Judgment

SARKARIA, J. :- The basic facts giving rise to these appeals being common, the same will be disposed of under one judgment.

2. Notice calling for nominations to be filed before 3 P.M. on 11-3-1974, for filling six vacancies to the Rajya Sabha from the State of Tamil Nadu in the biennial elections was issued on March 4, 1974. Eleven candidates filed their nominations. On scrutiny which was held on March 12, 1974, all those nominations were found to be valid. On 14-3-1974, which was the last date fixed for withdrawal, three candidates withdrew their nominations leaving eight in the field. The poll was held on 21-3-1974. Counting of votes took place on the same date. The result was published according to which, the contesting candidates secured the votes noted against their names as follows :

1. Shri Khadar Sha -- 3500

2. Shri Khaja Mohideen -- 3700

3. Shri V. Subrahmanyan -- 300

4. Shri C. D. Natarajan -- 3500

5. Shri R. Mohanarangam -- Nil

6. Shri S. Ranaganathan -- 4100

7. G. Lakshmanan -- 3600

8. D.C. John alias Valampuri John -- 3700

3. The requisite quota to secure the election of candidate was fixed at 22,400+1=3201

6+1

and candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were declared elected.

4. Two Election Petitions were filled by the unsuccessful candidates. Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyan. The petitioners prayed that the election of Shri D. C. John be declared void and set aside under S. 100 of the Representation of the People Act, 1951. Each of the petitioners claimed that in the event of Shri Johns election being set aside, he be declared elected under S. 101 of the Act. In addition to the Returning Officer, the Electoral Registration Officer, the Electoral Registration Officer and the Chief Election Commissioner, all the seven contestants were impleaded as respondents.

5. The election of Shri John was assailed on the ground that on March 9, 1974, the date of the scrutiny of his nomination, he was less than 30 years of age and as such, did not possess the qualification as to age laid down in Art. 84 (b) of the Constitution. On these premises it was pleaded that the nomination of Shri John was improperly accepted and in consequence thereof, the result of the election has been materially affected.

6. A recriminatory petition No. 1/74 under Sec. 97 read with S. 83 of the Act was also filed by Shri V. Subrahmanyan, petitioner in E.P. 2/74 opposing Mohana Rangams relief for declaration under S. 101. The recriminator alleged that since the petitioner in E.P. 1/74 had not secured any vote he, in the event of the election of Shri John being set aside, was entitled to be declared elected in the place of Shri John.

7. The learned trial Judge of the High Court tried all the three petitions together and decided them by a common judgment.

8. The trial Court held that on the date of the scrutiny of his nomination, Shri John being less than 30 years of age was not qualified under Art. 84(b) of the Constitution, to contest the election to the Rajya Sabha. On this short ground his election was set aside and the Election Petitions were accepted protanto. The trial Court, however, declined to grant the further declaration under S. 101 in favour of either of the election-petitioners.

9. Aggrieved by that judgment, Shri John has filed in this Court Civil Appeals 1895-1896 of 1974, and Shri V. Subrahmanyan Civil Appeal 1907 of 1974.

10. The first question that falls to be determined in these appeals is : Whether Shri John was born on May 14, 1946, as has been found by the Court below, or on May 14, 1943 as contended by him?

11. Mr. Chowdhary appearing for the appellant (Shri John) contends that the burden of proving that Shri John, was at the material date below 30 years of age was on the election-petitioner and that the latter had failed to discharge such burden. Further grievance of Shri Chowdhary is that the High Court had wrongly rejected the