Allahabad High Court
Nanje Kumar vs A.D.J. & Ors. on 3 July, 2010
Author: V.K. Shukla
Bench: V.K. Shukla
1
A.F.R.
Reserved on 19.05.2010
Civil Misc. Writ petition No.62897 of 2009
Nanje Kumar
Versus
Additional District Judge and others
Hon'ble V.K. Shukla,J.
Present writ petition has been filed for quashing of the judgment dated 01.09.2007 (Annexure -14 to the writ petition) passed by the Sub-Divisional Magistrate, Salempur, Deoria, allowing the election petition preferred under Section 12C of the U. P. Panchayat Raj Act, 1947 and the order of its affirmance in revision by judgment dated 04.11.2009 passed by Special Judge, E.C. Act, Court No.5, Deoria.
Brief background of the case is that election for the post of chairman of Town Area Malkauli, Block and Tehsil Salempur, District Deoria, was held. In the said election, the petitioner was one of the contestants along with 11 others. As per petitioner, at the time of filing nomination paper no objection was raised by any of the candidates either before the Nomination Officer or before the Returning Officer about the age of the petitioner and the nomination of the petitioner was found to be valid. The petitioner along with others contested the election and won the same. One Ashok Kumar filed election petition on 27.09.2005, contending therein that the petitioner was disqualified from contesting the election, as he was below 21 years of age at the time of election. The petitioner filed his written statement, taking plea that he was above 21 years of age at the time of filing nomination papers and his nomination paper was even accepted. In the written statement so filed, the petitioner mentioned his date of birth as 08.08.1983. Petitioner stated that certain mistakes had crept in written statement qua the correct date of birth, therefore, amendment application was moved on 27.10.2006 for correcting the mistake, which was initially turned down by the Election Tribunal, but ultimately allowed, pursuant to order passed by this Court in writ petition No.4234 of 2007. Petitioner submits that in support of his claim, he got examined himself and statement of Awadhesh Kumar, Ram Sarikha Yadav, Sri Indrasan and Sri 2 Moti Lal were also recorded. In the shape of documentary evidence, the petitioner produced certificate dated 30.08.2006 of Junior High School, Berdiha, copy of transfer certificate dated 30.08.2007 along with transfer certificate dated 18.08.2007 having registration No.27335; transfer certificate dated 07.07.2002 from Swami Devanand Intermediate College, voter I.D. Card and cross list of High School Examination, in which he had failed in 1997. From the side of respondent, the respondent got examined himself along with one Hansnath Yadav. The Election Tribunal considered the matter at length and on 01.09.2007 passed order holding the petitioner's age below 21 years, as such under the provisions of U.P. Panchayat Raj Act, 1947, he was disqualified to hold the office of the Chairman. Aggrieved against the said order, the petitioner preferred revision. Revision was filed by Ashok Kumar also. Dfuring pendency of revision , records were summoned and requisite documents were filed through the clerk of the institution. Ashok Kumar, election petitioner, withdrew his revision and accepted date of birth of petitioner as 16.07.1981, by moving application dated 14.05.2008. Qua the revision preferred by petitioner, same was objected to by Sri Indal Prasad and Sri Ajai Kumar, though they had not filed any election petition, questioning the validity of election of petitioner. Thereafter revision preferred has been dismissed. At this juncture present writ petition has been filed.
Sri Arvind Srivastava, Advocate, contended with vehemence that the finding that petitioner was ineligible to contest the election being less than 21 years of age, is uncalled for, whereas documentary evidence available on record clearly demonstrates that the petitioner was not at all disqualified to contest the election, rather he was qualified to contest the election of Chairman being above 21 years of age, as such the orders passed by the Prescribed Authority as affirmed in revision is liable to be quashed, and writ petition, as it has been framed and drawn is liable to be allowed.
Countering the said submission, Sri S.N. Singh, Advocate, on the other hand, contended that manipulations and manoeuvring made by the petitioner had been duly exposed and were visible even from the naked eyes; as such no interference should be made.
