Rama Rao, J.
1. This appeal arises our of an election petition filed to set aside the election for 50th division of visakhapatnam Municipal corporation.
2. The essential averments may be stated : the appellant is Ist respondent in O.P. 1/1981 on file of the election Tribunal Municipal corporation of Visakhapatnam. The notification dated 3rd August. 1981 for elections to the Visakhapatnam Municipal corporation was issued pursuant to Act 9 of 1979 constituting Visakhapatnam Municipality as a corporation on the basis of the said notification the special officer published the calendar of election events on 4-8-1981 notifying that the nominations should be filed between 4-8-1981 to 10-8-1981 and the date for scrutiny of nominations was fixed on 11-8-1981 and the date of polling was seheduled on 27-8-1981. Kondamuri swarnalatha (petitioner in the election petition) smt. Vijaya Kari (1st respondent in election petition) and Smt. Devki pasupuleti (end respondent) filed nominations for 50th Division. The 1st respondent filed the nomination on 7-8-1981 stating her age as 19 years in accordance with the age as 19 years in accordance with the age entered in electoral roll. The returning officer returned the nomination on the ground tha the candidate did not attain the age of 21 yrs. On the notifying date as provided in S. 21 of the Hyderabad Municipal corporation Act and therefore she is not eligible to contest for the election Thereupon the 1st respondent filed application dated 7-8-1981 before the electoral registration officer for correcting her age as 23 in the place of 19 nd in support of this application produced the extract of entires in Matriculation examination certificate indicating her date of birth as 15-4-1958 and the marriage certificate issued by the collector. On the perusal of these documents the Electoral officer passed an order that her age should be corrected as sought for and the amended electoral voters' List also was issued. There after the Ist respondent filed nomination on 10-8-1981 mentioning her age and also enclosing the amended electoral roll and the age mentioned in the nomination form satisfied the requirement of S. 21 of the Act. The objections were filed by the petitioner and another stating that the actual date of birth of the ist respondent is 15-4-1962 and therefore her nomination should not have been accepted after hering both sides the Returning officer overruled the objections and accepted the nomination on the strength of the documents filed before him and the amended electoral roll appended to the nomination form. The elections were conducted on 27-8-1981 and in the elections the petitioner ist respondent and 2nd respondent contested the election. In the count conducted on 28-8-1981 the Ist respondent secured 1337 votes and the petitioner polled 1320 and the 2nd respondent secured 604 votes and the Ist respondent was declared duly elected councillor for 50th Division. The petitioner filed the petition to set aside the election of the ist respondent as her nomination is ab initio void as she was underaged on the date of the filing the nomination. The amended electoral roll cannot be acted upon as she secured the amendment on the basis of false and fabricated matriculation certificate. The acceptance of the nomination by the returning officer is illegal as he also relied upon false and fabricated documents. As the nomination of Ist respondent is ab initio void her election is liable to be set aside and the petitioner should be declared as duly elected as she secured the maximum number of votes next to ist respondent.
3. This petition is resisted by the ist respondent on several grounds. It is pleaded that the tribunal has no jurisdiction to go behind the electoral rolls or the amended electoral rolls and the Tribunal has to deal only with the incidents that cropped up from the date of nomination. Further the petitioner is not competent to question the qualification or disqualification of the Ist respondent, who has been duly elected before the tribunal since the commissioner or corporator alone can take such objections before the tribunal constituted under section 86 of the Act the tribunal is not competent to go into the question of any wrongful entries or corrections in the electoral rolls. Further this petition is bad for non-joinder of the necessary parties as the election Registration officer and the Returning officer are not made necessary parties. The Ist respondent was 23 years old on all material dates i.e. the date of nomination date of scrutiny and day of declaration of results on 28-8-1981 and is therefore competent to contest for the councillorship. It is further stated that the I st respondent was born on 18-8-1959 and the 5th child and rist female child of her parents soorla paul and santamma, who were converted christians from the scheduled caste community. The Ist respondent was not named immediately after birth but she was called catherina affectionately by her brothers and parents and subsequently she was named as Deevana varaprasad vijaya Kumari the father of the Ist respondent was employed in the Hindustan shipyard Limited and was entitled for a permanent service record in 1961. The ist respondent's last sister mari sundari ratnakumari was born on 17-9-1962, when Ist respondent was about 6 years old her parents admitted her in first class in Gandhigram vidhyanilayam in 1965 mentioning her real date of birth as 18-8-1959 Because of poverty the ist respondent discontinued her studies in 1967 at the instance of her parents and in 1968 she was once again admitted in the first class in the same school and she studied there till she discontinued in 1969, again she was admitted in 4th class in 1971 and studied up to Intermediate class. After first discontinuation when she was admitted and readmitted, the ist respondent learnt that her parents or guardian gave incorrect underaged dates of births to suit age requirement for admission and further education the incorrect date of birth given at the time of second re-admission was carried right through till she discontinued her studies after intermediate class. During her education she professed and followed the original religion of her community person sri kari Trilochan Rao on 22-7-1979. After she discovered that her correct age was not mentioned in the electoral rolls for 50th division, she moved the electoral registration officer for correction of the age and the electoral Registration authority after verification of records corrected the age as sought for. On 10-8-1981 she filed the nomination papers complying with the necessary requirements and on 11-8-1981 the Returning officer after satisfying himself regarding the age accepted the nomination the ist respondent did not mislead the electoral Registration officer or the returning officer. The allegation regarding the filing of the nomination and the return of the same on the ground of underage and raising the objection on 11-8-1981 by the petitioner against the nomination of Ist respondent and the she was disqualified as underaged and that the amended electoral roll is null and void are denied.
