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Kirtan Sahu After Him Uma Sahuani and ors. Vs. Thakur Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 109 of 1966
Judge
Reported inAIR1972Ori158; 38(1972)CLT82
ActsEvidence Act, 1872 - Sections 35, 74(1) and 81
AppellantKirtan Sahu After Him Uma Sahuani and ors.
RespondentThakur Sahu and ors.
Appellant AdvocateM. Mohanti and ;B. Mohanti, Advs.
Respondent AdvocateB.K. Behura, ;M. Mohapatra and B. Harichandan, Advs.
Cases ReferredC) (Rani Lekraj Kuar v. Babu Mahpal Singh).
Excerpt:
.....co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' to render a document admissible under this section three conditions must be satisfied: rule 18 authorises the registration officer to make corrections if he is satisfied about the mistake. it is, therefore, manifest that the electoral roll is a very important document in a democratic country like india. for reasons indicated in paragraph 44 of the judgment their lordships were not inclined to attach finality to the entry and said, as we have already pointed out above, no finality can attach to these entries as regards the qualifying age of a candidate at an election and they are at best a piece of prima facie evidence which are liable to be rebutted......reached at such enquiry under rule 20. ultimately rule 22 provides for final publication of the roll. rule 23 provides for an appeal against orders deciding claims and objections. rule 25 deals with annual revision of the rolls. rule 26 deals with correction of entries and inclusion of names, and rule 27 provides for further appeal.4. parliament has taken great care to see that the electoral roll is properly prepared and every citizen above the age of 21 years is included in the roll of the respective constituency so that he may not be deprived of his right of franchise. section 33 of the representation of the people act (43 of 1951) requires that a person whose name is not registered in the electoral roll would not be entitled to contest the election. the proviso to sub-section (4).....
Judgment:

R.N. Misra, J.

1. When this appeal came up for disposal before a Division Bench, the admissibility of the electoral rolls prepared under the Representation of the People Act arose for consideration. A Division Bench of this Court in (1970) 36 Cut LT 1211 (Paramananda Sahu v. Babu Sahu) had taken the view that such electoral rolls were not admissible in evidence under Section 35 of the Evidence Act. In three other cases the same view had also been taken. As the Division Bench in seisin of this First Appeal was of the view that the earlier Bench decision of this Court did not correctly decide the question the following point has been formulated and referred for the opinion of the Full Bench under Rule 3 of Chapter V of the Orissa High Court Rules, Volume I:

'Whether the electoral roll prepared under the Representation of the People Act is inadmissible in evidence without the author thereof and the person supplying the information being examined in the case.'

2. Section 35 of the Evidence Act provides:

'Any 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 in which such book, register or record is kept, is itself a relevant fact.'

To render a document admissible under this section three conditions must be satisfied: First of all the entry that is relied upon must be one in any publication or other official book, register or record; secondly it must be an entry stating a fact in issue or a relevant fact; and thirdly it must be made by a public servant in the discharge of his official duty, or by any other person in performance of the duty specially enjoined by law. Such documents have been admissible in evidence on account of their public nature, though their authenticity be not confirmed by the usual tests of truth, namely, the swearing and the cross-examination of the persons who prepared them. They are entitled to the extraordinary degree of confidence partly because they are required by law to be kept, partly because their contents are of public interest and notoriety but principally because they are made under sanction of an oath of office, or at least under that of official duty by accredited agents appointed for that purpose.

3. It has, therefore, to be first examined as to whether the electoral rolls are prepared and maintained by public officers in performance of duties specially enjoined by the law of the country. This leads to a detailed examination of the provisions of the Representation of the People Act (43 of 1950) (hereinafter referred to as the Act) and the Rules made thereunder. Part III of the Act provides for electoral rolls for assembly constituencies. By Section 15 it is provided that for every constituency there shall be an electoral roll. Section 16 deals with disqualifications, and a person to whom such disqualifications attach is not entitled to be registered in the roll. Section 17 bars registration of one person in more than one constituency and Section 18 bars registration of one person more than once in any constituency. Section 19 provides positive qualifications for registration. Section 21 deals with preparation and revision of the electoral rolls, while Section 22 deals with correction of entries in the electoral rolls. Section 23 authorises any person whose name has not been included in the roll to apply for inclusion of his name. Section 24 provides for an appeal against orders under Sections 22 and 23 of the Act.

