Mohammad Akbar vs Lassa Wani

(1) At the last General Election of 1967, 13 candidates had filed nomination papers from Doda, Assembly constituency to the Legislative

Assembly of the Jammu and Kashmir State.

(2) On the, date of scrutiny, which was held on 23167 the nomination papers of only one candidate, Ghulam Hussau, out of the 13 candidates,

were rejected, and those of others were declared valid after the objections filed by the respondent against the petitioner, and by the petitioner

against the respondent had been withdrawn on the next day. The petitioner, the respondent, and Abdul Rehman only went to poll on 2121967.

The others having dropped. The counting of votes was done on 27267. The respondent was declared elected He had secured 5497 votes, the

petitioner secured 3235 votes, and Abdul Rehman forfeited his security.

(3) The petitioner filed this Election Petition before the Election Commission, New Delhi, on 31st May, 1967 challenging the validity of the election

of the respondent on various grounds.

(4) A Tribunal consisting of Sh. Hari Singh Hardash, District and sessions Judge, Baderwah was constituted to whom the Election Petition was

forwarded on 31567 for trial.

(5) The respondent appeared before him and filed his written statement. After hearing the counsel for both the parties, the learned Tribunal drew

up, on 671967 the following three issues :

(1) Whether the allegations containedin Para 5 (clause 11 relating to contract part) Sub Paras 1 to 6 were subject matter of petition against the

election of the respondent from the Doda Constituency in the general election of 1962. If these allegations have been decided by the Hon'ble High

Court against the petitioner in Constitutional reference No. 31 of 1964 under Section 70 of the Constitution of Jammu and Kashmir. If so whether

it will amount to resjudicata in in particular reference to the said allegation.

(2) Whether the nomination paper of Ghulam Hassan candidate was improperly rejected.

(3) Whether the nomination paper of the respondent was improperly accepted and if it materially affected the result of the election in so far as

respondent is concerned.

(6) The Petitioner had tried to amend the Election Petition by adding some material particulars, giving specific facts as to some alleged Corrupt

practices. The learned District Judge in his quite well considered and concise order dated 29867, did not permit any amendment, and directed for

striking out the charges relating to corrupt practices in the original petition on account of indefiniteness, regard being had to the provisions of

Section 91 of the State Representation of people Act.

(7) In the meantime, the Election Tribunal having been abolished by an Act of the State Legislature, the Election Petition was forwarded to this

court on 16967, and it came to my court on 191267 for disposal.

(8) The three issues framed by the Election Tribunal have been retained, and no further issue was sought to be raised before me.

(9) The actual hearing by adducing evidence was commenced from 17467, and upto 8567, on certain dates, the petitioner examined some seven

witnesses including himself and the respondent eight including himself. Argument of the parties were heard on three dates i.e. 11568, 13568 and

14568.

FINDINGS

(10) Issue No: 1 This issue has a bearing on the validity of the nomination papers of the respondent, accepted as such by the Returning Officer on

the date of scrutiny The objection raised by the petitioner before the Returning Officer, to the validity of nomination papers of the respondent was

that he was holding some existing contracts in the Public Works Department under the Government. This objection, according to the Returning

Officer, had been withdrawn by the petitioner, and similarly, the objection by the respondent against the petitioner was also withdrawn. This fact

was, however, controverted on behalf of the petitioner before me.

(11) The question of withdrawal of the objection by the petitioner against the respondent before the Returning Officer, has no importance since

there will be no waiver or estoppel against the petitioner to raise the objection over again as he has been allowed to do. It is a settled principle of

law that the parties to an Election Petition can raise at the trial, even new grounds with regard to the validity or otherwise of nomination paper of

any candidate.

(12) This issue, on Resjudicate, has lost much of its impact and saves no time of the court, for, I have allowed evidence to be given by the parties

on facts, said to constitute Resjudicate, and have come to the same conclusion as I shall presently show, as in the previous proceeding before this

High Court. The issue now remains to be only of an academic interest. Nevertheless, I may discuss, and decide the issue.

The following facts are admitted :

(13) This respondent Lassa Wani was returned at the General Election of 1962 as a number of the Jammu and Kashmir Legislative Assembly from

this very Doda Constituency on a contest with his other two rivals, Sh. Jagat Ram Aryan and Shri Abdul Rehman. The present petitioner, Mohd.

Akbar Kichloo, who had not fought that election, however filed an application, exhibit P.W. 6/6, dated 9th July, 1964, under section 70 of the

Constitution of .Jammu and Kashmir, before the Speaker of the Assembly. In that application he sought for a declaration that Lassa Wani be

disqualified under Section 69 (e) of the Constitution. The ground urged were that Lassa Wani held a ""Subsisting Contract'' which was a

disqualification to be chosen as a member of the Legislature under Section 24 (d) of the Jammu and Kashmir, Representation of people Act, to be

referred to here, after as the Act, as it then stood before the amendment of this section latter in 1967. The petitioner mentioned five items of the

contract, describing them, as subsisting, not having been finalized till then. These five items were as follows:

(a) ""widening of right approach for assembling Kishtwar Road.

(b) Ragi Nalla Stage works Batote Bhaderwah Road 20052006.

(c) Gani Hits mile 5 and mile 8 D. T. Raod 20672308.

(d) Mile 4 part A Doda Thateri Road 2008.

(e) Kaligarh Approach T. K. Road 19581959.

