MOHD. ABDULLAH AZAM KHAN VERSUS NAWAB KAZIM ALI KHAN

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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 16th 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

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 28th 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

per the schedule, in which the appellant and the respondent

(election petitioner) contested along with others. The result of

the election was declared on 11th 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 1st

January, 1993, which was recorded throughout in his

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.

(iii) That the appellant (Mohd. Abdulla Azam Khan) himself filledup 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.

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 1st January, 1993.

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 30th 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

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 1st 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 1st 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 28th June, 2012, of 1st January, 1993 which was later

cancelled and according to him, the birth certificate issued by

Nagar Nigam, Lucknow, on 21st 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 30th September, 1990.

10. The appellant came with a specific case before this Court

that his date of birth reflected in his academic record of 1st

January, 1993 was incorrect and that being the reason, the

birth certificate issued on 28th June, 2012 by Nagar Palika,

Rampur was duly cancelled on 30th January, 2015 and a

duplicate certificate of birth dated 21st April, 2015 was issued

by Queen Mary’s Hospital, Lucknow, where he was born,

indicating 30th 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

made by the parties returned the finding that on the date of

filing of nomination papers i.e. 25th January, 2017, on the date

of scrutiny of nomination papers i.e. 28th January, 2017 and

on the date of declaration of result of 34, Suar Assembly

Constituency of District Rampur i.e. 11th 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 16th 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

Kumar1

(para 18) and later considered in Uttamrao Shivdas

1 (1999) 2 SCC 489

Jankar v. Ranjitsinh Vijaysinh Mohite Patil2

(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. 1st January, 1993 is

incorrect and wrongly recorded, in fact, he was born on 30th

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 21st January, 2015.

2 (2009) 13 SCC 131

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 1st 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 30th 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.

(ii) The respondent/election petitioner has failed to produce

any direct and admissible evidence to prove that the

appellant was born on 1st January, 1993 and was not

born on 30th 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 28th 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

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 7th

August, 1990 to 4th 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 30th

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 24th October, 1990

(Ex.R7), EOT register (Ex.R4) and MLR register (Ex.R5)

duly supported by Dr. Uma Singh (DW.3) and Dr. Vineeta

Das (DW.4) who in their oral testimony have supported

the delivery of male child to DW.5 mother of the appellant

on 30th 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 crossexamination 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 30th 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

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 21st April, 2015 was issued. However, the fact is

that the birth of the appellant was registered

contemporaneously in the year 1990 in Nagar Nigam,

Lucknow and it was only a duplicate certificate of

registration which was issued on 21st 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 1st 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 23rd 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.

(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 1st

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 Others3

3 (1965) 3 SCR 861

Birad Mal Singhvi v. Anand Purohit4 and Joshna Gouda v.

Brundaban Gouda and Another5

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 1st 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

(i) The respondent/election petitioner placed unimpeachable

evidence on record that includes the marksheet of the

appellant’s class X certificate, his passports dated 28th

August, 2006 and original Birth Certificate issued on 28th

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 1st

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 21st

January, 2015 indicating 30th 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

date of birth recorded is 1st 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

30th September, 1990 and not 1st 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 1st January, 1993.

(iv) That in rebuttal, the appellant placed on record claiming

his date of birth to be 30th 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 Kumar6 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

probative value and only thereafter it has been held that

the appellant has failed to establish his date of birth as

30th 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 30th September, 1990 or it is 1st 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

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 preeminently or exceptionally within the knowledge of a person.

It is true that it cannot apply when the fact is such as to be

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

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

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

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

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

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

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 (A A80/1

79 to A80/1)

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.

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

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

th August 1990, 22.09.1990 and 24.09.1990

R5 A101/1

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 A38/12 Discharge ticket of indoor patient Tazeen Fatima in Queen

Mary's Hospital admitted on 07.08.1990 and discharge on

24.10.1990

R8 A41/13 Information 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

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 A47/17 Copy 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

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 A96/1 Application of Dr. Tazeen Fatima, dated 17.01.2015 (mother

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

A96/45 Photostat 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

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 25th January, 2017

(b) Date of scrutiny of nomination 28th January, 2017

(d) Date of allotment of symbols 1

st February, 2017

(e) Date of Poll 15th February, 2017

(f) Date of counting 11th March, 2017

23. The appellant filled his nomination papers on 24th

January, 2017, and was declared elected on 11th 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

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 1st 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 10th 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. P2 paper No. A62/13, copy of appellant's pass port No. K7951741, dated 13.07.2012 bearing 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 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 1st 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 1st January, 1993 and that is also elicited from his

crossexamination.

