P.N. Mookerjee, J.
1. This is an Election Appeal, seeking for the reversal of an order, setting aside the election of the Falakata Legislative Assembly Constituency of Jalpaiguri, West Bengal. The applicant was the successful candidate at the polls. His election was challenged by the Respondent No. 1, who petitioned inter alia for setting aside the said election on the ground, amongst others, that the appellant was a disqualified candidate, he not having attained the minimum age of 25 years at the relevant date as required by Article 173(b) of the Constitution. Respondent No. 2 was the other unsuccessful candidate at the polls and Respondent No. 3 was the Returning Officer.
2. The Constituency is a single-member Constituency. Three candidates namely, the appellant and Respondents Nos. 1 and 2, went to the polls. Of them, the appellant secured 14720 votes, Respondent No. 1 14427 votes and Respondent No. 2 1979 votes. The appellant was declared elected and, thereafter, his election was challenged by Respondent No. 1 and, that challenge having succeeded before the Tribunal, the appellant has preferred this appeal.
3. The petitioner (Respondent No. 1) also prayed that, on declaration that the appellant's election was void, he (Respondent No. 1) should be declared duly elected. This latter declaration has been refused by the Tribunal and, against that refusal, there is a cross-objection in this appeal on behalf of the said petitioner (Respondent No. 1).
4. Five candidates appear to have filed nomination papers. Of one, the nomination paper appears to have been rejected at the' scrutiny and, of the remaining four, whose nomination papers were accepted, one (Dr. Abani Guha Neogy) withdrew from the contest, leaving the appellant and the first two respondents in the field. The respondentNo. 1 was the Congress candidate, the appellant belonged to the Praja Socialist Party and the third, namely, respondent No. 2, appears to have been set up by some other party organisation.
5. The 1st of February, 1957, appears to have been the last date for filing nomination papers and the nomination papers of all the above candidates appear also to have been filed in time. The scrutiny was held on 6-2-1957. The voters went to polls on 4-3-1957, which was the date, fixed for the election, and the result, declaring the appellant duly elected, was announced on the 14th. On 10-4-1957, the petition for setting aside the election was duly filed by the present respondent No. 1, it having been received by registered post by the Election Commission, New Delhi, on that date, and it was registered as Election Petition No. 19 of 1957, The one-man Tribunal Sri Dhirendra Nath Chakladar (Sri D. N. Chakladar), District Judge, Jalpaiguri and Darjeeling, was constituted by the Election Commission on 31-5-1957, and this was followed by the issue of an appropriate notification on 4-6-1957, which was published in the extra-ordinary issue of the Calcutta Gazette, dated 6-6-1957, and the Election Petition was duly sent to it by the Commission on or about the same date and the Tribunal assumed charge on the 12th. Meanwhile, the Election Commission had also appointed as the place of trial and 21-6-1957, had been fixed as the date for the first appearance of the parties before the Tribunal and requisite notices' in that behalf had been duly issued. The parties duly entered appearance and, on the 11th and 20th July, 1957, the three respondents before the Tribunal, who are respectively the appellant and respondents Nos. 2 and 3 before us, filed their written statements.
6. Various grounds were taken in the Election Petition for the setting aside of the disputed election but, at the hearing only one ground was pressed and, with that alone, we are here concerned. That ground was one of the appellant's non-age under the Constitution for purposes of his candidature in the election and, in it, the averment was that he was below the age of 25 years which was the requisite minimum age of qualification for Assembly Election candidature under the Constitution, vide Article 173(b). This allegation was denied by the appellant and his case was that he was much above 25 years even at the date of filing his nomination paper and even when the Electoral Roll was prepared and published. This was made more specific at the time of trial and, in evidence, the appellant's case was that he was born in 1336 B.S. or, to be more precise, in the month of Bhadra that year.
