As per the case facts, the appellant's election to the State Legislative Assembly was challenged on the grounds that he was under 25 years old at the time of nomination, ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 104 OF 2020
MOHD. ABDULLAH AZAM KHAN ….APPELLANT(S)
VERSUS
NAWAB KAZIM ALI KHAN ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1.Instant appeal has been filed under Section 116A of the
Representation of People Act, 1951 assailing the judgment and
order dated 16
th
December, 2019 passed by the High Court of
Judicature at Allahabad, holding the election of the returned
candidate (appellant) from 34, Suar Assembly Constituency of
District Rampur, as void and consequently came to be set
aside.
Factual background of the case
1
2.The notification under the Representation of the People
Act, 1951 (hereinafter referred to as “the Act 1951”) was
notified for holding election of U.P. State Legislative Assembly
from 34, Suar, District Rampur constituency. Public notice
was issued by the Returning Officer fixing the election
programme for holding election for the aforestated
constituency. According to the schedule of programme, the
appellant and the first respondent along with others filed their
nomination papers. The scrutiny of the nomination took
place on 28
th
January, 2017.
3.After scrutiny and withdrawal of nomination papers, the
appellant and six others including the election petitioner were
the candidates who remained in the field for election. It may
be noted that before the Returning Officer, the respondent
(election petitioner) filed an objection against the appellant
alleging that he is less than 25 years of age and, therefore, is
not qualified to contest the election in view of Article 173(b) of
the Constitution. The objection was overruled by the
Returning Officer and accordingly the election took place as
2
per the schedule, in which the appellant and the respondent
(election petitioner) contested along with others. The result of
the election was declared on 11
th
March, 2017 in which the
appellant secured highest votes and was declared elected.
4.The respondent filed the election petition before the High
Court of Judicature at Allahabad on the solitary ground that
the appellant was not qualified to contest the election for
member of Legislative Assembly in view of Article 173(b) of the
Constitution as he was less than 25 years of age when he filed
his nomination papers and also on the day on which he
contested the election from 34, Suar Assembly Constituency of
District Rampur.
5.In the election petition, the respondent (election
petitioner), inter alia, contended that objection as regards the
age of the appellant was raised by him in the first instance
before the Returning Officer, but the same was rejected
without appreciating the bare documentary evidence on record
and despite the date of birth of the appellant being 1
st
January, 1993, which was recorded throughout in his
3
academic records, including his Secondary School
Examination Certificate in 2007 from the Central Board of
Secondary Education and Intermediate Examination in 2009
from St. Paul’s School, Rampur affiliated to Central Board of
Secondary Education, Delhi, the Returning Officer failed to
consider the same and arbitrarily overruled the objection
raised by him.
6.In the election petition, the following objections were
raised and for better appreciation the same are reproduced as
under:
(i)That the appellant was born on 01.01.1993 and, therefore,
as on the date of the nomination of scrutiny, the appellant
(Mohd. Abdullah Azam Khan) was below 25 years of age.
(ii)That the appellant (Mohd. Abdullah Azam Khan) appeared in
Secondary School (Class – X) Examination in the year 2007.
When he appeared for Secondary School examination, his
roll number was 5260139. He appeared from St. Paul’s
School, Rampur, which was affiliated with the Central Board
of Secondary Education, New Delhi.
4
(iii)That the appellant (Mohd. Abdulla Azam Khan) himself filled
up the admission form and examination form, and in his
own handwriting, mentioned his date of birth as 01.01.1993.
The record of the appearance and examination of the
appellant (Mohd. Abdullah Azam Khan) are available with
the Central Board of Secondary Education, New Delhi.
(iv)That the Central Board for Secondary Education has issued
the Secondary School Examination (ClassX) result bearing
the roll number, name, mother’s name and father’s name
and date of birth of the appellant (Mohd. Abdullah Azam
Khan). As per the certificate, the mother of appellant is
Tazeen Fatima and his father is Mohd. Azam Khan. The date
of birth as recorded in the certificate of Secondary School
Examination (ClassX) results, 2007 of the appellant (Mohd.
Abdullah Azam Khan) is 01.01.1993. A copy of the certificate
of Secondary School Examination (ClassX) results of the
appellant (Mohd. Abdullah Azam Khan) obtained from the
Central Board of Secondary Education is enclosed and
marked as Annexure4 to this petition.
(v)That the appellant (Mohd. Abdullah Azam Khan) appeared in
Intermediate examination in the year 2009 St. Paul’s School,
Rampur. The said papers and records are available with St.
5
Paul’s School, Rampur and the Central Board of Secondary
Education, CBSE.
(vi)That the election petitioner has made best efforts to get the
admission form, examination form as also documents
pertaining to the Intermediate Examination of the appellant
(Mohd. Abdullah Azam Khan), but has not been able to get
the same. The election petitioner has only been able to get
the certificate of Secondary School Examination (Class X)
results of the appellant from the Central Board of Secondary
Education.
(vii)That the appellant (Mohd. Abdullah Azam Khan) thereafter
joined Galgotias University, Greater Noida for his Master’s
Degree where he has filledup form for admission with the
same date of birth (01.01.1993). The record of the appellant
(Mohd. Abdullah Azam Khan) in respect of his Master’s
Degree is available with Galgotias University, Greater Noida.
7.Thereafter, in his Master’s degree which he passed out
from Galgotias University, Greater Noida, including his
passport and other documents annexed with the nomination
papers which are within the public domain consistently
indicated that he was born on 1
st
January, 1993.
6
8.In addition to this, the contention of respondent no.1
before the High Court was that the appellant/returned
candidate belongs to a very influential family and his father
was a Cabinet Minister (Urban Planning, Development and
Local Bodies) in Government of Uttar Pradesh during the
period 2012 to 2017 and because of his local influence and
being the Minister incharge, documentary evidence has been
created by him in the year 2015, which was thereafter made to
be the basis and foundation to justify and support the date of
birth of the appellant herein which, as alleged, was wrongly
recorded in the school records and the fact is that the records
maintained by Queen Mary’s Hospital, Lucknow, which
indicates that the appellant was born on 30
th
September,
1990, is a later development and were created in the year
2015 to support that the appellant was qualified to contest
election in the year 2017 in terms of the requirement of Article
173(b) of the Constitution.
9.In counter, the appellant in the written statement came
with a specific case that the documents on which the election
7
petitioner has relied upon regarding the date of birth based on
the school/academic records, although the said documents
belong to the appellant but his date of birth is incorrectly and
inadvertently registered as 1
st
January, 1993, as it was
recorded by one of their family friends, Shahzeb Khan, DW.9,
who got the appellant admitted to St. Paul’s School, Civil
Lines, Rampur, where his date of birth was incorrectly and
inadvertently registered as 1
st
January, 1993 and that was
incorrectly shown throughout in his academic records in
Secondary School Examination/Intermediate Examination and
also in his higher studies including the date of birth reflecting
in the birth certificate issued to him by Rampur Nagar Palika
on 28
th
June, 2012, of 1
st
January, 1993 which was later
cancelled and according to him, the birth certificate issued by
Nagar Nigam, Lucknow, on 21
st
January, 2015 is based on the
records maintained by Queen Mary’s Hospital, Lucknow,
where he was born, his date of birth as per the hospital
records is 30
th
September, 1990.
8
10.The appellant came with a specific case before this Court
that his date of birth reflected in his academic record of 1
st
January, 1993 was incorrect and that being the reason, the
birth certificate issued on 28
th
June, 2012 by Nagar Palika,
Rampur was duly cancelled on 30
th
January, 2015 and a
duplicate certificate of birth dated 21
st
April, 2015 was issued
by Queen Mary’s Hospital, Lucknow, where he was born,
indicating 30
th
September, 1990, as the correct date of birth of
the appellant and accordingly he was above 25 years of age on
the day when nomination form was filled by him for elections
of U.P. Legislative Assembly from 34, Suar Assembly
Constituency of District Rampur in the year 2017 and on that
date the appellant attained the age of 25 years in terms of
Article 173(b) of the Constitution for contesting the election of
34, Suar Assembly Constituency of District Rampur.
11.Both the parties placed the documentary as well as oral
evidence in support of their respective defences. The High
Court after due appreciation of the documentary as well as
oral evidence on record and taking note of the submissions
9
made by the parties returned the finding that on the date of
filing of nomination papers i.e. 25
th
January, 2017, on the date
of scrutiny of nomination papers i.e. 28
th
January, 2017 and
on the date of declaration of result of 34, Suar Assembly
Constituency of District Rampur i.e. 11
th
March 2017, the
appellant was less than 25 years of age and thus, was not
qualified to contest the election in terms of Article 173(b) of the
Constitution and declared the election of the appellant to be
void and consequently it came to be set aside by the impugned
judgment dated 16
th
December, 2019.
Submissions of the Appellant
12.Mr. Kapil Sibal, Senior Advocate appearing for the
appellant, submits that there is a statutory presumption of
validity of the nomination papers as reflected under para 6 of
Chapter VI of the Handbook of Returning Officers, as held by a
ThreeJudge Bench of this Court in Rakesh Kumar v. Sunil
Kumar
1
(para 18) and later considered in Uttamrao Shivdas
1 (1999) 2 SCC 489
10
Jankar v. Ranjitsinh Vijaysinh Mohite Patil
2
(paras 35, 40
and 44) and further submits that the school/academic
records on which reliance was placed by the election
petitioner/respondent and of which cognizance has been
taken by the High Court under the impugned judgment was
not disputed by the appellant, but the appellant disputed the
contents of the document relied upon by the respondent
throughout and that can be reflected from the written
statement filed by the appellant to the election petition and it
was the specific case of the appellant that the date of birth as
recorded in his school records i.e. 1
st
January, 1993 is
incorrect and wrongly recorded, in fact, he was born on 30
th
September, 1990 and to support his date of birth, sufficient
primary documentary evidence was placed on record which
pertains to the authenticated record of Queen Mary’s Hospital,
Lucknow, which is a Government hospital and followed with
the birth certificate issued by the competent authority i.e.
Nagar Nigam, Lucknow dated 21
st
January, 2015.
2 (2009) 13 SCC 131
11
13.To support it further, learned counsel submits that once
the contents of the document pertaining to the appellant were
disputed specifically in his written statement, the burden was
on the election petitioner to prove that the date of birth of the
appellant was 1
st
January, 1993 to which no efforts were made
and the premise on which the High Court has proceeded to
shift the burden of proof on the appellant is in disregard to the
principles of the Evidence Act and the fact as alleged is to be
proved by the person who pleads under the Evidence Act and
made further following submissions:
(i)The appellant has stated his date of birth in his
nomination papers as 30
th
September, 1990 along with
supporting documents. Therefore, the burden of proof
lies on the election petitioner/respondent to rebut the
presumption by adducing admissible and reliable
evidence that meets the standard of preponderance of
probabilities and the election petitioner/respondent has
failed to produce any legally admissible evidence on
record so as to discharge his burden of proof.
12
(ii)The respondent/election petitioner has failed to produce
any direct and admissible evidence to prove that the
appellant was born on 1
st
January, 1993 and was not
born on 30
th
September, 1990 and in support, the only
document produced by the respondent/election
petitioner is the certificate of Class X Exam which is not
a document for proof of age.
(iii)No other document or witness was produced by the
respondent to prove an alternate date of birth of the
appellant, or to prove the fact that he was not of 25 years
of age at the time of scrutiny of nomination papers.
(iv)To the contrary, the appellant has adduced sufficient,
reliable and cogent oral and unimpeachable documentary
evidence which if considered in totality, establishes a
preponderance of probabilities that he was above 25
years of age as on 28
th
January, 2017.
(v)The best evidence of the date of birth is the testimonial
evidence of the mother of the appellant (DW.5) and the
doctor who delivered the male child and that is the only
13
direct evidence to support the birth of the appellant on a
specific date.
(vi)The appellant’s mother (DW.5) in her affidavit in
examinationinchief has categorically stated that she
was a lecturer in Political Science in Govt. Girls PG
College, Rampur and she gave birth four times. The
children from the first two deliveries in 1982 and 1984
died at the time of birth and the third child born in the
year 1985 is her elder son Mohd. Adib and thereafter she
again availed third sanctioned maternity leave from 7
th
August, 1990 to 4
th
November, 1990 which is duly
supported by service book, proved by DW.1 and that
acknowledges that she gave birth to a male child on 30
th
September, 1990 in Queen Mary’s Hospital, Lucknow, in
maternity department of King George Medical University,
Lucknow, a Government Hospital and it is supported
with discharge certificate dated 24
th
October, 1990
(Ex.R7), EOT register (Ex.R4) and MLR register (Ex.R5)
duly supported by Dr. Uma Singh (DW.3) and Dr. Vineeta
14
Das (DW.4) who in their oral testimony have supported
the delivery of male child to DW.5 mother of the appellant
on 30
th
September, 1990.
(vii)The appellant has further explained that the incorrect
date of birth in the school record was an error committed
on the part of the family friend Shahzeb Khan (DW.9)
who got the admission of the appellant in the school in
1995.
(viii)It was further submitted that in the absence of any cross
examination of either of the defence witness or the
documents placed on record which are public records
stands proved in terms of Section 35 of the Evidence Act
and further corroborated by the testimony of DW.5 by
her service book, salary register, it was established that
the appellant was born on 30
th
September, 1990 in
Queen Mary’s Hospital, Lucknow.
(ix)The impugned judgment fails to consider the established
evidence though it provides for proof of documents made
in the regular course of business by a person other than
15
the author and fails to consider Section 35 of the
Evidence Act which states that documents prepared by
an official (public or private) in performance of his duty
recorded under law are relevant and admissible.
(x)That with respect to the finding of manipulation and
interpolation as being recorded in the impugned
judgment regarding the birth register (Ex.R12), there is
no evidence on record to support such a finding. No
question was put to DW.2 as to any manipulation or
interpolation in the document. In the absence of any
evidence, the finding recorded in the impugned judgment
is unsustainable.
(xi)The impugned judgment incorrectly record that Section
13 of the Births and Deaths Registration Act, 1969 and
Rule 9 of the UP Registration of Birth and Death Rule,
2002 have not been followed while the birth certificate
dated 21
st
April, 2015 was issued. However, the fact is
that the birth of the appellant was registered
contemporaneously in the year 1990 in Nagar Nigam,
16
Lucknow and it was only a duplicate certificate of
registration which was issued on 21
st
January, 2015.
(xii)The documents relied upon by the election
petitioner/respondent are not admissible in evidence and
in any case are not a proof of date of birth of the
appellant on 1
st
January, 1993.
(xiii)The school records are not the direct evidence of the fact
of birth and on a balance of probabilities, it cannot be
given preeminence over direct evidence of the mother,
delivering doctor and contemporaneously maintained
hospital records.
(xiv)The error in school records was sufficiently explained by
DW.5 and accordingly necessary steps were taken by the
appellant for correction of the school records by a letter
dated 23
rd
March, 2015 submitted by the appellant to the
Regional Officer, CBSE, as proved by DW.7, Arun Joseph
Dayal, Director of St. Paul’s School, Civil Lines, Rampur.
17
(xv)The reliance on the alleged Group Insurance Scheme
(GIS) Nomination form in the service book of DW.5 was
not an admitted document to establish that the appellant
was born in 1993 and this was a serious misappreciation
of the evidence on record committed by the High Court.
(xvi)When confronting a witness as to any previous statement
in a document it is mandatory that the said document be
pointed out to the witness under Section 145 of the
Indian Evidence Act to which no efforts were made by the
respondent/election petitioner and at the best it is merely
a piece of circumstantial evidence which has no legal
backing and cannot establish birth of the appellant on 1
st
January, 1993.
14.These, according to the appellant, were serious manifest
errors which were committed by the High Court in passing the
judgment impugned and in support of his submissions,
counsel placed reliance on the judgments of this Court in Brij
Mohan Singh v. Priya Brat Narain Sinha and Others
3
,
3 (1965) 3 SCR 861
18
Birad Mal Singhvi v. Anand Purohit
4
and Joshna Gouda v.
Brundaban Gouda and Another
5
and taking assistance of
the judgments of this Court submits that the finding recorded
by the High Court under the judgment impugned is not legally
sustainable and deserves to be set aside.
Submissions of the Respondent
15.Mr. Aadil Singh Boparai, learned counsel for the
respondent, on the other hand, while supporting the finding
returned by the High Court in the judgment impugned,
submits that he was successful in establishing before the High
Court that the date of birth of the appellant is 1
st
January,
1993 by leading evidence and also as per the admissions made
by the appellant/witnesses, admittedly the appellant was not
qualified to contest the election for the Member of Legislative
Assembly, being less than 25 years of age in view of Article
173(b) of the Constitution on the date when nomination
papers were filled or the date of declaration of result and made
the following submissions:
4 (1988) Supp. SCC 604
5 (2012) 5 SCC 634
19
(i)The respondent/election petitioner placed unimpeachable
evidence on record that includes the marksheet of the
appellant’s class X certificate, his passports dated 28
th
August, 2006 and original Birth Certificate issued on 28
th
June, 2012 by Nagar Palika, Rampur and his selffilled
passport application of the year 2006 and all these
documents reflect the date of birth of the appellant as 1
st
January, 1993.
(ii)The documents relied upon by the respondent are
admissible in evidence and relevant under Sections 21
and 35 of the Indian Evidence Act. The evidence
projected by the appellant was false and fabricated and
rightly discarded by the High Court. Cancellation
process was initiated by the appellant after the birth
certificate was issued by Nagar Nigam, Lucknow on 21
st
January, 2015 indicating 30
th
September, 1990 as date of
birth of the appellant. But, execution of the documents
relied upon by the respondent has never been disputed
and all are public documents in which consistently his
20
date of birth recorded is 1
st
January, 1993 and thus, the
burden was on the appellant to adduce evidence to rebut
the presumption as aforesaid, that his date of birth is
30
th
September, 1990 and not 1
st
January, 1993.
(iii)Both the parties have adduced their evidence in the
election petition, that all pertains to the appellant, not to
somebody else. The record of the election petition which
pertains to the academic record, including passport and
birth certificate of the appellant, until 2015 consistently
indicates his date of birth as 1
st
January, 1993.
(iv)That in rebuttal, the appellant placed on record claiming
his date of birth to be 30
th
September, 1990, which could
not have inspired confidence. In support of his
submissions, counsel for the respondent has placed
reliance on the judgment of this Court in Sushil Kumar
v. Rakesh Kumar
6
and taking assistance thereof
submitted that the finding of fact returned by the High
Court is based on due appreciation attached to its
6 (2003) 8 SCC 673
21
probative value and only thereafter it has been held that
the appellant has failed to establish his date of birth as
30
th
September, 1990 and rightly declared the election of
the appellant to be null and void and not eligible to
contest the election in view of Article 173(b) of the
Constitution.
