TaxTMI 
TaxTMI 
2003 (10) TMI 634
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....ground that the respondent, at the time of filing his nomination paper being not above the age of 25 years as mandatorily required under Article 173(b) of the Constitution of India was not entitled to file his nomination. ELECTION PETITION : In his election petition, the appellant, inter alia, contended that the objection as regard the age of the respondent was made in writing before the returning officer but the same was rejected without giving an opportunity of hearing to him, purported to be on the ground that such objection had been filed in relation to one Rakesh Kumar alias Samrat Choudhary while the nomination paper had been filed by Rakesh Ku. According to the appellant, the respondent's date of birth was 1.5.1981 which would appear from a certificate issued by the Bihar Secondary School Examination Board wherein the respondent appeared as Rakesh Kumar alias Samrat Morya in the year 1996 as a private candidate from Kritanand Vidya Mandir High School and was allocated the Roll Code 3218, Roll No.0019 and he failed therein. Further contention of the appellant is that the respondent was appointed as a Minister of the Cabinet rank but having regard to the complaint made by o....
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....d Issue No.(ii), the parties adduced both oral and documentary evidences. For the purpose of analyzing the materials on records, evidences brought on records were divided by the High Court in the following seven categories : i) Order of His Excellency the then Governor of the State of Bihar and the report of the Chief Electoral Officer, Bihar, which have been marked as Exhibit-4 and Exhibit-8/A. ii) The age records of Rohit Kumar son of Sri Shakuni Choudhary such as Ext.5, Ext.5/1 and Ext.5/2. iii) The age recorded of Samrat Chandra Morya son of Shakuni Chouhdhary as 1.5.1981 in the application form for appearing in the examination of Secondary School Annual Examination, 1996 as per Ext.6 and Ext.6/1. iv) Minority mentioned in the bail petition moved for and on behalf of the respondent Rakesh Kumar, Ext. 2, 2/A and 2/A/1. v) Horoscope of the same respondent Rakesh Kumar, Ext.6. vi) Admission Register of the respondent in New St. Xaviers Junior School, Ext.D and the transfer certificate from Vivekananda Vidyalaya, Mithapur, Ext.I. vii) Certified copy of electoral roll for the year 1995, Ext.E and the identity card of Rakesh Kumar issued by the Election Commission of India, E....
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....ather of the respondent who put his signature acknowledging the veracity of the particulars being recorded under that serial number..." (vii) Although Ext. E and Ext. F are not of much help in construing the actual date of birth of the respondent but they are annexed to show that in the year 1995 he became eligible to vote. SUBMISSIONS : Mr. S.U. Abbas, learned counsel appearing on behalf of the appellant would, inter alia, submit that the respondent was having four names, namely, (i) Rakesh Kumar, (ii) Rakesh Ku, (iii) Samrat Choudhary; and (iv) Samrat Chandra Maurya. The first three names being admitted, the finding of the High Court that he was not known as Samrat Choudhary must be considered in the light of the finding of the Governor of the State of Bihar wherein in no uncertain terms it was held that the respondent's father name as also the address, as mentioned in Ext. E being the same; the High Court committed a manifest error in holding that his disqualification had not been proved. Taking us through the bail application Ext.3, the learned counsel would contend that as therein the following statements had been made which are not denied : "4. That the petitioner is sch....
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....lectoral Officer as also the order of the Governor of the State of Bihar, must be held to be estopped and precluded from contending that he was major on the date of filing of the nomination. Mr. P.K. Mullick, learned counsel appearing on behalf of the respondent would, on the other hand, submit that the Governor of the State of Bihar while passing the order (Ext.4) committed an error of fact in holding that the father's name as also the residential address of the respondent were admitted despite the fact that no residential address was mentioned in the letter of the Secretary, Bihar Secondary School Examination Board. The learned counsel would urge that only because the father's name of the respondent was Shakuni Choudhary, the same by itself could not have led to the conclusion that he is also known Samrat Choudhary. Pointing out to the report of the Chief Electoral Officer, it was argued that the findings recorded therein in this behalf are in favour of the respondent. According to the learned counsel, the date of birth as disclosed by the respondent was not accepted by the Chief Electoral Officer only on the ground that the transfer certificate as also the horoscope had not be....
