand Tripathi vs Alok Chaurasiya on 18 August, 2023
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Election Petition No. 02 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
E.P. No. 02 of 2020
Krishna Nand Tripathi, aged about -48 years, S/o Jag Narain Tripathi, r/o
Village- Semar Tand, Tola Redma, P.O. & P.S.- Daltonganj, Dist. Palamu,
State Jharkhand
..... Petitioner
Versus
Alok Chaurasiya, S/o late Anil Kumar Chaurasya, r/o Village- Purab Tola,
Majhigama, P.O.- Pathara, P.S. Chainpur, Dist. Palamu
..... Respondent
For the Petitioner : Mr. Salman Khurshid, Sr. Advocate : Mr. Mahesh Tewari, Advocate : Ms. Azra Rehman, Advocate : Mr. Abhishek Kr. Dubey, Advocate : Mr. Ankur Anand, Advocate For the Respondent : Mr. V.P. Singh, Sr. Advocate : Mr. Arun Kumar, Advocate : Mrs. Bandana Kr. Sinha, Advocate : Mr. B.R. Rochan, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY C.A.V. on 19.05.2023 Pronounced on :18.08.2023 Anil Kumar Choudhary, J.:-
1. Heard the parties.
2. This Election Petition has been filed by the Petitioner under Section 80, 80(A) and 81 of the Representation of the People Act, 1951 1 Election Petition No. 02 of 2020 whereby and where under the Petitioner seeks to challenge the election of sole Respondent namely Alok Chaurasia, who has been declared elected as a member of the Jharkhand Assembly from 76, Daltonganj Assembly Constituency, Election of which was held on 30th November, 2019 and the results of the said Election were declared on 23rd December, 2019.
Pleadings of the petitioner
3. The case of the Petitioner in brief is that the election to 76 Daltonganj Assembly Constituency was held on 30.11.2019. The result of the said election was declared on 23.12.2009. The notification for the election was issued by the Returning Officer being the S.D.O., Sadar, Medininagar, Palamau on 06.11.2019. The last date for filing nomination papers was 13.11.2019. In accordance with the said election program, the Petitioner, the Respondent and other candidates filed the nomination papers before the Returning Officer. During the scrutiny of the nomination papers, the Returning Officer accepted the nomination papers of 15 candidates to be valid. Consequent upon that, the Returning Officer published the names of the contesting candidates in prescribed form and allotted symbols to them.
4. At the time of scrutiny of nomination papers, the Election Petitioner raised an objection through his election agent before the Returning Officer, to the effect that the Respondent namely Alok Chaurasia was disqualified to contest the election, as he was underage, as his age was below 25 years and under Article 173 (b) of 2 Election Petition No. 02 of 2020 the Constitution of India for a candidate to contest the election of the Member of the Legislative Assembly, the minimum age required, each 25 years. It is next submitted by the Petitioner that the nomination paper of the sole Respondent was illegally accepted by the Returning Officer rejecting the objections raised by the Petitioner through the election agent namely Madan Tiwari.
5. It is specifically pleaded by the Petitioner that the sole Respondent was born on 15 February, 1995. The Petitioner next pleaded that the sole Respondent was admitted in Class IX, in the year 2008 at Giriwar High School, Medininagar, Palamau and the date of birth recorded in the school register was 15.02.1995.
6. The Petitioner, then pleaded that in the year 2009 the Respondent registered with Jharkhand Academic Council for Matric Board Examination and at the time of such registration, the Respondent entered his date of birth as 15.02.1995. Accordingly, the said date of birth was mentioned in the Annual Secondary Examination 2010, Registration Card issued by the Jharkhand Academic Council. The Registration Card contained note- III, to the effect that the mistake, if any, should be corrected within a period of 15 days from the date of receipt of the said Registration Card. But no correction of the said date of birth of the Respondent was made within the stipulated period of 15 days. Thereafter, the Respondent was issued Admission Card for the Annual Secondary Examination- 2010, which is the Class X Board Examination, by the Jharkhand Academic Council mentioning the date of birth of the Respondent as 3 Election Petition No. 02 of 2020 15.02.1995. The Respondent appeared in the said examination with the said Admission Card. In the Marks Statement of 2010 Annual Secondary Examination of the Respondent also his date of birth has been mentioned as 15.02.1995.
7. In the year 2010, the Respondent was admitted in I.Sc. at G.L.A college, Medininagar, Palamau and his date of birth was filled as 15.02.1995. The relevant form was countersigned by the father of the Respondent namely Anil Chaurasia under oath. The Character Certificate, School Leaving Certificate, counter foil of School Leaving Certificate of the Respondent issued by the Headmaster of Giriwar High School, Medininagar, Palamau also indicated the date of birth of the Respondent to be 15.02.1995.
8. The Respondent did not have any Voter's Identity Card nor his name was appearing in the voter's list in the year 2009, as by the year 2009 the age of the Respondent was below 18 years.
9. The father of the Respondent namely Anil Chaurasia died on 16.06.2012 and on that day the age of the Respondent was 17 years. During his life time Anil Chaurasia contested Assembly Elections, 4 times from the Daltonganj assembly constituency, the last of such elections being 2009.
10. In order to contest the assembly elections in the year 2014, in place of his father and to defeat the constitutional mandate of the minimum age of 25 years for contesting an election of Member of Legislative Assembly, the Respondent applied for change of his date of birth before the Jharkhand Academic Council by the application 4 Election Petition No. 02 of 2020 dated 28.08.2012. In support of his application the Respondent annexed following two documents:-
i) Copy of his voter's identity card having EPIC number KGV1703202;
ii) An unsigned affidavit allegedly sworn in by his mother.
11. The Petitioner asserted that the voter's identity card, the copy of which was submitted by the Respondent along with his said application dated 28.08.2012 was a forged one because the said EPIC number KGV1703202 belongs to Salendra Kumar Chaurasia. To substantiate his contention that the EPIC number KGV1703202 is a forged one, the Petitioner further pleaded that the EPIC number of the Respondent, as mentioned in the voter's list of 2014 is KGV7930001 and a person cannot have 2 different EPIC numbers.
12. The Jharkhand Academic Council did not change the date of birth of this Respondent on the basis of his application dated 28.08.2012. But on its own Jharkhand Academic Council called for the school records from Giriwar High School, after a period of 8 months. Thereafter Jharkhand Academic Council changed the date of birth of the Respondent on the basis of certified copy of school register of Giriwar High School, Medininagar as also the Transfer Certificate issued by A.A. High School, Guriadamar, Lesliganj, Palamau; from 15.02.1995 to 15.02.1988. The Petitioner asserted that such change of date of birth by the Jharkhand Academic Council is illegal, arbitrary and against the settled principles of law. 5
Election Petition No. 02 of 2020
13. The Petitioner further asserted that the school register of Giriwar High School, Medininagar pertaining to the admission of the Respondent has been tampered with and the Transfer Certificate issued by the A.A. High School, Guriadamar, Lesliganj, Palamau showing the date of birth of the Respondent to be 15.02.1988, has been created afterwards. The date of birth of the Respondent in the documents relating to the Jharkhand Academic Council was subsequently changed from 15.02.1995 to 15.02.1988.
14. The date of birth of the Respondent in the School leaving certificate and the counter foil thereof as also in the Character Certificate, issued from Giriwar High School, Medininagar, still contains the date of birth of the Respondent as 15.02.1995. The Admission Form submitted at G.L.A. College, Lesliganj, Palamau filled in by the Respondent which was duly signed by his father, also contains his date of birth to be 15.02.1995.
15. The name of the Respondent was enrolled in the voter's list for the 1st time in the year 2014 on the basis of his oral declaration to the effect that his age is 25 years. But in his nomination paper for the said election of Member of Legislative Assembly on 13.11.2019, the Respondent filled his age as 29 years, although as per the voter list of the year 2014, the age of the Respondent ought to have been more than 30 years and as per his alleged date of birth i.e., 15.02.1988, his age ought to have been more than 31 years. The Petitioner contended that the Respondent has sworn in false affidavit by mentioning his wrong age.
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Election Petition No. 02 of 2020
16. The Petitioner next pleaded that the S.D.O, Sadar, Medininagar-cum- Returning Officer rejected the objections raised by the election agent of the Petitioner regarding the Respondent being underage on the ground that in the passing certificate of Secondary Examination of the Respondent, his date of birth has been mentioned as 15.02.1988 and in the part No. 86 of electoral roll 2019, the age of the Respondent has been mentioned as 29 years, hence the Respondent is more than of the qualifying age; thereby ignoring the School Leaving Certificate of the Respondent, produced by the election agent of the Petitioner, where the age of the Respondent was mentioned as 15.02.1995.
17. The Petitioner asserted that the order dated 21.11.2019, passed by the Returning Officer is illegal, arbitrary, malafide, unreasonable and unsustainable, therefore, the election of the Respondent is fit to be declared void under section 100 (1) (d) (i), 100 (1) (d) (iv) and 100 (1) (a) of the Representation of the People Act, 1951, as prayed for by the Petitioner and as already indicated above, in the foregoing paragraphs of this judgment.
Pleadings of the Respondent
18. The written statement has been filed by the Respondent on 17.12.2021 in which the Respondents challenged the maintainability of the election petition on the following technical grounds:-
i) the petition has been filed beyond the period of limitation.
ii) The Election Petitioner has not presented the Election Petitioner personally, in the court.7
Election Petition No. 02 of 2020
iii) No correct and authenticated copy of the election petition has been served upon the Respondent.
iv) The copy of the election petition served upon the Respondent is not containing the endorsement "The copy of the election petition is attested to be true copy of the original election petition".
v) The copy of the election petition served upon the Respondent was not containing the signature of the Election Petitioner on any of the pages either of the election petition or on affidavits or on enclosures/annexures attached with the election petition, as required under section 83 (1) (c) of the Representation of the People Act, 1951.
vi) Though all the 15 annexures to the election petition are required to be supported with the affidavit and verification separately under section 83 (2) of the Representation of the People Act, 1951, but the same having not done; there is violation of section 81 (3) of the Representation of the People Act, 1951.
vii) There is no material on record to show that the election petition of the election petitioner has accompanied sufficient number of copy/copies of election petition duly attested by him, as required under Section 81(3) of the Representation of the People Act, 1951.
viii) The election petition is barred by the principle of res judicata;
as the cause of action and the issues raised in this election petition are mostly and substantially the same as was raised 8 Election Petition No. 02 of 2020 in Election Petition No.11 of 2015, which was between the present Election Petitioner and the present, Respondent of this petition and the said Election Petition No.11 of 2015 has already been heard and finally decided against the Election Petitioner, by this court on 20.12.2019, more so because the facts pleaded in paragraphs 9 to 29 of the present election petition are substantially the same as pleaded and raised in Election Petition No.11 of 2015.
ix) The right to challenge the corrections made in the date of birth of the Respondent accrued much prior to the start of the "Election Process," and much prior to issuance of election notification. Hence such dispute of date of birth do not come within the meaning of "Election Dispute" rather the said dispute being a "Common Law Dispute" such dispute is beyond the scope of Election Petition and Election Trial.
x) The present election petition has mainly raised the issue and dispute about the correction of date of birth of the Respondent which was ordered to be corrected on 08.02.2014 and finally having been corrected on 12.02.2014 by a competent and statutory authority being Jharkhand Academic Council much prior to the issuance of election notification on 06.11.2019. On this ground also, the issues are beyond the scope of election petition.
xi) Since the relief of declaring the date of birth of the respondent to be incorrect comes under the "Common Law Dispute"; the same cannot be adjudicated as an "Election Dispute". 9
Election Petition No. 02 of 2020
xii) Since, in an election petition, disputes relating to any incident or facts which took place between the period from the date of issuance of notification for election, till the announcement of the result of such election; hence this election petition in which a cause of action anterior to the issuance of notification is challenged, the same cannot be adjudicated in this election petition.
xiii) The Petitioner having not stated or given "Concise Statement of Material Facts" as required under section 83 (1) (a) of the Representation of the People Act, 1951 and further as the Election Petitioner has made and stated vague, false, incorrect, distorted and wrong facts, besides not making any clear pleading and having submitted false statements, hence, the Petitioner is liable to be dismissed on that score also.
xiv) In the absence of any cause of action having been stated in the election petition; the election petition is not maintainable.
xv) The affidavits and verifications of the election petition are not in accordance with facts and law.
19. Besides the objection on the maintainability of the election petition, the Respondent further denied all the statements made in the election petition except the ones which were specifically admitted in the written statement. The Respondent next pleaded that the Petitioner has suppressed the material facts of earlier filed Election Petition No. 11 of 2015, raising mostly and substantially the same issues about the age and date of birth of the Respondent and the said 10 Election Petition No. 02 of 2020 election petition was heard and decided finally against the Election Petitioner.
