# Nawab Kazim Ali Khan v. Mohd. Abdullah Azam Khan

- **Citation:** (2019) 4 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-16
- **Case number:** Election Petition No. 8 of 2017
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nawab-kazim-ali-khan-v-mohd-abdullah-azam-khan-44968
- **Pages:** 34

## Headnote

A. Constitution of India - Article 173(b) -
Representation of the People's Act 1951
- Disqualification of member - State
Legislative election - a candidate is not
qualified unless he has attained the age
specified in the clause on the date fixed
for scrutiny of nominations - it is beyond
any cavil that in the event a person is
elected
who
does
not
fulfill
the
constitutional requirements, the election
would be void despite the fact that the
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
907
Returning
Officer
has
accepted
his
nomination paper.

The respondent was not qualified to contest
the
election
for
member
of
legislative
assembly in view of Article 173(b) of the
constitution of
India,
inasmuch
as the
respondent was less than 25 years of age
when he filed his nomination papers. (Para 4)

B. Evidence Law - Indian Evidence Act,
Section 103 - Burden of Proof - 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 - the initial burden of proof that
nomination paper of an elected candidate
has wrongly been accepted is on the
election petitioner. (Para 21, 56 & 57)

C. Evidence Law - Indian Evidence Act,
Section 106 - Burden of proving fact
especially within knowledge.

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 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.
(Para 21)

Held: - The respondent was less than Twenty-Five
Years of age on the date of filing nomination in
State Legislative Election.(Para 55)

Election Petition Allowed. (E-7)

List of cases cited: -

1.Sushil Kumar Vs. Rakesh Kumar 2003 8 SCC
673, (paras 23 to 41, 44, 51, 79 and 80),

## Text

_Characters 0–39,884 of 92,212. This is a partial read: ask again with offset=39884 for what follows._

906 INDIAN LAW REPORTS ALLAHABAD SERIES
objectively. Specific events and facts
must be disclosed by the applicant in
order to enable the court to judge the
reasonableness of his belief, the existence
of which is the sine qua non of the
exercise of power conferred by the
section.
*** *** *** ***

(vii) The provisions of Section
438 cannot be invoked after the arrest of
the accused. After arrest, the accused
must seek his remedy under Section 437
or Section 439 of the Code, if he wants to
be released on bail in respect of the
offence or offences for which he is
arrested.

(viii) An interim bail order can
be passed under Section 438 of the Code
without notice to the Public Prosecutor
but notice should be issued to the Public
Prosecutor
or
to
the
Government
Advocate forthwith and the question of
bail should be re-examined in the light of
respective contentions of the parties. The
ad interim order too must conform to the
requirements of the section and suitable
conditions should be imposed on the
applicant even at that stage."

58. Reverting to the facts of the
present application, the Court notes that
the FIR was registered on 11 July 2019.
The Court of Sessions was moved
sometime in October 2019 and the said
application came to be dismissed by the
Sessions Judge on 16 October 2019. In
the entire petition, there is no allegation or
affirmation that the applicant apprehends
arrest. No factual foundation has been laid
in the application except to the extent of
an assertion that the applicant has been
falsely implicated in the case. In the
absence of even a rudimentary foundation
having been laid with respect to the
perceived apprehension of arrest, the
Court comes to the conclusion that no
ground has been made out for the grant of
anticipatory bail to the applicant in the
facts and circumstances of the present
case.

59. Accordingly the prayer so made
is refused.
----------
(2019)12 ILR A906

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Election Petition No. 8 of 2017

Nawab Kazim Ali Khan ...Petitioner
Versus
Mohd. Abdullah Azam Khan...Respondent

Counsel for the Petitioner:
Sri Sayed Fahim Ahmad, Sri Anurag
Asthana, Ms. Kalpana Sinha, Sri N.K. Ali
Khan (In Person), Sri Raghav Nayar, Sri
Rahul Agarwal, Sri Syed Fahim Ahmed,
Ms. Archi Agarwal, Sri Shubham Agarwal,
Sri Navin Sinha

Counsel for the Respondent:
Sri N.K. Pandey, Nazia Rafiq Khan, Sri
R.P.S. Chauhan, Sri Safdar Ali Kazmi, Sri
H.N. Mishra

A. Constitution of India - Article 173(b) -
Representation of the People's Act 1951
- Disqualification of member - State
Legislative election - a candidate is not
qualified unless he has attained the age
specified in the clause on the date fixed
for scrutiny of nominations - it is beyond
any cavil that in the event a person is
elected
who
does
not
fulfill
the
constitutional requirements, the election
would be void despite the fact that the
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
907
Returning
Officer
has
accepted
his
nomination paper.

