{"id":58144,"date":"1982-10-28T00:00:00","date_gmt":"1982-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijaya-kari-vs-kondamuri-swarnalatha-and-anr-on-28-october-1982"},"modified":"2015-11-20T21:20:53","modified_gmt":"2015-11-20T15:50:53","slug":"vijaya-kari-vs-kondamuri-swarnalatha-and-anr-on-28-october-1982","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijaya-kari-vs-kondamuri-swarnalatha-and-anr-on-28-october-1982","title":{"rendered":"Vijaya Kari vs Kondamuri Swarnalatha And Anr. on 28 October, 1982"},"content":{"rendered":"
Andhra High Court<\/div>\n
Vijaya Kari vs Kondamuri Swarnalatha And Anr. on 28 October, 1982<\/div>\n
Equivalent citations: AIR 1983 AP 181<\/div>\n
Author: R Rao<\/div>\n
Bench: Raghuvir, R Rao<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Rama Rao, J.   <\/p>\n
 1.  This appeal arises our of an election petition filed to set aside the election for 50th division   of  visakhapatnam Municipal corporation.\n<\/p>\n
 2.  The essential averments may be stated : the appellant is Ist respondent in O.P. 1\/1981  on file of the  election  Tribunal Municipal  corporation of Visakhapatnam.  The notification dated 3rd  August.  1981  for  elections to the  Visakhapatnam  Municipal corporation was issued  pursuant to Act 9 of  1979  constituting Visakhapatnam  Municipality as a corporation on the basis  of the said  notification the  special officer published  the calendar of election events on 4-8-1981  notifying that the nominations should be  filed between  4-8-1981  to 10-8-1981  and the date for  scrutiny of nominations was fixed on 11-8-1981  and the date of polling  was seheduled  on 27-8-1981.  Kondamuri  swarnalatha (petitioner in the election petition) smt.  Vijaya Kari (1st respondent in election  petition) and Smt. Devki pasupuleti (end  respondent) filed nominations for 50th Division.  The  1st respondent filed the nomination on 7-8-1981  stating her  age as 19 years  in  accordance with  the age as 19 years in accordance with the age entered in electoral  roll.  The  returning officer returned the nomination on the ground tha the candidate  did not  attain the age of  21 yrs.  On the notifying  date  as provided in S. 21 of the  Hyderabad Municipal corporation Act and  therefore she is  not eligible to contest for  the  election Thereupon the  1st respondent filed  application dated 7-8-1981  before  the  electoral   registration officer for  correcting her age as 23 in the  place of  19 nd in  support  of this application  produced the extract  of entires in Matriculation examination certificate indicating  her date  of  birth as 15-4-1958  and the marriage certificate issued by the collector.  On the  perusal of these documents   the  Electoral  officer passed an order that her age should be corrected as sought for and the amended electoral voters’ List also was issued.  There after the  Ist respondent filed nomination on 10-8-1981  mentioning her  age and also enclosing  the amended  electoral  roll and the age mentioned in the nomination form satisfied the  requirement of  S. 21 of the Act.  The  objections were filed by the  petitioner and another stating that the actual date of birth of the ist  respondent is  15-4-1962  and therefore her nomination should not  have  been accepted after  hering  both  sides the Returning   officer overruled the objections and accepted the nomination  on the  strength of the  documents  filed before  him and the amended electoral  roll  appended to  the  nomination form.  The elections were  conducted on 27-8-1981  and in the elections the petitioner ist respondent and 2nd   respondent contested the election.  In the  count conducted on  28-8-1981 the Ist  respondent  secured 1337  votes and the  petitioner polled 1320  and  the 2nd  respondent secured 604 votes and the Ist respondent was declared duly elected councillor  for  50th  Division.  The  petitioner filed the petition  to set aside the election   of the  ist  respondent as her nomination is  ab initio void as she was underaged on the date of the filing  the nomination.  The amended electoral   roll   cannot be acted  upon  as she secured the amendment on the basis  of false and fabricated matriculation certificate.  The  acceptance of the nomination by the  returning  officer is illegal as  he also  relied upon false and fabricated documents.  As  the  nomination  of Ist respondent is ab initio void  her election is liable  to be set aside and  the  petitioner should be declared as duly  elected as she  secured   the maximum  number of votes next to  ist  respondent.\n<\/p>\n
 3.  This petition is resisted by the ist respondent on several grounds. It is pleaded  that the tribunal has no jurisdiction to go behind the electoral  rolls  or  the amended  electoral rolls and  the  Tribunal   has to  deal only with  the incidents that cropped up  from  the date of  nomination.   Further the petitioner is not competent to question the qualification or disqualification  of the Ist respondent, who  has been  duly elected before  the tribunal   since  the commissioner or corporator alone  can take  such objections before   the tribunal   constituted under section  86   of the Act the  tribunal is   not competent to go  into  the question  of any wrongful  entries or corrections in the electoral rolls.  Further   this petition is bad for non-joinder of the necessary parties as the election  Registration  officer and  the  Returning  officer are not made necessary parties.  The  Ist respondent was 23 years old  on all material  dates i.e.   the  date  of nomination date of scrutiny and day of  declaration of results on 28-8-1981  and is therefore  competent to contest for the councillorship.  It is  further stated that the   I st  respondent   was born on 18-8-1959  and the 5th  child  and rist female child of her  parents soorla paul and santamma,  who were  converted christians from the  scheduled caste community.  