- (1.) THIS appeal is directed against the judgment and order of the Election Tribunal, jaipur City, dated the are April, 1963, by which the election of the appellant, Shri shiv Ram, to the Legislative Assembly of this State, at the last General Election was declared to be void. Both the appellant and the respondent, along with certain otner persons with whom we are not concerned in this appeal, stood as candidates for election to the Rajasthan Legislative Assembly from the Mahuwa Constituency. The appellant was declared successful on the 26th February, 1962, and the respondent was defeated. Thereupon, the latter filed the election petition out of which this appeal arises on the 11th April, 1962. Tne sole ground on which this petition was filed was that on the date of the election, the appellant was not qualified to stand for the same as he was of less than the minimum age of 25 years prescribed for this purpose by article 1/3 of the Constitution. According to the respondent, the appellant's date of birth was the 10th January, 1941, and consequently it was contended that he had not completed (sic) of 25 years on the date of the election, This petition was opposed by the appellant. The stand taken by the appellant was and is that his correct date of birth was the 4th August, 1935, and not the 10th January, 1941, and, therefore, he was more than twenty-five years of age at the relevant time. In support of this submission, the appellant further contended that he had been functioning as a coupled member of the Panchayat Samiti Toda Bhim for the last one and a half year, the minimum age prescribed for such membership being twenty-five years according to the Rajastnan fan-chayat Samitis and Zila Parishads Act, 1959, and tnat no body nad objected to his election as such co-opted member. Furthermore, the appellant pleaded Wat neither the respondent nor any other candidate had raised any objection as respects his age at the time of the scrutiny of the nomination papers, for all these persons knew, that the appellant was more than twenty-five years of age at tne material time. Lastly, the appellant contended that as his age was mentioned as twenty-five years in the Electoral ROII or 1959 and no objection had ever been filed by any one against that entry, it became final under the Registration of Electoral Rules, 1960, and, therefore, the election petition deserved to be dismissed with special costs to the appellant. As a result of the enquiry which was held by the Election Tribunal, it has been held that the appellant was proved to have been born on the 10th January, 1941, and not on the 4th August, 1935, and, consequently, he had not attained the age of twenty-five years at the date of his election; and that being so, he was not qualified to be chosen to fill a seat in the Legislative Assembly of the State. In this view of the matter, his election was declared to be void. It is this order which is sought to be challenged by the present appeal.
(2.) BEFORE we proceed to dispose of the appeal on the merits, we may clear up a small point as to the material point of time at which a candidate for election must nave completed the minimum prescribed age of twenty-five years. It seems to have beien supposed by everyone before the Election Tribunal that this material point of time was the date of election. This does not appear to us to be correct in view of Clause (a) of Sub-section (2) of Section 36 of the Representation of the people Act, 1951 (Act No. XLIII of 1951, hereinafter referred to as the Act of 1951) which, inter alia provides that a nomination paper may be rejected on the ground that, on the date fixed for the scrutiny of nominations, the candidate does not fulfil the required qualifications including that of age. That being so, the correct point of time with reference to which the eligibility of a candidate to stand lor election has to be tested is the possession or otherwise of a qualification or a disqualification with reference to the date fixed for the scrutiny of the nominations. Having regard to this requirement of law, the correct issue that arises for determination in a case like this was and would be whether the appellant had completed the age of 25 years on the date fixed for the scrutiny of nomination papers and not any other date. But this is really immaterial so far as the present case is concerned because the Tribunal has found that the appellant had not completed the prescribed age of twenty-five years even on the date of the election which fell after the date fixed for the scrutiny of the nomination papers.
(3.) BE that as it may, the Election Tribunal in coming to the conclusion that the appellant failed to fulfil the minimum qualification as to age seems to have relied on the following evidence: (1) Ex. P-7. This is an entry at No. 396 in the Admission Register of what was the Toda Bhim Middle School in 1950, and it is stated therein that the appellant was admitted to the second class on the 5th January, 1950, and his date of birth is mentioned as the 10th January, 1941, and his age at the time of admission as nine years only. (2) Ex. P-8. This is an entry at No. 685 in connection with the readmission of the appellant to the same school on the 25th January, 1952. It may be explained that it appears from the entry mentioned in the foregoing paragraph that the appellapt had left this school on the 29th September, 1951. In this, entry also, the date of birth of the appellant has been mentioned as the 10th January, 1941, and his age at the time of re-admission as eleven years. (3) Ex. P-1. This is a further entry relating to the appellant in the scholars' register of what had then become the Government High School, toda Bhim, the former middle school having been so upgraded, and the appellant has been referred to as scholar No. 92. In this Entry, as it originally stood, the appellant's date of birth is also mentioned as the 10th January, 1941, and his age at the time of the last admission to this institution was entered as eleven years. This entry, however, came to be corrected by the Headmaster Bhagwat Prasad P. W. 2 in December, 1960 and it bears an endorsement in red ink that the date of his birth was changed to the 4th August, 1935. and his age at the time of admission to 16 years as per orders of the Inspector of Schools, Kar-auli dated 3-12-60 (attached herewith ). This endorsement is dated the 8th december, 1960. (4) Ex. P-6. This is a declaration to the school authorities which is alleged to have been written in the handwriting of the appellant and purports to have been signed by his father Bhonri-lal, and was obviously made in November, 1958, as a step for the appellant being able to sit at his Matriculation Examination in March or April, 1959. The date of birth of the appellant is mentioned in this document as the 10th January, 1941, in English, and there is evidence on the record to show that this was written by some assistant teacher of the school. There is, however, a clear wording in this declaration to indicate that the date of birth of shivram as mentioned in the school records was correct. (5) Ext. P-9. This is an application of the appellant to the Board of secondary Education, Rajas-than, for permission to appear at the ensuing High School Examination. Below the application which is signed in full by Shivram, there is the certificate of the Headmaster, government High School, Toda Bhim, Bhagwat Prasad (P. W. 2) that the date of birth of Shiv Ram according to the register of the institution was the 10th January, 1941. (6) In addition to this, the Tribunal relied on the evidence of Bhagwat prasad P. W. 2 who worked as Headmaster of the Toda Bhim High school from 1954 to the middle of 1962 and Giriraj Prasad (P. W. 7) who worked as Headmaster of the Toda Bhim Middle School (as it then was)from July, 1949 to October, 1951, and the Inspector of Schools Shri anant Shanker Mabuwa (P. W. 8 ). The first two witnesses gave evidence with respect to the date of birth of the appellant that was mentioned in the school records and the Headmaster Bhagwat Prasad also deposed to the correction that had been made by him in accordance with the order of the Inspector of Schools, and the Inspector Anant Shanker was examined as regards the powers of the holder of that office to change of correct the date of birth of a boy who had already taken a High School examination. According to this witness, the Inspector had no authority to order any correction in such a case. ;