Holding

The Supreme Court held that the Returning Officer correctly rejected Umrao Ben’s nomination for non‑compliance with Section 33(5) and also correctly rejected Hukmi Chand’s and Suraj Prakash Joshi’s nominations because the petitioner failed to prove the required age, so the High Court’s order setting aside the election was reversed.

Summary

The Supreme Court examined an election petition challenging the election of B.M. Singhvi from the Jodhpur City Assembly constituency. The petition alleged that three candidates – Umrao Ben, Hukmi Chand and Suraj Prakash Joshi – were improperly rejected, contending that Ben’s nomination should have been accepted despite lacking a certified copy of the electoral roll, and that Chand and Joshi were actually over 25 years of age, making their rejections invalid. The Court held that Section 33(5) of the Representation of the People Act makes it mandatory for a candidate who is an elector of another constituency to produce a copy of the relevant electoral roll, and failure to do so justifies rejection; thus Ben’s nomination was correctly rejected. Regarding Chand and Joshi, the Court found that the petitioner failed to prove their ages with admissible evidence under Section 35 of the Evidence Act, so the Returning Officer’s rejection was proper. Consequently, the High Court’s order setting aside the election was reversed and the election petition dismissed.

Issues considered

The validity of the Returning Officer's rejection of Umrao Ben's nomination under Section 33(5) of the Representation of the People Act, 1951.
The adequacy of evidence presented to prove that Hukmi Chand and Suraj Prakash Joshi were at least 25 years old on the relevant date.
Whether the High Court erred in its appreciation of the evidentiary value of school register documents under the Indian Evidence Act.
Whether the election result should be set aside on the ground of improper rejection of the three nominations.

Legislation cited

Indian Evidence Act, 1872s. 35, s. 74
Representation of the People Act, 1951s. 116, s. 116-A, s. 33(5), s. 36(2)(b), s. 80, s. 83, s. 87, s. 93

Subjects

election lawnomination rejectionRepresentation of the People Actage qualificationIndian Evidence Actelection petitionstatutory interpretation

Judgment

BIRAD MAL SINGHVI
A
v.
ANAND PUROHIT
•,
AUGUST 2, 1988

[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.l B

Representation of the People Act, 1951-Sections 33(5), 36(2) (b),
80, 83, 87, 93 and 116.

Nomination-Scrutiny of-Returning Officer to be satisfied
candidate eligible to contest electiolLEnquiry-Summary in nature-No
scope for elaborate enquiry-Candidate to satisfy Returning Officer C
about eligibility-Election petition-Not an appeal against order of
Returning Officer rejecting nomination-Fresh material can be adduced
by candidate before High Court to support eligibility.

Candidate an elector of different constituency-Proof of name in D
concerned electoral roll-Onus on candidate to prove-No duty of
Returning Officer to refer relevant electoral roll and verify eligibility.

Nomination paper-Rejection on ground candidate has not comp-
leted 25 years of age-Election petition-Documents showing date of
birth-Evidentiary value in proving age. E

Indian Evidence Act, 1872-Section 35-Entry relating to date of
birth in school register-Relevant and admissible-Entry regarding age
in school register-Not much evidentiary value to prove age in absence
of material on which the age was recotded.
F
Election to the State Legislative Assembly of Rajasthan for Jodh-
pur City Constituency, was held in the year 1985. Nomination papers
were filed on 8.2.1985 and the date of scrutiny was 9.2.1985. In all 45
candidates filed their nominations, after scrutiny and withdrawal, 21
candidates contested the election. After polling and the counting of
votes, the appellant was declared elected having obtained majority of G
votes.

The respondent who was an elector in the Jodhpur City Consti-
tuency filed an election petition before the High Court challenging the
appellant's election, on the ground that the result of election was
materially affected on account of improper rejection of nomination H
? 1

r
2 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. '
A papers of 3 candidates, namely, Smt. Umrao Ben, Hukmi Chand and .
Suraj Prakash Joshi. It was pleaded that Smt. Ben was an elector in the
Sardarpura Assembly Constituency the Returning Officer wrongly re-
jected her nomination paper without affording an opportunity to her to
produce a copy of the electoral roll, that Hukmi Chand and Suraj
Prakash Joshi both were more than 25 years of age on the date of the
B nomination, yet the returning officer rejected their nomination papers
on the ground that they were not qualified to be a ~andidate as they
were below 25 years of age. ...
t

The appellant contested the election petition. It was asserted that
Smt. Ben had failed to file a certified copy of the relevant entry in the
electoral roll of Sardarpura Constituency along with her nomination,
c that she further failed to produce a copy of the electoral roll at the time
of scrutiny and the returning officer therefore rightly rejected her
nomination paper. In respect of Hukmi Chand and Suraj Prakash
Joshi, it was pleaded that none of the two candidates were present
before th1'. returning officer at the time of scrutiny and since the entries
D contained in the electoral roll indicated that they were below 25 years of ....
age the returning officer rightly rejected their nomination papers, and
that the rejection of the 3 nomination papers was proper and the result
of the election was not materially affected on account of the rejection of
the name.

IE The High Court allowed the election petition and set aside the
appellant's election. It held that the nomination paper of Smt. Umrao
Ben was validly rejected as she had failed to comply with section 33(5)
of the Representation of Peoples Act inasmuch as she failed to produce
the copy of the electoral roll or a certified copy of the extract relating
to entry of her name in the electoral roll. It further held that the '
f nomination papers of Hukmi Chand and Suraj Prakash Joshi had been ,,
rejected improperly by the Returning Officer as both t.he candidates
had attained the qualifying age of 25 years on the date of nomination.

Aggrieved by the aforesaid judgment, the appellant preferred an
•
appeal to this Court under section 116-A of the Representation of •
G People Act, 1951.

On the questions whether: (1) the returning officer had validly
rejected the nomination papers of Smt. Umrao Ben, Hukmi Chand and
Suraj Prakash Joshi, and (2) the respondent had proved in accordance
with law that Hukmi Chand and Suraj Prakash Joshi whose nomination
H papers were rejected by the Returning Officer had attained the age of
25 years on January 1, 1984.
'-=
B.M. SINGHVI '· ANAND 3

Allowing the appeal, setting aside the order of the High Court and
A
dismissing the election petition, the Court.