14 The application did not mention who was the other party to the contracts, but, presumably, those contract were alleged to have been existing

under the public works Department of the of the State Government.

(15) The Speaker referred the application under Section 70 of the State Constitution to the High Court, and it was registered in the High Court as

Reference No. 31 of 1964. The present petitioner and the present respondent joined issues before a Division Bench of this High Court, and led

their respective evidences in fox proof and disproof of the allegations regarding the existence of the contracts. It was quite hotly contested, and

protracted trial, and all possible and conceivable evidence appear to have been produced before the High Court. The Division Bench, by its

Judgment, dated 19.12.66, held that there was no subsisting contract between Lassa wani and the State Government at the relevant time and

answered the Reference accordingly. The decision of the High Court, as provided in Section 70 of the Constitution, was final.

(16) In the present Election Petition, some of the items of Contracts with an addition of another item about mile 11 T.K. Road, have been

mentioned as subsisting contracts at the relevant time of 1967 between Lassa wani and the Public Works Department of the Government, though it

has not been specifically mentioned that the contracts were subsisting between Lassa wani and the State Government, At the time of arguments,

the contention was confined only to two items out of the items which were the subject matter of the Reference amounst others, and a new item,

regarding mile No 11. But this contract also, is said to have existed before 1962. If there will be Resjudicata wirh regard to the two common

items, it will be a constructive Rejudicata with regard to the third item, as well because this contract was also existing' according to the petitioner,

from before the time of the Reference.

(17) It has now to be examined, whether the plea of the petitioner in the present action, regarding Lassa wani having held subsisting contracts at

the Last general election is barred by Resjudicata in view of the decision of the High Court in the Reference.

(18) The counsel for the parties, Mr. Bhasin for the petitioner, and Mr. Iqbal Krishan for the respondent, were diametrically at cross roads on this

point..

(19) Mr. Bhasin has contended that in order to constitute Resjudicata, the previous court as also the subsequent court must have been competent

to try the subject matter of the suit. In support of his contention, he has relied upon the provision of section 11 of the Civil Procedure Code.

Misir Raghobardial Vs. Sheo Paksh Singh.

Run Bahadur Singh Vs Lucho Keor.

Mst Gulab Rai and others Vs. Manphool Bai.

and three in (1)9, Calcutta (I L. R.) page 439 at 484 which was affirmed by the Privy Council in (2) 11, Calcutta (I. L. R.) page 301 at page 308

which in its turn was affirmed also in 1962. (3) Supreme Court 214 paras 6 to 12.

(20) Mr. Bhasin would contend that the High Court was not competent to try an Election Petition, but only Election Tribunal constituted by the

Election Commission, could try such petition though, the High Court could hear appeals from the Judgments of the Election Tribunal. He has

further contended that the Reference by the Speaker to the High Court was itselfincompetent, because the disqualification of Lassa Wani did not

occur after he was chosen as a member finally, but it was existing at the time. Lassa wani had filed his nomination paper in 1962. In other words

the, disqualification existed from before he was chosen and the speaker according to Mr. Bhasin, had no jurisdiction to make any Reference to the

High Court, but the remedy to set, aside his election lay by an application before the Election Tribunal. In support of his contention, he has relied

upon a decision of the Supreme court in AIR 1953 page 219 para 16, Election Commission of India, Vs. Saka Venkata Rao. This decision rested

on the interpretation of the provisions of Articles 190(3) and 192 (I) of the Constitution of India which deal with the disqualification of members of

the Legislature. Article 190 prescribes disqualification of members and one of such disqualification as in (a) (3) to article 190 is as follows :

If a member of a House of the Legislature of a state.

(a) Becomes subject of any of the disqualification mentioned in clause (1) of Article 191 ......

(21) Article 191 has provided various disqualification ""for being chosen as and for being a member of the Legislative Assembly or Legislative

Council of a State.

Article 192 (1) is to the following affect:

If any question arises as to whether a member of a House of the Legislative of a State has become subject to any of the disqualifications

mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(22) The Supreme Court in the aforesaid case held that Article 190 (3) and 192 (1) are applicable only to disqualification incurred by a member,

only after he is elected as such and neither the Governor nor the Commission had jurisdiction to enquire into a member's disqualification which

arose long before his election.

(23) Mr. Bhasin, on the basis of this decision, has contended that the provisions of the State Constitution being more or less similar, the Speaker

had no jurisdiction to refer the application of this petitioner to the High Court, since the disqualification of Lassa Wani had occured not after his

election but before his election. Mr. Bhasin, had also pleaded the bar of Section 142 of the State Constitution in this regard.

(24) The relevant provisions of the State Constitution are provided in Section 69 and 70. The Provisions of Section 69 are similar to the provisions

of article 191, but provision of Section 70 is materially different from article 191, being as follows :

If it is represented to the speaker or the chairman that a member of the Legislative Assembly or, as the case may be, of the Legislative Council is

disqualified for being such a member under the provisions of section 69 or was so disqualified at any time since being chosen as a member and the

member does not admit that he is or was so disqualified, the question shall be referred to the High Court for decision and its decision shall be final.

Provided that where the disqualification in question arises from circumstances which subsisted at the time of his being chosen as such member no

such representation as aforesaid shall be entertained.

