<p><strong>HELD - "in the scholar’s register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined.”</strong></p>

Important Leading Judgements

Birad Mal Singhvi vs Anand Purohit

Head Note

Supreme Court of India : Upload Date - 9/19/2015

HELD - "in the scholar’s register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined.”

PETITIONER:

BIRAD MAL SINGHVI

Vs.

RESPONDENT:

ANAND PUROHIT

DATE OF JUDGMENT02/08/1988

BENCH:

SINGH, K.N. (J)

BENCH:

SINGH, K.N. (J)

VENKATARAMIAH, E.S. (J)

CITATION:

1988 AIR 1796 1988 SCR Supl. (2) 1

1988 SCC Supl. 604 JT 1988 (3) 389

1988 SCALE (2)328

ACT:

Representation of the People Act, 1951-Section 33(5), 36(2) (b), 80, 83, 87, 93 and 116.

Nomination-Scrutiny of-Returning Officer to be satisfied candidate eligible to contest section-Enquiry-Summary in nature-No scope for elaborate enquiry-Candidate to Satisfy Returning Officer about eligibility-Election petition-Not an appeal against order of Returning Officer rejecting nomination-Fresh material can be adduced by candidate before High Court to support eligibility. Candidate an elector of different constituency-Proof of name in concerned electoral roll-Onus on candidate to prove-No duty of Returning Officer to refer relevant electoral roll and verify eligibility.

Nomination paper-Rejection on ground candidate has not completed 25 years of age Election petition-Documents showing date of birth-Evidentiary value in proving age. Indian Evidence Act, 1872-Section 35-Entry relating to date of birth in school register--Relevant an admissible- Entry regarding age in school register--Not much evidentiary value 10 prove age in absence of material on which the age was recorded.

HEADNOTE:

Election to the State Legislative Assembly of Rajasthan for Jodhpur City Constituency, was held in the year I985. Nomination papers were filed on 8.2.1985 and the date of scrutiny was Y.2. l9S5. In all 45 candidates filed their nominations, after scrutiny and withdrawal, candidates contested the election. After polling and the counting of votes, the appellant was declared elected having obtained majority of votes.

The respondent who was an elector in the Jodhpur city Constituency filed an election petition before the High Court challenging the appellant's election on the ground that the result of election was materially affected on account of improper rejection of nomination papers of 3 candidates, namely, Smt. Umrao Ben, Hukmi Chand and Suraj Prakash Joshi. It was pleaded that Smt. Ben was an elector in the Sardarpura Assembly Constituency the Returning Officer wrongly rejected her nomination paper without affording an opportunity to her to produce a copy of the electoral roll, that Hukmi Chand and Suraj Prakash Joshi both were more than 25 years of age on the date of the nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age.

The appellant contested the election petition. It was asserted that Smt. Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura Constituency along with her nomination, that she further failed to produce a copy of the electoral roll at the time of scrutiny and the returning officer therefore rightly rejected her nomination paper. In respect of Hukmi Chand and Suraj Prakash Joshi, it was pleaded that none of the two candidates were present before the returning officer at the time of scrutiny and since the entries contained in the electoral roll indicated that they were below 25 years of age the returning officer rightly rejected their nomination papers and that the rejection of the 3 nomination papers was proper and the result of the election was not materially affected on account of the rejection of the name.

The High Court allowed the election petition and set aside the appellant's election. It held that the nomination paper of Smt. Umrao Ben was validly rejected as she had failed to comply with section 33(5) of the Representation of Peoples Act inasmuch as she failed to produce the copy of the electoral roll or a certified copy of the extract relating to entry of her name in the electoral roll. It further held that the nomination papers of Hukmi Chand and Suraj Prakash Joshi had been rejected improperly by the Returning officer as both the candidates had attained the qualifying age of 25 years on the date of nomination.

Aggrieved by the aforesaid judgment the appellant preferred an appeal to this Court under section 116-A of the Representation of People Act, 1951.

On the questions whether: (1) the returning office had validly rejected the nomination papers of Smt. Umrao Ben, Hukmi Chand and Suraj Prakash Joshi, and (2) the respondent had proved in accordance with law that Hukmi Chand and Suraj Prakash Joshi whose nomination papers were rejected by the Returning Officer had attained the age of 25 years on January 1, 1984.

PG NO 3 Allowing the appeal, setting aside the order of the High Court and dismissing the election petition, the Court.

HELD: l(a). Section 33 of the Act provides for presentation of nomination paper and it further lays down the requirements of a valid nomination. Section 33(5) requires a candidate who is an elector of a different constituency, to file a copy of the electoral roll of the constituency as a certified copy of the relevant entries along with his nomination paper. If a candidate is unable to comply with these requirements at the time of filing the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the electoral roll of the constituency of the relevant part thereof or a certified copy of the relevant entries of the roll before the returning officer at the time of scrutiny. [9A-E]

(b) The Legislature thus provides two opportunities to such a candidate for proving his eligibility to contest the election, one at the time of filing the nomination paper and the other at the stage of scrutiny. If the candidates fail to avail of either of the two opportunities his nomination paper is liable to be rejected. [9E-F]

(c) Non-compliance with section 33(5) is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate. Section 33(5) prescribes a particular mode to prove eligibility of a candidate to contest election and section 36(Z)(h) provides penal consequences.[10A]

(d) Section 33(5) of the R.P. Act lays down a mandatory requirement for a valid nomination. The purpose is to satisfy the returning officer that the candidate is eligible to contest the election and if he fails to satisfy the returning officer in the manner prescribed, the penalty and the consequences which are specified in section 36(2)(b) must follow. Section 33(5) is not directory instead it is mandatory in nature. [l0F]

(e) An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescribed by section 33(5) of the Act and if he fails to do that, he must suffer the consequences contemplated by section 36(2)(b) of the Act. It is not open to a candidate who fails to comply with section 33(5) to put the blame on the returning officer for the rejection of his nomination paper. The returning officer is under no legal obligation to make amends for the omission of a candidate, especially when the omission relates to a mandatory requirement. [10G-11A]

PG NO 4

(F) The law does not enjoin the returning officer to send for the electoral roll from his office to verify the eligibility of a candidate. The law casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in section 33(5) of the Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter.

