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PETITIONER:

KRIPA SHANKAR CHATTERJI

Vs.

RESPONDENT:

GURUDAS CHATTERJEE & ORS.

DATE OF JUDGMENT12/07/1995

BENCH:

RAY, G.N. (J)

BENCH:

RAY, G.N. (J)

FAIZAN UDDIN (J)

CITATION:

1995 AIR 2152 1995 SCC (5) 1

JT 1995 (5) 269 1995 SCALE (4)417

ACT:

HEADNOTE:

JUDGMENT:

THE 12TH DAY OF JULY, 1995

Present:

Hon'ble Mr. Justice G. N. Ray

Hon'ble Mr. Justice Faizan Uddin

Mr. Gobinda Mukhoty, Sr. Adv. Mr. V. J. Farancis and

Mr. V. Subramanian, Advs. with him for the appellant.

J U D G M E N T

The following Judgment of the Court was delivered:

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2503 OF 1994

Kripa Shankar Chatterji ...Appellant

versus

Gurudas Chatterjee and Ors. ...Respondents

J U D G M E N T

G. N. RAY. J.

This appeal is directed against the judgment dated

February 3, 1994 passed by Patna High Court (Ranchi Bench)

in Election Petition No. 3 of 1990. The appellant challenged

the result of the election of 285 Nirsa Assembly

Constituency in the State of Bihar held in February 1990 by

presenting an election petition before the High Court under

the Representation of People Act 1951 (hereinafter referred

to as the Representation Act). The appellant Sri Kripa

Shankar Chatterjee was a candidate for the said election

from Nirsa Constituency. He, however, lost to the returned

candidate namely Respondent no.1 Gurudas Chatterjee by a

margin of 1450 votes. There were 22 other candidates

contesting for the said Nirsa Constituency. It may be stated

here that during the pendency of the Election petition

before the Ranchi, Bench, the election petitioner moved an

application in the High Court for inspection of ballet

papers but such application being dismissed the petitioner

moved a Special Leave Application before this Court out the

said petition was also dismissed by this Court with the

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observation that dismissal of special leave petition would

not preclude the High Court from inspecting the ballot

papers if it deemed necessary to satisfy the court's

conscience. Although the petitioner thereafter maoe prayer

for such inspection but the High Court did not accede to

such prayer.

The election result was challenged inter alia on the

prounds of (1) improper rejection of the nomination paper of

one of the candidates Sri Chunmun Singh although he was

above 25 years of age, (2) improper acceptance of nomination

papers of two candidates namely Sri Sanjib Baxi and Sri

Shival Mahajni who were not voters in the Nirsa Assembly

Constituency, (3) the returned candidates and two other

candidates namely Respondent No.20 and 21 were at the time

of election employees of Eastern Coal Field Limited, a

subsidiary of Coal India Ltd. which was a Government of

India Undertaking and as such public servants under Section

21 of Indian penal Code and accordingly were disqualified to

contest the said election and (4) the election of returned

candidate was invalid on account of irregularities in

counting ballot papers, particulars of such irregularities

being mentioned in paragraph 30 of Election petition.

The Respondent No.1 Sri Gurudas Chatterjee contested

the Election petition and denied all the contentions of the

Election petitioner by filing a written statement. The

learned Judge by the impugned judgment dismissed the

election petition by rejecting all the said contentions of

the election petitioner. Coming to the question of improper

rejection of the nomination paper of Sri chunman Singh, the

learned Judge inter alia came to the finding that there was

no evidence from the side of Election petitioner that Sri

Chunmun Singh was not less than 25 years at the time of

scrutiny. The election petitioner filed an affidavit

affirmed by Sri Chunman Singh stating that he was above 25

years at the time of scrutiny of nomination papers. In the

absence of oral deposition, the High Court was not inclined

to accept the said affidavit. Mr. Mukhoty learned senior

counsel appearing for the appellant has contended at the

hearing of the appeal that the said Sri Chunman Singh was

summoned but he failed to appear in court. Sri Chuman Singh

filed an affidavit stating therein that his date of birth

was March 5,1962. Mr. Mukhoty has contended that the

appellant was keen in examining the said Sri Chunman Singh

but as he did not appear despite summons issued to him, his

affidavit filed by him in court answer to the summons ought

to have been accepted by the Court. We are, however, not

inclined to accept the said submission of Mr. Mukhoty. It

was open to the election petitioner to move the court for

taking appropriate steps to ensure appearance of Sri Chunmun

Singh. The ex parte affidavit without affording opportunity

to the Respondent No. 1 to test the veracity of the

statements made in the affidavit by cross examining him

cannot be held to be sufficient proof of the correct age of

Sri Chunmun Singh. We, therefore, do not find any reason to

interfere with the finding of the High Court on the question

of rejection of nomination paper of Sri Chunmun Singh.

