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PETITIONER: BIRAD MAL SINGHVI

       Vs.

RESPONDENT: ANAND PUROHIT

DATE OF JUDGMENT02/08/1988

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR 1796            1988 SCR  Supl. (2)   1  1988 SCC  Supl.  604     JT 1988 (3)   389  1988 SCALE  (2)328

ACT:     Representation  of the People Act,  1951-Section  33(5), 36(2) (b), 80, 83, 87, 93 and116.     Nomination-Scrutiny of-Returning Officer to be satisfied candidate  eligible  to contest  section-Enquiry-Summary  in nature-No  scope for elaborate enquiry-Candidate to  Satisfy Returning  Officer  about eligibility-Election  petition-Not an  appeal  against  order of  Returning  Officer  rejecting nomination-Fresh material can be adduced by candidate before High Court to support eligibility.     Candidate an elector of different constituency-Proof  of name  in   concerned  electoral roll-Onus  on  candidate  to prove-No  duty  of  Returning  Officer  to  refer   relevant electoral roll and verify eligibility.     Nomination  paper-Rejection on ground candidate has  not completed   25  years  of  age-Election   petition-Documents showing date  of birth-Evidentiary value in proving age.     Indian  Evidence Act, 1872-Section 35-Entry relating  to date  of birth in school register--Relevant and  admissible- Entry regarding age in school register--Not much evidentiary value  10 prove age in absence of material on which the  age was recorded.

HEADNOTE:      Election to the State Legislative Assembly of Rajasthan for  Jodhpur City Constituency, was held in the  year  I985. Nomination  papers  were filed on 8.2.1985 and the  date  of scrutiny  was Y.2. l9S5. In all 45  candidates  filed  their nominations,  after scrutiny and withdrawal, 21   candidates contested  the election. After polling and the  counting  of votes,  the appellant was declared elected  having  obtained majority of votes.     The  respondent who was an elector in the  Jodhpur  city Constituency  filed  an election petition  before  the  High Court  challenging  the appellant’s election on  the  ground that  the  result of election was   materially  affected  on account  of  improper rejection of nomination  papers  of  3 candidates,  namely, Smt. Umrao Ben, Hukmi Chand  and  Suraj Prakash  Joshi. It was pleaded that Smt. Ben was an  elector in  the     Sardarpura Assembly Constituency  the  Returning Officer  wrongly  rejected  her  nomination  paper   without

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affording an opportunity to her to     produce a copy of the electoral  roll,  that Hukmi Chand and Suraj  Prakash  Joshi both  were  more  than 25 years of age on the  date  of  the nomination,   yet  the  returning  officer  rejected   their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age.                                                     PG NO 1                                                     PG NO 2     The  appellant contested the election petition.  It  was asserted  that Smt. Ben had failed to file a certified  copy of  the relevant entry in the electoral roll  of  Sardarpura Constituency  along  with her nomination, that  she  further failed  to produce a copy of the electoral roll at the  time of  scrutiny  and the returning  officer  therefore  rightly rejected her nomination paper. In respect of Hukmi Chand and Suraj Prakash     Joshi, it was pleaded that none of the two candidates were present before the returning officer at  the time  of  scrutiny and since the entries  contained  in  the electoral  roll indicated that they were below 25  years  of age the returning officer rightly rejected their  nomination papers.  and that the rejection of the 3  nomination  papers was proper and the result of the election was not materially affected on account of the rejection of the name.     The  High  Court allowed the election petition  and  set aside the  appellant’s election. It held that the nomination paper  of  Smt. Umrao  Ben was validly rejected as  she  had failed to comply with section 33(5) of the Representation of Peoples  Act inasmuch as she failed to produce the  copy  of the  electoral  roll  or a certified  copy  of  the  extract relating  to  entry of her name in the  electoral  roll.  It further  held that the nomination papers of Hukmi Chand  and Suraj  Prakash  Joshi had been  rejected improperly  by  the Returning  officer as both the candidates had  attained  the qualifying age of 25 years on the date of nomination.     Aggrieved  by  the  aforesaid  judgment.  the  appellant preferred an appeal to this Court under section 116-A of the Representation of People Act, 1951.     On the questions whether: (1) the returning officer  had validly  rejected the nomination papers of Smt.  Umrao  Ben, Hukmi Chand and Suraj Prakash Joshi, and (2) the  respondent had proved in accordance with law that Hukmi Chand and Suraj Prakash  Joshi whose nomination papers were rejected by  the Returning  Officer  had  attained the age  of  25  years  on January 1, 1984.                                                     PG NO 3     Allowing the appeal, setting aside the order of the High Court and dismissing the election petition, the Court.     HELD:   l(a).  Section  33  of  the  Act  provides   for presentation  of       nomination paper and it further  lays down  the requirements of a valid nomination. Section  33(5) requires  a  candidate  who is an  elector  of  a  different constituency,  to file a copy of the electoral roll  of  the constituency  as  a certified copy of the  relevant  entries along with his nomination paper. If a candidate is unable to comply  with  these requirements at the time of  filing  the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the electoral roll of the constituency of the relevant part thereof or a certified copy  of  the  relevant  entries  of  the  roll  before  the returning officer at the time of scrutiny. [9A-E]     (b)  The Legislature thus provides two opportunities  to such a candidate for proving his eligibility to contest  the election, one at the time of filing the nomination paper and the  other at the stage of scrutiny. If the candidates  fail to  avail of either of the two opportunities his  nomination

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paper is liable to be rejected. [9E-F]     (c)  Non-compliance with section 33(5) is fatal  to  the nomination  and no other mode is prescribed by the  Act  for proving  the  eligibility of the  candidate.  Section  33(5) prescribes  a  particular  mode to prove  eligibility  of  a candidate to contest election and section 36(Z)(h)  provides penal consequences.[10A]     (d) Section 33(5) of the R.P. Act lays down a  mandatory requirement  for  a  valid nomination.  The  purpose  is  to satisfy the returning officer that the candidate is eligible to contest the election and if he       fails to satisfy the returning officer in the manner prescribed, the penalty  and the  consequences  which are specified in  section  36(2)(b) must  follow. Section 33(5) is not directory instead  it  ia mandatory in nature. [l0F]     (e)  An elector of a different constituency is  under  a mandatory  duty  to  prove his  eligibility  in  the  manner prescribed by section 33(5) of the Act and if he fails to do that,  he must suffer the consequences      contemplated  by section  36(2)(b) of the Act. It is not open to a  candidate who  fails to comply with section 33(5) to put the blame  on the  returning officer for the rejection of  his  nomination paper. The returning officer is under no legal obligation to make amends for the omission of a candidate, especially when the omission relates to a mandatory requirement. [10G-11A]                                                      PG NO 4     (F)  The  law does not enjoin the returning  officer  to send  for the electoral roll from his office to  verify  the eligibility  of  a candidate. The law casts a  duty  on  the candidate to satisfy the returning officer by following  one of  the three modes prescribed in section 33(5) of  the  Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter. [11B ]     (g)  The law does not require the returning  officer  to send for the electoral roll of a different constituency  for the  purpose  of verifying the eligibility of  a  candidate. [11C]     In   the  instant case, there is no  dispute  that  Smt. Umrao  Ben failed to comply with the requirement of  section 33(5)  of  the Act as she had neither filed a  copy  of  the electoral  roll  of the constituency or  the  relevant  part thereof, or the certified copy of the relevant entries along with  her nomination paper. Nor she had produced any of  the three documents before the returning officer at the time  of scrutiny.  In  such  circumstances  the  returning   officer rightly rejected Umrao Ben’s nomination     paper. [10B]     Sri  Babu Ram  v. Shrimati Prasanni & Ors.,  [l959]  SCR 1403; SCR 1403; Narbada Prasad v. Chhagan Lal & Ors., [1969] 1 SCR 499; Parmar Himat singh Jugatsingh v. Patel Harmanbhai Narsibhai, [1974] SCR 453; Avadh Raj Singh v. Jugal  Kishore Gupta,[l979]  1 SCR: 228 and Ranjit Singh v. Pritam Singh  & Ors., [1966]3 SCR 543, referred to.     2(a) During the scrutiny the Returning Officer is  under a  statutory duty to satisfy himself that the candidate  who may  have  filed nomination paper  possesses  the  necessary constitutional  qualification for contesting  the  election. [l4F]     (b)  Enquiry  during scrutiny is summary  in  nature  as there  is no scope for any elaborate enquiry at that  stage. Therefore it is open to a party to place fresh or additional material  before the High Court to show that  the  Returning Officer’s order rejecting the nomination paper was improper. It  should  be  borne in mind that  the  proceedings  in  an election  petition are not in the nature of  appeal  against