The Ist respondent was not  named immediately  after birth but she  was called catherina  affectionately  by her brothers and parents and subsequently she was named as Deevana varaprasad vijaya Kumari the father of the Ist  respondent was employed in the  Hindustan shipyard Limited and was entitled  for a  permanent  service record in 1961.  The  ist respondent’s last sister mari sundari ratnakumari was born  on 17-9-1962, when  Ist respondent was about 6 years old her  parents admitted her in first class in Gandhigram vidhyanilayam in 1965  mentioning her real date of birth as 18-8-1959  Because of poverty the ist respondent  discontinued her studies in 1967  at the instance of her  parents and  in 1968  she was once again admitted in the first class in the same  school and  she  studied there till  she  discontinued in  1969, again she was  admitted  in 4th class in 1971  and studied  up to Intermediate class.  After   first discontinuation when she  was admitted and readmitted,  the ist respondent learnt that  her parents or guardian gave  incorrect underaged dates of births to suit age requirement for admission and  further education the  incorrect date of birth given at the time of second  re-admission was  carried right through till she  discontinued her studies after intermediate class.  During her education she professed  and followed the  original religion   of her  community person sri kari Trilochan Rao on 22-7-1979.  After she discovered that  her  correct age was not mentioned  in the electoral rolls for  50th division, she  moved the electoral registration officer for correction  of   the age  and the electoral   Registration authority after verification of records corrected the age  as sought for.  On 10-8-1981  she  filed the nomination papers complying with the necessary requirements and on 11-8-1981  the Returning officer after satisfying himself  regarding  the age accepted the nomination the ist respondent  did not mislead the electoral Registration officer or the returning officer.  The allegation regarding  the filing  of the nomination and the return of the same on the ground of underage and  raising  the objection on 11-8-1981  by the  petitioner against  the nomination of Ist  respondent and the she was  disqualified as underaged and that  the amended electoral roll is  null and void are denied.\n<\/p>\n
 The  Electoral registration officer corrected the  mistake regarding the age  after enquiry on 7-8-1981.  The ist respondent  never produced any fabricated certificate before  the  Electoral  registration officer and the petitioner did not raise any objection in the  presence of this respondent  by filing any objection memo.  The Ist respondent did not  make   a false  declaration that she belongs to scheduled castes and that she deposited Rs. 100\/-  but not Rs. 50\/-  In any event, the petitioner is not entitled to the declaration that she  is  duly elected in the  event  of  setting  aside the election since it cannot be  predicated that she  would have polled the votes polled by the ist respondent.\n<\/p>\n
 4.   The 2nd  respondent filed a counter supporting the petitioner with regard to the grounds for setting aside the election.   She  further  pleaded that  the  scrutiny of  the nomination  of the  contesting candidates was not done  according  to law and   the  elections were not held  in  accordance with the procedure prescribed by law.  The petitioner and Ist respondent polled many  fictitious votes and  thus  violated the  election rules.  The  petitioner is not entitled to the relief that she  should be declared as elected in the  event of setting  aside the election as  such relief cannot  be granted because  the contesting candidates are three  in number.\n<\/p>\n
 5.  On the basis of these pleadings the following  points were  framed for enquiry.\n<\/p>\n
 1.  Whether the amended electoral roll is not entitled to be acted upon for the  reason  that necessary enquiry was not made by the  competent electoral   authority and the  competent electoral authority did not follow  the  relevant  provisions relating to rectification of the  electoral roll  with regard to the any of  alleged mistakes?\n<\/p>\n
 2.  Whether the acceptance of the nomination of R-1 is not valid for the reason that R-1 did not satisfy the  requirements of the mandatory provisions of section 21 of the   Hyderabad Municipal  corporation Act and the scrutiny authority relied upon irrelevant  illegal  and  false documents?\n<\/p>\n
 3.  Whether R-1’s date of birth is 18-8-1959  as pleaded by R-1?\n<\/p>\n
 4.  Whether this election petition is bad for non-joinder of necessary parties i.e,  the  electoral  authority who  amended the electoral rolls and the  scrutiny officer?.\n<\/p>\n
 5.  Whether this Tribunal is incompetent to deal with any of the matters relating to preparation of electoral rolls,  receiving nomination papers and scrutiny thereof and the  Tribunal has to confine itself  to consideration of  matters arising  in the  course of  election  subsequent to the  acceptance of the nomination?\n<\/p>\n
 6.  Whether R-1 is a member of the scheduled castes and whether she deposited Rs. 100\/-  as pleaded by her?\n<\/p>\n
 7.  Whether the election of R-1 in  ab initio  void for the  reason that her  nomination is illegally accepted?\n<\/p>\n
 8.  If  point 7 is answered in the  affirmative whether  petitioner is entitled to a declaration that  she  is duly elected?\n<\/p>\n
 9.  Whether any false and fictitious votes were got   polled by petitioner and R-1 as pleaded by R-2 and such a plea  is in  time?\n<\/p>\n
 10.  Whether second  respondent cannot object to petitioner’s plea  that  she  may be declared to have been elected in the event of setting  aside R-1’s election without payment of court-fee?\n<\/p>\n
 11.  Whether the right of R-2 to dispute petitioner’s  right  to be declared as elected is barred by time?\n<\/p>\n
 12.  In the event of R-1’s  election being  declared illegal whether fresh election has to be  held in ward No. 50?\n<\/p>\n
