SMT. BASANTI BAI v. SMT. PREMWATI BAI & Others

to be ignored, he seriously disputes the contention of the petitioner that Sukhwati Bai and Basanti Bai are the same, by relying upon the statement of Basanti Bai herself. It is submitted that in such circumstances, the certificates produced by the petitioner which relate to the date of birth of Sukhwati Bai loose significance and cannot be relied upon by the petitioner. It is submitted 6 W.P No.9516/2011 that in the circumstances no fault can be found with the impugned order passed by the election tribunal.

8. I have heard the learned counsel for the parties at length. As the election tribunal has held that the date of birth of a candidate has to be ascertained as on the first day of the year in which elections are held, by relying on the provisions relating to preparation of the voters list, it would be appropriate to first address the issue as to the relevant date for determining the age of a contesting candidate in Panchayat elections.

9. Article 243F of the Constitution of India which relates to disqualification of membership in Panchayat elections provides that a person shall be disqualified for being chosen as a member of a Panchayat if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned; provided that no person shall be disqualified on the ground that he is less than 25 years of age, if he has attained the age of 21 years. The provisions of Article 243F of the Constitution of India therefore provides that a person who has attained the age of 21 years is qualified to contest the panchayat election. 7 W.P No.9516/2011

10. For the purposes of deciding as to what would be the relevant date on which the age has to be determined in view of the provisions of Article 243F(1)(a) of the Constitution of India, it is necessary to refer to the relevant provisions of Section 36(2)(a) of the Representation of the People Act, 1951, which is in the following terms:- “36(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either or 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.” A reading of the aforesaid section makes it clear that the qualification or disqualification of a candidate has to be determined as on the date fixed for the scrutiny of the nomination. Rule 35(2) of the M.P. 8 W.P No.9516/2011 Panchayat Nirvachan Niyam, 1995 is also couched in similar terms and provides that the returning officer, after filing of the nomination papers, shall examine the nomination papers and shall decide all objections at that time regarding qualification and disqualification of the candidate concerned.

11. In view of the aforesaid provisions of the Constitution of India and the Representation of People Act, 1951, it is clear that the relevant date for ascertaining the age of the contesting candidate is the date of scrutiny of the nomination papers and not the date first of January of the year in which the election is held or the year in which the voters list is prepared as held by the election tribunal in the impugned order. The view taken by me stands fortified by the view taken by the Supreme Court in the cases of Amrit Lal Ambalal Patel (supra) and Sushil Kumar(supra).

12. The next issue raised by the petitioner is regarding the primacy of the certificate issued by the competent authority under the Registration of Births and Deaths Act, 1969 over the school certificates issued by the school authorities whether it is the marksheet or as copies of the date of birth register maintained by them. 9 W.P No.9516/2011

13. From a perusal of the decision of the Supreme Court rendered in the cases of CIDCO (supra) and Madan Mohan Singh (supra), it is clear that this issue is no longer in dispute as the Supreme Court in clear terms has held that the certificate issued by the competent authority under the Registration of Births and Deaths Act, 1969 would prevail over the certificates issued by the school authorities. The Supreme Court, in the case of CIDCO (supra) has held in para 18 as follows:- “18. The deaths and births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent. (See Birad Mal Singhvi v. Anand Purohit, 1988 Supp. SCC 604: AIR 1988 SC 1796)” In the case of Madan Mohan Singh (supra) the Supreme Court has reiterated the aforesaid view in the following terms:- “16. So far as the entries made in the official record by an official or person authorised in 10 W.P No.9516/2011 performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc., the entry in the school register is to be discarded. (Vide: Brij Mohan Singh v. Priya Brat Narain Sinha & Ors., AIR 1965 SC 282; Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796; Vishnu v. State of Maharashtra (2006) 1 SCC 283: (AIR 2006 SC 508: 2005 AIR SCW 6149); and Satpal Singh v. State of Haryana, JT 2010 (7) SC 500) : (2010 AIR SCW 495). 11 W.P No.9516/2011

18. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein. (Vide: Updesh Kumar & Ors. v. Prithvi Singh & Ors., (2001) 2 SCC 524: (AIR 2001 SC 703 : 2001 AIR SCW 347); and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868).” Similar view has been taken by the Supreme Court in the case of Santenu Mitra (supra) and by this Court in the case of Mohandas Suryavanshi v. State of M.P., 1999 Cr.L.J 3451.

14. In the case of Harpal Singh (supra), the Supreme Court has in fact gone further to hold that the entries made by the concerned official in the discharge of his official duties under the Registration of Births and Deaths Act, 1969 is admissible under section 35 of the Evidence Act and it is not necessary for the prosecution to examine its author and, therefore, I have no hesitation in holding that the election tribunal was not correct and has gone wrong in ignoring the certificate produced by the petitioner under the Registration of Births and Deaths Act, 1969 and relying upon the school certificates. 12 W.P No.9516/2011

15. There is yet another reason for setting aside the aforesaid finding of the election tribunal. The election tribunal, in the impugned order, has held that the burden of proving the age was on the petitioner rather than the respondent no.1 who was the election petitioner. It is a settled law that where the election petition is filed by the election petitioner contending that the returned candidate was disqualified to be elected on the ground that she was below the prescribed age, it is for the election petitioner to establish that the returned candidate was disqualified and not the returned candidate as has been held by the Supreme Court in the case of Brij Mohan (supra) in para – 21 which is in the following terms:- “21. On an examination of the entire evidence, oral and documentary, we therefore reach the position that the petitioner-respondent has not been able to prove that the appellant Brij Mohan was below 25 years of age on the date of filing of nomination papers while the appellant himself has also not been able to show that he was at least 25 years of age on that date. It cannot be disputed and is not disputed that the burden of proving that the appellant's age was below 25 years on the date of his nomination was on the petitioner-respondent. 13 W.P No.9516/2011 The petition in so far as it is based on the ground that the appellant was below 25 years of age on the date of his nomination must therefore fail.”

