judgement:
vil Appeal No. 574 (NCE) of I987.
From the Judgment and Order dated 18.2.
1987 of the Rajasthan High Court in S.B. Elec.
Petn No. 8 of 1985.
Dr. N.M. Ghatate, S.V. Deshpande and Abhishek Singhvi for he Appellant.
G.L. Sanghi.
Jitender Sharma, P. Gaur and M.K. Calla for the Respondent.
The Judgment of the Court was delivered by: PG NO 7 SINGH, J.
This appeal under Section 116 A of the Representation of People Act 1951 (hereinafter referred to as the Act) is directed against the judgment and order of the High Court of Rajasthan dated 18.2.1987 setting aside the election of the appellant to the State Legislative Assembly of Rajasthan from Jodhpur City Assembly Constituency.
Election to the State Legislative Assembly of Rajasthan from the constituency No. 183 Jodhpur City was held in the year 1985; nomxination papers were filed by 8.2.1985 and the date of scrutiny was 9.2.1985.
In all 45 candidates filed their nominations.
After scrutiny and withdrawal 21 candidates contested the election, after polling and counting of votes the appellant was declared elected having obtained majority of votes.
Anand Purohit, respondent who is an elector in the Jodhpur City Constituency No. 183 filed an election petition before the High Court challenging the appellant 's election, on the ground that the result of election was materially affected on account of improper rejection of nomination papers of three candidates namely, Smt.
Umrao Ben, Hukmichand and Suraj Prakash Joshi.
The respondent pleaded that Smt.
Umrao Ben was an elector in Sardarpura Assembly Constituency the returning officer wrongly rejected her nomination paper, without affording opportunity to her to produce a copy of the electoral roll.
He further pleaded that Hukmichand, and Suraj Prakash Joshi both were more than 25 years of age on the date of their nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age.
The appellant contested the election petition.
He asserted that Umrao Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura constituency along with her nomination, she further failed to produce copy of the electoral roll at the time of scrutiny and therefore the returning officer rightly rejected her nomination paper.
As regards Hukmichand and Suraj Prakash Joshi, the appellant pleaded that none of the two candidates dates was present before the returning officer at the time c,f scrutiny and since the entries contained in the electoral roll indicated that they were below 25 years of age the returning officer rightly rejected their nomination paper.
The appellant further asserted that the rejection of the three nomination papers was proper and the result of the election was not materially affected on account of the rejection of the aforesaid three nomination papers.
The High Court held that the nomination paper of Smt.
Umrao Ben was validly rejected as she had failed to comply with Section 33(5) of the Act inasmuch as she had failed to produce a copy of the electoral roll or a certified copy of the relevant extract relating to entry of her name in the electoral roll in Sardarpura constituency.
The High Court further held that nomination papers of Hukmichand and Suraj Prakash Joshi had been rejected improperly by the returning officer as both the candidates had attained the qualifying age of 25 years on the date of nomination.
On these findings the High Court set aside the appellant 's election by its judgment and order dated 18.2.1987.
Aggrieved by the said judgment the appellant has preferred this appeal under Section 116 of the Act.
PG NO 8 The controversy in the present appeal relates to the validity of the orders of the returning officer rejecting the nomination paper of Smt.
Umrao Ben, Hukmichand and Suraj Prakash Joshi.
We would first examine the validity of the order of the returning officer rejecting Smt.
Umrao Ben 's nomination paper, which was questioned by the Respondent before us.
There is no dispute that Umrao Ben was not an elector in the Jodhpur City Assembly Constituency No. 183.
She was an lector in Sardarpura Assembly Constituency.
In her nomination paper she had given the details of the relevant entry contained in the electoral roll of Sardarpura Assembly Constituency, but her nomination paper was not accompanied by a certified copy of the relevant entry in the electoral roll of Sardarpura constituency nor she had produced a copy of the electoral roll or the relevant part thereof before the returning officer at the time of scrutiny.
Therefore the returning officer rejected her nomination paper.
The High Court held that the returning officer had rightly rejected the nomination paper of Umrao Ben and there was no question of improper rejection of her nomination paper.
Sri G.L. Sanghi, learned counsel for the respondent challenged the correctness of the High Court 's findings on this question.
He urged that since the Returning Officer who was holding the scrutiny of nomination papers relating to the Jodhpur Assembly constituency was also the returning officer of Sardarpura Assembly constituency,he should have verified the entry of Umrao Ben 's name from the electoral roll of Sardarpura Assembly Constituency which must have been with him.
He urged that Umrao Ben 's request to verify entries relating to her name from the electoral roll of Sardarpura Assembly constituency was ignored by the returning officer, and further her request for grant of time to produce electoral roll was also rejected.
He urged that object of Section 35 of the Act was merely to ascertain as to whether a candidate whose nomination paper was scrutinised was an elector or not and since the electoral roll of Sardarpura Assembly Constituency was already with the returning officer he could have verified the entries from that electoral roll.
The returning officer had acted in an unreasonable manner in refusing to do that and in rejecting her nomination paper.
We find no merit in these submissions.
PG NO 9 Section 33 of the Act provides for presentation of nomination paper and it further lays down the requirements of a valid nomination.
Sub section (5) of the Section 33 is as under: "where the candidate is an elector of a different constituency a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
" The above provision requires a candidate who is an elector of a different constituency, to file a copy of the electoral roll of constituency a relevant part of that roll or a certified copy of the relevant entries along with his nomination paper.
These documents are necessary to show that the candidate is an elector of a different constituency and he is eligible to contest the election.
If a candidate is unable to comply with these requirements at the time of filing the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the electoral roll of the constituency or the relevant part thereof or a certified copy of the relevant entries of the roll before the returning officer at the time of scrutiny.
The Legislature provides two opportunities to such a candidate for proving his eligibility to contest the election one at the stage of filing the nomination paper and the other at the stage of scrutiny.
If the candidate fails of avail either of the two opportunities his nomination paper is liable to be rejected.
Section 36 of the Act provides that on the date of scrutiny of nomination papers the returning officer shall examine the nomination papers and shall decide all objections which may he made to any nomination and he may either on objection or on his own motion, after holding such summary inquiry.
if any, reject any nomination on the grounds specified in clauses (a), (b) and (c) of sub section (2).
Section 36(2)(b) provides for the rejection of the nomination paper on the candidate 's failure to comply with any of the provisions of Section 33 or Section 34 of the Act.
Section 33(5.) read with Section 36(2)(b) makes it apparent that if a candidate who is an elector of a different constituency fails to prove his eligibility in the manner prescribed by Section 33(5) of the Act, his nomination paper is liable to be rejected for the non compliance of Section 33(5) of the Act.
These provisions are plain which admit of no other interpretation.
PG NO 10 Non compliance with Section 33(5) is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate.
Section 35(5) prescribes a particular made to prove eligibility of a candidate to contest election and Section 36(2)(b) provides penal consequences.
Therefore Section 35(5) is mandatory in nature.
There is no dispute that Umrao Ben failed to comply with the requirement of Section 33(5) of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof, or the certified copy of the relevant entries along with her nomination paper.
Nor she had produced any of the three documents before the returning officer at the time of scrutiny.
In the circumstances the returning officer rightly rejected Umrao Ben 's nomination paper.
Shri G.L. Sanghi, learned counsel then urged that Section 33(5) of the Act was directory and it+was open to a candidate to prove his eligibility, by any other mode.