The respondent was not qualified to contest
the
election
for
member
of
legislative
assembly in view of Article 173(b) of the
constitution of
India,
inasmuch
as the
respondent was less than 25 years of age
when he filed his nomination papers. (Para 4)

B. Evidence Law - Indian Evidence Act,
Section 103 - Burden of Proof - 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 - the initial burden of proof that
nomination paper of an elected candidate
has wrongly been accepted is on the
election petitioner. (Para 21, 56 & 57)

C. Evidence Law - Indian Evidence Act,
Section 106 - Burden of proving fact
especially within knowledge.

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 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.
(Para 21)

Held: - The respondent was less than Twenty-Five
Years of age on the date of filing nomination in
State Legislative Election.(Para 55)

Election Petition Allowed. (E-7)

List of cases cited: -

1.Sushil Kumar Vs. Rakesh Kumar 2003 8 SCC
673, (paras 23 to 41, 44, 51, 79 and 80),
2. Mukarrab and others Vs. State of U.P.
(2017) 2 SCC 210 (paras 26 to 29)

3.Misc. Bench No.13419 of 2018 (Smt. Parwati
Kumari and others Vs. State of U.P. and
others, (paras 8 and 13)

4.Zeba Haseeb @ Ankita Vs. State of U.P. And
others 2015 (2) ADJ 215 (paras 16 and 17).

5.Brij Mohan Singh Vs. Priya Brat Narain
Sinha, AIR 1965 SC 282 (para 20 and 21)

6.Birad Mal Singhvi Vs. Anand Purohit, 1988
Suppl. (1) SCC 604,

7.Thiru John Vs. The Returning Officer, AIR
1977 SC 1724 (paras 13,17,21,32,33)

8.Ravinder Singh Gorkhi Vs. State of U.P.
(2006) 5 SCC 585

9.Sushil Kumar Vs. Rakesh Kumar 2003, 8 SCC
673 (paragraphs 28 to 36).

10.Hon'ble Supreme Court in Union of India
and others Vs. Sugauli Sugar Works (P) Ltd.
(1976) 3 SCC (para 36)

11.Zeba Haseeb @ Ankita and another Vs.
State of U.P. And others 2015(2) ADJ 215
(Para 17, 24 & 26),

12.Mukarrab and others Vs. State of U.P.
(2017) 2 SCC 210 (paras 20 to 29),

13.Sushil Kumar Vs. Rakesh Kumar 2003 (8)
SCC 673, (paras 32).

14.Bench No.13419 of 2018 (Smt. Parvati
Kumari and Ors. Vs. State of U.P. Thru.
Principal Secretary Home & Ors.)

15.S.G. Vombatkere & Anr. Vs. Union of India

16.A. Shanmugam vs. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai
Sangam and others, [(2012) 6 SCC 430]
(Para-43.1 to 43.5)),

17.Amrit Lal Ambalal Patel Vs. Himathbhai
Gomanbhai Patel, 1968 AIR 1455 1969 SCR
(1) 277
908 INDIAN LAW REPORTS ALLAHABAD SERIES
18.Durga Shanker Mehta Vs. Thakur Raghuraj
Singh, AIR 1954 SC 520

19.Sushil Kumar Vs. Rakesh Kumar 2003 8
SCC 673, (paras 23 to 41, 44, 51, 79 and 80),

20.Mukarrab and others Vs. State of U.P.
(2017) 2 SCC 210 (paras 26 to 29)

21.Misc. Bench No.13419 of 2018 (Smt.
Parwati Kumari and others Vs. State of U.P.
and others, (paras 8 and 13)

22.Zeba Haseeb @ Ankita Vs. State of U.P. And
others 2015 (2) ADJ 215 (paras 16 and 17).

23.Brij Mohan Singh Vs. Priya Brat Narain
Sinha, AIR 1965 SC 282 (para 20 and 21)

24.Birad Mal Singhvi Vs. Anand Purohit, 1988
Suppl. (1) SCC 604,

25.Thiru John Vs. The Returning Officer, AIR
1977 SC 1724 (paras 13,17,21,32,33)

26.Ravinder Singh Gorkhi Vs. State of U.P.
(2006) 5 SCC 585

27.Sushil Kumar Vs. Rakesh Kumar 2003, 8
SCC 673 (paragraphs 28 to 36).

28.Hon'ble Supreme Court in Union of India
and others Vs. Sugauli Sugar Works (P) Ltd.
(1976) 3 SCC (para 36)

29.Zeba Haseeb @ Ankita and another Vs.
State of U.P. And others 2015(2) ADJ 215
(Para 17, 24 & 26),

30.Mukarrab and others Vs. State of U.P.
(2017) 2 SCC 210 (paras 20 to 29),

31.Sushil Kumar Vs. Rakesh Kumar 2003 (8)
SCC 673, (paras 32).

