# THIRU JOHN & ANR v. RETURNING OFFICER & ORs

- **Citation:** [1977] 3 S.C.R. 538
- **Court:** Supreme Court of India
- **Decided:** 1974-03-12
- **Case number:** Election Petition No. 1 of 1974
- **Bench:** V. R. KRISHNA lYER, R. S. Sarkaria, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thiru-john-anr-v-returning-officer-ors-7197
- **Pages:** 18

## Headnote

Constitmion of India, Article 84(b)-Appellant who was underaged to contest Raiya Sabha elections of 1914 gets his age in the electoral Roll alone altered
butnot in other documents from 14-5-1946 to 14-5-1943 by producing an extract of the Baptism Register-Whether the result of the election materially
affected on th-e improper acceptance of
nomination-Representation of
the
People Act (Act 43), 1951, Sections 83, 97, 100 and 101.
Proof of disqualifications in a11 election petition-Onus lies on the petitioner
initially.
Evidence Act (Act I), 1812--SectioiiS 17, 18, 19, 20 and 21-Admi~t'orrs
made in several documents ante litem motam-Burden of proof shifts on the
maker to show that they are erroneous.
"Continuing candidate"-Requisites to be a continuing candidate-Whether
non-allotment of a "basket" or "parcel" under Rule 74 awomatically excludes
him-Conduct of Election Rules, 1961-RulcN 71 (1 ), 74 and 15(3 ), 79, 80
lllld 81(2).
In the biennial elections of 1974 for filling six vacancies to the Rajya Sabha
from the State of Tamil N adu, there were eight contestants, including both the
appellants and one R. Mohanarangam, the petitioner in Election Petition No. 1
of 1974. The requisite quota to secure the election of a candidate was fixed
at ~O +1=3201 and the appellant John secured 3700 votes. While the
appellant Subrahmanyam secured 300 votes, Mohanarangam failed to secure
any. The rest of them secured more than the quota, thus leaving "surplus votes"
for transfer within the meaning of Rule 71 (6} of the Conduct of Election ·
Rules.
In the election petitions filed by Mohanarangam and Subrahmanyam, the
election of Sri John was assailed on the ground that on March 12, 1974, the
date of the scrutiny of the nominations, he was less than 30 years of age and as
such he did not possess the qualifications as to age laid down under Art. 84(b)
of the Colllltitution that the improper acceptance of John's nomination has
materially affected the election. The petitioners prayed that the election of
Sri John be declared void and set aside under s. 100 of the Representation of
Peoples Act, 1951.
Each of the petioners claimed that in the event of Sri
John's election being set aside, he be declared elected under s. 101 of the Act.
A recrimination petition No. 1174 under s. 97 read with s. 83 of the Representation of Peoples Act was also filed by the appellant Subramanyam, opposing
Mohanarangrun's relief for the declaration under s. 101 of the Act, alleging
that since the petitioner Mohanarangam in E.P. 1174 had not secured any vote,
he, in the event of the election of Sri John being set aside, was not entitled to
be declared elected in the place of John.
The trial Judge of the High Court held that on the date of the scrutiny of
nominations Sri John being less than 30 years of age was not qualified under
Art. 84(b) of the Constitution to contest the election to the Rajya Sabha and
accepting the election petition pro tanto set aside John's election. The trial
Judge, however, d~clined. ~o grant further declaration under s. 101 in favour of
either of the election petitioner.
Dismissing the appeals, the Court,
HELD : (1) From the evidence on record it stood clearly established that on
the date of the scrutiny of nominations Sri John was less than 30 years of age
. THIRU JOHN v. RETURNING OFFICER (Sarkaria, J.)
53 9
and in view of Art. 84(b) of the Constitution he was not competent to contest
A
the election for the Rajya Sabha. His nomination was, therefore, improperly
accepted· by the Returning Officer, and this improper acceptance has, in so far
as it co11cerned the returned candidate, Sri John materially affected the result
•
of the election.
[547 F-G]
(2) The onus of proving that on the date fixed for the scrutiny of nominations, a contestant was less than 30 years of age was on the election petitioners.
In the. instant case, the petitioners had amply discharged this onus by bringing
on record over-whelming documentary evidertce of a cogent and
con

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THIRU JOHN & ANR.
v.
RETURNING OFFICER & ORs.
April 12. 1977
[V. R. KRISHNA lYER, R. S. SARKARIA AND JASWANT SINGH, JJ.]
Constitmion of India, Article 84(b)-Appellant who was underaged to contest Raiya Sabha elections of 1914 gets his age in the electoral Roll alone altered
butnot in other documents from 14-5-1946 to 14-5-1943 by producing an extract of the Baptism Register-Whether the result of the election materially
affected on th-e improper acceptance of
nomination-Representation of
the
People Act (Act 43), 1951, Sections 83, 97, 100 and 101.
Proof of disqualifications in a11 election petition-Onus lies on the petitioner
initially.
Evidence Act (Act I), 1812--SectioiiS 17, 18, 19, 20 and 21-Admi~t'orrs
made in several documents ante litem motam-Burden of proof shifts on the
maker to show that they are erroneous.
