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PETITIONER: KRIPA SHANKAR CHATTERJI

       Vs.

RESPONDENT: GURUDAS CHATTERJEE & ORS.

DATE OF JUDGMENT12/07/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) FAIZAN UDDIN (J)

CITATION:  1995 AIR 2152            1995 SCC  (5)   1  JT 1995 (5)   269        1995 SCALE  (4)417

ACT:

HEADNOTE:

JUDGMENT:           THE 12TH DAY OF JULY, 1995 Present:           Hon’ble Mr. Justice G. N. Ray           Hon’ble Mr. Justice Faizan Uddin Mr. Gobinda Mukhoty, Sr. Adv. Mr. V. J. Farancis and Mr. V. Subramanian, Advs. with him for the appellant.           J U D G M E N T The following Judgment of the Court was delivered:                IN THE SUPREME COURT OF INDIA                CIVIL APPELLATE JURISDICTION                CIVIL APPEAL NO. 2503 OF 1994 Kripa Shankar Chatterji          ...Appellant           versus Gurudas Chatterjee and Ors.      ...Respondents                     J U D G M E N T G. N. RAY. J.      This appeal  is directed  against  the  judgment  dated February 3,  1994 passed  by Patna High Court (Ranchi Bench) in Election Petition No. 3 of 1990. The appellant challenged the  result   of  the   election  of   285  Nirsa   Assembly Constituency in  the State of Bihar held in February 1990 by presenting an  election petition before the High Court under the Representation  of People Act 1951 (hereinafter referred to as  the Representation  Act).  The  appellant  Sri  Kripa Shankar Chatterjee  was a  candidate for  the said  election from Nirsa  Constituency. He,  however, lost to the returned candidate namely  Respondent no.1  Gurudas Chatterjee  by  a margin  of  1450  votes.  There  were  22  other  candidates contesting for the said Nirsa Constituency. It may be stated here that  during the  pendency  of  the  Election  petition before the  Ranchi, Bench,  the election petitioner moved an application in  the High  Court  for  inspection  of  ballet papers but  such application  being dismissed the petitioner moved a  Special Leave Application before this Court out the said petition  was also  dismissed by  this Court  with  the

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observation that  dismissal of  special leave petition would not preclude  the High  Court  from  inspecting  the  ballot papers  if  it  deemed  necessary  to  satisfy  the  court’s conscience. Although  the petitioner  thereafter maoe prayer for such  inspection but  the High  Court did  not accede to such prayer.      The election  result was  challenged inter  alia on the prounds of (1) improper rejection of the nomination paper of one of  the candidates  Sri Chunmun  Singh although  he  was above 25 years of age, (2) improper acceptance of nomination papers of  two candidates  namely Sri  Sanjib Baxi  and  Sri Shival Mahajni  who were  not voters  in the  Nirsa Assembly Constituency, (3)  the returned  candidates  and  two  other candidates namely  Respondent No.20  and 21 were at the time of election  employees of  Eastern  Coal  Field  Limited,  a subsidiary of  Coal India  Ltd. which  was a  Government  of India Undertaking  and as such public servants under Section 21 of Indian penal Code and accordingly were disqualified to contest the  said election  and (4) the election of returned candidate  was  invalid  on  account  of  irregularities  in counting ballot  papers, particulars  of such irregularities being mentioned in paragraph 30 of Election petition.      The Respondent  No.1 Sri  Gurudas Chatterjee  contested the Election  petition and denied all the contentions of the Election petitioner  by  filing  a  written  statement.  The learned  Judge   by  the  impugned  judgment  dismissed  the election petition  by rejecting  all the said contentions of the election  petitioner. Coming to the question of improper rejection of  the nomination paper of Sri chunman Singh, the learned Judge  inter alia came to the finding that there was no evidence  from the  side of  Election petitioner that Sri Chunmun Singh  was not  less than  25 years  at the  time of scrutiny.  The   election  petitioner   filed  an  affidavit affirmed by  Sri Chunman  Singh stating that he was above 25 years at  the time  of scrutiny of nomination papers. In the absence of  oral deposition, the High Court was not inclined to accept  the said  affidavit. Mr.  Mukhoty learned  senior counsel appearing  for the  appellant has  contended at  the hearing of  the appeal  that the  said Sri Chunman Singh was summoned but  he failed to appear in court. Sri Chuman Singh filed an  affidavit stating  therein that  his date of birth was  March  5,1962.  Mr.  Mukhoty  has  contended  that  the appellant was  keen in  examining the said Sri Chunman Singh but as  he did not appear despite summons issued to him, his affidavit filed  by him in court answer to the summons ought to have  been accepted  by the  Court. We  are, however, not inclined to  accept the  said submission  of Mr. Mukhoty. It was open  to the  election petitioner  to move the court for taking appropriate steps to ensure appearance of Sri Chunmun Singh. The  ex parte affidavit without affording opportunity to the  Respondent  No.  1  to  test  the  veracity  of  the statements made  in the  affidavit by  cross  examining  him cannot be  held to be sufficient proof of the correct age of Sri Chunmun  Singh. We, therefore, do not find any reason to interfere with the finding of the High Court on the question of rejection of nomination paper of Sri Chunmun Singh.      Coming  to  the  question  of  improper  acceptance  of nomination papers of Sri Sanjib Baxi and Sri Shiv lal Manjhi the High Court has held that the election cetitioner did not file  the   certified  copy   of  the  voters  list  of  the constituency from  which he  was an  slector. The Respondent No.1 in  his deposition  has categorically  stated that both Sri  Baxi   and  Sri   Manjhi  were   voters  in  the  Nirsa Constituency. He  has also stated that both Sri Baxi and Sri Manjhi has shown the relevant entries showing their names in