32.Bench No.13419 of 2018 (Smt. Parvati
Kumari and Ors. Vs. State of U.P. Thru.
Principal Secretary Home & Ors.)

33.S.G. Vombatkere & Anr. Vs. Union of India,

34.A. Shanmugam vs. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai
Sangam and others, [(2012) 6 SCC 430]
(Para-43.1 to 43.5)),

35.Amrit Lal Ambalal Patel Vs. Himathbhai
Gomanbhai Patel, 1968 AIR 1455 1969 SCR (1) 277

36.Durga Shanker Mehta Vs. Thakur Raghuraj
Singh, AIR 1954 SC 520

37.Sushil Kumar Vs. Rakesh Kumar 2003 8
SCC 673, (paras 23 to 41, 44, 51, 79 and 80),

36.Mukarrab and others Vs. State of U.P.
(2017) 2 SCC 210 (paras 26 to 29)

37.Misc. Bench No.13419 of 2018 (Smt. Parwati Kumari
and others Vs. State of U.P. and others, judgment dated
09.01.2019 (paras 8 and 13)

38. Zeba Haseeb @ Ankita Vs. State of U.P. And
others 2015 (2) ADJ 215 (paras 16 and 17).

39. Brij Mohan Singh Vs. Priya Brat Narain
Sinha, AIR 1965 SC 282 (para 20 and 21)

40. Birad Mal Singhvi Vs. Anand Purohit, 1988
Suppl. (1) SCC 604,

41.Thiru John Vs. The Returning Officer, AIR
1977 SC 1724 (paras 13,17,21,32,33)

42.Ravinder Singh Gorkhi Vs. State of U.P.
(2006) 5 SCC 585

43.Sushil Kumar Vs. Rakesh Kumar 2003, 8
SCC 673 (paragraphs 28 to 36).

44.Hon'ble Supreme Court in Union of India
and others Vs. Sugauli Sugar Works (P) Ltd.
(1976) 3 SCC (para 36)

45.Zeba Haseeb @ Ankita and another Vs. State of U.P. And
others 2015(2) ADJ 215 (Para 17, 24 & 26),

46.Mukarrab and others Vs. State of U.P.
(2017) 2 SCC 210 (paras 20 to 29),

47.Sushil Kumar Vs. Rakesh Kumar 2003 (8)
SCC 673, (paras 32).

48. Bench No.13419 of 2018 (Smt. Parvati
Kumari and Ors. Vs. State of U.P. Thru.
Principal Secretary Home & Ors.)
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
909
49. S.G. Vombatkere & Anr. Vs. Union of
India,

50.A. Shanmugam vs. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai
Sangam and others, [(2012) 6 SCC 430]
(Para-43.1 to 43.5)),

51.Amrit Lal Ambalal Patel Vs. Himathbhai
Gomanbhai Patel, 1968 AIR 1455 1969 SCR
(1) 277

52.Durga Shanker Mehta Vs. Thakur Raghuraj
Singh, AIR 1954 SC 520

(Delivered by Hon'ble Surya Prakash
Kesarwani,J.)

1. Heard Shri Naveen Sinha, learned
Senior Advocate, assisted by Ms. Kalpana
Sinha and Shri Raghav Nayar, learned
counsel for the election petitioner and Sri
N.K. Pandey along with Sri S.A. Kazmi,
learned counsel for the respondent -
returned candidate.

Facts

2. Briefly stated facts of the present
case are that notification under the
Representation of the People's Act 1951
(hereinafter referred to as "the Act 1951")
was issued notifying for election of U.P.
State Legislative Assembly from 34-Suar,
District - Rampur constituency. A public
notice was also issued by the Returning
Officer fixing the following programme
for holding the election from the aforesaid
constituency :-

(a) Date of filing nomination

25.01.2017

(b)
date
of
scrutiny
of
nomination papers
28.01.2017

(c) Date of Withdrawal of
nomination papers
30.01.2017

(d) Date of allotment of symbols

01.02.2017

(e) Date of poll

15.02.2017

(f) Date of counting

11.03.2017

3. After scrutiny and withdrawal of
nomination papers, the election petitioner and
six other persons including the respondent
were the candidates who remained in the field
for the election. Before the Returning Officer
the Election petitioner filed an objection
against the respondent alleging that the
respondent is less than 25 years of age and,
therefore, he is not qualified to contest the
election in view of Article 173(b) of the
Constitution of India. The objection was
rejected by the Returning Officer. The
election took place as per schedule in which
the respondent - Mohd. Abdullah Azam
Khan, son of Mohd. Azam Khan who had
filed his nomination papers on 24.1.2017, was
declared elected on 11.3.2017. He secured
1,06,443 votes. The petitioner stood 3rd and
had secured 42,233 votes.

