2003 Supreme(SC) 1039

2003(8) Supreme 149
SUPREME COURT OF INDIA
(From Patna High Court)
V.N. Khare, CJI., S.B. Sinha, J.
Sushil Kumar -Appellant
versus
Rakesh Kumar -Respondent
Civil Appeal No. 8585 of 2002
Decided on 16-10-2003
Counsel for the Parties :
For the Appellant : Saiyad Uruj Abbas, Md. Akram and Sudhir Nandrajog, Advocates.
For the Respondent : Pranab Kumar Mullick, Advocate.

IMPORTANT POINT
A candidate is not qualified for election unless he has attained the age specified on the date fixed for scrutiny of nominations and the initial burden to prove the allegations made in the election petition about underage although is upon the election petitioner but for proving the facts which are within the special knowledge of the candidate, the burden is upon him.

Headnote:Representation of People Act, 1951-Section 36(2)-Constitution of India-Article 173-Evidence Act, 1872-Sections 103 and 106-Election petition filed by appellant on ground that respondent, elected candidate, at time of filing his nomination paper was not above the age of 25 years as mandatorily required-According to appellant, respondent s date of birth was 1.5.1981 whereas according to respondent it is 16.11.1968-Contradictions between date of bith of respondent as evidenced in school leaving certificate and voter register and election identity card-Fact being within special knowledge of respondent, burden to prove the same would be on him-No reliable evidence on record to show that date of birth was recorded in school register on basis of statement of any responsible person-Enquiry made by Chief Electoral Officer as regard underage of respondent-In Electoral Roll and Identity Card of Election Commission age of respondent stated to be 24 years as on date of nomination-Horoscope filed by respondent held not reliable-Bail application showing age of respondent below 25 years-Materials on record taken in their entirety show that respondent was not above the age of 25 years on date of filing of nomination-Impugned judgment of High Court holding to the contrary held not sustainable.

       Held : The election Tribunal while determining an issue of this nature has to bear in mind that Article 173(b) of the Constitution of India provides for a disqualification. A person cannot be permitted to occupy an office for which he is disqualified under the Constitution. The endeavour of the court shall therefor should be to see that a disqualified person should not hold the office but should not at the same time, unseat a person qualified therefor. The court is required to proceed cautiously in the matter and, thus, while seeing that an election of the representative of the people is not set aside on flimsy grounds but would also have a duty to see that the constitutional mandate is fulfilled. The upshot of the discussions aforesaid is that the materials on records taken in their entirety together with the circumstantial evidence goes to show that the respondent was not above the age of 25 years on the date of filing of the nomination. The findings of the High Court to the contrary cannot be sustained. (Paras 78 and 79)

       The father of the appellant was a member of the Legislative Assembly as also Member of Parliament. He had deposed that he had disclosed the respondent s age while getting him admitted in the New St. Xaviers Junior School. This, however, has not been corroborated by any other witness. The school register (Ext.D) and (Ext.I) were, thus, required to be taken into consideration in their proper perspective by the High Court, which was not done. The respondent purported to have read in Class II to Class IV from 21.11.1980 to 13.11.1983 whereas he allegedly read in Swami Vivekananda School, Mithapur from 12.4.1984 to 31.12.1986 from Class V to Class VII. He attended classes from the middle of the session. But still he is said to have completed his studies from Class II to Class IV within three years and V to VII only in two years 8 months. The respondent as on the date of admission in Class II would have been aged about 12 years. If the evidence of the Vice-Principal is to be believed, the 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. (Paras 55 and 56)

       The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic. (Para 32)