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PETITIONER: AMRIT LAL AMBALAL PATEL

       Vs.

RESPONDENT: HIMATBHAI GOMANBHAI PATEL & ANOTHER

DATE OF JUDGMENT: 03/05/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHAH, J.C.

CITATION:  1968 AIR 1455            1969 SCR  (1) 277  CITATOR INFO :  D          1981 SC 547  (8,36)

ACT: The  Representation  of  the People Act (43  of  1951),  ss. 36(2)(a)  and  100(1)(a) and (d)-Age of  returned  candidate below  25 on the date fixed for scrutiny  of  nominations-If election to be set aside.

HEADNOTE: The appellant was the successful candidate in the 1967 State Legislative Assembly Elections.  The 21st January, 1967  was the  date  fixed  for the scrutiny of  nominations  and  the actual  polling  took  place on 18th  February,  1967.   The election of the appellant was challenged on the ground  that he was not qualified to be chosen to fill the seat as he was less  than  25 years of age.  The High Court set  aside  the election on the ground that the appellant’s nomination paper should have been rejected under s.36(2) (a) of the Representation of the People Act, 1951. In appeal to this Court, HELD  :  (1)  The  evidence  conclusively  showed  that  the appellant was in fact born on 25th January, 1942, and not on 15th January, 1942 as contended by him. [280 C] (2)Under  s. 36(12)(a) the nomination paper of  a  candidate is, to be rejected if he is not qualified under Art, 173  of the  constitution  on  the date Axed  for  the  scrutiny  of nominations,  that is. if he had not attained the age of  25 years  on that date.  Consequently, the nomination paper  of the appellant was liable to be rejected under s. 36(2)  (a). Since,  by  the  improper  acceptance  of  the   appellant’s nomination,  the  result  of  the  election  was  materially affected,  the  election had to be declared  void  under  s. 100(1)(d)(1) of the Act. [281 H; 28 A-B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1603  of 1967. Appeal from the _judgment and order dated September 14  1967 of  the  Gujarat High Court in Election Petition  No.  4  of 1967.

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1.   N. Shroff, for the appellant. S.   T.  Desai,  P. C. Bhartari for J.  B.  Dadachanji,  for respondent No. 1. The Judgment of the Court was delivered by Bhargava, J. There were three candidates for election to the Gujarat State Legislative Assembly from Ankleshwar Constitu- ency No. 144.  Respondent No. 1 in the appeal was one of the candidates  who, on being unsuccessful, filed  the  election petition  against the appellant who, as a  rival  candidate, succeeded  in  the election.  Respondent No. 2  was  another defeated candidate it, the General Elections.  The last date for nomination was 20th 278 January,  1967.  The nomination papers were  scrutinised  on 21st  January,  1967. 23rd January, 1967 was  the  date  for withdrawals  and  the  actual polling  took  place  on  18th February,  1967.  The result was declared on 22nd  February, 1967.   The election of the appellant was challenged by  the election petitioner on the ground that the appellant was not qualified  to  be  chosen  to fill the  seat  in  the  State Legislature  on the date of nomination, because he was  born on  19th February, 1943 and was less than 25 years  of  age. The  appellant contested this assertion and pleaded that  he was born on 15th January, 1942, so that he had attained  the age  of  25 years even before the date of  nomination.   The High  Court  of  Gujarat,  after  taking  evidence  of  both parties, arrived at the finding that the appellant’s date of birth was 25th January, 1942, and set aside the election  of the  appellant on the ground that his nomination  paper  was wrongly  accepted  when it should have been  rejected  under section  36(2) (a) of the Representation of the People  Act, 1951 (hereinafter referred to a,, "the Act").  The appellant has  challenged  this  decision of the High  Court  in  this appeal  under s. 116A of the Act on two grounds.  The  first ground  is  that the High Court has wrongly arrived  at  the finding  that the date of birth of the appellant  was  25-1- 1942  and should have held that the appellant  was  actually born   on  15-1-1942.   The  second  ground  urged  in   the alternative is that, in any case, even if the appellant  was born  an 25-1-1942, he was more than 25 years of age on  the 18th  February, 1967 when the election took place,  so  that his  election could not be set aside on the ground  that  he was disqualified from being chosen as a member of the  State Legislature. The first ground raises only a question of fact on which the High  Court  has recorded a finding against  the  appellant, even  though the finding does not fully accept the case  put forward by the election petitioner.  The election petitioner had pleaded that the date of birth of the appellant was 19th February, 1943.  During the course of hearing of this appeal before  us, no attempt was mad-. on behalf of  the  election petitioner  to persuade us to accept the original  case  put forward  on  his  behalf  that the  appellant  has  born  on February  19,  1943  and, consequently, it  is  not  at  all necessary  to discuss the evidence which was put forward  on behalf  of the election petitioner in support of that  case. We  need only deal with the evidence given on behalf of  the appellant to prove that his date of birth was 15th  January, 1942, and the evidence on the basis of which the High  Court has arrived at the finding that the correct date of birth is 25th January, 1942.  The evidence which is decisive on  this question  is  the entry in the birth register in  which  the birth  of the appellant was recorded when he was born.   The original  birth register was summoned in the High Court  and it showed the date of birth as at present