16. The contest in the present petition is mainly in respect of the third issue, i.e the identity of the petitioner and Sukhwati Bai being the same, for if it is concluded that Sukhwati Bai and the petitioner are the same then the certificate issued by the authorities under the Registration of Births and Deaths Act, 1969 would have to be accepted which indicates that the date of birth of the petitioner is 9.12.1988 according to which she would then be eligible and qualified to contest the election.

17. This Court, to ascertain the factual aspect of the matter has summoned the record of the election tribunal which has been produced before this Court alongwith the documentary and oral evidence and has been thoroughly examined by all concerned.

18. The learned Senior Counsel for the petitioner has relied heavily upon the statement of the father of the petitioner Muniram who, it is stated, is the best person to establish the aforesaid aspect. A perusal of the statement of Muniram clearly indicates that he has 14 W.P No.9516/2011 specifically stated that he has two daughters and three sons; that his elder daughter has two names, Sukhwati Bai and Basanti Bai. Similarly his younger daughter also has two names, Shanti Bai and Rajni and his three sons are Prakash, Sanjay and Pradeep. He has also stated that he had gone alongwith the petitioner for obtaining admission in the school and that he being illiterate had requested the concerned person of the school to record the name and age in accordance to his own assessment. Hakam Singh and Ajay Bakshi, the petitioner's two witnesses, have also clearly stated that Sukhwati Bai and Basanti Bai are the same person. Khuman Singh, who is the Kotwar of village Sirkona and whose statement has been recorded, has stated that as per the record Muniram was blessed with a daughter on 9.12.1988 who was named Sukhwati Bai and entries to that effect was made in the register and a certificate was also issued to that effect. On the basis of the statement of the aforesaid witnesses, the contention of the petitioner to the effect that Basanti Bai, the petitioner, and Sukhwati Bai are the same, appears to be correct.

19. However, the learned counsel for the respondent relying upon the statement of the petitioner herself has submitted that the contention of the petitioner deserves 15 W.P No.9516/2011 to be rejected as the petitioner has herself stated that she has two sisters namely, Basanti Bai/Sukhwati Bai and Rajni/Shanti Bai and that the petitioner has an elder sister whose name is Sukhwati Bai/Basanti Bai.

20. I have carefully perused the statement of the petitioner recorded before the election tribunal. A perusal of the statement indicates that while the petitioner, at the very beginning of her statement, has stated that her father has five issues; two sisters and three brothers, she however appears to have given the statement treating herself to be a third person thereby giving the impression that she has two sisters Basanti Bai/ Sukhwati Bai and Rajni/Shanti Bai apart from herself which has been construed by the election tribunal to mean that the petitioner in fact has two sisters apart from her and that Basanti Bai/Sukhwati Bai is her elder sister.

21. Having perused the aforesaid statement of the petitioner, I am of the considered opinion that the contention of the petitioner deserves to be accepted on two grounds; firstly, that a reading of the entire statement of the petitioner indicates that she was talking in third person thereby giving an impression that she has 16 W.P No.9516/2011 another sister which is however contrary to the statements of her father as well as her own statements wherein she has stated that her father had two daughters and has also not given any name of the non- existant third sister; and secondly, on the ground that the best evidence in such cases is that of the parents as has been held by the Supreme Court in the case of Madan Mohan Singh (supra) in para-17 which has already been quoted above as well as in the case of Birad Mal Singhvi (supra) wherein it has been held as under:- “14. .......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 17 W.P No.9516/2011 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's 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.....”

22. In the instant case the petitioner's father has quite clearly stated that he has five children i.e. two daughters and three sons, the elder daughter is named Basanti Bai/ Sukhwati Bai and the younger one Shanti Bai/Rajni and that it was he who had gone alongwith the petitioner at the time of her admission in the school and being illiterate had got her name recorded as Basanti Bai and her date of birth as 15.1.1990 which is not her correct date of birth. He has also stated that her correct date of birth is 9.12.1988 which has been recorded and certified by the competent authority under the provisions of the Registration of Births and Deaths Act, 1969. 18 W.P No.9516/2011

23. In view of the aforesaid analysis and the evidence on record, I am of the considered opinion that the petitioner has been able to establish that Sukhwati Bai/Basanti Bai are the same and that the date of birth of the petitioner is 9.12.1988 which is evident from a perusal of the certificate issued by the competent authority under the provisions of the Registration of Births and Deaths Act, 1969.

24. In view of the aforesaid findings recorded by me, the impugned order passed by the election tribunal deserves to be and is hereby set aside. The petition, filed by the petitioner, stands allowed.

25. In the facts and circumstances of the case, there shall be no order as to the costs. mms/- ( R. S. JHA ) J U D G E 31/07/2012