Bansi Ram Naru Ram vs Jit Ram Gehru Ram

I.D. Dua, J.—The short question raised in this appeal from the-order of the Election Tribunal is whether the nomination papers of Shri Gajju Ram were improperly rejected and whether the election of Shri Bansl Ram (Appellant in this Court) is, therefore, void.

The controversy arises out of the election contest relating to Seraj (Reserve) constituency district Kangra of Punjab Vidhan Sabha. It is common ground that Gajju Ram was also a candidate who had filed his nomination papers for contesting the election in question and his nomination papers were rejected on the ground that he was not 25 years of age on the qualifying date. It may in passing be noticed, though it does not affect the controversy before us, that Bansi Ram the successful candidate was pitched against two other contestants Jit Ram and Pulku; Jit Ram having secured only 3929 votes and Bansi Ram 5755.

On 29-1-1962, the date fixed for scrutiny of nomination papers, the Returning Officer passed the following order;

I have examined this nomination paper in accordance with Section 36 of the Representation of the People Act, 1951 and declare as follows:

The entries in the nomination paper have been found to be correct, except to age entry that has been contested (by Shri Bans) Ram, another candidate).

The candidate has declared his age as twenty-five years completed. In Electoral Rolls he has been shown as 23 years old. It has been alleged by Shri Bansi Ram that the candidate has not completed 25 years of age according to the record in the school (vide which he is reported to have been born in May 1939) and this position has been accepted by the candidate. The latter has no proof to offer tore but this assertion.

Since the candidate has net completed the required age, he is not eligible to contest this Election, his nomination paper is, therefore, rejected.

In the petition filed by Jit Ram questioning Bansi Rani''s election the challenge to the order of the Reluming Officer mentioned above is couched in the following language:

The nomination papers of Shri Gajju Rom were perfectly in order. His age was at the relevant time more than 25 years. The Respondent raised objection to his nomination on the plea that he had not attained the age of 25 years. The Returning Officer, (S.D.O. Civil, Kulu). illegally and without jurisdiction rejected his nomination papers without recording any evidence or taking any proof from the Respondent, although he was above the age of 25 years. Birth entry of the said Gajju Ram shall be produced at the trial of this election petition. This illegal rejection of Gajju Ram''s nomination papers has materially affected the result of election and on that ground alone the election of the Respondent is liable to be declared void.

(Paragraph 2 of the election petition.)

In the written statement rejection of Gajju Ram''s nomination papers was admitted. It was, however, pleaded that he was not qualified to be duly nominated as a candidate as he was not 25 years of age at that time. Here, it would be more appropriate to reproduce the relevant part of the plea as contained in the written statement:

An objection was raised before the Returning Officer to that effect, and in reply to that objection Shri Gajju Ram admitted before the Returning Officer that his age as entered in the school at which he was educated was less than 25 years; he was given an opportunity to produce any evidence ha liked in rebuttal of his own admission and the entry in the school register,'' which Shri Gajju Ram failed to produce and expressed his inability. Thus the Returning Officer was left with no option but to reject his nomination paper, and thus this rejection is proper.

It appears that the election petition was then amended in certain particulars but that amendment is not relevant for our purposes.

On these pleas issue No. 1 which concerns us on appeal was framed in the following words:

Whether the nomination paper of Shri Gajju Ram was Improperly rejected, and is the election of the Respondent as such void?

The learned (sic) in an exhaustive and detailed order dealt with this issue and came to the conclusion that Gajju Ram was actually above 25 years of age on the qualifying date, that, his nomination papers were Improperly rejected and that on account of the improper rejection of his nomination papers Bansi Ram''s election must be held to be void.