He urged that Umrao Ben 's request to the returning officer to verify her entry from the electoral roll of Sardarpura Assembly Constituency which was in his custody (as he was the returning officer of Sardarpura Assembly Constituency also) was ignored and he refused to grant her time to produce the necessary documents.
In the election petition there was no pleading that Umrao Ben had made any such request or that the returning officer had refused to grant her time.
The High Court has on appreciation of evidence held that no request for time was made by Smt.
Umrao Ben and no request for verifying the entry relating to her from the electoral roll of Sardarpura assembly Constituency was made.
But even assuming that the returning officer had refused to verify the relevant entries relating to Umrao Ben from the electoral roll of Sardarpura Assembly Constituency, he had acted in accordance with law.
No exception could be taken to his conduct.
Section 33(5) of the Act lays down a mandatory requirement for a valid nomination.
The purpose of Section 33(5) of the Act is to satisfy the returning officer that the candidate is eligible to contest the election and if he fails to satisfy the returning officer in the manner prescribed by Section 33(5) of the Act, the penalty and the consequences which are specified in Section 36(2)(b) must follow.
Section 33(5) is not directory instead it is mandatory in nature.
An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescribed by Section 33(5) of the Act and if he fails to do that, he must suffer the consequences contemplated by Section 36(2)(b) of the Act.
It is not open to a candidate who fails to comply with Section 33(5) of the Act to put the blame on the returning officer for the rejecting his nomination paper.
The retuning officer is under no legal obligation to make amends for the omission of a candidate, especially when the omission relates to a mandatory requirements.
Apart from this legal aspect, even on facts, the Returning Officer, in his testimony before the High Court, had stated that the electoral roll of Sardarpura Assembly Constituency was not with him at the time he had taken up the scrutiny of nomination paper of Jodhpur City Constituency.
The law does not enjoin the returning officer to send for the electoral roll from his office to verify the eligibility of a candidate.
The law casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in Section 33(5) of the Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter.
The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the eligibility of a candidate.
PG NO 11 In Sri Babu Ram vs Shrimati Prasanni & Ors.
, this Court interpreted Section 33(5) and Section 36(2)(b) and observed as under: "Section 33(5) requires the candidate to supply the prescribed copy and Section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to de rejected.
In other words.
this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so.
In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of Section 33(5) is not mandatory but is directory, because the statute itself has made it clear that the failure to comply with the said requirement leads to the rejection of the nomination paper.
Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequences.
" PG NO 12 Repelling the argument that failure to comply with the requirement of Section 33(5) was not a defect of substantial nature and the returning officer could be satisfied by other modes that the candidate 's name was entered as an elector in another constituency, the Court held that the satisfaction of the returning officer was required to be made in accordance with the statutory requirement and if a candidate failed to comply with that requirement the returning officer could not be satisfied by any other mode.
The Court further held that the failure to comply with the requirement of Section 33(5) was a defect of substantial nature which could not be ignored under Section 36(4) of the Act.
The view taken in Sri Babu Ram 's case (supra) has been followed in Narbada Prasad vs Chaggan Lal & Ors., [I969] 1 SCR 499; Parmar Himat singh Jugatsingh vs Patel Harmanbhai Narsibhai, [1974].
3 SCR 453 and Avadh Raj Singh vs Jugal Kishore Gupta, [l979] 4 SCC 328.
Learned counsel for the respondent sought support from a Constitution Bench decision of this Court in Ranjit Singh vs Pritam Singh & Ors.[1966] 3 SCR 543 for his submission that failure to comply with section 33(5) Was not a defect of substantial character.
We have carefully gone through the decision but we do not find anything therein to support the respondent 's contention instead it supports the view taken by us.
In Ranjit Singh 's case (supra) a candidate who was not an elector of the constituency had filed three nomination Papers.
Along with one of his nomination paper he had filed a copy of the electoral roll of the constituency when his name was entered as an elector, with a view to comply with the requirement of Section 33(5) of the Act.
He had not filed similar copies along with other two nomination papers.
The nomination paper with which the candidate had filed a copy of the electoral roll was rejected on the ground of some technical defect But the other two nominations were rejected on the ground that copy of the electoral roll was not filed along with them.
This Court held that the returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers.
The Court further held Section 33(5) did not require that a copy must be filed with each nomination paper or that any copy should be filed at all as it was open to a candidate to produce the copy before the returning officer at the time of scrutiny.
The Court held that the purpose of filing the copy is ensure that the returning officer was able to check whether the candidate concerned was qualified or not and that purpose would be effectively served even if only one copy was filed with one nomination paper and no copies were filed along with the other nomination papers.
While considering Section 33(5) and36(4) of the Act the Constitution Bench held that Section 33(5)required that it was the copy produced by the candidate which should show that he was qualified or not and that purpose a copy produced by the candidate should be complete whether it was of the roll or of the relevant part thereof.
To such a case Section 36(4) had no application.
Section 36(4) provided that returning officer should not reject any nomination paper on the ground of any defect which was not of a substantial character.
Non production of copy of the relevant part was a defect of a substantial character for it made it impossible to decide whether the candidate was qualified or not.
Since qualification for contesting election was a matter of substantial character, the failure to produce a copy of the electoral roll which was incomplete was a defect of a substantial character it would invalidate the nomination paper.
In this view we agree with the High Court that there had been no improper rejection of the Umrao Ben 's nomination paper, as the accidental circumstances that the returning officer was also the returning officer of the other constituency should not make any difference.
PG NO 13 As regards the rejection of the nomination paper of Hukmi Chand and Suraj Prakash Joshi are concerned the High Court has held that none of the two candidates was present before the returning Officer at the time of scrutiny nor any person on their behalf Was present.
In his nomination paper exhibit 2 Hukmi Chand had given a declaration that he had completed 26 years of age while Suraj Prakash Joshi had given declaration in his nomination paper exhibit 3 that he had completed 25 years of age.
At the time of scrutiny no objection was raised against their nomination paper by any party and none appeared on behalf of the aforesaid two candidate.
The Returning Officer found that according to the entries in the electoral roll the age of Hukmi Chand was 23 years similarly in the case of Suraj Prakash Joshi the entry in the electoral roll indicated that on the relevant date his age was 22 years.
On the basis of the entries contained in the electoral roll the Returning Officer held that the two candidates did not possess the requisite qualification of age as required by Article 173 of the Constitution to contest the election.
Accordingly he rejected both the nomination papers.
Before the High Court a controversy was raised as to whether the two candidate were present at the time of scrutiny but on the evidence on record the High Court has held that neither of the two candidates nor any body on their behalf was present at the time of scrutiny.
Placing reliance on the oral and documentary evidence produced by the respondent the High Court has recorded findings that Hukmichand as well as Suraj prakash Joshi both had attained the age of 25 years on the relevant date 1.1.1984 and their nomination papers had been rejected improperly by the Returning officer, which materially affected the result of the election.
PG NO 14 Dr Chitale learned counsel for the appellant urged that on the admitted facts and circumstances the Returning Officer could not be held to have acted improperly in rejecting the nomination papers of Hukmi Chand and Suraj Prakash Joshi.
He urged that since at the time of the scrutiny neither of the two candidates nor their proposer nor anybody else appeared before the returning officer, or placed any material before him showing that either of the two candidates was qualified to contest the election having attained the age of more than 25 years, the returning officer had no option but to rely on the entries contained in the electoral roll and therefore the rejection of the nomination papers of Hukmi Chand and Suraj Prakash Joshi could not be said to be improper.