16.We have heard learned counsel for the parties and with
their assistance perused the documentary and oral evidence
on record, in extenso. Taking into consideration the settled
principles as laid down by this Court, it is to be examined
whether the date of birth of the appellant, as claimed by him,
is 30
th
September, 1990 or it is 1
st
January, 1993.
Purpose of the Evidence Act
17.The purpose of the Evidence Act, 1872 is to prove and
disprove the existence of facts in issue and to find out the
truth of the facts which are asserted by the parties as the
decision of the case lies upon/depends upon the truthfulness
of those facts. The Act essentially does the balancing of
22
interest between the parties to the proceedings and such
balancing has to be done by establishing the truth of the facts
asserted. Ultimately, the Indian Evidence Act, 1872 is about
the quest towards truthfulness. “Procedure is the handmade
of justice and not its mistress” i.e. procedure is not to control
justice but procedure is the helping hand of justice and it
helps to facilitate justice.
18.It is a wellestablished dictum of the Evidence Act that
misplacing the burden of proof vitiates the judgment. At the
same time, the rule relating to the burden of proof is based
upon certain practical considerations of convenience and
reasonableness and also of policy, but where there is a
rebuttable presumption of law in favour of one party, the
burden of rebutting it lies upon the later.
19.At the same time, when any fact is especially within the
knowledge of a party, the burden of proving it lies upon that
party. The term “especially” means facts which are pre
eminently or exceptionally within the knowledge of a person.
It is true that it cannot apply when the fact is such as to be
23
capable of being known also by persons other than the party.
This rule is an exception to the rule of burden of proof. Thus,
when a person acts with some intention other than that which
the character and circumstances of the act suggest, the
burden of proving the intention is upon him. The bottom line
of the purpose of the Indian Evidence Act is to adopt a
procedure that helps to facilitate justice and ultimately what is
required is to unearth the truth, to prevail.
20.So far as the principles of burden of proof is concerned,
the principles have been succinctly laid down by this Court in
Sushil Kumar (supra) paras 28 to 32 :
28. It is no doubt true that the burden of proof to show that a
candidate who was disqualified as on the date of the
nomination would be on the election petitioner.
29. It is also true that the initial burden of proof that
nomination paper of an elected candidate has wrongly been
accepted is on the election petitioner.
30. In terms of Section 103 of the Indian Evidence Act,
however, the burden of proof as to any particular fact lies on
that person who wishes the court to believe in its existence,
unless it is provided by any law that the proof of that fact
shall lie on any particular person.
31.Furthermore, in relation to certain matters, the fact
being within the special knowledge of the respondent, the
burden to prove the same would be on him in terms of Section
106 of the Indian Evidence Act. However, the question as to
whether the burden to prove a particular matter is on the
plaintiff or the defendant would depend upon the nature of the
24
dispute. (See Orissa Mining Corpn. v. Ananda Chandra
Prusty [(1996) 11 SCC 600]
32. The age of a person in an election petition has to be
determined not only on the basis of the materials placed on
record but also upon taking into consideration the
circumstances attending thereto. The initial burden to prove
the allegations made in the election petition although was
upon the election petitioner but for proving the facts which
were within the special knowledge of the respondent, the
burden was upon him in terms of Section 106 of the Evidence
Act. It is also trite that when both parties have adduced
evidence, the question of the onus of proof becomes academic
[see Union of India v. Sugauli Sugar Works (P) Ltd. [(1976) 3
SCC 32] and Cox and Kings (Agents) Ltd. v. Workmen [(1977) 2
SCC 705]. Furthermore, an admission on the part of a party to
the lis shall be binding on him and in any event a
presumption must be made that the same is taken to be
established.
21.As per Section 35 of the Evidence Act, a register of record
maintained in terms of the statute or by statutory authority in
the regular course of business would be a relevant fact and in
the aforementioned backdrop, the evidence brought on record
is required to be considered. The parties have led their
documentary as well as oral evidence and have marked
exhibits in reference to relevant documents placed by the
election petitioner and the appellant in support of their
respective claims to justify with regard to the date of birth of
the appellant. The oral and documentary evidence relied upon
25
has been noticed in paras 8 and 9 of the judgment and are
reproduced herein :
8. Both the parties have led documentary and oral evidences. Following
papers have been admitted in evidence and have been marked as Exhibits
as under:
Petitioner’s evidences:
Ex.
No.
Paper
No.
Brief particulars
P1 (A49/1
to A
53/1)
A 49/1
4
Pass port application dated 06.07.2012 of the respondent
under his signature mentioning his date of birth 01.01.1993,
and place of birth Rampur. Earlier Pass port No.F8757022,
was issued on 28.08.2006 which expired on 31.12.2010. The
new pass port No.K7951741 was issued by the Pass port
Officer, Bareilly on 13.07.2012 for the period till 12.7.2022.
Some papers of Ex.P1 are mentioned below.
A 50/1 –
A 50/4
Copy of Bank Pass Book of the respondent of his bank
account in State Bank of India, Nawab Gate, Rampur.
A 51/1 Copy of birth certificate No.3857 issued by Nagar Palika
Parishad, Rampur mentioning date of birth of the respondent
as 01.01.1993, Place of birth Rampur, Registration No.RNPB
2012 – 03857, date of Registration 28.06.2012 and date of
issue 28.06.2012
A 52/2 –
A52/3
Copy of respondent’s pass port no.F8757022, dated
28.08.2006 mentioning date of birth as 01.01.1993
A 53/1 Passport preview details of passport No. K7951741, dated
13.07.2012 mentioning respondent’s date of birth as
01.01.1993 and old pass port No.F8757022, dated
28.08.2006
P2 (A60/1
to A78)
A60/1
2
Copy of the respondent’s pass port application dated
10.01.2018 mentioning his date of birth as 30.09.1990 and
place of birth Lucknow
A61/1 “on line appointment receipt” issued by Ministry of External
Affairs, Government of India for the aforesaid Passport
application dated 08.01.2018
A62/1
3
Copy of the respondent’s pass port No.K7951741, dated
13.07.2012 bearing his date of birth as 01.01.1993 and
entries of departure/arrival dated 30.04.2013, 05.05.2013,
09.06.2015 and 26.07.2016. A62/3 is respondent’s Visa
dated 09.07.2014 mentioning his date of birth as 01.01.1993
A63/1 Birth certificate dated 21.1.2015 issued by Registrar Birth
and Death, Lucknow, mentioning date of birth 30.09.1990,
place of birth – Queen Mary’s Hospital, Lucknow, U.P., and
Registration No.NNLKO – B2015292611 and date of
26
registration 21.01.2015
A 64/1 Order of registrar birth and death, Nagar Palika Parishad,
Rampur, dated 30.1.2015, cancelling the birth certificate of
the respondent dated 28.6.2012, as under:
A65/1 Copy of respondent’s U.P. Legislative Assembly Identity Card
dated 14.03.2017
A66/1 Copy of Adhar Card of the respondent dated 7.3.2015
A67/1 Copy of respondent’s driving licence
A68/1 Copy of respondent’s voter I.D. Card dated 18.07.2016.
A69/1 Copy acknowledgement dated 10.1.2018 issued by Regional
Passport Officer, Bareilly for application dated 10.1.2018
A70/1 Copy of respondent’s application dated 10.1.2018 to the
Regional Passport Officer Bareilly stating that “I had applied
for reissue of passport due to change of date of birth and
place of birth.”
A75/2 Letter of Regional Passport Officer, Bareilly, dated
11.01.2018 to Registrar birth and death, Municipal
Corporation, Lucknow for verification of birth certificate of
the respondent
A76/1 Letter of the Registrar Birth and death, Nagar Palika
Parishad, Rampur, addressed to Regional Passport Officer,
Bareilly confirming issuance of letter dated 30.1.2015 about
cancellation of birth certificate of the respondent.
P3 (AA
80/1
79 to A
80/1)
Copy of birth certificate of Mohd. Abdulla Azam Khan
(Respondent) dated 28.06.2012 bearing date of registration
RNPB 901203857, dated 28.06.2012 issued by Nagar Palika
Parishad, Rampur on the basis of original record of birth.
This birth certificate was got cancelled by the respondent by
order of the Registrar dated 30.01.2015
P4 A25/1 Copy of Secondary School examination Class X result 2007,
issued by Central Board of Secondary Education showing
respondent’s date of birth as 01.01.1993
Oral evidence of Electionpetitioner:
P.W. 1 Kazim Ali Khan (Electionpetitioner)
P.W. 2 Mohd. Naseem, Passport Officer, Bareilly
P.W. 3 Mohd. Ateer Ansari, Junior Passport Assistant, Bareilly
P.W. 4 Tej Pal Singh Verma, Chief Sanitation and Food
Inspector/Deputy Registrar Birth and Death, Nagar Palika Parishad,
Rampur
Defendant’s/respondent’s Evidences.
Documentary Evidence.
27
Ex.
No.
Paper
No.
Brief Particular
R1 A 30 List of candidates who filed nomination papers
R2 A 31 Symbol allotment list issued by Returning Officer
R3 A32 Declaration of results by Returning Officer on 11.03.2017
R4 A100/1
2
Copy of page no. 174 of EOT Register of Queen Mary's
Hospital, Lucknow, containing entries of admission of
patients dated 29.09.1990, and thereafter entries dated
7
th
August 1990, 22.09.1990 and 24.09.1990
R5 A101/1
2
Copy of page No. 225 of MLR Register of Queen Mary's
Hospital bearing cuttings and overwriting and no date of
admission of Mrs. Tazeen Fatima (mother of the respondent)
R6 A37 Duplicate birth certificate dated 21.04.2015 issued by Queen
Mary's Hospital of K.G. Medical University containing baby's
name “baby of Tazeen Fatima” born on 30.09.1990
R7 A38/12Discharge ticket of indoor patient Tazeen Fatima in Queen
Mary's Hospital admitted on 07.08.1990 and discharge on
24.10.1990
R8 A41/13Information dated 12.09.2017 given by Professor Vineeta
Das, HOD King George Medical University to the mother of
the respondent under the RTI Act 2005 intimating that as
per rules of the hospital, record of only 10 years is kept.
Since matter is of 1990, therefore, true copy of admission
register containing entries is not possible to be given.
Admission slip is kept by the patient, discharge certificate
(paper No. A38/12) as produced by Tazeen Fatima is
attested.
R9 A42/15
Information given by King George Hospital by letter dated
19.09.2017 to the respondent under the RTI Act based on
the information of Professor Vineeta Das, HOD King George
Medical University by letter dated 12.09.2017 addressed to
the Information Officer and mentioning that: (paper No.
A100/2)
R10 A47/17Copy of pay bill Register of Rajkiya Mahila PG College,
Rampur for the month of August 1990, December 1992,
January 1993 and February 1993
R11 A95/1
34
Copy of service book of Tazeen Fatima, lecturer, political
science who was made permanent by Government Order
dated 11.02.1997 w.e.f. 20.04.1988. She submitted her GIS
nomination form under his own signature on
26.04.2001(A95/25) nominated Mohd. Azam Khan
(husband) 53 years50%, Mohd Adeel Ajam Khan (Bitu) (son)
15 years 25% and Mohd. Abdullah Azam Khan (son) 8
years 25 %
R12 A96/1Application of Dr. Tazeen Fatima, dated 17.01.2015 (mother
28
5 of the respondent) to Nagar Swastha Adhikari, Nagar Nigam,
Lucknow, requesting him to issue birth certificate of her son
Mohd. Abdullah Azam Khan as per enclosed affidavit. Her
son's birth may be got verified from the records of Queen
Mary's Hospital.
A96/3 Computer generated sheet of Nagar Nigam, Lucknow,
mentioning date of birth registration 21.012015, date of birth
30.09.1990 and name Mohd. Abdullah Azam Khan, place of
birth Queen Mary's Hospital, dated 21.4.2015
A96/45Photostat copy of birth register of Nagar Nigam, Lucknow
containing entry in the name of Abdullah Mohd. Azam Khan
recorded in the register on 30.09.1990. Above it on A95/4
are two entries of birth recorded on 07.02.1992 and
25.06.1993 bearing order of some officer to record the birth.
The next page (A95/5) starts with the date 02.10.1990 but at
the bottom of the page dates are 26.09.1990 and 27.09.1990
9. Oral Evidence of Defendant/respondent:
D.W.1 Dr. Shailendra K. Tiwari, Assistant Director of Higher
Education, U.P. Prayagraj.
D.W.2 Dr. Archana Dwivedi, Additional Municipal Commissioner,
Lucknow.
D.W.3 Dr. Uma Singh, Sr. Gynecologist Queen Mary's Hospital
(Department of Obst. & Gyno.)
D.W.4 Dr. Vineeta Das HOD Obst. & Gyno., Queen Mary's Hospital,
Lucknow.
D.W.5 Dr. Tazeen Fatima, (mother of the respondent)
D.W.6 Dr. Vandana Sharma Principal Rajkiya Mahila Post Graduate
Degree College, Rampur.
D.W.7 Arun Josheph Dayal. Director Saint Paul School, Civil Line,
Rampur.
D.W.8 Dr. Satibir Sing Ken, Radiologist, District Hospital, Rampur.
D.W.9 Shahzeb Khan, friend of father of the respondent.
D.W.10 Mohd. Abdullah Azam Khan, respondent.
Analysis of the Evidence
29
22.Now, we shall advert to the circumstances appearing in
the case which support the view taken by us. The notification
was issued notifying the schedule for election of UP State
Legislative Assembly from 34, Suar Assembly Constituency of
District Rampur as under:
(a)Date of filing of nomination 25
th
January, 2017
(b)Date of scrutiny of nomination 28
th
January, 2017
(c)Date of withdrawal of nomination 30
th
January, 2017
(d)Date of allotment of symbols 1
st
February, 2017
(e)Date of Poll 15
th
February, 2017
(f)Date of counting 11
th
March, 2017
23.The appellant filled his nomination papers on 24
th
January, 2017, and was declared elected on 11
th
March, 2017
by securing the highest number of votes i.e. 1,06,443 votes.
24.In the election petition filed by the respondent/election
petitioner, his solitary objection was that the appellant was
not qualified to contest the election for Member of Legislative
Assembly in view of Article 173(b) of the Constitution as he
was less than 25 years of age when he filled his nomination
30
papers and the date on which he contested the election and
also on the date of declaration of the result of 34, Suar
Assembly Constituency of District Rampur.
25. The documentary evidence placed by the
respondent/election petitioner on record to substantiate that
the date of birth of the appellant is 1
st
January, 1993 are all
public documents issued by the public authorities and are
admissible in evidence in terms of Section 35 of the Indian
Evidence Act, are as follows:
Following documentary evidences, record birth year of the
appellant to be the year 1993 (01.01.1993):—
(i) Ex. P4 paper No. A25/1 Copy of secondary school
examination Class 10
th
result 2007 issued by Central Board of
Secondary Education.
(ii) Ex. P1 paper No. A52/23, copy of appellant's pass port no.
F8757022, dated 28.08.2006 mentioning his date of birth
01.01.1993.
(iii) Ex. P1 paper No. A51/1 copy of birth certificate No. 3857 of
the appellant issued by Nagar Palika Parishad, Rampur, showing
date of birth of the appellant as 01.01.1993 and date of
Registration 28.06.2012.
(iv) Ex. P1 paper No. A49/14, appellant's pass port application
dated 06.07.2012, filed by him under his signature mentioning his
date of birth as 01.01.1993, and place of birth Rampur.
(v) Ex. P1 paper No. 53/1, Pass port preview details of
appellant's pass port No. K7951741, dated 13.07.2012 and Ex. P
2 paper No. A62/13, copy of appellant's pass port No. K
7951741, dated 13.07.2012 bearing date of birth as 01.01.1993
and entries of departure/arrival dated 30.04.2013, 05.05.2013,
31
09.06.2015 and 26.07.2016 and Visa dated 09.07.2014 all
mentioning date of birth as 01.01.1993.
(vi) Ex.R11 (Paper No. A95/134) the copy of service book of the
appellant's mother filed by the appellant in evidence and proved by
the D.W.1. It contains G.I.S. Nomination form signed and
submitted by the appellant's mother (D.W.5) on 26.04.2001
mentioning appellant's age to be 8 years.
(vii) Ex. P3 paper No. 80/1, copy of appellant's birth certificate
dated 28.06.2012, issued by Nagar Palika Parishad, Rampur,
issued on the basis of original record of birth. This birth certificate
was subsequently cancelled by the Registrar on 30.01.2015 on the
application of the appellant.
26.The respondent/election petitioner appeared as a
witness, PW.1 and while supporting the documentary evidence
established that the date of birth of the appellant as per the
school records and other documentary evidence placed on
record is 1
st
January, 1993, at the same time made a specific
averment in his examinationinchief regarding the documents
placed by the appellant/returned candidate on record, that
these are all fake and forged documents which are
manufactured to create false evidence regarding the age and
date of birth of the appellant. Further, the official documents
issued prior to the year 2015 consistently indicate his date of
birth as 1
st
January, 1993 and that is also elicited from his
crossexamination.
32
27.The Court Witnesses, PW.2 Mohd. Naseem, the Passport
Officer, Bareilly, PW.3 Mohd. Ateer Ansari, Junior Passport
Assistant, Bareilly and PW.4 Tej Pal Singh Verma, Chief
Sanitation and Food Inspector/Deputy Registrar Birth and
Death, Nagar Palika, Rampur were examined and they
supported the public documents placed on record which
establishes that the birth certificate issued by the Health
Department, Nagar Palika, Rampur dated 28
th
June, 2012, in
addition, the online application filled by the appellant for the
issuance of passport, the old Passport No.F 8757022 issued
on 28
th
August, 2006 by PW.2 and PW.3 and placed on record
the relevant online application and other documents which
were filed by the appellant in January 2015 and all such
documents were duly supported by the public officers P.W.2
and P.W.3 in their deposition. The Court Witness PW.4 in his
examinationinchief deposed that all registers and other
records related to birth certificate No.3857 dated 28
th
June,
2012 of the appellant have been destroyed because of the fire
due to short circuit on 8
th
May, 2015 in the office of Nagar
33
Palika, Rampur and is unable to place any record prior to 8
th
May, 2015, but verified the birth certificate dated 28
th
June,
2012 as the record is available in the computer system and a
copy was placed on record and all these documents were
generated either by the appellant himself or at his instance.
28.Thus, from the evidence on record, the respondent was
able to establish from the documentary evidence which
belongs to the appellant that consistently from day one he has
shown his date of birth as 1
st
January, 1993 not only in his
academic record but also in the birth certificate obtained by
him issued on 28
th
June, 2012 (Ex. A80/1) by Nagar Palika,
Rampur his date of birth as 1
st
January, 1993 which could
have been possible only when the relevant documentary
evidence was available with the competent authority/in the
office of Nagar Palika, Rampur and this fact cannot be ruled
out. The respondent has established on record that the date of
birth of the appellant is 1
st
January, 1993 and this fact was
not disputed by the appellant that the documents placed and
34
relied upon by the respondent on record are public documents
issued by the competent authorities.