4. The election petitioner has filed the
present election petition on the sole ground
that "the respondent was not qualified to
contest the election for member of legislative
assembly in view of Article 173(b) of the
constitution of India, inasmuch as the
respondent was less than 25 years of age when
he filed his nomination papers and when he
contested the election from 34 Suar, District-
Rampur constituency."

5. The concise statement of
material fact in respect of ground
reproduced above, have been mentioned
in paragraphs 25 to 28 of the election
petition, which are reproduced below :-
910 INDIAN LAW REPORTS ALLAHABAD SERIES

25. That the concise statement
of material facts, in respect of ground A
are as follows:

(i) That the respondent was
born on 01.01.1993, and, therefore, as on
the date of the nomination of scrutiny, the
said
Mohd.
Abdullah
Azam
Khan,
respondent was much below 25 years of
age.

(ii)
That
the
said
Mohd.
Abdullah Azam Khan
- respondent
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
for
Secondary
Education, New Delhi.

(iii) That the respondent Mohd.
Abdulla Azam Khan himself filled-up the
admission form and examination form,
and in his own handwriting, mentioned
his date of birth as 01.01.1993. The
record
of
the
appearance
and
examination
of
respondent
Mohd.
Abdullah Azam Khan are available with
the
Central
Board
for
Secondary
Education, New Delhi.

(iv) That the Central Board for
Secondary Education has issued the
Secondary School Examination (Class-X)
result bearing the roll number, name,
mother's name and father's name and date
of birth of respondent Mohd. Abdullah
Azam Khan. As per the certificate, the
mother of respondent is Tazeen Fatima
and his father is Mohd. Azam Khan. The
date of birth as recorded in the certificate
for
Secondary
School
Examination
(Class-X) results of the respondent Mohd.
Abdullah Azam Khan is 01.01.1993. A
copy of the certificate for Secondary
School Examination (Class-X) results of
respondent Mohd. Abdullah Azam Khan
obtained from the Central Board for
Secondary Education is enclosed and
marked as Annexure-4 to this petition.

(v) That the respondent Mohd.
Abdullah
Azam
Khan
appeared
in
Intermediate examination in the year
2009 from St Paul's School, Rampur. The
said papers and records are available
with St Paul's School, Rampur and the
Central Board for Secondary Education
(CBSE) Delhi.

(vi) That the petitioner has
made best efforts to get the admission
form,
examination
form
as
also
documents pertaining to the Intermediate
Examination of the respondent Mohd.
Abdullah Azam Khan, but has not been
able to get the same. The petitioner has
only been able to get the certificate for
Secondary School Examination (Class X)
results of the respondent from the Central
Board for Secondary Education.

(vii) That the respondent 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. The record of respondent Mohd.
Abdullah Azam Khan in respect of his
Master's
Degree
is
available
with
Galgotias University, Greater Noida.

26. That apart from the above
facts, documents will be available to
prove that the respondent Mohd. Abdullah
Azam
Khan
was
disqualified
from
contesting the election and, therefore, he
should be treated as not eligible to contest
the election.

27. That the election of the
respondent Mohd. Abdullah Azam Khan is
void on the facts and ground stated in the
petition.

28. That in view of these facts
and circumstances, it is abundantly clear
that the respondent was no qualified to
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
911
contest the election for being elected as
member
from
32-Suar
assembly
constituency as he was less than 25 years
either on the date of scrutiny or even on
the date of the election; therefore, his
election
from
34-Suar
assembly
constituency in District Rampur is liable
to be set aside by this Hon'ble Court.

6. It is admitted to the respondent
that he is the son of Mohd. Azam Khan,
who was MLA and the then Cabinet
Minister (Urban Planning, Development
and Local Bodies) in Government of Uttar
Pradesh, during the year 2012 to 2017.
The respondent filed written statement
dated 11.11.2017 (paper No.A-7).

7. The following issues have been
framed in the present election petition:-

ISSUES

(a) Whether as on the date of
filing of nomination papers i.e. on
25.1.2017 and on the date of scrutiny of
nomination papers i.e. 28.1.2017 and on
the date of declaration of result i.e.
11.3.2017, the respondent had attained 25
years of age in terms of Article 173 (b) of
the Constitution of India for contesting
the election of Legislative Assembly from
34-Suar Constituency, District Rampur ?