(a) Unless it is made after the expiration of the period prescribed by law for presenting an election petition calling in question the election of the

member and;

(b) If such a election petition pending or has been tried, unless the Speaker or Chairman as the case may be, is satisfied that the question of the

member's disqualification by reason of those circumstances has not been raised or, as the case may be was not raised in the proceedings on the

election petition.

Where on a representation made under subsection (I) the member admits that he is or was disqualified under the provisions of section 69 j or

where on a reference made under that subsection the High Court decides that the member is or was .so disqualified, his seat shall thereupon

become vacant.

(25) It will appear that the plain meaning of this provision is that the Speaker has been authorised to make a reference to the High Court, not only

with regard to disqualification occurring after a member is finally chosen, but also with regard to any disqualification of a member chosen, existing

prior to his choosing. The only limitation that has been imposed with regard to a disqualification having existed prior to the choosing of a member is

that the person seeking to make a representation to the Speaker has to wait for the expiry of the period of limitation for filing an Election Petition or

where an election petition has been filed, for its result. It would appear that under subclause (b) the speaker has authority to make a Reference

even after the result of the Election Tribunal, if filed, when he is satisfied that the circumstances disqualifying a member were not raised or could not

be raised in the Election Petition. It is abundantly clear, that the Speaker can refer to the High Court about also the disqualification of a member

chosen, existing from before his election.

(26) Mr. Bhasin, has referred to Section 142 (b) of the State Constitution to say that ""no election to either House of the Legislature shallbe called

in question except by an election petition presented to such authority and in such manner as may be provided fox by or under any law made by the

Legislature.

(27) Relying on this provision of Section 142, his contention is that the election of a member of the Legislature can be challenged only by an

election petition and therefore, the Speaker could have no authority to make a Reference to the High Court questioning an election of a member on

the ground of any previous disqualification and if the provision of Section 70 is so construed, there would be a clear conflict between Section 70

and 142 which cannot be reconciled. It can only be reconciled according to Mr. Bhasin, on the assumption that the Speaker under Section 70 can

Refer to the High Court only about the disqualification of a member occurring after his choosing.

(28) In my opinion, there is absolutely no conflict between the provisions of the two sections. Under Section 142 it is only a voter or a candidate

who can file an Election on Petition on the ground of the disqualifications of a returned candidate as also on other grounds like the improper

rejection of nomination papers of other candidates on the date of the scrutiny. He has to conform to the rules of limitation and other rules for filing

of such petition like compulsory deposit of cost and so forth.

(29) But under Section 70 any person, even other than a voter can represent to the Speaker even after the period of limitation and without

conforming to rules of an Election Petition, that a particular candidate returned to the Assembly was disqualified to be chosen as a member.

(30) The Speaker on being satisfied on such a representation, has wider powers under Section 70 but he can make a Reference only on the

ground of disqualification of the returned candidate, but not on the ground of the rejection of nomination paper of any candidate and the like. He

can make Reference about the disqualification of the returned candidate even when the disqualification had existed before his election and can do

so even after the period of limitation. He is not bound by any rule of procedure meant for filing an election petition by a voter or a candidate and in

suitable cases even after the result of an election petition decided by a Tribunal, he can make a reference, this power of the Speaker is obviously

intended to cover the grounds, not covered by section 142, for example, there may be a case when a voter or a candidate has not thought it fit to

challenge the election of any member even though he is elected while suffering from certain disqualifications.

(31) It would appear that in certain respects the scope of Section 142 is wider and in certain respects, the scope of Section 70 is wider, but

mutually they are not conflicting, though, in certain respects, they may be overlapping.

(32) Thus the Reference by the Speaker was quite valid and competent and the decision of the High Court was final.

(33) The principle of Resjudicata, as mentioned in Section 10 of the Civil Procedure Code and in three decisions relied on by Mr. Bhasin referred

to earlier, relate only to suits. The question whether the general principle of Resjudicata can be applied to proceeding other than suit did not arise in

these cases.

(34) In the case of Gulab Chand Chhotalal Parikh Vs State of Gujrat AIR S. C. 1951/1153. the Supreme Court has held that the provision of

Section 11 of the Civil Procedure Code are not exhaustive and that on the general principle of Resjudicate, any previous decision on a matter in

controversy decided after full contest or after affording fair opportunities to the parties to prove their case by a court competent to decide, it will

operate as Resjudicata in a subsequent regular suit. The principle of Resjudicata was Laid down earlier by the Supreme Court in certain writ

petitions filed by Daryao and others reported in AIR 1961 S. C. page 1457 in page 15 of this judgment, after referring to the requirements of

Resjudicata it was observed.

It is doubtful if the technical requirement prescribed by 3, 11 as to the competence of the first court to try the subsequent suit is an essential part of

the general rule of resjudicata.

(35) The principle of Resjudicane is not limited only to suits as in S. 11 of the Civil Procedure Code. The Principle of General Resjudicata applies

even to proceedings decided by a competent court. It is true that the High Court, then, was not competent to try an election petition, but it was

competent to try the Reference which was quite valid and legal. The decision was therefore, of a competent court in a competent proceedings and

therefore, this decision will operate as Resjudicata in the present action regarding nonexistence of the respondent's contracts at the relevant time,

now that the High Court is competent to try an Election Petition.

Issue No. 3

(36) This issue has arisen on the allegations made in para 5 (ii) and (iii). Among these allegations except Nos. 1, 3 relating to mile 5 only, and No.

