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High Court Of Orissa
J. K. Mohanty, J.
MAYADHAR NAYAK - Appellant
Versus
SUB-DIVISIONAL OFFICER, JAJPUR - Respondent
Election Petn. 2 Of 1980
Decided On : 01/13/1982
ELECTION LAW - REPRESENTATION OF THE PEOPLE ACT, 1951 - SECTION 36(2) - NOMINATION - REJECTION - AGE OF CANDIDATE - BURDEN OF PROOF - CANDIDATE'S FAILURE TO EXAMINE HIMSELF - ADVERSE INFERENCE - ELECTORAL ROLL ENTRY - CONCLUSIVE EVIDENCE - SCHOOL AND COLLEGE RECORDS - EVIDENTIARY VALUE - HOROSCOPE - BIRTH REGISTER EXTRACT - PRESCRIPTIONS - ORAL EVIDENCE - EVALUATION.
Fact of the Case:
The petitioner, an unsuccessful candidate in the Orissa Legislative Assembly election from 23-Sukinda Assembly constituency, filed an election petition challenging the election of the returned candidate, respondent No. 3, on the ground that he was less than 25 years of age on the date of filing nomination and was, therefore, disqualified under Article 173(b) of the Constitution. The petitioner relied on entries in school and college records to prove the respondent's age as 25-4-1957, while the respondent produced the electoral roll entries, horoscope, birth register extract, prescriptions, and oral evidence to establish his age as 30-1-1951.
Finding of the Court:
The court held that the burden of proving that the respondent's age was below 25 years on the date of nomination was on the petitioner, and that the petitioner had failed to discharge this burden. The court found that the respondent had produced overwhelming evidence to prove his age as 30-1-1951, including the electoral roll entries, which were conclusive evidence of his age under Section 36(7) of the Representation of the People Act, 1951. The court also considered the school and college records relied on by the petitioner but found them to be of little evidentiary value, as they were not supported by oral evidence and there was no evidence that the entries related to the respondent. The court further held that the respondent's failure to examine himself did not lead to an adverse inference against him, as he was not a competent witness to depose about his own date of birth.
Issues: 1. Whether the petitioner had discharged the burden of proving that the respondent's age was below 25 years on the date of nomination? 2. Whether the respondent had produced sufficient evidence to prove his age as 30-1-1951? 3. Whether the electoral roll entries were conclusive evidence of the respondent's age? 4. Whether the school and college records relied on by the petitioner had any evidentiary value? 5. Whether the respondent's failure to examine himself led to an adverse inference against him?
Ratio Decidendi: 1. The burden of proving that the respondent's age was below 25 years on the date of nomination was on the petitioner, and the petitioner had failed to discharge this burden. 2. The respondent had produced overwhelming evidence to prove his age as 30-1-1951, including the electoral roll entries, which were conclusive evidence of his age under Section 36(7) of the Representation of the People Act, 1951. 3. The electoral roll entries were conclusive evidence of the respondent's age. 4. The school and college records relied on by the petitioner had little evidentiary value, as they were not supported by oral evidence and there was no evidence that the entries related to the respondent. 5. The respondent's failure to examine himself did not lead to an adverse inference against him, as he was not a competent witness to depose about his own date of birth.
Final Decision: The election petition was dismissed with costs.
J. K. MOHANTY, J.
( 1 ) THIS petition has been filed by Shri Mayadhar Nayak. the unsuccessful candidate who contested the election to the Orissa Legislative Assembly from 23-Sukinda Assembly constituency in Cuttack District. The election was held on 31-5-1980. The petitioner stood as a candidate of S. U. C. I. party and secured 15,718 votes while the third respondent Sarat Rout, who stood on Congress (1) ticket, was declared elected securing 22,640 votes. The other candidates, namely, Prafulla Chandra Gharei (respondent No. 2), Sarat Chandra Patra (respondent No. 4), Sarangdhar Muduli (respondent No. 5 ). Haladhar Dhir (respondent No. 6) and Hrushikesh Rout (respondent No. 7) secured 8385, 3603, 630, 434 and 1957 votes respectively. The total number of valid votes polled was 53,367.
( 2 ) ACCORDING to the petitioner, the nominations to fill up the seal from 23sukinda Assembly constituency were invited by the Returning Officer, Jajpur, on the basis of notification (Ext. 4) issued by the Government of Orissa calling upon the electors to elect a member. The nomination papers were to be filed between 25-4-1980 and 2-5-1980 and the date for scrutiny by the Returning Officer was on 3-5-1980. The last date for withdrawal of nomination papers was 5-5-1980. Eight candidates i. e. , the petitioner and respondents Nos. 2 to 8, filed nomination papers. On the date of scrutiny, i. e. , 3-5-1980, respondent No. 8 Sanatan Deo (who died during the pendency of this election petition) filed objection before the Returning Officer against the candidature of Sarat Rout (respondent No. 3) on the ground that he did not satisfy the constitutional requirements of Article 173 (b) of the Constitution as he was less than twenty-five years of age and the Returning Officer was under obligation under Section 36 (2) of the Representation of the People Act, 1951 (hereinafter refered to as the 'act') to reject his nomination. This was because, as is evident from the particulars of Matriculates provided by the Board of Secondary Education, Orissa, Sarat Kumar Rout son of Purna Chandra Rout was born on 25-4-1957 and on the date of scrutiny he was less than twenty-five years of age. Sarat Kumar Rout passed the Annual H. S. C. Examination in 1971 and he had filled up the form for appearing in the said examination in his own hand. He had the H. S. C. Examination certificate in his possession and with the full knowledge of his date of birth, misled the Returning Officer by offering his candidature and giving a false information. He has also appeared at Intermediate and Degree Examinations of Utkal University as a student of Angul College and must have filled up his date of birth in those forms. He has even got a wrong age recorded in the electoral roll. According to the petitioner, Sanatan Deo was called upon by the Returning Officer by his letter No. 457 dated 3-5-1980 to adduce evidence on 5-5-1980 at 11. 00 a. m. in support of his contention that Sarat Kumar Rout was below twenty-five years of age. He did not call upon respondent No. 3 to adduce evidence in his support. Sri Deo's contention was, however, rejected by the Returning Officer and the nomination of Sarat Rout, whose name as per documents is Sarat Kumar Rout, was accepted as valid. Sanatan Deo withdrew his nomination on 5-5-1980 and did not contest the election. According to the petitioner Sarat Rout was not a valid candidate in the eyes of law and the Constitution and the votes polled in his favour should be presumed to be those cast in favour of a nonexistent candidate. Hence those votes should be treated as not polled at all. The petitioner received the highest number of votes from among the valid candidates; but for the votes obtained by the returned candidate by corrupt practices by way of misrepresentation of his age in the nomination, he would have been declared elected to represent the constituency. The election has been materially affected by the candidature of Sarat Rout (respondent No. 3),
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