HELD: l(a). Section 33 of the Act provides for presentation of
nomination paper and it further lays down the requirements of a valid
nomination. Section 33(5) requires a candidate who is an elector of a
different constituency, to file a copy of the electoral roll of the consti- B
tuency as a certified copy of the relevant entries along with his nomina-
tion paper. If a candidate is unable to comply with these requirements
at the time of filing the nomination paper he is afforded another
opportunity to prove his eligibility by producing a copy of the electoral
roll of the constituency of the relevant part thereof or a certified copy of
the relevant entries of the roll before the returning officer at the time of
scrutiny. [9A-EJ c
(b) The Legislature thus provides two opportunities to such a
candidate for proving his eligibility to contest the election, one at the
time of filing the nomination paper and the other at the stage of
' "' scrutil\Y. If the candidates fail to avail of either of the two opportunities
his nomination paper is liable to be rejected. [9E-F]
D

(c) Non-compliance with section 33(5) is fatal to the nomination
·and no other mode is prescribed by the Act for proving the eligibility of
the candidate. Section 33(5) prescribes a particular mode to prove eligi-
bility of a candidate to contest election and section 36(2)(b) provides E
penal consequences. [IOA]

(d) Section 33(5) of the R.P. Act lays down a mandatory require-
.men! for a valid nomination. The purpose is to satisfy the returning
officer that the candidate is eligible to contest the election and if he
fails to satisfy the returning officer in the manner prescribed, the F
penalty and the consequences which are specified in section 36(2)(b)
must follow. Section 33(5) is not directory instead it is mandatory in
nature. [IOF]

(e) An elector of a different constituency is under a mandatory
duty to prove his eligibility in the manner prescriberl by section 33(5) of G
the Act and if he fails to do that, he must suffer the consequences
contemplated by section 36(2)(b) of the Act. It is not open to a candidate
who fails to comply with section 33(5) to put the blame on the returning
"< officer for the rejection of his nomination paper. The returning officer
is under no legal obligation to make amends for the omission of a
candidate, especially when the omission relates to a mandatory H
requirement. [!OG-IIA]
4 SUPREME COURT REPORTS [1988] Supp. 2 S;$.:.R·

(f) The law does not enjoin the returning officer to send for the
A
electoral roll from his office to verify the eligibility of a candidate. The
law casts a duty on the candidate to satisfy the returning officer by
following one of the three modes prescribed in section 33(5) of the Act
and if he fails to do that the retuning officer is bound to reject the
nomination paper, he has no option in the matter. [l lB]
B
(g) The law does not require the returning officer to send for the
electoral roll of a different constituency for the purpose of verifying the .,.
eligibility of a candidate. [UC]

In the instant case, there is no dispute that Smt. Umrao Ben failed
to comply with the requirement of section 33(5) of the Act as she had
c neither filed a copy of the electoral roll of the constituency or the relevant
part thereof, or the certified copy of the relevant entries along with her
nomination paper. Nor she had produced any of the three documents
before the returning officer at the time of scrutiny. In such circum-
stances the returning officer rightly rejected Umrao Ben's nominatioin
D paper. [lOB]

Sri Baru Ram v. Shrimati Prasanni & Ors., [1959] SCR 1403;
Narbada Prasad v. Chhagan Lal & Ors., [1969] 1 SCR 499; Parmar
Himatsingh Jugatshingh v. Patel Harmanbhai Narsibhai, [1974] 3 SCR
453; Avadh Raj Singh v. fugal Kishore Gupta, [1979] l SCC 228 and
E Ranjit Singh v. Pritam Singh & Ors., [1966] 3 SCR 543, referred to.

2(a) During the scrutiny the Returning Officer is under a statu-
tory duty to satisfy himself that the candidate who may have filed
nomination paper possesses the necessary constitutional qualification
for contesting the election. [14F] \ •
F
(b) Enquiry during scrntiny is summary in nature as there is no
scope for any elaborate enquiry at that stage. Therefore it is open to a
party to place fresh or additional material before the High Court to
show that the Returning Officer's order rejecting the nomination paper
was improper. It should be borne in mind that the proceedings in an
G election petition are not in the nature of appeal against the order of the
returning officer. It is an original proceeding. l 15C l

(c) In the instant case, on the basis of the entries contained in the
electoral roll the Returning Officer held that the two candidates did not ~
possess the requisite qualification of age as required by Article 173 of
H the Constitution to contest the election. Accordingly he rejected both
~ B.M. SINGHVI v. ANAND 5

the nomination papers. In the absence of any material before the re- A
turning officer, the returning officer was not wrong in taking the entries
in the electoral roll into consideration and acting on them. But his
decision is not final. In an election petition it is open to an election
petitioner to place cogent evidence before the High Court to show that
the candidate whose nomination paper was rejected had in fact attained
the age of 25 years on the relevant date. If on the basis of the material B
placed before the High <;:our! it is proved that the candidate whose
.... nomination paper had been rejected was qualified to contest the election
it is open to the High Court to set aside the election. [14G-15B]

3(a) To render a document admissible under section 35 of the
Evidence Act three conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official book, register or
c
record, ·secondly, it must be an entry stating a fact in issue or relevant
fact; and thirdly, it must be made by a public servant in discharge of
his official duty, or any other person in performance of a duty specially
enjoined by law. [21B]
D
.;
(b) An entry relating to date of birth made in the school register is
relevant and admissible under section 35 of the Act, but the entry
regarding the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence of the
material on which the age was recorded. [21C]
E
(c) Parents or near relations having special knowledge are the
best persons to depose about the date of birth of a person. If entry
regarding date of birth in the school's register is made on the informa-
tion given by parents or someone having special knowledge of the fact,
) the same would have probative value. [20A)
F
(d) The date of birth mentioned in the scholar's register has no
evidentiary value unless the person who made the entry or who gave the
date of birth is examined. [20B]

(e) The entry contained in the admission form or in the scholar
register must be shown to be made on the basis of information given by G
the parents or a person having special knowledge about the date of birth
of the person concerned. If the entry in the scholar's register regarding
date of birth is made on the basis of information given by parents, the
·entry would have evidentiary value but if it is given by a stranger or by
·"\ someone else who had no special means of knowledge of the date of
birth, such an entry will have no evidentiary value. [20C) H
6 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A In the instant case, nomination papers of two candidates Hukmi
Chand and Suraj Prakash Joshi were rejected by the Returning Officer
on the ground that they had not attained the age of 25 years at the time
of filing nomination papers. In the election petition copies of extract
of school register, certificate and mark list of Secondary Education
Board were produced. The High Court committed serious error in
B
accepting the dates of birth as mentioned in the documents. The High
Court's entire approach in considering the question of dates of birth
1
was misconceived. The burden to prove this fact in issue was on
the respondent who was the election petitioner. In fact the burden was ...
on him to prove his case by producing Hukmi Chand and Suraj Prakash
Joshi or their parents to prove or corroborate the dates of birth as
c mentioned in the school register and the certificate. No adverse
inference could be drawn against the appellant for not examining
them. [22C-G; 23C-D]

Raja Janaki Nath Roy & Ors. v. Jyotish Chandra Acharya
Chowdhury, AIR 1941 CAL. 41; Jagan Nath v. Moti Ram & Ors.,
D
[1951] Punjab 377; Sakhi Ram & Ors. v. Presiding Officer, Labour
Court, North Bihar, Muzzafarpur & Ors., [1966] Patna 459; Ghanchi •·
Vora Samsuddish lsabhai v. State of Gujarat, [1970] Gujarat 178;
Radha Kishan Tickoo & Anr. v. Bhushan Lal Tickoo & Anr., [1971] J
& K 62; Jagdamba Prasad v. Sri Jagannath Prasad & Ors., 42 ELR
465; K. Paramalali v. L.M. Alangam & Anr., 31 ELR 401; Krishna
E Rao Maharu Patil v. Onkar Narayan Wagh, 14 ELR 386; Brij Mohan
Singh v. Priya Brat Narain Sinha & Ors., [1965] 3 SCR 861; Ram Murti
v. State of Haryana, AIR 1970 SC 1029 and Mohd. lkram Hussain v.
State of U.P. & Ors., AIR 1964 SC 1625, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 574 •
F '
(NCE) of 1987.