After respective arguments have been advanced, factual position which emerges in the present case, is that the election for the post of Chairman of Town Area Malkauli had taken place, wherein petitioner was declared as 3 elected. Section 5A of the U.P. Panchayat Raj Act, 1947 provides that a person shall be disqualified for being chosen, nominated or appointed to, and for holding any office in the Gaon Sabha or Gaon Panchayat or the Nyaya Panchayat constituted under Section 42, if he is, for the time being in force, not a member of the Gaon Sabha concerned, but no person shall be disqualified on the ground that he is less than 25 years of age after he has attained the age of 21 years. Said proviso is in consonance with the constitutional mandate, provided under the proviso to Article 243-F of the Constitution, holding the field of disqualification.
Petitioner applied for being elected by filing his nomination paper, and on record at no point of time before the Nomination Officer any objection had been filed by any contestants contending therein that on the ground of age, petitioner was disqualified and he could not contest the election. His nomination paper was found valid, based on the same, petitioner contested the election and was declared elected; thereafter election petition has been filed questioning his election on the ground of age being disqualified to contest election being below 21 years of age and accordingly necessary declaration be made on the said front. Necessary declaration of petitioner being disqualified has been made on age front, said finding is subject matter of challenge.
At this juncture, various pronouncements of this Court, other Courts, as well as Hon'ble Apex Court, on the question of determination of age are being looked into. Hon'ble Apex Court, in the case of Brij Mohan Singh vs. Priya Narain Sinha and others, AIR 1965 SC 282 has taken the view that in actual life it often happens that persons give false age of the boy at the time of admission to a school, so that later in life, he would have advantage when seeking public service for which a minimum age for eligibility is often prescribed. The court of fact cannot ignore this facet while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon the false information supplied with the above motive. Paragraphs 20 and 21 of the said judgment being relevant are quoted below:
"20. An objection was faintly raised by Mr. Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant's date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the 4 request of the person who went to get him admitted to the school, the request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant's case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellant's age on the entries in these three documents. viz., Ex. 2, Ex. 8 and Ex. 18.
21. On an examination of the entire evidence, oral and documentary, we therefore reach the position that the petitioner- respondent has not been able to prove that the appellant Brij Mohan was below 25 years of age on the date of filing of nomination papers while the appellant himself has also not been able to show that he was at least 25 years of age on that date. It cannot be disputed and is not disputed that the burden of proving that the appellant's age was below 25 years on the date of his nomination was on the petitioner-respondent. The petition in so far as it is based on the ground that the appellant was below 25 years of age on the date of his nomination must therefore fail."
This Court in the case of Kuber Nath Tewari vs. A.D.J. 1993 A.C.J. 290, took the view that when party states another date as his date of birth and leads evidence, which is found to be false and forged, the date of birth noted admittedly in the High School Certificate, has to be made the basis of date of birth. This Court again, though in the context of determination of age for treating an incumbent to be juvenile under Juvenile Justice Act, took the view that High School certificate under Section 35 of the Evidence Act, can be relied upon, and if either side intends to challenge the same, the entire burden would be on the said party. In the case of Meenu vs. IIIrd Additional District Judge, 2001 R.D. 551, this Court took the view that medical opinion merely gives approximate idea of age, and same cannot prevail over High School Certificate.
Hon'ble Apex Court, in the case of Harsh Kumar vs. Bhagwan Sahai Rawat and others, (2003) 7SCC 709, took the view that onus to prove the age of the candidate is on election petitioner. Once neither the election petitioner nor any other candidate nor Returning Officer raised any objection as to the age of that candidate at the time of scrutiny of nomination papers, then 5 in such a situation, it cannot be said that the age of the candidate was less than 25 years merely on the basis of mark-sheet. Paragraphs 5, 6 and 7 of the judgment being relevant are being quoted below:
"5. As per the nomination paper of Daler Singh, who was a candidate of Bahujan Samaj Party, his age was 25 years and one month as on 3rd February, 2000 being the last date for filing nomination. He had filed an affidavit before the Returning Officer giving this age. Neither the appellant, nor any other candidate nor the Returning Officer raised any objection as to the age of Daler Singh. Daler Singh was also not asked to file any document in support of the proof of his age. The sheet anchor of the claim of the appellant as to the age of Daler Singh is Exhibit A-36 wherein date of birth of Daler Singh has been shown as 10th July, 1975. If that be so, Daler Singh would be less than 25 years of age and not qualified to contest the election. Exhibit A- 36 is a mark sheet issued by Government Senior Secondary School, Aurangabad, Bhiwani, Haryana giving the details of various students with their roll Nos., marks obtained in various subjects, the result as also the date of birth. Exhibit A-36 was proved by P.W. 9 (Raman Vohra), Superintendent, Haryana Education Board. In cross-examination, P.W. 9 stated that his office does not make any verification about the date of birth while declaring the result of a candidate and also that in their office, there is no birth certificate of Daler Singh.