On appeal, to begin with, Shri Sachar has very-eloquently urged that the rejection of Gajju Ram''s nomination papers was not improper because according to the School certificate he had not completed 25 years of age at the relevant point of time and that he had no proof to offer to rebut the assertion to this effect made by Shri Bansi Ram. In support of this submission he has relied on R.W. 1/3 which has already been reproduced above and to the statement before the Tribunal of Shri D.N. Dhir, Sub-Divisional Officer (Civil) Rulu, R.W. 1. This witness in his examinalion-in-chief merely produced Gajju Ram''s nomination papers R.W. 1/1, Order, Ext. R.W. 1/2 with regard to this nomination paper and a correct typed copy of that order. In cross-examination lie denied that Gajju Ram had asked for a day or so for producing a copy of the birth entry in support of Ids case that he was over 25 years on that day. It would be better to put the relevant portion of his statement in cross-examination in his own words:

Shri Gajju had at that time said that whatever was entered in the school registers was correct and as such he did not ask for an opportunity for producing evidence. I did not record his statement in this connection.

The Appellant''s learned Counsel has vehemently argued that the statement of Shri Dhir before the Tribunal must be taken to be almost conclusive of what had actually transpired before him on 29-1-1962 and if he says that Gajju Ram admitted that whatever was entered in the school register was correct and that he did not seek any opportunity for producing evidence to the contrary, then we must accept his word to be final and conclusive. Subport for this submission has been sought from Union of India (UOI) Vs. T.R. Varma, , a case arising out of a writ petition relating to service matter, head-note (c) of which says, that when there is a dispute as to what happened before a Court or tribunal, the statement of the Presiding Officer in regard to it is generally taken to be correct. In my opinion, the observations contained in this head-note have to be read in their own context and paragraph 8 of tire Judgment explains the true ratio of the decision on this point. I am unable to persuade myself on the basis of head-note (c) to hold that Gajju Ram on 29-1-1962 before the Returning Officer actually admitted that he was below 25 years of age at the relevant point of time.

In this connection it may be borne in mind that u/s 36 of the Representation of the People Act, 1951, the Returning Officer is enjoined to hold a summary enquiry and also to record in writing a brief statement of his reasons for rejecting a nomination paper. The statement of the reasons of Shri Dhir, the Returning Officer does not show that Gajju Ram had actually admitted before him that the entry in the school register represented his age correctly. Such an admission would have really amounted lo Gajju Ram in effect conceding before the Returning Officer that his nomination papers deserved to be rejected, which on the facts and circumstances of this case seems to me to be highly unlikely and improbable. I would, therefore, reject this submission of the learned Counsel for the Appellant.

The next contention pressed by Shri Sachar is based on some observations in Pt. Charanjit Lal Ram Sarup Vs. Lehri Singh Ram Narain, . It has been urged that the rejection of Gajju Ram''s nomination papers cannot be considered to be improper on the material placed before the Returning Officer with the result that the Election Tribunal was not justified in interfering with the Returning Officer''s order of rejection on the basis of the evidence led before it. It is submitted that on the material placed before the Returning Officer the only proper order could be the rejection of the nomination papers and if that is so then the Tribunal could not on further evidence hold the Returning Officer''s order to be improper. In support of this submission reiliance has been placed on the following observations in Pt. Charanjit Lal Ram Sarup Vs. Lehri Singh Ram Narain,

Under Clause (c) of Sub-section (1) of Section 100 of the Act, if the Tribunal is of the opinion that any nomination has bean improperly rejected, it shall declare the election of the returned candidate to be void. Whether a nomination has been improperly rejected or not, has to be considered in relation to the state of evidence before the Returning Officer at the time of the scrutiny.

I am unable to read these observations to mean that no further evidence can be adduced before the Election Tribunal on the point of the nomination paper having been improperly rejected and that the Election Tribunal is confined only to the mateirial actually placed before the Returning Officer. Section 36 of the Act of 1951 unequivocally lays down that the Returning Officer has only to hold such summary enquiry as he think necessary. The statute does not lay down anywhere that the Election Tribunal trying the issue relating to improper rejection of a nomination paper in an election petition is bound to confine itself only to the material available to the Returning Officer at the time of scrutiny. Keeping in view the paramount importance of the election of the representatives of the people for our Legislatures the right to seek election could hardly have been intended by the Parliament to depend on summary enquiry of the Returning Officer as contemplated by Section 36.