"Continuing candidate"-Requisites to be a continuing candidate-Whether
non-allotment of a "basket" or "parcel" under Rule 74 awomatically excludes
him-Conduct of Election Rules, 1961-RulcN 71 (1 ), 74 and 15(3 ), 79, 80
lllld 81(2).
In the biennial elections of 1974 for filling six vacancies to the Rajya Sabha
from the State of Tamil N adu, there were eight contestants, including both the
appellants and one R. Mohanarangam, the petitioner in Election Petition No. 1
of 1974. The requisite quota to secure the election of a candidate was fixed
at ~O +1=3201 and the appellant John secured 3700 votes. While the
appellant Subrahmanyam secured 300 votes, Mohanarangam failed to secure
any. The rest of them secured more than the quota, thus leaving "surplus votes"
for transfer within the meaning of Rule 71 (6} of the Conduct of Election ·
Rules.
In the election petitions filed by Mohanarangam and Subrahmanyam, the
election of Sri John was assailed on the ground that on March 12, 1974, the
date of the scrutiny of the nominations, he was less than 30 years of age and as
such he did not possess the qualifications as to age laid down under Art. 84(b)
of the Colllltitution that the improper acceptance of John's nomination has
materially affected the election. The petitioners prayed that the election of
Sri John be declared void and set aside under s. 100 of the Representation of
Peoples Act, 1951.
Each of the petioners claimed that in the event of Sri
John's election being set aside, he be declared elected under s. 101 of the Act.
A recrimination petition No. 1174 under s. 97 read with s. 83 of the Representation of Peoples Act was also filed by the appellant Subramanyam, opposing
Mohanarangrun's relief for the declaration under s. 101 of the Act, alleging
that since the petitioner Mohanarangam in E.P. 1174 had not secured any vote,
he, in the event of the election of Sri John being set aside, was not entitled to
be declared elected in the place of John.
The trial Judge of the High Court held that on the date of the scrutiny of
nominations Sri John being less than 30 years of age was not qualified under
Art. 84(b) of the Constitution to contest the election to the Rajya Sabha and
accepting the election petition pro tanto set aside John's election. The trial
Judge, however, d~clined. ~o grant further declaration under s. 101 in favour of
either of the election petitioner.
Dismissing the appeals, the Court,
HELD : (1) From the evidence on record it stood clearly established that on
the date of the scrutiny of nominations Sri John was less than 30 years of age
. THIRU JOHN v. RETURNING OFFICER (Sarkaria, J.)
53 9
and in view of Art. 84(b) of the Constitution he was not competent to contest
A
the election for the Rajya Sabha. His nomination was, therefore, improperly
accepted· by the Returning Officer, and this improper acceptance has, in so far
as it co11cerned the returned candidate, Sri John materially affected the result
•
of the election.
[547 F-G]
(2) The onus of proving that on the date fixed for the scrutiny of nominations, a contestant was less than 30 years of age was on the election petitioners.
In the. instant case, the petitioners had amply discharged this onus by bringing
on record over-whelming documentary evidertce of a cogent and
convincing
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character. This documentary evidence includes no less than a do~n previous
admissions and declarations made between March 1964 and July 1973 by Sri
John himself about his age, to the effect that he was born in 1946 and that his
date ·of biith was 14.5.1946. Apart from the evidence of these prior admissions
the election petitioners had brought other documentary evidence viz., the school
record purportedly signed by John's guardian, Secondary School Leaving Certificate and various other documents of the educational institutions, Marriage Register, Bar Council Record and Church records etc. pointing to the conclusion that
Sri John was· born on 14.5.1946 and not on 14-5-1943. [542 D-H, 543 A-B- F]
C
( 3) It is well-settled that a party's admission a~ defined in sections 17 to 20
fulfilling the requirements of section 21, Evidence Act is substantive evidence
proprio vigore. An admission, if clearly and unequivocally made is the
·best evidence against the party making it and though not conclusive, shifts the
onus on to the maker on the principle that "what a party himself admits to be
true may reasonably be presumed to be so" and until the presumption was
rebutted the fact admitted must be taken to be establish'!d. In the instant case,
there are a number of clear admissions in prior declarations precisely and deliD
berately made in solemn documents by Shri John. These admissions were made
ante litem motam during the decade preceding the election in question. These
admissions were entitled to great weight.
They had shifted the burden on the
appellant (Shri John) to show that they were
incorrect. The appellant had
miserably failed to show that these admissions were incorrect. [543 C-E]
(4) Under Rule 71 (1) of the Conduct of Election Rules, 1961, "Contimiing candidate" means any candidate not elected and not excluded from the poll
at any given time. Two elements must, therefore, be satisfied before a candidate
E
can be said to be a Continuing candidate. He should be a 'candidate not
lJ'
elected" and further he must not be excluded from the poll at any given time.
In the instant case Sri Mohanarangam fulfils both these
conditions. [550 B,
552 CJ
(5) The contention that an essential prerequisite to the continuance of a
candidate is the allotment of a "basket" or "parcel" under Rule 74 and only
such candidate is entitled to the allotment of a basket who at the end of the
count gets some vote to his credit and opens his account, and since MohanaranF
gam did not get any vote whatever he stood automatically excluded is not
correct. There is nothing in Rule 74 or any other Rule which, at an election
to fill more than one seat, requires or empowers the Returning Officer to exclude a candidate from the poll merely on the ground that in the counting of
the first preferences, be has not received any valid vote.