7. In support of his allegation that the appellant was below 25 years at all material times, the petitioner, who is respondent No. 1 before us, adduced some oral evidence and he also proved a number of documents (Exts. 1 to 10) and the appellant, who was respondent No. 1 before the Tribunal, examined, in his turn, several witnesses and also proved a Certificate (Ext. E (1) ) from the District Inspector of Schools, Jalpaiguri, whose signature therein was marked as Ext. D(l). He also exhibited the several Electoral Rolls, Exts. A (1), B(l) and C (1).
8. On the above materials, the learned Tribunal accepted the petitioner's contention and, having held that the appellant was below 25 years both at the date of nomination and at the date of election, it set aside his election but it refused the petitioner's other prayer, namely, that he (the petitioner) should be declared to have been duly elec-ted. The first part of the above decision is the subject-matter of the present appeal, the second, of the petitioner respondent No. 1's cross-objection.
9. Of the witnesses examined by the petitioner, none could give any direct evidence on the question of the appellant's age and on the petitioner's side, the only material evidence on the said disputed question of age is to be found in the Certificates and Registers and applications, etc. (Exts. '1 to 10), proved on his behalf, to the extent that they are admissible in law and dependable on the point, and in the admission of fact, made by the appellant pursuant to notice. Of the documents, Exts. 1 to 10, Exts. 4 and 6 are the two Transfer Certificates of the appellant from the Primary and Middle English Schools, Exts. 5 and 7 are the entries in the Admission Registers of the Middle English and High English Schools, relating to the appellant, and Ext. 2 that in the Admission Register of the Malda College. Ext. 1 is the appellant's application for admission in the Malda College and Ext. 9 is his application for permission to sit at the Matriculation Examination. Ext. 3 is the extract from the University Register of candidates for the Matriculation Examination of 1949, relating to the appellant. Ext. 10 is the extract from the Calcutta Gazette, showing publication of his result at the said Examination, and Ext. 8 is an entry in the School Register of the Dhupguri H. E. School, showing delivery of Matriculation Certificate to the appellant, Ext 8 (a) being the appellant's signature therein (Ext. 8), acknowledging receipt of the said Matriculation Certificate. The admission of fact is on the question of the appellant's age in his Matriculation Certificate and this was admitted to be 16 years 8 months in March, 1949. That was corroborated by all the above exhibits (Exts. 1 to 8 and Exts. 9 and 10), where the appellant's age was entered with reference to particular dates. The above entries as to age were challenged by the appellant as incorrect but the admissibility of the above documents was not eventually seriously questioned. It is unnecessary, however, to discuss these entries in any detail as the admitted age of the appellant in the Matriculation Certificate is supported by the oral evidence, adduced on behalf of the appellant himself, and, as the said evidence, so far as it seeks to contradict it, does not seem to be reliable. (His Lordship further examined the evidence and continued :).
10. As against the above, we have to consider the evidence of the appellant's witnesses in support of his case that he was born in the year 1336 B.S. and the entry in the District Inspector of School's Certificate (Ext'E(l)), which shows him even older, the appellant's other exhibits on the point of his age, namely, the Electoral Rolls (Exts. AI Bl and CD, being, as we 'shall explain later, of little value on the said point.
11. (After discussing the evidence, his Lordship proceeded;) In the light of the foregoing discussion, we are unable to, place any reliance on the oral testimony, adduced by or on behalf of the appellant, on the question of his age and we agree with the Tribunal's view against him on this point.
12. Turning to the documentary evidence on the Appellant's side on the question of his age, we may at once say that the Electoral Rolls, Exs. Al, Bl, and Cl are hardly of any evidentiary value on the point, as, apart from anything else, the relative entries therein were admittedly made on the appellant's own statement. They cannot, therefore, assist the appellant.