20. The Respondent next pleaded that though it is the case of the Petitioner that objection about the case of the Respondent was raised before the Returning Officer at the time of scrutiny of nomination papers which, according to the Petitioner took place on 14.11.2019, but such pleading of the Petitioner is not in consonance with the documents filed by him in shape of annexure-10 to the election petition, which shows that the objection petition was filed on 19.11.2019; i.e., after the scrutiny and acceptance of the nomination papers of the candidates, including the Respondent. Further, in the said annexure-10 the date of birth of the Respondent has been mentioned as 15.02.1985, according to which the age of the Respondent was more than 34 years at the time of the election in question.
21. The Respondent asserted that his date of birth is 15th of February, 1988 and not 15th of February, 1995 as claimed by the Election Petitioner. Hence, the Respondent was qualified to contest the election in question. The Respondent next asserted that his date of birth was recorded in the school register of Giriwar High School, Medininagar as 15 February, 1988 and not 15 February, 1995 as claimed by the Election Petitioner.
22. The Respondent also pleaded that since the source from which the Petitioner got the Annexures-1 to 6/1 has not been disclosed and the same are not supported by separate affidavit and 11 Election Petition No. 02 of 2020 verification, hence those documents should not be taken into consideration by this court.
23. As the explanation to the discrepancy in the date of birth and wrong recording of the same in some of his educational documents; the Respondent pleaded that he comes from a poor family and was a resident of a backward and remote village. His early education took place in villages. On 16.05.2007, his uncle and guardian namely Sri Sunil Chaurasia, got the Respondent admitted in A.A. High School, Guriadamar, Lesliganj, Palamau in Class VIII. At the time of such admission, the "Admission-cum- Declaration Form" of the Respondent was submitted in the said school mentioning his date of birth as 15.02.1988. The Respondent was a student of Class VIII B. While the Respondent was the student of Class IX in the said A.A. High School, Guriadamar, Lesliganj, Palamau, he took transfer certificate from the said school on 15.04.2008 and got admitted in Giriwar High School, Medininagar, which school was taken over by the government. In all the school admission register and transfer certificate the date of birth of the Respondent was recorded as 15.02.1988. But at the time of registration for Secondary Examination, due to inadvertence, the Respondent filled his date of birth as 15.02.1995. The Respondent realised his mistake at the time of filling the form for Board's Examination but as at the time, there was no sufficient time to get the date of birth corrected and the Respondent was also not fully aware about the procedure to get his date of birth corrected; therefore, the Respondent finding no alternative filled the 12 Election Petition No. 02 of 2020 form for the Board's Examination with the wrong date of birth. After publication of the result of the Board's Examination, School leaving certificate was issued by the Giriwar High School, Medininagar containing his incorrect date of birth to be 15.02.1995 and as the Respondent took admission in GLA college on the basis of the said school leaving certificate; so the incorrect date of birth of the Respondent was also entered in the Admission Register of GLA college. Because of the serious illness of his father which ultimately resulted in his death, the Petitioner could not immediately get his date of birth corrected.
24. Later on, after coming to know about the procedure for correction of the date of birth in his certificates; the Respondent, deposited the required fee in the bank in the account of Jharkhand Academic Council, which is the statutory competent authority for such correction and submitted an application form to the Jharkhand Academic Council through the Giriwar High School, Medininagar. Such application of the Respondent was received by the Jharkhand Academic Council on 28.08.2012. The Jharkhand Academic Council, after calling for the various documents/admission registers from previous schools and after making detailed enquiry in the matter, ordered for correction of the date of birth of the Respondent in his certificates on 08.02.2014. Accordingly, the date of birth in all the relevant certificates were corrected on 12.02.2014, much before the start of the election process. Thus, there is no merit in the contention of the Petitioner that the Respondent applied for correction of date of 13 Election Petition No. 02 of 2020 birth in order to defeat the constitutional mandate of attaining the age of 25 years at the time of election as Member of Legislative Assembly as provided for in article 173 (b) of the Constitution of India. The Respondent then pleaded that he never applied for change of his date of birth, rather he applied for correction of his date of birth, which was inadvertently, wrongly mentioned in his certificates and documents. The Respondent denied the allegation of submitting application for correction of his date of birth based on forged documents. The Respondent next pleaded that there is no document as annexure -7/3 in the election petition as pleaded in paragraph-24 of the election petition.
25. The Respondent next pleaded that his application for correction of his date of birth was forwarded by the Headmaster of the Giriwar High School, Medininagar in the month of August, 2012 to the Jharkhand Academic Council. The Respondent, deposited the required fee of 400 in the bank account of Jharkhand Academic Council. The application for correction of the date of birth of the Respondent was received by the Jharkhand Academic Council on 28.08.2012. The Jharkhand Academic Council conducted thorough enquiry by calling for the reports and documents from previous schools of the Respondent. Under the certification/verification of the District Education Officer and only thereafter such thorough exercise, the correction in the date of birth of the Respondent was made on 12.02.2014.
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Election Petition No. 02 of 2020
26. The Respondent then pleaded that as the statement/evidence of the High Officers of the Jharkhand Academic Council in Election Petition No.11 of 2015 has remained unchallenged by the Election Petitioner either by filing any petition in the said case or by making any suggestion to those witnesses at the time of their deposition in the said case, hence, now the Election Petitioner cannot and should not be permitted to re-agitate the said issue.
27. The Respondent denied the contention of the Election Petitioner that the Transfer Certificate issued by the A.A. High School, Guriadamar, Lesliganj, Palamau was a tampered document. The Respondent asserted that the said Transfer Certificate is a real, valid and genuine document. The Respondent then asserted that correction of his date of birth has been made in all relevant documents and denied the contention of the Election Petitioner that in some of the documents, correction of date of birth of the Respondent has not yet been made.
28. The Respondent further pleaded that the own document of the Election Petitioner being the Annexure-10 of this Election Petitioner shows the age of the Respondent to be more than 34 years on the date of the relevant election so in view of this admission of the Election Petitioner, this petition on the ground that the Respondent did not attain the age of 25 years on the date of election is misconceived and is liable to be dismissed.
29. Lastly, it was pleaded by the Respondent that the Election Petitioner is not entitled to any relief claimed by him against the 15 Election Petition No. 02 of 2020 Respondent in the present election petition, hence the Election Petition being without any merit is fit to be rejected with compensatory cost to be awarded the Respondent. Issues
30. On the basis of rival pleadings, following issues have been settled by this Court vide order dated 09.02.2022:-
(i) Whether the election petition as framed and filed is maintainable?
(ii) Whether the election petition is barred by limitation?
(iii) Whether the election petition is fit to be rejected for no correct and authenticated copy of the election petition being served upon the Respondent?
(iv) Whether the election petition is barred by principle of res judicata?
(v) Whether the issue of date of birth of this Respondent is beyond the scope of an election petition/ dispute/trial as the same had admittedly taken place earlier to the date of notification for election?
(vi) Whether the Petitioner has no locus standi to file the election petition?
(vii) Whether the date of birth of the Respondent is 15.02.1995 or 15.02.1988?
(viii) Whether the date of birth of the Respondent in the school register of Giriwar High School was recorded as 15.02.1995 or 15.02.1988?
(ix) Whether the early education of the Respondent was in villages?
(x) Whether at the time of the admission of the Respondent in A.A. High School, Guria Damar, Lesliganj, Palamau in Class-VIII in the admission-cum-declaration form submitted to the school, the uncle and guardian of the 16 Election Petition No. 02 of 2020 Respondent namely Sri Sunil Chaurasia disclosed his date of birth to be 15.02.1988?
(xi) Whether the Respondent while being the student of Class-
IX of A.A. High School, Guria Damar, Lesliganj, Palamau took transfer certificate from the said school on 15.04.2008 and took admission in Government taken over Giriwar High School, Daltonganj and in all above school admission register and/ or transfer certificate his date of birth was correctly recorded as 15.02.1988?
(xii) Whether the Respondent was not able to get his date of birth as 15.02.1995 mentioned in the school leaving certificate issued by the Giriwar High School corrected due to serious illness of his father who later on died?
(xiii) Whether the Respondent submitted an application for correction of his date of birth and after making detailed enquiry, the Jharkhand Academic Council has corrected all the relevant certificates of the Respondent on 12.02.2014?
(xiv) Whether the transfer certificate issued by the A.A. High School, Guria Damar, Lesliganj, Palamau to the Respondent is a tampered document?
(xv) Whether the Respondent was issued admission card for annual secondary examination 2010 for Class-X Board Examination by Jharkhand Academic Council mentioning his date of birth as 15.02.1995 which was also signed by the Headmaster, Giriwar High School, Daltonganj and whether the marks statement of 2010 Annual Secondary Examination of the Respondent dated 10.05.2010 shows that the date of birth of the Respondent is 15.02.1995? (xvi) Whether the Respondent was admitted in I.Sc. in G.L.A. College, Medininagar and his date of birth was filled up as 15.02.1995 in the Admission Form and the Character Certificate issued by the Headmaster of Giriwar Higher Secondary School, Medininagar, Palamau also indicates the date of birth of the Respondent is 15.02.1995?
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Election Petition No. 02 of 2020 (xvii) Whether the Respondent was not having any Voter ID Card in the year 2009 and his name was not existing in the voter list issued by the Election Commission of India in the year 2009 as he was less than 18 years of age and as such not eligible to vote in the Assembly Election 2009? (xviii) Whether the Voter ID Card submitted by the Respondent before the Jharkhand Academic Council for correction of his date of birth upon verification was found to have been issued in the name of Shailendra Kumar Chaurasiya? (xix) Whether the Respondent initiated for the change of his date of birth by fraudulent means and by committing forgery? (xx) Whether the Jharkhand Academic Council did not change the date of birth of the Respondent on the basis of the application dated 28.08.2012?
(xxi) Whether the school register of Giriwar High School pertaining to admission of the Respondent has been tampered with?
(xxii) Whether the election of the Respondent as a Member of Jharkhand Assembly is fit to be declared void as he was not qualified to be a member of 76 Daltonganj Assembly Constituency under Section 100 (1) (a) of the Representation of People Act, 1951?
(xxiii) Whether the Respondent was below the age in terms of the Article 173 of the Constitution of India, 1950 on the date of scrutiny of his nomination paper for election to 76 Daltonganj Assembly Constituency?
(xxiv) To what other relief or reliefs the Petitioner is entitled to? Evidence of Petitioner
31. In support of its case the Election Petitioner examined the following witnesses:-
(i) P.W.1- Nand Gopal Tripathy (Cultivator) examined on 07.03.2022. He has stated about obtaining the certified 18 Election Petition No. 02 of 2020 copy of the documents regarding the date of birth of the Respondent which were marked exhibit 1 & 2, from the Jharkhand Academic Council and exhibit 3 & 4. From the District Election Officer-cum-Deputy Commissioner, Palamu under the Right to Information Act.
In his cross-examination he has stated that he is the younger brother of the Petitioner; living jointly with him. He denied the suggestion that he did not produce exhibit 1 to 4 in his deposition as a witness in Election Petition No. 11 of 2015.
(ii) P.W.2- Dhruv Kumar Pandey (P.A. of Krishna Nand Tripathy) examined on 29.03.2022. He deposed that his examination in chief has been filed in the shape of an affidavit. On being shown the extract of the admission register of Giriwar High School, Medininagar, which was marked Ext. X for identification, the PW 2 has stated that he had received the said document from Giriwar High School, Medininagar but he does not know the name of the person who gave the same to him.
In his cross-examination, he denied this suggestion that he has come to court for deposing falsehood.