(b) Whether under the facts and
circumstances of the case, the respondent
was eligible to contest the election of
Legislative
Assembly
from
34-Suar
Constituency of District Rampur on
25.1.2017 or 28.1.2017 or 11.3.2017 in
terms of the provisions of Article 173(b)
of the Constitution of India ?

(c) If the answer to Issue Nos. 1
and 2 are in negative, i.e. against the
respondent, then its effect and to what
relief the election petitioner is entitled ?

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
A 49/1-4
Pass
port
application dated 06.07.2012 of the
(A-49/1

respondent under
his signature mentioning his to A

date
of
birth
01.01.1993, and place of birth
53/1)

Rampur.
Earlier Pass port No.F-8757022, was

issued
on
28.08.2006 which expired on

31.12.2010. The new
passport 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.P-1 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
912 INDIAN LAW REPORTS ALLAHABAD SERIES

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 pass port No.K-

7951741,
dated
13.07.2012 mentioning

respondent's date of birth as
01.01.1993 and old

pass
port
No.F8757022,
dated
28.08.2006

P-2
A-60/1-2
:Copy
of
the
respondent's pass port application
(A-60/1

 dated
10.01.2018 mentioning his date of birth
as
to A-78)

30.09.1990
and
place of birth Lucknow

A-61/1

"on
line
appointment receipt" issued by Ministry

of
External
Affairs, Government of India for the
aforesaid
Passport
application
dated
08.01.2018

A-62/1-3
Copy
of
the
respondent's pass port No.

K7951741, dated
13.07.2012 bearing his date of

birth as 01.01.1993 and
entries of

departure/arrival
dated
30.04.2013, 05.05.2013,

09.06.2015 and 26.07.2016. A62/3 is

respondent's Visa dated 09.07.2014
mentioning

his date
of birth as 01.01.1993

A-63/1

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 - B-2015-292611 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 :-

"श्री

िोहम्मद
 अब्दुल्लव
 आिि
खवन पुत्र
 श्री

िोहम्मद
 आज़ि खवन
भनर्वसी
 िो0 घेि
 िीि बवि

खवां
,
िेल
िोड
िविपुि

को
इस
कवर्वालर्
 द्वविव

भदनवांक
 28-06-12 को
भनगात

िन्म

प्रिवण

पत्र
 आि

भदनवांक
 30-01-15
को
भनिस्त
 भकर्व
 िवतव
 है।
"

A-65/1

Copy
of
respondent's U.P. Legislative Assembly

Identity
Card
dated 14.03.2017

A-66/1

Copy
of
Adhar Card of the respondent's dated

7.3.2015
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
913

A-67/1

Copy
of
respondent's driving licence

A-68/1

Copy
of
respondent's voter I.D. Card dated

18.07.2016.

A-69/1

Copy
acknowledgment dated 10.1.2018 issued

by
Regional
Passport Officer, Bareilly for

application dated 10.1.2018

A-70/1

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.".

A-75/2

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.

A-76/1

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-80/1

Copy
of
birth certificate of Mohd. Abdulla
Azam (A-79

Khan
(Respondent) dated 28.06.2012 bearing
to

date
of
registration RNPB 9012-03857, dated
A-80/1)

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
A-25/1

Copy
of
Secondary School examination Class X

result
2007,
issued by Central Board of

Secondary
Education
showing respondent's date

of birth of as 01.01.1993

Oral evidence of Election-petitioner

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
9.
E
x.
N
o.
Pap
er
No.
Brief Particular
R
1
A
30
List of candidates who filed nomination
papers
R
2
A
31
Symbol allotment list issued by Returning
Officer
R
A32 Declaration of results by Returning Officer on
914 INDIAN LAW REPORTS ALLAHABAD SERIES
3
11.03.2017
R
4
A10
0/12
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 7th August 1990, 22.09.1990 and
24.09.1990
R
5
A10
1/12
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)
R
6
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
R
7
A38
/1-2
Discharge ticket of indoor patient Tazeen
Fatima in Queen Mary's Hospital admitted on
07.08.1990 and discharge on 24.10.1990
R
8
A41
/1-3
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
register containing entries is not possible to be
given. Admission slip is kept by the patient,
discharge certificate (paper No. A38/1-2) as
produced by Tazeen Fatima is attested.
R
9
A42
/1-5
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 :