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....person who has attained maturity and experience in life. Only a matured and experienced person can represent the people and take steps which would be beneficial to the electorates. Section 36 (2) of the Representation of the People Act, 1951 castes a mandatory duty on the returning officer to examine the nomination papers and take a decision on all objections which may be made upon making an inquiry in that behalf, which would include the question as to whether the requirement of Article 173 has been fulfilled or not by the candidate. The effect of the aforementioned provision is that a candidate is not qualified unless he has attained the age specified in the clause on the date fixed for scrutiny of nominations. [See Amritlal Ambalal Patel vs. Himatbhai Gomanbhai Patel & Another, 1969 (1) SCR 277]. It is beyond any cavil that in the event a person is elected who does not fulfill the constitutional requirements, the election would be void despite the fact that the returning officer has accepted his nomination paper. [See Durga Shankar Mehta vs. Thakur Raghuraj Singh and Others, 1955 (1) SCR 267]. Such a question indisputably would fall for consideration in an election petition w....
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.... made that the same is taken to be established. INSTITUTIONAL RECORDS/CERTIFICATES : Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so. In the aforementioned backdrop the evidences brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person. In Brij Mohan Singh vs. Priya Brat Narain Sinha and others [AIR 1965 SC 282], this Court, inter alia, observed that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The entry of date of birth made in school admissi....
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....er of the Board. Name of the School : K.N.V.M. H.S. KUMARSAR Name of candidate : SAMRAT CHANDRA MOURA Father's name : SHAKUNI CHOUDHARY Date of Birth : 01.05.81 (First May eighty one) Result Fail Total Marks 268 Category private" It, thus, appears that the Bihar School Examination Boards was possessed of the election petition or the nature of particulars in relation to the respondent. The name and address of the respondent, the school from which he appeared, his Roll Code, Roll No. etc. must have been duly mentioned therein. It is pertinent to note that in paragraph 15 of the election petition, it was categorically stated : "That it is relevant to state here that the sole respondent Rakesh Ku is in fact Rakesh Kumar @ Samrat Choudhary son of Sri Sakuni Choudhary is the same person who has filed his nomination paper for the election as member of Bihar Legislative Assembly from 181 Parbatta Assembly Constituency and has been declared elected by the Returning Officer, Gogari, he was earlier one of the Ministers in the Government of Bihar in the reign of Rastriya Janta Dal Government and was dismissed from the Ministry of the Bihar Government in October, 1999 o....
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....vidence, but the counsel for both the parties relied thereupon and placed before us the findings recorded therein in extenso. The parties cannot be permitted to rely upon a part of a document and at the same time raise a contention that the same is inadmissible. The said report is, thus, admissible in evidence, although it may not have any statutory backing. In any event, having regard to the pleadings of the parties as also the stand taken before us the said report can be looked into, inter alia, for the purpose (i) that an inquiry had been made as regard the underage of the respondent; (ii) in said inquiry the respondent was given an opportunity to prove that he was not below the age of 25 years when he was sworn in as Minister; (iii) He had been given an opportunity to place all the materials in support of his case; and (iv) it was found that he did not complete 25 years of age on the date of his having been appointed as a Minister. The report of the Chief Electoral Officer clearly suggests that the respondent herein did not cooperate with him in any manner whatsoever. He made all attempts to delay the proceedings as far as possible. He despite giving opportunities did not plac....
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....the election identity card issued by the Election Commission of India is not conclusive. They are recorded as per the statements made by the person concerned. Be that it may, it was for the High Court and consequently for this Court in appeal to consider the said materials on records in their proper perspective. We may, however, observe that the said documents do not conclusively show that the respondent was major on that day. ANALYSIS OF THE EVIDENCE : We have examined the admission register of the school. Pagination of the register had been done by hands. The name of the respondent is at Sl.No.320. The guardians including that of the respondent purported to have signed in English. A bare perusal of the said register would show that entries have been made by one person with two different pens in one sitting. It is curious to note that the entries at Sl. Nos. 310 and 311 relate to the same person and in relation to the names of the two students two pens had been used. Entries 312 and 313 are dated 23.9.1980 whereas entries 315 and 316 are dated 23.9.1990. For all those students, the same person has signed as guardian, although admissions were effected on different dates. So far a....