(iii) P.W.3- Krishna Nand Tripathy (Petitioner) examined on 05.4.2022. He deposed that the Respondent was below 25 years of age at the time of the filing of the nomination papers. The returning officer did not pay any heed to the objections raised by the election agent of the Election Petitioner on the date of scrutiny of the nomination paper. The Respondent registered for his Class X Board Examination from Giriwar High School, Medininagar in the year 2009. In the Admission Card issued by Jharkhand Academic Council for the Annual Secondary Examination-2010, the date of birth of the Respondent has been mentioned as 15.02.1995. After finding the details 19 Election Petition No. 02 of 2020 entered in the Admission Card and Registration Slip issued by the Jharkhand Academic Council wherein the date of birth of the Respondent was mentioned as 15.02.1995, the Respondent appeared for the Board Examination in the year 2010. He also supported the averments made in his election petition. The evidence given by Shri Kashi Prasad as principal of A.A. High School, Guriadamar, Lesliganj, Palamau was falsified by the certificate given under the RTI Act. All the education certificates of the Respondent issued by the Giriwar High School, Medininagar and Tabulation Register of Jharkhand Academic Council was having the date of birth of the Respondent as 15.02.1995. Since the voter list of the year 2009 of 76, Daltonganj constituency did not contain the name of the Respondent so from that it is apparent, that the Respondent had not attained the age of 18 years in the year 2009. He further deposed about the contents of several documents in his examination in chief filed in shape of an affidavit. It is then stated that the change of date of birth of the Respondent from 15.02.1995 to 15.02.1988 has been made in an illegal manner to achieve the object of reaching the age of 25 years for contesting the assembly elections after the death of his father in the month of June 2012. There is no provision in law, rules or regulations for alteration of date of birth after so many years and thereby enhancing the age of the candidate by 7 years. Neither the father nor the mother of the Respondent ever applied for the change of his date of birth. Since there was doubt in the minds of the Respondent and his mother that the candidature of the Respondent may be rejected as he has not attained the age of 25 years, hence, the mother of the Respondent also filed the nomination papers from 76, Daltonganj assembly 20 Election Petition No. 02 of 2020 constituency in the year 2014. In her nomination paper, the mother of the Respondent has shown her age to be 41 years on 05.11.2014 which implies that at the time of birth of the Respondent on 15.02.1988, the age of his mother was 17. In the year 2014, when the Respondent was declared successful from 76, Daltonganj assembly constituency, he was aged 19 years. On being proved by the P.W. 3, the Judgment of the Hon'ble Supreme Court of India has been marked Exhibit 5.
In his cross-examination the P.W. 3 has stated that the grounds taken by him in this election petition was also taken by him in election petition number 11 of 2015. Apart from this petition and election petition No. 11 of 2015, the P.W. 3 has not filed any other election petition. He agreed with the suggestion of the Respondent that in election petition number 11 of 2015 P.W. 6 and P.W. 8 who are respectively the Secretary and Deputy Secretary of the Jharkhand Academic Council stated that there was some error in the date of birth of the Respondent which was corrected from 15.02.1995 to 15.02.1988. The secretary and the Deputy Secretary, in that case, produced some files but he does not remember the details. The P.W. 3 did not file any objection to the entry of the Respondent in the voter list of the year 2014. The P.W. 3 further stated that he also filed election petition number 02 of 2015. The P.W. 3 volunteered that since the said election petition was not presented personally to the Registrar General of this Court, hence, the Petitioner was given liberty by the court to withdraw the same and file the same in accordance with law. He denied the suggestion that he deposed by saying that he filed only two elections petitions. On being confronted, he accepted the certified copy of the orders of election petition no. 02 of 2015, which were marked 21 Election Petition No. 02 of 2020 exhibit A and A/1.
(iv) P.W.4- Niraj Kumar Dwivedi (I/c Headmaster of Giriwar +2 High School, Palamau at Daltonganj) examined on 10.05.2022. On looking at the documents marked as X/1, X/2 and X/3 the witness did not identify the same. In his cross-examination he has stated that he does not know what happened in his school in respect of administration matters prior to 03.09.2021. He does not have any knowledge about the issue of any transfer certificate from their school prior to 03.09.2021.
(v) P.W.5- Irkan John Khalkho (Principal G.L.A. College, Medininagar, Palamau) examined on 07.06.2022. He identified the signature of the Public Information Officer of his college on the information furnished by his college which was marked Exhibit 7. He was neither the principal nor posted in the college, when the information was given. He identified the signature of the teacher of his college on the Admission Form submitted by the Respondent at the time of admission in Class XI which was marked Exhibit 8. The School leaving certificate and character certificate respectively of the Respondent, on being identified by the witness was marked X/5 and X/6 respectively for identification. In his cross-examination, he identified the signature of the then principal on the character certificate issued in the name of Respondent by his college, which has been marked Exhibit B. He cannot say who was the information Officer in his college in the year 2014. He had never worked with the person whose signature has been marked Exhibit 7 nor had seen the signature earlier. He also never met the said person before joining the college. He was not working with the teacher whose signature has been marked Exhibit 8 in 2010 or 22 Election Petition No. 02 of 2020 before that. He did not bring any document from his college to be produced in court.
To a question from court, the witness stated that the person whose signature has been marked Exhibit 7, retired about a year ago, and the person whose signature has been marked Exhibit 8 is still in service.
(vi) P.W.6- Mahip Kumar Singh (Secretary Jharkhand Academic Council, Ranchi) examined on 19.07.2022. He identified the application dated 28.08.2012, filed by the Respondent addressed to the Secretary, Jharkhand Academic Council, which was marked Exhibit 9. Two annexures being the voter ID card and one affidavit of the mother of the Respondent of the said application was marked Exhibit 9/1 and 9/2. The fee receipt of the application for the correction of date of birth has been marked Exhibit 10. The Tabulation Register issued by the Jharkhand Academic Council in the year 2010 and with respect to Giriwar High School, Medininagar being public document was marked Exhibit 11. The registration slip of the Respondent was marked Exhibit 12. The Admission Card of the Annual Secondary Examination 2010, issued in the name of the Respondent was marked Exhibit 13. He also proved the Exhibit 14 and 14/1 and 14/2. In his cross-examination, this witness has stated that he joined the Jharkhand Academic Council as Secretary on 11 September 2018. On being confronted he identified Exhibit C. The correction in the marksheet is made in pursuance of the order of the Jharkhand Academic Council. After that necessary correction is made in the relevant documents of the student concerned. The correction of the certificate is made even after 15 days of the issue of the registration slip. As per the procedure which is in practice in the Jharkhand Academic Council, 23 Election Petition No. 02 of 2020 for correction of the date of birth, the admission register of the school concerned is called for. The photo copy of the admission register duly signed by the Headmaster and the District Education Officer is called for and on the basis of the same necessary correction is made.
It is pertinent to mention here that though it is the specific case of the Petitioner that the correction of the date of birth of the Respondent was made in an illegal manner by the Jharkhand Academic Council but not a single question regarding the procedure in correction of the date of birth of the Respondent was put to this witness by the Petitioner.
(vii) P.W.7- Koushal Kishore Dubey (Businessman) examined on 08.08.2022. He identified Exhibit 7 to be the documents he received in response to his application for information under the Right to Information Act. He also proved the Exhibit 15 by which the sought information from the principal A.A.High School, Guriadamar, Lesliganj, Palamau and the answer which has been marked Exhibit
16. In his cross-examination he has stated that he was the PA to the Petitioner and earlier he was getting salary but now he is not getting salary. He sought the information under the instruction of the Petitioner.
(viii) P.W.8- Chandrabali Choubey (Retired Headmaster, Giriwar High School, Medininagar, Palamau examined on 15.09.2022. He proved the Exhibit 17.
In his cross-examination he has stated that he was the in-charge, Headmaster in the year 2015. He was not involved in the admission process any school in the year 2009.
Besides the oral testimony, the petitioner also proved proved the following documents:-
24
Election Petition No. 02 of 2020
(i) Ext.1- C.C of letter no. JAC/RTI//832/15-117/16 Ranchi dt. 12.02.2016 of Deputy Secretary-cum-PIO, JAC, Ranchi addressed to Shri Nandgopal Tripathi. (proved on 07.03.2022)
(ii) Ext. 2- C.C of letter no. JAC/RTI//976/16-235/16 Ranchi Dt. 17.03.2016 of Deputy Secretary-cum-PIO, JAC, Ranchi addressed to Shri Nandgopal Tripathi. (proved on 07.03.2022)
(iii) Ext.3- C.C of letter bearing memo no. 202/Nirwa, dated 02.05.2016 of PIO cum Deputy Election Officer, Palamau addressed to Shri Nand Gopal Tripathi. (proved on 07.03.2022)
(iv) Ext.4- C.C of letter bearing letter no. 203/Nirwa, dated 02.05.2016 of PIO cum Deputy Election Officer, Palamau addressed to Shri Nand Gopal Tripathi. (Reg. supply of C.C of Voter list, 2009, of Bhag Sankhya 226, Booth no. 226 of Madhya Vidhyala, Manjhigao of 76, Assembly Constitution, Daltonganj & Voter card bearing KGV1703202). (proved on 07.03.2022)
(v) Ext.5- C.C of Order dated 10.08.2021 passed by the Hon'ble Supreme Court of India in Civil Appeal No. 191/2020. (proved on 05.04.2022)
(vi) Ext.6- Signature of Head Master, I/c (Chandrabali Choubey) in the C.C of Transfer Certificate issued by the Headmaster I/c, Rajyakrit Giriwar +2, High School, Medninagar, Palamau at Daltonganj. (proved on 10.05.2022)
(vii) Ext.7- Signature of Amal Kr. Pandey, in Letter no. GLA-G-
248/15 dt. 02.01.2015 of PIO, G.L.A College to Kaushal Kishore Dubey under RTI. (proved on 07.06.2022)
(viii) Ext.8- Signature of S.K Mishra marked in the photocopy I.Sc. Admission Form submitted by Alok Chourasia of GLA no. 3089. (proved on 07.06.2022) 25 Election Petition No. 02 of 2020
(ix) Ext.9- Application dt.28.08.2012 of Alok Chaurasia regarding correction in his D.O.B to Secretary, JAC, Ranchi. (proved 19.07.2022)
(x) Ext. 9/1- Copy of Voter I.D of the Applicant namely Alok Chaurasiya bearing NO. KGB1703202. (proved on 19.07.2022)
(xi) Ext.9/2- Affidavit of mother of Alok Chourasiya namely Usha Kumari dt. 27.08.2012. (proved on 19.07.2022)
(xii) Ext.10- Fee Receipt of Rs. 400/- dt. 28.08.2012 deposited in Bank of India, Namkum Branch, Ranchi. (proved on 19.07.2022)
(xiii) Ext.11- Certified copy of Tabulation Register issued by Jharkhand Academic Council, 2010 with respect to Giriwar High School, Daltonganj for matriculation exam. (proved on 19.07.2022)
(xiv) Ext.11/1- Part of Certified copy of Tabulation Register of JAC, Ranchi of Giriwar High School, Daltonganj- 2010. (proved on 19.07.2022)
(xv) Ext.12- Secondary Examination Registration Slip for year 2009, JAC, Ranchi of Alok Chaurasiya. (proved on 19.07.2022) (xvi) Ext.13- Secondary Examination Admission Card bearing Reg. No. 31044-13854-09, JAC, Ranchi of Alok Chourasiya. (proved on 19.07.2022) (xvii) Ext.14- Mark Statement of Annual Secondary Examination 2010 of Alok Chourasia bearing Reg. No. 31044-13854-09 of JAC, Ranchi dt. 10.05.2010. (proved on 19.07.2022) (xviii) Ext.14/1- Provisional Certificate issued by JAC, Ranchi to Alok Chourasiya bearing Reg. No. 31044-13854-09 dt. 10.05.2010. (proved on 19.07.2022) 26 Election Petition No. 02 of 2020 (xix) Ext.14/2- Annual Secondary Examination 2010 Passing Certificate of Alok Chaurasiya of Annual Secondary Examination, 2010 dt. 02.09.2010. (proved on 19.07.2022) (xx) Ext.15- Letter dt. 03.02.2017 of K.K Dubey addressed to Principal I/c, Adiwasi Awasiya Ucch Vidhyala, Guriadamar, Daltonganj. (proved on 08.08.2022) (xxi) Ext.16-Signauture on Letter dt. 06.02.2017 of Principal I/c Prem Prakash Singh, Adiwasi Awasiya Ucch Vidhayala, Guriadamar to K.K Dubey, Daltonganj. (proved on 08.08.2022) (xxii) Ext.17- Letter beating no. 177(b) dated 04.01.2016 of Chandrabali Choubey, Head Master I/c, Rajya Krit, Giriwar +2, Uccha Vidhyala, Medininagar, Palamu. (proved on 15.09.2022) (xxiii) Ext.18- The of Signature of Alok Chourasia in the photocopy of I.Sc. Admission Form of GLA no. 3089. (proved on 30.11.2022) (xxiv) Ext.19- The Signature of the S.D.O -Medininagar in the letter of the same containing the photocopy of the Nomination Paper. (proved on 15.12.2022) (xxv) Ext.20- Letter dated 12.03.2018 send by Ramdip Ram to the ld. Registrar General, High Court of Jharkhand, Ranchi. (proved on 21.12.2022) (xxvi) Ext.21- Transfer Certificates from serial 640 to 712 issued by A.A High School, Guriadamar. (proved on 21.12.2022) (xxvii) Ext.22-Signatures of the Kashi Prasad in the copy of Admission Register, A.A High School, Guriadamar, Lesliganj. (proved on 21.12.2022) Evidence of Respondent
32. On the other hand, the Respondent examined the following witnesses:-
27
Election Petition No. 02 of 2020
(i) D.W.1- Ram Law Prasad (Agriculturist) examined on 14.11.2022. He deposed about the election of the Respondent in the 2019 Assembly Election from Daltonganj Assembly Constituency. He also participated in the scrutiny of nomination papers which took place on 14th November 2019.