[11B ]

(g) The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the eligibility of a candidate.

[11C]

In the instant case, there is no dispute that Smt.

Umrao Ben failed to comply with the requirement of section

33(5) of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof, or the certified copy of the relevant entries along with her nomination paper. Nor she had produced any of the three documents before the returning officer at the time of scrutiny. In such circumstances the returning officer rightly rejected Umrao Ben's nomination paper. [10B]

Sri Babu Ram v. Shrimati Prasanni & Ors., [l959] SCR

1403; SCR 1403; Narbada Prasad v. Chhagan Lal & Ors., [1969]

1 SCR 499; Parmar Himat singh Jugatsingh v. Patel Harmanbhai

Narsibhai, [1974] SCR 453; Avadh Raj Singh v. Jugal Kishore

Gupta,[l979] 1 SCR: 228 and Ranjit Singh v. Pritam Singh &

Ors., [1966]3 SCR 543, referred to.

2(a) During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election.

[l4F]

(b) Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage.Therefore it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer's order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer. It is an original proceeding. [15C]

(c) In the instant case, on the basis of the entries contained in the electoral roll the Returning Officer held that the two candidates did not possess the requisite qualification of age as required by Article 173 of the Constitution to contest the election. Accordingly he rejected both the nomination papers. In the absence of any material before the returning officer, the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them. But his decision is not final. In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date. If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election. [14G-

PG NO 5

3(a) To render a document admissible under section 35 of the Evidence Act three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. [21B]

(b) An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Act, but the entry regarding the age of 3 person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. [21C]

(c) Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the school's register is made on the information given by parents are someone having special knowledge of the fact, the same would have probative value. [20A]

(d) The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. [2OB]

(e) The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by Someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. [20C]

PG NO 6

In the instant case, nomination papers of two candidates Hukmi Chand and Suraj Prakash Joshi were rejected by the Returning Officer on the ground that they had not attained the age of 25 years at the time of filing nomination papers. In the election petition copies of extract of school register, certificate and mark list of Secondary Education Board were produced. The High Court committed serious error in accepting the dates of birth as mentioned in the documents. The High Court's entire approach in considering the question of dates of birth was misconceived. The burden to prove this fact in issue was on the respondent who was the election petitioner. In fact the burden was on him to prove his case by producing Hukmi Chand and Suraj Prakash Joshi or their parents to prove or corroborate the dates of birth as mentioned in the school register and the certificate. No adverse inference could be drawn against the appellant for not examining them. [22C-G; 23C-D] Raja Janaki Nath Roy & Ors. v. Jyotish Chandra Acharya Chowdhury, AIR 1941 CAL. 41; Jagan Nath v. Moti Ram & Ors., [1951] Punjab 377; Sakhi Ram & Ors. v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur & Ors., [1966] Patna 459; Ghunchi Vora Samsuddish Isabhai v. State of Gujarat, [1970] Gujarat 178; Radha Kishan Tickoo) & Anr. v. Bhushan Lal Tickoo Anr., [1970]J & K 62; Jagdmba Prasad v. Shri Jagannath Prasad & Ors., 42 ELR 465; k. Paramalali v. L.M. Alangam & Anr., 31 ELR 401; krishna Rao Maharu Patil v. Onkar Narayan 14 ELR 386; Brij Mohan Singh v. Priya Brat Narain Sinha & Ors.,[1965]3 SCR 861.,Ram murti v. State of U.P. Haryana, AIR 1625,referred to.

JUDGMENT:

CIVlL APPELLATE JURISDICTION: Civil Appeal No. 574 (NCE) of I987.

From the Judgment and Order dated 18.2. 1987 of the Rajasthan High Court in S.B. Elec. Petn No. 8 of 1985. Dr. N.M. Ghatate, S.V. Deshpande and Abhishek Singhvi for he Appellant.

G.L. Sanghi. Jitender Sharma, P. Gaur and M.K. Calla for the Respondent. The Judgment of the Court was delivered by:

PG NO 7

SINGH, J. This appeal under Section 116-A of the Representation of People Act 1951 (hereinafter referred to as the Act) is directed against the judgment and order of the High Court of Rajasthan dated 18.2.1987 setting aside the election of the appellant to the State Legislative Assembly of Rajasthan from Jodhpur City Assembly

Constituency. Election to the State Legislative Assembly of Rajasthan from the constituency No. 183 Jodhpur City was held in the year 1985; nomxination papers were filed by 8.2.1985 and the date of scrutiny was 9.2.1985. In all 45 candidates filed their nominations. After scrutiny and withdrawal 21 candidates contested the election, after polling and counting of votes the appellant was declared elected having obtained majority of votes. Anand Purohit, respondent who is an elector in the Jodhpur City Constituency No. 183 filed an election petition before the High Court challenging the appellant's election, on the ground that the result of election was materially affected on account of improper rejection of nomination papers of three candidates namely, Smt. Umrao Ben, Hukmichand and Suraj Prakash Joshi. The respondent pleaded that Smt. Umrao Ben was an elector in Sardarpura Assembly Constituency the returning officer wrongly rejected her nomination paper, without affording opportunity to her to produce a copy of the electoral roll. He further pleaded that Hukmichand, and Suraj Prakash Joshi both were more than 25 years of age on the date of their nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age. The appellant contested the election petition. He asserted that Umrao Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura constituency along with her nomination, she further failed to produce copy of the electoral roll at the time of scrutiny and therefore the returning officer rightly rejected her nomination paper. As regards Hukmichand and Suraj Prakash Joshi, the appellant pleaded that none of the two candidates dates was present before the returning officer at the time c,f scrutiny and since the entries contained in the electoral roll indicated that they were below 25 years of age the returning officer rightly rejected their nomination paper. The appellant further asserted that the rejection of the three nomination papers was proper and the result of the election was not materially affected on account of the rejection of the aforesaid three nomination papers. The High Court held that the nomination paper of Smt. Umrao Ben was validly rejected as she had failed to comply with Section 33(5) of the Act inasmuch as she had

failed to produce a copy of the electoral roll or a

certified copy of the relevant extract relating to entry of

her name in the electoral roll in Sardarpura constituency.

