# MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI KHAN

- **Citation:** [2022] 12 S.C.R. 391
- **Court:** Supreme Court of India
- **Decided:** 2022-11-07
- **Case number:** Civil Appeal No. 104 of 2020
- **Bench:** Ajay Rastogi, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-abdullah-azam-khan-v-nawab-kazim-ali-khan-35443
- **Pages:** 91

## Headnote

Constitution of India, 1950 - Art.173(b) - Breach of -
Qualification for membership of the State Legislature - Age criteria
for contesting State Legislative Assembly elections - Discrepancy
in date of birth - Burden of proof - Public documents - Probative
value - Two different Birth Certificates of appellant showing 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 - Elections took place for Uttar Pradesh State Legislative
Assembly during January-March 2017 - Appellant was declared
elected from the Suar constituency, District Rampur - Respondentelection petitioner challenged the election of the appellant on ground
that he was born on 01.01.1993 and therefore was less than 25
years of age when he filed his nomination papers, and was not
qualified to contest the election for State Assembly - In rebuttal,
appellant claimed his date of birth to be 30.09.1990 - High Court
declared the election of appellant to be void and set aside his election
- Held (per Ajay Rastogi, J.): When any fact is especially within
the knowledge of a party, the burden of proving it lies upon that
party - The term "especially" means facts which are pre-eminently
or exceptionally within the knowledge of a person - This rule cannot
apply when the fact is such as to be capable of being known also
by persons other than the party - In the instant case, respondent
established from the documentary evidence which belongs to the
appellant that, from day one appellant has shown his date of birth
as 1st January, 1993 not just in his academic record but also in the
birth certificate obtained from Nagar Palika, Rampur in the year
2012 - This could have been possible only when the relevant
documentary evidence was available with the competent authority
in the office of Nagar Palika, Rampur - Since the documents were
issued from the office of the public officers based on the relevant
data made available by the appellant himself, there was sufficient
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probative value, as required u/s.35 of the Evidence Act - Merely
because the same was later on cancelled by the appellant, it may
not lose its evidentiary value - Date of birth of appellant throughout
in his records is 1st January, 1993 and only in the year 2015 when
he became keen to enter into active politics, DW-5- his mother,
submitted an application before Nagar Nigam, Lucknow for the
first time on 17th January, 2015, claiming that appellant was born
on 30th September 1990 - Procedure prescribed u/s.13(3) of the
Act, 1969 was not followed by competent authority at Nagar Nigam,
Lucknow while issuing fresh certificate of date of birth on 21st
January, 2015 - No probative value could have been attached to
documentary evidence obtained from the Queen Mary's Hospital,
Lucknow, as a foundation on which the birth certificate was issued
on 21st January 2015 by Nagar Nigam, Lucknow - Impugned
judgment of High Court accordingly upheld - Held (per B.V.
Nagarathna, J.) (Concurring) : As per s. 101, the burden of proving
a fact always lies upon the party who substantially asserts the
affirmative and until such burden is discharged, the other party is
not required to be called upon to prove his case - Burden to prove
documents lie on plaintiff alone as onus is always on the person
asserting a proposition or a fact - Once the plaintiff discharges the
initial burden of prove and makes out a case which entitles him to
relief, in terms of s. 102, the onus shifts to the defendants to prove
those circumstances which would disentitle the plaintiff of the relief
- However once the 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 basis of evidence led by
the parties - s. 106 is an exception to the general rule and it stipulates
that when a fact to be proved is peculiarly within the knowledge of
a