Learned counsel further urged that if the returning officer did not act improperly in rejecting the nomination paper of the aforesaid candidates, appellants 's election could not be set aside on the basis of fresh or additional material placed before the High Court.
Section 36 provides that on the date fixed for the scrutiny of nomination, the candidate, his election agent, proposer or any other person duly authorised in writing by the candidate may attend the proceedings at the time and place fixed for scrutiny.
The returning officer is required to give them all reasonable facility for examining the nomination paper of all the candidates.
Section 36(2) requires the returning officer to examine the nomination papers and to decide all objections which may be made to any nomination.
He may, either on such objection or on his own motion, after such summary inquiry, if any, as he may think necessary, reject any nomination on any of the grounds specified under clauses (a),(b),and (c).
Clause (d) empowers the returning officer to reject nomination paper of a candidate if on the date fixed for the scrutiny of the nomination the candidate is not qualified or is disqualified for being chosen to fill the seat under any of the provisions of Articles 84,102,173 and 191 of the Constitution.
Article 173 lays down constitutional qualification for being a Member of the state Legislature, according to which a person is not qualified to be chosen to full a seat in the Legislature of a State unless he is not less than 25 years of age.
During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election.
In the instant case none of the two candidates appeared nor any body on their behalf appeared or placed any material before the returning officer to show that the candidates were not less than 25 years of age on the date of scrutiny 1.1.1984.
No doubt in the nomination papers both the candidates had made a declaration that they were not less than 25 years of age but entries pertaining to them in the electoral roll clearly indicated that they were less than 25 years of age.
The returning officer placing reliance on the entries contained in the public document i.e. the electoral roll, rejected the nomination paper of the two candidates on the ground that Hukmi Chand and Suraj Prakash Joshi were not qualified to contest the election.
In the absence of any material before the returning officer, the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them.
But his decision is not final.
In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date.
It is open to the High Court to take a final decision in the matter notwithstanding the order of the returning officer rejecting the nomination paper.
If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election.
Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage.
Therefore it is open to n party to place fresh or additional material before the High Court to show that the Returning Officer 's order rejecting the nomination paper was improper.
It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer.
It is an original proceeding.
In the instant case it was open to the respondent election petitioner to place material before the High Court to show that the two candidates were qualified and their nomination paper was improperly rejected.
PG NO 15 The question then arises whether the respondent has proved in accordance with law that Hukmi Chand and Suraj Prakash Joshi whose nomination papers were rejected by the Returning Officer had attained the age of 25 years on 1.1.1984.
In the election petition the respondent pleaded that Hukmi Chand 's nomination paper was improperly mentioned his age as 23 years while his correct date of birth was 13.5.1956 as evidenced by the certificate issued by the Head Master of the New Government School Jodhpur.
The respondent had further pleaded that the nomination paper of Suraj Prakash Joshi was rejected on the sole ground that in the electoral roll his age was recorded as 23 years on 1.1.1984 but the entries contained in the electoral roll were not final and conclusive.
The date of birth of Suraj Prakash Joshi was not mentioned in the election petition and there was no further pleading that on the date of filing his nomination Suraj Prakash Joshi had actually attained the age of 25 years.
However it was pleaded that since Suraj Prakash Joshi had given a declaration that he had completed 25 years of age there was no reason to disbelieve him as no objection had been raised against the declaration made by him and therefore the returning officer acted improperly in rejecting his nomination nation paper.
In his written statement the appellant denied the allegations made by the election petitioner and asserted that the Returning Officer acted rightly in rejecting the nomination papers of Hukmi Chand and Suraj Prakash Joshi as they were not qualified to contest the election as they had not completed 25 years of age on the date of nomination.
The respondent produced oral and documentary evidence to support his contention.
Even before the High Court none of the two candidates whose nomination papers were rejected appeared nor their parents were examined by the respondent nor any person having special knowledge about the dates of birth of the two candidates was examined by the respondent.
As regards Hukmi Chand the respondent produced exhibit 8 (a copy of scholars register) exhibit 9 (counter foil of certificate of Board of Secondary Education) exhibit 10 (mark sheet of Hukmi Chand) exhibit 11 (a copy of counter foil of certificate of Board of Secondary Education) relating to Suraj Prakash Joshi, and exhibit 12 (Tabulation record of marks obtained by Suraj Prakash Joshi).
These documents were sought to be proved by Anant Ram Sharma PW 3 and Kailash Chand Taparia PW ; is a copy of the scholars register issued by the Head of the Government Higher Secondary School and entries contained therein show that Hukmi Chand had joined Government Middle School Palasani on 24.6.
1972 and he had left the same on 10.6.1976 after having passed Viiith class.
In this document 13.6.
l956 is mentioned as the date of birth of Hukmi Chand son of Sardar Mal.
exhibit 9 is a certificate issued by the Board of Secondary Education Rajasthan certifying that Hukmi Chand Bhandari son of Sardar Mal Bhandari passed Secondary School Examination of 1974 from New Government Higher Secondary School Jodhpur, it also shows 13.6.
1956 as date of birth of Hukmi Chand.
exhibit 10 is a tabulation record containing the details of the marks obtained by Hukmi Chand at the Secondary School Examination 1974.
In this document also his date of birth is mentioned as 13.6.
Placing reliance on these three documents the High Court held that Hukmi Chand 's date of birth was 13.6.1956 and therefore his age on 1. 1. 1984 was more than 15 years.
The High Court further held that view of the entry in exhibit 11.
certificate issued by the Board of Secondary Education Rajasthan Suraj.
Prakash was born on 11.3.
1959 and therefore the was qualified to contest the election as he was not less than 25 years of age.
On these findings the High Court held that the respondent had successfully proved that the nomination papers of Hukmi Chand and.
Suraj Prakash Joshi had been wrongly rejected.
PG NO 16 Before the High Court appellant raised a contention that there was no evidence to prove that exhibit 8, 9, 10, 11 and 12 related to Hukmi Chand and Suraj Prakash Joshi and therefore the documents could not be pressed into service.
A further contention was raised that the election petitioner had failed to place any evidence before the Court to show that entries of age in the documents exhibit 8, 9, 10, 11 and 12 had been made on the basis of information furnished either by the parents or by any one else having special knowledge about the date of birth of Hukmi Chand and Suraj Prakash Joshi.
In the absence of such evidence the entries in the documents had no evidentiary or probative value.
The High Court rejected this submission on the ground that the appellant had raised no such plea in his written statement nor he produced any evidence to prove that the documents did not pertain to Hukmi Chand or Suraj Prakash Joshi or that any other persons having the same parentage by the name of Hukmi Chand and Suraj Prakash Joshi existed.
The High Court committed error.
The question of appreciation of evidence is not to be pleaded instead it was the duty of the Court to consider whether the documents produced by the respondent proved the facts in issue.
As regards the evidentiary value of exhibit 8, 9, 10, 11 and 12 the High Court took note that there was no evidence as to who gave the information regarding the date of birth of Hukmi Chand at the time of his admission in Government Middle School Paslasani and even the initial application form for admission to the school was not produced and subsequent form for admission to the Government Multi purpose Higher Secondary School Jodhpur from where he passed the Secondary examination was also not produced, as it observed "No attempt was made by the parties to get the application form for admission and transfer certificate produced from the New Government Higher Secondary School Jodhpur and similarly no application form for admission was got produced from the Government Middle School, Palasni.
But still it can be presumed that the date of birth recorded in the Scholar 's Register is based on the date of birth given in the application form initially submitted a Palasni continued in the transfer certificate and the same was mentioned at the time of admission in the Government Multipurpose Higher Secondary School, Jodhpur" (emphasis supplied).