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the  order  of  the returning officer.  It  is  an  original proceeding. [15C]     (c)  In  the instant case, on the basis of  the  entries contained  in the electoral roll the Returning Officer  held that  the  two  candidates did  not  possess  the  requisite qualification  of  age  as required by Article  173  of  the Constitution   to  contest  the  election.  Accordingly   he rejected  both the nomination papers. In the absence of  any material before the returning officer, the returning officer was  not wrong in taking the entries in the  electoral  roll into  consideration and acting on them. But his decision  is not final. In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was  rejected had  in  fact attained the age of 25 years on  the  relevant date. If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had  been rejected was qualified to contest the election  it is  open to the High Court to set aside the election.  [14G- l5B]                                                     PG NO 5     3(a) To render a document admissible under section 35 of the  Evidence  Act  three  conditions  must  be   satisfied, firstly, entry that is relied on must be one in a public  or other  official book, register or record, secondly, it  must be  an entry stating a fact in issue or relevant  fact;  and thirdly, it must be made by a public servant in discharge of his  official duty, or any other person in performance of  a duty specially enjoined by law. [21B]     (b)  An  entry  relating to date of birth  made  in  the school register is relevant and admissible under section  35 of the Act, but the entry regarding the age of 3 person in a school  register is of not much evidentiary value  to  prove the  age  of the person in the absence of the   material  on which the age was recorded. [21C]     (c)  Parents or near relations having special  knowledge are the best persons to depose about the date of birth of  a person.  If  entry regarding date of birth in  the  school’s register  is  made on the information given  by  parents  ar someone having special knowledge of the fact, the same would have probative value. [20A]     (d)  The  date  of  birth  mentioned  in  the  scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. [2OB]     (e) The entry contained in the admission form or in  the scholar  register must be shown to be made on the  basis  of information given by the parents or a person having  special knowledge  about the date of birth of the person  concerned. If  the  entry in the scholar’s register regarding  date  of birth is made on the basis of information given by  parents, the entry would have evidentiary value but if it is given by a  stranger or by Someone else who had no special  means  of knowledge  of the date of birth, such an entry will have  no evidentiary value. [20C]                                                      PG NO 6     In the instant case, nomination papers of two candidates Hukmi  Chand  and Suraj Prakash Joshi were rejected  by  the Returning  Officer on the ground that they had not  attained the  age  of  25 years at the  time   of  filing  nomination papers. In the election petition copies of extract of school register,  certificate and mark list of Secondary  Education Board were produced. The High Court committed serious  error in  accepting  the  dates  of  birth  as  mentioned  in  the documents.  The High Court’s entire approach in  considering the question of dates of birth was misconceived. The  burden

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to  prove this fact in issue was on the respondent  who  was the  election petitioner. In fact the burden was on  him  to prove  his case by producing Hukmi Chand and  Suraj  Prakash Joshi or their parents to prove or corroborate the dates  of birth   as   mentioned  in  the  school  register  and   the certificate. No adverse inference could be drawn against the appellant for not examining them. [22C-G; 23C-D]     Raja  Janaki Nath Roy & Ors. v. Jyotish Chandra  Acharya Chowdhury, AIR 1941 CAL. 41; Jagan Nath v. Moti Ram &  Ors., [1951]  Punjab 377; Sakhi Ram & Ors. v.  Presiding  Officer, Labour Court, North Bihar, Muzzafarpur & Ors., [1966]  Patna 459;  Ghunchi Vora Samsuddish Isabhai v. State  of  Gujarat, [1970]  Gujarat 178; Radha Kishan Tickoo) & Anr. v.  Bhushan Lal Tickoo    Anr., [1970]J &  K 62; Jagdmba Prasad v.  Shri Jagannath  Prasad & Ors., 42 ELR 465; k. Paramalali v.  L.M. Alangam  &  Anr., 31 ELR 401; krishna Rao Maharu  Patil   v. Onkar  Narayan  14 ELR 386; Brij Mohan Singh v.  Priya  Brat Narain  Sinha & Ors.,[1965]3 SCR 861.,Ram murti v. State  of U.P. Haryana, AIR 1625,referred to.

JUDGMENT:     CIVlL APPELLATE JURISDICTION: Civil Appeal No. 574 (NCE) of I987.     From  the  Judgment and Order dated 18.2.  1987  of  the Rajasthan High Court in S.B. Elec. Petn No. 8 of 1985.     Dr.  N.M. Ghatate, S.V. Deshpande and  Abhishek  Singhvi for he Appellant.     G.L. Sanghi. Jitender Sharma, P. Gaur and M.K. Calla for the Respondent.     The Judgment of the Court was delivered by:                                                     PG NO 7     SINGH,  J.  This  appeal  under  Section  116-A  of  the Representation  of People Act 1951 (hereinafter referred  to as  the Act) is directed against the judgment and  order  of the  High Court of Rajasthan dated 18.2.1987  setting  aside the  election  of  the appellant to  the  State  Legislative Assembly   of   Rajasthan   from   Jodhpur   City   Assembly Constituency.     Election to the State Legislative Assembly of  Rajasthan from  the constituency No. 183 Jodhpur City was held in  the year 1985; nomxination papers were filed by 8.2.1985 and the date  of scrutiny was 9.2.1985. In all 45  candidates  filed their   nominations.  After  scrutiny  and   withdrawal   21 candidates   contested  the  election,  after  polling   and counting of votes the appellant was declared elected  having obtained majority of votes. Anand Purohit, respondent who is an elector in the Jodhpur City Constituency No. 183 filed an election  petition  before the High  Court  challenging  the appellant’s  election,  on  the ground that  the  result  of election  was  materially affected on  account  of  improper rejection  of nomination papers of three candidates  namely, Smt.  Umrao  Ben, Hukmichand and Suraj  Prakash  Joshi.  The respondent  pleaded  that Smt. Umrao Ben was an  elector  in Sardarpura  Assembly  Constituency  the  returning   officer wrongly  rejected  her nomination paper,  without  affording opportunity to her to produce a copy of the electoral  roll. He further pleaded that Hukmichand, and Suraj Prakash  Joshi both  were  more than 25 years of age on the date  of  their nomination,   yet  the  returning  officer  rejected   their nomination papers on the ground that they were not qualified to  be a candidate as they were below 25 years of  age.  The appellant contested the election petition.  He asserted that Umrao  Ben  had  failed  to file a  certified  copy  of  the