5 relating to mile 11, the other allegations were not pressed at the trial. The allegations regarding noncompliance with the provisions of Section 45

of the Act were also not passed. The allegations under para 6 relating to corrupt practices were struck cut by the Election Tribunal and were not

pressed at this trial either.

(37) Item, 3 and 5 relate to the existence of certain contracts between the respondent and the Public Works Department. The dates and details of

these contracts were not mentioned, in the Election Petition. Item No. 1, however, relates to kuligath bridge approach road. Item No. 3 to mile 5

on Doda Thathri road, mile 8 of it being not pressed Item No. 5, relates to mile 11, R. D. B. T. K road.

(38) The two agreements, one exhibit RW 6/4 dated March 1959 relating to kuligarh, and the other, exhibit, RW 6/3 dated 1161 relating to mile

No. 5 were admitted to have been executed by the respondent R W. No 6 in favour of the Divisional Officer of the Division. No agreement was,

however, brought on the record relating to mile No. 11.

(39) The Contention of the respondent has been that he had held some contracts under the Public Works Department within Khalani Special Sub

Division, and other Division, but whatever contracts, he had held in his own name or in partnership with others, he had executed and discharged

them all, and his accounts had been finalized prior to the Election of 1962. He had obtain a certificate R. W. 4/1 dated 2011967 from the then

incharge Assistant Engineer Special Division Khalani, Sh. A.L. Gupta R. W. No. 4, who has owned his certificate, saying that on a verification with

the office records, he found his accounts having been finalized and closed completely He has further said that he had power to finalize the accounts

of contractors, and his claim in this regard was not challenged on the petitioners behalf. It may be noted here that the certificate did not relate to

kuligap bridge, for that was not within his jurisdiction.

(40) The petitioner's claim, however is that the .account for at least three items pressed on his behalf had not been finalized. It is said that the

respondent had to receive from the department Rs. 68.69 np for Kuligarh, and Rs. 84.83 np for mile No. 5 totalling Rs. 15082 np. It is further

said that the respondent hid to pay to the department Rs. 137 79 np for mile No. 11. Thus the respondent had yet to receive from the department

Rs. 15, 33 np, and the amount is still due to him.

(41) Now evidence, whatever, however, been brought on the record on peitioner's behalf how the account of the respondent has been worked

our.

(42) The petitioner who has examined, himself P.W. No. 6 has had no personal knowledge off the account of the respondent relating to his

contracts except through the records of the department, but no record of; the department has been proved in connection with the account of the

respondent.

(43) One Ghulajn Rasool P.W. No. 5 a record keeper in the office of the public works Department Kithtwar Division was examined by the

petitioner. He proved an agreement exhibit Pw 5/1 one Abdul Karim, and it is competent irrelevant and from certain records, contractors logger,

which he had brought, he said they did not show that Rs. 84.43 was due to the respondent. He, however, said that in August 1964 the account

book shows that Rs. 137.79 were due from the contractor to the department. He, however, was not able to prove any entry even by identifying

the handwriting of the person or persons who had written them.

(44) 17th witness was cross examined on behalf of the petitioner. On looking into a copy from the file of the High Court in the Reference case,

exhibit P.W. 5/1 he said that Rs. 84.43 was due to the contractor, but he could not say who had written that copy. The witness, in his cross

examination on respondent's behalf and on looking into the records that ThathriKalothran road work was finalized including payment and that the

ledger containing an entry Rs. 8443 as due to the respondent, did not disclose to which work this money pertained. He also admitted that

ThatriKalotran road was under the khalani SubDivision Prior to 1962; and therefore it was a part of Kishtwar Division. He could not vouchsafe for

the correctness of the last cash voucher with regard to Kuligarh, bridge which was apart of Kishtwar Special Sub Division in 1962.

(45) The evidence of P.W. 5 is of no avail since he has not proved any entry in any of the records of the Public Works Department's Office. The

last witness in this regard is P.W. No. 7, an Accountant in the office of the Divisional Engineer Kisthwar. He had brought all the records called for

on petitioner's behalf. On the first date of his examination which was recorded on 35.68 he had brought the ledger book of the respondent up to

the year 196061 and said to a court question, that there was no ledger book for him for the year 196263. From the ledger book of the respondent

the witness said that nothing was due to the contractor from the department nor was anything due from the contractor to the department. At the

request of the petitioner, the witness was required to produce the ledger book of the contractors for the years 1962, 1963 and 1964 and he

produced them on 861968, and nothing to support the petitioner's claim could be found in them, The witness vaunted that the entry mentioning the

amount of Rs. 84.43 marked P.W. 7/Z for identification was first written in ink which was scored through and then written in pencil. He has further

said that from the records he had brought he could say that there should have .been no balance as noted at page 205 of the register which relates

to entry P.W. 7/Z marked for identification. The witness in his cross examination on behalf of the respondent categorically stated that nothing was

due from the contractor. As for the amount of Rs. 84.43 shown as due to the contractor, he has explained how the same had been adjusted as per

cash voucher marked P.W. 7/a, P.W. 7/b, P.W. 7/c for identification. Mr. Bhasin would, however argue that inspite of what has been shown in

cash vouchers a, b and c marked for identification, the amount of Rs. 84.43 would still remain due to him. I can not accept this argument in the

face of the direct evidence of his own witness P.W. No. 7.

