Ramcharan vs State Of Madhya Pradesh And Others

Heard.

This intra-court appeal has been filed against the order dated 30th July, 2018 passed in W.P. No.21561 of 2017 whereby the learned Writ Court

while dismissing the writ petition upheld the order dated 27.11.2017 passed by the Sub-Divisional Officer (Revenue) Khilchipur  Jeerapur, District

Rajgarh in election petition filed by the respondent No.4 under Section 122 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short,

“Panchayat Raj Actâ€). The Sub-Divisional Officer allowed the election petition by holding that on the date of submission of nomination form i.e.

on 7.1.2014, appellant was admittedly not of 21 years of age.

Facts of the case are that the appellant before this Court participated in the election for the post of 'Sarpanch'. On 07-01-2014 the appellant has

submitted an affidavit stating therein that he has attained the age of 21 years and based upon his affidavit he was permitted to contest the election on

9.2.2015. Later on, election petition Under Section 122 of the Panchayat Raj Act was filed by the respondent No.4. His election petition was

dismissed by order dated 18-01-2016 on the ground that no objection was raised at the time of submission of nomination form. The respondent No.4

challenged the said order by filing W.P. No.1169 of 2016. On 5.10.2017 the learned Writ Court set aside the order dated 18.1.2016 and remitted the

matter to the Sub-Divisional Officer, Khilchipur to decide the matter on merits. Thereafter, the Sub-Divisional Officer (Revenue) in the light of

observations made by the learned Writ Court in W.P. No.1169 of 2016 has passed the order dated 27.11.2017 and set aside the election of the

appellant on the ground that he was not qualified to contest the election as he was less than 21 years of age.

In the Scholar Register the date of birth of the appellant was mentioned as 4.3.1994; in the 8th Class Certificate Ex. P/11 the date of birth of the

appellant was mentioned as 4.3.1994. The appellant has submitted an application for inclusion of his name in the voter list and in the said application

his date of birth is mentioned as 4.3.1994. On the basis of the aforesaid declaration he has become a voter. In the aforesaid three documents, the date

of birth of the appellant is 4.3.1994. Later on, he submitted an affidavit for correction of his date of birth and based upon the aforesaid affidavit and

consequential correction the appellant got a “Adharâ€​ Card prepared. As per Adhar Card the date of birth of the appellant is 3.8.1993.

The learned Writ Court considering the aforesaid, came to the conclusion that at the time of inclusion of name of the appellant in the voter list he

filed an application declaring his date of birth as 4.3.1994. In 8th Class Certificate and Scholar Register his date of birth is 4.3.1994. Later on, when he

filed an application for correction and on the basis of the aforesaid correction the date of birth has been changed in the Adhar Card and, thus, the

subsequent correction will not help in any way to the appellant.

Considering the aforesaid and provisions of Article 243-F of the Constitution of India, the learned Writ Court while dismissing the writ petition gave

the following reasoning, which reads as under:-

“Undisputed facts of the case reveal that the date of birth of the petitioner was mentioned in the Scholar Register as 04-03-1994, in the VIII Class

Certificate Exhibit-P-11 it was mentioned as 04-03-1994 and the petitioner has himself submitted an application for inclusion of his name in the voter

list and in the application date of birth was mentioned as 04-03-1994. The petitioner by declaring the date of birth as 04-03-1994 has became a voter.

Exhibit-P14 was the document which was brought before the Sub-Divisional Officer. Thus, there were three documents produced before the Sub-

Divisional Officer i.e. VIII class certificate Exhibit-P-11, inclusion of voter list Exhibit-P-14 and the Scholar register Exhibit-P-17, and in all the three

documents the date of birth was mentioned as 04-03-1994. The petitioner came up with a case that he has later on submitted an affidavit for

correction of his date of birth and based upon the affidavit submitted by the petitioner his date of birth was corrected to 03-08-1993 and the petitioner

based upon his affidavit and the consequential correction of date of birth has stated before the Sub- Divisional Officer (Revenue) that he was 21 years

of age.

This court has carefully gone through the order passed bythe Sub-Divisional Officer (Revenue). Undisputedly the petitioner while getting his name

included in the voter list with open eyes has declared his date of birth as 04- 03-1994. In the Scholar Register it is mentioned as 04-03-1994, in the

VIII class Certificate it mentioned as 04-03-1994 and inclusion of voter list (Exhibit-P- 11, Exhibit- P-14, and Exhibit-P-17). It was only later on, he

has submitted an affidavit and the date of birth was corrected. Based upon the affidavit and consequential correction the petitioner got a 'Adhar' card

prepared. The 'Adhar' card is prepared based upon information submitted by a candidate. If a candidate gives a wrong date of birth on affidavit

certainly the wrong date of birth will reflect in the Adhar Card, but the fact remains that for the first time when the voter list was prepared it was the

petitioner who has declared his date of birth as 04-03-1994. This court is witnessing for the first time such type of correction in date of birth based

upon the affidavit. Such type of practice is never heard and, therefore, subsequent correction if any has got no meaning. Not only this the statutory

provisions governing the field provides for 21 years of age for contesting an election. Article 243-F reads as under:-