"िोहम्मद अब्दुल्लवह आज़ि
खवन के भिस पृष्ठ पि िन्म कव
भर्र्िण अांभकत है
 उसकी
सत्याचपत प्रचतचलचप एवां
उसके प्रथम पृष्ठ की
सत्यचलचप इस पत्र के साथ
सांलग्न है। सूिनाथघ
प्रेचषत
"(paper No.A100/2)
R
10
A47
/1-7
Copy of pay bill Register of Rajkiya Mahila
PG College, Rampur for the month of August
1990, December 1992, January 1993 and
February 1993
R
11
A95
/134
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 years -50%,
Mohd Adeel Ajam Khan (Bitu) (son) 15 years
- 25% and Mohd. Abdullah Azam Khan
(son) 8 years - 25 %
R
12
A96/1
-5
Application of Dr. Tazeen Fatima, dated
17.01.2015 (mother 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
/4-5
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

Oral Evidence of Defendant/respondent

10.

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
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
915

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

11. The witnesses as aforementioned
were examined and cross examined by the
parties.

Submissions on behalf of Electionpetitioner

12. Sri Navin Sinha, learned
counsel for the petitioner submits as
under:

(i) Article 173 (b) of the
Constitution of India provides that person
shall not be qualified to be chosen to fill a
seat in the legislature of a State unless he
is, in the case of a seat in the legislative
assembly, not less than 25 years of age
and, in the case of a seat in the legislative
council not less than 30 years of age.
Therefore, the respondent being less than
25 years of age as on the date of filing of
nomination papers, on the date of scrutiny
and on the date of declaration of result
was not qualified to contest the election of
the State legislative assembly. Therefore,
his election is null and void.

(ii) The facts in support of the
ground to challenge the election of the
respondent are mentioned in paragraph 25
and sub paragraph of the election petition
which are reiterated.

(iii) Ex. P-4 (Paper No. A25/1)
is the Class X mark sheet/certificate of the
respondent issued by the Central Board of
Secondary Education in the year 2007 in
which respondent's date of birth is
recorded as 01.01.1993. As per Ex. P-1,
P-2 and P-3, also the date of birth of the
respondent is 01.01.1993. In paragraph 13
of the Election petition, the election
petitioner has clearly stated that the date
of birth 30.09.1990 as mentioned in the
Adhar Card is not the correct date of birth
of the respondent - Mohd. Abdullah
Azam Khan and infact the certificate of
Secondary School Examination (Class
10th) of the respondent issued by Central
Board of Secondary Education New Delhi
correctly reflects his date of birth. This
paragraph has been replied by the
respondent in paragraph 13 of the written
statement in which he has not denied the
Ex. P4 which has also been filed as
Annexure 4 to the Election-petition and
instead he merely stated that his date of
birth is incorrectly mentioned or recorded
as 01.01.1993 in the certificate for
Secondary School Examination (Class
10th) issued by CBSE, New Delhi, for
which he has already taken steps for
correction. Thus, it has been well proved
that the date of birth of the respondent has
always been recorded as 01.01.1993 from
the very beginning. He has also disclosed
his date of birth as 01.01.1993 while
obtaining passport in the year 2006 and in
the year 2012. As per birth certificate
issued by Registrar of Birth and Death,
Nagar Palika Parishad, Rampur, the date
of birth of the respondent is 01.01.1993.
The witness have also proved his date of
birth as 01.01.1993. Even her mother has
filed a nomination form for group
insurance scheme in the year 2001 in
which she has mentioned age of the
respondent to be 8 years which also
shows the birth year of the respondent to
be the year 1993. Thus, from the
evidences it has been well established that
the respondent was born in the year 1993
and not on 30.09.1990.
916 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) In paragraphs 54 and 55
of the written statement the respondent
has stated that in the year 2015 while
he was pursuing his studies of M.Tech
and
was
forwarding
towards
his
carrier/job,
he
scrutinised
his
educational records and then came to
know that
his date of birth
is
incorrectly recorded as 01.01.1993 in
place of 30.09.1990 and then he took
immediate steps for correction of the
same by filing an application on
23.03.2015 under the provisions of the
Examination bye laws of the CBSE, New
Delhi. The CBSE has not accepted the
application of the respondent. Thus, his
date of birth as per Clause 10th mark
sheet/certificate
continues
to
be
01.01.1993 which is also supported by
various documentary and oral evidences
on record.