The High Court further held that nomination papers of

Hukmichand and Suraj Prakash Joshi had been rejected

improperly by the returning officer as both the candidates

had attained the qualifying age of 25 years on the date of

nomination. On these findings the High Court set aside the

appellant's election by its judgment and order dated

18.2.1987. Aggrieved by the said judgment the appellant has

preferred this appeal under Section 116 of the Act.

PG NO 8

The controversy in the present appeal relates to the

validity of the orders of the returning officer rejecting

the nomination paper of Smt. Umrao Ben, Hukmichand and Suraj

Prakash Joshi. We would first examine the validity of the

order of the returning officer rejecting Smt. Umrao Ben's

nomination paper, which was questioned by the Respondent

before us. There is no dispute that Umrao Ben was not an

elector in the Jodhpur City Assembly Constituency No. 183.

She was an lector in Sardarpura Assembly Constituency. In

her nomination paper she had given the details of the

relevant entry contained in the electoral roll of Sardarpura

Assembly Constituency, but her nomination paper was not

accompanied by a certified copy of the relevant entry in the

electoral roll of Sardarpura constituency nor she had

produced a copy of the electoral roll or the relevant part

thereof before the returning officer at the time of

scrutiny. Therefore the returning officer rejected her

nomination paper. The High Court held that the returning

officer had rightly rejected the nomination paper of Umrao

Ben and there was no question of improper rejection of her

nomination paper. Sri G.L. Sanghi, learned counsel for the

respondent challenged the correctness of the High Court's

findings on this question. He urged that since the Returning

Officer who was holding the scrutiny of nomination papers

relating to the Jodhpur Assembly constituency was also the

returning officer of Sardarpura Assembly constituency,he

should have verified the entry of Umrao Ben's name from the

electoral roll of Sardarpura Assembly Constituency which

must have been with him. He urged that Umrao Ben's request

to verify entries relating to her name from the electoral

roll of Sardarpura Assembly constituency was ignored by the

returning officer, and further her request for grant of

time to produce electoral roll was also rejected. He urged

that object of Section 35 of the Act was merely to ascertain

as to whether a candidate whose nomination paper was

scrutinised was an elector or not and since the electoral

roll of Sardarpura Assembly Constituency was already with

the returning officer he could have verified the entries

from that electoral roll. The returning officer had acted in

an unreasonable manner in refusing to do that and in

rejecting her nomination paper. We find no merit in these

submissions.

PG NO 9

Section 33 of the Act provides for presentation of

nomination paper and it further lays down the requirements

of a valid nomination. Sub-section (5) of the Section 33 is

as under:

"where the candidate is an elector of a different

constituency a copy of the electoral roll of that

constituency or of the relevant part thereof or a certified

copy of the relevant entries in such roll shall, unless it

has been filed along with the nomination paper, be produced

before the returning officer at the time of scrutiny."

The above provision requires a candidate who is an

elector of a different constituency, to file a copy of the

electoral roll of constituency a relevant part of that roll

or a certified copy of the relevant entries along with his

nomination paper. These documents are necessary to show that

the candidate is an elector of a different constituency and

he is eligible to contest the election. If a candidate is

unable to comply with these requirements at the time of

filing the nomination paper he is afforded another

opportunity to prove his eligibility by producing a copy of

the electoral roll of the constituency or the relevant part

thereof or a certified copy of the relevant entries of the

roll before the returning officer at the time of scrutiny.

The Legislature provides two opportunities to such a

candidate for proving his eligibility to contest the

election one at the stage of filing the nomination paper and

the other at the stage of scrutiny. If the candidate fails

of avail either of the two opportunities his nomination

paper is liable to be rejected. Section 36 of the Act

provides that on the date of scrutiny of nomination papers

the returning officer shall examine the nomination papers

and shall decide all objections which may he made to any

nomination and he may either on objection or on his own

motion, after holding such summary inquiry. if any, reject

any nomination on the grounds specified in clauses (a), (b)

and (c) of sub-section (2). Section 36(2)(b) provides for

the rejection of the nomination paper on the candidate's

failure to comply with any of the provisions of Section 33

or Section 34 of the Act. Section 33(5.) read with Section

36(2)(b) makes it apparent that if a candidate who is an

elector of a different constituency fails to prove his

eligibility in the manner prescribed by Section 33(5) of the

Act, his nomination paper is liable to be rejected for the

non compliance of Section 33(5) of the Act. These provisions

are plain which admit of no other interpretation.

PG NO 10

Non-compliance with Section 33(5) is fatal to the

nomination and no other mode is prescribed by the Act for

proving the eligibility of the candidate. Section 35(5)

prescribes a particular made to prove eligibility of a

candidate to contest election and Section 36(2)(b) provides

penal consequences. Therefore Section 35(5) is mandatory in

nature. There is no dispute that Umrao Ben failed to comply

with the requirement of Section 33(5) of the Act as she had

neither filed a copy of the electoral roll of the

constituency or the relevant part thereof, or the certified

copy of the relevant entries along with her nomination

paper. Nor she had produced any of the three documents

before the returning officer at the time of scrutiny. In the

circumstances the returning officer rightly rejected Umrao

Ben's nomination paper.

Shri G.L. Sanghi, learned counsel then urged that

Section 33(5) of the Act was directory and it+was open to a

candidate to prove his eligibility, by any other mode. He

urged that Umrao Ben's request to the returning officer to

verify her entry from the electoral roll of Sardarpura

Assembly Constituency which was in his custody (as he was

the returning officer of Sardarpura Assembly Constituency

also) was ignored and he refused to grant her time to

produce the necessary documents. In the election petition

there was no pleading that Umrao Ben had made any such

request or that the returning officer had refused to grant

her time. The High Court has on appreciation of evidence

held that no request for time was made by Smt. Umrao Ben and

no request for verifying the entry relating to her from the

electoral roll of Sardarpura assembly Constituency was made.