[552 E-HJ
(6) Sub-Rule (3) of Rule 75 which requires the Returning Officer to exclude from the poll a candidate whose score ts the lowest-governs the ~ounting
of votes where only one seat is to be filled and at the end of any count, no
candidate can be declared elected. Sub-Rule (3) of Rule 75 has no application
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lo. the instant case.
[552 GJ
(7) Rule 80 can have no application because it comes into operation at a
stage "after all surpluses have been transferred". That stage never arrived in
the instant case because in the first counting itself all the six seat~ were filled
. up, six candidates (including Shri John) having received the requisite quota of
first preference votes. Nor did the stage for annlyinJl Rule 81 arise. because at
the end of the first count, no vacancy remained unfilled.
In the instant case
Shri Mohanaran!l"am did not get automaticallv PXclurfed. Roth hParid
~ri
H
Subrabmanvam were "continuing candidates". Sri Subrahmanyam coulrt not be
dPdar~"d "'"ctl"r'l
as he had 'not obtained the required quota· of 3201 votes.
[522 H; 553 A]
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540
SUPREME COURT REPORTS
[1977] 3 s.c.R..
·( ) (8) The wtio decidendi. of Vinvqnmlla v. Krmappa is app.lica~le only where,
a
there are t~vo contcstmg candtdates and one of them ts dL~qualified; (6)
and the electu~n 1s. on the basis of single non-transferable vote. In the instant
cnse, the el~cllon tn question was not held by mode of single non-transferable
vote, acco:dmg to which a simple rn:ajority of votes secured ensures the success
of a can~1date, but by proportionul representation with single transferable vote
under wt;U~h system the ~uccess of a candidate normally depends on bis securing
the ~equJSJte Q';!Ota. Shn Subrahmanyam wns not the sole surviving continuing
candtdate left m the field, after exclusion of the disqualified
candidate
Sbri
John. (5H G-H, 555 A]
'
ViswaiJ(rtha v. Konappa AIR 1969 S. C. 604, distinguished.
(9) All the votes that had polled in favour of Shri John who bas been found
by the court to be statutorily disqualified for election cannot be
re~ardcd as
thrown away and in consequence, the appellant Shri Subrahmanyam who secured
300 votes as against none obtained by Shri Mohanaraogam cannot be dedarcd
elected. Shri Subrahmanyam was neither the sole continuing candidate nor bad
he secured the requisite quota of votes. It is nobody's case that the electors
who voted for Shri John had at the time of election knowledge or notice of the
statutory disqualification of this candidate. On the contrary. they must have
been under the impression that Shri John was n candidate whose nomination
had been validly accepted by the Returning Officer. Had the electol'11 notice of
Shri John's disqualification, how many of them would have voted for him and
hew many for the oth::r continuing candidates including Sarvashri Subrah·
manyam and Mohanarallgam and in whnt preferential ord~r. remains a question
in the realm of speculation and unpredictability. [553 B·EJ
R. 1\1. SeJ!I(u/rl v. G. V. Pai AIR 1969 SC 692 @ p. 701, followed.
cr\,L APPELLATE JURlS'DICTION: Civil Appeals Nos. 1895-f896
and 1907 of 1974.
(From the Judgment and Da.:crce dated the 14-10-1974 of the
Madras High Court in Election Petitions Nos. 1 and 2 of 1974).
R. N. Chaudhary and Mrs. V. D. Klwmw, for the appellant in CAs
1896/74.
·t .
... ...
l'. S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy,
C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant
~
inCA 1907/74.
T. N. C. Srini,·asavarudacharya, S. C. Lakslunindrain, S. R. L.
Narayan, M. S. Nurasimalwn, for respondent No. 10 in CA 1895,
R%p. No. 6 inCA 1896 and respondent No. 7 inCA 1907.
A. V. Rtmgam und Miss A. Subslzaslzini, for respondent No. tin nil
the rsppe<sls and for respondent No. 2 in 1907.
J. M. Klwmuz, !or re~pondcnt ·No. 8 in CAs. 1895-1896.
Tho: Judgment of the Court was ddivcred by
SARKARL\, J. The basic facts gi,·ing riso to these appeals being
common, the fiame wiJ.l be disposed of under one judgment.
Notice eallin~ for nominations to be filed
before 3 P.M. ott
11-3-1974, for filling six vacancies to the Rajya. Sabha from the State
of Tamil Nadu in the biennial elections was issued on March 4,· 1974.
eleven CllJldidates tiled their nominations. On scrutiny which was held
on Ma~h 12, 1974. all those nominations weN found to be.\•atid. On
. --- .. .
THIRU JOHN v. RETURNING OFFICER (Sarkaria, J.)
541
14-3-1974 which was the last date fixed for withdrawi;ll, three candidates withdrew their nominations leaving eight in the field.
The poll
was held on 21-3-1974. Counting of votes took place on the same. date.