(v) The alleged Adhar Card and
voter ID Card are not proof of age or
birth. That apart all these papers being
relied by the respondent were obtained
after March 2015. The evidence of D.W.
3 - Dr. Uma Singh to prove the duplicate
birth certificate dated 21.04.2015 and that
a male child born to the mother of the
respondent are wholly untrustworthy and
has no basis. That apart D.W. 3 herself
stated that she can not say that the child
was born to Tazeen Fatima on 30.09.1990
is the respondent. She admitted that the
register
produced
by
her
is
not
authenticated and does not bear signatures
of any Officer or staff of the hospital. She
also admitted that she has not made
entries regarding birth of a child by
Tazeen Fatima on 30.09.1990. As per
witnesses of the respondent the entries in
the birth register of Nagar Nigam,
Lucknow, is made on the basis of
intimation received from the hospital but
no evidence has been led either that the
hospital sent the intimation to the Nagar
Nigam, Lucknow or the Nagar Nigam,
Lucknow, received such an intimation. In
any case if actually any intimation was
given by the Hospital to the Nagar Nigam,
Lucknow,
regarding
birth
of
the
respondent then the birth would have been
registered on 30.09.1990 or within one or
two days of the receipt of the alleged
intimation from the Hospital but the birth
certificate of the respondent has been
issued by the Nagar Nigam, Lucknow, on
mere asking by few lines affidavit of the
mother of the respondent asking the
Nagar Nigam, Luckow, to issue birth
certificate. The Birth certificate so issued
is a complete nullity particularly in view
of the provisions of Section 13 of the
Registration of Birth and Death Act. The
birth certificate issued by the Nagar
Nigam, Lucknow dated 21.01.2015 is
manipulated and bogus.

(vi) The copy of EOT register
and MLR register as well as oral evidence
led by the respondent are untrustworthy
and does not prove that the respondent's
date of birth is 30.09.1990. Infact these
evidences are the result of manipulation
and fabrication of record.

(vii) Father of the respondent
Mohd. Azam Khan, was the Cabinet
Minister in the U.P. Government in the
year 2015 holding portfolio "Urban
Planning and Development and Local
Bodies" and the Nagar Nigam, Lucknow
and Nagar Palika Parishad, Rampur both
were under his ministry. The birth
certificate issued by Nagar Nigam,
Lucknow and cancellation order of the old
birth certificate of Nagar Palika Parishad,
Rampur are false, fabricated and procured
manipulated piece of papers. These papers
have been procured in breach of the
Provisions of the Act. The alleged birth
register shown by D.W. 2 is based on
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
917
manipulation. After the birth certificate
was procured by the respondent from the
Nagar Nigam, Lucknow, then the entire
papers relating to his birth certificate
issued by Nagar Palika Parishad, Rampur
were shown to have been burnt in an
alleged fire on 08.05.2015 in the office of
the Nagar Palika Parishad, Rampur.

(viii)
The
Nagar
Nigam,
Lucknow
has
shown
the
date
of
registration of birth of the respondent on
21.01.2015 but shown the receipt of
information of birth of the respondent in
the month of April 2015 which shows that
the birth certificate issued by the Nagar
Nigam, Lucknow is false and is the result
of manipulation and influence.

(ix) No conclusion can be drawn
regarding the age of the respondent on the
basis of Medical Board report dated
27.01.2017 (paper No.A-40 filed by the
respondent alongwith list of papers).
D.W. 8 - Dr Satibir Singh in his cross
examination
could
not
explain
the
conclusion of average age of 26 years.
Therefore, no conclusion can be drawn
about the age of the respondent on the
basis of opinion of the medical board and
that
too
against
the
documentary
evidences.

(x)
Entire
family
of
the
respondent is well educated. He himself is
M.Tech. Her mother was a Professor of
Political Science in a Degree College. His
father is also highly educated and is a
very active politician and has been
Cabinet Minister in the State Government.
From the very beginning his date of birth
has always been recorded in various
Government record as 01.01.1993. The
respondent
himself has applied
for
various certificates, PAN and Pass Port
mentioning
his
date
of
birth
as
01.01.1993. Therefore, the stand taken by
the respondent in the present electionpetition
that
while
scrutinising
his
educational certificate in the year 2015 he
came to know that his date of birth is
incorrectly mentioned in Class 10th
marksheet/certificate as 01.01.1993 is
false. It is merely to contest the election
that the respondent got falsely changed
his date of birth.

(xi) The question of burden of
proof has become academic inasmuch as
both the parties have led their evidences
on the point of age of the respondent.