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279 entered as 15-1-1942.  Reliance was placed on this entry  on behalf  of  the appellant to urge that the  High  Court  has wrongly found the date of birth to be 25-1-1942. The entry in the register was found by the High Court to  be highly  suspicious and containing alterations.  The  learned Judge, who tried the election petition himself examined this entry  in the register and found that the figure "1" in  the figure "15" was an alteration, indicating that the  original date,  which was "25", was, changed to "15" by changing  the figure "2" into figure "1".  This observation of the learned Judge  was  fully borne out by our own  examination  of  the entry in the register under a magnifying glass.. It  appears that, in order to make the alteration, an. attempt was  made to  partially  rub  out the original figure  "2",  with  the result  that there is thinning of the paper at  that  place. This thinning of the paper is clearly visible when the paper is  held against bright light.  Further, when the figure  is examined with the aid of a magnifying glass, the figure  "2" earlier  written  becomes visible.  It is  also  significant that in the entries relating to the birth of the,  appellant in  various  columns,  the writing is not  in  uniform  ink. Different shades of ink have been used indicating subsequent alteration. On  behalf  of  the appellant, our attention  was  drawn  to alterations in some other entries in the same register where also  similar  features  exist, in order to  urge  that  the alteration   in  this  particular  entry  relating  to   the appellant  should be treated as a mere correction and not  a deliberate alteration from the correct date to an  incorrect date  of  birth.  It is true that there are  alterations  in some  of  the  other figures also; but there  is  one,  very important circumstance that distinguishes the case  relating to  the  entry of birth of the appellant  as  compared  with other  entries which contain alterations.  On behalf of  the election  petitioner,  one  witness  examined  was  P.W.   3 Kanaiyalal   Chhotalal   Hindia  who  is   Head   Clerk   in Jayendrapuri  Arts  &  Science College at  Broach.   He  has deposed that the appellant joined the First Year Arts Class, now  known as Pre-University Arts Class, in that College  in the year 1960-61.  At the time of admission in that College, the appellant’s date of birth was entered as 19th  February, 1943.  Subsequently, at the instance of the appellant,  this date  was  changed to 25th January, 1942.   The  change  was actually  carried  out  in the admission  register  by  this witness  himself.  The witness has stated that, in order  to obtain this change, the appellant produced a certified  copy of  the entry in the birth register and that certified  copy showed  the date of birth as 25-1-1942.  There is no  reason to  disbelieve the evidence of this witness.   His  evidence thus proves that, when the first certified copy of the entry in the birth register was obtained by the appellant in order to  get  the  entry  in  the  college.  admission   register corrected, that certified copy showed the date. 280 of  birth as 25-1-1942.  This means that at that time,  when that  certified  copy  was issued, the entry  in  the  birth register read as 25-1-1942 and not 15-1-1942.  The necessary conclusion  ,follows  that  the  alteration  found  in   the original  register  must have -been made subsequent  to  the issue  of that certified copy.  It is true that,  later  on, the  appellant obtained another certified copy in  December, 1966  and,  in  that certified copy, the date  of  birth  is entered as 15-1-1942.  This does not however help the appel- lant, because, at best, it shows that by December, 1966, the