Part V of the Act deals with certain general provisions. Section 28(2)(aa) provides that by rules the particulars to be entered into the electoral rolls may be prescribed. Section 30 bars the jurisdiction of the civil court in regard to the right of a person to be registered in the electoral roll. The civil court's jurisdiction is also ousted in regard to any action taken under the provisions of the Act in the matter of preparation or revision of the roll. Section 31 makes false declarations in the matter of preparation of the electoral roll punishable, while Section 32 makes dereliction in performance of official duty by those in charge of preparation of the roll punishable.

The Registration of Electors Rules, 1960, made by exercise of powers under Section 28 of the Act make elaborate provisions for preparation and maintenance of the roll. By Rule 8 duty is cast on occupants of dwelling houses to supply information. Rule 12 allows 30 days' time from the date of draft application of the roll for lodging claims and objections. Rule 13 prescribes the form of claims and objections, and Rule 14 provides for the manner of lodging of claims and objections. Rules 15 and 16 provide the procedure before the public authorities in dealing with such claims and objections. Rule 18 authorises the registration officer to make corrections if he is satisfied about the mistake.. Rule 19 provides for hearing of claims and objections when the registration officer is not able to dispose of the claim without hearing. Rule 20 deals with inquiry into claims and objections, and Rule 21 provides for a machinery for giving effect to the conclusion reached at such enquiry under Rule 20. Ultimately Rule 22 provides for final publication of the roll. Rule 23 provides for an appeal against orders deciding claims and objections. Rule 25 deals with annual revision of the rolls. Rule 26 deals with correction of entries and inclusion of names, and Rule 27 provides for further appeal.

4. Parliament has taken great care to see that the electoral roll is properly prepared and every citizen above the age of 21 years is included in the roll of the respective constituency so that he may not be deprived of his right of franchise. Section 33 of the Representation of the People Act (43 of 1951) requires that a person whose name is not registered in the electoral roll would not be entitled to contest the election. The proviso to Sub-section (4) and Sub-section (5) of Section 33 support this conclusion. It is, therefore, manifest that the electoral roll is a very important document in a democratic country like India. Therefore, an elaborate statutory machinery has been provided both by the Act and the Rules made thereunder to make the electoral roll to conform to the actual state of affairs. Duty is cast on a set of public officers to prepare the roll in the manner provided and to maintain it by a process of continuous annual revision in an up-to-date state.

5. It would, therefore, follow that the electoral roll is a public record made in performance of duty specially enjoined by the law and an entry made thereunder would directly come under Section 35 of the Evidence Act. The electoral roll is a public document as contemplated under Section 74(1)(iii) of the Evidence Act, because it is a document forming the Act of public officers. To such a public document the presumption under Section 81 of the Evidence Act has application. When a public document is produced before the court, it shall presume the genuineness of such document. Therefore, when the electoral roll which is a public document is produced before the court, the court is required to presume its genuineness. Section 4 of the Evidence Act dealing with 'shall presume' provides,

'Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved;'

Therefore, when the electoral roll is produced before the court by virtue of Section 81 read with Section 4 of the Evidence Act, the court shall regard the fact entered in the electoral roll as proved unless and until it is disproved. In (1970) 38 Cut LT 1211 (Paramananda Sahu v. Babu Sahu) a Division Bench of this Court dealing with the electoral roll stated,

'In addition to the oral evidence, reliance is sought to be placed by the plaintiff on the documents marked Exts. 1, J and K. Ext. 1 purports to be a printed invitation card alleged to have been issued by defendant No. 1 on the occasion of the marriage of defendant No. 3 describing him as his youngest son. Ext. K is the voter's list prepared, in 1958 of the ward in which the parties reside wherein the father's name of the plaintiff and defendant No. 3 is mentioned as Babu, i.e., defendant No. 1. No evidence has been adduced to show that Ext. 1 was actually got printed by defendant No. 1 or on his instructions defendant No. 3 was described as the youngest son. So also, there is no evidence to show on whose information the father's name of plaintiff in Ext. K was mentioned as Babu. Neither the person who prepared Ext. K nor the person who printed Ext. 1 has been examined in the suit. In these circumstances reliance cannot be placed on Exts. 1, J and K as affording proof of the relationship claimed by the plaintiff with defendant No. 1.'