The result was published, according to which, the contesting candtdates
secured the votes noted against their names as follows :
1. Shri Khadar Sha
2. Shri Khaja Mohideen
.3. Shri V. Subrahmanyam
4. Shri C. D. Natarajan
5. Shri R. Mohanarangam
6 .Shri S. Ranaganathan
7. G. Laksbmanan
8. D. C. John @ Valampuri John
3500
3700
300
3500
Nil
4100
3600
3700
The requisite quota to secure the election of a candidate was fixed at
22,400
and candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were
declared elected.
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Two Election Petitions were filed by the unsuccessful candidates.
Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and
Election Petition 2 of 1974 by Shri V. Subrahmanyam. The petitioners
prayed that the election of Shri D. C. John be declared void and set
E
aside under s. 100 of the Representation of the People Act,
1951.
Each of the petitioners claimed that in the event of Shri John's election
being set aside, he be declared elected under s. 101 of the Act. In
addition to the Returning Officer, the Electoral Registration Officer
and the Chief Election Commissioner, all the seven contestants were
impleaded as respondents.
The election of Shri John was assailed on the ground that on March
9, 1974, the date of the scrutiny of his nomination, be was tess than
30 years• of age and as such, did not possess the qualification as to
age laid down in Article 84(b) of the Constitution. On these premises
it was pleaded that the nomination of Shri John was improperly
accepted and in consequence thereof, the result of the election has been
materially affected.
A recriminatory petition No. 1/74 under s. 97 read with s. 83 of
the Act was also filed by Shri V. Subrahmanyam petitioner in E.P. 1/
74, opposing Mohana Rangam's relief for declaration under s. 101.
The recriminator alleged that sin~e the petitioner in E.P. 1/74 had not
secured any vote, he. in the event nf the election of Shri JohH being
set aside, was entitled ~o be declared elected in the place of shri John.
The learned trial Judae of the High Court tried all the three petitions tC"~eether and decided them by a common judgment.
B-502 SCI/77
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SUPREME COURT REPORTS
[1977] 3 s.c.R.
.
The ~rial Cour_t held that on the date of the scrutiny of his nomination, Shn John bemg less than 30 years of age, was not qualified under
Art. 84(b) of the Constitution, to contest the election to the
Rajya
Sabha.
On this short ground his election was set aside and · the
Election Petitions were accepted pro tanto. The trial Court, however,
declined to grant the further declaration under s. 1_01 in favour of either
of the election-petitioners.
Aggrieved by that judgment, Shri John, has filed in this Court Civil
Appeals 1895-1896 of 1974, and Shri V. Subrahmanyam Civil Appeal
1907 of 1974.
.
The first question that falls to be determined in these appeals is :
Whether S!tri John was born on May 14, 1946, as has been found by
the Court below, or on May 14, 1943 as contended by him'!
Mr. Chowdhary appearing for the appellant (Shri John) contends
that the burden of proving that Shri John, was at the material ·date
below 30 years of age was on the election-petitioner and that the latter
had faiJed to discharge such burden.
Further grievance of Shri
Chowdhary is that the High Court had wrongly rejected the oral and
documentary evidence produced by Shri John.
We find these contentions wholly devoid of merit.
.While it is true that the onus of proving that on the date fixed for
the scrutiny of nominations, Shri John was less than 30 years of age,
was ort the election-petitioners, they had amply discharged this onus by
bringing on record overwhelming documentary evidence of a cogent
and convincing character.
This documentary evidence includes no le~
tha'n. a doze·n previous admissions and declarations made by Shri John
himself about his age, between March 1964 and July 1973. These
documents containing such declarations constituting Shri John's admi8sions are':
· (i) Ex.P.7-Application for Pre-University Examination.
(ii) Ex.P-9-Application for B.A. Examination.
(iii)
(iv)
(v)
(vi)
Ex. P-14-Application for appearing in University
Examination.
Ex.P-15-Application for the first B.G.L. Examination.
··
Ex.P-17-Application for admission to B.G.L. Examination.
R'{.P-18-Application for second B.G.L. Examination April 1972.
(vii) Ex.P-19-Application for second BGL Examination,
October 1972.
H
(viii) Ex.P-21-Application for admission into Law Col-
.
lege.
.
(iv) Ex.-22-Application for B.L. Degree Examination.
i· ..
THIRU JOHN v. RETURNING OFFICER. (Sarkaria, ].)
· (x) Ex.P-23(a), (b) & (c)-Applications dated 23-7-
'A
·
1~73 for enrolment as Advocate submitted
to the Bar Counci1.
(xi) Ex.P-27-Voters Card containing declaration of his
age as 28 years signed by Shri John.
(xii) Ex.P-87_:__a Book written by Shri John, containing a
B
.
passage on its page 18 suggesting the
inference that Shri John was born in 1946.
All these documents aforesaid contain admissions made by Shri
John that he was born in 1946.
In several of these documents he
declared 14-5-1946 as his date of birth.
It is well settled that a party's admission as defined in Sees. 17 to
C
20, fulfilling the requirements of Sec. 21, Evidence Act, is substantive
evidence proprio vigore.