But even assuming that the returning officer had refused to

verify the relevant entries relating to Umrao Ben from the

electoral roll of Sardarpura Assembly Constituency, he had

acted in accordance with law. No exception could be taken to

his conduct. Section 33(5) of the Act lays down a mandatory

requirement for a valid nomination. The purpose of Section

33(5) of the Act is to satisfy the returning officer that

the candidate is eligible to contest the election and if he

fails to satisfy the returning officer in the manner

prescribed by Section 33(5) of the Act, the penalty and

the consequences which are specified in Section 36(2)(b)

must follow. Section 33(5) is not directory instead it is

mandatory in nature. An elector of a different constituency

is under a mandatory duty to prove his eligibility in the

manner prescribed by Section 33(5) of the Act and if he

fails to do that, he must suffer the consequences

contemplated by Section 36(2)(b) of the Act. It is not open

to a candidate who fails to comply with Section 33(5) of the

Act to put the blame on the returning officer for the

rejecting his nomination paper. The retuning officer is

under no legal obligation to make amends for the omission of

a candidate, especially when the omission relates to a

mandatory requirements. Apart from this legal aspect, even

on facts, the Returning Officer, in his testimony before the

High Court, had stated that the electoral roll of Sardarpura

Assembly Constituency was not with him at the time he had

taken up the scrutiny of nomination paper of Jodhpur City

Constituency. The law does not enjoin the returning officer

to send for the electoral roll from his office to verify the

eligibility of a candidate. The law casts a duty on the

candidate to satisfy the returning officer by following one

of the three modes prescribed in Section 33(5) of the Act

and if he fails to do that the returning officer is bound to

reject the nomination paper, he has no option in the matter.

The law does not require the returning officer to send for

the electoral roll of a different constituency for the

purpose of verifying the eligibility of a candidate.

PG NO 11

In Sri Babu Ram v. Shrimati Prasanni & Ors., [1959] SCR

1403 this Court interpreted Section 33(5) and Section

36(2)(b) and observed as under:

"Section 33(5) requires the candidate to supply the

prescribed copy and Section 36(2)(b) provides that on his

failure to comply with the said requirement his nomination

paper is liable to de rejected. In other words. this is a

case where the statute requires the candidate to produce the

prescribed evidence and provides a penalty for his failure

to do so. In such a case it is difficult to appreciate the

relevance or validity of the argument that the requirement

of Section 33(5) is not mandatory but is directory, because

the statute itself has made it clear that the failure to

comply with the said requirement leads to the rejection of

the nomination paper. Whenever the statute requires a

particular act to be done in a particular manner and also

lays down that failure to comply with the said requirement

leads to a specific consequence it would be difficult to

accept the argument that the failure to comply with the said

requirement should lead to any other consequences. "

PG NO 12

Repelling the argument that failure to comply with the

requirement of Section 33(5) was not a defect of substantial

nature and the returning officer could be satisfied by other

modes that the candidate's name was entered as an elector in

another constituency, the Court held that the satisfaction

of the returning officer was required to be made in

accordance with the statutory requirement and if a candidate

failed to comply with that requirement the returning officer

could not be satisfied by any other mode. The Court further

held that the failure to comply with the requirement of

Section 33(5) was a defect of substantial nature which could

not be ignored under Section 36(4) of the Act. The view

taken in Sri Babu Ram's case (supra) has been followed in

Narbada Prasad v. Chaggan Lal & Ors., [I969] 1 SCR 499;

Parmar Himat singh Jugatsingh v. Patel Harmanbhai Narsibhai,

[1974]. 3 SCR 453 and Avadh Raj Singh v. Jugal Kishore

Gupta, [l979] 4 SCC 328. Learned counsel for the respondent

sought support from a Constitution Bench decision of this

Court in Ranjit Singh v. Pritam Singh & Ors.[1966] 3 SCR 543

for his submission that failure to comply with section 33(5)

Was not a defect of substantial character. We have carefully

gone through the decision but we do not find anything

therein to support the respondent's contention instead it

supports the view taken by us. In Ranjit Singh's case

(supra) a candidate who was not an elector of the

constituency had filed three nomination Papers. Along with

one of his nomination paper he had filed a copy of the

electoral roll of the constituency when his name was entered

as an elector, with a view to comply with the requirement of

Section 33(5) of the Act. He had not filed similar copies

along with other two nomination papers. The nomination paper

with which the candidate had filed a copy of the electoral

roll was rejected on the ground of some technical defect But

the other two nominations were rejected on the ground that

copy of the electoral roll was not filed along with them.

This Court held that the returning officer was wrong in not

looking at the copy of the electoral roll filed with one of

the nomination papers. The Court further held Section 33(5)

did not require that a copy must be filed with each

nomination paper or that any copy should be filed at all as

it was open to a candidate to produce the copy before the

returning officer at the time of scrutiny. The Court held

that the purpose of filing the copy is ensure that the

returning officer was able to check whether the candidate

concerned was qualified or not and that purpose would be

effectively served even if only one copy was filed with one

nomination paper and no copies were filed along with the

other nomination papers. While considering Section 33(5)

and36(4) of the Act the Constitution Bench held that Section

33(5)required that it was the copy produced by the candidate

which should show that he was qualified or not and that

purpose a copy produced by the candidate should be complete

whether it was of the roll or of the relevant part thereof.

To such a case Section 36(4) had no application. Section

36(4) provided that returning officer should not reject any

nomination paper on the ground of any defect which was not

of a substantial character. Non-production of copy of the

relevant part was a defect of a substantial character for it

made it impossible to decide whether the candidate was

qualified or not. Since qualification for contesting

election was a matter of substantial character, the failure

to produce a copy of the electoral roll which was incomplete

was a defect of a substantial character it would invalidate

the nomination paper. In this view we agree with the High

Court that there had been no improper rejection of the

Umrao Ben's nomination paper, as the accidental

circumstances that the returning officer was also the

returning officer of the other constituency should not make

any difference.