Coming to the question of improper acceptance of

nomination papers of Sri Sanjib Baxi and Sri Shiv lal Manjhi

the High Court has held that the election cetitioner did not

file the certified copy of the voters list of the

constituency from which he was an slector. The Respondent

No.1 in his deposition has categorically stated that both

Sri Baxi and Sri Manjhi were voters in the Nirsa

Constituency. He has also stated that both Sri Baxi and Sri

Manjhi has shown the relevant entries showing their names in

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the voters list to the Returning Officer at the time of

scrutiny. It has been held by the learned Judge that there

is no documentry evidence from the side of the petitioner to

establish that the certified copies of the relevant entries

in the voters list were not filed by the said candidates

with their nomination papers or at the time of scrutiny.

There is also no evidence that any objection against

acceptance of nomination papers of the said candidates was

raised by election petitioner or by any other candidate at

the time of scrutiny. The learned Judge has not placed

reliance on the deposition of P.W 2 Srilal because of

contradication in his statement in examination in chief and

cross examination about examination of relevant entries in

the voters list at the time of acceptance of his nomination

paper for Sindri Constituency. The High Court has inqicated

that there is evidence on the side of the Respondent No.1

vide deposition of RW 1, RW 10. RW 14 and RW 15 that Sri

Baxi and Sri Manjhi had produced and shown the voters list

to the Returning Officer. The learned Judge has also held

that the presumption of proper performance of duties by

Returning Officer in accepting nomination papers on scrutiny

of relevant records has not been rebutted by any convincing

evidence adduced by the election petitioner. It has also

been held by the High Court that even if it is assumed that

the said nomination papers were improperly accepted, in view

of Section 100(d) of the Representation Act, unless the

petitioner was able to establish that such improper

acceptance of nomination papers had materilly affected the

election result, the same is not liable to be quasned. The

High Court has come to the findingh by indicating reasons

that the election petitioner has failed to establish by any

convincing evidence that in view of contest of the election

by Sri Baxi and Sri Manjhi, the polling prospect of the

election petitioner was materially affected. We agree with

the said finding of the High Court. It may be indicated here

that although an appeal lies to this Court from a decision

of the High Court in an election petition filed under the

Representation Act and although in such appeal this Court

can interferer with the finding of fact by making its own

assessment of evidence, as a rule of prudence this court has

shown disinclination to interfere with the finding of fact

unless it can be established by cogent, convincing and

unimpeachable evidence that the finding of fact by the High

Court is unjustified and against the weight of the evidence.

In this connection reference my be made to the decisions of

this court in N.I. Singh versus L.O. Singh (1977 (1) SCR

573) and Mohd. Yunus versus Shiv Kumar (1974 (3) SCR

738).

So far as the question of disqualification of the

returned candidate to contest the election in view of the

fact that at the relevant time he held office of profit

being employee of Eastern Coal Fields Ltd. is concerned, the

High Court has held that there is satisfactory evidence

adduced on behalf of Respondent No.1 that he had resigned

from service at the relevant period and such resignation was

acceped. The High Court however, held that as the Respondent

No.1 did not hold any "office of profit" as contemplated

under the Representation Act, the other question about his

resignation was immaterial. In our view, the question as to

whether an employee of Eastern Coal Fields Ltd. was holding

an "office of profit" so as to be disoualified to contest

election under the Representation Act need not be gone into,

in view of the finding that the Respondent No.1 had in fact

resigned from his service at the relevant period and his

resignation was accepted by the concerned authority. Such

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finding, in our view, in the facts and circumstances does

not warrant any interference. We may indicate here that the

hearing of this appeal was concluded shortly before the

general election of Bihar State Assembly in 1995 and general

election having been held in the meantime, this appeal for

all practical purpose has lost its importance and has become

infructuous. As all the contentions of the appellant have

been held not acceptable, we dismiss this appeal without any

order as to costs.