An admission, if clearly and unequivocally
made, is the best evidence against the party making it and though not
conclusive, shifts the onus on to the maker on the principle that "what
a party himself admits to be true may reasonably be presumed to be
so" and until the presumption was rebutted the fact admitted must be
faken to be established.
D
The above principle will apply with greater force in the instant
case. · Here, there are a number of clear admissions in prior declarations· precisely and deliberately made in solemn documents by Shri
John.
These admissions were made ante litem motam during the
decade preceding the election in question.
These admissions were
entitled to great weight.
They had shifted the burden on the appellant E
(Shri John) to show that they were incorrect.
The appellant had
miserably failed to show that these admissions were incorrect.
Apart from the evidence of these prior admissions the electionpetitioners had brought other documentary evidence, also, pointing to
the conclusion that Shri John was born on 14-5-1946 and not on
14-5-1943.
F
This evidence consisted of-
"'\
.1. (a) Exhibit P-1 an entry in the records of St. Xavier's
-i
College School, wherein the date of Shri John's birth
is recorded as 14-5-1946;
(b) Ex.P .3 which purports to have been signed by the
guardian of Sbri John, declaring his age as 14-5-1946;
(c) Ex.P-2, the E.Ss.L.C. signed by Rama Prabhu, the
Secretary to the Commission for . Government Examinations.
This Certificate was 1ssued under the
G
authority of law.
H
.. . ,
2. Ex.P-4-Secondary School Leaving Certificate wherein ·
Shri John's date of birth is entered as 14-5-1946.
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544
SUPREME COURT REPORTS
[1977] 3 S.C.R.
3. Ex.P~SO, copy of the Fort St. George Gazette
dated
19-2-1964 showing Shri John's date of birth as 14:5-1946.
4. (a) Ex.P-5 the transfer certificate issued by the St.
Xavier's High School.
(b) Ex.P-10 transfer certificate issued by the Principal
of the College.
(c) Ex.P~13 entry in the admission register of the College
for joining the first year B.G.L.
(d) Ex.P-1~ntry in the admission register of the
College, for admission to second year B.G.L. Class.
(e) Ex. P-10-entry in admission register of the College,
5. Bar Council Records relating to Ex. P~23.
6. Marriage Register, Ex.P-29, containing in the column
__.,_
captioned "Age" as against the name of Shri John, the
entry "26 years", and the date of his baptism as 19-101946.
7. Ex.P.30, Periodical report from the Churches regarding
marriages solemnised therein, required under the Indian
Christian Marriage Act 1872, showing that Shri
John'~
marriage was solemnised in St. Francis Xavier's Church,
Madras, on 6-4-1972 by Fr. G. K. Swami, and that on the
date of this marriage he was 26 years of age.
8. Exhibits Pll, P-ll(a), P-12 and P-12(a) record'S of
T.E.L.C. Kabis High School showing Sbri John's date of
birth as 14-6-1946.
9. Ex.P-28-Book-Varalatril Kalaignar Written by Shri John
containing biographical sketch. Therein, his date of birth
is mentioned as 14-10~1946.
The petitioner had also examined witnesses who testified with
regard to these documents and the facts
appearing therein. The
learned trial Judve has carefully discussed and evaluated this documentary and oral evidence. No material error or illegality on the part of
the learned Judge in appreciating this evidence has been pointed out.
The learned Judge found that the entries, Ex.P.29, in the Marria~e
Re!!ister are of QTeat evidentiary value. Mr. Chaudhury assails this
finding.
According to him, no legal provision or rule of oractice
requires that the date of Baptism should be entered in such RePister.
Secondly, it is url!ed that the date of baptism given therein is 19-10-46,
which stands falsified by the evidence of Rev. Fr. Rosario, the Parish
Priest who had baptised Shri John about 7 days after his birth in 1943.
It is furtl1er arl!ued that the best evidence as to Sbn John's date of
birth could be that of the entry in the Public ~irth Register maintained
under authMitv of law and that the election-petitioner on whom the
onus lay, did not produce that evidence.
.......
THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.)
545
We Hnd no substance in these contentions.
In the witness box
both Shri John (RW. 1) and his elder brother (RW 3 )admitted thei.J.1
respective signatures on this entry (Ex.P. 29) in the Marriage Register.
They however, contended that the information about the date
of baptism was not supplied by them to the Priest who solern;llsed the
marriage and made this entry.
The elder brother (RW. 3) however,
admitted that they had signed the Register, notwithstanding the fact
that the age of Shri John was mentioned therein as 26 years. Both the
brothers however, admitted that Shri John's marriage was solemnised
in St. Francis Xavier Church on 6-4-1972.
In view of the admissions
of RWs 1 and 3, the High Court was right in holding that Ex.P.29
stood proved, and the entries therein were entitled to great weight.
As regards the Birth Register of 1946, th<~ election-petitioner made
repeated attempts to get the same summoned and produced in Court.
The process issued by the Court was returned with the report that the
Register of 1946 was untraceable.
Thereafter, a direction was issued
by the Court to trace and produce it.
A search for this record was
made by the record remained untraceable.