 13.  Whether the petitioner is entitled to reliefs asked for ?\n<\/p>\n
 6.  The election Tribunal found  on points 1 and  9 that the  amended electoral roll can be acted upon  and repelled  the contention that the amended electoral roll cannot be relied upon  in view of  deviation of relevant provisions relating  to the rectification of the  electoral roll.  It is further held  that  it is  within  the competence of the Tribunal  to adjudicate  the matters pertaining to reception  of the nomination papers and  scrutiny thereof though the preparation of electoral rolls  as such  is not  liable  to be questioned.  On point No. 4  the Tribunal held  that  the Electoral authority and the scrutiny officer are not necessary parties and as such the election petition  is  not bad for  non-joinder of the parties.  Regarding points 2, 3  and 7   the Election  Tribunal  held  that the  acceptance of the  nomination of the Ist respondent is not valid as the mandatory requirements contained in section 21 of  the hyderabad Municipal corporation Act have  not been complied with and  the date of birth of Ist respondent is not 18-8-1959  as alleged  by the  Ist  respondent but  15-4-1962  and the acceptance of the nomination of Ist respondent is illegal  and hence the  election is void.  On  point  6  the Tribunal  held  that  the Ist  respondent deposited Rs. 100 and as  such there is  sufficient  compliance with the  rules  and the question whether the Ist  respondent is a member of the scheduled caste does  not  a arise for consideration.  On point 9 the Tribunal held  that the allegation of the polling of false  and  fictitious votes is not  proved and  also the right  to adduce evidence by the  2nd  respondent with reference to this aspect is barred by time.  Regarding  point No. 10 the Tribunal  held  that  the 2nd  respondent  cannot oppose the alternative relief claimed by the petitioner and with regard  to point  No. 11  the right  of 2nd  respondent to plead that the  petitioner is not  entitled to alternative relief is barred by time.  On  point  No. 8 the Tribunal  held that even after the election of the Ist respondent is set aside there are two candidates in the  field viz., the  petitioner and 2nd  respondent and as such the petitioner  cannot be declared as elected  on setting  aside  the election.   On  point  No. 12 the election authority held  that fresh election shall be held for division no. 50.  On point  No. 13, the  Tribunal held  that  the election of the Ist respondent is void and set aside the election of Ist respondent  and  ordered fresh election for 50th division.\n<\/p>\n
 7.  The contentions on either side centred round the issue regarding the date of birth and whether the date  is 18-8-1959  as claimed by ist respondent or 15-4-1962  as alleged by the  petitioner.  In  support of  the  findings regarding the date of birth the Tribunal mainly relied upon Exs. A-1, A-6, A-20, A-14, A-13, A-15 and A-25.  To  dislodge the findings arrived at by the  Tribunal the  appellant relied upon Exs.  B-1, , B-2 B-3, B-5 B-6, B-10 B-21 and  B-23 and the   evidence of R. Ws. 1 to 3 and  5.  At the  outset it is necessary to have a detailed surely of the  evidence adduced on behalf of the  appellant-Ist respondent in aid of the version that  the   date of birth is 18-8-1959.  The  basic document  in support of this  version Is Ex.  B-6, which  is a certified  copy  of the  entry showing  the date of birth mentioned in  the school register  where  the ist respondent  was admitted in  the ist class on 15-6-1965.  In this  entry the date of  birth is shown as 18-8-1959  Ex. B-1, which is  designated as Visadex  contains  the particulars of the service of the father  of  the Ist respondent  wherein the  names of the  family members as in 1961  and also their ages have been stated and  in the said  list the daughter by name  catherina is mentioned and her age was stated  as two years and the averments of the Ist  respondent is that she was called by name  catherina before  her actual name was given Ex. B- 29 is an application made by the  Ist respondent  on  18-3 1976   for  her Baptisation to the   christianity and  in the   records of the church her date of birth is stated as 18-8-1959.  Ex. B-21 is the original entry in the  register of admission to school showing  the admission  of Ist respondent  younger sister viz.,   Mari sundari ratnakumari and  her  date of birth is given as 17-9-1962. Ex. B- 23 dated 13-5-1979  is an entry in the Baptisation register stating the date of birth  of mari sundari ratnakumari as 17-9-1962   Ex. 20  is the certified copy of the particulars in the maternity centre maintained in  the  Hindustan shipyard colony and in  this it is  stated that santamma, the  Ist  respondent’s   mother gave birth to a female child on 17-9-1962 Ex. B-3 is the study certificate dated 14-10-1982  given by v. V. Nilayam, visakapatnam stating that Mari sundari Ratnakumari studeid in this  school from class I to II between  13-6-1969  and 11-9-1976  and her dated of birth in the school records is 17-9-1962  Ex. B. 10 is the note book maintained by the  father of 1st respondent  wherein the dates of birth of the children have been given  and in this note book it was stated that 1st respondent’s date of birth is 18-8-1959.\n<\/p>\n