PG NO 13

As regards the rejection of the nomination paper of

Hukmi Chand and Suraj Prakash Joshi are concerned the High

Court has held that none of the two candidates was present

before the returning Officer at the time of scrutiny nor any

person on their behalf Was present. In his nomination paper

Ex. 2 Hukmi Chand had given a declaration that he had

completed 26 years of age while Suraj Prakash Joshi had

given declaration in his nomination paper Ex. 3 that he had

completed 25 years of age. At the time of scrutiny no

objection was raised against their nomination paper by any

party and none appeared on behalf of the aforesaid two

candidate. The Returning Officer found that according to the

entries in the electoral roll the age of Hukmi Chand was 23

years similarly in the case of Suraj Prakash Joshi the entry

in the electoral roll indicated that on the relevant date

his age was 22 years. On the basis of the entries contained

in the electoral roll the Returning Officer held that the

two candidates did not possess the requisite qualification

of age as required by Article 173 of the Constitution to

contest the election. Accordingly he rejected both the

nomination papers. Before the High Court a controversy was

raised as to whether the two candidate were present at the

time of scrutiny but on the evidence on record the High

Court has held that neither of the two candidates nor any

body on their behalf was present at the time of scrutiny.

Placing reliance on the oral and documentary evidence

produced by the respondent the High Court has recorded

findings that Hukmichand as well as Suraj prakash Joshi both

had attained the age of 25 years on the relevant date

1.1.1984 and their nomination papers had been rejected

improperly by the Returning officer, which materially

affected the result of the election.

PG NO 14

Dr Chitale learned counsel for the appellant urged that

on the admitted facts and circumstances the Returning

Officer could not be held to have acted improperly in

rejecting the nomination papers of Hukmi Chand and Suraj

Prakash Joshi. He urged that since at the time of the

scrutiny neither of the two candidates nor their proposer

nor anybody else appeared before the returning officer, or

placed any material before him showing that either of the

two candidates was qualified to contest the election having

attained the age of more than 25 years, the returning

officer had no option but to rely on the entries contained

in the electoral roll and therefore the rejection of the

nomination papers of Hukmi Chand and Suraj Prakash Joshi

could not be said to be improper. Learned counsel further

urged that if the returning officer did not act improperly

in rejecting the nomination paper of the aforesaid

candidates, appellants's election could not be set aside on

the basis of fresh or additional material placed before the

High Court. Section 36 provides that on the date fixed for

the scrutiny of nomination, the candidate, his election

agent, proposer or any other person duly authorised in

writing by the candidate may attend the proceedings at the

time and place fixed for scrutiny. The returning officer is

required to give them all reasonable facility for examining

the nomination paper of all the candidates. Section 36(2)

requires the returning officer to examine the nomination

papers and to decide all objections which may be made to any

nomination. He may, either on such objection or on his own

motion, after such summary inquiry, if any, as he may think

necessary, reject any nomination on any of the grounds

specified under clauses (a),(b),and (c). Clause (d) empowers

the returning officer to reject nomination paper of a

candidate if on the date fixed for the scrutiny of the

nomination the candidate is not qualified or is disqualified

for being chosen to fill the seat under any of the

provisions of Articles 84,102,173 and 191 of the

Constitution. Article 173 lays down constitutional

qualification for being a Member of the state Legislature,

according to which a person is not qualified to be chosen to

full a seat in the Legislature of a State unless he is not

less than 25 years of age. During the scrutiny the Returning

Officer is under a statutory duty to satisfy himself that

the candidate who may have filed nomination paper possesses

the necessary constitutional qualification for contesting

the election. In the instant case none of the two candidates

appeared nor any body on their behalf appeared or placed any

material before the returning officer to show that the

candidates were not less than 25 years of age on the date of

scrutiny 1.1.1984. No doubt in the nomination papers both

the candidates had made a declaration that they were not

less than 25 years of age but entries pertaining to them in

the electoral roll clearly indicated that they were less

than 25 years of age. The returning officer placing

reliance on the entries contained in the public document

i.e. the electoral roll, rejected the nomination paper of

the two candidates on the ground that Hukmi Chand and Suraj

Prakash Joshi were not qualified to contest the election. In

the absence of any material before the returning officer,

the returning officer was not wrong in taking the entries in

the electoral roll into consideration and acting on them.

But his decision is not final. In an election petition it is

open to an election petitioner to place cogent evidence

before the High Court to show that the candidate whose

nomination paper was rejected had in fact attained the age

of 25 years on the relevant date. It is open to the High

Court to take a final decision in the matter notwithstanding

the order of the returning officer rejecting the nomination

paper. If on the basis of the material placed before the

High Court it is proved that the candidate whose nomination

paper had been rejected was qualified to contest the

election it is open to the High Court to set aside the

election. Enquiry during scrutiny is summary in nature as

there is no scope for any elaborate enquiry at that stage.

Therefore it is open to n party to place fresh or

additional material before the High Court to show that the

Returning Officer's order rejecting the nomination paper was

improper. It should be borne in mind that the proceedings in

an election petition are not in the nature of appeal against

the order of the returning officer. It is an original

proceeding. In the instant case it was open to the

respondent election petitioner to place material before the

High Court to show that the two candidates were qualified

and their nomination paper was improperly rejected.

PG NO 15

The question then arises whether the respondent has

proved in accordance with law that Hukmi Chand and Suraj

Prakash Joshi whose nomination papers were rejected by the

Returning Officer had attained the age of 25 years on

1.1.1984. In the election petition the respondent pleaded

that Hukmi Chand's nomination paper was improperly mentioned

his age as 23 years while his correct date of birth was

13.5.1956 as evidenced by the certificate issued by the Head

Master of the New Government School Jodhpur. The respondent

had further pleaded that the nomination paper of Suraj

Prakash Joshi was rejected on the sole ground that in the

electoral roll his age was recorded as 23 years on 1.1.1984

but the entries contained in the electoral roll were not

final and conclusive. The date of birth of Suraj Prakash

Joshi was not mentioned in the election petition and there

was no further pleading that on the date of filing his

nomination Suraj Prakash Joshi had actually attained the

age of 25 years. However it was pleaded that since Suraj

Prakash Joshi had given a declaration that he had completed

25 years of age there was no reason to disbelieve him as no

objection had been raised against the declaration made by

him and therefore the returning officer acted improperly in

rejecting his nomination nation paper. In his written

statement the appellant denied the allegations made by the

election petitioner and asserted that the Returning Officer

acted rightly in rejecting the nomination papers of Hukmi

Chand and Suraj Prakash Joshi as they were not qualified to

contest the election as they had not completed 25 years of

age on the date of nomination. The respondent produced oral

and documentary evidence to support his contention. Even

before the High Court none of the two candidates whose

nomination papers were rejected appeared nor their parents

were examined by the respondent nor any person having

special knowledge about the dates of birth of the two

candidates was examined by the respondent. As regards Hukmi

Chand the respondent produced Ex. 8 (a copy of scholars

Secondary Education) Ex. 10 (mark-sheet of Hukmi Chand) Ex.