The Electoral registration officer corrected the mistake regarding the age after enquiry on 7-8-1981. The ist respondent never produced any fabricated certificate before the Electoral registration officer and the petitioner did not raise any objection in the presence of this respondent by filing any objection memo. The Ist respondent did not make a false declaration that she belongs to scheduled castes and that she deposited Rs. 100/- but not Rs. 50/- In any event, the petitioner is not entitled to the declaration that she is duly elected in the event of setting aside the election since it cannot be predicated that she would have polled the votes polled by the ist respondent.
4. The 2nd respondent filed a counter supporting the petitioner with regard to the grounds for setting aside the election. She further pleaded that the scrutiny of the nomination of the contesting candidates was not done according to law and the elections were not held in accordance with the procedure prescribed by law. The petitioner and Ist respondent polled many fictitious votes and thus violated the election rules. The petitioner is not entitled to the relief that she should be declared as elected in the event of setting aside the election as such relief cannot be granted because the contesting candidates are three in number.
5. On the basis of these pleadings the following points were framed for enquiry.
1. Whether the amended electoral roll is not entitled to be acted upon for the reason that necessary enquiry was not made by the competent electoral authority and the competent electoral authority did not follow the relevant provisions relating to rectification of the electoral roll with regard to the any of alleged mistakes?
2. Whether the acceptance of the nomination of R-1 is not valid for the reason that R-1 did not satisfy the requirements of the mandatory provisions of section 21 of the Hyderabad Municipal corporation Act and the scrutiny authority relied upon irrelevant illegal and false documents?
3. Whether R-1's date of birth is 18-8-1959 as pleaded by R-1?
4. Whether this election petition is bad for non-joinder of necessary parties i.e, the electoral authority who amended the electoral rolls and the scrutiny officer?.
5. Whether this Tribunal is incompetent to deal with any of the matters relating to preparation of electoral rolls, receiving nomination papers and scrutiny thereof and the Tribunal has to confine itself to consideration of matters arising in the course of election subsequent to the acceptance of the nomination?
6. Whether R-1 is a member of the scheduled castes and whether she deposited Rs. 100/- as pleaded by her?
7. Whether the election of R-1 in ab initio void for the reason that her nomination is illegally accepted?
8. If point 7 is answered in the affirmative whether petitioner is entitled to a declaration that she is duly elected?
9. Whether any false and fictitious votes were got polled by petitioner and R-1 as pleaded by R-2 and such a plea is in time?
10. Whether second respondent cannot object to petitioner's plea that she may be declared to have been elected in the event of setting aside R-1's election without payment of court-fee?