 8.  The  1st respondent  examinated hereself as R. W. 1 she  stated that she  was born on 18-8-1959  and that she is   5th child  of her  parents and she is the 1st  daughter to  her  parents after 4 brothers.  Her younger sister mary sundari Ratnakumari was born on 17-9-1962.  She  stated,  in the evidence that after  discontinuance and when she joined in the school in  first class once again in  1968  her brother  gave her date of birth as 18-8-1960  and thereafter again she discontinued and after some break again she was admitted in Boddili and  at the time of admission into 4th class in 1971  her date of birth was given as  15-4-1962, by her  eldest brother and after passing the examinations and  at  the  time of admission into junior college also the  same  date of  birth Viz., 15-4-1962  was continued in all the school records and in the T.c. also her eleder borther gave  varying dates of births to underage her due to frequent  discontinuation in the school she was  married on 22-7-1979 and the marriage is an inter-caste marriage.  The  father of hte Ist respondent gave evidence as R. W. 2 He stated that after  the 1st  respondent  attained six years she was admitted in the Gandhi Gram Vidyanilayam school.  With the held  Ex. B. 10 note book in which  the  date of birth  of 1st respondent was got noted the date of birth was mentioned at thetime of admission in the school.  It is also stated by him that the  average spacing  between the  children was three years and the difference between the age of  1st respondent and Ratnakumari was 3 and half years.  The  mother of the 1st respondent was examined as R. W. 3. She stated that the interval between one child and another is about three years and she stated that  the age of her  last daughter is 20 years earlier thatn the last daughter.  R. W. 4 is the headmaster of Gandhi Gram  vidyanilayam, who  speaks  to the date of birth given initially and  Ex. B-6 He says  that  the  date of birth as given in the application and also according to the records of the school is 18-8-1959.  It is also stated that  the  1st respondent left the  school on 17-4-1967  while studying 1st standard and it is also stated that after break Mr. Paul  admitted the  Ist respondent in 1968   and her date of birth was mentioned as 18-8-1960.  She  left the school on 24-9-1969  and again  she  was admitted in 1971  and  her date of birth  was given as  15-4-1962.  He says  that he knows the younger sister  of 1st respondent  and her  date  of birth was  given as  17-9-1962.  He also mentions that the Education code applies to the school from  march, 1946  when the school was recognised. He also categorically denied the suggestion that the entries  in Ex. B-6 were written freshly P.W. 6 is the pastor,  scindhia Baptist church, Gandhigram, Visakapatnam.  This  witness is examined on behalf of the petitioner to show  the entries in  the  Baptisation register showing  the date of birth as 15-4-1962.  In the  chief examination he states that the 1st respondent was baptised and in the Baptisation register Ex. A-25 at page 8 the date of birth of  1st respondent  was given as 15-4-1962 In reply to the questions from the Court  he stated that  the sister of 1st respondent Mary sundari Ratankumari was given baptisation on 13-4-1979  and her date of birth was given as 17-9-1962.  In the cross-examination he states that in the declaration given by 1st respondent Ex. B-29 the date of birth is mentioned as 18-8-1959  and he also asserted that the date of birth mentioned  in the declaration will be mentioned in the declaration will be mentioned in Baptisation register.  After  cross-examination for some time a request  was made by the counsel  for the  petitioner that this  witness  should be treated as hostile and permit  him to  cross-examine him and  the permission to cross-examine was accorded  This witness flatly denied the suggestion that the  record produced is Ex. B. 25 was not previously in existence and brought into existence to help  the 1st respondent.\n<\/p>\n
 9.  The evidence on behalf of the petitioner may be epitomised.  Ex. A-20 is the application form signed by the  father of the 1st respondent admitting her to Gandhi  vidyanilayam in 5th class and in this application the date of birth was shown as 15-4-1962  and in form 9 it was stated that  it is the correct date of birth and  he   would not  ask for amendment.  Ex. A-14 is application for admission to 8th class and the date of birth was shown as 15-4-1962  and the application for admission was signed by 1st respondent’s father  Ex. A-13 is ana pplication for admission into Hindustanship  yard college wherein the 1st respondent along  with her father signed the application form and in col. 5 the date of birth is shown as 15-4-1962 and the age is  described as 16 years 3  months.  In the Transfer certificate  given by the  school the date of birth as 15-4-1962.  Ex. A-15 is the transfer certificate from the college and in this certificate also the date is shown as 15-4-1962  Ex. A-16 dated 20-2-1978  which is an application for  leave Travel   concession by the  father  of the 1st respondent  and the age  of the daughter was shown as 16 years.  Ex. A- 25 is an application for Baptisation of 1st Respondent given by R.W. 2 and  in the  said  application the date of birth is shown as 15-4-1962. Ex. A-30 is the resolution passed by the Baptist church kakinada removing P.w. 6 from service This is  pressed  into service to cast aspersions on  the evidence of P.W. 6 Ex. B-7 is  the certified copy of the  entry showing  the date of birth as 18-8-1960  in the school register. Ex. B-8 is the certificate dated 22-7-1981  given  by the  head Master, Grandhigram Vidyanilayam school showing  that the 1st respondent studied in the school in three spells and  the particulars of the  dates  of joining and leaving   and the dates of birth given on three occasions. Initially it was given and ultimately electoral roll  wherein the age of the 1st respondent is shown as 19 years. Ex. A-3 is the  amended electoral witnesses are P.Ws, 1, 2  and 4.  P.W. 1 is the Deputy commissioner,  Municipal corporation and he was specifically summoned for the purpose of cross-examination  during  the crossexamination by the  petitioner this witness stated that the 1st respondent presented an application for correction of the age and in support of the requisition for  amendment the copies of the  matriculation certificate were copy  of the  marriage certificate were shown and the orders were passed by him directing   the correction certificate were shown  and the orders were  passed by him directing  the  correction after satisfying  himself.  