No objection was raised by anyone at the time of the scrutiny of the nomination papers, regarding the nomination papers filed by the Respondent. The Respondent is the nephew of DW 1. The date of birth of the Respondent is 15th February 1988.
In his cross examination he denied the suggestion that the date of birth of the Respondent is 15.02 .1995.
(ii) D.W.2- Bhishm Prasad Chourasiya examined on 21.11.2022.
He deposed that the father of the Respondent was this paternal uncle. The DW 2 was present at the time of birth of the Respondent in his house at Majhigawan. The Respondent was born on 15th February 1988 on the day of ShivRatri. The father of the Respondent because of his remaining busy with his social work used to devote less time in the education of his children.
In his cross-examination, he denied the suggestion that he has given a false date of birth of the Respondent in paragraph 3 of his examination in chief.
It is pertinent to mention here that in the cross- examination of the DW 2, the Petitioner even did not say as to what was the exact date of birth of the Respondent, according to the Petitioner.
(iii) D.W.3- Sachchida Nand Pandey, aged about 65 years, examined on 28.11.2022. He has deposed that he has been doing the "Puja Path" in the house of the Respondent. On the birth of the Respondent, on being called by the Grandfather of the Respondent to fix the auspicious time for Bath and the 6th day celebration; he prepared the "Tipni" and saw the 28 Election Petition No. 02 of 2020 auspicious time. The Respondent was born on the 13th day of that "Krushna Pakhya" of the month of Falgun in Sambat 2044 at 7.10 p.m. which, according to the English calendar his 15 February 1988. He prepared the horoscope of the Respondent at the time of birth of the Respondent. He proved the horoscope of the Respondent which has been marked Exhibit D. In his cross-examination he has stated that the date of birth of the Respondent has been entered in the horoscope; as per the instruction received from his grandfather. He denied the suggestion that the horoscope is a forged one.
It is pertinent to mention that in the cross-examination of the D.W. 3, the Petitioner has not challenged the testimony that the DW 3 prepared the horoscope of the Respondent. The testimony in the examination in chief of the DW 3 that the Respondent was born on 15.02.1988 has remained unchallenged. The Petitioner also did not challenge the testimony of the D.W. 3 to the effect that he prepared the "Tipni" and fixed the auspicious time for the bath and the 6th Day ceremony. So in the absence of any cross-examination on this important aspect of the deposition of the D.W. 3 filed in the shape of an affidavit, this unchallenged portion of his testimony is to be accepted.
(iv) D.W.4- Ashesh Chourasia (Farmer) examined on 29.11.2022.
He deposed that he is the brother-in-law (SALA) of the paternal uncle of the Respondent. The Respondent was born on or 15 February 1988 on the day of Shivratri. The D.W. 4 for attended the 6th day ceremony, which was held in the month of February; on receiving the invitation. The Respondent is the eldest son of his father, Anil Chaurasia.
In his cross-examination he denied the suggestion that he is adducing false evidence in collusion with the Respondent.
29
Election Petition No. 02 of 2020 It is pertinent to mention here that the testimony of the DW 4 in his examination in chief to the effect that the Respondent was born on 15 February 1988 has remained unchallenged. Hence, in the absence of any cross- examination on this important aspect of the testimony of the DW 4, this part of the testimony of the DW 4 is to be treated as true.
(v) D.W.5- Sunil Chaurasiya (Farmer) examined on 30.11.2022.
He has deposed that he is the brother of the father of the Respondent. The Respondent is the eldest son of his father's namely Anil Chaurasia. Since Anil Chaurasia used to remain busy with politics, hence, the DW 5 took the Respondent for his admission in school. The DW 5 got the Respondent admitted in A.A. High School, Guriadamar, Lesliganj, Palamau by submitting an Admission Form on 16.05.2007. On the basis of the said admission form, the Respondent was admitted in Class VIII B. The date of birth of the Respondent is 15.02.1988 and the said date of birth was mentioned in the admission form. The DW 5 identified his signature at 3 places in the Admission Form which have been marked exhibit E, E/1 and E/2.
In his cross-examination he has stated that the time of admission; the age of the Respondent was 19 years, 3 months. He denied the suggestion that the date of birth of the Respondent which 15.02.1995 and not 15.02.1988.
(vi) D.W.6- Surjeet Kumar Singh (Addl. Collector, Palamau) examined on 15.12.2022. He deposed that in 2019 Assembly Election, he served as the Returning Officer of 76, Daltonganj Assembly Constituency. At the time of the scrutiny of the nomination papers of the Respondent, no one raised any objection. After the completion of scrutiny at 3.00 PM; one objection was received regarding the age of the Respondent at 5.25 PM. The Respondent was declared elected. 30
Election Petition No. 02 of 2020 In his cross-examination, he stated that after receiving the objection, the Respondent was asked to produce documents in support of his age. Jharkhand Academic Council Certificate and Mark sheet was produced by the Respondent, on 21.11.2019. He denied the suggestion that the Respondent had not attained the qualifying age for filing nomination papers.
(vii) D.W.7- Rajani Kant Verma (Retired District Education Officer, Ranchi) examined on 19.12.2022. He deposed that he was posted as the Secretary, Jharkhand Academic Council, Ranchi from 2016 to 2018. He does not remember the process being adopted by the Jharkhand Academic Council for rectification and correction of date of birth of any candidate. On being proved by him; the certified copy of his deposition in E.P.No.11/2015 has been marked Exhibit G. He also proved the documents marked Exhibits- H, I, J & K. In his cross-examination, on being shown. He stated that both Exhibit 12 and Ext. I appear to be same.
(viii) D.W.8- Kashi Prasad (Retired Head Master and Secretary Adiwasi Awasiya High School, Guriya Damar, P.S. Lesliganj, Palamau) examined on 21.12.2022. He has deposed that in the year 2007, he was working as the Headmaster of the A.A. High School, Guriadamar, Lesliganj, Palamau. Looking at exhibit E, the D.W. 8 stated the Admission Form is of 16.05.2007 with regard to the Respondent. The date of birth of the Respondent has been mentioned as 15.02.1988. The school Admission Form on being identified by him was marked exhibit L. The school admission registers of the A.A. High School, Guriadamar, Lesliganj, Palamau for the year 2007 was opened on 26.04.2007. On the same day, the D.W. 8 certified on the 1st page of the said register which was marked exhibit M. The name of the Respondent has been made in the school admission register at page number 6 in 31 Election Petition No. 02 of 2020 serial number 86 and his date of birth is mentioned as 15.02.1988. The page 6 of the school admission register was marked exhibit N. The DW 8 also proved the attendance register of the A.A. High School, Guriadamar, Lesliganj, Palamau of Class VIIIB of the year 2007, the attendance sheet of which started from 26 April 2007 to 15 March 2008. The name of the Respondent has been mentioned with his Roll No. 85 at page number 6 and the 1st attendance of the Respondent was recorded on 16th of May 2007. The last attendance of the Respondent was recorded on 15th March 2008 at page no.25. The said attendance register was marked exhibit O. The transfer certificate of the Respondent where his date of birth has been mentioned as 15.02.1988; on being proved by the D.W. 8. It was marked exhibit Q. In his cross-examination the DW 8 has stated that he joined the A.A. High School, Guriadamar, Lesliganj, Palamau on 02.01.1983 on the post of Headmaster and retired from the said school on 26.11.2017. He further stated that Prem Prakash never worked as in charge, Headmaster in the said A.A. High School, Guriadamar, Lesliganj, Palamau. The District Education Officer called for the register from the year 2005 to 2012, in connection with filing of an application under the Right to Information Act. He denied the suggestion that exhibit L was created after the year 2012 to change the date of birth of his land from 15.02.1995 to 15.02.1988 to help him. He also denied the suggestion that exhibit M and O are forged documents.
(ix) D.W.9- Alok Chaurasiya is the Respondent himself. He was examined on 17.02.2023. He corroborated the averments made in his written statement. He specifically stated that his date of birth is 15.02.1988. Smt. Raja Kunwar worked as the village nurse at the time of the birth of the Respondent. She was examined as a witness in E.P.11 of 2015 but as now she 32 Election Petition No. 02 of 2020 has become very old and he is facing difficulty in walking hence she could not come to depose as a witness in this case. His initial education took place in his house because of lack of provision of education in the village. His father used to remain busy in politics. Hence his admission in school was made belatedly. As his father was ill and because of lack of knowledge regarding the procedure to rectify the date of birth in the certificates, the D.W. 9 could not immediately rectify his incorrect date of birth. In the month of August 2012, through the Giriwar High School, Medininagar; he applied for correction of his date of birth to the Jharkhand Academic Council. The Jharkhand Academic Council after enquiry and investigation and on the basis of the documents of the schools certified by the District Education Officer, Daltonganj passed the order for correction in February 2014. After the said order, the Respondent, deposited all the necessary certificates, in which his date of birth were wrongly mentioned with the Jharkhand Academic Council and after cancelling the earlier certificates, new certificates have been issued in favour of the Respondent mentioning his date of birth to be 15.02.1988. In his horoscope also his date of birth has been mentioned as 15.02.1988. His name was entered in the voter's list as per the provisions of the Registration of Electoral Rules, 1960. Before entering his name in the voter's list, the competent authority published the draft of the same but as no one raised any objection, only after that the competent authority included the name of the Respondent in the voter's list before starting of the election process for the 2014, since he was residing outside the village/house and he could not get his name included in the voter's list. He also proved the documents which have been marked with S, T, U, V, W, X & Y. In his cross-examination, the D.W. 9 has stated that he 33 Election Petition No. 02 of 2020 was in his house till he attained the age of 17 years. His date of birth is 15.02.1988. He went to school for the 1st time in the year 2007. On 16-05-2007 within the radius of 2 km from his house four government schools having the facility of imparting education up to Class VI out of which 2 schools having the facility to impart education up to Class VIII were situated. By mistake, he mentioned his date of birth in the registration form for appearing in Jharkhand Academic Council examination as 15.02.1995. He filled up a form for his admission into Giriwar High School, Medininagar wherein he mentioned his correct date of birth as 15.02.1988. He further stated that Exhibit 8 is not his signature and Exhibit 18 does not contain the signature of his father. Exhibit 8 and Exhibit 18 do not contain his signature. Before the year 2012, he never submitted an application for correction of his date of birth; as he was busy looking after his ailing father. His father died on 16.06.2012. His mother never submitted a nomination paper for election as Member of Legislative Assembly prior to 2014. The signature of his mother is not appearing in Exhibit 9/2. Exhibit 9/1 is his Voter Identity Card. He annexed Exhibit 10 with Exhibit 9. He could not identify the Exhibit 6. His mother also submitted a nomination paper in the year 2014 to contest the assembly election but later on she withdrew her candidature. Some of the supporters of his father were in favour of the candidature of his mother. But some of the supporters were in favour of his candidature for the election of the year 2014; hence he and his mother both submitted their nomination papers but later on the supporters got united and decided that only the Respondent will contest the said assembly election, therefore, his mother, withdrew her candidature. Before 2009, he was residing at Ranchi and Daltonganj. He denied the suggestion that he was below the age of 25 years in the year 2014 and in 34 Election Petition No. 02 of 2020 the year 2019. In paragraph 74 of his cross-examination; he admitted the suggestion of the Petitioner, that all his Classmates were having their date of birth between 1994- 1996, but his year of birth is 1988. He denied the suggestion that his original date of birth in 15.02.1995 and on the basis of forged documents, he got his date of birth corrected as 15.02.1988.
The further examination in chief of the DW 9 was recorded on recall, wherein he identified the documents with have already been marked as Exhibit I, J, K, H. In his cross- examination after that he stated that in the exhibits, I, J, K, and H, his date of birth has been corrected.