The matter luckily is not ''res integra''. I need only refer to a recent decision of the Supreme Court In N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, , which in clearest possible forms lays down that the right given to a party to challenge by an election petition the propriety of an order of a Returning Officer rejecting a nomination paper would be illusory if that Tribunal were to base its decision only on the restricted material placed before the Returning Officer at the time of scrutiny; the election petition, according to the ratio of this decision, is not In the nature of an appeal to the Tribunal from the decision of the Returning Officer but is an original proceeding in which the parties are entitled to have the issues arising therein fully tried by adducing whatever evidence they want to, subject only to such limitations as are found in the statute. A contention similar to the one now raised by the Appellant was expressly negatived by the Supreme Court. I have, therefore, no hesitation in holding that the Tribunal was well within its power in considering the question of the propriety and legality of the order of rejection of Gajju Ram''s nomination papers on the evidence produced in the course of the trial of the election petition.

But this apart, in my opinion, even on the material placed before the Returning Officer he was not justified in rejecting Gajju Ram''s nomination papers. Section 36(7) makes a certified copy of an entry in the electoral roll for the time being in force of a constituency conclusive evidence of the fact that the person concerned is an elector for that constituency unless It is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act (43 of 1950). This conclusiveness is, however only meant for the purposes of Section 36. Section 16 of the 1950 Act only speaks of disqualifications on three grounds, namely, It he

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent Court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.

This section is not concerned with the age of the elector which forms the subject-matter of Section 19(a) of the 1950 Act. The definition of the word "elector" as contained in Section 2(e) of the 1951 Act also excludes from its purview a person subject to any of the disqualifications mentioned in Section 16 of the 1950 Act. It would, therefore, follow that for the purpose of Section 36 of the 1951 Act the Returning Officer must hold conclusive the fact that the person entered in the electoral roll had complied with the conditions contained in Section 19(a) of the 1950 Act and was in this respect correctly so entered. The Returning Officer in the case in hand was thus bound to hold that Gajju Ram was not less than 21 years of age when his name was entered in the electoral roll in question. Now, it is not disputed before us that the electoral roll in question was prepared in 1953. The qualifying date in relation to the preparation or revision of electoral roll, unless the context otherwise requires, moans the first day of March, 1958. I am referring to the unamended Section 14(b) of the 1950 Act, for, from 1-1-1959 the qualifying date has been changed to 1st of January of the year in which the electoral roll is so prepared or revised. From this, the fair inference is irresistible that Gajju Ram on 1-3-1958 should have been conclusively held by the Returning Officer to be not less than 21 years of age.

On 29-1-1962, therefore, Gajju Ram, according to the entry in the electoral roll, should have been held to be not less than 24 years and one or two days less than 11 months. Bansi Ram alleged before the Returning Officer that according to the school record Gajju Ram was reported to have been born in May, 1939. Except for his own bald allegation, Bansi Ram did not care even to produce before the Returning Officer any entry from the school register. According to the order of the Returning Officer dated 29-1-1962 in the electoral roll Gajju Ram was shown to be 23 years old at the time of its preparation. On the other hand Bansi Ram alleged Gajju Ram to have been born in 1939 according to the school certificate records but he did not produce any documentary evidence in support of this allegation. On this bald allegations, in my view, that Returning Officer could hardly be considered to be justified In the presence of the entry in the electoral roll of 1958 In rejecting Gajju Ram''s nomination papers. It is obvious, and is now quite clear from Bansi Ram''s own evidence before the Tribunal, that he had no personal knowledge about Gajju Ram''s age and had no documentary evidence In his possession at the time of scrutiny.

The Returning Officer thus does not beem to have attached to the matter the importance it deserved and did not care to make proper enquiry by adequately examining Bansi Ram about the source of his information regarding the alleged antry in the school register. In these circumstances, I am far from satisfied that the order of the Returning Officer rejecting Gajju Ram''s nomination papers can safely be described to be a proper order even on the material before him, but as discussed above, it is unnecessary for me to rest my decision on this aspect alone.