From the Judgment and Order dated 18.2.1987 of the Rajasthan
High Court in S.B. Elec. Pein. No. 8 of 1985.

Dr. N.M. Ghatate, S.V. Deshpande and Abhishek Singhvi for
G
the Appellant.

G.L. Sanghi, Jitender Sharma, P. Gaur and M.R. Calla for the
Respondent.

H
The Judgment of the Court was delivered by: "
•

B,M. SINGHVI v. ANAND [SINGH, J.] 7

SINGH, J. This appeal under Section 116-A of the Representa-
A
tion of People Act 1951 (hereinafter referred to as the Act) is directed
against the judgment and order of the High Court of Rajasthan dated
18. 2.1987 setting aside the election of the appellant to the State
Legislative Assembly of Rajasthan from Jodhpur City Assembly
Constituency.
B
Election to the State Legislative Assembly of Rajasthan from the
constituency No. 183 Jodhpur City was held in the year 1985; nomina-
tions papers were filed by 8.2.1985 and the date of scrutiny was
9.2.1985 . .In all 45 candidates filed their nominations. After scrutiny
and withdrawal 21 candidates contested the election, after polling and
counting of votes the appellant was declared elected having obtained · C
majority of votes. Anand Purohit, respondent who is an elector in the
Jodhpur City Constituency No. 183 filed an election petition before the
High Court challenging the appellant's election, on the ground that the
result of election was materially affected on account of improper rejec-
tion of nomination papers of three candidates namely, Smt. Umrao
Ben, Hukmichand and Suraj Prakash Joshi. The respondent pleaded D
that Smt. Umrao"Ben was an elector in Sardarpura Assembly Consti-
tuency, the returning officer wrongly rejected her nomination paper,
without affording opportunity to her to produce a copy of the electoral
roll. He further pleaded that Hukmichand, and Suraj Prakash Joshi
both were more than 25 years of age on the date of their nomination,
yet the returning officer rejected their nomination _papers on the E
ground 'that they were not qualified to be a candidate as they were
below 25 years of age. The appellant contested the election petition.
He asserted that Umrao Ben had failed to file a certified copy of the
relevant entry in the electoral roll of Sardarpura constituency along
with her nomination, she further failed to produce copy of the
electoral roll at the time of scrutiny and therefore the returning officer F
rightly rejected her nomination paper. As regards Hukmichand and
Sura j Prakash Joshi, the appellant pleaded that none of the two candi-
dates was present before the returning officer at the time of scrutiny
and since the entries contained in the electoral roll indicated that they
were below 25 years of age the returning officer rightly reje~ted their
nomination paper. The appellant further asserted that the rejection of G
the three nomination papers was proper and the result of the election
was not materially affected on account of the rejection of the aforesaid
three nomination papers. The High Court held that the nomination
paper of Smt. Umrao Ben was validly rejected as she had failed to
comply with Section 33(5) of the Act inasmuch as she had failed to
produce a copy of the electoral roll or a certified copy of the relevant H
8 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A extract relating to entry of her name in the electoral roll in Sardarpura
constituency. The High Court further held that nomination papers of
Hukmichand and Suraj Prakash Joshi had been rejected improperly by
the returning officer as both the candidates had attained the qualifing
age of 25 years on the date of nomination. On these findings the High
Court set aside the appellant's election by its judgment and order
B dated 18.2.1987. Aggrieved by the said judgment the appellant has
preferred this appeal under Section 116 of the Act.

The controversy in the present appeal relates to the validity of
the orders of the returning officer rejecting the nomination paper of
Smt. Umrao Ben, Hukmichand and Suraj Prakash Joshi. We would
C · first examine the validity of the order of the returning officer rejecting
Smt. Umrao Ben's nomination paper, which was questioned by the
Respondent before us. There is no dispute that Umrao Ben was not an
elector in the Jodhpur City Assembly Constituency No. 183. She was
an elector in Sardarpura Assembly Constituency. In her nomination
paper she had given the details of the relevant entry contained in the
D electoral roll of Sardarpura Assembly Constituency, but her nomina-
tion paper was not accompanied by a certified copy of the relevant
entry in the electoral roll of Sardarpura constituency nor she had pro-
duced a copy of the electoral roll or the relevant part thereof before
the returning officer at the time of scrutiny. Therefore the returning
officer rejected her nomination paper. The High Court held that the
E returning officer had rightly rejected the nomination paper of Umrao
Ben and there was no question of improper rejection of her nomina-
tion paper. Sri G .L. Sanghi, learned counsel for the respondent chal-
lenged the correctness of the High Court's findings on this question.
He urged that since the Returning Officer who was holding the
scrutiny of nomination papers relating to the Jodhpur Assembly
F constituency was also the returning officer of Sardarpura Assembly
constituency ,_he should have verified the entry of Umrao Ben's name
from the electoral roll of Sardarpura Assembly Constituency which
must have been with him. He urged that Umrao Ben's request to verify
entries relating to her name from the electoral roll of Sardarpura
Assembly constituency was ignored by the returning officer, and
G further her request for grant of time to produce electoral roll was also
rejected. He urged that object of Section 35 of the Act was merely to
ascertain as to whether a candidate whose nomination paper was
scrutinised was an elector or not and since the electoral roll of
Sardarpura Assembly Constituency was already with the returning
officer he could have verified the entries from that electoral roll. The
H .returning officer had acted in an unreasonable manner in refusing to
~
' B.M. SINGHVI v. ANAND [SINGH, J.] 9

do that and in rejecting her nomination paper. We find no merit in A
these submissions.