After making the aforesaid observations the High Court held that these documents were public documents within the meaning of Section 74 of the Evidence Act and therefore there was a presumption about the correctness of the date of birth mentioned therein.
The High Court was conscious of the fact that in the absence of the evidence of the person who may have given information regarding the date of birth, the entries contained in the scholar 's register or certificate had no probative value as would be clear from the following observations: "It is true that it would have been better if the person who gave the information regarding the date of birth would have been examined but failure to examine such a person would not in any way affect the genuineness of the entries and also their probative value unless in comparison to these entries, any other weighty evidence having greater probative value is produce (emphasis supplied).
The entry in the scholar register may be contradicted by the birth entry or entry in the vaccination register or reliable horoscope or any other reliable or weighty oral or documentary evidence but in the absence of such contradicting weighty evidence, the entries in the scholar register and other records of the educational institution would, in my opinion, certainly enjoy such probative value.
" PG NO 18 After making aforesaid observations the High Court held that in view of the exhibit X, 9, 10, 11 and I1 the election petitioner had discharged the burden in proving that Hukmi Chand and Suraj Prakash Joshi both had attained the age of 25 years on the relevant date.
The High Court drew adverse inference against the appellant on the ground that though Hukmi Chand and Suraj Prakash Joshi had been cited as witnesses by the appellant but they were not examined.
The High Court proceeded on the assumption that if these witnesses had been examined they would not have supported the respondent.
After drawing adverse inference against the appellant and placing reliance on the aforesaid documentary evidence the High Court held that Hukmi Chand and Suraj Prakash Joshi both were qualified to contest the election as they had completed 25 years of age on 1. 1.198$ and the returning officer had improperly rejected their nomination papers which materially affected the result of the election.
The High Court in our opinion committed serious error of law in appreciating the evidentiary value of the documentary evidence produced by the respondents as a result of which its findings are not sustainable.
PG NO 18 We would now consider the evidence produced by the respondent on the question of age of Hukmi Chand and Suraj Prakash Joshi.
The respondent examined Anantram Sharma PW 3 and Kailash Chandra Taparia PW5.
Anantram sharma PW 3 has been the Principal of New Government Higher Secondary School, Jodhpur since 1984.
On the basis of the scholar 's register he stated before the High Court that Hukmi Chand joined school on 24.6.
1972 in 9th class and his date of birth as mentioned in scholar 's register was 13.6.1956.
He made this statement on the basis of the entries contained in the scholar 's register exhibit 8.
He admitted that entries in the scholar 's register are made on the basis of the entries contained in the admission form.
He could not produce the admission form in original or its copy.
He stated that Hukmi Chand was admitted in 9th class on the basis of transfer certificate issued by the Government Middle School, Palasni from where he had passed 8th standard.
He proved the signature of Satya Narain Mathur the then Principal who had issued the copy of the scholar 's register exhibit 8.
Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in exhibit 8.
The evidence of Anantram Sharma merely proved that exhibit 8 was a copy of entries in scholar 's register.
His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made in the scholar 's register.
Kailash Chandra Taparia PW 5 was Deputy Director (Examination) Board of Secondary Education, Rajasthan, he produced the counter foil of Secondary Education Certificate of Hukmi Chand Bhandari.
a copy of which has been filed as exhibit 9.
He also proved the tabulation record of the Secondary School Examination 1974, a copy of which has been filed as exhibit 10.
In both these documents Hukmi Chand 's date of birth was recorded as 13.6.1956.
Kailash Chandra Taparia further proved exhibit 11 which is the copy of the tabulation record of Secondary School Examination of 1977 relating to SuraJ Prakash Joshi.
In that document the date of birth of Suraj Prakash Joshi was recorded 11.3.1959 Kailash Chandra Taparia stated that date of birth as mentioned in the counter foil of the certificates and in the tabulation form exhibit 12 was recorded on the basis of the date of birth mentioned by the candidate in the examination form.
But the examination form or its copy was not produced before Court.
In substance the statement of the aforesaid two witnesses merely prove that in the scholar 's register as well as in the Secondary School examination records the date of birth of a certain Hukmi Chand was mentioned as 13.6.1956 and in the tabulation record of Secondary School Examination a certain suraj Prakash Joshi 's date of birth was mentioned as 11.3.1959.
No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination nation papers.
Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court.
No doubt, Exs. 8, 9. 10. 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the Court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document.
As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents.
Parents or near relations having special knowledge are the best person to depose about the date of birth of a person.
If entry regarding date of birth in the scholars register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value.
The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved.
The date of birth mentioned in the scholar 's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined.
The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned.
If the entry in the scholar 's register regarding date of birth is made in the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value.
Merely because the documents Exs. 8, 9, 1().
11 and 12 were proved, it does not mean that the contents of documents were also proved.
Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents.
Since the truth of the fact, namely, the date of birth of HukmiChand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents.
The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouch safe for the truth of the facts in issue.
No evidence of any such kind was produced by the respondent to prove the truth of the facts.
namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi.
In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.
PG NO 20 The High Court held that in view of the entries contained in the exhibit 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination.
In our opinion the High Court committed serious error.
Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact.
To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law.
An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.
In Raja Janaki Nath Roy & Ors.
vs Jyotish Chandra Acharya Chowdhury, a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made.
The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath vs Moti Ram Moti Ram & Ors., [1951] Punjab 377; Sakhi Ram & Ors.
vs Presiding Officer, Labour Court, North Bihar, Muzzafarpur & Ors.
, [1966] Patna 459; Ghanchi Vora Samsuddish Isabhai vs State of Gujarat,[1970] Gujarat 178 and Radha Kishan Tickoo & Anr.
vs Bhushan Lal Tickoo & Anr., [1971] J & K 62.
In addition to these decisions the High Courts of Allahabed, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar 's register or in school certificate in election cases.
The Courts have consistently held that the date of birth mentioned in the scholar;s register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined,see Jagdamba prasad vs Sri Jagannath Prasad & Ors., ; K. Paramalali vs L.M. Alangam & Anr., and Krishna Rao Maharu Patil vs Onkar Narayan Wagh, 14ELR 386.
PG NO 21 In Brij Mohan Singh vs Priyu Brat Narain Sinha & Ors.
, ; a question arose whether the returned candidate had attained the age of 35 years on the date of his nomination.
The High Court had set aside the election of the returned candidate on the ground that he was below the age of 25 years on the date of filing the nomination.
This Court set aside the order of the High Court and upheld the election of the returned candidate on the ground that the burden of proving that the returned candidate had not attained the age of 25 years on the date of his nomination was on the election petitioner and since he had failed to prove that, the election of the returned candidate could not be set aside.
This Court held that an entry recorded in the birth register maintained by an illiterate Chowkidar by somebody else at his request, was not admissible and had no probative value within Section 35 of the Indian Evidence Act.
In Ram Murti vs State of Haryana, AIR 1970 SC 1029 the date of birth of a girl mentioned in the school certificate was not accepted.
However in Mohd. Ikram Hussain vs State of U.P. & Ors., ; this Court accepted the date of birth of a girl as mentioned in the school certificate as the date of birth mentioned therein was supported by an affidavit filed by the father of the girl.
PG NO 22 The appellant was declared elected aS he had polled majority of valid votes.
His election could not be set aside unless the respondent election petitioner was able to prove that Hukmichand and Suraj Prakash Joshi had attained the age of 25 years on the date of nomination by producing cogent and reliable evidence before the High Court.