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....he same was impermissible inasmuch as the maximum age for admission in Class I was 5 years. It is difficult to believe that a boy aged about 15 years would be reading in Class IV in a Christian School situate in the heart of the State capital. As the respondent only had special knowledge as to in which school did he study; he should have disclosed the same. It is relevant to note that he respondent in his deposition alleged that he started his education in some school at his native village, but for reasons best known to him no details thereof or document to prove the same were brought on record. In Punit Rai vs. Dinesh Chaudhary [JT 2003 (Supp.1) SC 557], it is stated : "...These are the material facts relating to the plea raised by the appellant that the respondent is not a Scheduled caste. We don't think if the respondent means to say that the petitoner should have stated in the petition that the respondent is not born of Deo Kumari Devi said to be married to Bhagwan Singh in village Adai. If at all these facts would be in the special knowledge of respondent, Bhagwan Singh and Deo Kumari Devi hence not required to be pleaded in the election petition. It is not possible as well....
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....the primary evidence of date and time of the birth of the respondent on the basis whereof the same was prepared. BAIL APPLICATION : It is not in dispute that an application for bail was filed in a case in which the respondent as well as his father were accused. It is difficult to eschew the contention raised on behalf of the respondent that the statements made in the bail application were made without any instruction. How without instruction a lawyer would come to know that the respondent at the relevant time was reading in a school? The occurrence took place in April 1995. If the date of birth as disclosed by the appellant is correct, the respondent would be about 14 years as on that date, and, thus, would be below 16 years in the year 1996. He at that age could have also appeared in the matriculation examination in the year 1996. The contents of the bail application are suggestive of the said fact. The High Court, in our opinion, is not correct in observing that it is a common experience that all such pleas are taken for the purpose of obtaining bail. No presumption in this behalf can be raised as such allegations would be subject to judicial scrutiny. Thus, a person is not exp....
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....is a student of B.I.T. Meshra School where he got his age recorded as 22 years on 28.7.1999. So an easy and clear conclusion can be drawn that his younger brother namely Rakesh Kumar was at least less than 22 years in the year 1999." The said statements, as would appear from paragraph 15 of the written statement, had not been traversed in accordance with law. Paragraph 15 of the written statement is as under : "That the statement made in para 18 of the election petition under reply is not correct. Merely on imagination Sri Rajesh Kumar has been mentioned as elder brother. The petitioner has no knowledge about that and wrong statement has been made." In terms of Order VIII, Rule 3, a defendant is required to deny or dispute the statements made in the plaint categorically, as an evasive denial would amount to an admission of the allegation made in the plaint in terms of Order VIII, Rule 5 of the Code of Civil Procedure. Under Section 58 of the Indian Evidence Act a fact admitted need not be proved. In paragraph 15 of the written statement, the respondent has not specifically contended that the statements made in paragraph 18 of the election petition are incorrect or how they are....
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.... 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidences adduced on behalf of the appellant in this behalf in details but merely rejected the same summarily stating that the vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid. In Badat and Co (supra) this Court upon referring to Order VIII, Rules 3, 4 and 5 of the Code of Civil Procedure, observed : "These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In suc....
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....swered it as follows : "The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley, and that point of substance is nowhere met ........ no fair and substantial answer is, in my opinion, given to the allegation of substance, namely that there was a bribe. In my opinion it is of the highest importance that this rule of pleading should be adhere to strictly, and that the Court should require the Defendant, when putting in his statement of defence, and the Plaintiff, when replying to the allegations of the Defendant, to state the point of substance, and not to give formal denials of the allegations contained in the previous pleadings without stating the circumstances. As far as I am concerned, I mean to give the fullest effect to that rule. I am convinced that it is one of the highest benefit to suitors in the Court." It is true that in England the concerned rule is inflexible and that there is no proviso to it as is found in the Code of Civil Procedure. But there is no reason why in Bombay on the original side of the High Court the same precision in pleadings shall not be insisted upon except in exceptional circumstances..." The pleadings in an election pet....