11 (a copy of counter foil of certificate of Board of

Secondary Education) relating to Suraj Prakash Joshi, and

Ex. 12 (Tabulation record of marks obtained by Suraj Prakash

Joshi). These documents were sought to be proved by Anant

Ram Sharma PW 3 and Kailash Chand Taparia PW 5. Ex. 8 is a

copy of the scholars register issued by the Head of the

Government Higher Secondary School and entries contained

therein show that Hukmi Chand had joined Government Middle

School Palasani on 24.6. 1972 and he had left the same on

10.6.1976 after having passed Viiith class. In this document

13.6. l956 is mentioned as the date of birth of Hukmi Chand

son of Sardar Mal. Ex. 9 is a certificate issued by the

Board of Secondary Education Rajasthan certifying that

Hukmi Chand Bhandari son of Sardar Mal Bhandari passed

Secondary School Examination of 1974 from New Government

Higher Secondary School Jodhpur, it also shows 13.6. 1956 as

date of birth of Hukmi Chand. Ex. 10 is a tabulation record

containing the details of the marks obtained by Hukmi Chand

at the Secondary School Examination 1974. In this document

also his date of birth is mentioned as 13.6. l95h. Placing

reliance on these three documents the High Court held that

Hukmi Chand's date of birth was 13.6.1956 and therefore

his age on 1. 1. 1984 was more than 15 years. The High

Court further held that view of the entry in Ex. 11.

certificate issued by the Board of Secondary Education

Rajasthan Suraj. Prakash was born on 11.3. 1959 and

therefore the was qualified to contest the election as he

was not less than 25 years of age. On these findings the

High Court held that the respondent had successfully proved

that the nomination papers of Hukmi Chand and. Suraj Prakash

Joshi had been wrongly rejected.

PG NO 16

Before the High Court appellant raised a contention

that there was no evidence to prove that Ex. 8, 9, 10, 11

and 12 related to Hukmi Chand and Suraj Prakash Joshi and

therefore the documents could not be pressed into service. A

further contention was raised that the election petitioner

had failed to place any evidence before the Court to show

that entries of age in the documents Ex. 8, 9, 10, 11 and 12

had been made on the basis of information furnished either

by the parents or by any one else having special knowledge

about the date of birth of Hukmi Chand and Suraj Prakash

Joshi. In the absence of such evidence the entries in the

documents had no evidentiary or probative value. The High

Court rejected this submission on the ground that the

appellant had raised no such plea in his written statement

nor he produced any evidence to prove that the documents did

not pertain to Hukmi Chand or Suraj Prakash Joshi or that

any other persons having the same parentage by the name of

Hukmi Chand and Suraj Prakash Joshi existed. The High Court

committed error. The question of appreciation of evidence is

not to be pleaded instead it was the duty of the Court to

consider whether the documents produced by the respondent

proved the facts in issue. As regards the evidentiary value

of Ex. 8, 9, 10, 11 and 12 the High Court took note that

there was no evidence as to who gave the information

regarding the date of birth of Hukmi Chand at the time of

his admission in Government Middle School Paslasani and

even the initial application form for admission to the

school was not produced and subsequent form for admission to

the Government Multi-purpose Higher Secondary School Jodhpur

from where he passed the Secondary examination was also not

produced, as it observed "No attempt was made by the parties

to get the application form for admission and transfer

certificate produced from the New Government Higher

Secondary School Jodhpur and similarly no application form

for admission was got produced from the Government Middle

School, Palasni. But still it can be presumed that the date

of birth recorded in the Scholar's Register is based on the

date of birth given in the application form initially

submitted a Palasni continued in the transfer certificate

and the same was mentioned at the time of admission in the

Government Multipurpose Higher Secondary School, Jodhpur"

(emphasis supplied). After making the aforesaid observations

the High Court held that these documents were public

documents within the meaning of Section 74 of the Evidence

Act and therefore there was a presumption about the

correctness of the date of birth mentioned therein. The High

Court was conscious of the fact that in the absence of the

evidence of the person who may have given information

regarding the date of birth, the entries contained in the

scholar's register or certificate had no probative value as

would be clear from the following observations: "It is true

that it would have been better if the person who gave the

information regarding the date of birth would have been

examined but failure to examine such a person would not in

any way affect the genuineness of the entries and also their

probative value unless in comparison to these entries, any

other weighty evidence having greater probative value is

produce (emphasis supplied). The entry in the scholar

the vaccination register or reliable horoscope or any other

reliable or weighty oral or documentary evidence but in the

absence of such contradicting weighty evidence, the entries

in the scholar register and other records of the

educational institution would, in my opinion, certainly

enjoy such probative value."

PG NO 18

After making aforesaid observations the High Court held

that in view of the Ex. X, 9, 10, 11 and I1 the election

petitioner had discharged the burden in proving that Hukmi

Chand and Suraj Prakash Joshi both had attained the age of

25 years on the relevant date. The High Court drew adverse

inference against the appellant on the ground that though

Hukmi Chand and Suraj Prakash Joshi had been cited as

witnesses by the appellant but they were not examined. The

High Court proceeded on the assumption that if these

witnesses had been examined they would not have supported

the respondent. After drawing adverse inference against the

appellant and placing reliance on the aforesaid documentary

evidence the High Court held that Hukmi Chand and Suraj

Prakash Joshi both were qualified to contest the election

as they had completed 25 years of age on 1. 1.198$ and the

returning officer had improperly rejected their nomination

papers which materially affected the result of the

election. The High Court in our opinion committed serious

error of law in appreciating the evidentiary value of the

documentary evidence produced by the respondents as a result

of which its findings are not sustainable.