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 28th June, 2012, in

addition, the online application filled by the appellant for the

issuance of passport, the old Passport No.F 8757022 issued

on 28th 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 28th June,

2012 of the appellant have been destroyed because of the fire

due to short circuit on 8th May, 2015 in the office of Nagar

Palika, Rampur and is unable to place any record prior to 8th

May, 2015, but verified the birth certificate dated 28th 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 1st January, 1993 not only in his

academic record but also in the birth certificate obtained by

him issued on 28th June, 2012 (Ex. A80/1) by Nagar Palika,

Rampur his date of birth as 1st 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 1st January, 1993 and this fact was

not disputed by the appellant that the documents placed and

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 1st 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 28th 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 1st January, 1993,

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

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

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 crossexamination 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 17th

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 30th

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

birth certificate was issued by Nagar Nigam, Lucknow on 21st

January, 2015 (Ex.A96/3) indicating his date of birth as 30th

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 17th 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 1st January, 1993 was due to some

inadvertence, but at later stage, it came across that the correct

date of birth of the appellant is 30th 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 28th 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

been issued to him on 28th 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 28th 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 30th September,

1990. To make it further clear, the duplicate birth certificate

was issued by Queen Mary’s Hospital on 21st April, 2015

(Ex.A37) indicating the date of birth of the baby of DW.5 on

30th September, 1990. From this document, it is clear that on

17th January, 2015, on the date when the application was

submitted by his mother (DW.5) addressed to the Chief Health

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 30th September, 1990.

35. A duplicate birth certificate was obtained from Queen

Mary’s Hospital, Lucknow on 21st 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 17th 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 30th

September, 1990. The very foundation on which the

appellant has proceeded to establish that his date of birth is

30th 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 1st January,

1993 and that the question put to her in crossexamination

about the date of birth of the appellant recorded in the

academic record is 1st 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 28th June, 2012, his date of birth

recorded as 1st January, 1993 and curiously, for the first time,

in his examinationinchief he has stated that his mother told

him that he was born on 30th September, 1990, and not on 1st

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

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 28th June, 2012 or in

passport wherever recorded of 1st 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 crossexamination, reference to the EOT register and particularly to

page 174, the question put to her whether entry 174 of EOT

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

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.

of above register that whether it matches with the information

mentioned in rest of the column of above register?

Ans.: No

(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

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.

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

Nagar Nigam, Lucknow (Ex.R12). Even from the naked eye, it

appears that at page 43, last entry is of 30th 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 30th September, 1990, the second entry comes on 2nd

October, 1990 and on 1st 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 17th January, 2015,

issued by the Nagar Nigam, Lucknow on 21st 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 7th

August, 1990 to 24th October, 1990 and a male child was born

on 30th 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 Others7

, State of Punjab v. Mohinder Singh8

, Vishnu

7 (2001) 2 SCC 524

8 (2005) 3 SCC 702

alias Undrya v. State of Maharashtra9 and Satpal

Singh v. State of Haryana10 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 1st January, 1993 and to be more specific before

17th 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 1st 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

active politics, application was submitted on 17th 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 17th 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 21st

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 28th June, 2012 indicating his date of birth as 1st

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

Palika, Rampur, based on which Birth Certificate was issued

to him on 28th 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.

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

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 1st 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.

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 28th 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

business, was supposed to be adopted by the authorities while

a fresh certificate of date of birth was issued to him on 21st

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 1st 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 17th January, 2015, claiming

that the appellant was born on 30th 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 21st 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.

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.

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

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

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,

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

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

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,

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.

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:

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

law and facts relating to the controversy at hand, and also on an

incorrect understanding of the fact in issue. That the appellantsuccessful 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

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

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

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.

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.

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

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

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

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

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

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

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.

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 visàvis 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

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

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

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,

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))

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, 20th 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

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

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

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

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

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

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. K7951741, 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

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. Z4307442 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

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

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

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

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

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

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

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 10th standard in the year 2007 and his 12th standard in

the year 2009 which would mean that the successful candidate was

about 14 ½ years when he completed his 10th standard and 16 ½ years

when he completed his 12th 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 10th standard and 19 ½ years when he

completed his 12th standard which is improbable. Also, there is no

explanation on record as to why at a belated age he has completed his

10th 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

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

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

Accordingly, such questions are examined in the following section of the

analysis.

iii) Re: Whether the Birth Certificate bearing Registration No. NNLKOB2015292611 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 A96/15), 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

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. A96/45) 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

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

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

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

been certified by any competent officer or been attested. DW2 placed

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

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.

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

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

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

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

could definitely say that the male child born on 30.09.1990 as per the

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

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. A101/12). 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.

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 abovementioned 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

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

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.

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, DW4 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

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

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.

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.

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

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

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

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 DW1Dr. 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

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 abovementioned 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

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

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

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.

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

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.

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 visàvis 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

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

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

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

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

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

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.

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

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

07th NOVEMBER, 2022.

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MOMOTOMDecember 22, 2022 at 5:12 AM
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