(46) It would appear that no entry in the records of the Public Works Department was proved on petitioner's behalf and entries which have been

marked for identification only cannot be read as evidence.

(47) Mr. Bhasin relying on Section 35 of the Evidence Act has contended that the entries in the official records of the Public Works Department

are relevant and should be under Section 114 of the same Act presumed to have been made in official discharge of duties But the basic thing is that

the entries in official record must, in the first instance be proved by calling the person who had made these entries or even some one who could say

about the person having made those entries, I have indicated above that the entries in the record of the Public Works Departments office have not

been proved at all.

(48) The burden of the arguments on petitioner's behalf was the criticism of the certificate exhibit RW 4/1 of discharge which Mr. Gupta had

granted to the respondent in 1962i for be did not produce the reports of the office on which he had based the certificate, nor did he look into the

record of his office before coming to the witness box. Mr. Gupta, however said that he has since been transferred from Khalani SubDivision and

had no occasion to look into the record of that office before coming to this court. There is no reason to doubt the correctness of the certificate

granted by Mr. Gupta to the respondent, only because the office report was not produced. The petitioner for his own has brought absolutely no

evidence to support his contention that any thing remained due to the contractor from the department and for which the contract must be deemed

to be still existing in the light of the decision of the Supreme Court in Chatturthuj Vithalas Jasani Vs. Moreshwar Prarhram and others in 1954

page, 226 at 242 para 33. I hardly need refer to this decision when on facts the petitioner has failed to establish his claim. If any amount had

remained due to the respondent from department prior to 1962, as is the petitioner's case, it would also be barred by the rule of three years

limitation.

(49) The Counsel for the respondent has also called my attention to the fact that the two agreements exhibit PW 6/3&PW4/6 the third with regard

to mile No. 11 having not been brought, were not made in the name of SadarARiayasat as it should have been as required under Section 122 of

the state Constitution, if they were to operate as contracts between respondent and the State and therefore, he would contend that these

agreements were void abinitio. The very base of the petitioner's claim in this regard would disappear. The argument is not without force but, I need

not dilate upon it in view of findings that no contract subsisted between the respondent and the Public Works Department of the Government at the

relevant time. He did not, therefore, suffer from any disqualification within the meaning of Section 24 (d) of the Act His nomination paper was

rightly accepted. This issue is decided against the petitioner.

Issue No. 2.

(50) The question for consideration under this as to the age of Ghulam Hussan who has been examined by the respondent as P.W. No. 5. As

already indicated he was one of the 13 candidates whose nomination papers, the Returning Officer P.W. No. 3 had rejected on the date of

scrutiny on the grounds that he was not of the requisite age of 25 years as required under Section 51 (a) of the State Constitution.

(51) According to the petitioner the date of birth of Ghulam Hussan was 5101998 Samvat, equivalent to 1711942, whereas, according to

respondent and Ghulam Hussan, P.W. No. 5, himself, his date of birth was 1921944 equivalent to 2422000 Samvat.

(52) The petitioner in support of his version has relied on the following documentary evidence;

(1) Electoral Roll of 1962 to not exhibited but have been brought on the record.

(2) Electoral Roll of 1967 brought on the record.

(3) An entry No. 119 exhibit PW 1/2 dated 8101998 samvat equivalent to 2011942 in the Chowkidar's register called birth register,

(4) An entry exhibit PW 2/lb of date 5th Magh 1998 samvat corresponding to 1711942; on the account book said to have been maintained by

one Ghulam Qadir, since dead, father of Ghulam Husssn, R. W. 5.

(5) A Medical Certificate exhibit PW 6/1 dated 711967 purported to have been granted by the Medical Officer, A.M. Shinali, giving the age of

Ghulam Hussan as above ""25 years"" on the date of examination i.e. 711967.

(53) No oral evidence was adduced on petitioner's behalf regarding the age of Ghulam Hussan.

(54) On the respondent's behalf reliance has been placed on the entry No. 976 exhibit PW 2/1 in the admission register of the Doda High

Secondary School, to which Ghulam Hussan had been a student. His Matriculation Certificate 5/1 has also been produced. A certificate of the

Principal exhibit RW 3/5 was brought on the record in the cross examination of the Returning Officer RW. No. 2 before whom it had been

produced at the time of scrutiny.

(55) Ghulam Hussan P.W. No. 5 had admitted his date of birth to be 1924944 as in the admission register, and his Matriculation Certificate.

(56) I may first consider the evidence led on Petitioner's behalf I may consider the above evidence in the reverse order in which I have mentioned it

above.

(57) The Medical Certificate is of no value, because the Medical Officer, has not been examined and after all, the medical test as to the age by a

mere luok at & person is only a guess work.

(58) As to item No. 4, exhibit PW. 2/lb, the entry has been proved by Ghulam Hussan P.W. No. 2. He is the son of Ghulam Qadir of Doda

deceased and he save that his father had maintained a register regarding lending of money and other accounts and that he know his handwriting.

On page 105 of this register he referred to a signature exhibit P.W. 2/1 and on page 96 to another signature as being in the hand writing of the

respondent, Lassa Wani. He then proved the relevant entries exhibit PW 2/lb as being in the hand writing of his father on page 102. These entries

appear at the bottom of the page squeezed in between certain writing on both the sides and they are in Urdu and their English rendering is as

follows :

6th Magh, 1998/1711942, birth of child to Ghulam Ahmad Patagaroo. This day in cash one rupee, dry fruit 21/2 seers, shirts two.