11. Whether the right of R-2 to dispute petitioner's right to be declared as elected is barred by time?
12. In the event of R-1's election being declared illegal whether fresh election has to be held in ward No. 50?
13. Whether the petitioner is entitled to reliefs asked for
6. The election Tribunal found on points 1 and 9 that the amended electoral roll can be acted upon and repelled the contention that the amended electoral roll cannot be relied upon in view of deviation of relevant provisions relating to the rectification of the electoral roll. It is further held that it is within the competence of the Tribunal to adjudicate the matters pertaining to reception of the nomination papers and scrutiny thereof though the preparation of electoral rolls as such is not liable to be questioned. On point No. 4 the Tribunal held that the Electoral authority and the scrutiny officer are not necessary parties and as such the election petition is not bad for non-joinder of the parties. Regarding points 2, 3 and 7 the Election Tribunal held that the acceptance of the nomination of the Ist respondent is not valid as the mandatory requirements contained in section 21 of the hyderabad Municipal corporation Act have not been complied with and the date of birth of Ist respondent is not 18-8-1959 as alleged by the Ist respondent but 15-4-1962 and the acceptance of the nomination of Ist respondent is illegal and hence the election is void. On point 6 the Tribunal held that the Ist respondent deposited Rs. 100 and as such there is sufficient compliance with the rules and the question whether the Ist respondent is a member of the scheduled caste does not a arise for consideration. On point 9 the Tribunal held that the allegation of the polling of false and fictitious votes is not proved and also the right to adduce evidence by the 2nd respondent with reference to this aspect is barred by time. Regarding point No. 10 the Tribunal held that the 2nd respondent cannot oppose the alternative relief claimed by the petitioner and with regard to point No. 11 the right of 2nd respondent to plead that the petitioner is not entitled to alternative relief is barred by time. On point No. 8 the Tribunal held that even after the election of the Ist respondent is set aside there are two candidates in the field viz., the petitioner and 2nd respondent and as such the petitioner cannot be declared as elected on setting aside the election. On point No. 12 the election authority held that fresh election shall be held for division no. 50. On point No. 13, the Tribunal held that the election of the Ist respondent is void and set aside the election of Ist respondent and ordered fresh election for 50th division.
7. The contentions on either side centred round the issue regarding the date of birth and whether the date is 18-8-1959 as claimed by ist respondent or 15-4-1962 as alleged by the petitioner. In support of the findings regarding the date of birth the Tribunal mainly relied upon Exs. A-1, A-6, A-20, A-14, A-13, A-15 and A-25. To dislodge the findings arrived at by the Tribunal the appellant relied upon Exs. B-1, , B-2 B-3, B-5 B-6, B-10 B-21 and B-23 and the evidence of R. Ws. 1 to 3 and 5. At the outset it is necessary to have a detailed surely of the evidence adduced on behalf of the appellant-Ist respondent in aid of the version that the date of birth is 18-8-1959. The basic document in support of this version Is Ex. B-6, which is a certified copy of the entry showing the date of birth mentioned in the school register where the ist respondent was admitted in the ist class on 15-6-1965. In this entry the date of birth is shown as 18-8-1959 Ex. B-1, which is designated as Visadex contains the particulars of the service of the father of the Ist respondent wherein the names of the family members as in 1961 and also their ages have been stated and in the said list the daughter by name catherina is mentioned and her age was stated as two years and the averments of the Ist respondent is that she was called by name catherina before her actual name was given Ex. B- 29 is an application made by the Ist respondent on 18-3 1976 for her Baptisation to the christianity and in the records of the church her date of birth is stated as 18-8-1959. Ex. B-21 is the original entry in the register of admission to school showing the admission of Ist respondent younger sister viz., Mari sundari ratnakumari and her date of birth is given as 17-9-1962. Ex. B- 23 dated 13-5-1979 is an entry in the Baptisation register stating the date of birth of mari sundari ratnakumari as 17-9-1962 Ex. 20 is the certified copy of the particulars in the maternity centre maintained in the Hindustan shipyard colony and in this it is stated that santamma, the Ist respondent's mother gave birth to a female child on 17-9-1962 Ex. B-3 is the study certificate dated 14-10-1982 given by v. V. Nilayam, visakapatnam stating that Mari sundari Ratnakumari studeid in this school from class I to II between 13-6-1969 and 11-9-1976 and her dated of birth in the school records is 17-9-1962 Ex. B. 10 is the note book maintained by the father of 1st respondent wherein the dates of birth of the children have been given and in this note book it was stated that 1st respondent's date of birth is 18-8-1959.