It was stated by him that these docements were produced for  verification and he did not consider it necessary to ask her to file copies of the documents  P.W. 2  is the returning  officer and is also summoned for cross-examination at the instance of the petitioner.  In the crossexamination he stated that certain objections were raised against the acceptance of the nomination  of 1st respondent  by the  petitioner.  Under the directions of  this  witness the 1st respondent filed the  photostat copy of  the marriage certificate issued by the  collector and the copies of the extract of  the  date of  birth as entered in the matriculation certificate and  the provisional Matriculation certificate.  After assessing the evidence adduced on either side  he  passed an order accepting the  nomination of 1st respondent.  It is  also further stated that the took the amended certificate copy of  the  electoral roll as the basis  for accepting  the  nomination of 1st respondent at the  time of scrutiny P.W. 4 is the petitioner  herself.  This  witness has stated the events commencing  from the date of filing the nomination and also the particulars regarding the date of birth of the 1st respondent.\n<\/p>\n
 10.  The maiden document Ex. B-6 regarding the date of birth as 18-8-1959  is proved by R. W. 4 the headmaster of the school.  It was stated that the application was presented with the date  of birth therein at the time of the  admission of 1st respondent.  In the  crossexamination it is not elicited as to any discrepancy or the motive for R. W. 4 to adduce evidence in the manner stated by him.  There is absolutely no allegation or whisper about the interestedness of R. W. 4 and further there  is absolutely no endeavour to make out any reasons to discredit this testimony.  In  the  absence of any aspersion of partisanship this evidence can be safely acted upon.  Ex. B-6 coupled with the evidence of R. W. 4  is sufficient  to prove substantially the plea of 1st respondent and it is heartening to note that this primary document is reinforced by other crucial documents Ex. B-6 is amply supported by Ex. B-1 which is designated as  Visadex.  In this document enumerating  the members of the family accompanied by their ages R. W. 2 stated that cathariana, pet name for 1st  respondent  was aged two years  as in  1961.  This  document bears the natural   label and the date of birth must  have been stated in the routine course of events and R. W. 2 could not have  forestalled the present predicament.  The highly relevant  evidence is contained  in EXs.  B-2 B-3, B-21 and B-23.  All these documents pertain to the date of birth of younger sister of Ist respondent Mary sundari ratnakumari.  In Ex. B. 2 the date of  birth mentioned in the  register is 17-9-1962  and in the study certificate Ex. B-3  also the date  of birth is shown  as 17-9-1962  and in the school register Ex. 21 the date of birth is shown as 17-9-1962   and also in the Baptisation application form and the records in the  church the date is shown as 17-9-1962.  The younger sister’s  age is consistently shown as 17-9-1962.  This  unimpeachable shown as 17-9-1962.  The Ist respondent is admittedly elder sister and the successive births within  a  span of five months is defined by nature.  As the  date of birth of younger sister is in the region of uncontrovertible and indisputable fact the  allegation of  the concoction of the  date of birth as 18-8-1959  crumbles and cannot be jacked up by the evidence adduced on behalf of the  petitioner.  This  event  lands a colour of truth to the version that varying dates of births have been given subsequently with a view to cut the age as the studies were discontinued and the date of birth of 15-4-1962  finally given was adhered to Further there are hardly any circumstances to disbelieve the evidence of the mother and father with regard to the spacing  between the  births  of the children and also the  age and clinching  circumstances could  not be elicited during  the crossexamination of these witnesses.  As against this evidence the evidence adduced on behalf  of the petitioner regarding the age is Ex. B. 7, B.8 A-20, A-14, A-13, A-15, A-16,  and A-25  Ex. B. 7 and Ex. B.8 are only the  dates that have been given  by the brother of the Ist respondent while admitting  after the  break given  by the  brother of the  Ist respondent while admitting after the  break in her studies. Exs.  A-20, A-14 A-13 and A-15 pertain to the entries in the school registers stating  the age as 15-4-1962  and this is a normal  sequel and continuation to the date that was varied at a later stage.  The Ist respondent professes that the date 15-4-1962  was given designedly to show   the under age to cope  up and  compensate for the interruption in studies and with an eye on furture prospects in life and this was continued consistently in all  the  subsequent classes and at the time  of final exit also in the T.C. the same date of 15-4-1962  was nturally adhered to though the age of 15-4-1962   endured for  number of years but its existence owes only to the deliberate deviation motivated by career consideration.  The genuine or real  date of birth is contained in  Ex. B- 6 and this  is  fully supported by  other documentary evidence and circumstances.  It is true that Ex. A- 16 dated 22-18-1978  and this version approximates to the date of birth of 15-4-1962.  It must  be stated  that R. W. 2 was not cross-examined  on this   aspect in  what circumstantes tha age was mentioned in this  manner.   But this is also explain  by the learned counsel for the appellant  as consistent with travesty of truth when the date of 15-4-1962  was pitced upon.    However it is not  such a tilling  circumstance as to dislodge the weightly.  Documentary  evidence in support  of the version of  the date of  birth as  18-8-59.  Ex. A- 25 the application for Baptisation, Wherein 15-4-1962  is mentioned, cannot  be given weightage is this is  set  off by Ex. B. 23 the entry in Baptisation register wherein th date  of birth is mentioned as 18-8-1959.  In view  of these two conflicting  versions reflected in the documents the theory of date of birth of 15-4-1962  spinned out on behalf of  the petitioner  is neutralised.   In  view of the discrepant  is neutralised.  In view of the discrepant  versions the evidence of P.W. 5 the  pastor  deserves to be totally discarded.  In the  light  of this  the consideration of Ex. A-35  adduced to  doubt the credibility of P.W. 5 does not arise.\n<\/p>\n