Section 33 of the Act provides for presentation of nomination
paper and it further lays down the requirements of a valid nomination.
Sub-section (5) of the Section 33 is as under:
B
"where the candidate is an elector of a different consti-
... tuency, a copy of the electoral roll of that constituency or
of the relevant part thereof or a certified copy of the rele-
vant entries in -such roll shall, unle•s it has been filed along
with the nomination paper, be produced before the return-
ing officer at the time of scrutiny." c
The above provision requires a candidate who is an elector of a
different constituency, to file a copy of the electoral roll of cons ti-
tuency or a relevant part of that roll or a certified copy of the relevant
entries along with his nomination paper. These documents are neces-
sary to show that the candidate is an elector of a different consti- D
tueocy, and he is eligible .. to contest the election. If a candidate is
unable to comply with these requirements at the time of filing the
nomination paper he is afforded another opportunity to prove his
eligibility by producing a copy of the ele.ctoral roll of the constituency
or the relevant part thereof or a certified copy of the relevant entries of
the roll before the returning officer at the time of scrutiny. The Legis- E
lature pro~ides .two opportunities to such a candidate for proving his
eligibility to contest the election one at the stage of filing the nomina-
tion paper and the other at the stage of scrutiny. If the candidate fails
of avail either of the two opportunities his nomination paper is liable
} to be rejected. Section 36 of the Act provides that on the date of
scrutiny of nomination papers the returning officer shall examine the F
nomination papers and shall decide air objections which may be made
I' to any nomination and he may either on objection or on his own
motion, after holding such summary inquiry, if any, reject any nomi-
nation on the grounds specified in clauses (a), (b) and (c) of sub-section
(2). Section 36(2)(b) provides for the rejection of the nomination
paper on the candidate's failure to comply with any of the provisions of G
Section 33 or Section 34 of the Act. Section 33(5) read with Section
36(2)(b) makes it apparent that if a candidate who is an elector of a
different constituency fails to prove his eligibility in the manner
prescribed by Section 33(5) of the Act, his nomination paper is liable
" to be rejected for the non compliance of Section 33(5) of the Act.
These provisions are plain which admit of no other interpretation. H
JO SUPREME COURT REPORTS [1988] Supp. 2 S.C.R. t

Non-compliance with Section 33(5) is fatal to the nomination and no
A
other mode is prescribed by the Act for proving the eligibility of the
candidate. Section 35(5) prescribes a particular mode to prove eligibi-
lity of a candidate to contest election and Section 36(2)(b) provides
penal consequences. Therefore Section 35(5) is mandatory in nature.
There is no dispute that Umrao Ben failed to comply with the require-
B men! of Section 33(5) of the Act as she had neither filed a copy of the
electoral roll of the constituency or the relevant part thereof, or the
certified copy of the relevant entries along with her nomination paper. .,.
Nor she had produced any of the three documents before the returning
officer at the time of scrutiny. In the circumstances the returning
officer rightly rejected Umrao Ben's nomination paper.
c Shri G.L. Sanghi, learned counsel then urged that Section 33(5)
of the Act was directory and it was open to a candidate to prove his
eligibility by any other mode. He urged that Umrao Ben's request to
the returning officer to verify her entry from the electoral roll of
Sardarpura Assembly Constituency which was in his custody (as he
D was the returning officer of Sardarpura Assembly Constituency also)
was ignored and he refused to grant her time to produce the necessary
documents. In the election petition there was no pleading that Umrao
Ben had made any such request or that the returning officer had
refused to grant her time. The High Court has on appreciation of
evidence held that no request for time was made by Smt. Umrao Ben
E and no request for verifying the entry relating to her from the electoral
roll of Sardarpura Assembly Constituency was made. But even assum-
ing that the returning officer had refused to verify the relevant entries
relating to Umrao Ben from the electoral roll of Sardarpura Assembly
Constituency, he had acted in accordance with law. No exception
could be taken to his conduct. Section 33(5) of the Act lays down a
F mandatory requirement for a valid nomination. The purpose of
Section 33(5) of the Act is to satisfy the returning officer that the ,
candidate is eligible to contest the election and if he fails to satisfy the \
returning officer in the manner prescribed by Section 33(5) of the
Act, the penalty and the consequences which are specified in Section
36(2)(b) must follow. Section 33(5) is not directory instead it is man-
G datory in nature. An elector of a different constituency is under a
mandatory duty to prove his eligibility in the manner prescribed by
Section 33(5) of the Act and if he fails to do that, he must suffer the
consequences contemplated by Section 36(2)(b) of the Act. It is not
open to a candidate who fails to comply with Section 33(5) of the Act
to put the blame on the returning officer for the rejecting his nomina- •
H tion paper. The retuning officer is under no legal obligation to make
B.M. SJNGHVI v. ANAND [SINGH, J.] 11

.amends for the omission of a candidate, especially when the omission A
relates to a mandatory requirements. Apart from this legal aspect,
even on facts, the Returning Officer, in his testimony before the High
Court, had stated that the electoral roll of Sardarpura Assembly Con-
stituency was not with him at the time he had taken up the scrutiny of
nomination paper of Jodhpur City Constituency. The law does not
enjoin the returning officer to send for the electoral roll from his office B
to verify the eligibility of a candidate. The Jaw casts a duty on the
candidate to satisfy the returning officer by following one of the three
modes prescribed in Section 33(5) of the Act and if he fails to do that
the returning officer is bound to reject the nomination paper, he has
no option in the matter. The law does not require the returning officer
to send for the electoral roll of a different constituency for the purpose
of verifying the eligibility of a candidate.
c

In Sri Baru Ram v. Shrimati Prasanni & Ors., [1959] SCR 1403
this Court interpreted Section 33(5) and Section 36(2)(b) and observed
as under:
D
"Section 33(5) requires the candidate to supply the
prescribed copy and Section 36(2)(b) provides that on his
failure to comply with the said requirement his nomination
paper is liable to be rejected. In other words, this is a case
where the statute requires the candidate to produce the
prescdbed evidence and provides a penalty for his failure E
to do so. In such a case it is difficult to appreciate the
relevance or validity of the argument that the requirement
of Section 33(5) is not mandatory but is directory, because
the statute itself has made it clear that the failure to comply
} with the said requirement leads to the rejection of the
nomination paper. Whenever the statute requires a parti- F
cular act to be done in a particular manner and also lays
down that failure to comply with the said requirement leads
to a specific consequence it would be difficult to accept the
argument that the failure to comply with the said require-
ment·should lead to any other consequences.'1'
G
Repelling the argument that failure to comply with the require-
ment of Section 33( 5) was not a defect of substantial nature and the
returning officer could be satisfied by other modes that the candidate's
name was entered as an elector in another constituency, the Court held
that the satisfaction of the returning officer was required to be made in
accordance with the statutory requirement and if a candidate failed to H
t
12 SUPREME COURT REPORTS [ 1988] Supp. 2 S.C.R.