This brings me to the criticism of the Appellant''s learned Counsel against the order of the Tribunal on the evidence produced before it. The principal attack has been concentrated on the admissibility and value of the birth entry relating to Gajju Ram produced by Jit Ram, Respondent in this Court. Referring to Section 35 of the Indian Evidence Act, it has been contended that an entry in a public register or record is only made relevant by this section. A certified copy of such a document, it as conceded, would be admissible in evidence but it is emphasised that the identity of the person whose birth the entry relates to must be affirmatively established and connected with the entry. In support of this contention also reliance has been placed on Pt. Charanjit Lal Ram Sarup Vs. Lehri Singh Ram Narain, . In the reported case the age of one Pirthi was in question and oral and documentary evidence produced in support of the assertion that he was over 25 years of age. The oral statement was held to be of no value. Regarding the certified copies of birth entries, it was expressly found that the relevant document did not, on the face of it, support the assertion, the name of the child entered there being different. After arriving at this conclusion it was observed that moreover no one had appeared to say that the copy of the birth certificate or any other copy related to Pirthi or his brothers and sister. Besides, there Pirthi himself had stated his age to be 24 years at the time of submitting his nomination papers.

This decision, in my opinion, does not support the contention that in order to admit into evidence a birth entry it is absolutely essential that the person who actually makes the entry must come forward and connect the entry with the person to whom it is said to relate.

State Government, Madhya Pradesh v. Kamruddin Imamoddin AIR 1956 Nag 74 has next been cited. According to this decision a mere entry in a birth and death register to the effect that a child was born to a person without any statement as to the identity of the child is not sufficient to prove, the birth of a particular person. The identity of that person has to be fully established by other evidence. Reliance for this observation was placed on Hemanta Kumar Das Vs. Alliantz Und Stuttgarter Life Insurance Co. Ltd., and Biseswar Misra v. The King AIR 1949 Ori 22, Reference has also been made to certain decision of the Oudh Judicial commissioners Court ralating to Chowkidari register, but, in my opinion, those decisions are of no assistance and they were all distinguished and explained in Dasi Ram v. Emperor AIR 1947 All 429. The rule that the identity of the person relating to whose birth an entry in a birth register is sought to be proved should be established is unexceptionable and has not been disputed before us. The question, however, is if in the case in hand such a proof is forthcoming. (His Lordship after discussing the evidence in Paras 8-10, proceeded:)

The position, as it now emerges, is that we have the evidence of Karam Das, P.W. 17, Vidaya Sagar, P.W. 35 and the copy of the birth entry P.W. 35/5. This evidence and the electoral roll P.W. 41/1 would clearly seem to negative the Appellant''s contention that Gajju Ram was born on the 1st of May, 1939. As against this we have the duplicate copy of a transfer certificate dated 28-6-1962 which shows that Gajju Ram was allowed to withdraw his name from the Government Higher Secondary School, Banjar (Kangra District). Exhibit R.W. 9/2. From this document it appears that Gajju Ram had attended that school up to 16-7-1956 and was at that time the student of 8th class, Middle Department. There is no evidence showing as to at whose instance was Gajju Ram''s age given as entered in the admission register mentioned in R.W. 9/2. But apart ftom the technicality of this document having not been properly proved, the evidentiary value of entries in records of educational institutions has seldom been considered to be great. As against the evidence as to age in birth registers the entry in school records have generally been considered to be of inferior quality. The entry in birth register is usually much more contemporaneous than the entry in school registers and, therefore, more reliable.

It is true that not infrequently parents or guardians are tempted to make out their boys entering a school to be younger than they are in order to enable them later to seek Government employment when their education is completed, but there might also be cogent and convincing reasons as for example is the case in hand when the person entering a school is represented to be older in age than he really is. The entry in a birth register would, normally speaking, inspire greater confidence than an entry in the records of educational institutions, and the former is by and large supposed to be a more reliable piece of evidence than the latter. In Mohammad Hassan v. Sardar Mirza AIR 1933 Lah 601, entry in the records of educational institutions was not held sufficient to rebut the very strong evidence afforded by a birth register. I would, therefore, unhesitatingly hold that Gajju Ram was more than 25 years of age at the relevant time and was, therefore, fully qualified to contest the election in question and that the learned Tribunal has come to a correct conclusion on this point. No other point has been urged before us.

For the foregoing reasons this appeal fails and is hereby dismissed but without any order as to costs in this Court.

A.N. Grover, J.

I agree.