29.At this stage, the objection of the appellant was that
although the documents relied upon by the respondent belong
to him, but the correctness of the documents is in question, in
rebuttal the defence of the appellant throughout even in the
defence evidence put forward was that in the year 1995
because his father was away, a friend of his father DW.9,
Shahzeb Khan, took him to the school in 1995 and got
recorded his date of birth as 1
st
January, 1993. Even if this
stand of the appellant is taken on the face value, the date of
birth which is recorded in his Secondary School Examination,
followed with his passport of the year 2006 and his certificate
of birth issued by Nagar Palika, Rampur with registration
No.RNPB201203857 dated 28
th
June, 2012 of which details
have been furnished at least upto the year 2015 consistently
in all unimpeachable documentary evidence not only in his
academic records but in all other correspondence, he has
throughout reflected his date of birth as 1
st
January, 1993,
35
and since these are all his documents issued from the office of
public authorities by the public officers based on the relevant
data made available by the appellant himself/on filling
application online or physically, the documents released to
him in the name of the appellant disclose his date of birth as
1
st
January, 1993 and after evaluation of the documentary
evidence supported by oral evidence on record, this Court
certainly can record that it has a sufficient probative value, as
required under Section 35 of the Evidence Act.
30.At the same time, the appellant, on the other hand, has
not disputed these documents which have been relied upon by
the respondent (election petitioner), of which detailed reference
has been made in para 8, said documents belong to the
appellant himself and are in public domain, issued by the
public authorities/competent authorities and obviously
information has been extended by the appellant himself and to
make the smoke clear at this stage, the defence of the
appellant was that at the time when the appellant went to the
school in 1995, the friend of his father DW.9 got recorded his
36
date of birth will not have any significance, since in the
matriculation certificate and all applications which are filled
by the appellant himself and these documents are generated
which the appellant has been failed to counter at any given
point of time. In countering, the appellant has come out with
a defence that his mother DW.5 who was a Lecturer in a
Postgraduate College and retired in 2009, in her cross
examination deposed that her son (the appellant) after doing
his M.Tech became active in politics in the year 2015 and at
this time she proceeded for issuance of a birth certificate from
Nagar Nigam, Lucknow and submitted application on 17
th
January, 2015 (Ex.A96/15).
31.It is curious to note that the request made by her was
addressed to the Chief Health Officer, Nagar Nigam, Lucknow
with a statement that her son (the appellant) was born on 30
th
September, 1990 in Queen Mary’s Hospital, Lucknow and the
birth certificate is urgently needed for very important and
unavoidable reasons and she enclosed her own affidavit. On
such an application being furnished, within three days, the
37
birth certificate was issued by Nagar Nigam, Lucknow on 21
st
January, 2015 (Ex.A96/3) indicating his date of birth as 30
th
September, 1990, which could not have been ordinarily
possible to obtain by the common man.
32.It is sufficient to note that there was no documentary
evidence obtained from Queen Mary’s Hospital, Lucknow, prior
to the application dated 17
th
January, 2015, submitted by her
(mother of appellant) for seeking a birth certificate from Nagar
Nigam, Lucknow and it is not the case of the appellant that his
date of birth recorded as 1
st
January, 1993 was due to some
inadvertence, but at later stage, it came across that the correct
date of birth of the appellant is 30
th
September, 1990 and this
fact revealed in the year 2015, the family proceeded to obtain a
certificate of birth from Nagar Nigam, Lucknow.
33.It is also to be noted that on 28
th
June, 2012, a birth
certificate was obtained by the appellant from Nagar Palika,
Rampur and supporting documentary evidence must have
been available in the office of Nagar Palika, Rampur, or placed
by the appellant, on the basis of which the birth certificate has
38
been issued to him on 28
th
June, 2012, and admittedly it is
not possible that at two different places (Rampur/Lucknow)
his birth has taken place or record is maintained and the
document obtained from Nagar Palika, Rampur, on 28
th
June,
2012 was completely concealed and the documents were later
generated/obtained from Queen Mary’s Hospital, Lucknow,
which were for the first time placed on record in the course of
the election petition.
34.In other words, the appellant was not holding any
documentary evidence to support his claim prior to being
placed on record in the course of election petition from Queen
Mary’s Hospital, which was made to be a basis in the year
2015 to seek a duplicate birth certificate of 30
th
September,
1990. To make it further clear, the duplicate birth certificate
was issued by Queen Mary’s Hospital on 21
st
April, 2015
(Ex.A37) indicating the date of birth of the baby of DW.5 on
30
th
September, 1990. From this document, it is clear that on
17
th
January, 2015, on the date when the application was
submitted by his mother (DW.5) addressed to the Chief Health
39
Officer, Nagar Nigam, Lucknow, to obtain the birth certificate
of the appellant there was no documentary evidence available
in the custody of DW.5 to support that the child was born in
the hospital on 30
th
September, 1990.
35.A duplicate birth certificate was obtained from Queen
Mary’s Hospital, Lucknow on 21
st
April, 2015 but what
happened to the original, if any, has never been placed by the
appellant on record. Just to make a clarification that even in
the application dated 17
th
January, 2015, submitted by DW.5
(appellant’s mother) there was no mention of a certificate
earlier issued and the demand is to issue a duplicate
certificate of the date of birth of the appellant who is born, as
alleged, in the Queen Mary’s Hospital, Lucknow on 30
th
September, 1990. The very foundation on which the
appellant has proceeded to establish that his date of birth is
30
th
September, 1990 falls on the ground.
36.It was admitted by DW.5 in her crossexamination that in
all his school records, Xth, XIIth, Undergraduate,
Postgraduate degree, his date of birth recorded is 1
st
January,
40
1993 and that the question put to her in crossexamination
about the date of birth of the appellant recorded in the
academic record is 1
st
January, 1993, she made a very curious
statement that it is the appellant who informed her that his
date of birth is wrongly recorded in his school records, but
neither the appellant nor motherDW.5 ever proceeded in
seeking correction in the date of birth certificate at any given
point of time prior to the year 2015.
37.The appellant himself appeared as DW.10 in the witness
box. It was his admission throughout that in the academic
record, his passport, the date of birth certificate issued from
Nagar Palika, Rampur on 28
th
June, 2012, his date of birth
recorded as 1
st
January, 1993 and curiously, for the first time,
in his examinationinchief he has stated that his mother told
him that he was born on 30
th
September, 1990, and not on 1
st
January, 1993, and in reference to all the documents which
were put to him in crossexamination, his only statement was
that although these documents belong to him, but his date of
birth has been incorrectly recorded, and later cancelled, but
41
while making a statement of date of birth being incorrect,
nothing in counter was placed on record, except the
documents placed for the first time in the course of the
election petition. From where this fact was gathered, it was
not disclosed even in the crossexamination and a statement
was made in his crossexamination that his date of birth
either in his birth certificate dated 28
th
June, 2012 or in
passport wherever recorded of 1
st
January, 1993 at a later
stage was cancelled and has made a completely evasive
answer in his crossexamination. To support in evidence, the
appellant has produced three basic documents, EOT register
(R4), MLR register (R5) and discharge ticket of Indoor
Patient. Dr. Tazeen Fatima, DW.5 (R7) and the oral
evidence of Prof. Vineeta Das, HoD, Obst. & Gyno. (DW.4), Dr.
Uma Singh, Sr. Gynaecologist (DW.3) who produced all the
registers relating to Queen Mary’s Hospital, Lucknow, of the
relevant period of the year 1990, when put to cross
examination, reference to the EOT register and particularly to
page 174, the question put to her whether entry 174 of EOT
42
register Annual No,5097 carry any overwriting on the
particular entry, she admitted that yes, overwriting has been
done and which can be seen in column no.3 of it. In a further
question put to her in the crossexamination about the
description in column no.16 of the register that whether it
matches with the information mentioned in rest of the column,
and also that whether the entry of period of pregnancy at page
174 of EOT register is different from entry of period of
pregnancy in page 225 of MLR register, she admitted that yes,
all these entries are different. The extract of questions put to
Dr. Uma Singh (DW.3) in reference to the socalled official
record of the hospital is as under:
(a)Whether you can say confidently that the information of the
children born on 30.09.1990 was sent to Municipal
Corporation, Lucknow?
Ans.: Yes.
(b)Whether you can tell after seeing the entry of page 174 of EOT
register Annual No.5097 carried along by you that any
overwriting has been done in this or not?
Ans. : Yes, overwriting has been done in it. Overwriting is seen in
column no.3 of it.
(c)Whether you can tell by seeing the description in column no.16
of above register that whether it matches with the information
mentioned in rest of the column of above register?
Ans.: No
43
(d)Whether the nature of period of pregnancy at page no.174 of
EOT register Annual No.5097 column no.10 is different from
the entry of period of pregnancy in page no.225 of MLR register
Annual No.1826, Column no.10?
Ans.: Yes.
(e)Whether in the manner in which the entries are made at page
no.225 of MLR register it matches with the entries made on the
above page of other account number?
Ans. : Do not match totally.
(f)The EOT register and MLR register which you have brought
with you today in the Court and presented before the Court, is
it attested or signatured by any of the officer or department
head by Queen Mary’s hospital or King George Medical? And
the entries therein or any of the page is signed or counter
signed by any of the officer or doctor of the hospital? And
whether both the above mentioned hospital registers are
authenticated by any of the officer or department head?
Ans.: Above both registers are not authenticated by the officer of
Queen Mary’s hospital or King George University. Above both
registers are also not attested. But some of the pages are
signed by consultant of the hospital.
38.To support the documents placed on record from the
Queen Mary’s Hospital, Dr. Vineeta Das (DW.4), the HoD,
Obstetrics & Gynecology Department, also appeared in the
witness box.
39.At the same time, so far as the register of the Nagar
Nigam, Lucknow (Ex.R12) which has been produced by DW.2
Dr. Archan Dwivedi, she appears to have completely
surrendered in crossexamination in support of the documents
44
placed by her. Few of the questions put to her in cross
examination to produce the register of Registration of Birth
and Death maintained by the Nagar Nigam, Lucknow be
relevant to quote:
(a)Whether is it necessary to maintain the birth register in the
format given in Registration of Birth & Death Act, 1969?
Ans.: Yes.
(b)Above papers were shown again and asked that can you see
this and till that what is date of registration of birth of the
respondent mentioned therein?
Ans.: In column number 3 of this paper date of birth registration is
21.01.2015.
(c)After how many days the birth certificate is being issued after
the related entries made in birth register?
Ans.: When the applicant gives a request letter thereafter the birth
certificate is issued. Birth registration is done immediately
after receiving of birth list from the hospital.
(d)Whether the statement given by you today in front of court is
based on the official record maintained in the office?
Ans.: Yes, again stated that the above said birth register is not in the
prescribed format, and again want to state that the said
format only followed but it has not been used in this case.
Pagination has not been done and neither register has been
attested nor pagination has been done by any competent
officer.
40.The witness has not even been able to support the
documents. Apart from the said documents, we have looked
into the extract copies of the birth register maintained by the
45
Nagar Nigam, Lucknow (Ex.R12). Even from the naked eye, it
appears that at page 43, last entry is of 30
th
September, 1990
and there was no space left on the page, still it reveals that
someone has tried to insert a further illegal entry and if it
would have been in continuation on the next page at page 44
after 30
th
September, 1990, the second entry comes on 2nd
October, 1990 and on 1
st
October, 1990 there is no entry. At
the same time, all entries appear to have been made at the
same point of time in continuation and this Court cannot
attach any credence to the documents on which the appellant
has heavily relied upon which, according to him, is the basis
for issuance of the birth certificate on a mere application
submitted by the mother DW.5 dated 17
th
January, 2015,
issued by the Nagar Nigam, Lucknow on 21
st
January, 2015.
Rest of the documents supported by the oral evidence placed
by the appellant on record are only to justify that DW.5 was on
maternity leave and a male child was born in the year 1990
and the third maternity leave was availed by her from 7
th
August, 1990 to 24
th
October, 1990 and a male child was born
46
on 30
th
September, 1990, no credence of any kind could be
attached to it.
41.That apart from oral evidence to support the documents
placed on record obtained from the Queen Mary’s hospital, we
have looked into the relevant documents and from naked eye it
appears that the EOT register where the name of DW.5,
mother of the appellant has been shown, entry appears to be
partially erased and rest of the page other than the entry
relating to DW.5, no change is being reflected from the entire
document.
42.When the entire evidence is before the Court, it is well
settled that the burden of proof becomes immaterial at the
given point of time the document made ante litem motam can
be relied upon safely when such documents are admissible
under Section 35 of the Evidence Act. This Court in large
number of judgments, including Brij Mohan
Singh (supra), Updesh Kumar and Others v. Prithvi Singh
and Others
7
, State of Punjab v. Mohinder Singh
8
, Vishnu
7 (2001) 2 SCC 524
8 (2005) 3 SCC 702
47
alias Undrya v. State of Maharashtra
9
and Satpal
Singh v. State of Haryana
10
came to the conclusion that
while considering such an issue and documents admissible
under Section 35 of the Evidence Act, has to examine the
probative value of the contents of the document. The
authenticity of entries may also depend on whose information
such entry stood recorded and what was his source of
information, meaning thereby, that such document may also
require corroboration in some cases.
43.In the instant case, the academic record of the appellant
consistently indicates the recorded date of birth of the
appellant is 1
st
January, 1993 and to be more specific before
17
th
January, 2015, all documents which were released from
various public offices under the signatures of public
authorities, the date of birth of the appellant has throughout
been shown as 1
st
January, 1993 and as stated by DW.5
(mother of the appellant) and so also the appellant herein
(DW.10) after doing his postgraduation he wanted to come in
9 (2006) 1 SCC 283
10 (2010) 8 SCC 714
48
active politics, application was submitted on 17
th
January,
2015 for the first time to the office of the Nagar Nigam,
Lucknow for obtaining the birth certificate of the appellant
based on Queen Mary’s Hospital, Lucknow and the fact is that
no documentary evidence was supported along with the
application, except the affidavit sworn by DW.5 to the
application dated 17
th
January, 2015 and it is not possible for
a common man to get the birth certificate in the existing facts
and circumstances, but so far as the appellant is concerned,
birth certificate was issued with no loss of time on 21
st
January, 2015 which was otherwise not possible. It may be
noticed that cancellation has taken place at a later point of
time and who is the authority competent to cancel, nothing
has been brought on record but the fact is that the appellant
himself has obtained the certificate of birth from Nagar Palika,
Rampur on 28
th
June, 2012 indicating his date of birth as 1
st
January, 1993 apart from other documentary evidence which
the appellant later got cancelled. This fact cannot be ruled out
that there must be the evidence available before the Nagar
49
Palika, Rampur, based on which Birth Certificate was issued
to him on 28
th
January, 2012. A very peculiar situation is
created. Two birth certificates are issued by two different
authorities (Nagar Palika, Rampur/Nagar Nigam, Lucknow) at
different point of time, the presumption is that there must be
some documentary evidence available in the custody of
municipality indicating two different dates of birth of the same
person at the same time i.e. the appellant herein.
44.The judgment relied upon by the appellant in Birad Mal
Singhvi (supra) was a case where one of the defeated
candidates filed an election petition and his submission was
that there were two other candidates whose nomination
papers were arbitrarily rejected by the election officer but they
neither came in the witness box nor any person appeared in
the witness box to support the date of birth recorded in the
matriculation certificates of those two candidates. In the given
situation, those records could not have been relied upon and
become inadmissible in view of Section 35 of the Evidence Act.
50
45.So far as the judgment relied upon by the appellant in
Joshna Gouda (supra) was a case where the reliance was
placed on the school admission register and admission form,
including the transfer certificate, but no supporting
evidence/proof was available on record. In that context, a
finding was recorded that conclusive finding regarding the
probative value in reference to the three documents Exhs.5,
5A and 7 could not be attached.
46.It is also trite law that when both the parties have
adduced evidence and that too is in reference to a common
question and particularly for determination of age, which is
the subject matter of dispute and when both the parties have
adduced evidence, the question of onus of proof becomes
academic. This has been considered by this Court in Rakesh
Kumar (supra) wherein as regards the determination of age of
the candidate in terms of Section 36(2) of the Representation
of the People Act, 1951, this Court observed :
“27. In Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673]
this Court as regards determination of age of a candidate in
51
terms of Section 36(2) of the Representation of the People
Act, 1951 observed: (SCC pp. 68485, para 32)
“32. The age of a person in an election petition has to be
determined not only on the basis of the materials placed
on record but also upon taking into consideration the
circumstances attending thereto. The initial burden to
prove the allegations made in the election petition
although was upon the election petitioner but for proving
the facts which were within the special knowledge of the
respondent, the burden was upon him in terms of Section
106 of the Evidence Act. It is also trite that when both
parties have adduced evidence, the question of the onus
of proof becomes academic [see Union of India v. Sugauli
Sugar Works (P) Ltd. [(1976) 3 SCC 32] and Cox and Kings
(Agents) Ltd. v. Workmen [(1977) 2 SCC 705 : 1977 SCC
(L&S) 342] ]. Furthermore, an admission on the part of a
party to the lis shall be binding on him and in any event a
presumption must be made that the same is taken to be
established.”
This Court therein followed, inter alia, Birad Mal
Singhvi [1988 Supp SCC 604] and several other decisions.”
47.In the instant case, the documents issued by Nagar
Palika, Rampur in the year 2012, clearly indicate the recorded
date of birth as 1
st
January, 1993 and which is duly supported
by his academic record from Class X onwards at all stages
which had been generated only under the appellant’s own
signatures or under the authority of the appellant and this in
no manner could be disputed. Merely because the same has
been later on cancelled by the appellant, it may not lose its
evidentiary value.
52
48.In this regard, it may be relevant to note that Section
13(3) of the Registration of Birth and Death Act, 1969, clearly
postulates that delayed registration of birth and death are
permissible provided a procedure prescribed has been followed
after taking orders from the Magistrate and proving the
correctness of the date of birth. Although the defence of the
appellant is that since his name was already registered in the
records of Nagar Nigam, Lucknow, Section 13(3) of the
Registration of Birth and Death Act, 1969 may not apply, but
this submission appears to be misplaced for the reason that
on the basis of the birth record maintained by the Nagar
Palika, Rampur, the birth certificate was issued to him under
the orders of the competent authority on 28
th
June, 2012, and
there cannot be two separate records of birth available in two
different municipalities (Rampur/Lucknow) of the same person
and in the given situation, no credibility can be attached on
the records maintained by the Nagar Nigam, Lucknow, and in
our considered view, the procedure as prescribed under
Section 13(3) of the Act, 1969, in the ordinary course of
53
business, was supposed to be adopted by the authorities while
a fresh certificate of date of birth was issued to him on 21
st
January, 2015, which indeed has not been followed by the
competent authority by Nagar Nigam, Lucknow.