A comply with that requirement the returning officer could not be satis-
fied by any other mode. The Court further held that the failure to
comply with the requirement of Section 33(5) was a defect of substan-
tial nature which could not be ignored under Section 36(4) of the Act.
·1 he view taken in Sri Baru Ram's case (supra) has been followed in
Narbada Prasad v. Chaggan Lal & Ors., [1969] I SCR 499; Parmar
B Himatsingh Jugatsingh v. Patel Harmanbhai Narsibhai, [ 1974].3 SCR
453 and Avadh Raj Singh v. Jugal Kishore Gupta, [1979] 4 SCC 328.
Learned counsel for the respondent sought support from a Constitu- ,__
lion Bench decision of this Court in Ranjit Singh v. Pritam Singh &
Ors., [ 1966] 3 SCR 543 for his submission that failure to comply with
section 33(5) wa> not a defect of substantial character. We have care-
fully gone through the decision but we do not find anything therein to
c support the respondent's contention instead it supports the view taken
by us. In Ranjit Singh's case (supra) a candidate who was not an elector
of the constituency had filed three nomination papers. Along with one
of his nomination paper he had filed a copy of the electoral roll of the
constituency where his name was entered as an elector, with a view to
D comply with the requirement of Section 33(5) of the Act. He had not
filed similar copies along with other two nomination papers. The
nomination paper with which the candidate had filed a copy of the
electoral roll was rejected on the ground of some technical defect but
the other two nominations were rejected on the ground that copy of
the electoral roll was not filed along with them. This Court held that
E the returning officer was wrong in not looking at the copy of the
electoral roll filed with one of the nomination papers. The Court
further held Section 33(5) did not require that a copy must be filed
with each nomination paper or that any copy should be filed at all as it
was open to a candidate to produce the copy before the returning
officer at the time of scrutiny. The Court held that the purpose offiling
F the copy is to ensure that the returning officer was able to check
whether the candidate concerned was qualified or not and that purpose
would be effectively served even if only one copy was filed with one
nomination paper and no copies were filed along with the other nomi-
nation papers. While considering Sections 33(5) and 3q(4) of the Act
the Constitution Bench held that Section 33(5) required that it was the
G copy produced by the candidate which should show that he was quali-
lied or not and for that purpose a copy produced by the candidate
should be complete whether it was of the roll or of the relevant part
thereof. To such a case Section 36(4) had no application. Section 36(4)
provided that returning officer should not reject.any nomination paper \"
on the ground of any defect which was not of a substantial character.
H Non-production of copy of the relevant part was a defect of a substan-
B.M. SINGHVI '· ANAND [SINGH, J.l l3

tial character for it made it impossible to decide whether the candidate A
was qualified or not. Since qualification for contesting election was a
matter of substantial character, the failure to produce a copy of the
electoral roll which was incomplete was a defect of a substantial
character it would invalidate the nomination paper. In this view 'Ye
agree with the High Court that there had been .no improper rejection
of the Umrao Ben's ·nomination paper, as the accidental circumstances 'l

that the returning officer was also the returning officer of the other
constituency should not make any difference.

As regards the rejection of the nomination paper of Hukmi
Chand and Suraj Prakash Joshi are concerned the High Court has held
that none of the two candidates was present before the Returning C
Officer at the time of scrutiny nor any person on their behalf was
present. In his nomination paper Ex. 2 Hukmi Chand had given a
declaration that he had completed 26 years of age while Sura j Prakash
Joshi had given declaration in his nomination paper Ex. 3 that he had
completed 25 years of age. At the time of scrutiny no objection .was
raised against their nomination paper by any party and none appeared D
on behalf of the aforesaid two candidates. The Returning Officer
found that according to the entries in the electoral roll the age of
Hukmi Chand was 23 years similarly in the case of Suraj Prakash Joshi
the entry in the electoral roll indicated that on the relevant date his age
was 22 years. On the basis of the entries contained in the electoral roll
the Returning Officer held that the two candidates did not possess the E
requisite qualification of age as required by Article 173 of the Con-
stitution to contest the election. Accordingly he rejected both the
nomination papers. Before the High Court a controversy was raised as
~ to whether the two candidates were present at the time of scrutiny but
'?n the evidence on record the High Court has held that neither of the
two candidates nor any body on their behalf was present at the time of F
scrutiny. Placing feliance on the oral and documentary evidenc.e pro-
duced by the respondent the High Court has recorded findings that
Hukmichand as well ilS Suraj Prakash Joshi both .ha.d attained the age
of 25 years on the relevant date i. J.1984 and their nomination papers
had been rejected improperly by the Returning officer, which mJL
rially affected the result of the election. G

Dr Chitale learned counsel for ihe app¢llant urged that on the
admitted facts and circumstances the Returning Officer could not be
'( held to have acted improperly in rejetting the nomination papers of
Hukmi Chand and Suraj Prakash Joshi. He urged that since at the time
of the scrutiny neither of the two candidates nor their proposer nor H
14 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A anybody else appeared before the returning officer, or placed any
material before him showing that either of the two -candidates was
qualified to contest the election having attained the age of more than
25 years, the returning officer had no option but to rely on the entries
contained in the electoral roll and therefore the rejection of the nomi·
nation papers of Hukmi Chand and Suraj Prakash Joshi could not be
B said to be improper. Learned counsel further urged that if the return-
ing officer did not act improperly in rejecting the nomination paper of
the aforesaid candidates, appellant's election could not be set aside on
the basis of fresh or additional material placed before the High Court.
Section 36 provides that on the date fixed for the scrutiny of nomfoa-
tion, the candidate, his election agent, proposer or any other person
duly authorised in writing by the candidate may attend the proceedings
c at the time and place fixed for scrutiny. The returning officer is re·
quired to give them all reasonable facility for examining the nomina·
tion paper of all the candidates. Section 36(2) requires the returning
officer to examine the nomination papers and to decide all objections
which may be made to any nomination. He may, either on such objec-
D tion or on his own motion, after such summary inquiry, if any, as he
may think necessary, reject any nomination on any of the grounds
specified under clauses (a), (b) an.<! (c). Clause (d) empowers the
returning officer to reject nomination paper of a candidate if on the
date fixed for the scrutiny of the nomination the candidate is not
qualified or is disqualified for being chosen to fill the seat under any of
E the provisions of Articles 84, 102, 173 and 191 of the Constitution.
Article 173 lays down constitutional qualification for being a Member
of the State Legislature, according to which'a person is not qualified to
be chosen to fill a seat in the Legislature of a State unless he is not Jess
than 25 years of age. During the scrutiny the Returning Officer is
under a statutory duty to satisfy himself that the candidate who may
F have filed nomination paper possesses the necessary constitutional
qualification for contesting the election. In the instant case none of the
two candidates appeared nor any body on their behalf appeared or
placed any material before the returning officer to show that the candi·
dates were not less than 25 years of age on the date of scrutiny
I. I. 1984. No doubt in the nomination papers both the candidates had
G made a declaration that they were not Jess than 25 years of age but
entries pertaining to them in the electoral roll clearly indicated that
they were less than 25 years of age. The returning officer placing
reliance on the entries contained in the public document i.e. the
electoral roll, rejected the nomination paper of the two candidates on
the ground that Hukmi Chand and Suraj Prakash Joshi were not quali-
H fied to contest the election. In the absence of any material before the
B.M. S!NGHVI v. ANAND [SINGH. J.J 15

returning officer, the returning officer was not wrong in taking the A
entries in the electoral roll into consideration and acting on them. But
his decision is not final. In an election petition it is open to an election
petitioner to place cogent evidence before the High Court to show that
the candidate whose nomination paper was rejected had in fact
attained the age of 25 years on the relevant date. It is open to the High
Court to take a final decision in the matter notwithstanding the order B
of the returning officer rejecting the nomination paper. If on the basis
of the material placed before the High Court it is proved that the
candidate whose nomination paper had been rejected was qualified to
contest the election it is open to the High Court to set aside the elec-
tion. Enquiry during scrutiny is summary in nature as there is no scope
for any elaborate enquiry at that stage. Therefore it is open to a party C
to place fresh or additional material before the High Court to show
that the Returning Officer's order rejectig the nomination paper was
improper. It should be borne in mind that the proceedings in an elec-
tion petition are not in the nature of appeal against the order of the
returning officer. It is an original proceeding. In the instant case it was
open to the respondent election petitioner to place material before the D
High Court to show that the two candidates were qualified and their
nomination paper was improperly rejected.