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the voters  list to  the Returning  Officer at  the time  of scrutiny. It  has been  held by the learned Judge that there is no documentry evidence from the side of the petitioner to establish that  the certified copies of the relevant entries in the  voters list  were not  filed by  the said candidates with their  nomination papers  or at  the time  of scrutiny. There  is  also  no  evidence  that  any  objection  against acceptance of  nomination papers  of the said candidates was raised by  election petitioner  or by any other candidate at the time  of scrutiny.  The learned  Judge  has  not  placed reliance on  the deposition  of  P.W  2  Srilal  because  of contradication in  his statement in examination in chief and cross examination  about examination  of relevant entries in the voters  list at the time of acceptance of his nomination paper for  Sindri Constituency. The High Court has inqicated that there  is evidence  on the  side of the Respondent No.1 vide deposition  of RW  1, RW  10. RW  14 and RW 15 that Sri Baxi and  Sri Manjhi  had produced and shown the voters list to the  Returning Officer.  The learned  Judge has also held that the  presumption of  proper performance  of  duties  by Returning Officer in accepting nomination papers on scrutiny of relevant  records has not been rebutted by any convincing evidence adduced  by the  election petitioner.  It has  also been held  by the High Court that even if it is assumed that the said nomination papers were improperly accepted, in view of Section  100(d) of  the Representation  Act,  unless  the petitioner  was   able  to   establish  that  such  improper acceptance of  nomination papers  had materilly affected the election result,  the same  is not liable to be quasned. The High Court  has come  to the  findingh by indicating reasons that the  election petitioner has failed to establish by any convincing evidence  that in view of contest of the election by Sri  Baxi and  Sri Manjhi,  the polling  prospect of  the election petitioner  was materially  affected. We agree with the said finding of the High Court. It may be indicated here that although  an appeal  lies to this Court from a decision of the  High Court  in an  election petition filed under the Representation Act  and although  in such  appeal this Court can interferer  with the  finding of  fact by making its own assessment of evidence, as a rule of prudence this court has shown disinclination  to interfere  with the finding of fact unless it  can be  established  by  cogent,  convincing  and unimpeachable evidence  that the finding of fact by the High Court is unjustified and against the weight of the evidence. In this  connection reference my be made to the decisions of this court  in N.I.  Singh versus  L.O. Singh  (1977 (1) SCR 573) and  Mohd.       Yunus  versus Shiv Kumar (1974 (3) SCR 738).      So far  as the  question  of  disqualification  of  the returned candidate  to contest  the election  in view of the fact that  at the  relevant time  he held  office of  profit being employee of Eastern Coal Fields Ltd. is concerned, the High Court  has held  that there  is  satisfactory  evidence adduced on  behalf of  Respondent No.1  that he had resigned from service at the relevant period and such resignation was acceped. The High Court however, held that as the Respondent No.1 did  not hold  any "office  of profit"  as contemplated under the  Representation Act,  the other question about his resignation was  immaterial. In our view, the question as to whether an  employee of Eastern Coal Fields Ltd. was holding an "office  of profit"  so as  to be disoualified to contest election under the Representation Act need not be gone into, in view  of the finding that the Respondent No.1 had in fact resigned from  his service  at the  relevant period  and his resignation was  accepted by  the concerned  authority. Such

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finding, in  our view,  in the  facts and circumstances does not warrant  any interference. We may indicate here that the hearing of  this appeal  was concluded  shortly  before  the general election of Bihar State Assembly in 1995 and general election having  been held  in the meantime, this appeal for all practical purpose has lost its importance and has become infructuous. As  all the  contentions of  the appellant have been held not acceptable, we dismiss this appeal without any order as to costs.