(59) Ghulam Ahmad Patagaroo is admittedly the father of Ghulam Hussan R.W. No. 5 and he has only one son who is R.W. No. 5.

(60) From these entries it is sought to be proved that father of P.W. No. 2 had sent the above presents to the tether of R.W. No. 5 on the date of

the birth of his this son, he having had admittedly no other son.

(61) Mr. T.R. Bhasin would treat these entries as admissible under Section 32 (2) of the Evidence Act, as having been maintained in the ordinary

course of business since the author of these entries is dead. P. W. 2 has proved these entries by identifying the handwriting of his father and has not

said a word that the book containing these entries was being maintained even as a memorandum in the course of ordinary business. On looking into

the entries in this book, it would appear that it cannot be treated as a book of account or memorandum kept in the ordinary course of business.

The entries have been written at random. No total of even day's account is given. The entries do not even bear any Serial number, nor are the page

numbered. P.W. No. 2 has admitted that these entries were not written in his presence. He has also admitted that the entries in this book were not

being written as and when any transaction took place. It is significant as P.W. 2 has also admitted that no balance of account was struck at page

102 on which these entries appear, but the balance was struck in all the pages of this book. The entries in question are clearly not admissible in

evidence. As I have said these entries appear at the bottom of the page squeezed in some blank space in between the writing on the three sides.

P.W. 2 is admittedly a close relation of the petitioner and I shall be surprised that the entries in question were manufactured. Be as it may, for the

reason I have stated, they are not admissible in evidence.

(62) At to Item No. 3. It is an entry as I have said bearing serial number 119 exhibit P.W. 1/i it is in Urdu and spread over eleven columns. It is to

the following effect :

Birth Register of Village Bershala Dhana Doda

S. No. Date of birth Name if any Gender Male/female

(1) (2) (3) (4)

119 8101998 Milk taking Child Male

Sd/ Udham Singh

Name of father or mother Nationality and caste Occupation

(5) (6) (7)

Ahmadoo Sisnature and address of the informant Patigaroo Date on which Registered TailorMaster

(8) (9)

Santo Lambardar Signature of the Muharar 9101998 Remarks

(10) (11)

Sd; 368

(63) The above entry, exhibit PW 1/1, was attempted to be approved by Moh'd Abdullaha P. W. No. 1, a Jamadar of the Notified Area

Committee, Doda, where he has been serving as such for over 16 years. He has said the birth register is maintained by the Notified Area

Committee, but that he got the register in question, containing the entry No. 119, from Mangta Chowkidar who is alive, and with whom it was and

that he got it from him by the order of the Chairman, Sh. K. H. Naziruddion, directing the Chowkidar to hand to over to the witness having given

the chowkidar a receipt under his signature in token of it, He has also filed another register containing an entry regarding the death of Ahmad Joo's

wife, but this is not relevant for our purpose. Referring to the entry, exhibit PW 1/1, he had said, it ""is in the pen of one Mohd Ramzan Mohra

Thana, whose handwriting I knew. There is a seal of the Lambardar, whose name was Santoo against the aforesaid entry exhibit PW 1/1. Station

House Officer, has also signed the said entry. I do not know his handwriting."" He has said that Santoo Lambardar and Ramzan Mohd are both

dead He has admitted in his cross examination that the entry exhibit PW 1/I was not made in his presence. He has only identified the handwriting of

Mohd Ramzan. Admittedly, he has read upto the middle class and has had no training in the matter of handwriting. He knew the handwriting of

Santoo Lambardar because he used to grant him receipt but we are not concerned with the hand writing of Santoo Lanubardar, since he is not said

to have written any thing in the entry in question. As to his reason for knowing the hand writing of Mohd Ramzan, he has said that he used to live in

his house, when he had an occasion of going through his writings, but he did not say what those writings were he added that Mchd Ramzan used to

read to the witness, letters addressed to him by others and explained to him, but that would not give him any occasion to know the hand writing of

Mohd Ramzan, since those letters were written by others.

(64) The entry mentions nowhere who was the author of it. Under column No. 3 Signature of the Udham Singh appears, but nothing is said who he

was. No one conversant with the hand writing of the Thana Mohrar, Mohd Ramzan, has been brought to prove it. This report is said to have been

made at the thana, and there should have been corresponding entry in Thana register, but no attempt has been made to bring any register from the

Thana. No reason has been assigned, why Mangta Chowkidar who is said to have made the report and is still alive, has not been brought to prove

the entry. This entry has not been proved to have been made at the instance of the Mangta Chowkidar and therefore, it is in admissible in evidence.

(65) Admittedly Mangta Chowkidar did not himself write the entry, It has been held by the Supreme Court in Brij Mohan Singh Vs Priya Prat

Barain Singh Sinha and others, AIR 1965 S C Page 282, which has been cited on the petitioner behalf in another connection, has Laid down that

an entry of birth made in any official record maintained by an illiterate chowkidar, as Santa admittedly is by some one else, at the request of such a

chowkidar, does not come under section 35 of the Evidence Act and is, therefore, not admissible in evidence. The entry also does not necessarily

connect that ""Ahamdoo"" was the name of the father of Ghulam Hussan P.W. No. 5. who has given his father's name as Ghulam Ahmad Patagaroo.