The question then arises whether the respondent has proved in
accordance with law that Hukmi Chand and Suraj Prakash Joshi whose
nomination papers were rejected by the Returning Officer had E
attained the age of 25 years on 1.1.1984. In the election petition the
respondent pleaded that Hukmi Chand's nomination paper was impro-
perly rejected on the basis of entry in the electoral roll which
mentioned his age as.23 years while his correct date of birth was
13.5.1956 as evidenced by the certificate issued by the Head Master of
the New Government School Jodhpur. The respondent had further F
pleaded that the nomination paper of Suraj Prakash Joshi was rejected
on the sole ground that in the electoral roll his age was recorded as 23
,years on 1.1. 1984 but the entries contained in the electoral toll were
not final and conclusive. The date of birth of Suraj Prakash Joshi was
not mentioned in the election petition and there was no further plead-
ing that on the date of filing his nomination Suraj Prakash Joshi had G
actually attained the age of 25 years. However it was pleaded that
since Suraj Prakash Joshi had given a declaration that he had comp-
leted 25 years of age there was no reason to disbelieve him as no
objection had been raised against the declaration made by him and
therefore the returning officer acted improperly in rejecting his nomi-
nation paper. In his written statement the appellant denied the allega- H
16 SUPREME COURT REPORTS (1988] Supp. 2 S.C.R.

A tions made by the election petitioner and asserted that the Returning
Officer acted rightly in rejecting the nomination papers of Hukmi
Chand and Sura j Prakash Joshi as they were not qualified to contest
the election as they had not completed 25 years of age on the date of
nomination. The respondent produced oral and documentary evidence
to support his contention. Even before the High Court none of the two
candidates whose nomination papers were rejected appeared nor their
parents were examined by the respondent nor any person having spe-
'
cial knowledge about the dates of birth of the two candidates was
examined by the respondent. As regards Hukmi Chand the respondent
produced Ex. 8 (a copy of scholars register) Ex. 9 (counter-foil of
certificate of Board of Secondary Education) Ex. 10 (mark-sheet of
Hukmi Chand) Ex. 11 (a copy of counter foil of certificate of Board of
c Secondary Education) relating to Suraj Prakash Joshi, and Ex. 12
(Tabulation record of marks obtained by Suraj Prakash Joshi). These
documents were sought to be proved by Anant Ram Sharma PW 3 and
Kailash Chand Taparia PW 5. Ex. 8 is a copy of the scholars register
issued by the Head of the Government Higher Secondary School and
D entries contained therein show that Hukmi Chand had joined Govern-
ment Middle School Palasani on 24.6.1972 and he had left the same on
10.6.1976 after having passed VIIIth class. In this document 13.6.1956
is mentioned as the date of birth of Hukmi Chand son of Sardar Mal.
Ex. 9 is a certificate issued by the Board of Secondary Education
Ra jasthan certifying that Hukmi Chand Bhandari son of Sardar Mal
E Bhandari passed Secondary School Examination of 1974 from
New Government Higher Secondary School Jodhpur, it also shows
13.6.1956 as date of birth of Hukmi Chand. Ex. 10 is a tabulation
record containing the details of the marks obtained by Hukmi Chand
at the Secondary School Examination 1974. In this document also his
date of birth is mentioned as 13.6.1956. Placing<reliance on these three
F documents the High Court held that Hukmi Chand's date of birth was
13.6.1956 and therefore his age on 1.1.1984 was more than 25 years.
The High Court further held that view of the entry in Ex. 11, certifi-
cate issued by the Board of Secondary Education Ra jasthan Sura j
Prakash was born on 11.3.1959 and therefore he was qualified to con-
test the election as he was not less than 25 years of age. On these
G findings the High Court held that the respondent had successfully
proved that the nomination papers of Hukmi Chand and Sura j Prakash
Joshi had been wrongly rejected.

Before the High Court appellant raised a contention that there
was no evidence to prove that Ex. 8, 9, 10, 11 and 12 related to Hukmi
H Chand and Suraj Prakash Joshi and therefore the documents co.uld not
B.M. SINGHVI v. ANAND [SINGH, J.] 17

be pressed into service. A further contention was raised that the elec-
tion petitioner had failed to place any evidence before the Court to
show that entries of age in the documents Ex. 8, 9, 10, 11 and 12 had
been made on the basis of information furnished either by the parents
or by any one else having special knowledge about the date of birth of
Hukmi Chand and Suraj Prakash Joshi. In the absence of such evi-
dence the entries in the documents had no evidentiary or probative B
value. The High Court rejected this submission on the ground that the
appellant had raised no such plea in his written statement nor he
produced any evidence to prove that the documents did not pertain to
Hukmi Chand or Suraj Prakash Joshi or that any other persons having
the same parentage by the name of Hukmi Chand and Suraj Prakash
Joshi existed. The High Court committed error. The question of
appreciation of evidence is not to be pleaded instead it was the duty of c
the Court to consider whether the documents produced by the respon-
dent proved the facts in issue. As regards the evidentiary value of Ex.
8, 9, 10, 11 and 12 the High Court took note that there was no evidence
as to who gave the information regarding the date of birth of Hukmi
Chand at the time of his admission in Government Middle School D
Paslasani and even the initial application form for admissi_on to the
school was not produced and subsequent form for admission to the
Government Multi-purpose Higher Secondary School Jodhpur from
where he passed the Secondary examination was also not produced, as
it observed "No attempt was made by the parties to get the application
form for admission and transfer certificate produced from the New E
Government Higher Secondary School Jodhpui- and similarly no appli-
cation form for admission was got produced from the Government
Middle School, Palasni. But still it can be presumed that the date of
birth recorded in the Scholar's Register is based on the date of birth
given in the application form initially submitted at Palasni and
continued in the transfer certificate and the same was mentioned at the F
time of admission in the Government Multipurpose Higher Secondary
School, Jodhpur" (emphasis supplied). After making the aforesaid
observations the High Court held that these documents were public
documents within the meaning of Section 74 of the Evidence Act and
"' therefore there was a presumption about the correctness of the date of
' birth mentioned therein. The High Court was c.onscious of the fact that G
in the absence of the evidence of the person who may have given
information regarding the date of birth, the entries contained in the
scholar's register or certificate had no probative value as would be
clear from the following observations: "It is true that it would have
been better if the person who gave the information regarding the date
of birth would have been examined but failure to examine· such a H
18 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A person would not in any way affect the genuineness of the entries and
also their probative value unless in comparison to these entries, any
other weighty evidence having greater probative value is produced
(emphasis supplied). The entry in the scholar register may be con-
tradicted by the birth entry or entry in the vaccination register or
reliable horoscope or any other reliable or weighty oral or docu-
B mentary evidence but in the absence of such contradicting weighty
evidence, the entries in the scholar register and other records of the
educational institution would, in my opinion, certainly enjoy such -
probative value."