33. Besides the oral testimony of the witnesses the Respondent also proved the following documents:-
(i) Ext.A- C.C of Order No. 1 dated 20.01.2015 of E.P No. 02/2015. (proved on 05.04.2022)
(ii) Ext.A/1- C.C of Order No. 02 dated 06.02.2015 of E.P No. 02/2015. (proved on 05.04.2022)
(iii) Ext.B- The signature of the then Principal Sri DC Dubey in the Character Certificate issued by GLA College, Medininagar. (with objection). (proved on 07.06.2022)
(iv) Ext.C- Seal of JAC, Ranchi dt. 28.01.2014 at page 8 of Order sheet maintained by Returning Officer. (proved on 19.07.2022)
(v) Ext.D- Horoscope of Alok Choursiya. (proved on 28.11.2022)
(vi) Ext. E, E/1 and E/2- Admission Form submitted on 16.05.2007 in the Guriadamar School Lesliganj, Palamau. (The witness identifies his signature) (proved on 30.11.2022) 35 Election Petition No. 02 of 2020
(vii) Ext.F- Application dated 28.08.2012 of Alok Chaurasia regarding correction in his D.O.B to Secretary, JAC, Ranchi. (proved on 19.12.2022)
(viii) Ext. G- Certified copy of deposition of Rajnikant Verma in EP No. 11/15. (proved on 20.12.2022)
(ix) Ext.H- Certificate of issued by JAC, Ranchi in favour of Alok Chourasia regarding passing of 10th Class Examination. (proved on 20.12.2022)
(x) Ext.I- Registration Slip issued in the name of Alok Chourasia issued by JAC, Ranchi. (proved on 20.12.2022)
(xi) Ext.J- Admit Card issued in the name of Alok Chourasia issued by JAC, Ranchi. (proved on 20.12.2022)
(xii) Ext.K- Mark Sheet issued in the name of Alok Chourasia of Annual Secondary Examination - 2010 issued by JAC, showing dt. 10.05.2010. (proved on 20.12.2022)
(xiii) Ext.L- Admission Form dated 16.05.2007 of A.A High School, Guriadamar, Lesliganj, Palamu of Alok Chourasia. (proved on 21.12.2022)
(xiv) Ext.M- School Admission Register of A.A High School of 2007. (with objection) (proved on 21.12.2022)
(xv) Ext.N- Page 6 of Admission Register of A.A High School, Guriadamar, Lesliganj. (proved on 21.12.2022) (xvi) Ext.O- Attendance Register of A.A High School, Guriadamar, Lesliganj.( with objection). (proved on 21.12.2022) (xvii) Ext.P & Ext.P/1- Page 6 & 25 marked with objection.
(proved on 21.12.2022) (xviii) Ext.Q- Transfer Certificate of Alok Chourasia dt.15.04.2008 issued by Kashi Prasad, the then Headmaster. (proved on 21.12.2022) 36 Election Petition No. 02 of 2020 (xix) Ext.R- Certified copy of deposition of Kashi Prasad in EP 11 of 2015. (proved on 21.12.2022) (xx) Ext.S- Certified copy of order dated 06.02.2015 in E.P. No. 2 of 2015 (proved on 17.02.2023) (xxi) Ext.T- Certified copy of petition along with order nos.1 to 5 in E.P. No. 10 of 2015.(proved on 17.02.2023) (xxii) Ext.U- Certified copy of order dated 14.10.2015 in W.P.(C) No. 2190 of 2015. (proved on 17.02.2023) (xxiii) Ext.V- Certified copy of petition in E.P. No. 11 of 2015.
(proved on 17.02.2023) (xxiv) Ext.W- Certified copy of Title page of petition of E.P. No.11 of 2015 along with order dated 20.12.2019 (proved on 17.02.2023) (xxv) Ext.X- Certified copy of deposition of Eugine Minj, the then Deputy Secretary, JAC, Ranchi of E.P. No. 11 of 2015. (proved of 17.02.2023) (xxvi) Ext.Y- Certified copy of affidavit and deposition of Raja Kunwar in E.P. No. 11 of 2015 (proved on 17.02.2023)
34. The following documents which could not be proved by either of the parties have been marked for the purpose of identification only:-
(i) X- C.C of letter bearing no. 177 (B) dated 04/01/2016 of Headmaster I/c, Giriwar Inter School, Medininagar, Palamu addressed to Dhruv Narayan Pandey under RTI. (marked on 29.03.2022)
(ii) Y- Certified copy of Voter list -2014. (marked on 05.04.2022)
(iii) X/1- C.C of Guard file containing T.C documents from Sl. No. 638 to 725, in 61 ps. (marked on 10.05.2022) 37 Election Petition No. 02 of 2020
(iv) X/2- C.C of School leaving certificate issued ot Alok Chaurasia bearing Sl. No. 490 in bundle of school leaving certificate. (marked on 10.05.2022)
(v) X/3- C.C of Transfer Certificate issued by Adivasi Awasiya Uccha Vidhyalaya, Guria Damar, Lesliganj, Palamau dated 15.04.2008 bearing letter no. 60.
(marked on 10.05.2022)
(vi) X/4- Copy of admission registers of Giriwar High School. (marked on 10.05.2022)
(vii) X/5- Certified copy of SLC of Rajya Krit Girwar Inter Level High School, Mediningar, Palmau submitted to GLA College (at the time of Admission). (marked on 07.06.2022)
(viii) X/6- Cancelled Certified copy of SLC of Rajya Krit Girwar Inter Level High School, Mediningar, Palmau. (marked on 07.06.2022)
(ix) X/7- Order sheet dated 01.09.2012 on 27.08.2016.
(marked on 19.07.2022)
(x) X/8- Signature of Deputy Secretary of JAC supplied under RTI. (marked on 19.07.2022)
(xi) X/9- Copy of Admission Register -2007-08 of Adivasi Awasiya High School, Guriadamar, Lesliganj, Palamu. (marked on 15.09.2022)
(xii) X/10- Copy of Guard file Adivasi Awasiya High School, Guriadamar, Lesliganj, Palamu. (marked on 15.09.2022)
(xiii) X/11- Attested copy of Transfer Certificate bearing letter no. 60 of A.A Ucha Vidyala, Guriadamar, Lesliganj issued by Head Master I/c, Rajya Krit, Giriwar +2, Uccha Vidhyala, Medininagar, Palamu . (marked on 15.09.2022) 38 Election Petition No. 02 of 2020
(xiv) X/12- Admission Register - 2007-08. (Entry of Sl. NO.
707) of Adivasi Awasiya High School, Guriadamar, Lesliganj, Palamu. (marked on 15.09.2022)
(xv) X/13/A to X/13/A7- Note sheet of file no.
JAC/Palamu Kosang/19494/12 from 3108.2012 from page 1 to 8. (marked on 20.12.2022) (xvi) X/14- Letter dated 08.03.2018 addressed to Head Master I/c, A.A High School, Guriadamar to the Registrar, Civil Courts, Palamau. (marked on 21.12.2022) Arguments on behalf of Petitioner
35. Mr. Salman Khurshid, the learned counsel for the Petitioner submits that the election petition has been filed with the sole ground that the Respondent did not attain the age of 25 years at the time of his election as Member of Legislative Assembly, as mandated under article 173 (b) of the Constitution of India and through the evidence put forth by the Election Petitioner, it has been established that in fact the Respondent did not attain the age of 25 years on the date of the election as Member of Legislative Assembly, hence the election of the Respondent is a fit to be declared void under section 100 (1) (d)
(i) and (iv) of the Representation of the People Act, 1951.
36. Mr. Khurshid the learned senior counsel next submitted that the result of 76, Daltonganj Assembly Constituency of the year 2019, was declared on 23.12.2019 and this election petition has been filed before this court on 29.01.2020, well within the period of 45 days as provided for under section 81 (1) of the Representation of Peoples Act,1951. Therefore, this election petition is not barred by limitation. 39
Election Petition No. 02 of 2020
37. In respect of the contention of the Respondent that the election petition is fit to be rejected for no correct and authenticated copy of the election petition having been served upon the Respondent, it is submitted by the learned senior counsel for the Election Petitioner that the copy of the election petition has been served upon the Respondent and such copy of the Election Petitioner was filed along with the election petition in compliance with section 81 (3) of the Representation of the People Act, 1951. It is next submitted that neither any such defect was pointed out by the registry of this Court nor the Respondent has proved that such contention of non-service of correct and authenticated copy of the election petition upon the Respondent, hence this contention of the Respondent has no merit. Relying upon the judgment of the Hon'ble Supreme Court of India in the case of Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Others reported in AIR 1964 SC 1545, paragraph 8 and 11 of which reads as under:
"8. Xxxxxxx It seems clear to us that the reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification, which is to be made in the manner laid down in the Court of Civil Procedure, 1908, for the verification of pleadings as required by clause (c) of subsection (1) of section 83 is fatal to the maintainability of the petition".
11. We are of the view that the word "copy" in subsection (3) of section 83 does not mean an absolutely the exact copy, but remains that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud's judicial Dictionary, third edition, volume 4, page 3098). In view of the matter, it is unnecessary to go into the further question whether any part of subsection (3) of section 81 he is merely directory xxxxX"
40
Election Petition No. 02 of 2020 It is submitted by the learned senior counsel that even if assuming for the sake of argument that there is some minor discrepancy in the copy of the Election Petition supplied to the Respondent, the same shall not be fatal for this election petition. In respect of the contention that the Petitioner, failed to plead the cause of action in the election petition, the learned senior counsel relied upon the judgment of the Hon'ble Supreme Court of India in the case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Others reported in (2012) 7 SCC 788.
38. In respect of the contention of the Respondent that this election petition is barred by the principle of res judicata, it is submitted by the learned senior counsel for the Election Petitioner that in view of the order dated 10.08.2021 passed by the Hon'ble Supreme Court of India in the case of Krishna Nand Tripathy Vs. Alok Chaurasiya passed in Civil Appeal No. 191 of 2020 in connection with the Election Petition No. 11 of 2015, a copy of which has been marked Exhibit 5 which reads as follows:
"We intend to dispose of this appeal as infructous leaving all questions of fact and law open, to be decided in the fresh election petition. In respect of subsequent elections, which petition be decided on its own merits and in accordance with law.
In other words, independent evidence will have to be produced in the subsequent election petition and that will have to be analysed and considered on its own merits, independent of the finding of fact recorded in the impugned judgment.
As the appellant has filed another election petition against the Respondent pertaining to subsequent elections, we request the High Court to dispose of the same expeditiously and more so, keeping in mind the statutory mandate to dispose 41 Election Petition No. 02 of 2020 of an election petition within six months.
All contention available to the parties are left open. The appeal is disposed of accordingly.
Pending applications, if any, stand disposed of."
Hence, this election petition is not barred by the principle of res judicata.
In respect of the contention of the Respondent, that the issue of date of birth of the Respondent is beyond the scope of election petition, it is submitted by the learned senior counsel, by relying upon the judgment of the Hon'ble Supreme Court of India in the case of P.H. Paul Manoj Pandian v. P. Veldurai reported in (2011) 5 SCC 214 paragraph 57 of which reads as under :
"57. Normally, the Superintending Engineer would be competent to terminate the contracts when breach of the terms and conditions is committed by a contractor. However, in the present case the Court finds that the contracts were to be brought to an abrupt end because the Respondent was intending to contest the election. Such an eventuality was never contemplated under the contracts and the contracts entered into by the Respondent with the Government could have been terminated only as per the terms and conditions stipulated in the Government Order dated 16-11-1951. Therefore, neither the Divisional Engineer had the authority to terminate the contracts nor had the Superintending Engineer any authority to terminate the contracts. Thus, the action of the Superintending Engineer in ratifying the cancellation of the contracts made by the Divisional Engineer is of no consequence."
that in that case also the Hon'ble Supreme Court of India considered the validity of termination of the Government contract. It is next submitted by the learned senior counsel for the Petitioner that the law is well settled that if the Constitution of India provides for a disqualification or disability, then whether that disqualification is 42 Election Petition No. 02 of 2020 attracted or not is a question for the court to decide, hence such a question can be looked into an election petition. In support of his contention, the learned senior counsel relied upon the judgment of Patna High Court in the case of Pramod Singh Chandravanshi Vs. Som Prakash Singh reported in AIR 2014 Pat 156. In the case of P.H. Paul Manoj Pandian Vs. Mr. P.Veldurai (supra) as also in the case of Sushil Kumar Vs. Rakesh Kumar reported in (2003) 8 SCC 673.
39. So far as the contention of the Respondent that the Petitioner has no locus standi to file election petition, it is submitted by the learned senior counsel for the Petitioner that undisputedly, the Petitioner himself was a candidate and also an elector from the 76, Daltonganj Assembly Constituency in the year 2019 and as such, as per the provisions of section 8 (1) of the Representation of the People Act, 1951 the Petitioner has locus standi to file the present election petition. Hence, it is submitted that there is no merit in this contention of the Respondent.
40. In respect of issue whether the date of birth of the Respondent is 15.02.1995 or 15.02.1988; it is submitted by the learned senior counsel for the Petitioner, since undisputedly, in all the educational certificates of Respondent, his date of birth was recorded as 15.02.1995 and the Respondent himself filed his registration form mentioning his date of birth as 15.02.1995, his name was included in the voter's list for the 1st time in the year 2014 when he was 26 years of age and not before that. During the period of 2008-2012, the Respondent did not take any step to correct his date of birth and the 43 Election Petition No. 02 of 2020 mother of the Respondent did not come to court to depose as a witness; in order to declare the date of birth of the Respondent to be 15.02.1988 and not 15.02.1995.