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relevant   entry  in  the  electoral  roll   of   Sardarpura constituency  along with her nomination, she further  failed to  produce  copy  of  the electoral roll  at  the  time  of scrutiny   and  therefore  the  returning  officer   rightly rejected  her  nomination paper. As regards  Hukmichand  and Suraj Prakash Joshi, the appellant pleaded that none of  the two  candidates  dates  was  present  before  the  returning officer  at  the  time c,f scrutiny and  since  the  entries contained  in  the electoral roll indicated that  they  were below 25 years of age the returning officer rightly rejected their nomination paper. The appellant further asserted  that the rejection of the three nomination papers was proper  and the  result of the election was not materially  affected  on account  of the rejection of the aforesaid three  nomination papers.  The  High Court held that the nomination  paper  of Smt.  Umrao  Ben was validly rejected as she had  failed  to comply  with  Section 33(5) of the Act inasmuch as  she  had failed  to  produce  a  copy of  the  electoral  roll  or  a certified copy of the relevant  extract relating to entry of her  name in the electoral roll in Sardarpura  constituency. The  High  Court  further held  that  nomination  papers  of Hukmichand  and  Suraj  Prakash  Joshi  had  been   rejected improperly  by the returning officer as both the  candidates had  attained the qualifying age of 25 years on the date  of nomination.  On these findings the High Court set aside  the appellant’s  election  by  its  judgment  and  order   dated 18.2.1987. Aggrieved by the said judgment the appellant  has preferred this appeal under Section 116 of the Act.                                                      PG NO 8     The  controversy  in the present appeal relates  to  the validity  of the orders of the returning  officer  rejecting the nomination paper of Smt. Umrao Ben, Hukmichand and Suraj Prakash  Joshi. We would first examine the validity  of  the order  of the returning officer rejecting Smt.  Umrao  Ben’s nomination  paper,  which was questioned by  the  Respondent before  us.  There is no dispute that Umrao Ben was  not  an elector  in the Jodhpur City Assembly Constituency No.  183. She  was an lector in Sardarpura Assembly  Constituency.  In her  nomination  paper  she had given  the  details  of  the relevant entry contained in the electoral roll of Sardarpura Assembly  Constituency,  but her nomination  paper  was  not accompanied by a certified copy of the relevant entry in the electoral  roll  of  Sardarpura  constituency  nor  she  had produced  a copy of the electoral roll or the relevant  part thereof  before  the  returning  officer  at  the  time   of scrutiny.  Therefore  the  returning  officer  rejected  her nomination  paper.  The High Court held that  the  returning officer  had rightly rejected the nomination paper of  Umrao Ben  and there was no question of improper rejection of  her nomination  paper. Sri G.L. Sanghi, learned counsel for  the respondent  challenged the correctness of the  High  Court’s findings on this question. He urged that since the Returning Officer  who was holding the scrutiny of  nomination  papers relating  to the Jodhpur Assembly constituency was also  the returning  officer  of Sardarpura  Assembly  constituency,he should have verified the entry of Umrao Ben’s name from  the electoral  roll  of Sardarpura Assembly  Constituency  which must  have been with him. He urged that Umrao Ben’s  request to  verify entries relating to her name from  the  electoral roll of Sardarpura Assembly constituency was ignored by  the returning  officer,  and  further her request for  grant  of time  to produce electoral roll was also rejected. He  urged that object of Section 35 of the Act was merely to ascertain as  to  whether  a  candidate  whose  nomination  paper  was scrutinised  was an elector or not and since  the  electoral

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roll  of Sardarpura Assembly Constituency was  already  with the  returning  officer he could have verified  the  entries from that electoral roll. The returning officer had acted in an  unreasonable  manner  in  refusing to  do  that  and  in rejecting  her nomination paper. We find no merit  in  these submissions.                                                      PG NO 9      Section  33  of the Act provides  for  presentation  of nomination  paper and it further lays down the  requirements of a valid nomination. Sub-section (5) of the Section 33  is as under:     "where  the  candidate  is an  elector  of  a  different constituency   a  copy  of  the  electoral  roll   of   that constituency or of the relevant part thereof or a  certified copy  of the relevant entries in such roll shall, unless  it has been filed along with the nomination paper, be  produced before the returning officer at the time of scrutiny."     The  above  provision  requires a candidate  who  is  an elector  of a different constituency, to file a copy of  the electoral roll of constituency  a relevant part of that roll or a certified copy of the relevant  entries along with  his nomination paper. These documents are necessary to show that the candidate is an elector of a different constituency  and he  is eligible to contest the election. If a  candidate  is unable  to  comply with these requirements at  the  time  of filing   the  nomination  paper  he  is   afforded   another opportunity to prove his eligibility by producing a copy  of the electoral roll of the constituency or the relevant  part thereof  or a certified copy of the relevant entries of  the roll  before the returning officer at the time of  scrutiny. The  Legislature  provides  two  opportunities  to  such   a candidate  for  proving  his  eligibility  to  contest   the election one at the stage of filing the nomination paper and the  other at the stage of scrutiny. If the candidate  fails of  avail  either of the two  opportunities  his  nomination paper  is  liable  to be rejected. Section  36  of  the  Act provides  that on the date of scrutiny of nomination  papers the  returning officer shall examine the  nomination  papers and  shall  decide all objections which may he made  to  any nomination  and  he may either on objection or  on  his  own motion,  after holding such summary inquiry. if any,  reject any nomination on the grounds specified in clauses (a),  (b) and  (c) of sub-section (2). Section 36(2)(b)  provides  for the  rejection  of the nomination paper on  the  candidate’s failure  to comply with any of the provisions of Section  33 or  Section 34 of the Act. Section 33(5.) read with  Section 36(2)(b)  makes  it apparent that if a candidate who  is  an elector  of  a  different constituency fails  to  prove  his eligibility in the manner prescribed by Section 33(5) of the Act,  his nomination paper is liable to be rejected for  the non compliance of Section 33(5) of the Act. These provisions are plain which admit of no other interpretation.                                                     PG NO 10     Non-compliance  with  Section  33(5)  is  fatal  to  the nomination  and no other mode is prescribed by the  Act  for proving  the  eligibility of the  candidate.  Section  35(5) prescribes  a  particular  made to prove  eligibility  of  a candidate to contest election and Section 36(2)(b)  provides penal consequences. Therefore Section 35(5) is mandatory  in nature. There is no dispute that Umrao Ben failed to  comply with the requirement of Section 33(5) of the Act as she  had neither   filed  a  copy  of  the  electoral  roll  of   the constituency or the relevant part thereof, or the  certified copy  of  the  relevant entries along  with  her  nomination paper.  Nor  she  had produced any of  the  three  documents