49.In the instant case, the date of birth of the appellant
throughout in his records is 1
st
January, 1993 and only in the
year 2015 when the appellant became keen to enter into active
politics, the mother of the appellant (DW5) submitted an
application for the first time on 17
th
January, 2015, claiming
that the appellant was born on 30
th
September 1990, and birth
certificate may be immediately issued to her and within three
days, birth certificate was issued by the Nagar Nigam,
Lucknow on 21
st
January, 2015. In support thereof, the
documentary evidence which the appellant has placed on
record obtained from the Queen Mary’s Hospital, Lucknow, as
a foundation on which the birth certificate has been issued as
alleged from the Nagar Nigam, Lucknow, in our considered
view, no probative value could have been attached to it.
54
50.The High Court, in our considered view, has examined
the documentary and the oral evidence available on record in
extenso, we find that no manifest error was committed by the
High Court in passing the impugned judgment, which may call
for our interference.
51.Consequently, the appeal fails and is accordingly
dismissed. No costs.
52.Pending application(s), if any, stand disposed of.
….
…………………………J.
(AJAY RASTOGI)
…………………………….J.
(B.V. NAGARATHNA)
NEW DELHI
NOVEMBER 07, 2022.
55
1
REPORTABLE
IN SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 104 OF 2020
MOHD. ABDULLAH AZAM KHAN APPELLANT
VERSUS
NAWAB KAZIM ALI KHAN RESPONDENT
J U D G M E N T
NAGARATHNA J.
I have had the benefit of reading the judgment proposed by His Lordship
Ajay Rastogi, J. While I concur with the reasoning as well as the conclusion
arrived at by His Lordship, I, however, wish to elaborate on the reasoning and
also assign additional reasons for dismissing the appeal.
2. This appeal assails the judgment of the High Court of Judicature at
Allahabad, dated 16.12.2019 in Election Petition No.08 of 2017 by which the
petition filed by the election petitioner herein against the successful candidate
herein has been allowed and the election of the successful candidate herein, to
2
the Uttar Pradesh Legislative Assembly from the 34Suar Constituency, District
Rampur held in the year 2017 has been set aside.
For the sake of convenience, the rank of the parties herein shall be
referred to as per their rank and status in the Election Petition filed before the
High Court. In other words, they shall be referred to as the election petitioner
and the successful candidate, respectively.
3. Succinctly stated, the facts giving rise to the instant appeal are as under:
3.1.A notification was published under Section 15 of the Representation of
People Act, 1951(hereinafter referred to as R.P. Act), notifying the
election of Uttar Pradesh State Legislative Assembly, interalia, from 34
Suar Constituency, District Rampur, Uttar Pradesh. As per the said
notification, the last date for filing the nomination for contesting the
election was 25.01.2017 and the poll was scheduled to be held on
15.02.2017. The appellant was the successful candidate while the
election petitioner was the unsuccessful candidate who filed the election
petition.
3.2.The successful candidate filed his nomination on 24.01.2017, to contest
the elections, from 34Suar Constituency, District Rampur, Uttar
Pradesh. Subsequently, the election petitioner, namely, Nawab Kazim
Ali Khan, filed an objection before the Returning Officer, challenging the
successful candidate’s nomination on the ground that he had not
3
attained the age of twentyfive years at the time of filing his nomination
and was therefore, ineligible to contest the election in view of Article
173(b) of the Constitution of India. The election petitioner had filed his
objection on the basis of a newspaper article published in a local daily,
Dainik Jagran Amar Ujala on 28.01.2017.
3.3.By order dated 30.01.2017, the Returning Officer rejected the objection
filed by the election petitioner herein by observing that the successful
candidate herein had stated in Column B of Section 3 of the nomination
form, as also in Form 26, that his age was twentysix years. That in
support of such claim, the successful candidate had attached his Birth
Certificate (No.229428) which was issued to him by the Nagar Nigam,
Lucknow, on 21.05.2015 and in the said document, the date of birth of
the successful candidate was recorded as 30.09.1990. It was further
noted that as per the successful candidate’s Aadhar card and the
electoral roll, his age at the relevant time was twentysix years.
Consequent to the rejection of the objections raised by the election
petitioner and on the basis of the documents submitted and details
furnished by the successful candidate in the nomination form, his
nomination was accepted by the Returning Officer.
3.4.The election was held as scheduled on 15.02.2017 and on 11.03.2017,
the appellant was declared as the successful candidate in the election to
the Uttar Pradesh Legislative Assembly from the 34Suar Constituency,
4
District Rampur. The election petitioner herein stood third in the said
election.
4. In the above background, the election petitioner filed Election Petition
No.08 of 2017 before the High Court of Judicature at Allahabad, seeking a
declaration that the election of the successful candidate to the Uttar Pradesh
Legislative Assembly be declared as null and void, for noncompliance of the
requirements of Article 173(b) of the Constitution of India. The said prayer was
allowed by the High Court and the election of the successful candidate was set
aside. Hence, this appeal.
Pleadings:
5. The averments made by the election petitioner in his Election Petition do
not call for a reiteration except to the following extent:
i)That the successful candidate had not completed twentyfive years of age,
both, as on the date of scrutiny of the nomination papers as well as on the
date of the election and therefore, his candidature seeking election to the
Uttar Pradesh Legislative Assembly ought not to have been accepted in
light of Article 173(b) of the Constitution of India read with Section 36(2) of
the R.P. Act.
ii)That the birth certificates produced by the successful candidate before the
Returning Officer were duplicate certificates issued by the Queen Mary’s
Hospital, Lucknow, and the Nagar Nigam, Lucknow, on 21.04.2015 and
5
21.01.2015, respectively, and not on 30.09.1990, being the date on which
the successful candidate was stated to have been born. Therefore, such
documents did not reflect the correct date of birth of the successful
candidate.
iii)That the Returning Officer rejected the objection filed by the election
petitioner without verifying the date of birth of the successful candidate in
the original birth certificates issued by the Queen Mary’s Hospital,
Lucknow and the Nagar Nigam, Lucknow. The birth certificates issued by
the Queen Mary’s Hospital, Lucknow and the Nagar Nigam, Lucknow were
fabricated documents and the successful candidate’s actual birth
certificate was issued by the Registrar (Birth and Death), Nagar Palika
Parishad, Rampur, Uttar Pradesh and as per the said document, his date
of birth was 01.01.1993 and not 30.09.1990 as contended by the
successful candidate.
On the above pleadings, the election petitioner sought setting aside the
election of the successful candidate.
6. In response to the Election Petition, the successful candidate in the
election, filed his written statement before the High Court, inter alia, with the
following averments:
i)That he was born on 30.09.1990 at Queen Mary’s Hospital, Lucknow, and
not on 01.01.1993 as alleged by the election petitioner. Therefore, he was
6
above the age of twentyfive years as on the last date of filing the
nomination, i.e., on 25.01.2017, on the date of scrutiny of his nomination,
i.e., 28.01.2017 and on the date on which he was declared as the elected
candidate, i.e., on 11.03.2017. Hence, he was duly qualified to contest the
election and hold the office of a Member of Legislative Assembly, under
Article 173(b) of the Constitution of India and provisions of the R.P. Act.
ii)That the Returning Officer rightly rejected the objections raised by the
election petitioner in view of the fact that there was no defect of a
substantial nature in the successful candidate’s nomination paper and
accompanying documents.
With the aforesaid averments it was prayed that the Election Petition filed
by the election petitioner be dismissed by the High Court as being devoid of
merit.
6.1. The election petitioner filed his replication to the written statement which
is summarised as under:
(A)While denying the contents of the written statement to be true and
the documents attached to the written statement being fabricated,
forged and misleading, the election petitioner reiterated the contents
of his election petition.
(B)The election petitioner has taken an additional plea to the effect that
on 14.08.2017, the Election Officer Rampur, had forwarded a
representation which was moved by one, Mr. Akash Kumar Saxena,
7
Chairman of the Indian Industries Association, to the Chief Election
Officer, disclosing discrepancies with respect to the Pan Card of the
successful candidate. That the successful candidate had
clandestinely procured a new Pan Card bearing No. DWAPK7513R
which was issued to him on 24.03.2015, showing his date of birth as
30.09.1990 by deliberately concealing the fact that he had already
been issued Pan Card No. DFOPK6164K on 30.08.2013 in which his
date of birth was recorded as 01.01.1993. As per the original pan
card, the successful candidate was less than twentyfive years of age,
whereas, according to his new pan card he was twentysix years of
age.
(C)Further, the successful candidate had opened a bank account no.
34341386006 in State Bank of India with Pan Card No. DFOPK6164K
wherein his date of birth in the bank account was recorded as
01.01.1993. That the successful candidate had two pan cards and
had not disclosed his correct income while contesting the legislative
assembly elections.
Evidence:
7. The parties let in oral as well as documentary evidence in the Election
Petition:
8
7.1. The election petitioner let in oral evidence through PW1 PW4
witnesses. The election petitioner got marked Exhibit P1 to P4
documents.
7.2. The successful candidate let in oral evidence through DW1 DW10
witnesses. The successful candidate got marked Exb. No. R1R12
documents.
7.3. On the basis of oral and documentary evidence on record, High Court
allowed the Election Petition filed by the election petitioner herein and
set aside the election of the successful candidate/appellant herein in
respect of 34Suar Constituency, District Rampur, held in the year
2017. Being aggrieved successful candidate has preferred this appeal.
Submissions:
We have heard Shri Kapil Sibal, learned senior counsel instructed by
learned counsel on behalf of the successful candidate whose election has been
set aside by the High Court and Shri Aadil Singh Boparai, learned counsel for
the respondent instructed by learned counsel.
8. The submissions on behalf of the appellantsuccessful candidate do not
call for reiteration and are epitomised as under:
8.1.Learned senior counsel, Shri Kapil Sibal, appearing on behalf of the
successful candidate submitted that the impugned judgment of the
High Court had been rendered based on an erroneous appreciation of
9
law and facts relating to the controversy at hand, and also on an
incorrect understanding of the fact in issue. That the appellant
successful candidate, at the time of filing his nomination as well on the
date of polling, had completed the age of twentyfive years and was
therefore competent in all respects to hold the office of Member of
Legislative Assembly.
8.2. It was contented that the fact in issue in the present case is not
whether the successful candidate entered his date of birth as
01.01.1993 in his official documents, but whether the successful
candidate was actually born on 01.01.1993; or whether despite the fact
that certain documents had recorded the successful candidate’s date of
birth to be 01.01.1993, he was actually born on another date, i.e.,
30.09.1990.
8.3.It was submitted that the best evidence as regards the actual date of
birth of the successful candidate, was the testimonial evidence of the
successful candidate’s mother (DW5) and the doctor (DW3) who
delivered the successful candidate. That the law of evidence requires
that direct and primary evidence, if available, must be given for proof of
a fact and such evidence would be the best evidence of such fact. This
foundational rule is reflected, interalia, in Sections 59 to 65 and
Section 91 of the Indian Evidence Act, 1872 (hereinafter referred to as
“Evidence Act” for the sake of brevity). In the instant case, the evidence
10
of the successful candidate’s mother and the delivering doctor is direct
oral evidence of the fact of birth of the successful candidate on a given
date.
8.4. It was vehemently contended that DW5’s testimony was fully
corroborated by the recitals in her service book and salary register, as
also by the hospital records. That the hospital records such as the
Emergency O.T. (E.O.T) register and the Maternity Labour room Register
(MLR), were not only primary and direct evidences that were
contemporaneous to the event of birth, but were also public documents
which were produced from proper custody and therefore, they would be
both relevant and admissible under Section 35 read with Section 74 of
the Evidence Act.
8.5.Further, referring to the testimony of DW3, namely, Dr. Uma Singh,
who is stated to be the doctor who enabled the delivery of the successful
candidate, it was submitted that the statements made by DW3, when
considered together with the hospital records, conclusively establish
that the successful candidate was born on 30.09.1990. That DW3 was
one such witness, who was connected with the successful candidate’s
birth in a manner as would enable her to vouchsafe the truth as to the
date of birth of the successful candidate. That the High Court
committed a grave error in disregarding the evidence of DW3 on the
sole ground that she stated that she was unable to say with certainty
11
that the baby born to DW5 on 30.09.1990, was in fact, the successful
candidate. That to expect DW3 to make such an assertion, was an
absurd requirement, which was not contemplated under law.
8.6.Shri Kapil Sibal, learned senior counsel sought to explain the
discrepancy in the period of pregnancy of the successful candidate’s
mother, as recorded in Column 10 of the relevant entry in the maternity
labour room register by stating that the age of the successful
candidate’s mother at the time, i.e., 38 years, had been incorrectly
entered in the column dedicated for ‘period of pregnancy.’ That this was
in the nature of a clerical error and ought not to be held to have a
material bearing on the authenticity of the record itself, more so, when
all other details recorded in the said register were correct.
8.7.As regards the allegations of forgery and fabrication of the hospital
records, it was averred that by making entries as to the successful
candidate’s birth on a later date, it would require a single horizontal
space in the registers ought to have been kept blank since 1990, till
whenever the successful candidate is alleged to have created the forged
records. Such an assumption is wholly improbable and therefore, there
is no possibility of forgery and fabrication of the hospital records.
Further, no such absurd presumption could be made particularly when
the hospital records stood corroborated by the testimonial evidence of
DW4, namely, Dr. Vineeta Das, Head of the Department of Gynaecology
12
and Obstetrics as well as by the birth certificate dated 21.04.2015
issued by DW3 and DW 4 and proved by them.
8.8. It was next contended that the High Court’s reliance on school records of
the successful candidate, wherein his date of birth was incorrectly
recorded as 01.01.1993, was misplaced. That school records are not
direct evidence of the fact of birth and cannot, on a balance of
probabilities, be given preeminence over direct evidence of the mother,
delivering doctor and contemporaneously created hospital records. In
order to buttress such averments, reliance was placed on Birad Mal
Singhvi vs. Anand Purohit A.I.R. 1988 SC 1796; Sushil Kumar vs.
Rakesh Kumar (2003) 8 SCC 673; Joshna Gouda vs. Brundaban
Gouda (2012) 5 SCC 634.
8.9. It was further submitted that the error in the school records had been
sufficiently explained by DW5, as well as DW9, who is the person who
is stated to have accompanied the successful candidate to get him
admitted in school. That it is a common practice in India to give a
belated date of birth at the time of admission in school so as to secure
benefit of enhanced years of public service, and such practice has been
acknowledged by this Court in Brij Mohan Singh vs. Priya Brat
Narain Sinha and Ors. A.I.R. 1965 SC 282.
13
8.10. As regards the election petitioner’s reliance on the GIS nomination form
of the successful candidate’s mother, wherein she had stated that the
successful candidate was eight years old as on 26.04.2001, it was
submitted that the said document was neither direct nor
contemporaneous proof of birth on a certain date. The GIS nomination
form was at best a piece of circumstantial evidence which had no weight
and could not establish that the successful candidate’s date of birth
was 01.01.1993.
8.11. On the basis of the aforesaid submissions, it was asserted that the
election petitioner had not produced sufficient evidence so as to
discharge the burden of proof to prove his positive case, as required
under law, vide Birad Mal Singhvi (supra) and Sushil Kumar (supra).
That the entire case of the election petitioner was based on conjectures
and farfetched presumptions as to exertion of pressure by the
successful candidate’s father, for issuance of forged certificates and
therefore, the Election Petition ought not to have been entertained by
the High Court.
With the aforesaid averments, it was prayed that the impugned
judgment be set aside and the instant appeal be allowed by dismissing
the election petition.
14
9. The submissions on behalf of the learned counsel for respondentelection
petitioner Sri Boparai, are summarised as under:
9.1. Learned counsel for the election petitioner supported the impugned
judgment and contended that there was no infirmity in the findings and
decision of the High Court which would call for interference by this
Court. Hence, it was prayed that the instant appeal may be dismissed
and the judgment of the High Court dated 16.12.2019 be confirmed.
9.2. Learned counsel elaborated his submissions by contending that the
nomination of the successful candidate herein to be a candidate for the
Uttar Pradesh Legislative Assembly Elections from the Suar District
Constituency, District Rampur, was erroneously accepted as the
successful candidate was underaged and had not completed twentyfive
years of age which is a qualification and an eligibility criterion under
Article 173 (b) of the Constitution of India. That since the nomination of
the successful candidate was improperly accepted and he was
ultimately declared the successful candidate in the said election, the
result was liable to be set aside which was rightly done by the High
Court.
9.3.Learned counsel for the election petitioner contended that the correct
date of birth of the successful candidate is 01.01.1993 as recorded in
the ClassX marksheet of the successful candidate; the passports
issued to him dated 28.08.2006 and 13.07.2012, the successful
15
candidate’s original birth certificate dated 28.06.2012 issued by the
Nagar Palika Parishad, Rampur, the passport applications of the
successful candidate pertaining to the year 2012 and the visa issued to
the successful candidate dated 09.07.2014. It was further contended
that the aforesaid documents are public documents and the same were
not denied by the successful candidate, hence, they were admissible
and relevant under Section 21 and 35 of the Evidence Act and a
presumption would arise as to the validity of such documents.
9.4.It was next contended that the defence taken by the successful
candidate that he came to know about the incorrect date of birth
mentioned in the aforesaid documents only in the year 2015 and the
passport and other documents were eventually cancelled, did not
inspire confidence as the successful candidate in his crossexamination
had stated that the process of cancellation was initiated in the year
2018, much after the election petitioner filed the Election Petition before
the High Court. That such a conduct of the successful candidate was
demonstrative of the fact that attempts were made to fabricate an
earlier date of birth in the records pertaining to the successful
candidate, only when his election was challenged, and not prior to that.
9.5.Learned counsel for the election petitioner averred that he had
discharged the initial burden of proof by adducing the aforesaid
documents as evidence wherein the date of birth of the successful
16
candidate was recorded as 01.01.1993. That the existence of such
documents as well as the contents thereof stood admitted by the
successful candidate; so also, the fact that the said documents were
signed and submitted by him before the competent authorities. In that
context, reliance was placed on the judgment of the Privy Council in
Rani Chandra Kunwar vs. Chaudhari Narpat Singh and Ors.
(1906) SCC OnLine PC 26 to contend that once the successful
candidate had admitted the execution of the aforesaid public
documents, the onus of proof shifted on the successful candidate to
adduce evidence to rebut the presumption and further demonstrate that
his date of birth is 30.09.1990 and not 01.01.1993.
9.6.The election petitioner also relied on Sushil Kumar vs. Rakesh Kumar
(2003) 8 SCC 673, to assert that, when both the parties have adduced
evidence in an election petition, the question of onus of proof would
become academic and therefore, it was for the Court to appreciate the
contrary oral and documentary evidence and arrive at a conclusion, de
hors considerations as to who was to discharge whole or part of the
burden of proof.