8. The 1st respondent examinated hereself as R. W. 1 she stated that she was born on 18-8-1959 and that she is 5th child of her parents and she is the 1st daughter to her parents after 4 brothers. Her younger sister mary sundari Ratnakumari was born on 17-9-1962. She stated, in the evidence that after discontinuance and when she joined in the school in first class once again in 1968 her brother gave her date of birth as 18-8-1960 and thereafter again she discontinued and after some break again she was admitted in Boddili and at the time of admission into 4th class in 1971 her date of birth was given as 15-4-1962, by her eldest brother and after passing the examinations and at the time of admission into junior college also the same date of birth Viz., 15-4-1962 was continued in all the school records and in the T.c. also her eleder borther gave varying dates of births to underage her due to frequent discontinuation in the school she was married on 22-7-1979 and the marriage is an inter-caste marriage. The father of hte Ist respondent gave evidence as R. W. 2 He stated that after the 1st respondent attained six years she was admitted in the Gandhi Gram Vidyanilayam school. With the held Ex. B. 10 note book in which the date of birth of 1st respondent was got noted the date of birth was mentioned at thetime of admission in the school. It is also stated by him that the average spacing between the children was three years and the difference between the age of 1st respondent and Ratnakumari was 3 and half years. The mother of the 1st respondent was examined as R. W. 3. She stated that the interval between one child and another is about three years and she stated that the age of her last daughter is 20 years earlier thatn the last daughter. R. W. 4 is the headmaster of Gandhi Gram vidyanilayam, who speaks to the date of birth given initially and Ex. B-6 He says that the date of birth as given in the application and also according to the records of the school is 18-8-1959. It is also stated that the 1st respondent left the school on 17-4-1967 while studying 1st standard and it is also stated that after break Mr. Paul admitted the Ist respondent in 1968 and her date of birth was mentioned as 18-8-1960. She left the school on 24-9-1969 and again she was admitted in 1971 and her date of birth was given as 15-4-1962. He says that he knows the younger sister of 1st respondent and her date of birth was given as 17-9-1962. He also mentions that the Education code applies to the school from march, 1946 when the school was recognised. He also categorically denied the suggestion that the entries in Ex. B-6 were written freshly P.W. 6 is the pastor, scindhia Baptist church, Gandhigram, Visakapatnam. This witness is examined on behalf of the petitioner to show the entries in the Baptisation register showing the date of birth as 15-4-1962. In the chief examination he states that the 1st respondent was baptised and in the Baptisation register Ex. A-25 at page 8 the date of birth of 1st respondent was given as 15-4-1962 In reply to the questions from the Court he stated that the sister of 1st respondent Mary sundari Ratankumari was given baptisation on 13-4-1979 and her date of birth was given as 17-9-1962. In the cross-examination he states that in the declaration given by 1st respondent Ex. B-29 the date of birth is mentioned as 18-8-1959 and he also asserted that the date of birth mentioned in the declaration will be mentioned in the declaration will be mentioned in Baptisation register. After cross-examination for some time a request was made by the counsel for the petitioner that this witness should be treated as hostile and permit him to cross-examine him and the permission to cross-examine was accorded This witness flatly denied the suggestion that the record produced is Ex. B. 25 was not previously in existence and brought into existence to help the 1st respondent.
9. The evidence on behalf of the petitioner may be epitomised. Ex. A-20 is the application form signed by the father of the 1st respondent admitting her to Gandhi vidyanilayam in 5th class and in this application the date of birth was shown as 15-4-1962 and in form 9 it was stated that it is the correct date of birth and he would not ask for amendment. Ex. A-14 is application for admission to 8th class and the date of birth was shown as 15-4-1962 and the application for admission was signed by 1st respondent's father Ex. A-13 is ana pplication for admission into Hindustanship yard college wherein the 1st respondent along with her father signed the application form and in col. 5 the date of birth is shown as 15-4-1962 and the age is described as 16 years 3 months. In the Transfer certificate given by the school the date of birth as 15-4-1962. Ex. A-15 is the transfer certificate from the college and in this certificate also the date is shown as 15-4-1962 Ex. A-16 dated 20-2-1978 which is an application for leave Travel concession by the father of the 1st respondent and the age of the daughter was shown as 16 years. Ex. A- 25 is an application for Baptisation of 1st Respondent given by R.W. 2 and in the said application the date of birth is shown as 15-4-1962. Ex. A-30 is the resolution passed by the Baptist church kakinada removing P.w. 6 from service This is pressed into service to cast aspersions on the evidence of P.W. 6 Ex. B-7 is the certified copy of the entry showing the date of birth as 18-8-1960 in the school register. Ex. B-8 is the certificate dated 22-7-1981 given by the head Master, Grandhigram Vidyanilayam school showing that the 1st respondent studied in the school in three spells and the particulars of