 11.   The  learned counsel for  the respondent-petitioner made  and  elaborate comment on the conduct of the  appellant Ist respondent in pressing the forged documents before the Electoral authority for  the  purpose of amendment in the  Electoral  Roll  and also contended that this conduct has a vital bearing  upon  the version set up by Ist respondent did not file   the document Ex. B. 6  and  therefore  this document Ex. B. 6 and   other  allied documents appear to be an afterthought  and should   not be relied upon.  It  is not improbable  that the Ist  respondent  might  have lost sight  of the existence of Rx. B. 6  reflecting the correct  date of  birth  given   at the time of innitial admission in the school.  This course of event  is neither unusual nor exceptional.  The learned counsel for the   respondent in the appeal  strenuously contended that Ex. B. 6 did  not see the light of the day till 1981   and from 1967  to 1981   in all the school records including SSC  the date of birth is given as 15-4-1962  and Ist respondent herslf  sent the  document Ex. A-3  when   she   acknowledged the date of birth as 15-4-1962.  The continuance of the date of birth as  15-4-1962  the continuance of the date of birth as 15-4-1962.   Till  the exit from the educational career after the discontinuance  one  of studies .  the recurring of consistent m misrepresentation as a  sequal  to  Initial  misrepresentation can only be  considered as to be in furtherance of  the aim to cut  the  age.  The learned counsel further  contended that the sister’s  age is based  upon memory only and on this  score  the age of the  1st respondent  cannot be determined.   This contention is totally  untenable as the sister’s  age is not sought to be relied upon merely  upon  the  memory of the father alone but upon the unimpeachable  documents  pertaining to school register and  entires in the Baptist church  and also study certificate and also the register of the birth mentioned in the maternity home.  The mist is cleared  by the documents relating   to the age of the sister in conjunction with Ex. B. 6 the age of  the sister which could not have  been seriously  disputed has become highly relevant  in the context of  considering  the age  of her elder sister about  which  there is a controversy which is beset with conflicting  versions.  The probability of elder sister’s age as 15-4-1962  when her younger sister’s age is 17-9-1962  is totally excluded because the difference  between  the ages of two successive children cannot be five months as ordained  by nature.\n<\/p>\n
 12.  The learned counsel for the  respondent  in the appeal contended that the mere entry in the  electoral roll is not final and the Election Tribunal  can go into the disqualification regarding   age and in support of  this proposition relied  upon the decision of  this Court in chirala Government Reedy v. Election Tribunal,  The  Full Bench of  this   Court while  considering the  powers of the Election Tribunal  under the  Andhra pradesh Gram panchayate Act held that  the  Tribunal  can enquire into the age, qualification of the  candidate  notwithstanding  the fact that the  the name  appears in electoral  roll as a  voter.  The Election tribunal  also in this case proceeded on the footing that despite the  rectification of the electoral roll changing  the age the  Election tribunal  can consider the issue  of age.  It is  well settled that the Election  tribunal  can open  up the  electoral roll and consider the age  on the  facts  and circumstances in spite of the fact  that the  different age  has been given in the electoral roll and the age specified in the electoral  roll is not  conclusive and  binding  upon the election tribunal  the  learned counsel for  the respondent contended that Ex. B-6 is not admissible in view of section 35 of the Evidence Act  and  as such Ex. B-6 should not be considered.  It is  elucidated that this is an entry in the Admission register of a private school and is not within the purview of the category of documents enumerated in section 35 of the  Evidence Act. Section 35 of Evidence Act  may be extracted:-\n<\/p>\n
  “An entry in any public  or other  official book, register or record stating a  fact in  issue or relevant fact,   and  made by a public  servant  in the discharge of  his  official duty or by any other  person in performance of a  duty specially enjoined by the  law of  the  country is kept, is itself a relevant fact”.\n<\/p>\n