41. In respect of the issue whether the date of birth of the Respondent in the school register of Giriwar High School, Medininagar was recorded as 15.02.1995 or 15.02.1988, it is submitted by the learned senior counsel for the Petitioner that it is undisputed by the Respondent that initially in all his educational certificates, his date of birth was mentioned as 15.02.1995; and if in the school records the date of the Respondent would have been mentioned as 15.02.1988, the same must have been reflected in the school leaving certificate and the character certificate. But in those two documents the date of birth has been mentioned as 15.02.1995 which goes to show that the date of birth of the Respondent was mentioned in the school register as 15.02.1995. Further the witness Chandrabali Choubey in his examination in chief has clearly stated that there is tampering in school admission register marked exhibit W also goes to show that the date of birth mentioned in the school register was 15.02.1995.
42. So far as the issue as to whether the early education of the Respondent was in villages, is concerned, it is submitted by the learned senior counsel for the Respondent that it is quite strange that when his brothers and sisters went to school, the Respondent did his early education from the villages and did not go to school. It is then submitted by the learned senior counsel that in the absence of any 44 Election Petition No. 02 of 2020 explanation as to how the Respondents studied up to Class VIII, it can safely be said that the Respondent tried to suppress the details of early schooling in order to suppress his date of birth recorded in the previous records.
43. In respect of the issue as to whether at the time of the admission of the Respondent in A.A. High School, Guriadamar, Lesliganj, Palamau, in Class VIII in the admission- cum- declaration form, submitted to the school, the uncle and guardian of the Respondent namely Shri Sunil Chaurasia, disclosed the date of birth of the Respondent to be 15.02.1988, it is submitted by the learned senior counsel for the Petitioner that since at the relevant time, both the father and mother of the Respondent were alive; it cannot be treated that the said Sri Sunil Chaurasia, was the guardian of the Respondent. There is no document in the record to suggest that the said Sunil Chaurasia was the guardian of the Respondent. Moreover, as by that date the Respondent was aged more than 18 years; as per his claim, there was no requirement of any guardian. It is then submitted that from the said circumstances, it becomes crystal clear that the said admission-cum-declaration form was created after the death of the father of the Respondent, to facilitate the change in the date of birth of the Respondent. It is then submitted that the manners in which the school records were tampered with, as is evident from the deposition of the DW 8, none of the documents of the school could be relied upon.
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44. In respect of the issue, whether the Respondent while he was the student of Class IX of the A.A. High School, Guriadamar, Lesliganj, Palamau, took transfer certificate from the said school on 15.04.2008 and took admission in Government taken over Giriwar High School, Medininagar and in all the above school admission register and transfer certificate, the date of birth of the Respondent was correctly recorded as 15.02.1988, is concerned, it is submitted by the learned senior counsel for the Petitioner that the entire conduct and affairs of the A.A. High School, Guriadamar, Lesliganj, Palamau was suspicious as during the trial of the case, it transpired that as none of the documents of the school have any authenticity. The letter received under the Right to Information Act (Exhibit 16) having been issued by the officiating Headmaster, the veracity of the statement of the D.W. 8 of remaining the Headmaster till 26.11.2017 becomes doubtful. The DW 8 in his deposition, having said that the admission register and the attendance register of the year 2007-08 were seized by the District Education Officer, but never returned to the school, goes to show that the said documents were forged documents. Exhibit 20-which is the letter written to the Registrar General of this Court by the then Principal of the A.A. High School, Guriadamar, Lesliganj, Palamau, stating therein that the said registers were not in the school and was in the custody of the Secretary who was re- examined as DW 7, goes to show that the said documents were tampered documents and manufactured registers. The DW 8, admitted his signatures which have been marked exhibits 22 to 46 Election Petition No. 02 of 2020 22/LXXII-which were the signatures on a copy of yet another admission register in which the date of birth of the Respondent has been tampered with, leaves no doubt that there is no authenticity of such documents of both the schools produced in this case. The seal in the transfer certificate of the Respondent (S.No.60) is different than the other transfer certificates. The ink is different. The reason for leaving the school is different. The year in the transfer certificate has been written '08' in case of the Respondent while in case of others; the year has been written as 2008. Further the student studying in the Class is also different. It is then submitted that on 15.04.2008, 67, transfer certificates were issued from the school, hence, there is no reason as to why the transfer certificate of the Respondent would be different. It is then submitted that the transfer certificate marked Exhibit 6, issued in the name of the Respondent and which bears the date of birth as 15.02.1995 and the same is similar to the other transfer certificates issued. It is further submitted that there is no explanation furnished by the Respondent as to if the application form, admission register, attendance register, as also the transfer certificate of the A.A. High School, Guriadamar, Lesliganj, Palamau, contained the date of birth of the Respondent as 15.02.1988, then why the date of birth has been mentioned as 15.02.1995 in all subsequent documents. Hence, it is submitted that from the evidence available in the record, it cannot be said that the school admission registers or transfer certificate of the Respondent contained the correct date of birth as 15.02.1988.
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45. In respect of the issue whether the Respondent was not able to get his date of birth as 15.02.1995, as mentioned in the School Leaving Certificate issued by the Giriwar High School, Medininagar, corrected, due to serious illness of his father, who later on died, is concerned, it is submitted by the learned senior counsel for the Petitioner that none of the witnesses of the Respondent has stated anything about the serious illness of the father of the Respondent and since the father of the Respondent contested the assembly election held in the year 2009; as such, it could not be said that he was ill, considering the age of the father being 50 years in the year 2009.
46. In respect of the issue whether the Respondent submitted any application for correction of his date of birth and after making a detailed enquiry the Jharkhand Academic Council has corrected all the relevant certificates of the Respondent on 12.02.2014 is concerned, it is submitted by the learned senior counsel for the Petitioner that Exhibit-1 shows that no enquiry was made rather on the basis of certified copy of 3 pages of admission register change in date of birth was made by the order of the chairman of Jharkhand Academic Council and the D.E.O. or D.S.E. did not make any recommendation for such change. It is next submitted that the Respondent in his application dated 17.08.2012 did not mention that in any of his school records, his date of birth is 15.02.1988. It is then submitted that Jharkhand Academic Council adopted a process 48 Election Petition No. 02 of 2020 completely against the law by suo moto taking steps for correction of the date of birth of the Respondent in an illegal manner.
47. In respect of issue, whether the transfer certificate issued by the A.A. High School, Guriadamar, Lesliganj, Palamau to the Respondent is a tampered document, is concerned, it is submitted by the learned senior counsel for the Petitioner that since the said document is the odd one out from the 67 transfer certificates from the Exhibit 21 series, the reason for leaving the school, manner of writing the year of issue of the certificate, seal and ink in this transfer certificate is different and the deposition of PW 8 to the effect that there were transfer certificates issued in the name of the Respondent out of which the one containing the date of birth as 15.02.1995 is missing, clearly goes to show that the transfer certificate issued in the name of the Respondent was a tampered one.
48. In respect of the issue, whether the voter ID card submitted by the Respondent before the Jharkhand Academic Council for correction of his date of birth upon verification was found to have been issued in the name of Shailendra Kumar Chaurasia, is concerned, it is submitted by the learned senior counsel for the Petitioner that as the voter identity card was issued to the Respondent in the year 2014, so obviously the voter identity card of the year 2009, could not be that of the Respondent, more so, as the name of the Respondent was not existing in the voter's list of the year 2009. Hence, the voters identity card for change of date of birth 49 Election Petition No. 02 of 2020 submitted along with the application of the Respondent is a forged one.
49. In respect of the issue, whether the Respondent initiated for the change of his date of birth by fraudulent means and by forgery, it is submitted by the learned senior counsel for the Petitioner that annexing a copy of a non-existing voters identity card and an unsigned affidavit to the application for correction of the date of birth by the Respondent even though the application dated 17.08.2012 contains any averment to the effect that the said application is accompanied by an affidavit goes to show that the Respondent initiated the change of his date on the basis of forgery.
50. In respect of the issue, whether the school register of Giriwar High School, Medininagar pertaining to admission of the Respondent has been tampered with, is concerned, it is submitted by the learned senior counsel for the Petitioner that the PW 8, in his examination in chief has stated that there is tampering in the school admission register and the deposition of PW 8 in this case, as well as in Election Petition no.11 of 2015, goes to show that the said school register was a tampered one.
51. It is lastly submitted by the learned senior counsel for the Petitioner that the evidence in the record, goes to show, that the date of birth of the Respondent was 15.02.1995, and accordingly, the Respondent was less than 25 years of age on the date of nomination, scrutiny and declaration of result of 76, Daltonganj Assembly Constituency, held in the year 2000 and hence, it is submitted that 50 Election Petition No. 02 of 2020 the election of the Respondent as a member of Jharkhand Legislative Assembly is fit to be declared void as he was not qualified to be a member of 76, Daltonganj Assembly Constituency under section 100 (1) (a) of the Representation of the People Act, 1951.
52. Mr. V. P. Singh, the learned senior counsel for the Respondent, on the other hand vehemently oppose the prayer for declaring election of the Respondent as a member of Jharkhand Legislative Assembly on the ground that he was not qualified to be a member of 76, Daltonganj Assembly Constituency under section 100 (1) (a) of the Representation of the People Act, 1951.
53. Mr. Singh submitted that this election petition is barred by the principle of res judicata as the principal issues regarding the date of birth of the Respondent being 15.02.1995 or 15.02.1988 has already been finally decided by this court in Election Petition no. 11 of 2015. It is then submitted by the learned senior counsel for the Respondent that the dispute of date of birth of a person is a common law dispute and the same cannot be raised in an Election Petition, which confers upon the court a limited jurisdiction, in view of the provisions of the Representation of the People Act, 1951. It is then submitted by Mr. Singh that in any case, the dispute of date of birth being a common law dispute, the standard of pleading and proof as is required for a common law dispute is applicable, in a case where the date of birth of any person is questioned. It is then submitted by the learned senior counsel for the Respondent that when any party to any proceeding of civil nature raises the plea of fraud, then it is a settled 51 Election Petition No. 02 of 2020 principle of law, that such person has to plead the details and particulars of the fraud alleged and even the date of the same as is required under Order VI Rule 4 of the Code of Civil Procedure.
54. It is then submitted by Mr. Singh that the approach of the Petitioner in this petition is more or less of beating up the bush. It is then submitted that there is no any proof, put forth by the Petitioner as to what was the date of birth of the Respondent and on what basis the Petitioner is contending that, the date of birth of the Respondent was any date other than 15.02.1988. It is next submitted that though the Petitioner has mentioned in the petition that the date of birth of the Respondent is 15.02.1995, but such pleading is a vague one. There is no pleading as to where the Respondent was born and how come the Petitioner came to know about the date of birth of the Respondent. It is then submitted that this being a proceeding of civil nature, where the Petitioner only has a vague case regarding the date of birth of the Respondent and has made a negative pleading that the date of birth of the Respondent was not 15.02.1988, so the burden was obviously heavy upon the Petitioner to establish 15.02.1995 to be the date of birth of the Respondent; which the Petitioner has miserably failed to discharge. It is next submitted by the learned senior counsel for the Respondent, that the falsity of the case of the Petitioner is laid bare from the fact that even the Petitioner has not dared to say on oath that the date of birth of the Respondent is 15.02.1995; as, the Petitioner himself knows pretty well that such contention of the Petitioner is out and out false, hence, the Petitioner 52 Election Petition No. 02 of 2020 avoided supporting his own case on oath to save himself from the consequences of adducing false evidence and this false case has been foisted to harass the Respondent only. On the other hand, it is the specific case of the Respondent that his date of birth is 15.02.1988. The Respondent has specifically pleaded the same and proved the same by cogent evidence. The Respondent has examined the persons who have testified about the birth of him on 15.02.1988. The testimony of D.W. 2 and D.W. 3 including the Pandit being D.W. 3 who prepared the horoscope of the Respondent at or about the time of the birth of the Respondent has remained unchallenged in their cross-examination and hence the same is to be accepted as the truth. Though some denial suggestion was given to some of the witnesses of the Respondent that the date of birth of the Respondent was not 15.02.1988, but nothing has been elicited in their cross-examination to demolish in their testimonies in their examination in chief and mere denial suggestion in the cross-examination of such witnesses will certainly not discredit their testimony. It is next submitted that in view of this overwhelming evidence of unimpeachable nature, put forth by the Respondent both Oral and Documentary being Ext. D, not only established the case of the Respondent in the scale of preponderance of probability, which is required in a proceeding of civil nature like an election petition; but even establishes the case of the Respondent beyond any reasonable doubt. It is submitted by Mr Singh that as the Respondent has succeeded in establishing his date of birth to be 15.02.1988; so, assuming for the sake of argument, 53 Election Petition No. 02 of 2020 though not admitting, that at the time of admission of the Respondent in some school or other, his date of birth has been erroneously mentioned which was later on, erroneously rectified in an illegal manner, still such erroneous acts even if established, cannot change the date of birth of the Respondent to be 15.02.1988. As the Respondent has succeeded in establishing his date of birth to be 15.02 .1988, so, certainly the Respondent was not less than 25 years of age on the date of filing of the nomination and on subsequent dates relating to his election as the Member of Legislative Assembly from 76, Daltonganj Assembly Constituency in the year 2019. Hence this election petition being without any merit is liable to be dismissed on this score alone.