the dates of joining and leaving and the dates of birth given on three occasions. Initially it was given and ultimately electoral roll wherein the age of the 1st respondent is shown as 19 years. Ex. A-3 is the amended electoral witnesses are P.Ws, 1, 2 and 4. P.W. 1 is the Deputy commissioner, Municipal corporation and he was specifically summoned for the purpose of cross-examination during the crossexamination by the petitioner this witness stated that the 1st respondent presented an application for correction of the age and in support of the requisition for amendment the copies of the matriculation certificate were copy of the marriage certificate were shown and the orders were passed by him directing the correction certificate were shown and the orders were passed by him directing the correction after satisfying himself. It was stated by him that these docements were produced for verification and he did not consider it necessary to ask her to file copies of the documents P.W. 2 is the returning officer and is also summoned for cross-examination at the instance of the petitioner. In the crossexamination he stated that certain objections were raised against the acceptance of the nomination of 1st respondent by the petitioner. Under the directions of this witness the 1st respondent filed the photostat copy of the marriage certificate issued by the collector and the copies of the extract of the date of birth as entered in the matriculation certificate and the provisional Matriculation certificate. After assessing the evidence adduced on either side he passed an order accepting the nomination of 1st respondent. It is also further stated that the took the amended certificate copy of the electoral roll as the basis for accepting the nomination of 1st respondent at the time of scrutiny P.W. 4 is the petitioner herself. This witness has stated the events commencing from the date of filing the nomination and also the particulars regarding the date of birth of the 1st respondent.
10. The maiden document Ex. B-6 regarding the date of birth as 18-8-1959 is proved by R. W. 4 the headmaster of the school. It was stated that the application was presented with the date of birth therein at the time of the admission of 1st respondent. In the crossexamination it is not elicited as to any discrepancy or the motive for R. W. 4 to adduce evidence in the manner stated by him. There is absolutely no allegation or whisper about the interestedness of R. W. 4 and further there is absolutely no endeavour to make out any reasons to discredit this testimony. In the absence of any aspersion of partisanship this evidence can be safely acted upon. Ex. B-6 coupled with the evidence of R. W. 4 is sufficient to prove substantially the plea of 1st respondent and it is heartening to note that this primary document is reinforced by other crucial documents Ex. B-6 is amply supported by Ex. B-1 which is designated as Visadex. In this document enumerating the members of the family accompanied by their ages R. W. 2 stated that cathariana, pet name for 1st respondent was aged two years as in 1961. This document bears the natural label and the date of birth must have been stated in the routine course of events and R. W. 2 could not have forestalled the present predicament. The highly relevant evidence is contained in EXs. B-2 B-3, B-21 and B-23. All these documents pertain to the date of birth of younger sister of Ist respondent Mary sundari ratnakumari. In Ex. B. 2 the date of birth mentioned in the register is 17-9-1962 and in the study certificate Ex. B-3 also the date of birth is shown as 17-9-1962 and in the school register Ex. 21 the date of birth is shown as 17-9-1962 and also in the Baptisation application form and the records in the church the date is shown as 17-9-1962. The younger sister's age is consistently shown as 17-9-1962. This unimpeachable shown as 17-9-1962. The Ist respondent is admittedly elder sister and the successive births within a span of five months is defined by nature. As the date of birth of younger sister is in the region of uncontrovertible and indisputable fact the allegation of the concoction of the date of birth as 18-8-1959 crumbles and cannot be jacked up by the evidence adduced on behalf of the petitioner. This event lands a colour of truth to the version that varying dates of births have been given subsequently with a view to cut the age as the studies were discontinued and the date of birth of 15-4-1962 finally given was adhered to Further there are hardly any circumstances to disbelieve the evidence of the mother and father with regard to the spacing between the births of the children and also the age and clinching circumstances could not be elicited during the crossexamination of these witnesses. As against this evidence the evidence adduced on behalf of the petitioner regarding the age is Ex. B. 7, B.8 A-20, A-14, A-13, A-15, A-16, and A-25 Ex. B. 7 and Ex. B.8 are only the dates that have been given by the brother of the Ist respondent while admitting after the break given by the brother of the Ist respondent while admitting after the break in her studies. Exs. A-20, A-14 A-13 and A-15 pertain to the entries in the school registers stating the age as 15-4-1962 and this is a normal sequel and continuation to the date that was varied at a later stage. The Ist respondent professes that the date 15-4-1962 was given designedly to show the under age to cope up and compensate for the interruption in studies and with an eye on furture prospects in life and this was continued consistently in all the subsequent classes and at the time of final exit also in the T.C. the