9.7.Learned counsel for the election petitioner referred to the GIS (Group
Insurance Scheme) Nomination form in the service book (Ex. R11 Paper
No. A95/25) of the successful candidate’s mother, which was proved in
17
evidence by DW1 S. K. Tiwari, Assistant Director of Higher Education,
Uttar Pradesh, to contend that the said form was signed by the mother
of the successful candidate on 26.04.2001 and in the said form she had
admitted that the successful candidate was eight years old as on
26.04.2001. Such an admission was conclusive proof of the fact that he
was born in the year 1993 and was therefore eight years old in April,
2001. The said GIS Form was adduced as a piece of evidence by the
successful candidate and was also adverted to by DW5 – Dr. Tazeen
Fatima in her crossexamination. However, she did not offer any
explanation as to the successful candidate’s age in the said form. In this
regard, reliance was placed on the judgment of this Court in P.C.
Purushothama Reddiar vs. S. Perumal (1972) 1 SCC 9 wherein it
was observed that once a document is properly admitted, the contents
of that document are also admitted in evidence and no further evidence
would have to be let in by the party relying on such an admission to
establish the fact so admitted.
9.8.It was submitted that the E.O.T Register (Ex. R4 Paper No. A100/12)
and the M.L.R. Register (Ex. R5 Paper No. A101/12) adduced as
evidence by the successful candidate, were neither authenticated nor
certified by the competent authority of Queen Mary’s Hospital. There
were irregularities including entry of wrong name, discrepancy in the
records pertaining to period of pregnancy, etc., which were admitted by
18
DW3, Dr. Uma Singh, in her crossexamination and more importantly,
D.W.3 also stated that she could not confirm that the successful
candidate was born on 30.09.1990.
9.9. It was next contended that the Birth Certificate issued by the Nagar
Nigam, Lucknow, wherein the date of birth of the successful candidate
was shown as 30.09.1990, was based on a purported entry in the birth
register (Ex. R12 A 96/45) which was tendered as evidence by DW2,
Dr. Archana Dwivedi, Additional Municipal Commissioner, Nagar
Nigam, Lucknow and the said entry was as a result of manipulation of
the public records. That DW2 in her crossexamination had stated that
the birth register was maintained by a clerk and was not in the
prescribed format as per the mandate of the Registration of Births Act,
1969, (hereinafter referred to as the “Act”, for the sake of brevity), and
the same had not been authenticated or verified by a competent official.
Further, the birth register was not paginated and the entry of the name
of the successful candidate’s mother was not made in a chronological
order. Also, DW2 testified that the Birth List maintained by the
hospital, on the basis of which birth entry of successful candidate’s
name was made in the birth register maintained by the municipality,
was not available. Therefore, the substratum or the basis of making the
entry in the birth register maintained by the municipality was not
19
available and hence, the corresponding entry was a result of extraneous
factors.
9.10. Further, it was submitted that reliance placed by the successful
candidate on the result of the ossification test did not prove that he was
born on 30.09.1990. In order to buttress such contention, learned
counsel for the election petitioner placed reliance on Mukarrab and
others vs. State of U.P. (2017) 2 SCC 210 wherein it was observed by
this Court that Ossification Test cannot be solely relied upon and is not
a conclusive proof of age. In furtherance of such an argument, learned
counsel for the election petitioner referred to the testimony of DW8, Dr.
Satbir Singh Ken, who, in his crossexamination had admitted that
ossification test is not a definitive proof of age as the result of such a
test could vary from the actual age, to a certain degree.
With the aforesaid averments, it was prayed that the present appeal be
dismissed as being devoid of merit and the impugned judgment be confirmed.
Points for consideration:
10.Article 173(b) of the Constitution of India states that a person shall not
be qualified to be chosen to fill a seat in the legislature of the state unless he is,
in the case of seat in the legislative assembly, not less than twentyfive years of
age and in the case of a seat in the legislative council not less than thirty years
of age.
20
Having heard learned senior counsel and learned counsel for the
respective parties and on perusal of the material on record, the following points
would arise for consideration:
(i) Whether the High Court was correct and justified in
allowing Election Petition No.08 of 2017 filed by the election
petitioner against the successful candidate and thereby
setting aside the election of the successful candidate to the
office of Member of Legislative Assembly, from 34Suar
Constituency, District Rampur, Uttar Pradesh, on the ground
that there was improper acceptance of successful candidate’s
nomination paper and there was a breach of Article 173(b) of
the Constitution of India?
(ii) What order?
11.The narration of facts and contentions would not call for reiteration
except stating that the successful candidate is aggrieved by his election to the
Legislative Assembly vis
àvis
34 Suar Constituency, District Rampur, Uttar
Pradesh, being set aside at the instance of the election petitioner by the
impugned judgment of the High Court.
12.Before proceeding to consider the evidence let in by the respective parties
in order to ascertain whether, the conclusions arrived at by the High Court in
allowing the Election Petition filed by the election petitioner herein, are just
21
and proper, it is necessary to discuss and delineate on the relevant judgments
of this Court cited at the Bar with regard to burden of proof in light of the
relevant provisions of the Evidence Act.
12.1. The legal scheme governing various aspects of ‘burden of proof’ in the
Indian context, is contained in Sections 101 to 106 of the Indian
Evidence Act.
12.2. As per Section 101 of the Indian Evidence Act, when a person is bound
to prove the existence of any fact, it is said that the burden of proof lies
on that person. This section is based on the rule, ei incumbit probatio
qui dicit, non qui negat, which means that the burden of proving a fact
rests on the party who substantially asserts the affirmative of the issue
and not upon the party who denies it, because a negative is usually
incapable of proof. The burden of proving a fact always lies upon the
person who asserts and until such burden is discharged, the other
party is not required to be called upon to prove his case. The court has
to examine as to whether the person upon whom the burden lies has
been able to discharge his burden. However, the above rule is subject to
the general principle that things admitted need not be proved.
12.3. The question as to whether burden of proof has been discharged by a
party to the lis or not, would depend upon the facts and circumstances
of the case. If the facts are admitted or, if otherwise, sufficient materials
22
have been brought on record so as to enable a Court to arrive at a
definite conclusion, it is idle to contend that the party on whom the
burden of proof lies would still be liable to produce direct evidence, vide
National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC 75: AIR 2009
SC 1499.
12.4. Burden to prove documents lie on plaintiff alone as onus is always on
the person asserting a proposition or fact which is not selfevident. This
position is summarised in the observation to the effect that, an
assertion that a man who is alive was born requires no proof; the onus,
is not on the person making the assertion, because it is selfevident that
he had been born. But to assert that he had been born on a certain
date, if the date is material, requires proof; the onus is on the person
making the assertion, vide Robins vs. National Trust & Co. Ltd. 1927
AC 515: 101 IC 903.
12.5. It is also to be noted at this juncture that there is an essential
distinction between burden of proof and onus of proof. Burden of proof
lies upon a person who has to prove the fact and it never shifts, onus of
proof on the other hand, shifts. Such a shifting of onus is a continuous
process in the evaluation of evidence. For instance, In a suit for
possession based on title, once the plaintiff has been able to create a
high degree of probability so as to shift the onus on the defendant, it is
23
for the defendant to discharge his onus and in the absence thereof, the
burden of proof lying on the plaintiff shall be held to have been
discharged so as to amount to proof of the plaintiffs title, vide RVE
Venkatachala Gounder vs. Arulmigu Viswesaraswami and VP
Temple AIR 2003 SC 4548 (455859): (2003) 8 SCC 752 .
12.6. In terms of section 102 of the Evidence Act, the initial burden to prove
its claim is always on the plaintiff and if he discharges that burden and
makes out a case which entitles him to a relief, the onus shifts to the
defendant to prove those circumstances, if any, which would disentitle
the plaintiff of the same.
12.7. Where, however, evidence has been led by the contesting parties,
abstract considerations of onus are out of place and truth or otherwise
must always be adjudged on the evidence led by the parties [Kalwa
Devadattam vs. Union A.I.R. 1964 SC 880]
12.8. As per Section 103, the burden of proof as to any particular fact lies on
that person who wishes the Court to believe in its existence, unless it is
provided by any law that the proof of that fact shall lie on any particular
person. This section amplifies the general rule in section 101 that the
burden of proof lies on the person who asserts the affirmative of the
issue. It lays down that if a person wishes the court to believe in the
existence of a particular fact, the onus of proving that fact, is on him,
24
unless the burden of proving it is cast by any law on any particular
person.
12.9.Section 105 is an application of the rule in section 103. When parties to
a dispute adduce evidence to substantiate their claim, onus becomes
academic and divided, entailing each party to prove their respective
plea.
12.10. Section 106 is an exception to the general rule laid down in Section 101,
that the burden of proving a fact rest on the party who substantially
asserts the affirmative of the issue. Section 106 is not intended to
relieve any person of that duty or burden but states that when a fact to
be proved is peculiarly within the knowledge of a party, it is for him to
prove it. It applies to cases where the fact is especially within a party’s
knowledge and to none else. The expression ‘especially’ used in Section
106 means facts that are eminently or exceptionally within one’s
knowledge. This means a party having personal knowledge of certain
facts has a duty to appear as a witness and if he does not go to the
witness box, there is a strong presumption against him. In an Election
Petition, the initial burden to prove determination of age of returned
candidate lies on the petitioner, however, burden lies on the respondent
to prove facts within his special knowledge. (Sushil Kumar vs. Rakesh
Kumar (supra))
25
12.11. The provisions of Section 106 are unambiguous and categorical in
laying down that when any fact is especially within the knowledge of a
person, the burden of proving that fact is upon him. If he does so, he
must be held to have discharged his burden but if he fails to offer an
explanation on the basis of facts within his special knowledge, he fails
to discharge the burden cast upon him by Section 106.
[Source: Sarkar on Law of Evidence, 20
th
Edition, Volume 2.]
12.12. In Sushil Kumar vs. Rakesh Kumar (supra) , the controversy was with
regard to the improper acceptance of the nomination of the sole
respondent therein on the premise that he was under qualified to
contest the Bihar Legislative Assemble election from 181, Parbatta
Constituency. In the said case, inter alia, the horoscope of the
respondent therein and admission register of New St. Xaviers School,
Boring Road, Patna and transfer certificate issued by Swami
Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents
to prove that the successful candidate therein was not eligible to contest
the said Assembly election. In the said case, Section 35 of the Indian
Evidence Act was referred to and it was observed that the register
maintained in terms of a statute or by a statutory authority in regular
course of business would be a relevant fact and if such vital evidence
had been produced, it would clinch the issue. It was observed that there
26
is no reliable evidence on record to show that the date of birth was
recorded in the school register on the basis of the statement of any
responsible person and that the admission register or a transfer
certificate issued by a primary school do not satisfy the requirements of
Section 35 of the Evidence Act.
Further, reference was made to Brij Mohan (supra) as well as
Birad Mal Singhvi (supra) and it was observed that in the absence of
primary material on the basis whereof the age was recorded, it would
not be possible to accept the evidence produced therein. While
examining the admission register of the school relied upon by the
successful candidate therein, it was observed that entries in the said
register had been made by one person with two different pens in one
sitting. Also, there were other alterations in the said register and hence,
no credence could be given to the same. It was observed that forgery in
the register had been done in a crude form and the High Court had
noticed the same but still proceeded to rely upon the said documents
which amounted to a misdirection in law. It was further observed that
the respondent therein had special knowledge as to in which school he
had studied and should have disclosed the same instead of disclosing
the details of his education. He had taken recourse to suppression veri
and suggestion falsi and had produced documents which were
apparently forged and fabricated. The respondent therein could not
27
have been admitted in New St. Xaviers Junior School, being overaged
and the evidence of father of the respondent was not trustworthy.
Further, the horoscope filed by the respondent in the said case did not
inspire confidence. Further, DW2 who let in evidence on the horoscope
was a bystander who had nothing to do either with the preparation of
the horoscope or with the writing thereof and his evidence was not
trustworthy and the horoscope could not have been looked into for any
purpose whatsoever. Also, an application was filed on behalf of the
respondent therein in respect to the occurrence which took place in
April, 1995, and the date of birth of the appellant was said to be
fourteen years as on that date, and, thus, sixteen years in the year
1996 and was below twentyfive years of age on the date of filing of the
nomination.
With reference to the averments made in the bail application on
behalf of the respondent therein and the same being an admission,
reliance was placed on Thiru John vs. Returning Officer (1977) 3
SCC 540 to observe that a party’s admission as defined in Sections 17
to 20, fulfilling the requirements of Section 21 of the Evidence Act, is
substantive evidence proprio vigore. An admission, if clearly and
unequivocally made, is the best evidence against the party making it
and even though conclusive, shifts the onus on to the maker on the
principle that ‘what a party himself admits to be true may reasonably be
28
presumed to be so and until the presumption was rebutted, the fact
admitted must be taken to be established.’
It was further observed in para 65 of the said judgment that :
“65. Furthermore, a person should not be permitted to
take advantage of his own wrong. He should either stand
by his statement made before a court of law or should
explain the same sufficiently. In the absence of any
satisfactory explanation, the court will presume that the
statement before a court is correct and binding on the
party on whose behalf the same has been made.”
Under Section 58 of the Indian Evidence Act, a fact admitted need
not be proved.
12.13. In Narender Singh vs. Mala Ram and Ors. (1999) 8 SCC 198, the
controversy was with regard to the improper rejection of nomination
papers and the filing of an Election Petition by the candidate whose
nomination papers were improperly rejected and improper acceptance of
the nomination papers of the returned candidate. This Court speaking
through Rajendra Babu, J., discussed about consideration and
appreciation of evidence in an election dispute. In para 15 of the
judgment, it was observed that the general principle in the matter of
appreciation of evidence in an election dispute is that the onus to prove
the essential facts which constitute the cause of action in such a
dispute is upon the person making it, namely, the election petitioner.
What evidence would be sufficient to prove a particular fact depends
29
upon the circumstances of each case. When the evidence adduced is
capable of drawing an inference either way, the view that is favourable
to the returned candidate will have to be preferred. Reference was made
to Ram Singh vs. Col. Ram Singh 1985 (Supp.) SCC 611 , wherein, it
was observed that “in borderline cases the courts have to undertake the
onerous task of, ‘disengaging the truth from falsehood, to separate the
chaff from the grain’.”
Analysis:
I shall now analyse the oral and documentary evidence on record in order
to assess the correctness of the findings of the High Court.
i) Re: Passports and Visas of the appellantsuccessful candidate:
13. The election petitioner adduced Ex. P1 and P3 wherein the date of birth
of the successful candidate was shown as 01.01.1993, to contend that the
successful candidate was less than 25 years of age at the time of filing his
nomination and the fact that the aforesaid documents indicated the date of
birth as 01.01.1993 was not disputed by the successful candidate although the
said date was not accepted as his date of birth.
13.1. It is noted that the successful candidate had made applications under
his own signature to obtain the passports in the year 2006 and 2012
(Ex. P1 – Paper No. A 49/14) wherein he had mentioned his date of
birth as 01.01.1993. Therefore, the High Court held that the successful
30
candidate had always been aware of the fact that in the educational
certificate and passports, his date of birth was shown as 01.01.1993
and had accepted the same till the year 2015.
13.2. PW2, Shri. Mohd. Naseem, Passport Officer, Bareilly, deposed that he
had brought photocopies of the documents referred to by the successful
candidate at the time of making an application for the issuance of his
Passport No. K7951741 which was issued to him on 13.07.2012 from
Bareilly Passport Office. PW2 deposed that the successful candidate
had annexed a copy of his birth certificate issued by the Health
Department/Municipal Corporation, Rampur, on 28.06.2012, along
with a copy of his online application form, a copy of a pass book
pertaining to his bank account held with State Bank and a copy of his
old Passport No. F8757022 issued on 28.08.2006 which was valid till
31.12.2010. To a question whether selfattested copies of documents
submitted by an applicant are maintained in the records, PW2 deposed
that original copies are returned and selfattested copies are scanned.
13.3. When a question was posed as to whether by modifying the particular
entry of date of birth in the successful candidate’s old Passport No. K
7951741, a new Passport No. Z4307442 after mentioning his date of
birth as 30.09.1990 was issued to him on 10.01.2018, PW2 deposed
that he was not in a position to answer the question as each application
was available separately in the P.S.P. system. He deposed that in
31
compliance of the Court’s order, he had brought only the available
record of Passport No. K7951741 and if after that a new Passport No.
Z4307442 was issued, he would have to check from the system. That
he would be able to present records pertaining to Passport No. Z
4307442 on the next date fixed by the Court, if the same had in fact
been issued.
13.4. Further, on perusal of Ex. P1, paper No. A49/14, which is the Passport
application dated 06.07.2012 made by the successful candidate, I am of
the opinion that the same is made under his own signature and records
his date of birth as 01.01.1993, and place of birth as Rampur. In that
background, it is necessary to examine whether the information entered
in the passport application dated 06.07.2012, would amount to proof,
as to the contents of such application, including the date and place of
birth entered therein.
13.5. I am of the view that great evidentiary value has to be attached to an
application submitted to a government establishment or Office, such as
a Passport Office and the details entered in such application, together
with the documents submitted therewith, must be understood to be
tendered by the applicant who signs the application form thereby
accepting that the information submitted therein is true and correct
and to the best of his knowledge. I find that the successful candidate
herein, having signed the application form dated 06.07.2012 wherein it
32
has been expressly entered that his date of birth was 01.01.1993 and
place of birth was Rampur, cannot, at a later juncture claim that he
was unaware, till the year 2015 that his date of birth as per various
documents was 01.01.1993 and his place of birth was Lucknow. The
fact that the successful candidate selfattested the birth certificate
issued by the Municipal Corporation, Rampur, wherein his date of birth
has been recorded as 01.01.1993, would establish that the successful
candidate acknowledged, accepted and sought to rely on such fact in
order to secure a passport on the basis of such information. It is
therefore not open to the successful candidate to subsequently resile
from the aforesaid clear admission and contend that he was unaware
that an ‘incorrect’ date of birth was recorded in certain documents.
Having admitted the fact that his date of birth was 01.01.1993 and
place of birth was Rampur, in the application form dated 06.07.2012
which was at an undisputed point of time, the successful candidate
cannot resile from the same.
13.6. I also take note of the fact that the successful candidate had travelled to
many foreign countries on his passports which were obtained in the
year 2006 and 2012 and the visa which was granted in the year 2014
and in these documents his date of birth was shown as 01.01.1993. I
am unable to accept that the successful candidate, who regularly used
the passports obtained in the years 2006 and 2012 for international
33
travel, failed all along, to notice that the date of birth recorded in the
passports was incorrect. I refuse to believe that an educated individual
such as the successful candidate herein, had not, in over nine years
(2006 to 2015) looked at the first page of his passport and only later
grasped that the date of birth entered therein was ‘incorrect’ only while
he was on the verge of entering politics and contesting an election to the
Legislative Assembly.