6. To appreciate the aforesaid evidence, it is further to be kept in view that neither Daler Singh was examined as a witness nor his father Girraj Singh and also that no objection was taken at the time of the scrutiny of the nomination. Further, Exhibit R-216 is the admission card in respect of admission of Daler Singh in school. The date of birth of Daler Singh as mentioned in Exhibit R-216 is 18th November, 1974. The document purports to have been signed by father of Daler Singh as well. Exhibit R-219 is a school leaving certificate. In this document too, on the basis of particulars in R?216, the date of birth of Daler Singh recorded is 18th November, 1974. Exhibit A-40 is a certificate issued by Civil Surgeon, Faridabad which records the date of birth of Charan Singh another son of Girraj Singh as 12th December, 1975. If that is so, the date of birth of Daler Singh cannot be 10th July, 1975. The onus to prove the age of Daler Singh so as to succeed in the plea that his nomination paper was improperly accepted was on the appellant. The appellant has failed to prove the age of Daler Singh. In view of the aforenoticed evidence, Daler Singh cannot be held to be less than 25 years of age merely on the basis of mark sheet (Exhibit A-36). It cannot therefore, be held that the nomination paper of Daler Singh was improperly accepted.
7. There is also another hurdle in the way of the appellant, namely, the proof of the fact that as a result of improper acceptance of nomination paper of Daler Singh, the result of the election has been materially affected. The election of respondent No. 1 can be set aside on the ground of improper acceptance of nomination paper of Daler Singh only when the appellant further establishes that as a consequence of such improper acceptance, the result of the election has been materially affected. In Vashisht Narain Sharma v. Dev Chandra and others (AIR 1954 SC 513), this Court, while construing the words "the result of the election has been materially affected," has held that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a 6 manner between the contesting candidates as would have brought about the defeat of the returned candidate. Onus of proving it lies upon the person who challenges the election and in case satisfactory evidence is not adduced, the result of the election would not be interfered. This decision has been cited with approval in catena of the subsequent decisions (See Santosh Yadav v. Narender Singh (2002) 1 SCC 160). It has again been reiterated by this Court that the success of a winning candidate at a election should not be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why, the scheme of S. 100 of the Act, especially Cl.(d) of sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to (iv) of Cl. (d), the election of a returned candidate shall not be avoided unless and until it is proved that the result of the election, insofar as it concerns a returned candidate was materially affected. In the instant case, there is no evidence to show the material effect on the election of respondent No. 1 assuming that the nomination paper of Daler Singh was improperly accepted. We are, thus, in agreement with the view expressed by the High Court both on the question of acceptance of the nomination paper of Daler Singh as also on the aspect of material effect on the election of the returned candidate."
Hon'ble Apex Court, in the case of Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, took the view that initial burden is on the election petitioner to prove the allegation made therein and then onus shifts on the candidate to prove the fats which are within his special knowledge, and where both the parties adduce evidence, question of burden of proof becomes academic and the age of a candidate has to be determined on the basis of material on record as well as attending circumstances. Paragraphs 23, 24, 25, 26, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 56, 58 and 59 being relevant are being extracted below:
"RELEVANCE OF PRESCRIBED AGE :
"23. The Constitution of India, the Representation of the People Act and the rules made thereunder had been enacted to protect the purity of the election. Article 173 of the Constitution of India underlines a salutary object. It postulates that a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he is not less than twenty-five years of age in the case of a seat in the Legislative Assembly. A person although may become entitled to vote on attaining majority, the makers of the Constitution deliberately inserted Clause (b) in Article 173 so as to enable the voters to elect a person who has attained maturity and experience in life. Only a matured and experienced person can represent the people and take steps which would be beneficial to the electorates.