Soon after this judgment was pronounced I had occasion to deal with the question of admissibility of the electoral roll in the case of Nukuni Dibya v. Harekrishna Sat-pathy in Second Appeal No. 574 of 1966 disposed of on 24-8-1970 (Orissa) and in the case of Musi Bewa v. Raghunath Das in Second Appeal No. 636 of 1966 disposed of on 1-9-1970 (Orissa). Following the aforesaid Division Bench decision in regard to the admissibility of the electoral roll I also held that the electoral roll was not admissible in evidence unless there was evidence to show the source of information leading to the preparation of the electoral roll or the person who prepared the electoral roll was examined. In the case of Sulei Bewa v. Gurubari Rana, in AIR 1971 Orissa 299 I also came to the same conclusion.

6. This question does not seem to have been directly decided in any other court. Two instances where reference was made to the electoral roll as a piece of evidence were placed before us by Mr. Mohanti for the appellants. The first one is the case of AIR 1953 Nag 146 (Kewalchand v. Samirmal). The Court was dealing with a dispute under the C. P. and Berar Letting of Houses and Rent Control Order, 1949. A dispute was raised on the plea that the Rent Controller had exercised jurisdiction improperly in fixing the fair rent of the premises as the tenant was not in occupation thereof. The Court looked into the municipal assessment records to find out who was in occupation of the particular house. Reliance was placed on the voter's list by one of the parties. Dealing with that matter it was said,

'This position is further fortified by the evidence of Kanhaiyalal recorded by the Rent Controller and this is not displaced by the production of the voters list which shows the premises as No. 148/2, because the Voter's List has practically no evidentiary value.'

Their Lordships did not hold that it was not admissible under Section 35 of the Evidence Act. Juxtaposed with other evidence their Lordships were not prepared to attach probative value to the contents of the document. This decision, therefore, has really no light to throw on the point in issue. The other case is reported in AIR 1964 Rai 126 (Shiv Ram v. Shiv Charan). The dispute was raised as to whether a candidate had the requisite age qualification which under Article 173 of the Constitution is provided to be 25. The electoral roll was relied upon to substantiate the evidence of age. For reasons indicated in paragraph 44 of the judgment their Lordships were not inclined to attach finality to the entry and said,

'As we have already pointed out above, no finality can attach to these entries as regards the qualifying age of a candidate at an election and they are at best a piece of prima facie evidence which are liable to be rebutted. Having regard to the evidence led on the opposite side, we are definitely in agreement with the Election Tribunal that these entries have been successfully rebutted in the present case.'

Thus, the electoral roll was found admissible under Section 35 of the Evidence Act and due regard was also given to Section 81 of that Act. On the facts of the case the court came to hold that the fact contained in the document had been disproved. This decision also is not material for the present purpose.

7. The electoral roll being a public document is admissible in evidence and it is not necessary to prove the source of information on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person who prepared the electoral roll has to be examined in court to prove the roll. As a public document it is admissible under the provisions of the Evidence Act. As was indicated by the Judicial Committee in (1879) 7 Ind App 63 (PC) (Rani Lekraj Kuar v. Babu Mahpal Singh).

'The entry having stated that relevant fact, the entry itself becomes by force of the section a relevant fact; that is to say, it may be given in evidence as a relevant fact, because, being made by a public officer, it contains an entry of a fact which is relevant.'

We would accordingly answer the question referred to us thus:

The electoral roll prepared under the Representation of the People Act is admissible in evidence without the author thereof and the person supplying the information being examined in the case.' It would, therefore, follow that the view expressed by the Division Bench in (1970) 36 Cut LT 1211 and the three other cases already referred to by a single Judge in this Court with reference to the admissibility of the electoral roll was not correct.

8. The First Appeal shall now beplaced before a Division Bench togetherwith our opinion on the question referredto us, for disposal in accordance with law.

G.K. Misra, C.J.

9. I agree.

Patra, J.

10. I agree.


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