 Reference is made to the  decision of the  Madras High Court in  Majesty seshagiri Rao v.  Emperor 1936  mad  WN 111.  In this   case arising  under the child marriage Restraint Act the  petitioners being  the fathers of the bride and bride-groom were convicted for  the  offence of the  celebration of marriage as the bride  did not attain the age of 14.  In support of the averment that  she was born  on 10-5 1920  the entry in the admission  register in a private  elementary school was sought  to be pressed into  service on these facts King.  J. Held  that an entry made by a teacher in a private elementary school in its admission register cannot come within the  coverage of section  35  of the Evidence Act.  In  Gopalan v. Kannan, , it is  held that the entries made by the  public  servants in discharge of the official  duties and they cannot   be considered as register kept in   the performance of the duties specially enjoined by the  law of  the country within the meaning  of section 35 of the Evidence Act.  It is  also found that the registers  ar not  kept  under statutory compulsion.  The decision in  Anant Ram v. State of punjab,   is to the same effect as it was  held  that entries in a  school  register  which is not Government or state school  are not  admissible under section 35  of the Evidence Act.  In   re. Siram  Reddy  it was held  by Krishna Rao, J  that  every school is required to keep a register of admissions and withdrawals  in the  form prescribed in appendix 6 pursuant to Rule 52  of the  Madras Educational rules and therefore the register of Municipal High school is therefore an official register.  This case  is with reference to appeal  against the conviction under section 471  read with section  465,  I.P.C  and the conviction is based on the charge that the accused used a  forged transfer certificate to obtain  admission into Government basic Training  school.  The issue that was considered is  whether the accused  is justified in placing reliance upon the transfer certificate issued by the  school and  whether it is  admissible under S. 35 of the Evidence Act.  It was held that this register is maintained as enjoined by the  Madras Educational Rules and as such  this document is admissible as every school is required to keep a register of admissions and therefore   the register can be considered as official register.  Under  the Educational Rules every school is obligated to maintain register of admissions with the prescribed particulars and such  records can  be considered as official records admissible under Sec. 35   of the Evidence Act.   Section 35 of the  Evidence Act  provides that the document admissible  under section 35 of the Evidence Act.   In view of the fact that the registers are maintained in every school under statutory compulsion they can  be considered as official records and admissible  under sec 35 of the evidence Act and  as such Sec.  35  does not forbid the admissibility of Ex. B-6 in the  instant  case.  Apart from this the evidence of the head-master saying that at the  time  of admission the date of birth disclosed was 18-8-1959  can be  relied upon  and  this evidence of  conjunction with the  evidence of the father  and   mother  amply prove that the date  of  birth is 18-8-1959.\n<\/p>\n
 13.    It is  also contended  by the learned  counsel   for the  respondent that  in view of the  conflicting versions given from time to time  and also   the attempt of the appellant to press into service the forged  documents before  P.Ws. 1 and 2 the version of the  date  of 18-8- 1959 can not be relied upon.  The  alleged  conduct or attempt  to adduce  fabricated  evidence is not relevant  for the purpose  of this   election petition.  The  election Tribunal  adverted to all the aspects  in depty and   the alleged  conduct of a party  at ananterior  stage is no relevant for ascertaining  the factum of the  version  that  has been set up  up by the   either  side,  In  this context it is useful  to refer to the  decision  of the Supreme Court in Brij  Mohan  v. Priya Brat,<\/a> .  The  facts in this case may be  stated.  The appellant  and the respondent were among the  candidates who  contested the  aurangabad constituency seat for the  Bihar legislative Assembly at the General Election held in 1962.  The appellant  was declared elected.  The respondent filed a petition challenging  the validity of the appellant’s  election  and prayed for  a  declaration that the  election to be declared void  and that  he was declared to have been duly elected to the  Assembly, among the  grounds on which the appellant’s  election was challenged one of them is that the  appellant was under 25 years of age on the date of  filing the  nomination papers and therefore disqualified under Art. 137 of the Constitution  from being   a member of the Legislative assembly.  In the context of considering  the impact of  discrepant versions  regarding the date of  birth at  the  time of  admission  into schools, the Supreme Court  observed as  follows  (para 20).\n<\/p>\n
  “The appellant’s case is that once  the wrong entry was made in the admission register it was necessarily carried forward to the matriculation certificate and  was also adhered to  in the  application for   the post of a sub-Inspector of police.  This explanation was accepted by the  election Tribunal but was rejected  by the High Court as untrustworthy.  However much one may  condemn such an Act of  making   a false statement of age  with a view  to secure an advantage  in getting  public  service  a judge of facts cannot  ignore  the position that  in actual life  this happens not infrequently.   We find  it impossible to say that the election tribunal was wrong in accepting the  appellant’s explanation.  Taking  all the circumstances into consideration we are of opinion  that the explanation may very well be  true and so it  will  not be proper for the  Court to base any conclusion about   the appellant’s age on the entries  in these three documents viz.,  Ex. 2, 8  and 19”.\n<\/p>\n
 It is also held as  follows with regard to the proof in election  petition  (para 21):\n<\/p>\n
  “On  an examination of the entire evidence oral and documentary we therefore reach the position that the  petitioner-rspondent has not been able  to prove that  the appellant Brij mohan  was below 25 years of age on the  date of filing  of  nomination papers while the  appellant himself  has also not  been able  to show  that he was at  least 25 years of age on that date.  It  cannot  be  disputed and is not  disputed that   the  burden  or proving that the appellant’s age  was below  25 years of age on the date of his  nomination  must therefore fall”.\n<\/p>\n