same date of 15-4-1962 was nturally adhered to though the age of 15-4-1962 endured for number of years but its existence owes only to the deliberate deviation motivated by career consideration. The genuine or real date of birth is contained in Ex. B- 6 and this is fully supported by other documentary evidence and circumstances. It is true that Ex. A- 16 dated 22-18-1978 and this version approximates to the date of birth of 15-4-1962. It must be stated that R. W. 2 was not cross-examined on this aspect in what circumstantes tha age was mentioned in this manner. But this is also explain by the learned counsel for the appellant as consistent with travesty of truth when the date of 15-4-1962 was pitced upon. However it is not such a tilling circumstance as to dislodge the weightly. Documentary evidence in support of the version of the date of birth as 18-8-59. Ex. A- 25 the application for Baptisation, Wherein 15-4-1962 is mentioned, cannot be given weightage is this is set off by Ex. B. 23 the entry in Baptisation register wherein th date of birth is mentioned as 18-8-1959. In view of these two conflicting versions reflected in the documents the theory of date of birth of 15-4-1962 spinned out on behalf of the petitioner is neutralised. In view of the discrepant is neutralised. In view of the discrepant versions the evidence of P.W. 5 the pastor deserves to be totally discarded. In the light of this the consideration of Ex. A-35 adduced to doubt the credibility of P.W. 5 does not arise.
11. The learned counsel for the respondent-petitioner made and elaborate comment on the conduct of the appellant Ist respondent in pressing the forged documents before the Electoral authority for the purpose of amendment in the Electoral Roll and also contended that this conduct has a vital bearing upon the version set up by Ist respondent did not file the document Ex. B. 6 and therefore this document Ex. B. 6 and other allied documents appear to be an afterthought and should not be relied upon. It is not improbable that the Ist respondent might have lost sight of the existence of Rx. B. 6 reflecting the correct date of birth given at the time of innitial admission in the school. This course of event is neither unusual nor exceptional. The learned counsel for the respondent in the appeal strenuously contended that Ex. B. 6 did not see the light of the day till 1981 and from 1967 to 1981 in all the school records including SSC the date of birth is given as 15-4-1962 and Ist respondent herslf sent the document Ex. A-3 when she acknowledged the date of birth as 15-4-1962. The continuance of the date of birth as 15-4-1962 the continuance of the date of birth as 15-4-1962. Till the exit from the educational career after the discontinuance one of studies . the recurring of consistent m misrepresentation as a sequal to Initial misrepresentation can only be considered as to be in furtherance of the aim to cut the age. The learned counsel further contended that the sister's age is based upon memory only and on this score the age of the 1st respondent cannot be determined. This contention is totally untenable as the sister's age is not sought to be relied upon merely upon the memory of the father alone but upon the unimpeachable documents pertaining to school register and entires in the Baptist church and also study certificate and also the register of the birth mentioned in the maternity home. The mist is cleared by the documents relating to the age of the sister in conjunction with Ex. B. 6 the age of the sister which could not have been seriously disputed has become highly relevant in the context of considering the age of her elder sister about which there is a controversy which is beset with conflicting versions. The probability of elder sister's age as 15-4-1962 when her younger sister's age is 17-9-1962 is totally excluded because the difference between the ages of two successive children cannot be five months as ordained by nature.
12. The learned counsel for the respondent in the appeal contended that the mere entry in the electoral roll is not final and the Election Tribunal can go into the disqualification regarding age and in support of this proposition relied upon the decision of this Court in chirala Government Reedy v. Election Tribunal, : AIR1970AP56 The Full Bench of this Court while considering the powers of the Election Tribunal under the Andhra pradesh Gram panchayate Act held that the Tribunal can enquire into the age, qualification of the candidate notwithstanding the fact that the the name appears in electoral roll as a voter. The Election tribunal also in this case proceeded on the footing that despite the rectification of the electoral roll changing the age the Election tribunal can consider the issue of age. It is well settled that the Election tribunal can open up the electoral roll and consider the age on the facts and circumstances in spite of the fact that the different age has been given in the electoral roll and the age specified in the electoral roll is not conclusive and binding upon the election tribunal the learned counsel for the respondent contended that Ex. B-6 is not admissible in view of section 35 of the Evidence Act and as such Ex. B-6 should not be considered. It is elucidated that this is an entry in the Admission register of a private school and is not within the purview of the category of documents enumerated in section 35 of the Evidence Act. Section 35 of Evidence Act may be extracted:-
'An entry in any public or other official book, register or record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country is kept, is itself a relevant fact'.