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before the returning officer at the time of scrutiny. In the circumstances  the returning officer rightly rejected  Umrao Ben’s nomination paper.      Shri  G.L.  Sanghi,  learned counsel  then  urged  that Section 33(5) of the Act was directory and it+was open to  a candidate  to prove his eligibility, by any other  mode.  He urged  that Umrao Ben’s request to the returning officer  to verify  her  entry  from the electoral  roll  of  Sardarpura Assembly  Constituency which was in his custody (as  he  was the  returning officer of Sardarpura  Assembly  Constituency also)  was  ignored  and he refused to  grant  her  time  to produce  the necessary documents. In the  election  petition there  was  no pleading that Umrao Ben had  made  any  such request  or that the returning officer had refused to  grant her  time.  The High Court has on appreciation  of  evidence held that no request for time was made by Smt. Umrao Ben and no request for verifying the entry relating to her from  the electoral roll of Sardarpura assembly Constituency was made. But even assuming  that the returning officer had refused to verify  the relevant entries relating to Umrao Ben from  the electoral  roll of Sardarpura Assembly Constituency, he  had acted in accordance with law. No exception could be taken to his conduct. Section 33(5) of the Act lays down a  mandatory requirement  for a valid nomination. The purpose of  Section 33(5) of the Act is to satisfy the  returning officer  that the candidate is eligible to contest the election and if  he fails   to  satisfy  the returning  officer  in  the   manner prescribed  by Section 33(5) of the Act, the  penalty  and the  consequences  which are specified in  Section  36(2)(b) must  follow. Section 33(5) is not directory instead  it  is mandatory  in nature. An elector of a different constituency is  under a  mandatory duty to prove his eligibility in  the manner  prescribed  by Section 33(5) of the Act  and  if  he fails   to  do  that,  he  must  suffer   the   consequences contemplated by Section 36(2)(b) of the Act. It is not  open to a candidate who fails to comply with Section 33(5) of the Act  to  put  the blame on the  returning  officer  for  the rejecting  his  nomination paper. The  retuning  officer  is under no legal obligation to make amends for the omission of a  candidate,  especially  when the omission  relates  to  a mandatory  requirements. Apart from this legal aspect,  even on facts, the Returning Officer, in his testimony before the High Court, had stated that the electoral roll of Sardarpura Assembly  Constituency was not with him at the time  he  had taken  up the scrutiny of nomination paper of  Jodhpur  City Constituency. The law does not enjoin the returning  officer to send for the electoral roll from his office to verify the eligibility  of  a candidate. The law casts a  duty  on  the candidate to satisfy the returning officer by following  one of  the three modes prescribed in Section 33(5) of  the  Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter. The  law does not require the returning officer to send  for the  electoral  roll  of a different  constituency  for  the purpose  of verifying the eligibility of a candidate.                                                     PG NO 11     In Sri Babu Ram v. Shrimati Prasanni & Ors., [1959]  SCR 1403  this  Court  interpreted  Section  33(5)  and  Section 36(2)(b) and observed as under:     "Section  33(5)  requires the candidate  to  supply  the prescribed  copy and Section 36(2)(b) provides that  on  his failure  to comply with the said requirement his  nomination paper  is liable to de rejected. In other words. this  is  a case where the statute requires the candidate to produce the prescribed  evidence and provides a penalty for his  failure

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to  do so. In such a case it is difficult to appreciate  the relevance  or validity of the argument that the  requirement of Section 33(5) is not mandatory but is directory,  because the  statute  itself has made it clear that the  failure  to comply  with the said requirement leads to the rejection  of the  nomination  paper.  Whenever  the  statute  requires  a particular  act to be done in a particular manner  and  also lays  down that failure to comply with the said  requirement leads  to  a specific consequence it would be  difficult  to accept the argument that the failure to comply with the said requirement should lead to any other consequences. "                                                     PG NO 12     Repelling  the argument that failure to comply with  the requirement of Section 33(5) was not a defect of substantial nature and the returning officer could be satisfied by other modes that the candidate’s name was entered as an elector in another  constituency, the Court held that the  satisfaction of  the  returning  officer  was  required  to  be  made  in accordance with the statutory requirement and if a candidate failed to comply with that requirement the returning officer could not be satisfied by any other mode. The Court  further held  that  the failure to comply with  the  requirement  of Section 33(5) was a defect of substantial nature which could not  be  ignored under Section 36(4) of the  Act.  The  view taken  in Sri Babu Ram’s case (supra) has been  followed  in Narbada  Prasad  v. Chaggan Lal & Ors., [I969]  1  SCR  499; Parmar Himat singh Jugatsingh v. Patel Harmanbhai Narsibhai, [1974].  3  SCR  453 and Avadh Raj Singh  v.  Jugal  Kishore Gupta, [l979] 4 SCC 328. Learned counsel for the  respondent sought  support from a Constitution Bench decision  of  this Court in Ranjit Singh v. Pritam Singh & Ors.[1966] 3 SCR 543 for his submission that failure to comply with section 33(5) Was not a defect of substantial character. We have carefully gone  through  the  decision but we  do  not  find  anything therein  to support the respondent’s contention  instead  it supports  the  view  taken  by us. In  Ranjit  Singh’s  case (supra)   a  candidate  who  was  not  an  elector  of   the constituency  had filed three nomination Papers. Along  with one  of  his  nomination paper he had filed a  copy  of  the electoral roll of the constituency when his name was entered as an elector, with a view to comply with the requirement of Section  33(5) of the Act. He had not filed  similar  copies along with other two nomination papers. The nomination paper with  which the candidate had filed a copy of the  electoral roll was rejected on the ground of some technical defect But the  other two nominations were rejected on the ground  that copy  of the electoral roll was not filed along  with  them. This Court held that the returning officer was wrong in  not looking at the copy of the electoral roll filed with one  of the nomination papers. The Court further held Section  33(5) did  not  require  that  a copy  must  be  filed  with  each nomination paper or that any copy should be filed at all  as it  was open to a candidate to produce the copy  before  the returning  officer at the time of scrutiny. The  Court  held that  the  purpose  of filing the copy is  ensure  that  the returning  officer was able to check  whether the  candidate concerned  was qualified or not and that purpose   would  be effectively served even if only one copy was filed with  one nomination  paper  and no copies were filed along  with  the other  nomination  papers. While considering  Section  33(5) and36(4) of the Act the Constitution Bench held that Section 33(5)required that it was the copy produced by the candidate which  should  show that he was qualified or  not  and  that purpose a copy produced by the candidate should be  complete whether it was of the roll or of the relevant part  thereof.