The burden to prove that fact was on the respondent throughout and he could not and did not discharge that burden merely by producing the documentary evidence exhibit 8, 9, 10, 11 and 12 or on the basis of oral testimony of Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5.
As discussed earlier these documents do not conclusively prove the dates of birth of Hukmi Chand and Suraj Prakash Joshi.
The entries regarding dates of birth contained in the scholar 's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined.
In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value.
The High Court committed serious documents.
In our view the High Court 's entire approach in considering the question of dates of birth was wholly misconceived.
The burden to prove the fact in issue, namely, the dates of birth of Hukmichand and Suraj Prakash Joshi was on the respondent who was the election petitioner.
The respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained in the electoral roll regarding the age of two candidates was incorrect.
It appears that in his list of witnesses the appellant had included the name of Suraj Prakash Joshi and his father Maghdutt Joshi as witnesses but they were not examined by him.
Similarly, Hukmi Chand was also cited by the appellant but he was also not examined instead Navratan Mal Bhandari, brother of Hukmi Chand was examined as PW 4 and Ghanshyam Chhangani was examined as PW 6 by the appellant, who supported the appellants case that Hukmi Chand and Suraj Prakash Joshi had not attained the age of 25 years on the date of nomination.
Since the appellant had not examined Hukmi Chand.
Suraj Prakash Joshi or their parents, the High Court drew adverse inference against him.
The High Court committed serious error in doing so.
There was no question of drawing adverse inference against the appellant, as the burden to prove the age of Hukmi Chand and Suraj Prakash joshi was on the election petitioner and since he had failed to prove the same by cogent evidence no adverse inference could be drawn against the appellant.
In fact.
burden was on the respondent to prove his case by producing the Hukmichand and Suraj Prakash Joshi, or their parents to prove and corroborate the dates of birth as mentioned in the school register and the certificate.
If he failed to do that he could not succeed merely because appellant had not produced them.
In the circumstances no adverse inference was at all possible to be drawn against the appellant for not examining Hukmi Chand and suraj Prakash Joshi or their parents.
In view of the above discussion we are of the opinion that Umarao Ben 's nomination paper was rightly rejected and further the respondent has failed to prove that Hukmi Chand and Suraj Prakash Joshi possessed the necessary age qualification as required by Article 173 of the Constitution.
Therefore the returning officer was justified in rejecting their nomination paper.
In this view the High Court wrongly set aside the appellant 's election.
We accordingly allow the appeal set aside the order of the High Court and dismiss the election petition.
The appellant is entitled to costs which we quantify at Rs.5,000.

dataset_name: IN-Abs

summary/full:
Election to the State Legislative Assembly of Rajasthan for Jodhpur City Constituency, was held in the year I985.
Nomination papers were filed on 8.2.1985 and the date of scrutiny was Y.2.
In all 45 candidates filed their nominations, after scrutiny and withdrawal, 21 candidates contested the election.
After polling and the counting of votes, the appellant was declared elected having obtained majority of votes.
The respondent who was an elector in the Jodhpur city Constituency filed an election petition before the High Court challenging the appellant 's election on the ground that the result of election was materially affected on account of improper rejection of nomination papers of 3 candidates, namely, Smt.
Umrao Ben, Hukmi Chand and Suraj Prakash Joshi.
It was pleaded that Smt.
Ben was an elector in the Sardarpura Assembly Constituency the Returning Officer wrongly rejected her nomination paper without affording an opportunity to her to produce a copy of the electoral roll, that Hukmi Chand and Suraj Prakash Joshi both were more than 25 years of age on the date of the nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age.
PG NO 1 PG NO 2 The appellant contested the election petition.
It was asserted that Smt.
Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura Constituency along with her nomination, that she further failed to produce a copy of the electoral roll at the time of scrutiny and the returning officer therefore rightly rejected her nomination paper.
In respect of Hukmi Chand and Suraj Prakash Joshi, it was pleaded that none of the two candidates were present before the returning officer at the time of scrutiny and since the entries contained in the electoral roll indicated that they were below 25 years of age the returning officer rightly rejected their nomination papers.
and that the rejection of the 3 nomination papers was proper and the result of the election was not materially affected on account of the rejection of the name.
The High Court allowed the election petition and set aside the appellant 's election.
It held that the nomination paper of Smt.
Umrao Ben was validly rejected as she had failed to comply with section 33(5) of the Representation of Peoples Act inasmuch as she failed to produce the copy of the electoral roll or a certified copy of the extract relating to entry of her name in the electoral roll.
It further held that the nomination papers of Hukmi Chand and Suraj Prakash Joshi had been rejected improperly by the Returning officer as both the candidates had attained the qualifying age of 25 years on the date of nomination.
Aggrieved by the aforesaid judgment.
the appellant preferred an appeal to this Court under section 116 A of the Representation of People Act, 1951.
On the questions whether: (1) the returning officer had validly rejected the nomination papers of Smt.
Umrao Ben, Hukmi Chand and Suraj Prakash Joshi, and (2) the respondent had proved in accordance with law that Hukmi Chand and Suraj Prakash Joshi whose nomination papers were rejected by the Returning Officer had attained the age of 25 years on January 1, 1984.
PG NO 3 Allowing the appeal, setting aside the order of the High Court and dismissing the election petition, the Court.
HELD: l(a).
Section 33 of the Act provides for presentation of nomination paper and it further lays down the requirements of a valid nomination.
Section 33(5) requires a candidate who is an elector of a different constituency, to file a copy of the electoral roll of the constituency as a certified copy of the relevant entries along with his nomination paper.
If a candidate is unable to comply with these requirements at the time of filing the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the electoral roll of the constituency of the relevant part thereof or a certified copy of the relevant entries of the roll before the returning officer at the time of scrutiny.
[9A E] (b) The Legislature thus provides two opportunities to such a candidate for proving his eligibility to contest the election, one at the time of filing the nomination paper and the other at the stage of scrutiny.
If the candidates fail to avail of either of the two opportunities his nomination paper is liable to be rejected.
[9E F] (c) Non compliance with section 33(5) is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate.
Section 33(5) prescribes a particular mode to prove eligibility of a candidate to contest election and section 36(Z)(h) provides penal consequences.[10A] (d) Section 33(5) of the R.P. Act lays down a mandatory requirement for a valid nomination.
The purpose is to satisfy the returning officer that the candidate is eligible to contest the election and if he fails to satisfy the returning officer in the manner prescribed, the penalty and the consequences which are specified in section 36(2)(b) must follow.
Section 33(5) is not directory instead it ia mandatory in nature.
[l0F] (e) An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescribed by section 33(5) of the Act and if he fails to do that, he must suffer the consequences contemplated by section 36(2)(b) of the Act.
It is not open to a candidate who fails to comply with section 33(5) to put the blame on the returning officer for the rejection of his nomination paper.
The returning officer is under no legal obligation to make amends for the omission of a candidate, especially when the omission relates to a mandatory requirement.
[10G 11A] PG NO 4 (F) The law does not enjoin the returning officer to send for the electoral roll from his office to verify the eligibility of a candidate.
The law casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in section 33(5) of the Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter.
[11B ] (g) The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the eligibility of a candidate.
[11C] In the instant case, there is no dispute that Smt.
Umrao Ben failed to comply with the requirement of section 33(5) of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof, or the certified copy of the relevant entries along with her nomination paper.
