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Allahabad High Court · body

1990 DIGILAW 850 (ALL)

Wajid Ali Khan v. District Judge

1990-09-10

VIRENDRA KUMAR

body1990
ORDER Virendra Kumar, J. - The petitioner seeks for quashing the judgment and order dated 27-9-89 passed by the District Judge, Hardoi setting aside the election of the petitioner to the office of the Chairman. Nagar Palika, Sandila and directing the District Magistrate, Hardoi not to hold fresh election for the same office in pursuance of t he said judgment and order. 2. The petitioner was elected as Chairman of the Nagar Palika Sandila in November 1988. His election to the said office was challenged by the opposite party No. 2 Ganga Ram on the ground that the petitioner did not fulfil the requisite qualification of being not less than 30 years of age when he filed nomination papers on 17-10-1988 for the said office. According to the petitioners, his date of birth was 1-8-1957 and as such he was about 32 years of age when he filed the nomination papers on 17-10-88. According to the opposite party No. 2, the date of birth of the petitioner was 10-3-1959 and as such he was of 29 years 4 months and 21 days on the date of filing his nomination papers. In the election petition filed by the opposite party No. 2, Ganga Ram against the election of the petitioner to the post of Chairman, the District Judge, Hardoi accepted the version of the opposite party No. 2 and not of the petitioner and, therefore, held that the petitioner was not of 30 years of age at the time of filing his nomination papers for the said Office. Consequently election of the petitioner to the office of the Chairman, Nagar Palia Sandila was set aside by the District Judge. Thereafter the District Magistrate, Hardoi ordered for fresh election for the said office. This writ petition has thus arisen. 3. The crucial point is of the date of birth of the petitioner, or in other words his age at the time of filing of the nomination papers by him on 17-10-1988. In this connection the petitioner as well as opposite party No. 2 both have produced oral and documentary evidence during the course of the election petition before the District Judge. The District Judge has framed clearcut issues in this connection, and has well considered the evidence, both oral and documentary adduced by the parties. In this connection the petitioner as well as opposite party No. 2 both have produced oral and documentary evidence during the course of the election petition before the District Judge. The District Judge has framed clearcut issues in this connection, and has well considered the evidence, both oral and documentary adduced by the parties. He has given cogent reasons for accepting the version of the opposite party No. 2 and not of the petitioner in respect of the date of birth of the petitioner and on that basis in coming to the conclusion that the age of the petitioner was less than the minimum prescribed age of 30 years for the office of the Chairman at the time of filing the nomination papers on 17-10-1988. There is force and substance in the contention of the learned counsel for the opposite party No. 2 that in such circumstance, this Court in the exercise of its jurisdiction under Article 226 of the Constitution should not interfere with the findings and the judgment of the District Judge. 4. Moreover, even on examining the facts and circumstances of the case on merits, I find that the version of the opposite party No. 2 and not of the petitioner is believable. 5. From the side of the petitioner, oral evidence of the petitioner himself as D.W. 1 and of his father Zahid Ali as D.W. 2 was adduced. The petitioner has also filed a number of papers. They included the electoral roll of 1984 in which the age of the petitioner was recorded as 28 years and the electoral roll of 1987 in which the age of the petitioner was recorded as32 years, Copies of the register for death and birth as well as Pariwar register were also filed. In his deposition as D.W. I the petitioner has admitted that in the certificate of High School his date of birth is noted as 10-3-1959 though in his deposition he has sworn that his date of birth was dated 1-8-1957 Zahid All (D.W. 2), the father of the petitioner has also stated in his examination-in-chief that the date of birth of the petitioner was 1-8-1957, but he was cross-examined at length about the birth and age of his other sons and daughters and on careful examination of the same his testimony about the date of birth of the petitioner cannot be held to be acceptable. The District Judge in his judgment has discussed in detail the testimony of Zahid All and has come to the same conclusion. On the other hand, apart from the fact that the petitioner's age in the High School certificate was admittedly entered as 10-3-59, there has come on the record satisfactory material to make out the same. There can be no doubt that the entry of the date of birth in the High School certificate carries weight and authenticity. It stands