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entry  in the original register had already been altered  so as to read as 15-1-1942.  This whole evidence thus leads  to the conclusion that the date of birth, which was  originally entered  as  25-1-1942, was altered to 15-1-1942  some  time between  the  issue of the first certified copy,  which  was produced in the College, and the second certified copy which was  obtained  in  December, 1966.  This  evidence,  in  our opinion,  is conclusive to show that the -appellant  was  in fact born on 25th January 1942 and not on 15th January  1942 as  contended  on behalf of the appellant.  The  High  Court accepted  this case and we have no hesitation  in  affirming that finding of the High Court on this point. The  alternative ground urged on behalf of the appellant  is that, even if it be held that the appellant was born on 25th January, 1942, it should be held that he was qualified to be chosen was a member of the State Legislature in view of  the provision  contained  in Art. 173 of the  Constitution,  the relevant part of which reads as follows :-               "173.   A person shall not be qualified to  be               chosen to fill a seat in the Legislature of  a               State unless he-               (a)               (b)   is,  in  the  case  of  a  seat  in  the               Legislative  Assembly, not less  than  twenty-               five  years of age and, in the case of a  seat               in  the  Legislative Council,  not  less  than               thirty years of age; and               (c) It  was urged that, under this Article, the  requirement  is that the -,per-son must not be less than 25 years of age  to be qualified to be chosen to fill a seat in the  Legislative Assembly  and, since a person can be held to be chosen  when he is declared elected, all that is required by this article is that he should have attained the age of 25 years prior to the  declaration of the result of the election.   Similarly, reference was also made to S. 100 ( 1 ) (a) of the Act which is as follows : -               "100.  (1) Subject to the provisions  of  sub-               section (2) if the   High    Court   is,    of               opinion-               281               (a)   that  on  the  date of  his  election  a               returned  candidate was not qualified, or  was               disqualified,  to be chosen to fill  the  seat               under  the  Constitution or this  Act  or  the               Government of Union Territories Act, 1963, or               (b)               (c)               (d)               the  High Court shall declare the election  of               the returned candidate to be void." The  argument  was that, under s. 100(1) (a),  the  question that  falls  for  determination  is  whether  the   returned candidate was not qualified on the date of his election, and the,  date of election must be the date when the  result  of the election was declared, or, at the earliest, the date  on which  the  polling took place.  In the  present  case,  the result  was declared on the 22nd February, 1967,  while  the polling took place on 18th February, 1967, and before  these dates the appellant had attained the age of 25 years. No  doubt, these arguments advanced on behalf of the  appel- lant are correct,; but, apart from these provisions,  effect has  to be given also to the additional provision  contained in section 36(2), of the Act which reads as under:-               "36.  (2)  The returning  officer  shall  then

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             examine the nomination papers and shall decide               all  objections  which  may  be  made  to  any               nomination  and may, either on such  objection               or  on  his  own motion,  after  such  summary               inquiry,  if  any,  as  he  thinks  necessary,               reject any nomination on any of the  following               grounds :-               (a)   that on the date fixed for the  scrutiny               of  nominations, the candidate either  is  not               qualified or is disqualified for being  chosen               to  fill the seat under any of  the  following               provisions that may be applicable, namely -.-               Articles 84, 102, 173 and 191,               Part 11 of this Act, and sections 4 and 14  of               the Government of Union Territories Act, 1963;               or               (b)               (c) It  is to be noticed that this provision makes  a  departure inasmuch as it lays down that the nomination paper is to  be rejected  if the candidate is not qualified under Art.  173’ of the Constitution on 282 the  date  fixed for the scrutiny of  nominations.   In  the present ,case, the appellant had not attained the age of  25 years  on  21st  -January,  1967, which  was  the  date  for scrutiny of nominations.  Consequently, the nomination paper of the appellant was liable to be rejected under S. 3 6  (2) (a) of the Act.  Since it was liable ;to be rejected on this ground,  it  must  be  held that  his  nomination  had  been improperly  accepted.  In such a case, under S. 100  (1)(d), the  High  Court  is to declare the election  void,  if  the result  of  the  election,  in so far  as  it  concerns  the returned  candidate,  is  found  to  have  been   materially affected.   On  the face of suit, the  consequence  of  them proper  acceptance  of the nomination of the  appellant  was that  the  result of the election was  materially  affected, because  he  was declared as duly elected when  he  was  not entitled  to  that right on the ground that  his  nomination paper  should  have been rejected by the  returning  officer under s. 36(2) (a)  of  the Act.  The election of the appellant had  to  be declared as    void in these circumstances by the High Court not under S.   100 (1) (a), but under S. 100 (1) (d) (i)  of the Act.  The order made by the High Court setting aside the election of the appellant is, therefore, in accordance  with law.  There is no ground for interfering with it. The appeal fails and is dismissed with costs. "V.P.S.                               Appeal dismisses. 283