The Election-Petitioner
contended before the High Court that Shri John had by the exercise of
his influence, prevented the production of this record. The High Court
found this charge to be incorrect. Nevertheless, it held that the Public
Birth Register of 1946 had been lost long ago.
This being the case,
the non-production of the Birth Register of 1946, must be held to be
a neutral circumstance.
Tl!e discrepancy pointed out by Shri Choudhury as to the date of
the baptism of Shri John, takes us to the evidence produced by him.
shri John brought on the record three documents, R1, R2 and R4.
R-1 is an extract from the Baptism Register kept by the Ovari-Tuticorin
Diocese.
The document R -1 according to the High Court was inducted in a
questionable manner, without even an application for it.
This was
issued by the Parish Priest, Peter Royan (R W 5), and purports to be
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a copy of an entry in the Baptism Register, which according to the
admission wrung out from RW 5, had itself been re-written and copied
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from the originaL The Parish Priest conceded that he had burnt the
original because it was in a very bad condition.
The High Court
found and we think rightly-that this explanation of non-production of
the original was thoroughly unsatisfactory, and unbecoming of any
Christian, more so, one connected with Church affairs, that by this
'unholy act' of burning the register which was a violation of Canon 777.
Paragraph 676, the witness (RW 5) had done "great disservice to G
Christianity and greater disservice to the cause of truth".
Since R-1 was only a copy of a copy (R 4), the preparation of
which was itself suspect and the explanation about the non-production
of the original was palpably unbelievable, these documents were rightly
ruled out of evidence.
R.W. 2, Rev. Fr. Rosario stated that he positively remembered H
that in the year 1943 when he was the Parish }Jriest, he ha~ baptis~
Shri John.
The witness was an old man. He had no Baptism Regts-
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SUPREME COURT REPORTS
(1977] 3 S.C.R.
ter or any other contemporaneous record to refresh his memory with
regard to an event which took place more than a quarter of a century
back.
He was deposing to a fact in issue merely from memory.
Human memory being fallible, it was hazardous to accept his ipse dixit.
The oral evidence of the witness could not be preferred to the entry in
the Marriage Register, Ex. P 29, showing that Shri John on the date
of his marnage, which took place in 1972, was 26 year old and had
been baptised in 1946. It is true that there is a slight discrepancy
between the date of his baptism as entered in the Marriage Register
and the date of his birth as admitted by him in the various applications
he submitted for admission to various classes in College or for enrolment as an Advocate.
But there is no discrepancy with regard to the
year of birth as well as baptism being 1946. In Ex.P. 29, the date of
his baptism is entered as 19-10-46.
The biodata appearing in the
book Ex.P.28, which, according to the publisher, RW-4, was entered
by him on the basis of information derived from Shri John, gives h~
date of birth as 14-10-1946, while all the numerous public records,
the declarations constituting the prior admissions of Shri John, produced in evidence by the Election-Petitioner, consistently show Shri
John's date of birth as 14-5-1946.
We have been taken through the oral evidence rendered by Shri
John (RW 1) and his elder brother (RW 3). Their interested testimony makes interesting reading.
Shri John was asked in cross-examination to state how he came to
contest the Rajya Sabha elections ? He replied that, as usual, .in his,
village Ovari, he was having a discussion with the members of . his
community to settle a dispute between owners of catamaran and meciianised boats. A suggestion was made to him that he should contest
an election to Parliament as a representative of the fishermen community. Shri John told them that " .. an election to the Council of.
States is fast approaching and the only thing is I cannot enter the
Rajya Sabha, because I have not complete4 the age of 30 years."
Shri John was further questioned by the Counsel
"Then what happened ?"
He replied:
"My eldest brother was one among those who
were
assembled there.
He told me along with another elderly
gentleman, whose name I am not able to recollect now :
"What non-sense are you talking ? You have compfeted
30 years positively." Moreover, they told me in addition :
'We have to refer to the Registers kept in the Church'" .
. With this idea put into his head, the witness next morning along
with his brother visited the village Church and met Rev. Fr. Peter
(R.W. 5) and asked for the Baptism Register relating to the witness.
Rev. Fr. Peter took out the Register, Ex. R-4, and turned the leaves,
and to the surprise of the witness, he saw his date of birth noted
therein as 14-5-1943. Thereafter, Shri John approached the ChiEf
THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.)
547
Electoral Officer, Madras, and made an application (Ex.P.23) on
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26-2-1974 for correction and change of the date of his birtli, as noted
in the Electoral Roll, fro~ '14-5-1946' to '14-5-1943'. His application was allowed and the entry in the Electoral Roll as to age was
amended accordingly on the 6th or 7th March 197 4.
On further
cross-examination, Shri John frankly conceded that before seeing the
Baptism Register in the second week of February 1974, he had all
along been under the genuine impression that he was born on
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14-5-1946. It was only on seeing the Register that he came to believe
that he was born in 1943.
It is to be remembered that this Baptism Register (R. 4) is the
same, which was found by the High Court to be a suspicious record,
prepared in suspicious circumstances, wholly unworthy of reliance.
RW. 3, the elder brother of Shri John also stated that when the
elders of the village asked him to contest the election, he replied that
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he had not attained the proper age, i.e. "31 years" which was nece~sary
to contest the election.