After making aforesaid observations the High Court held that
in view of the Ex. 8, 9, 10, 11 and 12 the election petitioner had
c discharged the burden in proving that Hukmi Chand and Suraj Prakash
Joshi both had attained the age of 25 years on the relevant date. The
High Court drew adverse inference against the appellant on the
ground that though Hukmi Chand and Suraj Prakash Joshi had been
cited as witnesses by the appellant but they were not examined. The
D High Court proceeded on the assumption that if these witnesses had
bee.n examined they would not have supported the respondent. After
drawing adverse inference against the appellant and placing reliance
on the aforesaid documentary evidence the High Court. held that
Hukmi Chand and Suraj Prakash Joshi both were qualified to contest
the election as they had completed 25 years of age on 1.1.1984 and the
E returning officer had improperly rejected their nomination papers
which materially affected the result of the election. The High Court in
our opinion committed serious error of law in appreciating the
evidentiary value of the documentary evidence produced by the
respondents as a result of which its findings are not sustainable.

p We would now consider the evidence produced by the respon-
dent on the question of age of Hukmi Chand and Suraj Prakash Joshi.
The respondent examined Anantram Sharma PW 3 and Kailash
Chandra Taparia PW 5. Anantram Sharma PW 3 has been the Princi-
pal of New Government Higher Secondary School, Jodhpur since 1984.
On the basis of the scholar's register he stated before the High Court •
G that Hukmi Chand joined school on 24.6.1972 in 9th class and his date
of birth as mentioned in scholar's register was 13.6.1956. He made this
statement on the basis of the entries contained in the scholar's register
Ex. 8. He admitted that entries in the scholar's register are made on
the basis of the entries contained in the admission form. He could not
produce the admission form in original or its copy. He stated that
H Hukmi Chand was admitted in 9th class on the basis of transfer certifi-
-l
B.M. SINGHV! v. ANAND [SINGH, J.] 19

cate issued by the Government Middle School, Palasni from where he
A
had passed 8th standard. !;le proved the signature of Satya Narain
Mathur the then Principal who had issued the copy of the scholar's
register Ex. 8. Satya Narain Mathur was admittedly alive but he was
not examined to show as to on what basis he had mentioned the date of
birth of Hukmi Chand in Ex. 8. The evidence of Anantram Sharma
merely proved that Ex. 8 was a copy of entries in scholar's register. His B
testimony does not show as to on what basis the entry relating to date
.....
of birth of Hukmi Chand was made in the scholar's register. Kailash
Chandra Taparia PW 5 was Deputy Director (Examination) Board of
Secondary Education, Rajasthan, he produced the counter foil of
Secondary Education Certificate of Hukmi Chand Bhandari, a copy of
which has been filed as Ex. 9. He also proved the tabulation record of
the Secondary School Examination 1974, a copy of which has been c
filed as Ex. 10. In both these documents Hukmichand's date of birth
was recorded as 13.6.1956. Kailash Chandra Taparia further proved
Ex. 11 which is the copy of the tabulation record of Secondary School
Examination of 1977 relating to Suraj Prakash Joshi. In that document
'• the date of birth of Suraj Prakash Joshi was recorded 11.3.1959. D
Kailash Chandra Taparia stated that date of birth as mentioned in the
counter foil of the certificates and in the tabulation form Ex. 12 was
recorded on the basis of the date of birth mentioned by the candidate
in the examination form. But the examination form or its copy was not
produced before the Court. In substance the statement of the
aforesaid two witnesses merely prove that in the scholar's register as E
well as in the Secondary School examinatiion records the date of birth
of a certain Hukmi Chand was mentioned as 13.6.1956 and in the
tabulation record of Secondary School Examination a certain Suraj
) Prakash Joshi's date of birth was mentioned as 11.3.1959. No evidence
was produced by the respondent to prove that the aforesaid documents
related to Hukmi Chand and Suraj Prakash !oshi who had filed nomi- F
nation papers. Neither the admission form nor the examination form
on the basis of which the aforesaid entries relating to the date of birth
of Hukmi Chand and Suraj Prakash Joshi were recorded was produced
before the High Court. No doubt, Exs. 8, 9, 10, 11and12 are relevant
and admissible but these documents have no evidentiary value for
purpose of proof of date of birth of Hukmi Chand.and Suraj Prakash Joshi G
as the vital piece of evidence is missing, because no evidence was
placed before the Court to show on whose information the date of
birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi
were recorded in the aforesaid document. As already stated neither of
"" the parents of the two candidates nor any other person having special
knowledge about their date of birth was examined by the respondent H
20 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

to prove the date of birth as mentioned in the aforesaid documents.
A
Parents or near relations having special knowledge are the best person
to depose about the date of birth of a person. If entry regarding date of
birth in the scholars register is made on the information given by
parents or some one having special knowledge of the fact, the same
would have probative value. The testimony of Anantram Sharma and
B Kailash Chandra Taparia merely prove the documents but the contents
of those documents were not proved. The date of birth mentioned in
the scholar's register has no evidentiary value unless the person who
made the entry or who gave the date of birth is examined. The entry
contained in the admission form or in the scholar register must be
shown to be made on the basis of information given by the parents or a
person having special knowledge about the date of birth of the person
c concerned. If the entry in the scholar's register regarding date of birth
is made on the basis of information given by parents, the entry would
have evidentiary value but if it is given by a stranger or by someone
else who had no special means of knowledge of the date of birth, such
an entry will have no evidentiary value. Merely because the documents
D Exs. 8, 9, 10, 11 and 12 were proved, it does not mean that the con-
tents of documents were also proved. Mere proof of the documents
Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the
contents or the correctness of date of birth stated in the documents.
Since the truth of the fact, namely, the date of birth of Hukmichand
and Suraj Prakash Joshi was in issue, mere proof of the documents as
E produced by the aforesaid two witnesses does not furnish evide{lce of
the truth of the facts or contents of the documents. The truth or
otherwise of the facts in issue, namely, the date of birth of the two·
candidates as mentioned in the documents could be proved by admissi-
ble evidence i.e. by the evidence of those persons who could vouch
safe for the truth of the facts in issue. Np evidence of any such kind was
F produced by the respondent to prove the truth of the facts, namely, the
date of birth of Hukmi'Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as mentioned 'in the aforesaid docu-
ments have no probative value and the dates of birth as mentioned
therein could not be accepted.