Nor she had produced any of the three documents before the returning officer at the time of scrutiny.
In such circumstances the returning officer rightly rejected Umrao Ben 's nomination paper.
[10B] Sri Babu Ram vs Shrimati Prasanni & Ors., [l959] SCR ; Narbada Prasad vs Chhagan Lal & Ors.
, ; ; Parmar Himat singh Jugatsingh vs Patel Harmanbhai Narsibhai, ; ; Avadh Raj Singh vs Jugal Kishore Gupta,[l979] 1 SCR: 228 and Ranjit Singh vs Pritam Singh & Ors., [1966]3 SCR 543, referred to.
2(a) During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election.
[l4F] (b) Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage.
Therefore it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer 's order rejecting the nomination paper was improper.
It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer.
It is an original proceeding.
[15C] (c) In the instant case, on the basis of the entries contained in the electoral roll the Returning Officer held that the two candidates did not possess the requisite qualification of age as required by Article 173 of the Constitution to contest the election.
Accordingly he rejected both the nomination papers.
In the absence of any material before the returning officer, the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them.
But his decision is not final.
In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date.
If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election.
[14G l5B] PG NO 5 3(a) To render a document admissible under section 35 of the Evidence Act three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law.
[21B] (b) An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Act, but the entry regarding the age of 3 person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.
[21C] (c) Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person.
If entry regarding date of birth in the school 's register is made on the information given by parents ar someone having special knowledge of the fact, the same would have probative value.
[20A] (d) The date of birth mentioned in the scholar 's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined.
[2OB] (e) The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned.
If the entry in the scholar 's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by Someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value.
[20C] PG NO 6 In the instant case, nomination papers of two candidates Hukmi Chand and Suraj Prakash Joshi were rejected by the Returning Officer on the ground that they had not attained the age of 25 years at the time of filing nomination papers.
In the election petition copies of extract of school register, certificate and mark list of Secondary Education Board were produced.
The High Court committed serious error in accepting the dates of birth as mentioned in the documents.
The High Court 's entire approach in considering the question of dates of birth was misconceived.
The burden to prove this fact in issue was on the respondent who was the election petitioner.
In fact the burden was on him to prove his case by producing Hukmi Chand and Suraj Prakash Joshi or their parents to prove or corroborate the dates of birth as mentioned in the school register and the certificate.
No adverse inference could be drawn against the appellant for not examining them.
[22C G; 23C D] Raja Janaki Nath Roy & Ors.
vs Jyotish Chandra Acharya Chowdhury, ; Jagan Nath vs Moti Ram & Ors., [1951] Punjab 377; Sakhi Ram & Ors.
vs Presiding Officer, Labour Court, North Bihar, Muzzafarpur & Ors.
, [1966] Patna 459; Ghunchi Vora Samsuddish Isabhai vs State of Gujarat, [1970] Gujarat 178; Radha Kishan Tickoo) & Anr.
vs Bhushan Lal Tickoo Anr., [1970]J & K 62; Jagdmba Prasad vs Shri Jagannath Prasad & Ors., ; k. Paramalali vs L.M. Alangam & Anr.
, ; krishna Rao Maharu Patil vs Onkar Narayan ; Brij Mohan Singh vs Priya Brat Narain Sinha & Ors.,[1965]3 SCR 861.,Ram murti vs State of U.P. Haryana, AIR 1625,referred to.


judgement:
ivil Appeal Nos.
2349 61 of 1988.
From the order dated 8.7.1987 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal Nos.
E/l583 to l589/ 86 A and 1533, 1521, 1528, 1529 31/1986 A and order No. 491 to 503 of 1987.
A.K. Ganguli, Mrs. Indu Malhotra and Mrs. Sushma Suri for the Appellant.
Soli J. Sorabji, M. Chandrasekharan Mrs. V.J. Francis and N.M. Popli for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals are under Section 35L,(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ') directed against the decision of the Customs Excise (Gold) Control Appellate Tribunal, New Delhi, (hereinafter called 'the CEGAT ').
The respondent M/s. Indian oxygen Ltd., Visakhapatnam, are manufacturers of dissolved acetylene gas and campressed oxygen gas (hereinafter called 'the gases ').
The respondent was supplying these gases in cylinders at their factory gate.
For taking delivery of these gases, some consumers/customers used to bring their own cylinders and take the delivery, while others used to have the delivery in the cylinders supplied by the respondent.
For the purpose of such supply of cylinders, certain rentals were charged by the respondent and also to ensure that these cylinders are returned properly, certain amount of deposit used to be taken from the customers.
On those deposits notional interest @ 18% per annum was calculated.
These two amounts with which we are concerned, namely, the rentals of the cylinders and the notional interest earned on the deposit of cylinders, are the subject matters of the dispute herein.
Whether these two amounts were includible in the value under Section 4 of the Act, is the question.
The revenue 's case is that the notional income on deposit of 764 cylinders and the rental are part of the asessable value and, hence, should be included in computing the assessable value.
The respondent, however, disputed that.
They had neither included such rentals nor the interest received from the buyers in the price list for the assessment.
Therefore, the revenue issued show cause notices to the respondent.
In their reply the respondent stated that the deposits from buyers were only to ensure return of the gas clinders from the customers.
The Asstt.
Collector Central Excise, Visakhapatnam, by an order dated 3.6.1965 held that the respondent had to pay excise duty on the interest earned @ 18% during the relevant period.
He further held that since the respondent had suppressed this fact from the revenue, in the past 5 years, under Rule 8 read with Section 11A of the Act, these are includible.
He also included the rentals of these cylinders in the value.
On an appeal, the Collector of Central Excise, Madras, upheld the said order with certain modifications.
Dissatisfied with the aforesaid, the respondents appealed to the CEGAT.
In its order under appeal, the Tribunal observed, inter alia, as follows: "As regards charge on account of rental for the cylinders and the interest which accrues on account of deposit receipts for the supply of gases in returnable cylinders, we are not persuaded that either of these charges is related to the cost of manufacture of the goods as such." The Tribunal, therefore, under Section 4 deleted from the value, rentals for the cylinders and interest which accrued on account of deposit receipts for the supply of gases.
Hence, this appeal by the Collector.
It is well settled that the levy under the Act, is on the manufacture.
Under Section 4(1)(a) of the Act, excise duty is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this Section, be deemed to be the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale.
Here the sale is of the gases.
The levy is on the manufacture of gases and the excisable goods are these gases.
765 The scope of Section 4 has been explained by this Court in Union of India & ors.
vs Bombay Tyre International Ltd., ; as well as the ramifications thereof in Asstt.
Collector of Central Excise vs Madras Rubber Factory Ltd., [19861 Supp SCC 751.
In the light of the aforesaid principles it has to be borne in mind that the supply of gas cylinders is ancillary to the supply of gases but it is strictly not incidental thereto because there are classes of persons who can take delivery of these gases without supply of cylinders by the respondent and in those cases no question of charging rental nor interest on those deposits for cylinders, would arise.
It is true that the gas being a commodity of peculiar nature, had to be delivered in cylinders but these cylinders might be supplied either by the supplier as an ancillary activity or brought by the consumer or purchasers at their own risk and cost.
For purchasers taking it in their own cylinders supplied by them, there was no charge for them.
This is not an activity for the manufacture of gases.
This is ancillary to it but not incidental.
Any income either in the shape of interest on deposits, notional or real, may be earned on the deposit for the safe return of cylinders, or any rental would be though ancillary but would not be the price for the manufacture.
