# AMRIT LAL AMBALAL PATEL v. HIMATBHAI GOMANBHAI PATEL & ANOTHER

- **Citation:** [1969] 1 S.C.R. 277
- **Court:** Supreme Court of India
- **Decided:** 1968-05-03
- **Case number:** Civil Appeal No. 1603 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amrit-lal-ambalal-patel-v-himatbhai-gomanbhai-patel-another-4393
- **Pages:** 6

## Headnote

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AMRIT LAL AMBALAL PATEL
v.
HIMATBHAI GOMANBHAI PATEL & ANOTHER
May 3, 1968
[J. C. SHAH AND V. BHARGAVA, JJJ.
The Representation of the People Act (43 of 1951), ss. 36(2)(a) and
lOO(l)(a) and (d)-Age of returned candidate below 25 on the date
fixed for scrutiny of nominations-If election to be set aside.
The appellant was the successful candidate in the 1967 State Legislative
Assembly Elections.
The 21st January, 1967 was the date fixed for the
scrutiny of nominations and the actual polling took p]ace on 18th February, 1967. The election of the appdlant was challenged on the ground
that he was .not oualified to be chosen to fill the seat as he was less than
25 years of age. · The High Court set aside the election on the ground
that the appellant's nomination paper should have been rejected
under
s. 36(2) (a) of the Representation of the People Act, 1951.
In appeal to this Court,
HELD : ( 1) The evidence conclusively showed that the
appellant
was in fact born on 25th January, 1942, and not on 15th January, 1942
as contended by him. [280 CJ
(2) Under s. 36(2)(a) the nomination paper of a candidate is to be
rejected if he is not qualified under Art. 173 of the constitution on the 'date
Pxed for the scrutiny of nominations, that is. if he had not attained the age
of 25 years on that date.
Consequently, the nomination paper of the
appellant was liable to be rejeceod under s. 36(2)(a). Since, by the imp'roper acceptance of the appellant's nomination, the result of the election
was materially affected, the e.lection had
to be declared
void
under
s. IOO(l)(d)(i) o'f the Act. [281 H: 282 A-B]