G The High Court held that in view of the entries contained in the
Ex. 8, 9, 10, 11and12 proved by Anantram .Sharma PW 3 and Kailash
Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj
Prakash Joshi was·proved and on that assumption it held that the two
candidates had attained more than 25 years of age on the date of their
nomination. In our opinion the High Court committed serious error.
H Section 35 of the Indian Evidence Act lays down that entry in any
B.M. SINGHVI '· ANAND [SINGH, J.] 21

public, official book, register, fecord stating a fact in issue ·6r relevant A
fact and made by a public servant in the discharge of his official duty
specially enjoined by the law of the country is itself the· relevant fact.
To render a· document admissible under Section 35, three conditions
must be satisfied, firstly, entry that is relied on must be one in a public
or other official book, register or record, secondly, it must be an entry
stating a fact in issue or relevant fact; and thirdly, it must be made by a B
public servant in discharge of.his official duty, or any other person in
performance of a duty specially enjoined by law. An entry relating to
date of -birth made in the school register is relevant and admissible
under Section 35 of the Act but the entry regarding to the age of a
person in a school register is of not much evidentiary value to prove
the age of the person in the absence of the material on which the age
was recorded. In Raja Janaki Nath Roy & Ors. v. Jyotish Chandra
c
Acharya Chowdhury, AIR 1941 CAL. 41 a Division Bench of the
Calcutta High Court discarded the entry in school register about the·
age of a party to the suit on the ground that there was no evidence to
show on what material the entry in the register about the age of the
plaintiff was made. The principle so laid down has been accepted by· D
almost all the High Courts in the country, see Jagan.Nath v. Moti Ram
& Ors., [1951] Punjab 377; Sakhi Ram & Ors. v. Presiding Officer,
Labour Court, North Bihar, Muzzafarpur & Ors., [1966] Patna 459;
Ghanchi Vora Samsuddish Jsabhai v. State of Gujarat, [1970] Gujarat
178 and Radha Kishan Tickoo & Anr. v. Bhushan Lal Tickoo & Anr.,
[1971] J & K 62. In addition to these decisions the High Courts of E
Allahabad, Bombay, Madras have considered the question of proba-
tive value of an entry regarding the date of birth made in the schola.r's
register or in school certificate in election cases. The Courts have
consistenly held that the date of birth mentioned in the scholar's regis-
ter or secondary school certificate has no probative value unless either
the parents are examined or the person on whose information the F
entry may have been made, is examined, see Jagdamba Prasad v. Sri
Jagannath Prasad & Ors., 42 ELR 465; K. Paramalali v. L.M.
Alangam & Anr., 31ELR401 and Krishna Rao Maharu Patilv. Onkar
Narayan Wagh, 14 ELR 386.

In Brij Mohan Singh v .. Priya Brat Narain Sinha & Ors., [1965] 3 G
SCR 861 a question arose whether the returned candidate had attained
the age of 25 years on the date of his nomination. The High Court had
:;et aside the election of the returned candidate on the ground that he
was below the age of 25 years on the date of filing the nomination. This
Court set aside the order of the High Court and upheld the election of
the returned candidate on the ground that the burden of proving that H
22 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

the returned candidate had not attained the age of 25 years on the date
A
of his nomination was on the election petitioner and since he had failed
to prove that, the election of the returned candidate could not be set
aside. This Court held that an entry recorded in the birth register
maintained by an illiterate Chowkidar by somebody else at his request,
was not admissible and had no probative value within Section 35 of the
B Indian Evidence Act. In Ram Murti v. State of Haryana, AIR 1970 SC
1029 the date of birth of a girl mentioned in the school certificate was
not accepted. However in Mohd. lkram Hussain v. State of U.P. &
Ors., AIR 1964 SC 1625 this Court accepted the date of birth of a girl
as mentioned in the school certificate as the date of birth mentioned
therein was supported by an affidavit filed by the father of the girl.
c The appellant was declared elected as he had polled majority of
valid votes. His election could not be set aside unless the respondent-
election petitioner was able to prove that Hukmichand and Suraj
Prakash Joshi had attained the age of 25 years on the date of nomina-
tion by producing cogent and reliable evidence before the High Court.
D The burden to prove that fact was on the respondent throughout and
he could not and did not discharge that burden merely by producing
the documentary evidence Ex. 8, 9, 10, 11 and 12 or on the basis of
oral testimony of Anantram Sharma PW 3 and Kailash Chandra
Taparia PW 5. As discussed earlier these documents do not conclu-
sively prove the dates of birth of Hukmi Chand and Suraj Prakash
E Joshi. The entries regarding dates of birth contained in the scholar's
register and the secondary school examination have no probative
value, as no person on whose information the dates of birth of the
aforesaid candidates was mentioned in the school record was
examined. In the absence of the connecting evidence the documents
produced by the respondent, to prove the age of the aforesaid two
F candidates have no evidentiary value. The High Court committed seri-
ous error in accepting the dates of birth as mentioned in the aforesaid
documents. In our view the High Court's entire approach in consider-
ing the question of dates of birth was wholly misconceived. The burden
to prove the fact in issue, namely, the dates of birth of Hukmichand
and Sura j Prakash Joshi was on the respondent who was the election
G petitioner. The respondent could not succeed if no evidence was pro-
duced by the appellant on the question of age of the aforesaid candi-
dates and his election could not be set aside merely on the ground that
the respondent had made out a prima facie case that the rntry con-
tained in the electoral roll regarding the age of two candidates was
incorrect. It appears that in his list of witnesses the appellant had
H included the name of Suraj Prakash Joshi and his father Maghdutt
B.M. S!NGHVI v. ANAND [SINGH, J.l 23

Joshi as witnesses but they were not examined by him. Similarly, A
Hukmi Chand was also cited· by the ·appellant but he was also not
examined instead Navratan Mal Bhandari, brother of Hukmi Chand
was examined as PW 4 and Ghanshyam Chhangani was examined as
PW 6 by the appellant, who supported the appellants case that Hukmi
Chand and Suraj Prakash Joshi had not attained the age of 25 years on ·B
the date of nomination. Since the appellant had not examined Hukmi
Chand, Suraj Prakash Joshi or their parents, the High Court drew
adverse inference against him. The High Court committed serious
error in doing so. There was no question of drawing adverse inference
against the appellant, as the burden to prove the age of Hukmi Chand
and Suraj Prakash Joshi was on the election petitioner and since he
had failed to prove the same by cogent evidence no adverse inference C
could be drawn agianst the appellant. In fact, burden was on the
respondent to prove his case by producing the Hukmichand and Suraj
Prakash Joshi, or their parents to prove and corroborate the dates of
birth as mentioned in the school register and the certificate. If he failed
to do that he could not succeed me~ely because appellant had not
produced them. In the circumstances no adverse inference was at all D
possible to be drawn against the appellant for not examining Hukmi
Chand and suraj Prakash Joshi or their parents.

In view of the above discussion we are of the opinion that Umrao
Ben's nomination paper was rightly rejected and further the respon-
dent has failed to prove. that Hukmi Chand and Suraj Prakash Joshi E
possessed the necessary age qualification as required by Article 173 of
the Constitution. Therefore the returning officer was justified in
rejecting their nomination paper. In this view the High Court wrongly
set aside the appellant's election. We accOFdingly allow the appeal set
aside the order of the High Court and dismiss the election petition.
The appellant is entitled to costs which we quantify at Rs. 5,000. F

N.V.K. Appeal allowed.