(xii) Section 35 of the Evidence
Act only provides for presumption of
relevant fact of entries made by a public
servant to discharge his official duty.
Entries of such record can be proved by
producing
in
evidence
the
person
responsible for maintaining the register
and for making entries therein. No such
person responsible for maintaining the
register and for making entries in EOT
register, MLR register and birth register
of the Nagar Nigam, Lucknow, were
produced by the respondent in evidence.
Even D.W. 4 is the head of the
Department of Obst. & Gyno. of King
George Hospital/Queen Mary's Hospital
and she has stated in a letter addressed to
the Information Officer that no record is
kept by the Hospital beyond 10 years and,
therefore, it is not possible to give copy of
entries of the year 1990. However,
surprisingly
unauthinticated
unsigned
EOT and MLR registers were produced
by D.W.-3 and D.W.-4 in evidence.
D.W.-2 Dr. Archana Dwivedi, Assistant
Municipal Commissioner is not the
person who has maintained or made
entries in the birth register of the Nagar
Nigam, Lucknow. The alleged birth
register also does not bear signature of
any Officer or employee. It is not an
authenticated register. It has not been
maintained in terms of the provisions of
918 INDIAN LAW REPORTS ALLAHABAD SERIES
the Registration of Birth and Death Act
and
the
Rules
framed
thereunder.
Therefore, the birth certificate issued by
the Nagar Nigam, Lucknow on the basis
of such a register is of no consequence,
unproved and totally irrelevant. Even the
procedure as stated by D.W.-3 and D.W.
4 was not adopted while issuing duplicate
birth certificate of Queen Mary's Hospital.

13. Lastly, he submitted that as per
documentary evidences on record the date
of birth of respondent is 01.01.1993 and
he was below 25 years of age at the time
of filing of his nomination papers,
scrutiny of the nomination papers and
declaration of the result. Therefore, his
election is null and void as he was not
qualified
to
contest
the
election.
Consequently, his election deserves to be
set aside.

14. Sri Sinha has relied upon
judgments of Hon'ble Supreme Court in
the case of Sushil Kumar Vs. Rakesh
Kumar 2003 8 SCC 673, (paras 23 to
41, 44, 51, 79 and 80), Mukarrab and
others Vs. State of U.P. (2017) 2 SCC
210 (paras 26 to 29) on the point of
Ossification test and the judgment of this
Court in Misc. Bench No.13419 of 2018
(Smt. Parwati Kumari and others Vs.
State of U.P. and others, judgment
dated 09.01.2019 (paras 8 and 13) and
in Zeba Haseeb @ Ankita Vs. State of
U.P. And others 2015 (2) ADJ 215
(paras 16 and 17).

Submissions on behalf of the
respondent

15. Sri N.K. Pandey, learned counsel
for the respondent submits as under:-

(i) Onus is on the election
petitioner to adduce evidence in support
of Issue Nos.(a) & (b) in view of the
provisions of Order XVIII Rule 2(1) of
the CPC.

(ii) The election-petitioner has
failed to file a certified copy of the Class
10th
marksheet/certificate
of
the
respondent issued by CBSE. Therefore,
such a certificate can not be relied. It is an
internet copy downloaded from the
website of the CBSE Board and not a
copy issued by the CBSE Board.

(iii) The news paper cutting etc.
as alleged in the election petition, have
neither been filed in evidence nor could
be proved by the election-petitioner.

(iv) The respondent has clearly
stated in paragraph 16 of the written
statement that his date of birth was
incorrectly recorded as 01.01.1993 in the
certificate of Class 10th examination.

(v) In paragraph 51 of the
written statement it was explained that
four issues were born to the mother of the
respondent out of which only two
survived, namely, the respondent and his
elder brother Mohd. Adil. Complete
details in this regard has been given in
paragraphs 48 and 49 of the written
statement.

(vii)
Document
No.1
filed
alongwith the election petition contains
some document which were not even part
of nomination papers.

(viii)
The
date
of
birth
mentioned in the pass port of the
respondent issued on 10.01.2018 correctly
records his date of birth as 30.09.1990
and the date of birth was lawfully got
corrected.

(viii) The P.W.- 4 is which the
authorised Officer/Deputy Registrar of
Nagar Palika Parishad, Rampur, who has
stated that entire records relating to birth
of the respondent were burnt in fire on
28.05.2015.
4 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
919

(ix) Respondent has well proved
by documentary as well as oral evidence
that he was born on 30.09.1990 and not
on 01.01.1993.

(x) The birth of the respondent
on 30.09.1990 is further proved from the
facts that mother of the respondent's took
maternity leave from 07.08.1990 to
04.11.1990(Ex R11).

16. In support of his submissions Sri
Pandey has relied upon the judgments of
Hon'ble Supreme Court in Brij Mohan
Singh Vs. Priya Brat Narain Sinha,
AIR 1965 SC 282 (para 20 and 21)
regarding mentioning of wrong date of
birth in School Certificate, Birad Mal
Singhvi Vs. Anand Purohit, 1988 Suppl.
(1) SCC 604, regarding burden of proof
to be on the election-petitioner, Thiru
John Vs.