13.7. Further, I also take note of the deposition of P.W.4. who deposed that all
the papers related to Birth Certificate No. 3857, Register No. R.N.P.B.
201203857, dated 28.06.2012 had been destroyed in a fire due to a
short circuit on 08.05.2015 in the office of Nagar Palika Parishad,
Rampur and that no papers pertaining to a period prior to such date
were available in the Office of Nagar Palika Parishad, Rampur. That
such documents were available only in a computergenerated form and
a copy of Birth Certificate No. 3857, Register No. R.N.P.B. 201203857,
dated 28.06.2012 was produced wherein the successful candidate’s
date of birth was recorded as 01.01.1993.
13.8. The stand taken by the successful candidate that all documents
pertaining to the Birth Certificate dated 28.06.2012 were burnt due to a
short circuit on 08.05.2015 in the office of Nagar Palika Parishad,
Rampur, would suggest that the said birth certificate, wherein the date
of birth of the successful candidate was recorded as 01.01.1993 came to
34
be later cancelled under suspicious circumstances. It is rather strange
that a birth certificate pertaining to the year 1993, was destroyed in the
year 2015 under peculiar circumstances, at a time when the successful
candidate was making several efforts to get his date of birth changed in
various records. It is rather unbelievable that just when the successful
candidate began assuming an active role in politics and undertook
various efforts towards correcting his date of birth in several records,
i.e., in the year 2015, the birth certificate and relevant documents
pertaining to the said certificate, wherein the date of birth of the
successful candidate was recorded as 01.01.1993 came to be destroyed
in a fire and was accordingly cancelled.
13.9. It is further noted that an application seeking a birth certificate was
made on 28.06.2012 bearing No. RNPP 201203857 to the Nagar Palika
Parishad, Rampur and on the same date, birth certificate was issued to
the successful candidate showing the date of birth as “01Jan1993”.
The place of birth was shown as “घघर ममर बबज खब, जघल ररड, रबमपपर”. The said
address is shown to be the address of his parents at the time of birth of
the child i.e., the successful candidate as well as the permanent
address of parents. The inference to be drawn from the said document
is that in the year 2012, the petitioner consciously applied to Nagar
Palika Parishad, Rampur for obtaining the birth certificate in order to
append the same for obtaining a new passport. The further inference
35
that I draw from the said document is that the successful candidate has
sought his birth certificate from the Nagar Palika Parishad, Rampur as
he was born at Rampur and the birth certificate clearly indicates that
he was born on 01.01.1993. Subsequently, the said birth certificate was
cancelled. PW4 has deposed that all the documents relating to the
issuance of birth certificate to the successful candidate were destroyed
in fire on 08.05.2015 which is indeed strange and mysterious as by
then the successful candidate had already obtained “duplicate” birth
certificate from the Municipal Corporation, Lucknow.
ii) Re: Educational Certificates of the successful candidate:
14. As per the Secondary School examination Class X certificate (Exhibit P4,
paper no. A25/1) issued in the year 2007 by the C.B.S.E., the successful
candidate’s date of birth has been recorded as 01.01.1993. The High Court has
observed that the stand taken by the successful candidate in this regard is that
he came to know that his date of birth was ‘incorrectly’ mentioned as
01.01.1993 in the Certificate of Secondary School Examination (Class X) only
in the year 2015 when he was scrutinising his educational records, was
unbelievable and untrue.
14.1. As regards the successful candidate’s educational records, which record
his date of birth to be 01.01.1993, his version is that due his father’s
busy social and political life, his father’s friend Shahzeb Khan (DW9)
got him admitted in the Nursery Class of St. Paul School, Rampur. It is
36
the successful candidate’s case that his date of birth was incorrectly
recorded as 01.01.1993 instead of 30.09.1990 and the same continued
in all his educational records. That he made an application to C.B.S.E.
through the Principal of St. Paul School to change the date of birth
mentioned in his records and also sent many reminders to the school
and the same were forwarded to the office of C.B.S.E. in Allahabad,
however, till date no information had been given to him by C.B.S.E.
14.2. In this regard, D.W.5 mother of the successful candidate deposed that
her family friend Shahzeb Khan (DW9) took the successful candidate to
St. Paul School, Rampur, for his admission in Nursery Class in the year
1995 and wrongly entered the date of birth as 01.01.1993 instead of
30.09.1990 in the admission form. That the successful candidate was
born on 30.09.1990 and the date of birth mentioned in his educational
record was incorrect. DW5 was asked if she knew that her sonthe
successful candidate had mentioned his date of birth in Class X, Class
XII, under graduate degree and post graduate degree as 01.01.1993.
DW5 deposed that when her son was in the final year of his
graduation, he informed her that the date of birth in his educational
record was wrongly mentioned and that the date of birth in other
educational records could not be corrected without changing the date of
birth mentioned in the ClassX Certificate. Therefore, an application
37
was made to the Principal, St. Paul School Rampur, to correct the date
of birth as per the school records.
14.3. DW9, who is stated to be the person who accompanied the successful
candidate to St. Paul School to get him admitted in nursery class was
also examined. DW9 deposed that in the year 1995, he took the
successful candidate to St. Paul’s School, Civil Lines, Rampur, to get
him admitted into the said school. That after completing the admission
process, the master who was in charge of giving admission, got the
successful candidate enrolled in Nursery class and put his date of birth
as 01.01.1993 in the admission form and asked DW9 to sign it and
DW9 signed the same.
14.4. I am of the view that the version narrated by the successful candidate to
explain the ‘error’ in his date of birth, as recorded in all educational
records, would not aid the successful candidate’s case.
Further, it is to be noted that DW5Tazeen Fatima in Paragraph
12 of her ExaminationinChief and the successful candidate in
Paragraph 53 of his written statement had stated that DW9 Shahzeb
Khan, the successful candidate’s father’s friend, had got him admitted
in the nursery class of St. Paul School, Rampur, in the year 1995, and
had inadvertently mentioned the date of birth of the successful
candidate as 01.01.1993. However, DW9 Shahzeb Khan, in Paragraph
5 of his ExaminationinChief has deposed that the master had written
38
the date of birth of the successful candidate in the admission form.
Therefore, I am not inclined to attach much weight to the statements of
either DW5 or DW7 in this regard as they are inconsistent with each
other.
14.5. It is further noted that the successful candidate has emphatically stated
that his date of birth is 30.09.1990 and not 01.01.1993 and that an
erroneous date was given at the time of his admission to nursery class
in the year 1995. This would mean that the successful candidate was
sought to be admitted in nursery class when he was about 5
½ years of
age which is not believable as he would be overaged for that class. On
the other hand, if he was born on 01.01.1993, it is possible that at 2
½
years he would have been admitted to nursery class which is the right
age to get admission in nursery. Further, the successful candidate has
completed his 10
th
standard in the year 2007 and his 12
th
standard in
the year 2009 which would mean that the successful candidate was
about 14
½ years when he completed his 10
th
standard and 16
½ years
when he completed his 12
th
standard which is the normal age to do so.
If according to the successful candidate his actual date of birth is
30.09.1990, the inference is that he would have been about 17
½ years
when he completed his 10
th
standard and 19
½ years when he
completed his 12
th
standard which is improbable. Also, there is no
39
explanation on record as to why at a belated age he has completed his
10
th
standard and intermediate examination in the year 2009.
14.6. D.W.7 who is the Director of St. Paul School, Rampur, was also
examined to prove the version narrated by the successful candidate. He
deposed that the successful candidate addressed a letter dated
23.03.2015 to the school stating therein that in the year 2015 he came
to know that his date of birth was incorrectly entered in his educational
certificates as 01.01.1993 whereas his actual date of birth was
30.09.1990 and he requested DW7 to make the necessary changes. He
in turn forwarded the letter dated 23.03.2015 to the Regional Office,
C.B.S.E, Allahabad, along with a letter issued by him to the Regional
Office, C.B.S.E., dated 15.04.2015 wherein he had requested C.B.S.E.
to correct the successful candidate’s date of birth. Also, he had sent two
reminders to the Regional Office, C.B.S.E., Allahabad, on 19.05.2015
and 21.09.2015 stating that in the register of birth and death and the
Birth Certificate provided by the Hospital, the date of birth of the
successful candidate was shown as 30.09.1990 and therefore, it should
be changed from 01.01.1993 to 30.09.1990. Further, in the reminders,
DW7 stated that in the register of birth and death and the Birth
Certificate provided by the Hospital, the date of birth of the successful
candidate was shown as 30.09.1990 and therefore, the date of birth in
40
the educational records should also be changed from 01.01.1993 to
30.09.1990.
14.7. It is further noted that on the request made on behalf of the successful
candidate, several letters were addressed by the Principal of St. Paul
School, Rampur to the Regional Officer, Central Board of Secondary
Education, Allahabad requesting for permission to correct the date of
birth of the successful candidate. Further, the said permission was not
granted and on 30.10.2017, a letter was addressed to the mother of the
successful candidate – DW5 stating that the matter was twenty years’
old and it was not possible for the school to trace the required details.
This would imply that the school records continue to show the date of
birth of the successful candidate as 01.01.1993 and on that basis the
other educational records of the successful candidate also indicate his
date of birth as 01.01.1993. On perusal of the application seeking
passport application form submitted by the successful candidate, it is
noted that his date of birth and place of birth have been mentioned as
01.01.1993 and at Rampur. Further, two references given by him are
Rafi Raja Khan and Rizwan Mohammad Khan also residing at Ghair
Meer Baaz Khan, Jail Road, Rampur. The permanent residential
address details of the successful candidate were also shown as Ghair
Meer Baaz Khan, Jail Road, Rampur, Ganj, Uttar Pradesh. This would
41
imply that in the school records, the date of birth of the appellant
continues to be 01.01.1993 and his place of birth as Rampur.
14.8. But since DW7 in his request made to the C.B.S.E. relied on the entry
made in the register of birth and death and the Birth Certificate
provided by the Hospital, it is necessary to examine whether the said
register and the hospital records were genuine and can be relied upon.
Accordingly, such questions are examined in the following section of the
analysis.
iii) Re: Whether the Birth Certificate bearing Registration No. NNLKOB
2015292611 issued on 21.01.2015 by the Nagar Nigam, Lucknow,
was a valid piece of evidence?
15. To ascertain the validity of the birth certificate bearing Registration No.
NNLKOB2015292611 issued on 21.01.2015 by the Nagar Nigam, Lucknow,
the High Court placed reliance on the following documents: a) (Ex. R12 A
96/15), b) (Ex. R12 A96/3), c) (Ex. 12 Paper No. A96/45)
15.1. On perusal of the aforesaid documents and the original hospital file
relating to the issuance of birth certificate of the successful candidate,
produced by DW2, it is observed that the file merely contained an
application and an affidavit (Ex. R12 A96/15) dated 17.01.2015 made
by the successful candidate’s mother to the City Health Officer, Nagar
Nigam, Lucknow, for the issuance of a birth certificate and a computer
42
generated sheet (Ex. R12 A96/3) which contained particulars of
registration of birth of the successful candidate.
15.2. The High Court further noted that the birth register (Ex. 12 Paper No. A
96/45) adduced by DW2 was neither authenticated nor certified by
any competent officer and was not even paginated. That DW2 in her
crossexamination had admitted that the Birth Register was maintained
by a clerk and was not in the prescribed format as per the mandate of
the 1969 Act, and the same had not been authenticated or verified by a
competent official. Further, the Birth Register was not paginated and
the entry of the name of the successful candidate’s mother was not
made in a chronological order. DW2 further testified that the Birth List
maintained by the hospital, on the basis of which birth entry is made in
the birth register maintained by the municipality, was not available. On
the basis of the aforestated oral and documentary evidence, the High
Court held that the Birth Register (Ex. 12 Paper No. A96/45) was a
clear case of manipulation and interpolation, as the entry of the
successful candidate’s date of birth and name was inserted in the small
space at the bottom of the page showing it to have been made on
30.09.1990. It was also noted that the successful candidate’s entry in
the Birth Register did not bear any signature or an order of any
authority of the Nagar Nigam, Lucknow, or the SubDivisional
Magistrate; the High Court, therefore held that the entry of the
43
successful candidate’s name was not made on 30.09.1990 and that the
said entry was an interpolation.
15.3. The High Court, on perusal of the affidavit (Ex. R12 A96/15) dated
17.01.2015 made by Dr. Tazeen Fatima (DW5), mother of the
successful candidate while seeking issuance of the duplicate birth
certificate, held that the successful candidate’s mother in the said
affidavit had concealed the fact that another Birth Certificate (Ex. P3
Paper No. A80/1) issued by the Nagar Palika Parishad, Rampur,
existed and was subsequently cancelled on 30.01.2015.
15.4. It is further observed that the mother of the successful candidate made
an application to the City Health Officer, Nagar Nigam, Lucknow, for the
issuance of the birth certificate on 17.01.2015, after twentyfive (25)
years of the birth of the successful candidate and the same was
endorsed by an officer of the Nagar Nigam, Lucknow, on 19.01.2015
and immediately thereafter i.e. two days later, a certificate was issued to
the successful candidate on 21.01.2015. That the birth certificate was
issued without following the mandatory provisions of Section 13 of the
1969 Act. Also Rule 9 of the U.P. Registration of the Birth and Death
Rules, 2002 and Section 13(3) of the 1969 Act, provided that any birth
or death which had not been registered within one year of its
occurrence, shall be registered only on an order made by a Magistrate of
First Class or a Presidency Magistrate after verifying the correctness of
44
the birth or death and upon payment of the prescribed fee. Rule 9(3) of
the U.P. Registration of the Birth and Death Rules, 2002, provided that
any birth or death which had not been registered within one year of its
occurrence, shall be registered only on an order of the Sub Divisional
Magistrate and after payment of a late fee of Rs. 10/. I am therefore of
the view that, the Nagar Nigam, Lucknow, had no jurisdiction to register
the birth of the successful candidate after twentyfive years from the
date on which he was stated to be born by the issuance of the Birth
Certificate on 21.01.2015 (Ex. P2 Paper No. A63/1) without an order
of the SubDivisional Magistrate as required under Section 13(3) of the
1969 Act, read with Rule 9(3) of the U.P. Registration of the Birth and
Death Rules, 2002. In fine, it is held that the birth certificate (Ex. P2
Paper No. A63/1) issued by the Nagar Nigam, Lucknow, on 21.01.2015
was null and void.
15.5. From the impugned judgment, it is further noted that the entry with
respect to the successful candidate’s date of birth in the Birth Register,
showing it to be 30.09.1990, was inserted in all probability in the year
2015. The High Court took note of the fact that the birth certificate was
issued to the successful candidate on 21.01.2015 by the Nagar Nigam,
Lucknow, and at that time, the father of the successful candidate was a
Cabinet Minister of the Department of Urban Development and Local
Bodies and the Nagar Nigam, Lucknow, came under his Ministry. The
45
High Court was therefore of the view that the entry in the birth register
was a result of undue pressure on authorities by the interested parties
and was clearly manipulated. The High Court therefore, held that the
evidence adduced by Dr. Tazeen Fatima (DW5), mother of the
successful candidate and by DW10 the successful candidate, was
false and wholly untrustworthy.
15.6. In order to ascertain the validity of the Birth Certificate bearing
Registration No. NNLKOB2015292611 issued on 21.01.2015 by the
Nagar Nigam, Lucknow, regard must be had to the request letter
addressed by the mother of the successful candidate DW5 – Tazeen
Fatima dated 19.01.2015 to the City Health Officer, Nagar Nigam,
Lucknow, for the issuance of a birth certificate to the successful
candidate and the copy of the Birth Register maintained by the Nagar
Nigam, Lucknow, in which entry in the name of the successful
candidate was made on 30.09.1990.
15.7. DW2 Dr. Archana Dwivedi, Additional Principal Commissioner,
Lucknow, deposed that as per the Court’s order dated 27.05.2019, she
had brought the original birth certificate of the successful candidate
issued on 21.01.2015 and the Birth Record of Queen Mary’s Hospital
from 01.01.1990 to 31.12.1990. She admitted that the
register/hospital’s birth record did not contain page numbers nor had it
been certified by any competent officer or been attested. DW2 placed
46
before the Court the relevant entry in the hospital birth record which
pertained to Tazeen Fatima’s delivery on 30.09.1990. In the course of
crossexamination, on being asked whether it was necessary to
maintain the birth register in the format laid down in 1969 Act, DW2
answered in the affirmative; however, in response to the question as to
whether the birth register produced by her in Court was in the
prescribed format, she answered in the negative. When asked on what
basis the entry was made in the birth register on 30.09.1990 and
whether she had brought any papers related to it, DW2 deposed that
the entries in the birth register were made according to the birth list
provided by the hospital, however, the said list was not available to be
produced before the Court.
15.8. Answering a question as to, after how many days of making the related
entries in the birth Register, the birth certificate is issued, DW2
deposed that the birth certificate is issued when an applicant addresses
a request letter and the birth is registered immediately after receiving a
birth list from the hospital.
15.9. It is noted that the birth certificate dated 21.01.2015, is said to have
been issued by the Nagar Nigam, Lucknow, on the strength of the entry
made in the birth register maintained by the Queen Mary’s Hospital,
Lucknow, wherein it was recorded that the successful candidate’s
mother delivered a male child on 30.09.1990. As per the testimony of
47
DW2, entries in birth register are made according to the birth list
provided by the hospital. Therefore, in order to give any finding as to the
validity of the birth certificate dated 21.01.2015, issued by the Nagar
Nigam, Lucknow, the validity of the antecedent documents, such as the
birth register and birth list maintained by the hospital, on the strength
of which the birth certificate dated 21.01.2015 was issued, needs to be
examined.
15.10. As is evident from the relevant portion of DW2’s cross examination,
although the birth register was to be maintained in the format
prescribed in this regard in the 1969 Act, such format was not followed
in the present case, while recording the entry pertaining to the
successful candidate’s birth on 30.09.1990. Further, while it is stated
that such entry was recorded in the birth register on the basis of a birth
list maintained by the hospital, it is admitted that the birth list
pertaining to the successful candidate’s birth is not available. This
means, the basis of making the entry in the birth register maintained by
the municipality was not available.
15.11. These facts are to be further considered in light of the finding of the
High Court to the effect that the entry pertaining to the successful
candidate was inserted in a small space at the bottom of the page, in
the birth register, showing it to have been made on 30.09.1990.
48
15.12. It is also noted that in the relevant column of the birth register, the
successful candidate was recorded as a ‘Hindu’. This would further
strengthen the case of the election petitioner that the successful
candidate’s details were subsequently added in a space in the register,
which originally pertained to some other birth.