un-rebutted. In the electoral roll of 1988 for the Assembly Constituency, the age of the petitioner was recorded as 28 years, From the side of the opposite party No. 2, apart from the documents, P.W. I Shyam Lal Dwivedi, the Librarian of the I.R. Inter College Sandila in which the petitioner had studied as well as the opposite party No. 2 himself as P.W. 2 were examined in the election petition case. Shyam Lal Dwivedi had brought the relevant records of the College to prove that the date of birth of the petitioner was recorded as 10-3-1959. From the side of the opposite party No. 2 reliance has been placed on the decision of writ petition No. 535 of 1980, Narain Bux v. State of U.P., 1981 All LJ 649, decided by a Division Bench of this Court on 2-9-1980, in which reliance was placed on the earlier decisions of the Hon'ble Supreme Court and Privy Council. The Division Bench has finally held that the date of birth recorded in the High School Examination or any equivalent examination shall be deemed to be the correct date of birth for the purposes of superannuation. There is no reason not to give same weight and authenticity to the date of' birth recorded in the High School certificate, while determining the date of birth of a candidate for the post of Chairman. Municipal Board. 6. The contention of the learned Counsel for the petitioner that the opposite party No. 2 having failed to raise objection about the date of birth given by the petitioner at the time of filing the nomination papers as well as at the time of scrutiny of nomination papers would debar the opposite party No. 2 from raising such objection in the election petition, or will go to discredit the case of the opposite party No. 2 about the age of the petitioner, carries no substance. Age is a question of fact and generally requires proof. It would have been hardly possible for the opposite party No. 2 to collect and produce all evidence to rebut the age of the petitioner disclosed by the latter at the time of filing the nomination papers, or at the time of scrutiny of~ the nomination papers. Moreover under S. 19(1)(C) of Municipalities Act, 1916 the question of dis entitlement of the petitioner for the office of Chairman can be raised in the election petition as has been done by the opposite party No. 2 by filing the election petition against the petitioner and taking up therein the question of age of the petitioner. 7. The learned counsel for the petitioner has referred to the following cases : 1. Ghulam Mohiuddin v. Election Tribunal for Town Area Sakit, AIR 1959 All 357 )(FB). 2. Nripendra Bahadur Singh v. Jai Ram Verma, AIR 1977 SC 1992 . 3. Inderjit Barua etc. etc. v. Election Commission of India, AIR 1984 SC 1911 . 4. Kabul Singh v. Kundan Singh, AIR 1970 SC 340 . 8. In the case of Ghulam Mohiuddin (supra). the question was whether the names of certain persons should have been included in the electoral roll or not as the dispute was whether they were minors or whether they resided within the ward concerned. The election was in respect of the Chairman of the Town Area Committee. The case was heard by Full Bench of three Judges and two Judges held that the order of the Election Tribunal holding that the electoral roll was not final and conclusive at the time of hearing the election petition, was erroneous and must be quashed. In the instant case, the question is quite different. The question is not of preparing a wrong voter list, but of fulfilment of the requirements of age by a candidate who was contesting for the post of Chairman of the Municipal Board. 9. Similarly, in the case of Nripendra Bahadur Singh (supra), the question was whether some members were ceased to be members of Kshetriya Smiti but had wrongly continued in the electoral rolls and whether their participation in the election rendered the election illegal. Such is not the point in the instant case. 10. The case of Inderjit Barua (supra) wad also about the correctness of the electoral rolls and whether it was complete. 11. Such is not the point in the instant case. 10. The case of Inderjit Barua (supra) wad also about the correctness of the electoral rolls and whether it was complete. 11. In the case of Kabul Singh (supra) it was held that the person whose name was included in the electoral roll on the last date of making nomination papers, is entitled to vote unless prohibited by any provision and that the finality of electoral roll cannot be challenged in a proceeding challenging the validity of election. 12. So, these cases are of little avail to the petitioner for the obvious reasons that in the instant case the primary and basic question is not of electoral roll. The crucial point in the instant case is different. It is about the petitioner's being eligible for the office of Chairman, Municipal Board on the basis of his age when he filed the nomination papers. Consequently, these cases are of little avail to the petitioner. 13. In the result, the writ petition having no merits is liable to fail. It is dismissed with cost.