Immediately, the witness intervened : "What
non-sense you are talking ? You have attained the proper age ..... .
you must go and refer in the Church". About their going to Prieilt
Rev. Fr. Peter Royan at the village Church and scrutinising the
Baptism Register his version is more or less the same as of RW-1.
This witness, as already noticed, admitted that at the time of his
brother, Shri John's marriage, he had al~o signed the entry, Ex.P-29,
in the Marriage Register on 6-4-1972. He further conceded that in
this entry Ex. P-29, the age of the bridegroom, Shri John, was mentioned as 26 years.
He further conceded that in Ex. P. 29, the date
of Shri John's baptism is noted as 19-10-1946. But the witness, wanted the Court to have it believed that he had signed this entry withc,ut
looking into it.
This version was too incredible to be swallowed
without demur. The conclusion was inescapable that on 6-4-1972,
Shri J. D. Mohan, RW-3, the eldest brother of Shri John, whose
parents were dead, knew that the particulars of this entry snowing his
age to be 26 years on 6-4-1972, and the date of his baptism in 1946,
were true.
That is why he and his brother John, without raising any
objection, affixed their signatures thereto in token
of
its correctness.
We need not dilate on the question of Shri John's age further. AY
aspects of this issue have been discussed threadbare by the High Court.
Suffice it to say, that from the evidence on record it stood clearly
established that on the date of the scrutiny of the nominations, Shri
John was less than 30 years of a_ge and in view of Article 84(b) of
the Constitution he was not competent to contest the election for the
Rajya ~bha.
His nomination was therefore improperly accepted by
the Returning Officer, and this improper acceptance has, in so far as
it concerned the returned candidate, Shri John, materially affected the
result of the election.
Shri John's election was thus rightly set aside by the High Court.
Now we come to the second question, whether
Shri V. Subramanyan, appellant in C.A. 1907 of 1974, is entitled to be declared
elected in lieu of Shri John whose election has been set aside ?
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SUPREME COURT REPORTS ·
[1977] 3 s.c.R.
Shri Ramaswami, learned Counsel for this appellant, has advanced
alternat1ve arguments. It is subn1ttted that since Shri Mohana Rangam
did not secure any vote at aU, he had ceased to be a continuing candidate and stood automatically excluded, leaving only Shri
Subramanyam, sole continuing candidate in the field. It is emphasised that
shri Rangam bas not filed any recriminatory petition.
In this situation, it is maintained, Shri Subramanyam would be deemed to have been
elected, although he had secured only 300 votes.
Reference in this
connection has been made to Rule 81(2) of the Conduct of Election
Rules, 1961.
The alternative argument of Shri Ramaswami is that since Sbri
John was not a qualified candidate, the votes cast in his favour have
to be treated as thrown away, and even if both Shri Mohan Rangam
and Shri Subramanyam are assumed to be continuing candidates, the
surplus votes cast in favour of the five successful candidates had to be
transferred and redistributr.d in favour of these continuing candidates.
It is urged that for this purpose the Court should send for and scrutini-se
the haJlot papers for further counting.
Shri Ramaswami further
pointed out that the observations of this Court in Viswanatha Reddy v.
Konappa Rudrappa NadgandaC) to the effect, that the votes cast
in favour of the disqualified candidate are to be treated as thrown
away, are equally applicable to the elections for filling vacant seats in
the Council of States, notwithstanding the fact that these elections are
held according to the system of proportional representation with a
single transferable vote whereunder there is no question of obtaining
majority of valid votes, but only the required quota.
In support of his contentions Shri Ramaswami has copiously referred to the treatise, the Single Transferable Vote by K. V. Krishnaswamy
Aiyar published in 1946, and the relevant provisions of the Conduct of
Election Rules, 1961 (for short, referred to as the Election Rules).
The provisions material for our purpose are contained in Part VII
of the Election Rules.
Shri K. V. Krishnaswamy Aiyar in his book,
The Single Transferable Vote (1946 Edn.) page 23, sums up the
general principles of this mode of election, thus :
"The Single vote is
transferable
from one nominee to
another and that takes place in two contingencies where there
would otherwise be a wastage of votes.
They are :
(I) when a candidate obtains more than what is required
for his success and therefore has an unnecessary surplus;
~
(2) When a candidate polls so few votes that be has absolutely no chance and therefore the votes nominating him are liable to be wasted."
·:-
Relevant Rules in Part VII of the Election Rules are modulated
on the principles enunciated by Shri Aiyar in the aforesaid boOk.
The
(l) A.J.R. 1969 S.C. 604.
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TJ-liRU JOHN v. RETURNING OFFICER (Sarkaria, J.)
549
material provisions are contained in Rule 2(1)(c), 67, 70, 71, 73
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to 81 and 85.
~
Under the scheme and system envisaged by these Election Rules,
each elector has only one vote, irrespective of the number of seats to
be filled.