## Text

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AMRIT LAL AMBALAL PATEL
v.
HIMATBHAI GOMANBHAI PATEL & ANOTHER
May 3, 1968
[J. C. SHAH AND V. BHARGAVA, JJJ.
The Representation of the People Act (43 of 1951), ss. 36(2)(a) and
lOO(l)(a) and (d)-Age of returned candidate below 25 on the date
fixed for scrutiny of nominations-If election to be set aside.
The appellant was the successful candidate in the 1967 State Legislative
Assembly Elections.
The 21st January, 1967 was the date fixed for the
scrutiny of nominations and the actual polling took p]ace on 18th February, 1967. The election of the appdlant was challenged on the ground
that he was .not oualified to be chosen to fill the seat as he was less than
25 years of age. · The High Court set aside the election on the ground
that the appellant's nomination paper should have been rejected
under
s. 36(2) (a) of the Representation of the People Act, 1951.
In appeal to this Court,
HELD : ( 1) The evidence conclusively showed that the
appellant
was in fact born on 25th January, 1942, and not on 15th January, 1942
as contended by him. [280 CJ
(2) Under s. 36(2)(a) the nomination paper of a candidate is to be
rejected if he is not qualified under Art. 173 of the constitution on the 'date
Pxed for the scrutiny of nominations, that is. if he had not attained the age
of 25 years on that date.
Consequently, the nomination paper of the
appellant was liable to be rejeceod under s. 36(2)(a). Since, by the imp'roper acceptance of the appellant's nomination, the result of the election
was materially affected, the e.lection had
to be declared
void
under
s. IOO(l)(d)(i) o'f the Act. [281 H: 282 A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1603 of
1967.,
Appeal from the judgment and order dated SeP'tem ber 14
1967 of the Gujarat High Court in Election Petition No. 4 of
1967.
I. N. Shroff, for the appellant.
S. T. Desai, P. C. Bhartari for J. B. Dadachanji, for respondent No. 1.
The Judgment of the Court was delivered by
Bhargava, J. There were three candidates for election to the
Gujarat State Legislative Assembly from Ankleshwar Constituency .No. 144. Respondent No. 1 in the appeal was one of the
candidates who, on being unsuccessful, filed the election petition
against the appellant who, as a rival candidate, succeeded in the
election.
Respondent No. 2 was another defeated candidate in
the General Elections.
The last date for nomination was 20th
278
SUPREME COURT REPORTS
[1969] I S.C.R.
January, 1967. The nomination papers were scrutinised on 21st
January, 1967.
23rd January, 1967 was the
date for
withdrawals and the actual polling took place on 18th
February,
1967.
The result was declared on 22nd February, 1967. The
elecuon of the appellant was challenged by the
election petitioner on the ground that the appellant was not qualified to be
chosen to fill the seat in the State Legislature on the date of nomination, because he was born on 19th February, 1943 and was
less than 25 years of age.
The appellant contested this assertion
and pleaded that he was born on 15th January, 1942, so that he
had attained the age of 25 years even before the date of nomination.
The High Court of Gujarat. af!er taking evidence
of
both parties. arrived at the finding tliat the appellant's date of
birth was 25th January, 1942, and set aside the election of the
appellant on the ground that his nomination paper was wrongly
accepted when it should have been rejected under section 36(2)
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(a) of the Representation of the People Act, 1951 (hereinafter
referred to as "the Act"). The appellant has
challenged
this
decision of the High Court in this appeal under s. l !6A of the
Act on two grounds.
The first ground is that the High Court has
wrongly arrived at the finding that the date of birth of the appellant was 25-1-1942 and should have held that the appellant was
actually born on 15-1-1942. The second ground urged in
the
alternative is that, in any case, even if the appellant was born on
25-1-1942. he was more than 25 years of age on the 18th February. 1967 when the election took place, so that his election could~: E
not be set aside on the ground that he was disqualified from being I
chosen as a member of the State Legislature.
!
The first ground raises only a question of fact on which the
High Court has recorded a finding against the appellant, even
though the finding does not fully accept the case put forward by
the election peti'ioner.
The election petitioner had pleaded that
the date of birth of the appellant was
19th February,
1943.
During the course of hearinl! of this appeal before us, no attempt
was made on behalf of the election petitioner to persuade us to
accept the original case put forward on his behalf that the appellant has born on February J 9, 1943 and. consequently. it is not
at all necessary to discuss the evidence which was put forward on
behalf of the election petitioner in support of that case. We need
onlv deal with the evidence ~iven on behalf of the appellant to
prove that his date of birth. was ! St~ January. 1942,. and
the
evidence on the basis of which the High Court lras arrived at the
finding that the correct date of birth is 25th January, 194.2. The
ev;dence which is decisive on this question is the entry m the
birth remster in which the birth of the appellant was recorded
when h~ was horn. The original birth register was summoned in
the High Court and it showed the date of birth as
at present
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AMBALAL v. GOMANBHAI (Bhargava, /.)
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entered as 15-1-1942. Reliance was placed on this entry on
behalf of the appellan' to urge that the High Court has wrongly
found the date of birth to be 25-1-1942.
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The entry in the register was found by the High Court to be·
highly suspicious and containing alterations. The learned Judge,
who tried the election petition himself examined this entry in the
register and found that the figure "l" in the figure "15" was an
alteration, indicating that the original date, which was "25''., was·
changed to "15" by changing the figure "2" into figure "l". This·
observation of the learned Judge was fully borne out by our own
examination of the entry in the register under a magnifying glass.
It appears that, in order to make the alteration, an attempt was
made to partially rub out the original figure "2", with the result
that there is thinning of the paper at that place. This thinning of
the paper is clearly visible when the paper is held against bright
light.
Further, when the figure
is examined with the aid of a
magnifying glass, the. figure "2" earlier written becomes visible.
It is also significant that in the entries relating to the birth of the·
appellant in various columns, the writing is not in uniform ink.
Different shades of ink have been used indicating subsequent
alteration.
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On behalf of the appellant, our attention was drawn to alterations in some other entries in the same register where also similar·
features exist, in order to urge that the alteration in this particular
entry relating to the appellant should be treated as a mere correction and not a deliberate alteration from the correct date to an