“Article 243-F also mandates disqualifications, both for the purpose of being chosen as Member of the Panchayat and continuing as a Member of

the Panchayat. Those disqualifications are dealt under Clauses (a) and (b) of Article

243-F. Clause (a) declares that a person is disqualified for being chosen as and for being a Member of the Panchayat, if he is so disqualified by or

under any law for the time being in force, for the purpose of elections to the Legislature of the State concerned. In our view, this clause means, if a

person is disqualified to contest the election to the Legislature, such a person is equally disqualified either for contesting the election as a Member of

the Panchayat or for continuing as a Member of the Panchayat. Under Clause (b) if, by or under any law made by the Legislature of the State, a

person is disqualified, for being chosen as or for being a member of the Panchayat.

The statutory provision as contained under the Constitution of India provides for 21 years of age for contesting the election and which is the subject

matter of the present petition. Undisputedly, the petitioner was less than 21 years of age and in those circumstances on a limited issue which was to be

adjudicated by the Presiding Officer, the Presiding Officer has allowed the election petition, setting aside the election of the petitioner.

Learned counsel for the petitioner has placed heavy reliance upon a judgment delivered in the case of Makhan Lal Bangal Vs. Manas Bhunia and

others reported in (2001) 2 SCC 652, wherein the apex court has held that the issue should be framed while deciding election petition. In the present

case the sole issue which was in dispute has been crystallized by this court by remanding the matter and parties were a given change to lead evidence

and based upon the evidence produced by the parties the election has been set aside and therefore the judgment relied upon by the learned counsel is

of no help to the petitioner.

Reliance has also been placed upon a judgment delivered in the case of Fakhruddin Vs. Fazal Khan reported in 1997 (1) MPWN 214 and the

contention is that age of returned candidate cannot be determined solely on the basis of age shown in electoral roll. In the present case it was the

petitioner who has submitted an application for inclusion of his name in the voter list. Only electoral roll is not on record as (Exhibit- P-14), but the

application was also on record, VIII class certificate (Exhibit- P-11) was on record and the scholar register was also on record (Exhibit P-17) and,

therefore, again the judgment is of no help to the petitioner.

Reliance has also been placed in the case of Basanti bai Vs. Premawati Bai passed by this court reported in 2012 (5) MPHT 386. It was a case

where there was a birth certificate in existence and there was certificate issued by School Authorities and therefore in those circumstances the

learned Judge has held that the birth certificate issued by the competent under the Registration of Births and Deaths Act, 1969 would prevail. In the

present case there is no such contingency involved. The evidence appreciated by the S.D.O ( Revenue) reflects that the petitioner's date of birth was

entered in his school record as 04- 03-1994, the scholar register Exhibit-P-17 reflects his date of birth as 04- 03-1994, VIII Class Certificate Exhibit-P-

11 reflects his date of birth as 04-03-1994, the application submitted by him for inclusion in the voter list reflects his date of birth as 04- 03-1994 and

voter list also reflect is date of birth as 04-03-1994 and on the date of submission of nomination form i.e. 07-01-2015 he was admittedly not of 21 years

of age. Resultantly, the order passed by the Presiding Officer does not warrant any interference.â€​

Learned Senior Counsel for the appellant has drawn our attention to Section 5 (1) and Section 122 of the Panchayat Raj Act and submitted that as

per The Representation of the People Act, persons who have completed 18 years of age are entitled to cast their vote. He has also drawn our

attention to the Adhar Card and other documents and the correction made by the Sub-Divisional Officer and submitted that on 7.1.2015 the appellant

was above 21 years of age and the learned Writ Court without appreciating the same, dismissed the writ petition.

The learned Writ Court has considered the 8th Class Certificate, Scholar Register and application filed by the appellant for registration of his name

in the voter list, wherein his date of birth is recorded as 4.3.1994.

Considering these facts, we are of the view that the learned Writ Court rightly upheld the order passed by the Sub-Divisional Officer and dismissed

the writ petition. The decisions cited by learned Senior Counsel for the appellant in the case of G. Mohiuddin Versus Election Tribunal (FB) reported

in AIR 1959 Allahabad 357 (V 46 C 85) Full Bench and in the case of R Chandran Versus M.V. Marappan reported in (1973) 2 SCC 166 are

distinguishable on facts of the present case.

For these reasons, writ appeal filed by the appellant has no merit and is, accordingly, dismissed. No costs.