But that single vote is transferable from one candidate to
another. The ballot paper bears the names of the candidates, and the
elector marks on it his preferences for the candidates by denoting it
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with the figures 1, 2, 3, 4 and so on against the names chosen by him
and this denotation is understood to be alternative in the order indicated (vide Aiyar's The Single Transferable Vote), The figure 1 set by
the elector opposite the name of a candidate means "first preference";
the figure 2 set opposite the name of a candidate, the "second preference", and so on [Rule 71 (ii) ].
TI1e minimum number of valid
votes requisite to secure the return of a candidate at the election is
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called the quota.
At an election where only one seat is to be filled,
every ballot paper is deemed to be of the value of 1 at each count,
and the quota is determined by adding the values credit to all the
candidates, and dividing the total by 2, and adding 1 to the quotient,
jgnoring the remainder, if any, and the resulting number is the quota,
vide, Rule 75 ( 1). At an election where more than one seat is to be
filled, every ballot paper is deemed of the value of 100 and the quota
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is determined by adding the values credited to all the candidates, and
dividing the total by a number which exceeds by 1 the number of
vacancies to be filled, and adding 1 to the quotient ignoring the re~
mainder, if any, and the resulting number is the quota (Rule 76).
The computation in the preliminary process is as under :
The returning officer first deals with the covers containing
the postal ballot papers, and then opens the ballot boxes,
counts the baUot papers and sorts out and rejects the ballot
papers found invalid.
A ballot papef Ts deemed invali<l on
which-
·
(a) the figure 1 is not marked; or
(b) the figure 1 is set opposite the name of more than one
candidate or is so placed as to render it doubtful to
which candidate it is intended to apply; or
(c) the figure 1 and some other figures are set opposite
the name of the same candidate; or
(d) there is any mark or writing by which the elector can
be identified (Rule 73).
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After. r~jecting the invalid papers, the returning officer (a) arranges
thi remammg ballot papers in parcels according to the first preference
recorded for each candidate; (b) counts and records the number of
pape~s in each parcel and the total number; and (c) credits to each
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candidate the value of the papers in his parcel.
He then determines
~he quota in accordance with Rule 7 5 (1 ) , or Rule 7 6, if the election
ts to fill one seat or more than one seat, as the case may be.
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SUPREME COURT REPORTS
[1977] 3 S.C.R.
If (at any election held for filling more than one seat) at the end of
any count or a_t the end of the transfer of any parcel or sub-parcel of an
excluded candtdate the value of ballot papers credited to a candidate is
equal to, or greater than the quota, that candidate shall be declared
elected (Rule 78). If at the end of any count the value of the ballot
papers credited to a candidate is greater than the quota, the surplus is
transferred in accordance with the provisions of Rule 79, to the continuing candidates indicated in the ballot papers of that candidate as
being next in order of the electors' preference [Sub-Rule (1) of Rule
79] "Surplus" means the number by which the value of the votes original and transferred, of any candidate exceed the quota [Sub-rule (6)
of Rule 71].
"Continuing candidate" means any candidate not elected
and not excluded from the poll at any given time [Sub-rule ( 1) of Rule
71].
If more than one candidate have a surplus, the largest surplus
is .d~t with first and the others in order of magnitude, but every surplus
ansmg on the first count is dealt witth before those arising on the second
count and so on.
Where there are more surJ>luses than one to distribu~. and two or more surpluses are equal, regard shall be had to the
ongmal votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the
values of their original votes are equal,, the returning officer decides by
lot which candidate shall have his surplus first distributed. [Sub-rules
(2) & (3) of Rule 78].
"Original Vote", in relation to any candidate,
means a vote derived from a ballot paper on which a first preference is
recorded, for such candidate.
If the surplus of any candidate to be transferred arises from original
votes only, the returning officer shall examine all the papers in the parcel
belonging to that candidate, divide the unexhausted papers into subparcels according to the next preferences recorded thereon and make
a separate sub-parcel of the exhausted papers [Clause (a) of sub-rule
(4) of Rule 78].
"Exhausted paper" means a ballot pa~r on which
no further preference is recorded for a continuing candidate, provided
that a paper shall be deemed to have become exhausted whenever-(a)
the names of two or more candidates, whether continuing or not, are
marked with the same figure and are next in order of preference; or
(b) the name of the candidate next in order of preference, whether
continuing .or not, is marked by a figure not falling consecutively after
some other fi~ure on the ballot paper or by two or more figures [SubRule ( 3) of Rule 71].
The Returning Officer has to ascertain the
value of the papers in each sub-parcel and of all the unexhausted
papers. If the vaJue of the unexbausted papers is equal or less than
the surplus, be shall transfer all the unexhausted papers ~t th~ value at
which they were received by the candidate whose surplus ts bemg transferred. If the value of the unexhausted papers is greater than the surpJus, he shall transfer the sub-parcels of unexhausted papers
~nd the
value arwhich each paper shall be transferred shall be ascertatned by
dividing the surplus by the total number of unexhausted papers [SubRule (4) of Rule 781.
Sub-Rule (5) indicates the procedure where
the surplus of any candidate to be tran~ferred arises frol!l transferred as
well as oricinal votes.
All papers in th" parcel or sub-parcel of
!Ul
elected candidate not tansferred under •hi~ rule have to set apart as
finally dealt with [Sub~Rule (7) of Rule 78].
THIRU JOHN V.