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To  such  a case Section 36(4) had no  application.  Section 36(4) provided that returning officer should not reject  any nomination  paper on the ground of any defect which was  not of  a substantial character. Non-production of copy  of  the relevant part was a defect of a substantial character for it made  it  impossible to decide whether  the  candidate   was qualified   or  not.  Since  qualification  for   contesting election was a matter of substantial character, the  failure to produce a copy of the electoral roll which was incomplete was a defect of a substantial character it would  invalidate the  nomination paper. In this view we agree with  the  High Court  that  there had been no improper  rejection   of  the Umrao   Ben’s   nomination   paper,   as   the    accidental circumstances  that  the  returning  officer  was  also  the returning officer of the other constituency should not  make any difference.                                                     PG NO 13     As  regards  the rejection of the  nomination  paper  of Hukmi  Chand and Suraj Prakash Joshi are concerned the  High Court  has held that none of the two candidates was  present before the returning Officer at the time of scrutiny nor any person on their behalf Was present. In his nomination  paper Ex.  2  Hukmi  Chand had given a  declaration  that  he  had completed  26  years of age while Suraj  Prakash  Joshi  had given declaration in his nomination paper Ex. 3 that he  had completed  25  years  of age. At the  time  of  scrutiny  no objection  was raised against their nomination paper by  any party  and  none  appeared on behalf of  the  aforesaid  two candidate. The Returning Officer found that according to the entries in the electoral roll the age of Hukmi Chand was  23 years similarly in the case of Suraj Prakash Joshi the entry in  the electoral roll indicated that on the  relevant  date his age was 22 years. On the basis of the entries  contained in  the electoral roll the Returning Officer held  that  the two  candidates did not possess the requisite  qualification of  age  as required by Article 173 of the  Constitution  to contest  the  election.  Accordingly he  rejected  both  the nomination  papers. Before the High Court a controversy  was raised  as to whether the two candidate were present at  the time  of  scrutiny but on the evidence on  record  the  High Court  has held that neither of the two candidates  nor  any body  on their behalf was present at the time  of  scrutiny. Placing  reliance  on  the  oral  and  documentary  evidence produced  by  the  respondent the High  Court  has  recorded findings that Hukmichand as well as Suraj prakash Joshi both had  attained  the  age of 25 years  on  the  relevant  date 1.1.1984  and  their  nomination papers  had  been  rejected improperly  by  the  Returning  officer,  which   materially affected the result of the election.                                                     PG NO 14      Dr Chitale learned counsel for the appellant urged that on  the  admitted  facts  and  circumstances  the  Returning Officer  could  not  be held to  have  acted  improperly  in rejecting  the  nomination papers of Hukmi Chand  and  Suraj Prakash  Joshi.  He  urged that since at  the  time  of  the scrutiny  neither of the two candidates nor  their  proposer nor  anybody else appeared before the returning officer,  or placed  any material before him showing that either  of  the two candidates was qualified to contest the election  having attained  the  age  of more than  25  years,  the  returning officer  had no option but to rely on the entries  contained in  the  electoral roll and therefore the rejection  of  the nomination  papers  of Hukmi Chand and Suraj  Prakash  Joshi could  not be said to be improper. Learned  counsel  further urged  that if the returning officer did not act  improperly

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in   rejecting  the  nomination  paper  of   the   aforesaid candidates, appellants’s election could not be set aside  on the basis of fresh or additional material placed before  the High  Court. Section 36 provides that on the date fixed  for the  scrutiny  of nomination, the  candidate,  his  election agent,  proposer  or  any other person  duly  authorised  in writing  by the candidate may attend the proceedings at  the time and place fixed for scrutiny.  The returning officer is required to give them all reasonable facility for  examining the  nomination paper of all the candidates.  Section  36(2) requires  the  returning officer to examine  the  nomination papers and to decide all objections which may be made to any nomination.  He may, either on such objection or on his  own motion, after such summary inquiry, if any, as he may  think necessary,  reject  any  nomination on any  of  the  grounds specified under clauses (a),(b),and (c). Clause (d) empowers the  returning  officer  to reject  nomination  paper  of  a candidate  if  on  the date fixed for the  scrutiny  of  the nomination the candidate is not qualified or is disqualified for  being  chosen  to  fill  the  seat  under  any  of  the provisions   of   Articles  84,102,173  and   191   of   the Constitution.   Article   173   lays   down   constitutional qualification  for being a Member of the state  Legislature, according to which a person is not qualified to be chosen to full  a seat in the Legislature of a State unless he is  not less than 25 years of age. During the scrutiny the Returning Officer  is under a statutory duty to satisfy  himself  that the candidate who may have filed nomination paper  possesses the  necessary constitutional qualification  for  contesting the election. In the instant case none of the two candidates appeared nor any body on their behalf appeared or placed any material  before  the  returning officer to  show  that  the candidates were not less than 25 years of age on the date of scrutiny  1.1.1984. No doubt in the nomination  papers  both the  candidates  had made a declaration that they  were  not less than 25 years of age but entries pertaining to them  in the  electoral  roll clearly indicated that they  were  less than  25  years  of  age.   The  returning  officer  placing reliance  on  the entries contained in the  public  document i.e.  the electoral roll, rejected the nomination  paper  of the two candidates on the ground that Hukmi Chand and  Suraj Prakash Joshi were not qualified to contest the election. In the  absence of any material before the  returning  officer, the returning officer was not wrong in taking the entries in the  electoral roll into consideration and acting  on  them. But his decision is not final. In an election petition it is open  to  an election  petitioner to place  cogent  evidence before  the  High  Court to show that  the  candidate  whose nomination  paper was rejected had in fact attained the  age of  25  years on the relevant date. It is open to  the  High Court to take a final decision in the matter notwithstanding the order of the returning officer rejecting the  nomination paper.  If  on the basis of the material placed  before  the High Court it is proved that the candidate whose  nomination paper  had  been  rejected  was  qualified  to  contest  the election  it  is  open to the High Court to  set  aside  the election.  Enquiry during scrutiny is summary in  nature  as there  is no scope for any elaborate enquiry at that  stage. Therefore  it  is  open  to  n  party   to  place  fresh  or additional  material before the High Court to show that  the Returning Officer’s order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the  order  of  the returning officer.  It  is  an  original proceeding.  In  the  instant  case  it  was  open  to   the