15.13. In light of the aforesaid discussion, I am of the view that no weight can
be placed on the birth certificate dated 21.01.2015, issued by the Nagar
Nigam, Lucknow, which is stated to be issued on the strength of an
entry made in the birth register maintained by the hospital and is
created by manipulation and interpolation in the relevant hospital
records. It is therefore held that in the absence of any explanation as to
why the relevant birth list, forming the basis of the entry in the birth
register, was not available to be produced before the Court, no
evidentiary value can be attached to the birth register. It is
consequently held that the birth certificate dated 21.01.2015, issued by
the Nagar Nigam, Lucknow on the strength of such documents, cannot
be held to be a valid document.
15.14. It is also to be noticed that Birth Certificate showing the date of birth
of the successful candidate as 01.01.1993 was still holding the field and
valid and thus till the same was cancelled subsequently, the successful
candidate had two Birth Certificates showing his date of birth at two
different places and on two different dates, namely, one on 01.01.1993
49
at Rampur and another on 30.09.1990 at Lucknow which clearly
indicates that only one Birth Certificate was valid and correct as far as
successful candidate’s date of birth is concerned. In my view, the
certificate showing the date of birth of the successful candidate as
01.01.1993 at Rampur is the correct certificate and not the one
subsequently obtained in the year 2015.
15.15. In light of the above discussion, the finding of the High Court as to the
invalidity of the birth certificate dated 21.01.2015, issued by the Nagar
Nigam, Lucknow, is affirmed.
iv) Re: Proof of Birth on 30.09.1990 on the basis of entries in
Hospital records and Oral Evidence:
16. DW3Dr. Uma Singh, Senior Gynaecologist, Queen Mary’s Hospital
stated that she had brought with her, the relevant labour room register and
operation theatre register (O.T. Register). Referring to page no. 225 of the
Labour register (M.L.R.) annual no. 1826 monthly no. 257, she deposed that
the entry pertained to Dr. Tazeen Fatima, successful candidate’s mother and as
per the said entry she delivered a male child on 30.09.1990 at 3:43 a.m. She
also stated that she had signed and issued the duplicate birth certificate dated
21.04.2015 (A37). In answer to a question as to the authority which issues
birth certificates in Queen Mary’s Hospital, DW3 stated that duplicate birth
certificates are issued by the person nominated by the Department Head. As
regards the procedure for issuance of duplicate birth certificates, DW3
50
deposed that an application requesting for a duplicate birth certificate is to be
made to the Chief Medical Superintendent of King George University who would
thereafter forward the same to the Department Head who would issue the
duplicate certificate. DW3 answered in the negative when asked whether she
had brought to the Court the application forwarded by the Chief Medical
Superintendent for the issuance of the duplicate birth certificate. While DW3
stated that it was the responsibility of the Chief Medical Superintendent to
inform the Municipal Corporation about the birth of a child, she stated that
she was unable to confidently say whether the information of the children born
on 30.09.1990 was sent to the Municipal Corporation.
16.1. Referring to the relevant entry in page No. 174 of emergency O.T. register
Annual No. 5097 and monthly no. 512, DW3 was asked whether there
was any overwriting on it and she answered in the affirmative. On being
questioned whether the entries made in page no. 225 of M.L.R. register
matched the entries made in the pages of other annual numbers; DW3
answered that they ‘do not match totally’.
16.2. Replying to a question as to whether, as per the hospital record
presented before the Court it could be said that a male child was born
in the hospital on 30.09.1990, DW3 stated that the register affirms
that ‘related lady’ gave birth to a male child on 30.09.1990. However,
DW3 answered in the ‘negative’ when questioned as to whether she
51
could definitely say that the male child born on 30.09.1990 as per the
register brought by her was the successful candidate.
16.3. A question was put to DW3 by the High Court as to whether, the E.O.T.
and M.L.R. registers which DW3 brought with her were attested or
signed by any Officer or Department Head of Queen Mary’s Hospital or
King George University and whether the entries in the said registers or
any page was signed or countersigned by any Officer or Department
Head of the Hospital and whether the registers were authenticated by
any Officer or Department Head. DW3 deposed that both the registers
were not authenticated by any Officer of Queen Mary’s Hospital or King
George University and were not attested. DW3 deposed that she had
neither made the relevant entries in the register nor had she signed
them. On being asked as to on what basis she could say that the entries
in the register were genuine given that the same were neither made nor
signed by her, DW3 stated that she had stated that they were genuine
on an understanding of the working procedure of the hospital.
16.4. On a consideration of the aforesaid documentary evidence in light of the
depositions of DW3, the High Court observed that Page No. 174 of the
E.O.T. Register of Queen Mary’s Hospital, Lucknow, (Ex. R4 Paper No.
A100/12) containing entries of the admission of patients on
29.09.1990, which showed that the mother of the successful candidate,
Tazeen Fatima, was admitted in the hospital and gave birth to a male
52
child, was not trustworthy as contents had been struck out and there
was overwriting on the name of “Tazeen Fatima” on the relevant page of
the E.O.T. Register. That the entries made in Column 13 and Column
16 did not contain material particulars as shown in entries on the same
page pertaining to other patients. The High Court also noticed that the
entry in the relevant page of the E.O.T register did not match with the
entries in Page No. 225 of the M.L.R. Register (Ex. R5 Paper No. A
101/12). That there was overwriting on the name of “Mrs. Tazeen
Fatima” on the relevant page of the M.L.R. Register and that the
relevant page of the M.L.R. Register did not contain the date of
admission and registration number. The High Court also observed that
the period of pregnancy was recorded in the M.L.R. as 38 weeks as
against the period of 32 weeks recorded in the E.O.T register. That the
entry in the E.O.T. register was made in the name of one “Tazeen
Fatima” while in the M.L.R. register it was made in the name of “Mrs.
Tazeen Fatima” and the same was in a different hand writing and a
different pen was used as compared to other particulars.
16.5. It was further noted that the fact that the contents were scored out and
overwritten in the abovementioned registers was admitted by DW3Dr.
Uma Singh, Sr. Gynaecologist, Queen Mary’s Hospital, (Department of
Obst. & Gyno.) in her oral evidence dated 31.07.2019.
53
16.6. From the deposition of DW3Dr. Uma Singh, it is noted that she had
stated that the aforesaid two registers were neither authenticated nor
signed by any officer or doctor of the hospital and that the entry
pertaining to the birth on 30.09.1990 was not signed by her. DW3 had
further deposed that she could not say whether the child born on
30.09.1990 as mentioned in the above registers was the appellant
herein. DW3 further deposed that it was the responsibility of the Chief
Medical Superintendent to give information pertaining to the births to
the Nagar Nigam, Lucknow, and that she was never given this
responsibility and that there was no post of Chief Medical
Superintendent in the hospital. Further, DW3 stated that the above
mentioned registers were maintained by a clerk, and the concerned
clerk was not produced by the successful candidate to prove the alleged
entries made in the abovementioned registers. Further, DW3Dr. Uma
Singh could not produce the application made by the mother of the
successful candidate, to her, for the issuance of a duplicate birth
certificate.
16.7. More significantly, DW3 who is said to have delivered the successful
candidate on 30.09.1990 could not categorically say that the male child
that she delivered was indeed the successful candidate. Thus, there is
no clinching evidence in this regard despite the documents sought to be
produced, which in any case have not been rightly believed by the High
54
Court owing to overwriting, interpolation etc. and DW3 not being able
to categorically state that successful candidate was delivered by her on
30.09.1990. Therefore, in my view the evidence of DW3 does not, in
any way further the case of the successful candidate.
16.8. DW4, Dr. Vineeta Das is stated to be the doctor who issued the
Duplicate Birth Certificate on 21.04.2015. Referring to Document A37
(Duplicate Birth Certificate issued on 21.04.2015) DW4 was asked
whether the same had been signed by her, she answered in the
affirmative. As to the contents of Document A37, DW4 deposed that it
was a duplicate birth certificate which was issued on 21.04.2015 by the
Gynaecology Department of the hospital she worked at. DW4 further
deposed that in the first column, it had been recorded that the birth
certificate pertained to the baby of Tazeen Fatima, the sex and caste of
the child i.e., Male and Muslim, were also recorded; in the second
column the name of the mother, Smt. Tazeen Fatima was written and in
the third column; father’s name i.e., Mohd. Azam Khan was written;
and in the fourth column, the grandfather’s name was written. DW4
deposed that in the next line, the date and time of delivery i.e.,
30.09.1990 at 3:43 a.m. were mentioned.
16.9. On being questioned as to the procedure that is followed for issuing a
duplicate birth certificate, DW4 stated that the Chief Medical
Superintendent, King George Medical University sends a letter to the
55
Head of Department who in turn appoints a Medical Consultant for the
issuance of duplicate birth certificates and after that the clerk makes
the duplicate birth certificate which has to be signed by the Head of
Department.
16.10. On being questioned whether the entries made in Page no. 174 of
Manual No. 5097 were made by her, DW4 answered in the negative.
16.11. On appreciating the above statements in light of the documents referred
to above, it is noted that DW4 in her crossexamination had deposed
that birth certificate was issued in the instant case on an application
received by the Chief Medical Superintendent but she could not name
the medical consultant nominated to prepare the duplicate birth
certificate nor could she produce any document relating thereto.
16.12. The High Court observed that the entries in the E.O.T. register (Ex. R4
Paper No. A100/12) and in the M.L.R. register (Ex. R5 Paper No.
A101/12) could not be proved to be genuine by the successful
candidate and that he failed to establish that he was the child born on
30.09.1990, as recorded in the aforesaid registers.
16.13. The High Court therefore rightly held that the successful candidate
could not prove that he was born on 30.09.1990 at Lucknow and the
evidence adduced by the mother of the successful candidate (DW5)
regarding the alleged birth on 30.09.1990 could not be relied upon in
the absence of other corroborative evidence.
56
16.14. In furtherance of the RTI application dated 31.08.2017, filed by the
successful candidate (during the pendency of the Election Petition
before the High Court) seeking information as to his date of birth, DW
4 Dr. Vineeta Das issued a letter (Ex. R9 Paper No. A42/3) dated
12.09.2017, to the Public Information Officer/Chief Medical
Superintendent of King George Medical University, Lucknow, wherein
she had stated that the successful candidate was born on 30.09.1990.
Upon perusal of the letter dated 12.09.2017, it is observed that the
correctness of the contents of the said letter was completely lost in view
of the fact that in the relevant page of the E.O.T. Register (Ex. R4 Paper
No. A100/12) and in the relevant page of the M.L.R. Register (Ex. R5
Paper No. A101/12), there was no mention of the name of the
successful candidate. Thus, the birth of the successful candidate (dated
30.09.1990) could not be related to those entries. The High Court
further observed that DW4 in her crossexamination had stated that
she was neither related to the delivery of the successful candidate nor
had she made the entries in the E.O.T. Register. The High Court
therefore observed that, without there being any record present with
DW4, it was wrong on her part to certify that the successful candidate
was born on 30.09.1990 in Queen Mary’s Hospital, Lucknow.
16.15. Based on the above reasoning, the High Court was rightly of the view
that the evidence given by DW3 Dr. Uma Singh and DW10 the
57
successful candidate could not establish that he was born on
30.09.1990 in Queen Mary’s Hospital, Lucknow.
16.16. It is obvious on a perusal of the E.O.T. and M.L.R. registers that the
same are riddled with discrepancies, overwriting and factual
inaccuracies. A glaring discrepancy, which would have a material
bearing on the successful candidate’s case is that the period of
pregnancy recorded in the M.L.R. register was recorded as 38 weeks as
against the period of 32 weeks recorded in the E.O.T register. It is also
noted that in the M.L.R. register, Mrs. Tazeen Fatima’s name alone has
been written in a different handwriting and different ink as compared to
the rest of the particulars pertaining to such entry. This would indicate
that the name of the successful candidate’s mother was entered and
adjusted into the available space, and corresponding to particulars,
which pertained to some other patient in the Registers.
16.17. While DW3 has deposed that the duplicate birth certificate was issued
after the application was made by the successful candidate’s mother to
the Chief Medical Superintendent of King George University, requesting
for it which was forwarded to the department head of the concerned
hospital, but D.W.3 could not produce the forwarding letter. No effort
was made by the successful candidate to produce the same by
procuring it by way of making an R.T.I. application. Therefore, I am not
convinced that the due procedure was followed before issuing the
58
duplicate birth certificate dated 21.04.2015. In fact, when enquired
about the original birth certificate of the duplicate certificate of the
successful candidate, there was no answer given.
16.18. Having already noted that the entries pertaining to the birth of the
successful candidate, in the E.O.T. and M.L.R. registers were mired
with discrepancies, overwriting and factual inaccuracies, I am unable
to ignore the same, especially since both such registers were not
authenticated by any Officer of Queen Mary’s Hospital or King George
University and were not attested. By DW3’s own admission, the only
basis on which she was stating that the relevant entries in the registers
were genuine was on her understanding of the working procedures of
the hospital. This does not inspire much confidence as to the
genuineness of the entries made in the registers, which ex facie appear
to be manipulated.
16.19. Further, it is noted from the Labour Room Register that the doctor who
attended DW5the mother of the successful candidate at the Queen
Mary’s Hospital was Prof. (Dr.) A. Harish and not Dr. Uma Singh. Dr. A.
Harish has not been examined in the matter.
16.20. I, therefore, am not inclined to place much weight on the testimony of
DW4, as she had not made the entries in the E.O.T. Register.
Therefore, her statements are not persuasive.
59
I, therefore, affirm the findings and decision of the High Court qua
this issue also.
v)Re: Medical Examination Report of the successful candidate:
17. The High Court did not accept the report of the ossification test, as
conclusive proof of the successful candidate’s age as the same could not be
proved by DW8, Dr. Satbir Singh Ken, Radiologist, District Hospital, Rampur,
who was a part of the Medical Board that determined the age of the successful
candidate to be 26 years. The High Court based its decision on the fact that
DW8 could not produce the original medical report or the records pertaining
thereto. It was also observed that a bone ossification test would always have to
be considered having regard to the fact that the results thereof could differ, by
up to two years from the actual age of the person tested, vide Mukarrab and
others vs. State of U.P. (2017) 2 SCC 210.
17.1. In this background, it may also be noted that DW8 deposed that in his
opinion, there could be a difference of one year between the actual age
of the successful candidate and the age suggested in the report of the
bone ossification test. That on being asked whether it was correct to say
that bone ossification tests could not tell the correct age, DW8 refused
to make any comment and stated that he was only a radiologist and had
given only the XRay report.
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17.2. The aforesaid statements would have to be considered in light of the law
relating to the evidentiary value of a bone ossification test. This Court
has, in Mukarrab (supra), declared that an ossification test could not
be solely relied upon as conclusive proof of age and the said test is by
no means an infallible or accurate test to determine the correct number
of years of a person’s life. The general rule for determining the age is
that it can vary plus or minus two years and that the date of birth of a
person is to be determined on the basis of the material on record and on
appreciation of evidence adduced by parties. It has therefore been
authoritatively laid down by this Court that the report of an ossification
test can, at most, be used to corroborate other relevant evidences, oral
or documentary. Even so, relying on the aforesaid case, the High Court
had rightly observed that if the margin factor of (plus or minus) two
years is applied to the case of the successful candidate, it could also
mean that in the year 2017 the age of the successful candidate was 24
years which would indicate that he was born in the year 1993.
17.3. In that background, I am of the view that the medical examination report
of the successful candidate dated 27.01.2017 based on an ossification
test conducted, wherein his age was recorded to be twentysix years at
the relevant time, cannot be accepted as conclusive proof of his age and
the same would not hold any water. This is especially so when other
documents such as matriculation certificate, date of birth certificate
61
issued by the Nagar Palika Parishad, Rampur and passports, which
have been acknowledged by this Court on various occasions to serve as
proof of date of birth are in fact available in the instant case but the
date of birth recorded in the said documents is contrary to the result of
the ossification test. While I may have been inclined to place some
weight on the result of the ossification test, in case other documents
which would serve as proof of age were not available, I am unable to
accept the same in the instant case. This is because other documents
which would serve as proof of age are available and the date of birth
recorded in such documents is contrary to the result of the ossification
test. Therefore, I affirm the findings and decision of the High Court qua
this issue also.
vi)Re: Declaration of the successful candidate’s mother while
submitting the G.I.S. Nomination Form :
18. This issue pertains to the evidentiary value of the contents of the G.I.S.
(Group Insurance Scheme) nomination form which formed a part of the Service
Book (Ex. R11 Paper No. A95/134) of the successful candidate’s mother,
which is relied upon by the successful candidate. In Paper No. A95/25 of the
said Service Book is the G.I.S. Nomination Form of the mother of the
successful candidate, which records, interalia, that on 26.04.2001, she had
nominated the appellantsuccessful candidate and two other family members
under the Group Insurance Scheme by stating their respective age as on the
62
aforesaid date. In the said form, the age of the successful candidate is stated as
eight years as on 26.04.2001.
18.1. The High Court observed that DW1 Dr. Shailendra K. Tiwari, Assistant
Director of Higher Education, Prayagraj, U.P., brought the successful
candidate’s mother’s Service Book (Ex. R11 A95/134) which contained
the G.I.S. (Group Insurance Scheme) Nomination Form (Ex. R11
A95/25) which was signed by the mother of the successful candidate on
26.04.2001. The High Court concluded that the successful candidate
was born in the year 1993.
18.2. The High Court further observed that the election petitioner had
specifically raised this argument in paragraph 12 (iii) of the Election
Petition and yet, the successful candidate did not make any averment in
this regard so as to explain the detail entered as such in the G.I.S.
nomination form.
18.3. The G.I.S. Nomination Form (Ex. R11 Paper No. A95/25) showed that
the successful candidate was only eight years old in the year 2001,
which would imply that he was born in the year 1993. Further, such
admission on the part of DW5Tazeen Fatima at an undisputed point of
time would have to be considered as conclusive proof of the fact that the
successful candidate was born in the year 1993 and was therefore eight
years old in April, 2001 in the absence of any explanation to resile from
the said admission. The said G.I.S Form was adduced as evidence by
63
none other than the successful candidate and was also referred to by
DW5–Tazeen Fatima in her crossexamination. However, she did not
offer any explanation about the entry as to the successful candidate’s
age in the said form and had not disputed the said G.I.S. Form which
was a part of her Service Book. The successful candidate, having relied
on DW5’s Service Book, of which the G.I.S. form is a part, cannot now
seek to rely on the same selectively, i.e., on only those details entered in
the Service Book/G.I.S. form which would potentially support his case
while resiling or disregarding as irrelevant any entry or detail therein
which would have an adverse impact on his case.
18.4. This Court has held in P.C. Purushothama Reddiar vs. S. Perumal
(1972) 1 SCC 9 that once a document is properly admitted by the party
producing the said document, the contents of that document are also
admitted in evidence and no further evidence would have to be let in by
the party relying on such admission to establish the fact so admitted
aliunde.