PG NO 18

We would now consider the evidence produced by the

respondent on the question of age of Hukmi Chand and Suraj

Prakash Joshi. The respondent examined Anantram Sharma PW 3

and Kailash Chandra Taparia PW5. Anantram sharma PW 3 has

been the Principal of New Government Higher Secondary

School, Jodhpur since 1984. On the basis of the scholar's

joined school on 24.6. 1972 in 9th class and his date of

birth as mentioned in scholar's register was 13.6.1956. He

made this statement on the basis of the entries contained in

the scholar's register Ex. 8. He admitted that entries in

the scholar's register are made on the basis of the entries

contained in the admission form. He could not produce the

admission form in original or its copy. He stated that Hukmi

Chand was admitted in 9th class on the basis of transfer

certificate issued by the Government Middle School, Palasni

from where he had passed 8th standard. He proved the

signature of Satya Narain Mathur the then Principal who had

issued the copy of the scholar's register Ex. 8. Satya

Narain Mathur was admittedly alive but he was not examined

to show as to on what basis he had mentioned the date of

birth of Hukmi Chand in Ex. 8. The evidence of Anantram

Sharma merely proved that Ex. 8 was a copy of entries in

scholar's register. His testimony does not show as to on

what basis the entry relating to date of birth of Hukmi

Chand was made in the scholar's register. Kailash Chandra

Taparia PW 5 was Deputy Director (Examination) Board of

Secondary Education, Rajasthan, he produced the counter foil

of Secondary Education Certificate of Hukmi Chand Bhandari.

a copy of which has been filed as Ex. 9. He also proved the

tabulation record of the Secondary School Examination 1974,

a copy of which has been filed as Ex. 10. In both these

documents Hukmi Chand's date of birth was recorded as

13.6.1956. Kailash Chandra Taparia further proved Ex. 11

which is the copy of the tabulation record of Secondary

School Examination of 1977 relating to SuraJ Prakash Joshi.

In that document the date of birth of Suraj Prakash Joshi

was recorded 11.3.1959 Kailash Chandra Taparia stated that

date of birth as mentioned in the counter foil of the

certificates and in the tabulation form Ex. 12 was recorded

on the basis of the date of birth mentioned by the candidate

in the examination form. But the examination form or its

copy was not produced before Court. In substance the

statement of the aforesaid two witnesses merely prove that

in the scholar's register as well as in the Secondary School

examination records the date of birth of a certain Hukmi

Chand was mentioned as 13.6.1956 and in the tabulation

record of Secondary School Examination a certain suraj

Prakash Joshi's date of birth was mentioned as 11.3.1959. No

evidence was produced by the respondent to prove that the

aforesaid documents related to Hukmi Chand and Suraj Prakash

Joshi who had filed nomination nation papers. Neither the

admission form nor the examination form on the basis of

which the aforesaid entries relating to the date of birth of

Hukmi Chand and Suraj Prakash Joshi were recorded was

produced before the High Court. No doubt, Exs. 8, 9. 10. 11

and 12 are relevant and admissible but these documents have

no evidentiary value for purpose of proof of date of birth

of Hukmi Chand and Suraj Prakash Joshi as the vital piece

of evidence is missing, because no evidence was placed

before the Court to show on whose information the date of

birth of Hukmi Chand and the date of birth of Suraj Prakash

Joshi were recorded in the aforesaid document. As already

stated neither of the parents of the two candidates nor any

other person having special knowledge about their date of

birth was examined by the respondent to prove the date of

birth as mentioned in the aforesaid documents. Parents or

near relations having special knowledge are the best person

to depose about the date of birth of a person. If entry

regarding date of birth in the scholars register is made on

the information given by parents or some one having special

knowledge of the fact, the same would have probative value.

The testimony of Anantram Sharma and Kailash Chandra

Taparia merely prove the documents but the contents of

those documents were not proved. The date of birth mentioned

in the scholar's register has no evidentiary value unless

the person who made the entry or who gave the date of birth

is examined. The entry contained in the admission form or

in the scholar register must be shown to be made on the

basis of information given by the parents or a person having

special knowledge about the date of birth of the person

concerned. If the entry in the scholar's register regarding

date of birth is made in the basis of information given by

parents, the entry would have evidentiary value but if it

is given by a stranger or by someone else who had no special

means of knowledge of the date of birth, such an entry will

have no evidentiary value. Merely because the documents Exs.

8, 9, 1(). 11 and 12 were proved, it does not mean that the

contents of documents were also proved. Mere proof of the

documents Exs. 8, 9, 10, 11 and 12 would not tantamount to

proof of all the contents or the correctness of date of

birth stated in the documents. Since the truth of the fact,

namely, the date of birth of HukmiChand and Suraj Prakash

Joshi was in issue, mere proof of the documents as produced

by the aforesaid two witnesses does not furnish evidence of

the truth of the facts or contents of the documents. The

truth or otherwise of the facts in issue, namely, the date

of birth of the two candidates as mentioned in the

documents could be proved by admissible evidence i.e. by

the evidence of those persons who could vouch safe for the

truth of the facts in issue. No evidence of any such kind

was produced by the respondent to prove the truth of the

facts. namely, the date of birth of Hukmi Chand and of Suraj

Prakash Joshi. In the circumstances the dates of birth as

mentioned in the aforesaid documents have no probative value

and the dates of birth as mentioned therein could not be

accepted.