incorrect date of birth. It is true that there are alterations in some
of the other figures also; but there is one very important circumstance that distinguishes the case relating to the entry of birth of·
the appellant as compared with other entries which contain alterations. On behalf of the election petitioner, one witness examined·
was P.W. 3 Kanaiyalal Chhotalal Hindia who is Head Clerk in
Jayendrapuri Arts & Science College at Broach.
He has deposed ·
that the appellant joined the First Year Arts Class, now known
as Pre-University Arts Class, in that College in the year 1960-61.
A;t the time of admission in that College, the appellant's date of
~uth was entered as 19th February, 1943. Subsequently, at the
mstance of the appellant, this date was changed to 25th January,
1942. The change was actually carried out in the admission
register bv this witness himself.
The witness has stated that in
order to obtain this change, the appellant produced a certified c~py
of the entry ·in the birth register and that certified copy showed·
the date of birth as 25-1-1942. There is no reason to disbelieve
the evidence of this witness. His evidence thus proves that, when ·
the first certified copy of the entry in the birth register was o!J.-
tained by the appellant in order to get the entry in the college
admission register corrected, that certified copy showed the date
280
SUPREME COURT REPORTS
[ 1969] I S.C.R.
,of birth as 25-1-1942.
This means that at that time, when that
.certified copy was issued, the entry in the birth register read as
25-1-1942
and
not
15-1-1942.
The nr...cessary
conclusion
follows that the alteration found in the original register must have
been made subsequent to the issue of that certified copy. It is
true that, later on, the appellant obtained another certified copy
in December, 1966 and, in that certified copy, the date of birth
is entered a.s 15-1-1942. This does not however help the appellant, because. at bes!, it shows that by December, I 966, the entry
in the original register had already been altered so as to read as
15-1-1942.
This whole evidence thus leads to the
conclusion
that the date of birth. which was originally entered as 25-1- I 942,
was altered to I 5-1-1942 some time between the issue
of
the
first certified copy, which was produced in the College, and the
second certified copy wh·ich was obtain.~d in
December,
1966.
This evidence, in our opinion, is conclusive to
show
that the
appellant wa.s in fact born on 25th January 1942 and not on
15th January 1942 as contended on behalf of the appellant. The
High Court accepted this case and \\C have no hesitation in affinning that finding of the High Court on this point.
The alternative ground urged on behalf of the appellant is
that, even if it be held that the appellant was born on 25th January, 1942. it should be held that he was qualified to be chosen
as a member of the State Legislature in view of the provision contained in Art. 173 of the Constitution, the relevant part of which
reads as follows :-
"173. A person shall not be qualified to be chosen
to fill a scat in the Legislature of a State unless he-
( a)
(b)
(c)
is, in the case of a seat
in the Legislative
Assembly, not less than twenty-five years _of age
and, in the case of a seat in the Leg1slat1vc
Council, not less than thirty years of age; and
,,
It was urged that, under this Article, the requirement is t~at the
person must not be less t.han 25 ye~rs of age to be quahfic~ to
be chosen to fill a seat m the Leg1slat1vc Assembly and, smce
a person can be held to be chosen when he is declared elc~ted. all
that is required by this article is that. he should have attained the
age of 25 years prior to the declaration of the result of the election. Similarly, reference was also made to s. 100(1 )(a) of the
Act which is as follows :-
"I 00. (I) Subject to the provisions of sub-section
(2) if the High Court is of opinion-.
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(a)
(b)
(c)
AMBALAL V. GOMANBHAI (Bhargava, !.)
2s·1
that on the date of his election a returned candidate was not qualified, or was
disqualified, to
be chosen to fill the seat under the Constitution
or this Act or the Government of Union Territories Act, 1963, or
( d).
the High Court shall declare the election of the returned
candidate to be void."
The argument was that, under s. lOO(l)(a), the question that
falls for determination is whether the returned candidate was not
qualified on the date of his election, and the date of election must
be the date when the result of the election was declared, or, at
the earliest, the date on which the polling took place.
In the
present case, the result was declared on the 22nd February, 1967,
while the polling took place on 18th February, 1967, and before
these dates the appellant had attained the age of 25 years.
No doubt, these arguments advanced on behalf of the appellant are correct; but, apart (rom these provisions, effect has to be
given also to the additional provision contained in section 36(2)
of the Act which reads as under :-
"36. (2) The returning officer shall then examine
the nomination papers and shall decide all objections
which may be made to any nomination and may, either
on such objection or on his own motion, after such
summary inquiry, if any, as he thinks necessary, reject
any nomination on any of the following grounds :-
(a) that on the date fixed for the scrutiny of nominations, the candidate either is not qualified or
is disqualified for being chosen to fill the seat
under any of the following provisions that may
be applicable, namely :-
(b)
(c)
Articles 84, 102, 173 and 191,
Part II of this Act, and sections 4 and 14 of
the Government of Union Territories Act, . I 963;
or
It is to be noticed that this provision makes a departure inasmuch
as it lays down that the nomination paper is fo be rejected if the
candidiite is not qualified under Art. 173 of the Constitution on
'282
SUPREME COURT REPORTS
[! 969] I S.C.R.
the date fixed for the scrutiny of nominations.
Jn the
present
.case, the appellant had not attained the age of 25 years on 21st
January, 1967, which was the date for scrutiny of nominations.
Consequently, the nomination paper of the appellant was liable
to be rejected under s. 36(2) (a) of the Act. Since it was liable
to be rejected on this ground, it must be held that his nomination had been improperly accepted. In such a case, under s. I 00
(I ) ( d), the High Court is to declare the election void, if the
result of the election, in so far as it concerns the returned candi-
. date, is found to have been materially affected.
On the face of
it, the consequence of the ·improper acceptance of the nomination
·Of the appellant was that the result of the election was materially
.affected, because he was declared as duly elected when he was
not entitled to that right on the ground that his nomination paper
·should have been rejected by the returning officer under s. 36(2)
(a) of the Act. The election of the appellant had to be declared
. as void in these circumstances by the High Court not under
s. 100 (I )(a), but under s. I 00 ( I )( d) ( i) of the Act. The order
made by the High Court setting aside the election of the appellant
is, therefore, in accordance with law. There is no
ground
for
interfering with it.
The appeal fails and is dismissed with costs.
-V.P.S.
Appeal dismissed.
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