Reference is made to the decision of the Madras High Court in Majesty seshagiri Rao v. Emperor 1936 mad WN 111. In this case arising under the child marriage Restraint Act the petitioners being the fathers of the bride and bride-groom were convicted for the offence of the celebration of marriage as the bride did not attain the age of 14. In support of the averment that she was born on 10-5 1920 the entry in the admission register in a private elementary school was sought to be pressed into service on these facts King. J. Held that an entry made by a teacher in a private elementary school in its admission register cannot come within the coverage of section 35 of the Evidence Act. In Gopalan v. Kannan, : AIR1959Ker12 , it is held that the entries made by the public servants in discharge of the official duties and they cannot be considered as register kept in the performance of the duties specially enjoined by the law of the country within the meaning of section 35 of the Evidence Act. It is also found that the registers ar not kept under statutory compulsion. The decision in Anant Ram v. State of punjab, is to the same effect as it was held that entries in a school register which is not Government or state school are not admissible under section 35 of the Evidence Act. In re. Siram Reddy : AIR1960AP253 it was held by Krishna Rao, J that every school is required to keep a register of admissions and withdrawals in the form prescribed in appendix 6 pursuant to Rule 52 of the Madras Educational rules and therefore the register of Municipal High school is therefore an official register. This case is with reference to appeal against the conviction under section 471 read with section 465, I.P.C and the conviction is based on the charge that the accused used a forged transfer certificate to obtain admission into Government basic Training school. The issue that was considered is whether the accused is justified in placing reliance upon the transfer certificate issued by the school and whether it is admissible under S. 35 of the Evidence Act. It was held that this register is maintained as enjoined by the Madras Educational Rules and as such this document is admissible as every school is required to keep a register of admissions and therefore the register can be considered as official register. Under the Educational Rules every school is obligated to maintain register of admissions with the prescribed particulars and such records can be considered as official records admissible under Sec. 35 of the Evidence Act. Section 35 of the Evidence Act provides that the document admissible under section 35 of the Evidence Act. In view of the fact that the registers are maintained in every school under statutory compulsion they can be considered as official records and admissible under sec 35 of the evidence Act and as such Sec. 35 does not forbid the admissibility of Ex. B-6 in the instant case. Apart from this the evidence of the head-master saying that at the time of admission the date of birth disclosed was 18-8-1959 can be relied upon and this evidence of conjunction with the evidence of the father and mother amply prove that the date of birth is 18-8-1959.
13. It is also contended by the learned counsel for the respondent that in view of the conflicting versions given from time to time and also the attempt of the appellant to press into service the forged documents before P.Ws. 1 and 2 the version of the date of 18-8- 1959 can not be relied upon. The alleged conduct or attempt to adduce fabricated evidence is not relevant for the purpose of this election petition. The election Tribunal adverted to all the aspects in depty and the alleged conduct of a party at ananterior stage is no relevant for ascertaining the factum of the version that has been set up up by the either side, In this context it is useful to refer to the decision of the Supreme Court in Brij Mohan v. Priya Brat, : 3SCR861 . The facts in this case may be stated. The appellant and the respondent were among the candidates who contested the aurangabad constituency seat for the Bihar legislative Assembly at the General Election held in 1962. The appellant was declared elected. The respondent filed a petition challenging the validity of the appellant's election and prayed for a declaration that the election to be declared void and that he was declared to have been duly elected to the Assembly, among the grounds on which the appellant's election was challenged one of them is that the appellant was under 25 years of age on the date of filing the nomination papers and therefore disqualified under Art. 137 of the Constitution from being a member of the Legislative assembly. In the context of considering the impact of discrepant versions regarding the date of birth at the time of admission into schools, the Supreme Court observed as follows (para 20).
'The appellant's case is that once the wrong entry was made in the admission register it was necessarily carried forward to the matriculation certificate and was also adhered to in the application for the post of a sub-Inspector of police. This explanation was accepted by the election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an Act of making a false statement of age with a view to secure an advantage in getting public service a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the election tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the Court to base any conclusion about the appellant's age on the entries in these three documents viz., Ex. 2, 8 and 19'.