13. As to Ext.E(l), it is to be observed at the outset that it was filed very late. The hearing be-fore the Tribunal started on the 2nd September, 1957. On that date, the present respondent No. 1 petitioner's witnesses were examined and, early next day, his (petitioner's) evidence was closed. Thereafter, it appears, the Certificate, Ext. E (1) was filed. Its acceptance was seriously objected to by the petitioner but the Tribunal allowed it to go into evidence in the interest of a fair trial. Several witnesses were examined by the appellant for proving this document but only one (his witness No. 8) could prove it and it was marked as Ext. E (1) on his evidence. It is clear, however, from the evidence of Court witness No. 1 Probodh Chandra Bhattacharya that the entry as to age in this Certificate. Ext. E(l), must be based on the Primary School records from which also the age in the Transfer Certificate (Ext.4) must have been entered. There would thus be a conflict and, in view of the oral evidence, already discussed, theentry in the Transfer Certificate (Ext.4) should, in our opinion, be accepted in preference to that in the Inspector's Certificate. Ext.E(l). There can be no question also that, if Ext.E(l) be admissible on the question of the appellant's age, the Transfer Certificate (Ext. 4) -- and many of the petitioner's (respondent No.l's) other exhibits too --would also be admissible on the point and that, so far as admissibility is concerned, they stand practically on the same footing. That would make the appellant's position definitely worse.
14. That the appellant's age was correctly stated in his Matriculation Certificate and, therefore, in the series of documents, Exts. 1 to 10, is also proved by another circumstance, to which we shall presently refer. The appellant was admittedly aware of the entry of his age in all the above documents. That entry, however, according to him, was incorrect. He further says that, at onestage, he thought that the mistake should be corrected and he suggested that to P.W. No.l, Umerali, and, on the latter's advice that the lower age would be to his (appellant's) benefit, he refrained from getting it corrected. Nothing on the point, however, was suggested to the said P. W. No.l, and that makes it difficult for us to accept the appellant's explanation as to why the incorrect entry as to his age was allowed to continue and to accept also the appellant's story of inaccuracy.
15. The net position thus stands as follows;The Matriculation Certificate, which was cerainly admissible evidence on the question of theappellant's age, admittedly gives that age as 16years 8 months on the 1st of March, 1949, andhat is very strongly supported by the categoricalstatement of the appellant's witness No.2, Mohanta Roy, his elder stepbrother, and the appellant'sevidence to the contrary and in support of his case on the question of his age is unacceptable. This is apart from the documents, filed by the petitioner, to the admissibility whereof -- or, at least, of some amongst them, -- some objection may be taken. Thus the appellant's age must be taken to be 16 years 8 months on the 1st of March, 1949, and, on that basis, the appellant would be below 25 years even on the 14th March, 1957, the date of declaration of the result of the election. A fortiori, he would be so on the date (1st February, 1957) of filing of nomination papers and the date (4th March, 1957) of the Election. In that view, we affirm the finding of the learned Tribunal that the appellant was a disqualified candidate under Article 173(b) of the Constitution and his election cannot stand. The Tribunal, therefore, was fully justified in declaring the appellant's election void and in setting it aside and this appeal must fail.
16. We now take up the respondent No. 1's cross-objection. That is directed against the refusal of respondent No. l's (petitioner's) prayer for declaring him duly elected upon the setting aside of the appellant's election. This claim is sought to be supported on the ground that the votes, cast in favour of the appellant, who has been found to be disqualified under Article 173(b) of the Constitution, are 'thrown away' or invalid votes and should be left out of account in calculating the valid votes under Section 101(a) of the Representation of the People Act, 1951, and as, of the valid votes, so calculated, the respondent No.l has admittedly secured the majority, he should be declared elected under the said section, namely, Section 101(a) of the Representation of the People Act, 1951.
17. The above argument was very cleverly put by Mr. G. P. Kar, Counsel for respondent No. 1, on the apparent authority of a certain English decision and certain passages in Halsbury's Laws of England, 3rd Edition, to which we shall presently refer, but a closer examination betrayed its inherent weakness.