24. Section 36(2) of the Representation of the People Act, 1951 castes a mandatory duty on the returning officer to examine the nomination papers and take a decision on all objections which may be made upon making an inquiry in that behalf, which would include the question as to whether the requirement of Article 173 has been fulfilled or not by the candidate. The effect of the aforementioned provision is that a candidate is not qualified unless he has attained the age 7 specified in the clause on the date fixed for scrutiny of nomination. (See Amritlal Ambalal Patel v. Himatbhai Gomanbhai Patel and another, 1969 (1) SCR 2777). AIR 1968 SC 1455
25. It is beyond any cavil that in the event a person is elected who does not fulfill the constitutional requirements, the election would be void despite the fact that the returning officer has accepted his nomination paper. (See Durga Shankar Mehta v. Thakur Raghuraj Singh"
26. Such a question indisputably would fall for consideration in an election petition where the parties would be entitled to adduce evidence in support of their respective cases. (See Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604). AIR 1988 SC 1798"
BURDEN OF PROOF :
28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.
29. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the election petitioner.
31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute. (See Orissa Mining Corporation and another v. Ananda Chandra Prusty, AIR 1997 SC 2274). 1997 AIR SCW 2145
32. The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic. (See Union of India and others v.
Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32, (Para 14) and M/s. Cox and Kings (Agents) Ltd. v. Their Workmen and others, AIR 1977 SC 1666, (Para 36)). Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established. AIR 1976 SC 1414 1977 Lab IC 897 INSTITUTIONAL RECORDS/CERTIFICATES :
33. Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so.
34. In the aforementioned backdrop the evidences brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any reasonable person .
56. As the respondent only had special knowledge as to in which school did he study; he should have disclosed the same. It is relevant to note that the respondent in his deposition alleged that he started his education in some school at his native village, but for reasons best known to him no details thereof or 8 document to prove the same were brought on record.
58. The respondent instead of disclosing the said facts took recourse to suppressio veri and suggestio falsi. He produced documents which are apparently forged and fabricated. He, according to DW7 could not have been admitted in New St. Xaviers Junior School being overaged. The High Court has relied upon the evidence of the father of the respondent but he is not trustworthy keeping in view the fact that he not only denied that any inquiry made by the Chief Electoral Officer on the application filed by Shri P. K. Sinha but even went to the extent denying that the respondent had in a criminal case filed any application for bail.
59. He denied with impunity the factum of the complaint made by Shri P. K. Sinha to the Governor of the State of Bihar as also the inquiry proceedings conducted in that behalf. When through the media a large section of people of Bihar came to know about such inquiry and the result thereof, it is unbelievable that the father of the respondent who not only was in politics but also was a member of Parliament would be totally ignorant thereabout. He is, thus, a totally untrustworthy witness. It is well known that a man may lie but the circumstances do not."
Hon'ble Apex Court, in the case of Ram Suresh Singh vs. Prahlad Singh, AIR SCW 2006, has reiterated the same principles.
Full Bench of Jharkhand High Court in case of Kamta Pandey vs. M/S B.C.C.L. And others, 2009 (4) ESC, took the view that date of birth recorded in Matriculation Certificate duly certified by Education Board is conclusive proof of age, and other records are of no consequence.
The parameter set out are, that election tribunal while determining an issue of such nature has to bear in mind that Article 243-F of the Constitution of India provides for disqualification in respect of being chosen and for being member of Panchayat, and in consonance with the said constitutional spirit Section 5A of the U.P. Panchayat Raj Act deals with disqualification, and in such a situation Election Tribunal is to see and ensure that a person is not permitted to occupy the office who is disqualified to hold the office under the Constitution and the Act and at the same time has also to ensure that a person qualified to hold the office is not unseated in the garb of such determination. Election Tribunal is to proceed with care and caution, as wish of the electorate and election of representatives of people is not to be set aside on flimsy ground coupled with the duty to see and ensure that constitutional mandate is fulfilled. The age of person has to be determined not only on the basis of materials placed on record but also upon circumstances attending thereto.