I shall presently refer to the Electoral Rolls of 1961 and 1956. where more than one 'Ghulam Hussa' with same father's name as 'Ghulam Ahmad'

are given 'arid therefore, 'Ahmadoo"" in exhibit RW 1/I cannot necessary be treated as the father of R. W. No. 5

(66) The entry in question is of no avail what so ever to the petitioner to prove the age of Ghulam Hussan RW 5 on. 6101998 Semvat It maybe

here that the date of birth, as in this entry, is also not consistent with date of the birth of RW No. 5 as in the entry, exhibit PW 2/lb, referred to

earlier, where the date of birth of RW No. 5 is given as 5101998 Samvat.

(67) Mr. Bhasin has lastly relied on the age of RW No. 5 as given in the two Electoral Rolls of 1961 and 1966. In the Electoral Rolls of 1961,

there are two Ghulam Hussan, both described as sons of Ghulam Ahmad as against voter Nos. 141 and 243 and the age of both Ghulam Hussan

is mentioned therein as 21 years.

(68) In the Electoral Roll 1966 as against voter Nos. 178 and 263 Ghulam Hussan as son of Ghulam Ahmad is mentioned against each and the

age of each is given as 25 years. As against voter No. 85 again, Ghulam Ahmad son of Ghulam Ahmad is mentioned as being 23 years of age.

(69) According to Section 10 (b) of the Act, before amendment, the qualifying date in relation to the preparation or revision of an Electoral Roll

was the first day of March of the year in which it was prepared or revised and after the amendment in 1966, it was first of January and thus the

qualifying date for the Electoral Roll of 1996, the first of January.

(70) Mr. Bhasin has referred to the provision of S. 47 (7) of the Act and contended that an entry in the Electoral Roll shall be conclusive evidence

of the fact that the person referred to in this entry ""is an elector"" unless, it is proved that he is subject to a disqualification mentioned in section 12.

The corresponding (77) section in the Central Act are 36 (7) and 16 respectively. Relying on a decision of the Division Bench of the Punjab High

Court in Bansi Ram Naru Ram Vs Jit Ram Cehru Ram reported in AIR 1964 at page 231, Mr. Bhasin has contended that the age of the Ghulam

Hussan on the first of March 62 must be presumed to have been at least not less than 21 years; as otherwise he should not have been recorded as

elector. He would not however draw any presumption as to the age as recorded in this subsequent Electoral Roll of 1967, for the presumption

attaches to the earliest Electoral Roll alone. In this decision there is an observation that ""the evidenciary value of entries in record of the educational

institutions had seldom been considered to be great.

(71) In a case of Rajasthan High Court, in Shiv Ram Vs Shiv charan Singh AIR RAJ 1964, at page 126 also, it was held that a certified copy of an

entry in an Electoral Roll shall be conclusive evidence of the fact that the individual referred to in the entry is registered as ""elector"" for constituency.

But in this very case, it has been explained that Section 36 (7) can mean, at the highest, that his status as an elector cannot be challenged before the

Returning Officer, but no presumption, that it must be accepted as conclusive proof of the age, as at least, 21 years on the qualifying date, can be

made. The age can be assailed before the Election Tribunal even by new materials. In both these cases it may be mentioned, that the age of the

person concerned was accepted as given in the birth register which had been found to be genuine in preference to the one given in his educational

records.

(72) Mr. Bhasin has also mentioned to an observation of the Supreme Court in the case of Brij Mohan Singh, already referred to. where it has

been observed that in actual life, not in frequently persons give false age of the boy at the time of his admission to a school, so that, latter on in life,

he would have an advantage when seeking public service with a maximum age for eligibility as is often prescribed.

(73) The above observations in three cases, regarding the value of the age to be attached as given in educational records of a person concerned,

were not meant to be general rule of law, that in every case, the age in a school register must give place to the age recorded in the Electoral Roll.

There were other considerations in those cases and in the first two cases, the age recorded in the School register was found to be of inferior quality

in comparison to the one recorded in the birth register which, in each case, was found to be genuine. In the Supreme Court case, the person

concerned himself had repudiated his age as given in his School register and his explanation as to the mistake, had been accepted by the Election

Tribunal which the Patna High Court had set aside. There cannot be any rule of them. Each case must depend on the facts of its own and the

totality of the evidence adduced for the purpose at the trial; as was pointed out also in the Rajasthan case.

(74) Mr. Bhasin, would, however, contend that the age of Ghulam Hussan PW No. 5 as given in the Electoral Roll of 1962, as being not less than

21 years, should prevail over the age of recorded in the school register of RW No. 5. But the argument of Mr. Bhasin on the facts of this case is

only academic, not based on any material. There is no presumption attaching to the age as mentioned in the Electoral Roll, of 1967. No evidence

was brought to connect RW No. 5 with any of the Ghulara Hussans as recorded in the Electoral Roll of 1961. Ghulam Hussan himself, R.W. No.

5, does not know if he was recorded as a voter in the Electoral Roll, 1962 and he admitted that he had not voted at that election. The Electoral

Roll of 1962 was not produced before the Returning Officer, R.W. No. 3, either. He was, however, shown at the time of his cross Examination

that as against S. No. 243 in the Electoral Roll, 1962, the name of Ghulam Hussan son of Ghulam Hussan son of Ghulam Ahmad is mentioned as

being 21 years of age then; but this does not mean that it referred to this very Ghulam Hussan RW No. 5, there may have been another Ghulam

Hussan as mentioned under S. No. 88 of the Electoral Roll, 1967, where his age is given as 23 years.