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respondent election petitioner to place material before  the High  Court to show that the two candidates  were  qualified and their nomination paper was improperly rejected.                                                     PG NO 15     The  question  then arises whether  the  respondent  has proved  in  accordance with law that Hukmi Chand  and  Suraj Prakash  Joshi whose nomination papers were rejected by  the Returning  Officer  had  attained the age  of  25  years  on 1.1.1984.  In the election petition the  respondent  pleaded that Hukmi Chand’s nomination paper was improperly mentioned his  age  as 23 years while his correct date  of  birth  was 13.5.1956 as evidenced by the certificate issued by the Head Master of the New Government School Jodhpur. The  respondent had  further  pleaded  that the nomination  paper  of  Suraj Prakash  Joshi was rejected on the sole ground that  in  the electoral roll his age was recorded as 23 years on  1.1.1984 but  the  entries contained in the electoral roll  were  not final  and  conclusive. The date of birth of  Suraj  Prakash Joshi  was not mentioned in the election petition and  there was  no  further  pleading that on the date  of  filing  his nomination  Suraj Prakash Joshi had  actually  attained  the age  of  25 years. However it was pleaded that  since  Suraj Prakash Joshi had given a declaration that he had  completed 25 years of age there was no reason to disbelieve  him as no objection  had been raised against the declaration  made  by him and therefore the returning officer acted improperly  in rejecting  his  nomination  nation  paper.  In  his  written statement the appellant denied the allegations   made by the election petitioner and asserted that the Returning  Officer acted  rightly in rejecting the nomination papers  of  Hukmi Chand and Suraj Prakash Joshi as they were not qualified  to contest  the election as they had not completed 25 years  of age on the date of nomination. The respondent produced  oral and  documentary  evidence to support his  contention.  Even before  the  High Court none of the  two   candidates  whose nomination  papers were rejected appeared nor their  parents were  examined  by  the respondent  nor  any  person  having special  knowledge  about  the dates of  birth  of  the  two candidates was  examined by the respondent. As regards Hukmi Chand  the  respondent produced Ex. 8 (a  copy  of  scholars register)  Ex.  9 (counter-foil of certificate of  Board  of Secondary Education) Ex. 10 (mark-sheet of Hukmi Chand)  Ex. 11  (a  copy  of counter foil of  certificate  of  Board  of Secondary  Education) relating to Suraj Prakash  Joshi,  and Ex. 12 (Tabulation record of marks obtained by Suraj Prakash Joshi).  These documents were sought to be proved  by  Anant Ram  Sharma PW 3 and Kailash Chand Taparia PW 5. Ex. 8 is  a copy  of  the scholars register issued by the  Head  of  the Government  Higher  Secondary School and  entries  contained therein  show that Hukmi Chand had joined Government  Middle School  Palasani on 24.6. 1972 and he had left the  same  on 10.6.1976 after having passed Viiith class. In this document 13.6. l956 is mentioned as the date of birth of Hukmi  Chand son  of  Sardar Mal. Ex. 9 is a certificate  issued  by  the Board  of  Secondary Education   Rajasthan  certifying  that Hukmi  Chand  Bhandari  son of Sardar  Mal  Bhandari  passed Secondary  School Examination of 1974 from   New  Government Higher Secondary School Jodhpur, it also shows 13.6. 1956 as date of birth of Hukmi Chand. Ex. 10 is a tabulation  record containing the details of the marks obtained by Hukmi  Chand at  the Secondary School Examination 1974. In this  document also  his date of birth is mentioned as 13.6. l95h.  Placing reliance on these three  documents the High Court held  that Hukmi  Chand’s date  of birth was  13.6.1956  and  therefore his  age  on 1. 1. 1984 was more than 15  years.   The  High

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Court  further  held  that  view of the  entry  in  Ex.  11. certificate  issued  by  the Board  of  Secondary  Education Rajasthan  Suraj.  Prakash  was  born  on  11.3.  1959   and therefore  the was qualified to contest  the election as  he was  not less than 25 years of age. On these   findings  the High Court held that the respondent had successfully  proved that the nomination papers of Hukmi Chand and. Suraj Prakash Joshi had been wrongly rejected.                                                     PG NO 16      Before  the  High Court appellant raised  a  contention that  there  was no evidence to prove that Ex. 8, 9, 10,  11 and  12 related to Hukmi Chand and Suraj Prakash  Joshi  and therefore the documents could not be pressed into service. A further  contention was raised that the election  petitioner had  failed to place any evidence before the Court  to  show that entries of age in the documents Ex. 8, 9, 10, 11 and 12 had  been made on the basis of information furnished  either by  the parents or by any one else having special  knowledge about  the  date of birth of Hukmi Chand and  Suraj  Prakash Joshi.  In the absence of such evidence the entries  in  the documents  had no evidentiary or probative  value. The  High Court  rejected  this  submission on  the  ground  that  the appellant  had raised no such plea in his written  statement nor he produced any evidence to prove that the documents did not  pertain to Hukmi Chand or Suraj Prakash Joshi  or  that any  other persons having the same parentage by the name  of Hukmi Chand and Suraj Prakash Joshi existed. The High  Court committed error. The question of appreciation of evidence is not  to be pleaded instead it was the duty of the  Court  to consider  whether the documents produced by  the  respondent proved the facts in issue. As regards the evidentiary  value of  Ex.  8, 9, 10, 11 and 12 the High Court took  note  that there  was  no  evidence  as to  who  gave  the  information regarding  the date of birth of Hukmi Chand at the  time  of his  admission  in Government Middle School   Paslasani  and even  the  initial  application form for  admission  to  the school was not produced and subsequent form for admission to the Government Multi-purpose Higher Secondary School Jodhpur from where he passed the Secondary examination was also  not produced, as it observed "No attempt was made by the parties to  get  the  application form for  admission  and  transfer certificate   produced  from  the  New   Government   Higher Secondary  School Jodhpur and similarly no application  form for  admission was got produced from the  Government  Middle School, Palasni. But still it can be presumed that the  date of birth recorded in the Scholar’s Register is based on  the date  of  birth  given in  the  application  form  initially submitted  a Palasni continued in the  transfer  certificate and  the same was mentioned at the time of admission in  the Government  Multipurpose Higher Secondary  School,  Jodhpur" (emphasis supplied). After making the aforesaid observations the  High  Court  held  that  these  documents  were  public documents  within the meaning of Section 74 of the  Evidence Act  and  therefore  there  was  a  presumption  about   the correctness of the date of birth mentioned therein. The High Court was conscious of the fact that  in the absence of  the evidence  of  the  person who  may  have  given  information regarding  the date of birth, the entries contained  in  the scholar’s register or certificate had no probative value  as would be clear from the following observations: "It is  true that  it would have been better if the person who  gave  the information  regarding  the date of birth  would  have  been examined but failure to examine such a  person would not  in any way affect the genuineness of the entries and also their probative  value unless in comparison to these entries,  any