On the parameters as set out, facts of the present case are being adverted to. In the present case admitted position is that the petitioner had undertaken High School examination on two occasions. In the first attempt, he 9 took High School examination conducted by Madhyamik Shiksha Parishad in the year 1997, wherein his date of birth was shown as 16.07.1981. Since in the first attempt, the petitioner had failed in high school examination, on subsequent occasion, petitioner appeared in High School examination in the year 2000, and this time his date of birth was shown to be 15.04.1985. This Court noted this fact in detail on 14.12.2009 and passed the following order:
"Learned counsel for the petitioner states that the records of the Board of High School & Intermediate were placed before the Prescribed Authority in 2000 when the election petition was being heard and from the two tabulation charts, a dispute had arisen as to whether the date of birth of the petitioner is 16th July, 1981 or 15th April, 1985. Both these tabulation charts were produced by the Board. The Court is surprised that till date the Board has not conducted any enquiry in the matter particularly when the tabulation chart of the year 1997 shows that the father of the petitioner is Rajendra Kumar whereas the 2000 tabulation chart shows that the father of the petitioner is Rajendra Prasad. The Board must come out with a specific case within a period of two weeks from today and also explain why the Board has not conducted any enquiry for the last 9 years. The Regional Secretary, Board of High School & Intermediate U.P. must file his personal affidavit in this matter. The petitioner must also file the High School mark-sheets of the year 1997 and 2000 as also the certificates within the stipulated period.
List this petition on the top of the list on 23rd December, 2009. It is made clear that no further time shall be granted."
Thereafter in pursuance of the order dated 14.12.2009, enquiry was conducted and following report was submitted on 18.12.2009, which is appended along with supplementary counter affidavit:
^^LFkyh; tkW ap vk[;k ekuuh; mPp U;k;ky; esa ;ksftr ;kfpdk la0 62897@09 ls lEcfU/kr uUt; dqekj ds tUefrfFk ds lR;kiu gsrq LFkyh; tkWap djus lEcU/kh vkids vkns'k fnukad 16-12-2009 dk vuqikyu djus gsrq tuin nsofj;k ds tkWap ls lEcfU/kr fo|ky;ksa esa tkdj ;kph dh tUefrfFk dk lR;kiu Nk=iaftdk ¼S.R.½ ls feyku fd;k x;k ftldk fooj.k fuEukafdr gSA 1- Lokeh nsokuUn b.VjehfM;V dkyst eBykj nsofj;k ds Nk=iaftdk ¼S.R.½ esa ;kph dh tUefrfFk 16-07-81 ntZ ik;h x;hA ;ksftr ;kfpdk ds i`"B la0 73 ij layXu Vh0lh0 Nk;kizfr esa Nk=iaftdk la0 7335 gS tcfd fo|ky; }kjk ifj"kn dk;kZy; dk;Z gsrq izLrqr Vh0lh0 iaftdk la0 27335 irkdk ^d* Nk;kizfr layXu gSA blh fo|ky; ls ;kph o"kZ 1997 dh gkbZLdwy ijh{kk esa vuqdzekad 114955 ls vuqRrh.kZ gqvk gSA iqu% o"kZ 2000 dh gkbZLdwy ijh{kk esa ;kph vuqdzekad 1484321 ls blh fo|ky; ls ijh{kk esa lfEefyr gqvk vkSj mRrh.kZ gks x;kA ftlls ;kph dh tUefrfFk ifj"kn ds x.kd iaftdk rFkk fo|ky; ds x.kd iaftdk esa 15-04-85 vafdr gSA tUefrfFk esa vk;s vUrj dh tkap fo|ky; Lrj ls ugha dh x;h u rks ;kph }kjk tUefrfFk ds la'kks/ku gsrq fdlh Lrj ij izkFkZuk i= izLrqr fd;k x;kA 10 blls ;kph dh fu"Bk lafnX/k izrhr gksrh gSA 2- iwoZ ek/;fed fo|ky; cjMhgk nsofj;k ds Nk= iaftdk ¼S.R.½ esa Hkh pk;h dh tUefrfFk 16-07-81 gh ntZ ik;h x;h ftls lgk;d csfld f'k{kk vf/kdkjh }kjk lR;kfir fd;k x;k] ntZ ik;k x;kA 3- izkFkfed fo|ky; cjMhgk nyir rglhy lyseiqj ftyk nsofj;k ds Nk=iaftdk ¼S.R.½ ds dze 3581 ij ;kph dh tUefrfFk 11-7-81 vafdr ik;h x;hA Nk= iaftdk dh Nk;kizfr irkdk ^[k* layXu gSA bl izdkj iwoZ ek0 fo0 cjMhgk rFkk Lokeh nsokuUn b.Vj dkyst eBykj nsofj;k }kjk izLrqr dh x;h Nk=iaftdk;ksa ¼S.R.½ esa ;kph uUt; dqekj iq= Jh jktsUnz izlkn dh tUefrfFk 16-07-81 gh vafdr ik;h x;hA o"kZ 1997 dh gkbZLdwy ijh{kk esa vuqdzekad 114955 ij ;kph dh tUefrfFk ifj"kn dk;kZy; ds x.kd iaftdk ¼T.R.½ esa 16-07-81 vafdr gS rFkk vuqRrh.kZ gSA tcfd o"kZ 2000 dh gkbZLdwy ijh{kk esa x.kd iaftdk ¼T.R.