55. It is next submitted by Mr Singh that the Petitioner has miserably failed to adduce any evidence in respect of any of the material issues in this case. It is submitted that the Petitioner, though contended that the Respondent has tampered with the admission register and other documents of Giriwar High School, Medininagar but he cunningly avoided proving the concerned registers and documents said to have been forged or tampered with. Relying upon the judgment of the Hon'ble Supreme Court of India in the case of Ram Singh and others Vs. Col. Ram Singh reported in 1985 Supp SCC 611, it is submitted by the learned senior counsel that in that case it has been held by the Hon'ble Supreme Court of India, of course, relating to corrupt practice as per section 123 (2) of the Representation of the People Act, 1951 that even though the election 54 Election Petition No. 02 of 2020 petition is a civil proceeding, but the standard of proof required is that of a criminal case. It is submitted by Mr. Singh that the standard of proof required to establish fraud and forgery, as well as the allegation of tampering any document which also amounts to forgery; is the proof of the facts beyond reasonable doubt and the Petitioner has miserably failed to put forth any cogent evidence in this respect, let alone proving the said allegations, beyond the reasonable doubt. It is further submitted that in that case the Hon'ble Supreme Court of India has also held that when two views are possible, the one favorable to the returned candidate be preferred.
56. It is then submitted by Mr. Singh that the Petitioner has not adduced any evidence whatsoever to support his contention that the early education of the Respondent was not in villages. Similarly, Petitioner has failed to adduce any evidence whatsoever in support of his contention that the Jharkhand Academic Council has adopted illegal means for changing the date of birth of the Respondent from15.02.1995 to15.02.1988. It is also submitted by Mr. Singh that the Petitioner has not questioned the prolonged illness of the father of the Respondent ultimately leading to his death as the same was the truth, even to the knowledge of the Petitioner himself and he has not dared to make any false statement on oath. It is submitted by the learned senior counsel for the Respondent that the Petitioner was knowing pretty well that the voters ID card of Shailendra Kumar Chaurasia was never submitted by the Respondent along with his application for correction of his date of birth, hence, the Petitioner 55 Election Petition No. 02 of 2020 also not dared to make any false statement, in this respect either himself or through any of his witnesses. It is lastly submitted by Mr. Singh that this election petition filed by the Petitioner being a frivolous one, the same be dismissed with exemplary costs. Findings
57. Having heard the submissions made at the bar and after going through the materials in the record, it will be appropriate to first take up the issue number (iv) as to whether the election petition is barred by principle of res judicata? Now coming to the facts of the case, no doubt the issues involved in this Election Petitioner are directly and substantially issues in the earlier election petition being Election Petitioner Number 11 of 2015. Had there been no order of the Hon'ble Supreme Court of India in the case of Krishna Nand Tripathy Vs. Alok Chaurasiya passed in Civil Appeal No. 191 of 2020 dated 10.08.2021, certainly this election petition would have been barred by the principle of res judicata. But in view of the said order dated 10.08.2021, as already mentioned in paragraph-38 of this judgment, this Court has no hesitation in holding that this election petition is not barred by the principle of res judicata. The issue number (iv) is answered accordingly, in the negative.
58. So far as the issue number (v) as to whether the date of birth of the Respondent is beyond the scope of an election petition/disputes/trial is the same as has admittedly taken place earlier to the date of notification for election is concerned, the Election Petitioner in this election petition has challenged the election 56 Election Petition No. 02 of 2020 of the Respondent on the ground that the Respondent was aged less than 25 years on the date of his filing of nomination, and election as the Member of Legislative Assembly from the 76, Daltonganj Assembly Constituency. There is no quarrel that in case, it is found that the Respondent was of less than 25 years on the date of this filing of nomination paper as well as election; as the Member of Legislative Assembly, his election will be fit to be declared as void. To determine whether the Respondent was less than 25 years or not on the date of filing the said nomination as well as election the date of birth of the Respondent is the determining factor. In view of the judgment of the Hon'ble Supreme Court of India as discussed above, this court has no hesitation in holding that a common-law dispute can be adjudicated in an election petition, if the lis involved in the election petition requires adjudication of such common law dispute. Under such circumstances this court has no hesitation in holding that the date of birth of the Respondent is not beyond the scope of an election petition/disputes/trial even though, the same had taken place earlier to the date of notification for election. The issue number
(v) is answered accordingly, in the negative.
59. Now coming to the Issue No. (vi) as to whether the Petitioner has locus standi to file the election petition, is concerned, undisputedly, the Petitioner himself as a candidate is also an elector from the 76, Daltonganj Assembly Constituency in the year 2019. Hence, in view of section 8 (1) of the Representation of the People 57 Election Petition No. 02 of 2020 Act, 1951, the Petitioner has locus standi to file the present election petition. Thus, the issue number (vi) is also answered in the negative.
60. So far as the issue number (vii) as to whether the date of birth of the Respondent is 15.02.1995 or 15.02.1988 is concerned, now coming to the facts of the case, as rightly submitted by the learned senior counsel for the Respondent, the Petitioner has not even dared to say on oath that the date of birth of the Respondent is 15.02.1995. There is absolutely no evidence in the record put forth by the Petitioner in this case to the effect that the date of birth of the Respondent is 15.02.1995. On the other hand, as has rightly been submitted by the learned senior counsel for the Respondent, the Respondent has led cogent evidence to the effect that the date of birth of the Respondent is 15.02.1988. DW 3 and the DW 4, as already indicated above in this judgment, have not even been cross examined in respect of their testimony in their respective examination in chief that the date of birth of the Respondent is 15.02.1988.
It is settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility.
The Hon'ble Supreme Court in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect held as under:- 58
Election Petition No. 02 of 2020 "31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 : (1998 AIR SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096) : (2005 AIR SCW 589)."
(Emphasis given by me) Thus, the testimony of D.W. 3 and D.W. 4 are to be treated as true. Nothing has been elicited in the cross-examination of the D.W. 2, D.W. 3, D.W. 4 or D.W. 5 to discredit or discard their testimony. The oral testimony of the witnesses of the Respondent has been supported by the documentary evidence in shape of his horoscope which has been marked Exhibit-D. On the other hand, there is absolutely no evidence put forth by the Petitioner either oral or 59 Election Petition No. 02 of 2020 documentary to the effect that the Respondent was born on 15.02.1995. Thus, weighing the evidence of the rival parties of this case in the scale of preponderance of probability, this Court is of the considered view that the evidence in the record is sufficient to establish the fact that the date of birth of the Respondent is 15.02.1988 and the Petitioner has miserably failed to establish his case that the date of birth of the Respondent is 15.02.1995. The issue number (vii) is answered accordingly, in favour of the Respondent.
61. Let me now take up the issue number (i), as to whether the election petition as framed and filed is maintainable, is concerned, it was contended by the Respondent that the Election Petitioner does not appear to have been presented personally by the Election Petitioner. After carefully going through the materials in the record, this Court finds that there is no material in the record to suggest that the Petitioner personally did not present the election petition, rather the evidence in the record is to the contrary. Though, in so many words, the cause of action has not been mentioned specifically but in the facts of the case, this court is of the considered view that it will be too technical an approach to dismiss this election petition merely because the cause of action has not been specifically mentioned. Therefore, this court do not find any justification to hold that the Election Petitioner as framed and filed, is not maintainable. Hence, these number (i) is answered in the negative.
62. So far as the issue number (ii) is concerned, the result of 76, Daltonganj Assembly Constituency of the year 2019, was declared on 60 Election Petition No. 02 of 2020 23.12.2019 and this election petition has been filed before this court on 29.01.2020, that is well within the period of 45 days as provided for under section 81 (1) of the Representation of the People Act, 1951. Hence this court has no hesitation in holding that this election petition is not barred by limitation. The issue number (ii) is thus answered in the negative.
63. Now coming to the issue number (iii), as to whether the election petition is fit to be rejected as no correct and authenticated copy of the election petition being served upon the Respondent is concerned, in view of the principle of law settled in the case of Murarka Radhe Shyam Kumar versus Roop Singh Rathore and others (supra), this Court, considering the fact that the Respondent appeared in this case suo moto; and this court never directed the Petitioner to serve any correct and authenticated copy of the election petition at any time and as there is no cogent evidence in the record by the Respondent to the effect that the correct and authenticated copy of election petition was never served upon the Respondent, this Court is of the considered view that it will not be proper to reject this election petition on the mere technical ground for non-service of the correct and authenticated copy of the election petition upon the Respondent. Thus, the issue number (iii) is answered in the negative.
64. Now coming to the issue number (viii) as to whether the date of birth of the Respondent in the school register of Giriwar High School, Medininagar was recorded as 15.02.1995 or 15.02.1988 is concerned, it is pertinent to mention here that the said School 61 Election Petition No. 02 of 2020 admission register has not been brought into evidence by proving the same nor the same has been marked exhibit. A copy of the same has been marked X/4 for the purpose of identification only. The said admission register having not been brought on record to be read in evidence, this Court cannot give any definite finding regarding the issue number (viii). The issue number (viii) is answered accordingly.
65. So far as the issue number (ix) as to whether the early education of the Respondent was in villages is concerned, the DW 9 being the Respondent himself has categorically stated in his deposition in this case that his early education was in the village and he was admitted to school belatedly. In his cross-examination, nothing has been asked to challenge this portion of his testimony. There is no contra- evidence adduced by the Petitioner. The Petitioner contended that a presumption was drawn that the Respondent did not have his early education in his village from the failure on the part of the Respondent to put forth in evidence as to how he studied upto Class VIII. But for the failure of the Petitioner to challenge the testimony of the Respondent; who himself was examined as DW 9 that he had his early education formally in the village and was admitted to school belatedly, this Court has no hesitation in holding that the evidence in the record establishes that the Respondent has his early education in the village. Thus, the issue number (ix) is answered in the affirmative.
66. So far as the issue number (x) as to whether at the time of admission of the Respondent in A.A. High School, Guriadamar, 62 Election Petition No. 02 of 2020 Lesliganj, Palamau in Class VIII in the admission-cum-declaration form submitted to the school, the uncle and guardian of the Respondent namely Shri Sunil Chaurasia disclosed his date of birth to be 15.02.1988 is concerned, the DW 5 Shri Sunil Chaurasia has categorically stated that the father of the Respondent namely Anil Chaurasia used to remain busy with politics, hence, the DW 5 took the Respondent for his admission in A.A. High School, Guriadamar, Lesliganj, Palamau and in the admission-cum-declaration form, the date of birth of the Respondent was mentioned as 15.02.1988. The DW 5 identified the signature in 3 places in the admission forms which have been marked exhibit E, E/1 and E/2. No question has been put to the DW 5 in his cross-examination to challenge these portions of his testimony. Nothing has been elicited in the cross- examination to discard or disbelieve his testimony. The Petitioner has not adduced any evidence whatsoever in this respect. Under such circumstances, this Court has no hesitation in holding that the evidence in record is sufficient to establish that at the time of admission of the Respondent in A.A. High School, Guriadamar, Lesliganj, Palamau in Class VIII in the admission-cum-declaration form submitted to the school, Shri Sunil Chaurasia disclosed the date of birth of the Respondent to be 15.02.1988. But Shri Sunil Chaurasia was not the own uncle of the Respondent nor he was the legal guardian of the Respondent rather he was an associate of the father of the Respondent whom the Respondent referred as uncle by village relationship. The issue number (x) is answered accordingly. 63
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67. So far as the issue number(xi) as to whether the Respondent as the student of Class IX of A.A. High School, Guriadamar, Lesliganj, Palamau took transfer certificate from the said the school on 15.04.2008 and took admission in Government taken over school Giriwar High School, Medininagar and in all the school admission register and/or transfer certificate his date of birth was correctly recorded as 15.02.1988 is concerned, there is no dispute from the side of the Petitioner that the Respondent took transfer from A.A. High School, Guriadamar, Lesliganj, Palamau on 15.04.2008 and took admission in Giriwar High School, Medininagar hence the same is answered to be true. So far as the other part of the issue regarding whether in the school admission register and/or transfer certificate his date of birth was correctly recorded as 15.02.1988 is concerned, the Respondent has produced documents to establish the same. The Petitioner contended that as there is no explanation as to why the date of birth has been mentioned as 15.02.1995 in all subsequent documents, hence a presumption be drawn that the school admission register and the transfer certificate of the Respondent did not contain the correct date of birth Respondent to be 15.02.1988. But in the absence of any evidence in the record put forth by the Petitioner in respect of this issue nor as any question in this respect, having been asked by the Petitioner in the cross-examination of any of the relevant witnesses of the Respondent; certainly, the veracity of the contents of any document cannot be disbelieved on the basis of surmises and presumptions. Thus, this Court is of the considered 64 Election Petition No. 02 of 2020 opinion that there is no force in the submission of the Petitioner that the evidence in the record is sufficient to establish that in all the school admission register and/or transfer certificate his date of birth was correctly recorded as 15.02.1988. Thus, the issue number (xi) is answered in the affirmative.