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other  weighty  evidence having greater probative  value  is produce  (emphasis  supplied).  The  entry  in  the  scholar register may be contradicted  by the birth entry or entry in the vaccination register or  reliable horoscope or any other reliable or weighty oral or documentary evidence but in  the absence of such contradicting weighty  evidence, the entries in   the   scholar  register  and  other  records   of   the educational  institution  would, in  my  opinion,  certainly enjoy such probative value."                                                     PG NO 18     After making aforesaid observations the High Court  held that   in view of the Ex. X, 9, 10, 11 and I1  the  election petitioner had  discharged the burden in proving that  Hukmi Chand  and Suraj Prakash Joshi both had attained the age  of 25 years on the relevant date. The  High Court drew  adverse inference  against the appellant on the ground  that  though Hukmi  Chand  and  Suraj Prakash Joshi had  been   cited  as witnesses  by the appellant but they were not examined.  The High  Court  proceeded  on  the  assumption  that  if  these witnesses  had been examined they would not  have  supported the respondent. After drawing adverse inference against  the appellant and placing reliance  on the aforesaid documentary evidence  the  High Court held that Hukmi  Chand  and  Suraj Prakash  Joshi both were qualified to contest  the  election as  they had completed 25 years of age on 1. 1.198$ and  the returning  officer had improperly rejected their  nomination papers    which  materially  affected  the  result  of   the election.  The High Court in  our opinion committed  serious error  of law in appreciating the evidentiary value  of  the documentary evidence produced by the respondents as a result of which its findings are not sustainable.                                                     PG NO 18     We  would  now  consider the evidence  produced  by  the respondent  on the question of age of Hukmi Chand and  Suraj Prakash Joshi. The respondent examined Anantram Sharma PW  3 and  Kailash  Chandra Taparia PW5. Anantram sharma PW 3  has been  the  Principal   of New  Government  Higher  Secondary School,  Jodhpur since 1984. On the basis of  the  scholar’s register  he stated before the High Court  that Hukmi  Chand joined  school on 24.6. 1972 in 9th class and his  date   of birth  as mentioned in scholar’s register was 13.6.1956.  He made this statement on the basis of the entries contained in the  scholar’s register  Ex. 8. He admitted that entries  in the scholar’s register are made on the basis of the  entries contained  in the admission form. He could not  produce  the admission form in original or its copy. He stated that Hukmi Chand  was  admitted in 9th class on the basis  of  transfer certificate issued by the Government Middle School,  Palasni from  where  he  had  passed 8th  standard.  He  proved  the signature of Satya Narain Mathur the then Principal who  had issued  the  copy  of the scholar’s register  Ex.  8.  Satya Narain  Mathur was admittedly alive but he was not  examined to  show  as to on what basis he had mentioned the  date  of birth  of  Hukmi Chand in Ex. 8. The  evidence  of  Anantram Sharma  merely  proved that Ex. 8 was a copy of  entries  in scholar’s  register. His  testimony does not show as  to  on what  basis  the entry relating to date of  birth  of  Hukmi Chand  was made in the scholar’s register.  Kailash  Chandra Taparia  PW  5 was Deputy Director  (Examination)  Board  of Secondary Education, Rajasthan, he produced the counter foil of Secondary Education Certificate of Hukmi Chand  Bhandari. a copy of which has been filed as Ex. 9. He also proved  the tabulation record of the Secondary School Examination  1974, a  copy  of which has been  filed as Ex. 10. In  both  these documents   Hukmi  Chand’s  date of birth  was  recorded  as

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13.6.1956.  Kailash  Chandra Taparia further proved  Ex.  11 which  is  the copy of the tabulation  record  of  Secondary School Examination of 1977 relating to SuraJ Prakash  Joshi. In  that document the date of birth of Suraj  Prakash  Joshi was recorded  11.3.1959  Kailash Chandra Taparia stated that date  of  birth  as mentioned in the  counter  foil  of  the certificates and in the tabulation form Ex. 12 was  recorded on the basis of the date of birth mentioned by the candidate in  the  examination form. But the examination form  or  its copy  was  not  produced before  Court.   In  substance  the statement  of the aforesaid two witnesses merely prove  that in the scholar’s register as well as in the Secondary School examination  records  the date of birth of a  certain  Hukmi Chand  was  mentioned  as 13.6.1956 and  in  the  tabulation record  of  Secondary  School Examination  a  certain  suraj Prakash Joshi’s date of birth was mentioned as 11.3.1959. No evidence  was produced by the respondent to prove  that  the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi  who had filed nomination nation papers.  Neither  the admission  form  nor the examination form on  the  basis  of which the aforesaid entries relating to the date of birth of Hukmi  Chand  and  Suraj Prakash  Joshi  were  recorded  was produced before the High Court. No doubt, Exs. 8, 9. 10.  11 and 12 are relevant and admissible but these documents  have no  evidentiary value for purpose of proof of date of  birth of  Hukmi Chand and Suraj Prakash Joshi  as the vital  piece of  evidence  is  missing, because no  evidence  was  placed before  the Court to show on whose information the  date  of birth of Hukmi Chand and the date of birth of Suraj  Prakash Joshi  were recorded in the aforesaid document.  As  already stated neither of the parents of the two candidates nor  any other  person having special knowledge about their  date  of birth  was examined by the respondent  to prove the date  of birth  as mentioned in the aforesaid documents.  Parents  or near relations having special knowledge are the best  person to  depose  about the date of birth of a  person.  If  entry regarding date of birth in the scholars register is made  on the information given by  parents or some one having special knowledge of the fact, the same  would have probative value. The  testimony  of  Anantram  Sharma  and   Kailash  Chandra Taparia  merely  prove the documents but  the  contents   of those documents were not proved. The date of birth mentioned in  the scholar’s register has no evidentiary  value  unless the person who  made the entry or who gave the date of birth is  examined. The entry  contained in the admission form  or in  the  scholar register must be shown to be  made  on  the basis of information given by the parents or a person having special  knowledge  about the date of birth  of  the  person concerned. If the entry in the scholar’s register  regarding date of birth  is made in the basis of information given  by parents,  the entry would  have evidentiary value but if  it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such  an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 1(). 11 and 12 were proved, it does not mean that  the contents  of documents were also proved. Mere proof  of  the documents  Exs. 8, 9, 10, 11 and 12 would not tantamount  to proof  of  all the contents or the correctness  of  date  of birth stated in the documents.  Since the truth of the fact, namely,  the date of birth of HukmiChand and  Suraj  Prakash Joshi was in issue, mere proof of the documents as  produced by the aforesaid two witnesses does not furnish evidence  of the  truth  of the facts or contents of the  documents.  The truth  or otherwise of the facts in issue, namely, the  date of  birth  of  the  two   candidates  as  mentioned  in  the