 14.  The election Tribunal profusely referred to the proceedings before  P.Ws. 1 and  2.  It is found by the  Tribunal that  the  ist found by the  tribunal that  the Ist respondent -appellant produced the Matriculation certificate and the copy of the marriage certificate before  P.ws.  1 and  2 to get  the  electoral roll  amended andto have  the nomination accepted.  It is contended by the  learned counsel for the respondent that the conduct for  the  Ist respondent  that  the conduct of the Ist respondent  in the   election  petition in producing  spurious  documents has a material bearing  on  the  credibility of the version  set  up now and also the authenticity of the documents pressed into service during  the enquiry of this petition.  The Election  tribunal found  that the  forged documents were produced before  them though  it is  flatly denied by the  Ist respondent It appears that the copies of the documents only have been filed and further this does not  have any impact on the proceedings before  the Election Tribunal as the  entire gamut of  the case is before  the Election Tribunal.  Even  if certain documents are produced before  the  Electoral officer and the Returning officer before  whom  the enquiry is summary, the Ist  respondent is not precluded from producing other relevant  documents.    Further the Election Tribunal in the process  of enquiry of the petition  is competent to open  up the  electoral  roll and has  to find out  whether  any disqualification is incurred with  regard to the age under the provision of hyderabad Municipal corporation Act.  The evidence of P. Ws. 1 and 2 does not categorically lead to the conclusion that the  forged documents  were pressed into service  and  as such the conlusion of the Election Tribunal that    the  forged documents were  pressed  into  service  and as  such the conclusion of  the  Election Tribunal that the forged documents were  sought to be produced by the 1st respondent is not founded  on correct premises.  The decision of either  P.W. 1 or P.W. 2 is not in any way binding or foreclose the issue.  It  is  patent that  the dominance of the  conduct of the Ist  respondent before  P. Ws 1  and  2 appears to  have blurred the  objectivity of  the  Tribunal.  The  issue should be considered with fresh look  without  being bogged   down  by the  alleged anterior  conduct.  In a  situation where relevant  and irrelevant documents are  produced or even in a situation  where the allegations of forgery and fraud  are interspersed in the relevant  evidence and material  the dunction of the Court is to sift the evidence without   prejudice and bias.  The Election Tribunal  erred in giving  undue  prominence to the proceedings before P. Ws. 1 and  2.\n<\/p>\n
 15.  Essentially no material reasons have been given by the Election Tribunal to disbelieve the evidence of the parents R. W. 2  and 3 regarding the name of  the  1st  respondent as catherina in her childhood.  The reasons  given in this regard are  not germane and the reference to  hospital records with  regard to  the  alleged  birth of a daughter who died  immediately is totally   oblique to the consideration of this aspect.  Regarding  the crucial issue about the  younger sister who was born  on 17-9-1962  about  which there is no serious dispute,  the approach of the Election  Tribunal is far  from satisfactry.  The Tribunal says that there is no record  to show  that Ist  respondent’s father  gave the date of birth as  17-9-1962  from any authenticated record containing the dates of births of the children and further held that R. W. 2  gave 17-9-1962  as the date  of birth of 1st respondent’s sister out  of  memory without  reference to the actual date of  birth and  further held   it may be that he had given the date  of  birth of Ist respondents’s sister as 15-4-1962  from out  of memory.  These considerations are totally irrelevant and the observation  that  the date of birth of  the sister was given as 17-9-1962  forgetting the date of birth of Ist  respondent is in the realm  of surmise and conjuncture.  Th Election Tribunal glossed over this aspect which is  highly crucial and  clinching.  As already stated above there  cannot be successive births to a single  person within a  span  of   five months and as such the uncontroverted and undisputed date of birth of the younger sister 17-9-1962  Completely scotches the version of the petitioner  that the  date  of birth of the Ist respondent is 15-4-1962  and further in view of the retraction  of Ist respondent as well as her father and the date of 15-4-1962 is far removed from actuality  as it was obviously given to underage the Ist  respondent in view of discontinuance of studies.  It appears that after two in considtent versions  the Ist respondent Landed finally on thedate of 15-4-1962  and adhered to the same till   the  exist from the education portals. Exs. B-2, B-15 and B-21 in conjunction with Ex. B-6 conclusively tilt the issue and the date of birth as  18-8-1959  is amply proved.\n<\/p>\n
 16.  Therefore, the  order  of the election Tribunal is set aside.  Appeal is  allowed. No  costs.\n<\/p>\n
 17. Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Andhra High Court Vijaya Kari vs Kondamuri Swarnalatha And Anr. on 28 October, 1982 Equivalent citations: AIR 1983 AP 181 Author: R Rao Bench: Raghuvir, R Rao JUDGMENT Rama Rao, J. 1. This appeal arises our of an election petition filed to set aside the election for 50th division of visakhapatnam Municipal corporation. 2. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-58144","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nVijaya Kari vs Kondamuri Swarnalatha And Anr. on 28 October, 1982 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijaya-kari-vs-kondamuri-swarnalatha-and-anr-on-28-october-1982\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijaya Kari vs Kondamuri Swarnalatha And Anr. on 28 October, 1982 - 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