68. So far as the issue number (xii) as to whether the Respondent was not able to get his date of birth as 15.02.1995, mentioned in the School leaving certificate issued by the Giriwar High School, Medininagar, corrected, due to serious illness of his father who later on, died is concerned, the DW 9 being the Respondent himself has categorically stated about the illness of his father and his death. He has further deposed that because of the same, he could not immediately rectify his incorrect date of birth mentioned in the School leaving certificate. This portion of the testimony of the DW 9 remains unchallenged in his cross-examination. Hence, the same is to be treated as true. There is no contra evidence put forth by the Petitioner in respect of this issue. Under such circumstances, this Court has no hesitation in holding that the evidence in the record is sufficient to establish that the Respondent was not able to get his date of birth as 15.02.1995, mentioned in the school leaving certificate issued by the Giriwar High School, Medininagar, corrected due to illness of his father, who later on, died. Thus, the issue number (xii) is answered in the affirmative.
69. Let me now take up the issues number (xiii), (xix) and (xx) together as they are intertwined. Issue number (xiii) is as to whether 65 Election Petition No. 02 of 2020 the Respondent submitted an application for correction of his date of birth and after making detailed enquiry, the Jharkhand Academic Council has corrected all the relevant certificates of the Respondent on 12.02.2014. Issue number (xix) is as to whether the Respondent initiated the change of his date of birth by fraudulent means and by committing forgery, whereas the issue number (xx) is as to whether the Jharkhand Academic Council did not change the date of birth of the Respondent on the basis of the application dated 28.08.2012. Out of the witnesses examined on behalf of the Petitioner, the PW 6 who was the secretary of the Jharkhand Academic Council is the only witness who could have stated about the contention of the Petitioner that the correction of the date of birth of the Respondent was made in an illegal manner by the Jharkhand Academic Council. But it is pertinent to mention here that, as already indicated above in the foregoing paragraphs of this judgment itself not a single question regarding the process in the correction of the date of birth of the Respondent was put to this witness by the Petitioner for the reasons best known to him. The fact remains undisputed that the Respondent submitted an application is for correction of his date of birth dated 28.08.2012 and his date of birth was corrected as 15.02.1988, in all his relevant educational certificates on 12.02.2014. Thus, the issue number (xiii) is answered by holding that the Respondent submitted an application for correction of his date of birth and the Jharkhand Academic Council has corrected all the relevant certificates of the Respondent on 12.02.2014 but no evidence in the record prove to the 66 Election Petition No. 02 of 2020 nature of the enquiry conducted by the Jharkhand Academic Council for effecting the said change in date of birth of the Respondent in all his relevant educational certificates.
70.So far as the issue number (xix) is concerned, it is a settled principle of law that even in a proceeding of civil nature, though otherwise the standard of proof required is preponderance of probability, but if forgery and fraud is pleaded by a party then the particulars of the same, including the date when such fraud and forgery was committed is to be pleaded as is required under Order VI Rule 4 of the Code of Civil Procedure and the standard of proof will be beyond reasonable doubt, so far as the fraud and forgery is concerned. Now coming to the facts of the case, the Petitioner has neither pleaded the detailed particulars of fraud or forgery nor brought any evidence in the record to establish any fraud or forgery, having been committed by the Respondent; in initiating the change of his date of birth. Under such circumstances this court holds that the Petitioner has failed to establish that the Respondent initiated the change of his date of birth by fraudulent means and by committing forgery. Thus, the issue number (xix) is answered in the negative.
71. Now coming to the issue number (xx); as already discussed above, there is no evidence in the record put forth by the Petitioner in this respect. The Respondent has categorically stated that change the date of birth of him was on the basis of the application dated 28.08.2012, but he disowned the annexures to the said application being the photo copy of an Election Photo Identity 67 Election Petition No. 02 of 2020 Card and an unsigned affidavit purported to be that of his mother, which were produced in court, having been submitted by him, along with his said application. There is no reason to disbelieve this portion of the testimony of the DW 9-who is the Respondent himself. Thus, the issue number (xx) is answered by holding that the Jharkhand Academic Council changed the date of birth of the Respondent on the basis of the application dated 28.08.2012.
72. So far as the issue number (xiv) as to whether transfer certificate issued by the A.A. High School, Guriadamar, Lesliganj, Palamau to the Respondent is a tampered document, is concerned, the same has been marked exhibit Q by the DW 8. Nothing has been elicited in the cross-examination of the DW 8 by the Petitioner to show that the exhibit, Q, which is the said transfer certificate issued by the A.A. High School, Guriadamar, Lesliganj, Palamau is a tampered document. Though at the time of hearing of argument, the learned senior counsel for the Petitioner submitted that because of one shortcoming or the other, in the said exhibit Q, the same is a tampered document, but it is pertinent to mention here that this transfer certificate having been proved by the witness in a trial, if at all there were any shortcoming in such document, which could have established the said document is a tampered one as per the Petitioner, the Petitioner ought to have drawn the attention of the DW 8 by way of his cross examination regarding such shortcomings but having not done that and having not put any questions regarding the same to the witness concerned, being the DW 8, 68 Election Petition No. 02 of 2020 certainly it is not open for the Petitioner to raise such shortcomings of the document for the 1st time during the hearing of the argument of this case.
Secondly, as already discussed above, the plea like, forgery and tampering of document; which also amounts to creating a false document, which is an ingredient of forgery, are required to be pleaded specifically by mentioning the manner of tampering. Further, the degree of proof in respect of the plea of tampering, even in a civil proceeding, is beyond the reasonable doubt and not preponderance of probability. Now coming to the facts of the case, the Petitioner has not adduced any evidence whatsoever to suggest that exhibit Q was a tampered document. None from the side of the Petitioner have dared to say on oath that the transfer certificate issued to the Respondent by the A.A.High School, Guriadamar, Lesliganj, Palamau is a tampered document; this Court has no hesitation in holding that the Petitioner has failed to establish that the transfer certificate issued by the A.A. High School, Guriadamar, Lesliganj, Palamau to the Respondent is a tampered document. Thus, the issue number (xiv) is answered in the negative.
73. So far as the issue number (xv) as to whether the Respondent was issued admission card for annual secondary examination 2010 for Class X Board Examination by the Jharkhand Academic Council mentioning his date of birth as 15.02.1995, which was also signed by the Headmaster, Giriwar High School, Medininagar and whether the marks statement of 2010 Annual Secondary Examination of the 69 Election Petition No. 02 of 2020 Respondent dated 10.05.2010 shows that the date of birth of the Respondent is 15.02.1995 is concerned, it is not disputed by either of the parties that at the time of issuance of such documents the date of birth mentioned was 15.02.1995 but later on the same has been changed to 15.02.1988. So, this issue is answered in the affirmative.
74. So far as the issue number (xvi) as to whether the Respondent was admitted in I.Sc. in G.L.A college, Medininagar and his date of birth was filled up as 15.02.1995, and the Admission Form and the character certificate issued by the Headmaster, Giriwar High School, Medininagar also indicates the date of birth of the Respondent is 15.02.1995, is concerned, the same is not disputed by the Respondent, but the Respondent explains under what circumstances the same has been done. Hence, the issue number (xvi) is answered in the affirmative.
75. So far as the issue number (xvii) as to whether the Respondent was not having any voter ID card in the year 2009 and his name was not existing in the voters list issued by the Election Commission of India in the year 2009 as he was less than 18 years of age at that time and as such not eligible to vote in the assembly election 2009 is concerned, it is not disputed by the Respondent that his name was not existing in the voter list of 2009 and he was not having any voter ID card issued by the Election Commission of India. So, this portion of the issue is answered in the affirmative. So far as the 2nd portion of the issue as to whether his name was not existing in the voter list of the year 2009, as by 2009, he did not attain 70 Election Petition No. 02 of 2020 the age of 18 years is concerned, the Respondent who was examined as DW 9 has furnished the explanation as to why his name was not existing in the voter list of the year 2009 by saying that as he was residing at Ranchi and Palamu during that period, and not in his village, hence his name was not existing in voter list of his village. This portion of the testimony of the DW 9 could not be demolished or discredited in any manner by the Petitioner in the cross- examination of the DW 9. There is no plausible reason, as to why this portion of the testimony of the DW 9 is not to be accepted, more so because as has already been held by this court that the Respondent has succeeded in establishing that his date of birth is 15.02.1988. The Petitioner has also not adduced any evidence whatsoever in respect of this issue. Hence, the 2nd portion of the issue is answered in the negative, by holding that the name of the Respondent was not existing in the voter list in the year 2009, because he did not attain the age of 18 years, by that year but because he was staying outside his village at Ranchi and Daltonganj, hence his name is not existing in the voter's list of the year 2009 and obviously in the absence of his name in the voter list, the question of the Respondent being issued with voter's ID card by the Election Commission of India, does not arise. Thus, issue no. (xvii) is answered by holding that the Respondent was not having any voter ID card in the year 2009 and his name was not appearing in the voter's list but the reason for the same is that because he was residing outside his village and not that he did not attain the age of 18 years by then.
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76. So far as the issue number (xviii) as to whether the voter ID card, submitted by the Respondent before the Jharkhand Academic Council for correction of his date of birth upon verification was found to have been issued in the name of Shailendra Kumar Chaurasia, is concerned, the Respondent was examined as D.W. 9, in his deposition has categorically stated that his application for correction of his date of birth did not accompany any voter's identity card. Nothing can be elicited by the Petitioner in his cross- examination, to discredit or disbelieve this portion of the testimony of the D.W. 9. None of the witnesses of the Petitioner, including the Petitioner himself who was examined as P.W. 3, has stated anything to suggest that the Respondent submitted the voter identity card of Shailendra Kumar Chaurasia along with his application for correction of his date of birth or that upon verification the voter's identity card, submitted by the Respondent was found to be of Shailendra Kumar Chaurasia. Hence, this issue is answered in the negative.
77. The issue number (xxii) as to whether the election of the Respondent as a Member of Jharkhand Assembly is fit to be declared void as he was not qualified to be a member of 76, Daltonganj Assembly Constituency under Section 100 (1) (a) of the Representation of the People Act, 1951, issue number (xxiii) as to whether the Respondent was below the age in terms of the Article 173 of the Constitution of India, 1950 on the date of scrutiny of his nomination paper for election to 76 Daltonganj Assembly 72 Election Petition No. 02 of 2020 Constituency and issue number (xxiv) as to what other relief or reliefs the Petitioner is entitled to; are taken up together as they are intertwined. As this court has already held in answer to the issue number (vii) that the date of birth of the Respondent is 15.02.1988, thus obviously he attained the age of 25 years, by the time of filing of the nomination as well as declaration of result for the assembly election of the year 2019; hence this court has no hesitation in holding that there is no justification for declaring the election of the Respondent as a Member of Jharkhand Assembly void on the ground that he was not qualified to be a member of 76, Daltonganj Assembly Constituency under Section 100 (1) (a) of the Representation of the People Act, 1951. Thus, the issue number (xxii) and issue number (xxiii) are answered in the negative. In view of the findings of issue number (xxii) and issue number (xxiii) in the negative, this Court holds that the Petitioner is not entitled to any other relief as well. The issue number (xxiv) is answered accordingly.
78. In view of the discussions made above and the answer to the issues settled as already discussed above, this election petition being without any merit, is dismissed on contest but under the circumstances without any costs.
79. In view of the dismissal of this election petition, the pending interlocutory applications, if any, are dismissed being infructuous.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 18th day of August, 2023 AFR/ Sonu-Gunjan 73