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documents  could be proved by admissible  evidence  i.e.  by the evidence of those persons who could vouch  safe for  the truth  of the facts in issue. No evidence of any  such  kind was   produced by the respondent to prove the truth  of  the facts. namely, the date of birth of Hukmi Chand and of Suraj Prakash  Joshi. In the circumstances the dates of  birth  as mentioned in the aforesaid documents have no probative value and  the  dates of birth as mentioned therein could  not  be accepted.                                                     PG NO 20      The  High  Court  held  that in  view  of  the  entries contained in the  Ex. 8, 9, 10, 11 and 12 proved by Anantram Sharma  PW 3 and Kailash Chandra Taparia PW 5, the  date  of birth of Hukmichand and Suraj  Prakash Joshi was proved  and on  that  assumption it held that the  two   candidates  had attained  more  than 25 years of age on the  date  of  their nomination. In our opinion the High Court committed  serious error.  Section 35 of the Indian Evidence Act lays down that entry  in  any   public,  official  book,  register,  record stating  a  fact in issue or relevant  fact and  made  by  a public  servant  in  the  discharge  of  his  official  duty specially  enjoined by the law of the country is itself  the relevant  fact.   To  render  a  document  admissible  under Section  35,  three conditions must be  satisfied,  firstly, entry  that is relied on must be one in a public   or  other official  book, register or record, secondly, it must be  an entry   stating  a  fact  in issue  or  relevant  fact;  and thirdly,  it must be made by a  public servant in  discharge of his official duty, or any other person in performance  of a duty specially enjoined by law. An entry relating to  date of  birth  made  in  the school  register  is  relevant  and admissible  under  Section  35  of the  Act  but  the  entry regarding to the age of a  person in a school register is of not  much evidentiary value to prove  the age of the  person in  the  absence  of the material on  which  the  age    was recorded. In Raja Janaki Nath Roy & Ors. v. Jyotish  Chandra Acharya Chowdhury, AIR 1941 CAL. 41 a Division Bench of  the Calcutta  High Court discarded the entry in school  register about  the  age of a party to the suit on  the  ground  that there was no evidence to  show on what material the entry in the  register about the age of the  plaintiff was made.  The principle so laid down has been accepted by  almost all  the High Courts in the country, see Jagan Nath v.  Moti Ram Moti Ram & Ors., [1951] Punjab 377; Sakhi Ram & Ors. v. Presiding Officer,  Labour  Court, North Bihar,  Muzzafarpur  &  Ors., [1966]  Patna 459; Ghanchi Vora Samsuddish Isabhai v.  State of  Gujarat,[1970]  Gujarat  178 and Radha Kishan  Tickoo  & Anr.  v.  Bhushan Lal Tickoo & Anr.,  [1971] J &  K  62.  In addition  to these decisions the High Courts  of  Allahabed, Bombay,  Madras  have considered the question  of  probative value  of an entry regarding the date of birth made  in  the scholar’s  register  or in school  certificate  in  election cases.  The Courts have consistently held that the  date  of birth  mentioned  in  the scholar;s  register  or  secondary school certificate has no probative value unless either  the parents are examined or the person on whose information  the entry may have been made, is examined,see Jagdamba prasad v. Sri  Jagannath Prasad & Ors., 42 ELR 465; K.  Paramalali  v. L.M. Alangam & Anr., 31 ELR 401 and Krishna Rao Maharu Patil v. Onkar Narayan Wagh, 14ELR 386.                                                     PG NO 21     In  Brij Mohan Singh v. Priyu Brat Narain Sinha &  Ors., [1965]  3   SCR 861 a question arose  whether  the  returned candidate  had attained the age of 35 years on the  date  of his  nomination. The High Court had  set aside the  election

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of  the returned candidate on the ground that he  was  below the  age of 25 years on the date of filing  the  nomination. This Court set aside the order of the High Court and  upheld the  election of  the returned candidate on the ground  that the  burden of proving that the returned candidate  had  not attained  the age of 25 years on the date of his  nomination was  on the election petitioner and since he had failed   to prove that, the election of the returned candidate could not be set  aside. This Court held that an entry recorded in the birth  register   maintained by an illiterate  Chowkidar  by somebody else at his request, was not admissible and had  no probative  value  within Section 35 of the  Indian  Evidence Act. In Ram Murti v. State of Haryana, AIR 1970 SC 1029  the date of birth of a girl mentioned in the school  certificate was not accepted. However in Mohd. Ikram Hussain v. State of U.P.  & Ors., AIR 1964 SC 1625 this Court accepted the  date of birth of a girl as mentioned in the school certificate as the  date  of birth mentioned therein was  supported  by  an affidavit filed by the father of the girl.                                                     PG NO 22     The  appellant  was declared elected aS  he  had  polled majority of valid votes. His election could not be set aside unless the respondent-election petitioner was able to  prove that Hukmichand and Suraj Prakash Joshi had attained the age of  25 years on the date of nomination by  producing  cogent and reliable evidence before the High Court.  The burden  to prove  that  fact was on the respondent throughout  and   he could  not  and  did not discharge  that  burden  merely  by producing  the documentary evidence Ex. 8, 9, 10, 11 and  12 or  on the basis of  oral testimony of Anantram Sharma PW  3 and  Kailash  Chandra  Taparia PW 5.  As  discussed  earlier these  documents  do not conclusively  prove  the  dates  of birth  of Hukmi Chand and Suraj Prakash Joshi.  The  entries regarding  dates  of  birth  contained  in   the   scholar’s register  and  the  secondary  school  examination  have  no probative value, as no person on whose information the dates of  birth of the aforesaid candidates was mentioned  in  the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to  prove the age of the aforesaid two candidates have no  evidentiary value.  The High Court committed serious documents.  In  our view  the  High Court’s entire approach in  considering  the question  of  dates of birth was  wholly  misconceived.  The burden  to  prove the fact in issue, namely,  the  dates  of birth  of  Hukmichand  and Suraj Prakash Joshi  was  on  the respondent  who was the election petitioner. The  respondent could  not  succeed  if  no evidence  was  produced  by  the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry  contained in the electoral roll regarding the age  of two candidates was incorrect. It appears that in his list of witnesses  the  appellant  had included the  name  of  Suraj Prakash Joshi and his father Maghdutt Joshi as witnesses but they  were not examined by him. Similarly,  Hukmi Chand  was also  cited by the appellant but he was also  not   examined instead  Navratan Mal Bhandari, brother of Hukmi Chand   was examined as PW 4 and Ghanshyam Chhangani was examined as  PW 6  by the appellant, who supported the appellants case  that Hukmi Chand and Suraj Prakash Joshi had not attained the age of  25 years on the date of nomination. Since the  appellant had not examined Hukmi  Chand. Suraj Prakash Joshi or  their parents, the High Court drew adverse inference against  him. The  High Court committed serious error in doing  so.  There was  no question of drawing adverse inference   against  the

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appellant, as the burden to prove the age of Hukmi Chand and Suraj Prakash joshi was on the election petitioner and since he  had  failed  to prove the same  by  cogent  evidence  no adverse inference  could be drawn against the appellant.  In fact.  burden  was on the respondent to prove  his  case  by producing the Hukmichand and Suraj  Prakash Joshi, or  their parents  to  prove  and corroborate the dates  of  birth  as mentioned in the school register and the certificate. If  he failed  to  do  that he could  not  succeed  merely  because appellant  had  not produced them. In the  circumstances  no adverse  inference was at all possible to be  drawn  against the  appellant  for  not examining  Hukmi  Chand  and  suraj Prakash Joshi or their parents.     In  view of the above discussion we are of  the  opinion that Umarao Ben’s nomination paper was rightly rejected  and further the respondent has failed to prove that Hukmi  Chand and   Suraj  Prakash  Joshi  possessed  the  necessary   age qualification   as   required   by  Article   173   of   the Constitution. Therefore the returning officer was  justified in  rejecting their nomination paper. In this view the  High Court  wrongly  set  aside  the  appellant’s  election.   We accordingly allow the appeal set aside the order of the High Court  and dismiss the election petition. The  appellant  is entitled to costs which we quantify at Rs.5,000.