18. The doctrine of 'thrown away' votes is based on the principle of a fair inference of wilful perverseness on the part of the electors, voting for the disqualified candidate. That inference, however, is permissible only under certain circumstances, namely, where the voters, 'before the voting, have had or must be deemed to have had notice of the facts, creating the candidate's disqualification', or, in other words, actual or constructive notice of the same, which may arise from the notoriety of the particular fact or facts or otherwise. Votes, given without such notice, would be good votes. Neither the case cited by Mr. Kar, namely, Beresford-Hope v. Lady Sandhurst, (1889) 23 QBD 79 (A), nor the passages, cited by him from Halsbury's Laws of England namely, the first part of sec. 549, p. 305, vol. 14, 3rd Edition, would support any other conclusion.
19. Mr. Kar made his submissions under three heads:
He first contended that 'status incapacity' or 'status disqualification' as in the case of aliens, infants, etc., stands differently from other incapacities or disqualifications and should, by itself, be sufficient to lead to the inference of wilful perverseness on the part of the voters, voting for such disqualified candidate. He argued that, in such cases, the disqualification is 'founded on a positive and definite fact, existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the voters, voting for the disqualified candidate' and, in support of his argument, he relied on the several passages, occurring in the earlier part of sec. 549 of Halsbury's Laws of England, 3rd Edition, Vol. 14, where reference is given to foot notes (h), (in) and (n), and also on the observations of Lord Coleridge, C. J., in (1889) 23 QBD 79 at p. 94 (A), lines 1 to 10, of the Report. He submitted that, in such cases, no question of notice would arise and the 'status disqualification' would, by itself, be sufficient to invalidate the votes, cast in favour of the disqualified candidate.
20. We are unable to accept Mr. Kar's argument and the authorities, cited by him, do not, in our opinion, support his extreme contention. The law on the point may now be taken to be fairly well settled. The question of thrown away votes would not and cannot arise unless the votes were cast in favour of the disqualified candidate with notice or knowledge of the disqualification or of the facts, creating the same. Such notice or know-ledge may be actual or constructive and may arise from the notoriety of the fact, on which the disqualification is based, or otherwise. But, where the votes are cast without notice or knowledge of the basic fact of the particular disqualification, they would be good votes and would not be thrown away. Possibly, notice of the law would not be necessary as every voter may be presumed to know the law, (Vide Gosling v. Velcy, (1847) 7 QB 406 at p. 439 (B) and (1889; 23 QBD 79 at p. 83 (A). See also Halsbury's Laws of England, 3rd Edition, vol. 14, page 305, sec. 549, citing Fermanagh and South Tyrone Division Case (1955), cited in 105 L. Jo. 594), although, at one time, a different view appcars to have prevailed on the point, vide Reg v. Mayor of Tewkesbury, (1868) 3 QB 629 (C). This latter case, however, is regarded as overruled by Lady Sandhurst's case (A), cited above (vide Rogers on Elections, Vol. II, page 83 and Vol. III, pages 86 and 87). The preponderant view also seems to be that it is not in respect of every disqualification that the question would arise of 'thrown away' votes, even where the votes are cast with notice or knowledge of the disqualification or of the facts, creating it, but that it arises only where the qualification is founded on some positive and definite fact, existing or established at the time of the poll' and the passages, cited by Mr. Kar from Halsbury's Laws of England, have reference to that aspect of the matter. Those passages, however, state only part of the law on the point and it is an incomplete statement of the same without the subsequent passages which run as follows :
'For the votes, given for a candidate, to be thrown away the voters must, before voting, either have had or be deemed to have had notice of the facts, creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good.'
and which are followed by the very significant passage to the effect that
'if, after deducting the votes, given after such notice, from the total number of votes, given for the disqualified candidate, he remains in a majority, the minority candidate cannot be seated and there must be a fresh election.'