18.5. The said G.I.S. Form was adduced as evidence at the behest of the
successful candidate and the contents of the same were proved by DW
1Dr. Shailendra K. Tiwari and were not disputed by DW5Tazeen
Fatima. Therefore, the successful candidate cannot now be allowed to
selectively admit the contents of the same. No attempt was made by the
successful candidate to resile from the said admission by offering any
64
explanation as to why reliance could not be placed on the said
document when the successful candidate himself was relying on it.
18.6. I, therefore, affirm the findings of the High Court that the G.I.S.
Nomination Form (Ex. R11 Paper No. A95/25) came into existence at
an undisputed point of time and is a piece of evidence which proves that
the successful candidate was born in the year 1993.
vii)Re: Aadhar Card, Voter I.D. Card and Driving License:
19. This issue pertains to the effect of the following documents of identity,
wherein the successful candidate’s date of birth has been recorded as
30.09.1990, namely, copy of Aadhar Card, driving licence and Voter ID Card of
the appellantsuccessful candidate. Strong reliance has been placed on the
abovelisted documents to contend that the date of birth recorded therein is
30.09.1990, which is in accordance with the date of birth reflected in the
duplicate birth certificates issued by the Queen Mary’s Hospital, Lucknow, and
the Nagar Nigam, Lucknow, on 21.04.2015 and 21.01.2015, respectively.
19.1. The High Court, on perusal of the successful candidate’s Aadhar Card
(Ex. P2 Paper No. A66/1), Driving License (Ex. P2 Paper No. A67/1)
and Voter I.D. Card (Ex. P2 Paper No. A68/1) held that the above
mentioned documents are not evidence of date of birth of the successful
candidate. It was of the view that the date of birth in the Driving License
was corrected subsequently and that the Aadhar Card dated
07.03.2015 and the Voter I.D. Card dated 18.07.2016 were issued on
65
the basis of the date of birth mentioned in the birth certificate dated
21.01.2015 issued by the Nagar Nigam, Lucknow, which had been held
to be null and void. Reliance was placed on a judgment of its Court in
Smt. Parvati Kumari and Ors. vs. State of U.P. Thru. Principal
Secretary Home & Ors. (Misc. Bench No. 13419 of 2018) to hold
that Aadhar card is a means of identity and not a proof of date of birth.
The High Court therefore, held that the abovementioned documents did
not conclusively establish that the successful candidate was above
twentyfive years of age on the date of filing his nomination papers or on
the date of declaration of result of the legislative assembly election in
question.
19.2. I am inclined to affirm the findings of the High Court qua this issue also.
It is observed so, in light of the fact that the Aadhar card was issued on
07.03.2015, on the basis of the duplicate birth certificate dated
21.01.2015. Having held that the duplicate birth certificate dated
21.01.2015 does not establish the date of birth of successful candidate
as 30.09.1990 and that the same was issued under circumstances
which are suggestive of manipulation and interpolation of the hospital
records, I am of the opinion that the Aadhar card which was issued on
07.03.2015 would also not have any evidentiary value in so far as
successful candidates’ date of birth is concerned. Further, the driver’s
licence and voter ID of the successful candidate herein, which were also
66
issued on the strength of the duplicate certificates issued by the Queen
Mary’s Hospital, Lucknow, and the Nagar Nigam, Lucknow, on
21.04.2015 and 21.01.2015, respectively, would not serve as proof of
the successful candidate’s date of birth, having regard to the
observations in the preceding paragraphs of the discussion as to the
proof of the date of birth of the successful candidate being 30.09.1990.
19.3. It is observed that all these documents were secured post 2015, at
which time the successful candidate started taking active part in
politics. I, therefore, am inclined to observe that the said documents
were obtained, merely as a means to corroborate the false claims of the
successful candidate as to his date of birth and hence are not worthy of
consideration as corroborative evidence for the purpose of proving the
date of birth of the successful candidate.
20. I shall now discuss the judgments cited on behalf of the appellant:
a)In Brij Mohan Singh vs. Priya Brat Narain Sinha (supra), on an
examination of the entire oral and documentary evidence, this Court held
that the election petitioner therein had not been able to prove that the
successful candidate therein was below twentyfive years of age on the
date of filing of his nomination while the appellant himself also was not
able to show that he was at least twentyfive years of age on that date. It
was observed that the burden of proving the age was on the election
67
petitioner and when the said burden was not discharged, the election
petition must fail.
The aforesaid dictum is of no assistance to the appellant herein as
the position with respect to the factual matrix is at variance. Although, the
election petitioner herein contended that the successful candidate was
less than twentyfive years of age and therefore, was ineligible to contest
the Assembly election and the election petitioner had the burden of
proving the said fact but the successful candidate took up on himself to
prove another fact, namely, that he was born on 30.09.1990 and not on
01.01.1993 and therefore, was above twentyfive years of age. Thus, the
burden was on the respective parties to prove their respective cases. On
going through the oral and documentary evidence in this case, I find that
the appellant herein has failed to prove that he was born on 30.09.1990 in
spite of letting in voluminous oral and documentary evidence in view of
the discussion and findings arrived at by us. On the other hand, the
evidence let in by the respondentelection petitioner, when juxtaposed to
the pertinent admissions let in by the appellant herein, has, in my view,
enabled the respondent herein to prove his case before the High Court.
The reasoning and conclusion of the High Court in my view is thus, just
and proper on the appreciation of the evidence on record in the instant
case.
68
b)In Birad Mal Singhvi Singh vs. Anand Purohit (supra) , the question as
regards the age of two candidates, namely, Hukmi Chand and Suraj
Prakash Joshi was under consideration. The election petitioner therein
had examined, inter alia, PW3 and PW5, being the Principal, New
Government High Secondary School, Jodhpur, since 1984 and Deputy
Director (Examination) Board of Secondary Education, Rajasthan,
respectively. They produced the scholar’s register (Ex.P8) and counterfoil
of the Certificate of Board of Secondary Education (Ex.P9) of Hukmi
Chand, respectively, and tabulation record of the Secondary School
Examination, 1974, (Ex.P10). In the documents at Ex. P9 and P10, the
date of birth of Hukmi Chand was recorded as 13.06.1956. Similarly,
insofar as Suraj Prakash Joshi is concerned, Ex.P11 being the tabulation
record of Secondary School Examination of 1977 indicated his date of
birth as 11.03.1959 and the counterfoil of certificates and the tabulation
form recording the same date of birth on the basis of what was mentioned
by the candidate in the examination form were produced.
In my view, the aforesaid case would have no relevance insofar as the
appellant herein is concerned. No doubt, in the present case also, the fact
in issue is with regard to the date of birth of the appellantsuccessful
candidate. While the election petitioner in the instant case stated that it is
01.01.1993 and he has produced documents and let in oral evidence in
support of the same, the appellantsuccessful candidate has stated that
69
his date of birth is 30.09.1990 and in support of this fact, has tried to let
in both oral and documentary evidence. While considering the oral and
documentary evidence on record, I find that the appellant has failed to
prove his case that he was born on 30.09.1990. On the other hand, the
evidence on record in the form of oral and documentary admissions
produced by the appellant herein when juxtaposed and appreciated with
the oral and documentary evidence of the respondentelection petitioner
herein indicates that the appellant has failed to prove that he was born on
30.09.1990 while the election petitioner has proved that the appellant
herein was born on 01.01.1993. This is because the appellant has not let
in evidence to show as to on what basis the birth certificate was issued by
the Queen Mary’s Hospital in which the appellant was born, as well as the
basis on which the other birth certificate had been issued by the Nagar
Nigam, Lucknow. This is because the entries made in the EOT register and
MLR have no evidentiary value in the absence of the birth list sent by the
hospital to the Municipal Corporation which is the basis for registering a
birth in the birth register maintained by it. Unless the hospital wherein
the child was born sends the birth list to the Municipal Corporation, the
issuance of birth certificate by it would have no probative value. The
duplicate birth certificates issued by Queen Mary’s Hospital and the Nagar
Nigam, Lucknow, are de hors any basis in the instant case. I infer the
same on perusal of the documentary and oral evidence discussed above.
70
Therefore, the appellant herein has failed to prove that he was born on
30.09.1990.
On the other hand, the respondentelection petitioner has produced
the relevant evidence of an undisputed point of time to prove that the
appellant herein was born on 01.01.1993. Such inference can be made
from Ex. P1 to P4 in which the date of birth of the successful candidate
was shown as 01.01.1993. Although, voluminous documents were
produced by the appellant to contradict the same, the fact remains that
Ex R11 being the copy of the service book of Tazeen Fatima Lecturer
Political Science, mother of the appellantsuccessful candidate it was
categorically stated that the appellant herein was eight years of age in the
year 2001 as per GIS nomination form submitted by her under her own
signature on 26.04.2001. This critical admission made in the service book
stating that the appellant herein was eight years of age in 2001 has not
been explained nor any attempt has been made to contradict or resile from
the same.
The factual matrix in the aforesaid case would not apply vis
àvis
the
case at hand as the respondent herein produced certain documents in
order to prove that the appellant herein was born on 01.01.1993 and the
said fact has been proved by producing the relevant oral and documentary
evidence. When the said evidence is appreciated in light of the admissions
by the appellant herein, I find that the appellant has failed to prove that
71
he was born on 30.09.1990. In the circumstances, I am of the opinion that
the documentary evidence produced by the respondentelection petitioner
has cogent and probative value. This is because the said documents are
consistent with the admitted documents of the appellant as well as with
the admissions made by the appellant himself to the effect that, it was
only in the year 2015 that he found out that the date of birth mentioned
in his records was shown to be 01.01.1993 and that he was born in
Rampur and based on the Birth Certificate issued by Nagar Palika
Parishad, Rampur, he had continued his affairs including travelling
overseas on passports and visas issued on the basis of the Birth
Certificate issued by Nagar Palika Parishad, Rampur, which showed that
he was born on 01.01.1993.
Further, it was only after the commencement of the proceedings in
the election petition and the challenge raised to his date of birth that the
appellant made attempts to establish that he was born on 30.09.1990 and
hence, took steps to get his educational record, passport and other
documents of identity “rectified” so as to make them consistent with his
stand as against the election petition. The subsequent alterations made in
the documents pertaining to the appellant herein cannot have a bearing
on the case since even according to the appellant it was on the basis of the
following documents, namely, his Class X Marksheet, his Passport and
Visa that the appellant herein was continuing with his activities and
72
identified himself with this date of birth as 01.01.1993 till the year 2015.
Therefore, I am convinced that it was only for the purpose of contesting
the assembly elections which were held in the year 2017 and being
conscious of the fact that he could not do so as he was disqualified on
account of being under aged, he took steps to alter his date of birth to
30.09.1990 and made attempts to seek “duplicate” birth certificates from
the Nagar Nigam, Lucknow and Queen Mary’s Hospital, Lucknow. Till
then, the appellant herein was conscious of the fact that his date of birth
in his educational and other records was 01.01.1993 and he used those
documents for the relevant purposes that necessitated the usage of the
said documents.
Another significant point is that until the document at Ex. P3 Paper
No. A80/1 was cancelled, the appellant had possessed documents
showing two dates of births, one, being 01.01.1993 as having been born in
Rampur and the other being 30.09.1990 as having been born in Lucknow.
In the circumstances, I am of the opinion that since the basis on which
the birth certificate was issued by the Nagar Nigam, Lucknow and Queen
Mary’s Hospital, Lucknow, is not brought on record in the form of tenable
and probative oral and documentary evidence, the case of the appellant
cannot be accepted at all.
By this, it does not mean that respondent hereinelection petitioner
must fail. I say so for the reason that the appellant herein has produced
73
material to show that he was eight years of age in the year 2001 (G.I.S.
Nomination Form) which is consistent with the case of the election
petitioner who has produced documents indicating the date of birth of the
appellantsuccessful candidate as 01.01.1993 and therefore, was not
eligible to contest for the election to the legislative assembly in the year
2017.
c)The judgment of this Court in Narender Singh (supra) is of no assistance
to the appellant herein as evidence on record does not give rise to
inferences in favour of the appellant herein.
d)The judgment of this Court in Joshna Gouda (supra) is also
distinguishable. In the said case, the controversy was with regard to the
eligibility to contest for the post of Sarpanch under the Orissa Gram
Panchayat Act, 1964, it was contended by the first respondent therein that
the appellant therein was not eligible to contest as he had not attained the
age of 21 years. Therefore, the Election Petition was filed to seek setting
aside of the election of the respondent therein. The appellant therein
contested the Election Petition. In the said case, the question was whether
the appellant therein was born on 07.07.1985 and not on 20.06.1986 as
contended by the first respondentelection petitioner therein. The
successful candidate therein had produced Exbs. A to H in support of the
fact that she was born on 07.07.1985. The High Court found that Exbs. A
and H are voters’ list of the years 2007 and 2008 respectively which were
74
prepared later in point of time to the filing of the nomination papers in
election in question and they do not reflect the date of birth of the
appellant therein. Ex. D being horoscope was rightly not relied upon. Ex.
E being a certificate of date of birth issued under the provisions of the
Registration of Births and Deaths Act showing the date of birth of the
appellant therein as 07.07.1985 but such an entry came to be made
pursuant to an application made by the appellant therein subsequent to
the nominations in the election in question. Therefore, the High Court
refused to place any reliance on the said document also. This Court held
that the High Court had rightly refused to believe those documents and
the appellantsuccessful candidate therein had failed to prove her date of
birth as 07.07.1985. But that does not automatically lead to the
conclusion that the assertion of respondent No. 1 therein that the actual
date of birth of the appellant therein is 20.06.1986 was proved. It was
observed by this Court that the burden to prove the fact that the appellant
therein was born on 20.06.1986 rested squarely on the election petitioner.
In that regard, reliance was placed on Section 101 of the Evidence Act. It
was further observed by placing reliance on Robins vs. National Trust
Company 1927 AC 515 which is to the following effect:
“ … To assert that a man who is alive was born
requires no proof. The onus is not on the person making
the assertion, because it is selfevident that he had been
born. But to assert that he [had been] born on a certain
75
date, if the date is material, requires proof; the onus is on
the person making the assertion.”
This Court held that since the first respondent therein had failed to
discharge the burden cast upon him, the Election Petition had to fail on
the oral and documentary evidence let in that case. It was held that there
was an inconsistency regarding the age of the appellant therein and
particularly with reference to her admission in the Upper Primary School
and hence, the appeal was allowed and the Election Petition was
dismissed. The aforesaid judgment is not applicable to the present case as
in the present case there is a clear and unambiguous admission on the
part of the appellant through the nomination form being part of the
Service Book (Ex). R11 paper No. A95/134 and the document
produced by the respondent/election petitioner herein. Those documents
relate to the appellant herein and the appellant herein had acted upon
those documents until his date of birth was changed to 30.09.1990 in the
year 2015. Thus, the judgment in Joshna Gouda is of no assistance to
the appellant herein.
Summary of Conclusions:
a)I am of the view that the appellantsuccessful candidate was not born on
30.09.1990 and was not twentyfive years old at the time of filing the
nomination as the appellant has been unable to prove the said fact despite
the voluminous oral and documentary evidence provided on record. In
fact, G.I.S. Nomination Form submitted by DW5 at an undisputed point
76
of time and which is part of her Service Book which is adduced as
evidence at the behest of the appellantsuccessful candidate goes against
the case of the appellant. The G.I.S. Nomination Form is in consonance
with the passports and visa issued by the concerned authorities showing
the date of birth of the appellant as 01.01.1993 which have been produced
by the election petitioner in support of his case. The issuance of the fresh
passport during the pendency of the Election Petition showing the date of
birth as 30.09.1990 is of no consequence and cannot be of any assistance
to the appellant herein.
Similarly, Class X Secondary School Examination Certificate and
Class XII Secondary School Examination Certificate which indicate the
date of birth of the appellant as 01.01.1993 even till date, are also in
consonance with the earlier passports and visa documents produced by
the respondentelection petitioner herein. In fact, the appellantsuccessful
candidate had relied upon the educational certificates indicating his date
of birth as 01.01.1993 and his place of birth as Rampur for the purpose of
securing his earlier passports and visa.
b)Moreover, the stand taken by the successful candidate that all documents
pertaining to the Birth Certificate dated 28.06.2012 issued by the office of
Nagar Palika Parishad, Rampur, were burnt due to a short circuit on
08.05.2015 would suggest that the said birth certificate, wherein the date
of birth of the successful candidate was recorded as 01.01.1993 came to
be destroyed and later cancelled were under suspicious circumstances.
77
c)Further, on a perusal of the E.O.T. and M.L.R. registers, I hold that the
same are mired with discrepancies, overwriting and factual inaccuracies
and the same cannot be ignored. I am, therefore, of the view that no
weight can be placed on the birth certificate dated 21.01.2015, issued by
the Nagar Nigam, Lucknow, which is stated to be issued on the strength of
an entry made in the birth register maintained by the hospital, which itself
is not authentic in the absence of production of the birth list indicating
the birth of the appellant on 30.09.1990, and is created by manipulation
and interpolation in the hospital records.
d)I am not inclined to place any weight on the result of the ossification test
as other documents such as the matriculation certificate, date of birth
certificate issued by the Nagar Palika Parishad, Rampur and passports
prove that the age and the date of birth recorded in such documents is
contrary to the result of the ossification test.
e)It is further held that the Aadhar card, driver’s licence and voter ID of the
appellantsuccessful candidate herein, which were issued on the strength
of the duplicate certificates issued by the Queen Mary’s Hospital,
Lucknow, and the Nagar Nigam, Lucknow, on 21.04.2015 and
21.01.2015, respectively, are not proof of the successful candidate’s date
of birth as 30.09.1990.
It would be apposite to refer to para 79 of Sushil Kumar vs. Rakesh
Kumar (supra) which reads as under:
“79. The Election Tribunal while determining an issue of
this nature has to bear in mind that Article 173(b) of the
78
Constitution of India provides for a disqualification. A
person cannot be permitted to occupy an office for which
he is disqualified under the Constitution. The endeavour
of the court therefore should be to see that a disqualified
person should not hold the office but should not at the
same time unseat a person qualified therefor. The court
is required to proceed cautiously in the matter and, thus,
while seeing that an election of the representative of the
people is not set aside on flimsy grounds but would also
have a duty to see that the constitutional mandate is
fulfilled.”
In view of the aforesaid discussion which has been made after taking into
consideration all the material on record, I find that the acceptance of the
nomination of the appellantsuccessful candidate was improper. The findings
of the High Court in this regard do not require any interference. Hence, the
judgment impugned is affirmed and consequently, the appeal is dismissed. The
election of the appellantsuccessful candidate herein to the Uttar Pradesh
Legislative Assembly from 34Suar Constituency, District Rampur, Uttar
Pradesh, is set aside. A certified copy of this decision be sent to Election
Commission forthwith.
Parties to bear their respective costs.
…………… ..…………………J.
(B.V. NAGARATHNA)
NEW DELHI
07
th
NOVEMBER, 2022.
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