TMI Blog2003 (10) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... on papers was 31.1.2000 whereas the scrutiny thereof was to be done on 1.2.2000. The candidature could be withdrawn by 3.2.2000. The date of polling was 17.2.2000 and the counting of the ballot papers was to be done on 25.2.2000. In the said election the respondent succeeded. The election petition was filed by the appellant herein solely on the ground that the respondent, at the time of filing his nomination paper being not above the age of 25 years as mandatorily required under Article 173(b) of the Constitution of India was not entitled to file his nomination. ELECTION PETITION : In his election petition, the appellant, inter alia, contended that the objection as regard the age of the respondent was made in writing before the returning officer but the same was rejected without giving an opportunity of hearing to him, purported to be on the ground that such objection had been filed in relation to one Rakesh Kumar alias Samrat Choudhary while the nomination paper had been filed by Rakesh Ku. According to the appellant, the respondent s date of birth was 1.5.1981 which would appear from a certificate issued by the Bihar Secondary School Examination Board wherein the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally although he was under qualified as alleged in the election petition? iii) Whether the election petition suffers from statutory defects as contemplated under the Representation of People Act? iv) What relief, if any, the election petitioner is entitled to? JUDGMENT OF THE HIGH COURT : Issues Nos. (i) and (iii) were decided in favour of the appellant. As regard Issue No.(ii), the parties adduced both oral and documentary evidences. For the purpose of analyzing the materials on records, evidences brought on records were divided by the High Court in the following seven categories : i) Order of His Excellency the then Governor of the State of Bihar and the report of the Chief Electoral Officer, Bihar, which have been marked as Exhibit-4 and Exhibit-8/A. ii) The age records of Rohit Kumar son of Sri Shakuni Choudhary such as Ext.5, Ext.5/1 and Ext.5/2. iii) The age recorded of Samrat Chandra Morya son of Shakuni Chouhdhary as 1.5.1981 in the application form for appearing in the examination of Secondary School Annual Examination, 1996 as per Ext.6 and Ext.6/1. iv) Minority mentioned in the bail petition moved for and on behalf of the respondent Rakesh Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been proved by Mrs.Reshmi Kumari, D.W.7, who happens to be the in charge Principal of that school. Although from the seriality and the other entries maintained in the register some question marks are there but on the face of the records it appears that against the entry no.312 wherein the name of the respondent was being entered with all its particulars including the date of birth being verified by the father of the respondent who put his signature acknowledging the veracity of the particulars being recorded under that serial number... (vii) Although Ext. E and Ext. F are not of much help in construing the actual date of birth of the respondent but they are annexed to show that in the year 1995 he became eligible to vote. SUBMISSIONS : Mr. S.U. Abbas, learned counsel appearing on behalf of the appellant would, inter alia, submit that the respondent was having four names, namely, (i) Rakesh Kumar, (ii) Rakesh Ku, (iii) Samrat Choudhary; and (iv) Samrat Chandra Maurya. The first three names being admitted, the finding of the High Court that he was not known as Samrat Choudhary must be considered in the light of the finding of the Governor of the State of Bihar wherein in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate (Ext.I) and voter register and election identity card (Exts.E and F), insofar as if the former is taken into consideration, the respondent would have been of 26 years of age as on 1.1.1995 whereas he would be aged 24 years as per the voter register and election identity card. The learned counsel would lastly contend that the respondent having not questioned the findings contained in the Inquiry Report of the Chief Electoral Officer as also the order of the Governor of the State of Bihar, must be held to be estopped and precluded from contending that he was major on the date of filing of the nomination. Mr. P.K. Mullick, learned counsel appearing on behalf of the respondent would, on the other hand, submit that the Governor of the State of Bihar while passing the order (Ext.4) committed an error of fact in holding that the father s name as also the residential address of the respondent were admitted despite the fact that no residential address was mentioned in the letter of the Secretary, Bihar Secondary School Examination Board. The learned counsel would urge that only because the father s name of the respondent was Shakuni Choudhary, the same by itself could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 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 specified in the clause on the date fixed for scrutiny of nominations. [See Amritlal Ambalal Patel vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 vs. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,(Para 14) and M/s Cox and Kings (Agents) Ltd. vs. 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. INSTITUTIONAL RECORDS/CERTIFICATES : 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to state that the item No. 12 i.e. Examination application form of the year 1996 is no more available in the office of the Board, such forms are not kept for over long period. The only record which is properly be kept in the Board in Tabulation Register and as per the details mentioned in the Sl. No. 12 13 of the Election Petition, on Roll Code 3218, Roll No. 19 of Secondary School Examination Annual Examination 1996, the following details are printed in the Tabulation Register of the Board. Name of the School : K.N.V.M. H.S. KUMARSAR Name of candidate : SAMRAT CHANDRA MOURA Father s name : SHAKUNI CHOUDHARY Date of Birth : 01.05.81 (First May eighty one) Result Fail Total Marks 268 Category private It, thus, appears that the Bihar School Examination Boards was possessed of the election petition or the nature of particulars in relation to the respondent. The name and address of the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Even in the election petition the same address has been disclosed. DW 2 in his examination in chief itself admitted that Samrat Choudhary was the second son of Shakuni Choudhary. The High Court should not have brushed aside the said statement. It is pertinent to note that admittedly even his brother had an alias name. The finding of the High Court in this behalf is contradictory and inconsistent. It may, therefore, safely be concluded that the respondent was also known as Samrat Choudhary. REPORT OF THE CHIEF ELECTORAL OFFICER AND THE ORDER OF THE GOVERNOR OF THE STATE OF BIHAR : The report of the Chief Electoral Officer had been marked exhibit without any objection. A contention could validly be raised that the said report is not admissible in evidence, but the counsel for both the parties relied thereupon and placed before us the findings recorded therein in extenso. The parties cannot be permitted to rely upon a part of a document and at the same time raise a contention that the same is inadmissible. The said report is, thus, admissible in evidence, although it may not have any statutory backing. In any event, having regard to the pleadings of the parties as also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, thus, be safe to infer that he had accepted the said report and the order of the Governor subsilentio. ELECTORAL ROLL AND ELECTION COMMISSION OF IDENTITY CARD : In both the aforementioned documents the age of the respondent was stated to 24 years as on 1.1.1995. According to the respondent he was born in 1968 and, thus, on the said date he would have been more than 24 years of age. Why such an inconsistency crept in has not been explained. The High Court, however, did not give much importance to the said fact and proceeded on the basis that these documents go to show that the respondent was major on that day. It is conceded by Mr. Mullick, learned counsel appearing on behalf of the respondent that the date of birth of a voter contained in the voter list and the election identity card issued by the Election Commission of India is not conclusive. They are recorded as per the statements made by the person concerned. Be that it may, it was for the High Court and consequently for this Court in appeal to consider the said materials on records in their proper perspective. We may, however, observe that the said documents do not conclusively show that the respondent was major on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Junior School. This, however, has not been corroborated by any other witness. The school register (Ext.D) and (Ext.I) were, thus, required to be taken into consideration in their proper perspective by the High Court, which was not done. The respondent purported to have read in Class II to Class IV from 12.11.1980 to 13.11.1983 whereas he allegedly read in Swami Vivekananda School, Mithapur from 12.4.1984 to 31.12.1986 from Class V to Class VII. He attended classes from the middle of the session. But still he is said to have completed his studies from Class II to Class IV within three years and V to VII only in two years 8 months. The respondent as on the date of admission in Class II would have been aged about 12 years. If the evidence of the Vice-Principal is to be believed, the same was impermissible inasmuch as the maximum age for admission in Class I was 5 years. It is difficult to believe that a boy aged about 15 years would be reading in Class IV in a Christian School situate in the heart of the State capital. 