These might be profits or gains, if any, of any ancillary or allied venture.
If that is the true position, then on the principle under Section 4(1)(a) of the Act, the Tribunal was right in excluding these two amounts while computing the value of the excisable goods.
Mr. A.K. Ganguli, learned counsel appearing for the revenue, sought to urge before us that there are two different classes of buyers, one class of such buyers was who used to bring their own cylinders and the others used to get their supplies through the cylinders of the suppliers.
According to him, different rates for these two classes of buyers.
, in fact, constitute two different markets and are permissible.
This, according to him, is contemplated under the first proviso to Section 4(1)(a) of the Act, which reads as follows: "(i) where, in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers. ' There may be different classes of buyers for different classes of goods.
Section 4(1)(a) of the Act emphasises that if the goods is of the 766 same type, the prices should also be the same.
The proviso to the said Section postulates that where in accordance with normal practice such goods, namely, the gases are sold to different classes of buyers then different prices may be charged.
If gases had been sold to different classes of buyers at different rates, it is possible that there might be different markets for the same.
But here the charges like rentals for the cylinders and the notional interest income, are for ancillary or allied services and that is not an activity of manufacture.
Hence, Section 4(1)(a) proviso can be of no avail to the renenue.
It is a case of two different supplies.
One is supply of gases and the other is incidental supply of cylinders for rent.
In that view of the matter, in our opinion, the Tribunal was right in the view it took.
The interest, notional or real, accruing on deposits for the safe return of cylinders as well as the rentals would not constitute part of the assessable value.
In the aforesaid view of the matter the order of the Tribunal needs no interference.
The appeals, accordingly, fail and are dismissed There will be no order as to costs.
N.V.K. Appeals dismissed.

summary/full:
The respondent firm are manufacturers of dissolved acetylene gas and compressed oxygen gas.
They were supplying these gases in cylinders at their factory gate.
For taking delivery some consumers/ customers used to bring their own cylinders and take the delivery.
Others, used to have the delivery in the cylinders supplied by the respondent firm.
For the purpose of such supply of cylinders certain rentals were charged by the firm, and also to ensure that these cylinders are returned, a certain amount as deposit used to be taken from the customers.
On these deposits notional interest at 18 percent per annum was calculated.
The Central Excise Authorities issued show cause notices to the respondent on the ground that the notional income on the deposit of cylinders and the rental are part of the assessable value, and hence should be included in computing the assessable value.
In their reply the respondent stated that the deposits from the buyers were only to ensure return of the gas cylinders from the customers.
The Assistant Collector by his order dated 3rd June, 1965 held that the respondent had to pay excise duty on the interest earned at 18% during the relevant period, and that as the respondent had suppressed this fact from the revenue during the past 5 years, the amount was includible and recoverable under Rule 8 read with Section 11A of the .
He also included the rentals of the cylinders in the value.
In appeal the Collector upheld the order of the Assistant Collector but with certain modifications.
762 The respondent appealed to the Central Excise and Gold Control Appellate Tribunal, which allowed the appeal, and held that the charge on account of rentals for the cylinders and the interest which accrued on the deposit for the cylinder are not relatable to the cost of manufacture of the goods, and therefore under Section 4 deleted from the value, rentals for the cylinders and the interest on the deposit.
In the appeals to this Court it was contended on behalf of the Revenue that there are two different classes of buyers, one class who brings their own cylinders, and the others who get their supply through the cylinders of the suppliers, and that different rates for these two classes of buyers constitute two different markets and are contemplated and permissible, under the first proviso to Section 4(1)(a) of the Act.
Dismissing the Appeals, ^ HELD: 1.
Section 4(1)(a) proviso can be of no avail to the Revenue.
There may be different classes of buyers for different classes of goods.
In the instant case, if the respondent company sold the gases to different classes of buyers then different prices may be charged.
If the gases had been sold to different classes of buyers at different rates, it is possible that there might be different markets for the same.
The charges like rental for the cylinders and the notional interest income are for ancillary or allied services and that is not an activity of manufacture.
[766A B] Union of India & Ors.
vs Bombay Tyre International Ltd., ; and Asstt.
Collector of Central Excise vs Madras Rubber Factory Ltd., [1986] Supp SCC 751, referred to. 2.
It is well settled that levy under the Central Excises Salt Act is on manufacture.
In the instant case, the sale is of gases.
The levy is on the manufacture of gases and the excisable goods are these gases.
[764G,H] 3.
Gas being a commodity of peculiar nature, has to be delivered by cylinders, but these cylinders might be supplied either by the supplier as an ancillary activity or brought by the consumers or purchasers at their own risk and cost.
For purchasers taking it in their own cylinders supplied by them, there was no charge for them.
This is not an activity for the manufacture of gases.
This is ancillary to it but not incidental.
[765C] In the instant case, there are two different supplies.
One is supply 763 of gases and the other is an incidental supply of cylinders on rent.
The interest notional or real accruing on deposits for the safe return of cylinders as well as the rental would not constitute part of the assessable value.
The Tribunal was right in the view it took.
[766C D]


judgement:
Civil Appeal No. 2551 (NT) of 1988.
From the Judgment and Order dated 7.7.1982 of the Allahabad High Court in S.T.R. No.33 of 1982.
A.K. Srivastava for the Appellant.
R.R. Agarwal and C.P. Pandey for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
The appeal is disposed of by the Judgment herein.
The appeal relates to the assessment year 1976 77, period being 1.4.76 to 3.1.77 under the U.P. Sales Tax Act, 1948 (hereinafter called the Act).
The dealer runs a Roller Flour Mills under the name and style of M/s. Mool Chand Shyam Lal Roller Flour Mills, Agra in which Atta, Maida, Suji, Bran and Refraction are manufactured.
For the manufacture of Atta, Maida and Suji the wheat is supplied by the Food Corporation of India and Regional Food Controller under the U.P. Roller Flour Mills (Regulation of use of Wheat) Order.
The sale price of the said wheat products i.e. Atta, Maida, Suji has been fixed by the State Government from time to time under U.P. Roller Flour Mills (Ex Mill Price Control) Order, 1975 under the notifications issued by the Government.
The State Government has further issued the notification No. ST.
4602/29 Wheat 127/175 dated 28th June, 1975 under the U.P. Roller Flour Mills (Ex Mill Price) Control Order, 1975 fixing the ex mill price of the sales of wheat products and also authorised the mills in the said notification to realise the proportionate amount of octroi, terminal tax, purchase tax or sales tax, duty or excise duty 752 payable by the mills on the wheat crushed in addition to the fixed ex mill price.
The dealers have realised the amount of the wheat products as fixed by the U.P. Roller Flour Mills (Ex Mill Price) Control Order, 1975 and have also realised the amount of the wheat sales tax or wheat purchase tax and octroi on the wheat used in the manufacture of wheat products, for the sale of Atta, Maida, Suji, Bran and refraction in accordance with the aforesaid notification.
The dealers have further realised the proportionate amount of the wheat purchase tax and wheat sales tax and octroi as consideration of the sale price in addition to the sale price fixed by the State Government on the sales of wheat products.
It is the case of the revenue that the amount of wheat sales tax and wheat purchase tax as well as the octroi, paid by the dealers for the purposes of purchases of wheat, which was used for the manufacture of wheat products, has been kept in the separate account in the account books of the dealer.
It is further the case of the revenue that the amount of wheat sales tax and wheat purchase tax, which the dealer paid for the purposes of purchase of wheat, was collected by the dealer as part of the sale price of the wheat products.