This passage, last quoted above, unmistakably shows that the law is not as contended for by Mr. Kar but that it has been correctly set out by us above. In Rogers on Elections also, we find a similar statement of the law, so far as the requirement of notice or knowledge is concerned, where the learned author says that
'votes may be lost or thrown away by voting for a candidate, who is disqualified, after notice of disqualification or with knowledge of the disqualification or of the fact, creating it',
vide Vol. II. (Parliamentary Elections), page 80, and Vol. III (Municipal and other Elections), page 84, and, in the course of discussion, all the relevant cases on the point including Lady Sandhurst's case, cited and relied on by Mr. Kar, are discussed and commented upon and explained by the learned author and he then sums up the 'knowledge' part of the law as follows :
'The result of the above decisions is that an elector, who votes for a disqualified candidate, with knowledge either of the disqualification or of the facts, creating the disqualification, throws away his vote; and such knowledge will be presumed where the disqualification or the facts, creating the disqualification, are notorious,'
We do not think that the law is different where there is notice in place of knowledge and the foregoing discussion will amply bear that out.
21. For our present purpose, it is unnecessary to prolong the discussion. We would only add that, in (1889) 23 QBD 79 (A), the notorious fact that the candidate was a woman was per se notice of the same and the court proceeded upon the view that that fact was known to all the voters, concerned (Vide pages 94 and 99 of the Report; vide also Hobbs v. Morey, (1904) 1 KB 74 at pages 78-79 (D) ) and, for a concise statement of the relevant law, we would refer to (1847) 7 QB-406 at p. 439 (B), where Lord Denman, C. J., in delivering the judgment of the Court, observed inter alia as follows :
'Where the disqualification depends upon a fact which may be unknown to the elector he is entitled to notice, for, without that, the inference of assent (which is essential for inferring wilful perverseness on the part of the elector) could not be fairly drawn nor would the consequence as to the vote (that is, of its being thrown away) be just. But, if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given; no one can doubt that, if an elector would nominate and vote only for a woman, to fill the office of mayor or burges in Parliament, his vote would be thrown away; there the fact would be notorious and every man would be presumed to know the law upon that fact.'
22. What we have said above is enough for our present purpose but, to complete reference to important cases on the subject, we would cite Claridge v. Evelyn, (1821), 5 B & Ald 81 (E) and Drinkwater v. Deakin (1874) 9 CP 626 (F), which latter case is definitely against Mr. Kar's contention, and we would conclude by pointing out that, in Lady Sandhurst's case (A), Drinkwater's case (F), was accepted as containing a correct statement of the law on the point and that the former case was really decided upon the view of notice, presumed or implied from notoriety of the basic fact. This, indeed, is clear from the Master of the Rolls Lord Eshcr's judgment and also from the passages, which follow the citation of Mr. Kar, in Lord Coleridge's judgment at page 94 of the Report.
23. Mr. Kar next contended that the necessary notice of the appellant's age must be deemed to have been given in this case by reason of the publication of his Matriculation result with age in the Calcutta Gazette and he referred in that connection to Ext. 10. Nothing, however, could be placed before us in support of the above argument and, eventually, it was given up by Mr. Kar.
24. The last submission of Mr. Kar was that constitutional incapacity or the disqualification of status, arising under the Constitution, stands on a different footing from mere statutory disqualification, and, in such cases, no question of notice should arise and no notice should be required, for invalidating the votes. We find no authority or principle which supports such a proposition.
25. In the above view, we would reject Mr. Kar's argument. We need only point out that the acceptance of that argument would really have the effect of depriving the majority of voters of their right to exercise their franchise. That would be a clear negation of democracy and, plainly, against all democratic principles and it cannot certainly be accepted in the election, held under a democratic Constitution.
26. We would, accordingly, hold that there is no substance in the respondent No. 1's cross-objection and we would dismiss the same.
27. In the result, both the appeal and the cross-objection fail and they are dismissed. There will be no order for costs in either.
28. Let a copy of this judgment be forwarded to the Election Commission as early as possible.
29. I agree.