THIRU JOHN & ANR. versus RETURNING OFFICER & ORS.

Citation: [1977] 3 S.C.R. 538 · Decided: 12-04-1977 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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THIRU JOHN & ANR. 
v. 
RETURNING OFFICER & ORs. 
April 12. 1977 
[V. R. KRISHNA lYER, R. S. SARKARIA AND JASWANT SINGH, JJ.] 
Constitmion of India, Article 84(b)-Appellant who was underaged to con-
test Raiya Sabha elections of 1914 gets his age in the electoral Roll alone altered 
butnot in other documents from 14-5-1946 to 14-5-1943 by producing an ex-
tract of the Baptism Register-Whether the result of the election materially 
affected on th-e improper acceptance of 
nomination-Representation of 
the 
People Act (Act 43), 1951, Sections 83, 97, 100 and 101. 
Proof of disqualifications in a11 election petition-Onus lies on the petitioner 
initially. 
Evidence Act (Act I), 1812--SectioiiS 17, 18, 19, 20 and 21-Admi~t'orrs 
made in several documents ante litem motam-Burden of proof shifts on the 
maker to show that they are erroneous. 
"Continuing candidate"-Requisites to be a continuing candidate-Whether 
non-allotment of a "basket" or "parcel" under Rule 74 awomatically excludes 
him-Conduct of Election Rules, 1961-RulcN 71 (1 ), 74 and 15(3 ), 79, 80 
lllld 81(2). 
In the biennial elections of 1974 for filling six vacancies to the Rajya Sabha 
from the State of Tamil N adu, there were eight contestants, including both the 
appellants and one R. Mohanarangam, the petitioner in Election Petition No. 1 
of 1974. The requisite quota to secure the election of a candidate was fixed 
at ~O +1=3201 and the appellant John secured 3700 votes. While the 
appellant Subrahmanyam secured 300 votes, Mohanarangam failed to secure 
any. The rest of them secured more than the quota, thus leaving "surplus votes" 
for transfer within the meaning of Rule 71 (6} of the Conduct of Election · 
Rules. 
In the election petitions filed by Mohanarangam and Subrahmanyam, the 
election of Sri John was assailed on the ground that on March 12, 1974, the 
date of the scrutiny of the nominations, he was less than 30 years of age and as 
such he did not possess the qualifications as to age laid down under Art. 84(b) 
of the Colllltitution that the improper acceptance of John's nomination has 
materially affected the election. The petitioners prayed that the election of 
Sri John be declared void and set aside under s. 100 of the Representation of 
Peoples Act, 1951. 
Each of the petioners claimed that in the event of Sri 
John's election being set aside, he be declared elected under s. 101 of the Act. 
A recrimination petition No. 1174 under s. 97 read with s. 83 of the Representa-
tion of Peoples Act was also filed by the appellant Subramanyam, opposing 
Mohanarangrun's relief for the declaration under s. 101 of the Act, alleging 
that since the petitioner Mohanarangam in E.P. 1174 had not secured any vote, 
he, in the event of the election of Sri John being set aside, was not entitled to 
be declared elected in the place of John. 
The trial Judge of the High Court held that on the date of the scrutiny of 
nominations Sri John being less than 30 years of age was not qualified under 
Art. 84(b) of the Constitution to contest the election to the Rajya Sabha and 
accepting the election petition pro tanto set aside John's election. The trial 
Judge, however, d~clined. ~o grant further declaration under s. 101 in favour of 
either of the election petitioner. 
Dismissing the appeals, the Court, 
HELD : (1) From the evidence on record it stood clearly established that on 
the date of the scrutiny of nominations Sri John was less than 30 years of age 
. THIRU JOHN v. RETURNING OFFICER (Sarkaria, J.) 
53 9 
and in view of Art. 84(b) of the Constitution he was not competent to contest 
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the election for the Rajya Sabha. His nomination was, therefore, improperly 
accepted· by the Returning Officer, and this improper acceptance has, in so far 
as it co11cerned the returned candidate, Sri John materially affected the result 
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of the election. 
[547 F-G] 
(2) The onus of proving that on the date fixed for the scrutiny of nomi-
nations, a contestant was less than 30 years of age was on the election petitioners. 
In the. instant case, the petitioners had amply discharged this onus by bringing 
on record over-whelming documentary evidertce of a cogent and 
convincing 
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character. This documentary evidence includes no less than a do~n previous 
admissions and declarations made between March 1964 and July 1973 by Sri 
John himself about his age, to the effect that he was born in 1946 and that his 
date ·of biith was 14.5.1946. Apart fro

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