It is also held as follows with regard to the proof in election petition (para 21):
'On an examination of the entire evidence oral and documentary we therefore reach the position that the petitioner-rspondent 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 or proving that the appellant's age was below 25 years of age on the date of his nomination must therefore fall'.
14. The election Tribunal profusely referred to the proceedings before P.Ws. 1 and 2. It is found by the Tribunal that the ist found by the tribunal that the Ist respondent -appellant produced the Matriculation certificate and the copy of the marriage certificate before P.ws. 1 and 2 to get the electoral roll amended andto have the nomination accepted. It is contended by the learned counsel for the respondent that the conduct for the Ist respondent that the conduct of the Ist respondent in the election petition in producing spurious documents has a material bearing on the credibility of the version set up now and also the authenticity of the documents pressed into service during the enquiry of this petition. The Election tribunal found that the forged documents were produced before them though it is flatly denied by the Ist respondent It appears that the copies of the documents only have been filed and further this does not have any impact on the proceedings before the Election Tribunal as the entire gamut of the case is before the Election Tribunal. Even if certain documents are produced before the Electoral officer and the Returning officer before whom the enquiry is summary, the Ist respondent is not precluded from producing other relevant documents. Further the Election Tribunal in the process of enquiry of the petition is competent to open up the electoral roll and has to find out whether any disqualification is incurred with regard to the age under the provision of hyderabad Municipal corporation Act. The evidence of P. Ws. 1 and 2 does not categorically lead to the conclusion that the forged documents were pressed into service and as such the conlusion of the Election Tribunal that the forged documents were pressed into service and as such the conclusion of the Election Tribunal that the forged documents were sought to be produced by the 1st respondent is not founded on correct premises. The decision of either P.W. 1 or P.W. 2 is not in any way binding or foreclose the issue. It is patent that the dominance of the conduct of the Ist respondent before P. Ws 1 and 2 appears to have blurred the objectivity of the Tribunal. The issue should be considered with fresh look without being bogged down by the alleged anterior conduct. In a situation where relevant and irrelevant documents are produced or even in a situation where the allegations of forgery and fraud are interspersed in the relevant evidence and material the dunction of the Court is to sift the evidence without prejudice and bias. The Election Tribunal erred in giving undue prominence to the proceedings before P. Ws. 1 and 2.
15. Essentially no material reasons have been given by the Election Tribunal to disbelieve the evidence of the parents R. W. 2 and 3 regarding the name of the 1st respondent as catherina in her childhood. The reasons given in this regard are not germane and the reference to hospital records with regard to the alleged birth of a daughter who died immediately is totally oblique to the consideration of this aspect. Regarding the crucial issue about the younger sister who was born on 17-9-1962 about which there is no serious dispute, the approach of the Election Tribunal is far from satisfactry. The Tribunal says that there is no record to show that Ist respondent's father gave the date of birth as 17-9-1962 from any authenticated record containing the dates of births of the children and further held that R. W. 2 gave 17-9-1962 as the date of birth of 1st respondent's sister out of memory without reference to the actual date of birth and further held it may be that he had given the date of birth of Ist respondents's sister as 15-4-1962 from out of memory. These considerations are totally irrelevant and the observation that the date of birth of the sister was given as 17-9-1962 forgetting the date of birth of Ist respondent is in the realm of surmise and conjuncture. Th Election Tribunal glossed over this aspect which is highly crucial and clinching. As already stated above there cannot be successive births to a single person within a span of five months and as such the uncontroverted and undisputed date of birth of the younger sister 17-9-1962 Completely scotches the version of the petitioner that the date of birth of the Ist respondent is 15-4-1962 and further in view of the retraction of Ist respondent as well as her father and the date of 15-4-1962 is far removed from actuality as it was obviously given to underage the Ist respondent in view of discontinuance of studies. It appears that after two in considtent versions the Ist respondent Landed finally on thedate of 15-4-1962 and adhered to the same till the exist from the education portals. Exs. B-2, B-15 and B-21 in conjunction with Ex. B-6 conclusively tilt the issue and the date of birth as 18-8-1959 is amply proved.
16. Therefore, the order of the election Tribunal is set aside. Appeal is allowed. No costs.
17. Appeal allowed.