½ esa vuqdzekad 1484321 ij ;kph dh tUefrfFk 15-04-85 vafdr gS rFkk ;kph f}rh; Js.kh esa mRrh.kZ gSA mDr o"kksZa dh ijh{kk esa tUefrfFk esa vk;h fHkUurk dk fdlh Hkh Lrj ls laa'kks/ku gsrq dk;Zokgh ugha djk;h x;hA g0 vLi"V 18-12-09 milfpo ¼tkWap vf/kdkjh½ d`rs vij lfpo] {ks0 dk0 ek0 f'k0i0] okjk.klhA** The order passed by the Election Tribunal proceeds to indicate that for the purposes of determination of age, the High School certificate, wherein the petitioner had passed examination, has been taken into account. The Election Tribunal has been of the opinion that the documents wherein the petitioner had failed cannot be taken into account. The view taken by the Election Tribunal, on this score, as affirmed in revision, cannot be subscribed, inasmuch as, the issue before the Tribunal was as to whether the petitioner was disqualified for contesting the election on account of being under age, when he had filed his nomination paper. Being pass or fail in the examination was not relevant criteria; relevant criteria was as to what was the correct age of the petitioner. Once petitioner had appeared in High School examination in 1997 and cross list on said score was available, same under Section 35 of Indian Evidence Act, was also relevant material, as it was document maintained in terms of statute by Statutory Authority in regular course of business, and therein his date of birth was shown 16.07.1981, in such a situation, such a document ought to have been considered in its correct perspective, as it cannot be presumed that keeping in mind that in future after eight years the petitioner 11 would contest the election, such a declaration was made by him. It may be that the petitioner may have been untruthful before the Madhyamik Shiksha Parishad, on the second occasion and for the same Madhyamik Shiksha Parishad, as per existing provision under the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder, is free to take action against the petitioner, but in democratic set up, disqualification has to be seen in the context in which it has been alleged. The approach of the Election Tribunal was erroneous in the present case, once it proceeded to totally ignore the High School Cross-list, which was of the year 1997, wherein date of birth had been shown as 16.07.1981, and by proceeding to rely on the High School Certificate of the year 2000, wherein date of birth shown was 15.04.1985 and finding fault with the documents submitted by petitioner. In the present case, it was not at all totally safe to rely blindly on High School Certificate wherein date of birth was shown as 15.04.1985, in view of existence of document in the shape of cross-list, wherein entry of date of birth was recorded as 16.07.1981. Both the documents were relevant in terms of Section 35 of the Indian Evidence Act, and there being contrary dates of birth recorded therein, then much more exercise was required to be undertaken, for determining the age of petitioner, based on the documentary as well as oral evidence. Transfer Certificate issued from Junior High School as well as from the concerned school, do not satisfy the requirement of Section 35 of the Indian Evidence Act, and have been found not reliable, in the aforesaid backdrop, as in statutory records two contradictory dates of birth were available, then on record there ought to have been available reliable evidence to show, as to which of the said two dates of birth was recorded in the records maintained on the basis of statement of any responsible person, well aware about the birth of petitioner. On the asking for of this Court, Madhyamik Shiksha Parishad has found the petitioner's date of birth in the records maintained by Purva Madhyamik Vidyalaya, Berdih, District Deoria as 16.07.1981 and also in the records maintained by Prathamik Vidyalaya Berdih, Tehsil Salempur, District Deoria as 11.07.1981. Once this is the factual scenario, then in the facts of the case opinion formed that the petitioner was less than 21 years of age, cannot be subscribed, as no independent exercise has been undertaken to determine the age of the petitioner on the basis of evidence adduced.
Consequently, present writ petition succeeds and allowed. The 12 impugned order dated 01.09.2007 passed by the Election Tribunal as affirmed by order dated 04.11.2009 passed by Revisional Court is quashed and set aside.
03.07.2010 SRY