ORDER
1. By the instant Writ Petition, the petitioner has challenged the orders of the Sub-Divisional Officer dt. 25-7-1991 and of the District Judge dt. 22-1-1992. Sri Parsu Ram, respondent No. 1 filed his caveat and his counter-affidavit. Rejoinder affidavit has been filed by the petitioner. Heard Sri S. K. Varma, counsel for the petitioner and Sri L. P. Singh, Counsel for the respondents.
2. The petitioner contested the election of Pradhan of the Gaon Sabha. An election petition was filed by the respondent No. 1 Sri Parsu Ram Singh challenging the petitioner's election on the ground that he was less than 30 years of age on the date he had filed his nomination. The opposite party pleaded that petitioner was not qualified and eligible to contest the election of Pradhan. The petitioner appeared before the Sub-Divisional Officer who is Election Tribunal under the Panchayat Raj Act and filed his written statement.
3. The opposite party No. 1 pleaded in his election petition that date of birth of Gorakh Nath was 1-12-1964 and on the date of filing of the nomination i.e. on July 1988 he was not of 30 years of age. The election was materially affected by the acceptance of the nomination paper of the petitioner.
4. The main issue for decision before the Election Tribunal was to find out the age of the petitioner on the date of filing of the nomination.
5. The opposite party No. 1 gave his own statement, examined the witnesses and filed copies of Kutumb register, Scholar register and the transfer certificate from Maniar Inter College to Ballia. The opposite party No. 1 also filed a copy of the High School certificate of the year 1981 to show that the petitioner's age was less than 30 years on the date of filing of the nomination. The opposite party has examined the Principal of the Maniar Inter College, Maniar Sri Paras Nath Pandey to show that petitioner's age was less than 30 years on the date of filing the nomination.
6. The petitioner had also examined himself and filed his horoscope, copy of the Kutumb register, Sultanpur dt. 24-6-88, copy of the voter list of the Gaon Sabha for the year 1988. Petitioner had also examined witnesses Raghuvansh Tewari and Sheo Nath.
7. The Election Tribunal after assessing and appreciating the evidence of the mark-sheet of the High School examination, 1981 and relying the transfer certificate of the petitioner, was of the view that the date of birth of the petitioner Gorakh Nath Yadav was 1-12-64. The Block Development Officer had attested the date of birth of the petitioner in the Kutumb register as 1-12-64. The Election Tribunal had not placed any reliance on the horoscope filed by the petitioner and disbelieved the petitioner's case that his date of birth was 21-3-1958. He also assessed the evidence of the petitioner's witness and refused to believe the copy of-the family register, filed by the petitioner which was not admissible in evidence according to the Tribunal. The Tribunal was of the view that the copy of the family register was not duly certified and issued by the Pradhan having seal of the Gaon Sabha. In view of the facts and circumstances and evidence on record, the Election Tribunal arrived at a finding that petitioner was not of 30 years of age on the date of filing of the nomination papers of the Election of Pradhan of the Gaon Sabha. The Sub-Divisional Officer -- Election Tribunal was pleased to set aside the election of the petitioner as Pradhan of the Gaon Sabha and allowed the Election Petition filed by Parsu Ram Singh. He had further passed orders declaring Parsu Ram Singh as duly elected Pradhan of the Gaon Sabha by the judgment dt. 25-7-1991.
8. Being aggrieved by the judgment of the Election Tribunal, the petitioner filed election revision before the District Judge, Ballia. The Revisional Judge after hearing the parties and appreciating the evidence on record, recorded findings to the effect that the age of the petitioner as recorded in the scholar register and High Court Certificate is 1-12-64. The learned Judge relying 1988 All WC 732 observed that the High School Certificate bearing the entry of the date of birth has great evidentiary value and the same is decisive of the date of birth. He further relied 1978 A WC 284 (Sher Singh v. Hira Lal) in holding that it is open for the Tribunal to place reliance on the High School Certificate or the entries in the electoral roll and horoscope to reach a conclusion on the point of age. The Tribunal and the revisional Court both preferred to believe the age shown in the High School Certificate and the transfer certificate. The finding that petitioner was born on 1-12-64 is not open for challenge in a writ petition under Art. 226. I have no option but to accept the findings recorded by the authorities below as correct findings about the age of the petitioner on the date of filing of the nomination.
9. The next question for consideration is whether the learned Revisional Judge was correct in setting aside the part of the order of the Election Tribunal declaring the opposite party No. 1 as elected Pradhan of the Gaon Sabha. The law on the point is clear. R. 25(3) of the Panchayat Raj Rules provides that "if the Sub-Divisional Officer finds that the election of any person was invalid, he shall either; (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected, whichever course appears in the particular circumstances of the case, to be appropriate and in either case may award cost at his discretion, provided that no such declaration shall be made unless a claim for it has been made in the application."
10. The learned Revisional Judge examined this aspect as to whether the Election Tribunal was justified in declaring the opposite party as duly elected Pradhan after arriving at the judgment that the petitioner was below 30 years of age on the date of filing of his nomination.
11. It is not disputed that in all 7 persons had contested the election including the petitioner and opposite party No. 1. The learned revisional Court was perfectly justified and correct to proceed to decide the issue with alternative claim, relying AIR 1964 SC 1206. It is settled that in a case where the election petition makes a double claim i.e. the election of the returned candidate is void and also asks for a declaration that the petitioner himself of some other person has been duly elected, it is the duty of the other candidate' including the returned candidate to recriminate and raise plea in support of his plea that the other person in whose favour a declaration is claimed by the petitioner cannot be said to be validly elected. It is, thus, clear that the effect of failure to file recrimination is that the returned candidate is not entitled to contest the claim or lead evidence. This, however, does not mean that the Tribunal will pass an order without applying its mind. The revisional Court correctly applied the provisions of R. 25(3) of the Panchayat Raj Rules.
12. It is not disputed that in the election, petitioner had secured the largest number of votes amongsts the seven candidates in fray of the election. After rejecting the election of the petitioner on the ground that he was less than 30 years of age, the result would have been that the votes casted in his favour would go in favour of the opposite party No. 1 automatically or there was chances and possibilities of casting votes in favour of the other candidates in the fray. It cannot be said that the voters may not have voted at all in favour of the opposite party No. 1. Thus, it cannot be said that there is any other way to declare any other candidates in the election of 1988 as successful entitled to be declared as elected. The judgment of the learned District Judge, Ballia as a revisional Court is perfectly just and legal so far as it has set aside the order of the prescribed authority declaring opposite party No. 1 as duly elected Pradhan of the Gaon Sabha, Sultanpur. The judgment of the revisional Court dt. 22nd January, 1992 calls for no interference under Art. 226 of the Constitution and is liable to be upheld.
13. The writ petition is dismissed.
14. Petition dismissed.