(75) On behalf of the respondent, the entry exhibit RW. 2/1 in the admission register of the Doda Higher Secondary, School has been proved by a

teacher of the School RW No. 2 and his date of birth there is noted as 1921944, Bikrami 7112000 and counting from this date, RW No. 5 would

fall short of the requisite age of 25 years, on the date of scrutiny, which was held on 23l19o7. The same date of birth was carried forward to the

Matriculation Certificate exhibit PW 5/1. Of course, the tatter who had made the entry in the School register is still in the School, and was not

examined and RW No. 2, brought the admission register as being incharge of the record of the School. He also said that an application, according

to the usual practice, should have been filed either by the father or the uncle of Ghulam Hussan, when he was admitted into the school, but such a

application was not traceable in his office. An entry in the School register is a pubic record and is admissible under Section 35 of the Evidence Act.

The criticism of Mr. Bhasin, as to the nonexamination of the teacher who had made the entry in the School register or of the father or uncle of

Ghuteth Hussan, who had taken admission on his behalf giving his age all Pale into nothingness when Ghulam Hussan himself has owned as correct

his age as given in the School register and in his Matriculation Certificate.

(76) A grievance has been made that RW No. 5, having signed a declaration in his nomination paper as to his age having been not less than 25

year and attended the court on several dates as the petitioner's Witness, had since been won over by the respondent But he could only see the

sense in that sticking to the wrong step, he had taken once Under the influence of the petitioner. The result could not be different, even if. KW 5

had not swerved and kept to the said of the petitioner for, he could not falsify his date of birth, as given in his school register in absence of any

better material I may say that even if the entire evidence led on behalf of the respondent, were to be ignored, there is no material worth the name

on behalf of the petitioner to combat the orders of the Returning Officer, rejecting the nomination papers of the RW No. 5 on the basis of the

principal's certificate and accepting the nomination paper of the respondent as suffering from no infirmity. It is necessary to say a word about the

conduct of the Returning Officer, RW No. 3 a member of the Indian Forest Service, because his integrity was very much challenged by Mr.

Bhasin. For accepting the nomination paper of the respondent of the adjourned date of the scrutiny on the bidding, conveyed to him, on the phone

of the Deputy Commissioner, by Mr. Dhar, the then Forest Minister. It was also suggested to him that it was only to help the respondent that he

had falsely made an endorsement on his nomination paper that the objection raised by the petitioner had been withdrawn. Both of these

suggestions have been denied by the Returning Officer and there is no material whatsoever in their support. The circumstances speak for

themselves against the insinuations.

(77) The Returning Officer could have no motive in falsely making an endorsement about the withdrawal of the objections by the petitioner against

the respondent, when the only objection was as to his contract and the same had been answered in the reference against the petitioner. He could

not but had to accept the nomination paper of the respondent. If he had any axe to grind, he would not have accepted as valid 12 nomination

papers, including them of the petitioner, who was perhaps the most formidable rival of the respondent. He has also been found to have perfectly

been justified in rejecting nomination paper of Ghulam Hussan on the basis of his principal's certificate, which had been produced before him. I

must find that the conduct of the Returning Officer, has been all fair and above board in dealing with the nomination papers.

(78) Mr. Bhasin could have done well to have spared him the agony of these unfounded and baseless imputations and he should not have also

brought in the name of Mr. Dhar, when he was not before the court to defend himself. A counsel is, no doubt, privileged to test the veracity of a

witness but such a privilege, I must say is not unfettered. A counsel should not act to the dictates or wishes of his client in putting defamatory

questions to a witness who has a misfortune to be in the witness box and at least the client should instruct his counsel to put defamatory questions

to a witness, only when he had materials to substantiate such imputations, otherwise, he takes the risk of being run down for defamation. I must say

that the petitioner had prime facie take such a risk.

(79) Before parting with the case, I must also observed that the record has most unnecessarily been encumbered by producing mass of irrelevant

and flimsy evidence.

(80 The case would have hardly occupied more than three to four days, but three days were devote to arguments alone. I could have pruned the in

admissible and unnecessary evidence, but I did not want it to be said by the petitioner that he was not allowed to have his full say. I cannot help

observing that he has misused this concession by running after shadow and trying to catch and develop every bit of a straw that came in his way.

Having lost the game, in a fair contest, as it appears from all accounts, he should have taken the result sportingly. He is a lawyer, with plenty of

intelligence and energy and perhaps taking advantage of the same, he has perused the respondent from the time of the Reference, as if, with a

personal vendetta. It is a fit case deserving of exemplary cost, for its extreme frivolities, to discourage fruitless litigations.

(81) I must however, express my thanks to the counsel for parties for their able assistance in shorting out the essential evidence and giving me all

the laws bearing on the points, though the trial has been unnecessarily tiring. Mr. Bhasin did his level best to give to the petitioner's case, a

presentable garb but it has been only a vain attempt to give it any base.

(82) The Election Petition is dismissed with a cost to the extent of the full deposit of Rs. 2000/. This shall be paid to the respondent.

(83) Let the result be communicated to the Election Commission, New Delhi and the Speaker of the Legislative Assembly of the Jammu and

Kashmir State forthwith to be followed by a copy of the Judgment to each of them.