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 he respondent in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worthy witness. It is well known that a man may lie but the circumstances do not. HOROSCOPE : The horoscope purported to have been filed by the respondent does not inspire confidence. It was said to have been prepared at the instance of one Damodar Pathak. It was purported to have, however, been written by his brother. DW2 was a by-stander. He had nothing to do either with the preparation of horoscope or with the writing thereof. His evidence is, thus, not trustworthy. The horoscope, therefore, could not have been looked into by the High Court for any purpose whatsoever. The paper on which the said horoscope has been drawn up does not appear to be an old one. It is self-serving document. Furthermore, the maker of the horoscope being dead could not be examined to prove as to what was the primary evidence of date and time of the birth of the respondent on the basis whereof the same was prepared. BAIL APPLICATION : It is not in dispute that an application for bail was filed in a case in which the respondent as well as his father were accused. It is difficult to eschew the contention raised on behalf of the respondent that the statements made in the bail application were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter, the court must draw an adverse inference in this behalf against the respondent. Furthermore, a person should not be permitted to take advantage of his own wrong. He should either stand by his statement made before a court of law or should explain the same sufficiently. In absence of any satisfactory explanation, the court will presume that the statement before a court is correct and binding on the party on whose behalf the same has been made. ROHIT KUMAR @ RAJESH KUMAR : The contention of the appellant in this behalf assumes significance in the peculiar facts and circumstances of the case. The appellant in paragraph 18 of the election petition alleged : That it is most significant and relevant to state here that the elder brother namely Sri Rajesh Kumar of Sri Rakesh Kumar was and is a student of B.I.T. Meshra School where he got his age recorded as 22 years on 28.7.1999. So an easy and clear conclusion can be drawn that his younger brother namely Rakesh Kumar was at least less than 22 years in the year 1999. The said statements, as would appear from paragraph 15 of the written statement, had not been traversed in accordance with law. Paragraph 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...It is true that it has not been specifically stated in the reply to paragraph 18 of the election petition that Rajesh Kumar happens to be younger brother of Rakesh Kumar but making him an elder brother has been totally denied. In that way, it cannot be said that only evasive reply is there and when this fact could not be proved by any cogent evidence from the side of the election petitioner that Rajesh Kumar happens to be the elder brother of the respondent Rakesh Kumar rather when contrary evidence is there from the side of the respondent then the age group of Rohit Kumar @ Rajesh Kumar does not come in aid to the election petitoner to prove the underage of Rakesh Kumar the respondent. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order VIII, Rules 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidences adduced on behalf of the appellant in this behalf in details but merely rejected the same summarily stating that the vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raditions and conventions of a Court wherein such pleadings are filed. In this context the decision in Tildesley v. Harper will be useful. There, in an action against a lessee to set aside the lease granted under a power the statement of claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances; the statement of defence denied that that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given. The Court held, under rules corresponding to the aforesaid rules of the Code of Civil Procedure, that the giving of the bribe was not sufficiently denied and therefore it must be deemed to have been admitted. Fry J. posed the question thus : What is the point of substance in the allegations in the statement of claim ? and answered it as follows : The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley, and that point of substance is nowhere met ........ no fair and substantial answer is, in my opinion, given to the allegation of substance, namely that there was a bribe. In my opinion it is of the highest importance that this rule of pleading s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. CONCLUSION : The election Tribunal while determining an issue of this nature has to bear in mind that Article 173(b) of the Constitution of India provides for a disqualification. A person cannot be permitted to occupy an office for which he is disqualified under the Constitution. The endeavour of the court shall therefor should be to see that a disqualified person should not hold the office but should not at the same time, unseat a person qualified therefor. The court is required to proceed cautiously in the matter and, thus, while seeing that an election of the representative of the people is not set aside on flimsy grounds but would also have a duty to see that the constitutional mandate is fulfilled. The upshot of the discussions aforesaid is that the materials on records taken in their entirety together with the circumstantial evidence goes to show that the respondent was not above the age of 25 years on the date of filing of the nomination. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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