For the assessment year 1976 77 the assessment order was passed on 22nd February, 1979 under Rule 41(7) of the U.P. Sales Tax Rules read with section 18(3) of the Act for the period from 1.4.76 to 3.1.77 by which the assessing authority while passing the assessment order has accepted the contention of the dealer that the amount of the wheat purchase tax, wheat sales tax and octroi charged separately by the dealer in the cash memo of sale of Atta, Maida and Suji are the part of the turnover and included in the disclosed turnover of the dealer.
The assessing authority in the regular assessment had treated this wheat purchase tax, wheat sales tax and octroi which were paid by the dealer separately in the cash memos and the wheat products sold by the dealer, as part of the ex mill price of the wheat product.
The assessing authority had imposed the tax on this amount treating it as a part of the turnover of the dealer.
But after the completion of the assessment, the Assistant Commissioner (Assessment) issued a notice under section 15 A(1)(qq) of the Act to show cause as to why penalty should not be imposed in respect of the realisation of wheat purchase tax and wheat sales tax during the aforesaid period.
A reply was filed by the dealer to the said notice.
The Assistant Commissioner by his order dated 24th February, 1979 imposed a sum of Rs.25,000 as penalty under section 15 A(1)(qq).
Section 15 A(1)(qq) reads as follows: "(qq) realises any amount as sales tax, or purchase tax, where no sales tax or purchase tax is legally payable or in excess of the amount of tax, legally payable under this Act: or" 753 In the aforesaid circumstances after an inquiry as it may deem necessary the assessing authorities may direct that such dealer shall pay, by way of penalty, in addition to the tax, if any payable by him mentioned therein.
Against the aforesaid order of the Assistant Commissioner, the dealer filed an appeal before the Deputy Commissioner (Appeals).
The Deputy Commissioner (Appeals) dismissed the appeal and confirmed the order of imposition of penalty.
Against the said order of the Deputy Commissioner (Appeals) the dealer filed a second appeal before the Tribunal.
The Tribunal also upheld the order of the lower authorities and dismissed the appeal.
Against the judgment and order passed by the Tribunal, the dealer moved the High Court by way of a revision.
The High Court allowed the revision.
The High Court held that on the facts found, it should be examined if the excess realisation was of sales or purchase tax thus incurring penal liability under sub clause (qq) of sub section (1) of section 15 A or it was excess realisation of price over and above that the assessee was entitled to charge from its customers under Notification No. 4602 of the Essential Commodities Act.
It was urged that the assessee did not commit any breach of the Act.
It was contended that the assessee was entitled to realise price and the purchase tax from customers under notification but if it realised more than it was excess realisation by way of price, there would be breach of the Control Order for which no penalty could be levied under this Act.
What the assessee has realised from customers was price and not tax.
Section 15 A postulates as set out hereinbefore under clause (qq) certain conducts.
As it is apparent from the provisions set out above, that the realisation must be by the dealer of the amount as sales tax or purchase tax where no sales tax or purchase tax was legally payable or in excess of the amount of tax legally payable under the Act.
Therefore, it is necessary that realisation must be of the sales tax or purchase tax, secondly, that realisation must be in excess and thirdly the amount of tax should be legally payable under the Act.
The High Court has construed the expression "as" in the beginning of the sub clause as significant.
Penalty is leviable for excess realisation of tax, therefore, realisation of the amount should be as tax and not in any other manner.
Then excess should be over and above the amount of tax legally payable.
This expression obviously means tax payable under the Act, rules or notification.
Therefore, realisation by the assessee from customers should not be of only sales or purchase but it should be of the tax legally payable.
If the purchaser realises more money that by itself will not attract the penal provisions.
In the instant case, the High Court noted that it has been found that the dealer charged sales tax at 754 the rate of Rs.5 per quintal.
There is no finding that it was in excess of tax leviable or legally payable under the Act.
The excess thus charged was in contravention of the provisions of the notification.
But that alone was not sufficient for initiation or levy of penalty under subclause (qq) of section 15 A(1) of the Act.
It has to be realised as sales as purchase tax and the tax so charged must have been in excess of tax payable.
The assessing authorities have not found in the instant case that Rs.5 per quintal was in excess of tax payable under the Act.
On behalf of the revenue, our attention was drawn to sub clause (b) of sub section (2) of section 8 A of the Act.
The said sub clause read as follows: "(b) Where sales tax is payable on any turnover by a dealer (including a commission agent or any of the persons mentioned in the Explanation to clause (c) of Section (2), registered under this Act, such a dealer may recover an amount, equivalent to the amount of sales tax payable, from the person to whom the goods are sold by him, whether on his behalf or on behalf of his principal.
" This is a method of realisation in case of indirect tax.
Penalty can be levied or is leviable for realisation of excess of tax legally payable and not for contravention of section 8 A(2)(b).
Realisation of excess amount is not impermissible but what is not permissible is realisation of excess amount as tax.
The High Court noted that the assessee did not act fairly in this case.
By way of price it realised from its customers more than what is was entitled to under notification No. 4602 but in order to avoid any consequences under the Essential Commodity such as suspension or cancellation of its licence etc.
the excess realisation was shown as amount covered by Explanation II of the Notification.
On these facts the High Court found that the provisions of section 15 A(1)(qq) were not applicable.
It has to be borne in mind that the imposition of a penalty under the Act is quasi criminal and unless strictly proved the assessee is not liable for the same.
In that view of the matter, the High Court was right in the view it took.
There is no scope for interference under Article 136 of the Constitution.
The appeal, therefore, fails and is dismissed accordingly.
There will be no order as to costs.
R.S.S. Appeal dismissed.

summary/full:
The respondent dealer who runs Roller Flour Mills was supplied wheat by the Food Corporation of India and Regional Food Controller for the manufacture of Atta, Maida, Suji etc.
The sale price of the wheat products was fixed by the State Government under the U.P. Roller Flour Mills (Ex Mill Price) Control Order, 1975.
The notification issued under the Control Order also authorised the mills to realise in addition to the fixed ex mill price, the proportionate amount of octrol, terminal tax, purchase tax or sales tax, etc.
payable by the mills on the wheat crushed.
Accordingly, the respondent realised this amount.
The respondent further realised the proportionate amount of the wheat purchase tax and wheat sales tax and octroi, as consideration of the sale price in addition to the sale price fixed by the State Government.
For this excess realisation, the Assistant Commissioner (Assessment) imposed a penalty under section 15 A(1)(qq) of the U.P. Sales Tax Act, 1948 treating it as realisation of tax in excess of tax payable.
The respondent 's appeals before the Deputy Commissioner (Appeals) and the Tribunal failed.
The High Court, however, allowed the revision.
Dismissing the appeal, it was, ^ HELD: (1) Penalty under the Sales Tax Act is leviable for excess realisation of tax.
Therefore, realisation of the amount should be as tax and not in any other manner.
[753G] (2) The excess amount charged was in contravention of the provisions of the Control Order.
But that alone was not sufficient for initiation or levy of penalty under sub clause (qq) of section 15 A (1) of the 751 Act.
The excess amount has to be realised as sales or purchase tax and the tax so charged must have been in excess of tax payable.
[754A B] (3) Realisation of excess amount is not impermissible but what is not permissible is realisation of excess amount as tax.
[754E] (4) The imposition of a penalty under the Act is quasi criminal and unless strictly proved the assessee is not liable for the same.
If the purchaser realises more money, that by itself will not attract the penal provisions.
[754F G]