PG NO 20

The High Court held that in view of the entries

contained in the Ex. 8, 9, 10, 11 and 12 proved by Anantram

Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of

birth of Hukmichand and Suraj Prakash Joshi was proved and

on that assumption it held that the two candidates had

attained more than 25 years of age on the date of their

nomination. In our opinion the High Court committed serious

error. Section 35 of the Indian Evidence Act lays down that

entry in any public, official book, register, record

stating a fact in issue or relevant fact and made by a

public servant in the discharge of his official duty

specially enjoined by the law of the country is itself the

relevant fact. To render a document admissible under

Section 35, three conditions must be satisfied, firstly,

entry that is relied on must be one in a public or other

official book, register or record, secondly, it must be an

entry stating a fact in issue or relevant fact; and

thirdly, it must be made by a public servant in discharge

of his official duty, or any other person in performance of

a duty specially enjoined by law. An entry relating to date

of birth made in the school register is relevant and

admissible under Section 35 of the Act but the entry

regarding to the age of a person in a school register is of

not much evidentiary value to prove the age of the person

in the absence of the material on which the age was

recorded. In Raja Janaki Nath Roy & Ors. v. Jyotish Chandra

Acharya Chowdhury, AIR 1941 CAL. 41 a Division Bench of the

Calcutta High Court discarded the entry in school register

about the age of a party to the suit on the ground that

there was no evidence to show on what material the entry in

the register about the age of the plaintiff was made. The

principle so laid down has been accepted by almost all the

High Courts in the country, see Jagan Nath v. Moti Ram Moti

Ram & Ors., [1951] Punjab 377; Sakhi Ram & Ors. v. Presiding

Officer, Labour Court, North Bihar, Muzzafarpur & Ors.,

[1966] Patna 459; Ghanchi Vora Samsuddish Isabhai v. State

of Gujarat,[1970] Gujarat 178 and Radha Kishan Tickoo &

Anr. v. Bhushan Lal Tickoo & Anr., [1971] J & K 62. In

addition to these decisions the High Courts of Allahabed,

Bombay, Madras have considered the question of probative

value of an entry regarding the date of birth made in the

scholar's register or in school certificate in election

cases. The Courts have consistently held that the date of

birth mentioned in the scholar;s register or secondary

school certificate has no probative value unless either the

parents are examined or the person on whose information the

entry may have been made, is examined,see Jagdamba prasad v.

Sri Jagannath Prasad & Ors., 42 ELR 465; K. Paramalali v.

L.M. Alangam & Anr., 31 ELR 401 and Krishna Rao Maharu Patil

v. Onkar Narayan Wagh, 14ELR 386.

PG NO 21

In Brij Mohan Singh v. Priyu Brat Narain Sinha & Ors.,

[1965] 3 SCR 861 a question arose whether the returned

candidate had attained the age of 35 years on the date of

his nomination. The High Court had set aside the election

of the returned candidate on the ground that he was below

the age of 25 years on the date of filing the nomination.

This Court set aside the order of the High Court and upheld

the election of the returned candidate on the ground that

the burden of proving that the returned candidate had not

attained the age of 25 years on the date of his nomination

was on the election petitioner and since he had failed to

prove that, the election of the returned candidate could not

be set aside. This Court held that an entry recorded in the

birth register maintained by an illiterate Chowkidar by

somebody else at his request, was not admissible and had no

probative value within Section 35 of the Indian Evidence

Act. In Ram Murti v. State of Haryana, AIR 1970 SC 1029 the

date of birth of a girl mentioned in the school certificate

was not accepted. However in Mohd. Ikram Hussain v. State of

U.P. & Ors., AIR 1964 SC 1625 this Court accepted the date

of birth of a girl as mentioned in the school certificate as

the date of birth mentioned therein was supported by an

affidavit filed by the father of the girl.

PG NO 22

The appellant was declared elected aS he had polled

majority of valid votes. His election could not be set aside

unless the respondent-election petitioner was able to prove

that Hukmichand and Suraj Prakash Joshi had attained the age

of 25 years on the date of nomination by producing cogent

and reliable evidence before the High Court. The burden to

prove that fact was on the respondent throughout and he

could not and did not discharge that burden merely by

producing the documentary evidence Ex. 8, 9, 10, 11 and 12

or on the basis of oral testimony of Anantram Sharma PW 3

and Kailash Chandra Taparia PW 5. As discussed earlier

these documents do not conclusively prove the dates of

birth of Hukmi Chand and Suraj Prakash Joshi. The entries

regarding dates of birth contained in the scholar's

probative value, as no person on whose information the dates

of birth of the aforesaid candidates was mentioned in the

school record was examined. In the absence of the connecting

evidence the documents produced by the respondent, to prove

the age of the aforesaid two candidates have no evidentiary

value. The High Court committed serious documents. In our

view the High Court's entire approach in considering the

question of dates of birth was wholly misconceived. The

burden to prove the fact in issue, namely, the dates of

birth of Hukmichand and Suraj Prakash Joshi was on the

respondent who was the election petitioner. The respondent

could not succeed if no evidence was produced by the

appellant on the question of age of the aforesaid candidates

and his election could not be set aside merely on the ground

that the respondent had made out a prima facie case that the

entry contained in the electoral roll regarding the age of

two candidates was incorrect. It appears that in his list of

witnesses the appellant had included the name of Suraj

Prakash Joshi and his father Maghdutt Joshi as witnesses but

they were not examined by him. Similarly, Hukmi Chand was

also cited by the appellant but he was also not examined

instead Navratan Mal Bhandari, brother of Hukmi Chand was

examined as PW 4 and Ghanshyam Chhangani was examined as PW

6 by the appellant, who supported the appellants case that

Hukmi Chand and Suraj Prakash Joshi had not attained the age

of 25 years on the date of nomination. Since the appellant

had not examined Hukmi Chand. Suraj Prakash Joshi or their

parents, the High Court drew adverse inference against him.

The High Court committed serious error in doing so. There

was no question of drawing adverse inference against the

appellant, as the burden to prove the age of Hukmi Chand and

Suraj Prakash joshi was on the election petitioner and since

he had failed to prove the same by cogent evidence no

adverse inference could be drawn against the appellant. In

fact. burden was on the respondent to prove his case by

producing the Hukmichand and Suraj Prakash Joshi, or their

parents to prove and corroborate the dates of birth as

mentioned in the school register and the certificate. If he

failed to do that he could not succeed merely because

appellant had not produced them. In the circumstances no

adverse inference was at all possible to be drawn against

the appellant for not examining Hukmi Chand and suraj

Prakash Joshi or their parents.

In view of the above discussion we are of the opinion

that Umarao Ben's nomination paper was rightly rejected and

further the respondent has failed to prove that Hukmi Chand

and Suraj Prakash Joshi possessed the necessary age

qualification as required by Article 173 of the

Constitution. Therefore the returning officer was justified

in rejecting their nomination paper. In this view the High

Court wrongly set aside the appellant's election. We

accordingly allow the appeal set aside the order of the High

Court and dismiss the election petition. The appellant is

entitled to costs which we quantify at Rs.5,000.

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