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[2022] 12 S.C.R. 391
391
MOHD. ABDULLAH AZAM KHAN
v.
NAWAB KAZIM ALI KHAN
(Civil Appeal No. 104 of 2020)
NOVEMBER 07, 2022
[AJAY RASTOGI AND B. V. NAGARATHNA, JJ.]
Constitution of India, 1950 - Art.173(b) - Breach of -
Qualification for membership of the State Legislature - Age criteria
for contesting State Legislative Assembly elections - Discrepancy
in date of birth - Burden of proof - Public documents - Probative
value - Two different Birth Certificates of appellant showing 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 - Elections took place for Uttar Pradesh State Legislative
Assembly during January-March 2017 - Appellant was declared
elected from the Suar constituency, District Rampur - Respondentelection petitioner challenged the election of the appellant on ground
that he was born on 01.01.1993 and therefore was less than 25
years of age when he filed his nomination papers, and was not
qualified to contest the election for State Assembly - In rebuttal,
appellant claimed his date of birth to be 30.09.1990 - High Court
declared the election of appellant to be void and set aside his election
- Held (per Ajay Rastogi, J.): When any fact is especially within
the knowledge of a party, the burden of proving it lies upon that
party - The term "especially" means facts which are pre-eminently
or exceptionally within the knowledge of a person - This rule cannot
apply when the fact is such as to be capable of being known also
by persons other than the party - In the instant case, respondent
established from the documentary evidence which belongs to the
appellant that, from day one appellant has shown his date of birth
as 1st January, 1993 not just in his academic record but also in the
birth certificate obtained from Nagar Palika, Rampur in the year
2012 - This could have been possible only when the relevant
documentary evidence was available with the competent authority
in the office of Nagar Palika, Rampur - Since the documents were
issued from the office of the public officers based on the relevant
data made available by the appellant himself, there was sufficient
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probative value, as required u/s.35 of the Evidence Act - Merely
because the same was later on cancelled by the appellant, it may
not lose its evidentiary value - Date of birth of appellant throughout
in his records is 1st January, 1993 and only in the year 2015 when
he became keen to enter into active politics, DW-5- his mother,
submitted an application before Nagar Nigam, Lucknow for the
first time on 17th January, 2015, claiming that appellant was born
on 30th September 1990 - Procedure prescribed u/s.13(3) of the
Act, 1969 was not followed by competent authority at Nagar Nigam,
Lucknow while issuing fresh certificate of date of birth on 21st
January, 2015 - No probative value could have been attached to
documentary evidence obtained from the Queen Mary's Hospital,
Lucknow, as a foundation on which the birth certificate was issued
on 21st January 2015 by Nagar Nigam, Lucknow - Impugned
judgment of High Court accordingly upheld - Held (per B.V.
Nagarathna, J.) (Concurring) : As per s. 101, the burden of proving
a fact always lies upon the party who substantially asserts the
affirmative and until such burden is discharged, the other party is
not required to be called upon to prove his case - Burden to prove
documents lie on plaintiff alone as onus is always on the person
asserting a proposition or a fact - Once the plaintiff discharges the
initial burden of prove and makes out a case which entitles him to
relief, in terms of s. 102, the onus shifts to the defendants to prove
those circumstances which would disentitle the plaintiff of the relief
- However once the 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 basis of evidence led by
the parties - s. 106 is an exception to the general rule and it stipulates
that when a fact to be proved is peculiarly within the knowledge of
a party, it is for him to prove it - 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 - In the present case, despite the
voluminous oral and documentary evidence, the appellant has been
unable to prove the fact that he was born on 30.09.1990 -
Consequently, he was not 25 years old at the time of filing the
nomination - Election of the appellant to state legislative assembly
set aside - Evidence Act, 1972 - ss. 101 to 106, 35 and 21 -
Registration of Birth and Death Act, 1969 - s.13(3) - U.P.
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Registration of the Birth and Death Rules, 2002 - r.9 -
Representation of People's Act, 1951 - ss. 15 and 116 A.
Evidence Act, 1972 - Passports and Visas - Evidentiary value
of admitted documents - Whether the information entered in the
passport application would amount to proof as to contents of such
application, including the date and place of birth entered therein -
Held (per B.V. Nagarathna, J.): 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 - In the
present case, appellant 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, it was not open for appellant
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 - Documentary evidence produced
by respondent election petitioner has cogent and probative value -
This is because the said documents are consistent with the admitted
documents of appellant as well as with the admissions made by the
appellant himself.
Evidence - Public documents - Probative value of documents
made, without following statutory procedure - Whether the Birth
Certificate issued on 21.01.2015 by the Nagar Nigam, Lucknow,
was a valid piece of evidence - Held (per B.V. Nagarathna, J.):
Birth certificate issued by the Nagar Nigam Lucknow was without
following the mandatory provisions of s.13 of the Births and Deaths
Registration Act, 1969 - s. 13(3) of the 1969 Act and r. 9 of the U.P
Registration of Birth and Death Rules, 2002 provides 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 Presidency Magistrate after verifying
the correctness of birth and death - In the present case, Nagar
Nigam, Lucknow, had no jurisdiction to register the birth of the
appellant after twenty five years from the date on which he was
stated to be born by the issuance of the Birth Certificate on
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI
KHAN
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21.01.2015 without an order of the Sub Divisional Magistrate as
required u/s. 13(3) of the 1969 Act, r/w r. 9(3), 2002 Rules -
Moreover, perusal of hospital records such as the Emergency O.T.
(E.O.T) register and the Maternity Labour room Register (MLR),
shows that same are mired with discrepancies, overwriting and
factual inaccuracies which cannot be ignored - Therefore, no weight
can be placed on birth certificate issued by the Nagar Nigam,
Lucknow on 21.01.2015 which is stated to be issued on strength of
an entry made in birth register maintained by hospital - Registration
of Birth and Death Act, 1969 - s.13(3) - U.P. Registration of the
Birth and Death Rules, 2002 - r.9.
Evidence - Medical Evidence - Evidentiary value of bone
ossification test for determining age - Held (per B.V. Nagarathna,
J.): Ossification test cannot be solely relied upon as conclusive
proof of age - 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 - Report of an
ossification test can, at most, be used to corroborate other relevant
evidences, oral or documentary.
Evidence - Documents of identity - Relevance of Aadhar
Card, Voter I.D. Card and Driving License as regards proof of date
of birth - Held (per B.V. Nagarathna, J.): Aadhar card is a means
of identity and not a proof of date of birth - On facts, the Aadhar
Card, Voter I.D. Card and Driving License did not conclusively
establish that the appellant was above twenty five 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.
 Words and Phrases - Difference between "burden of proof"
and "onus of proof" - Explained.
Dismissing the appeal, the Court
HELD:
per Ajay Rastogi, J.
1. When any fact is especially within the knowledge of a
party, the burden of proving it lies upon that party. The term
"especially" means facts which are pre-eminently or exceptionally
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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. [Para 19][416G-H; 417-A]
2. 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. 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. [Paras 21 and 28][418-B; 425-EG]
3. 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
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI
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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. [Para 34][427-G-H; 428-A-B]
4. Apart from oral evidence to support the documents placed
on record obtained from the Queen Mary's hospital, 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. [Para
41][432-B]
5. 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. [Para 42][432-C]
6. 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 (DW.10) after doing his post-graduation he wanted to
come in 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. [Para 43]
7. It is also trite law that when both the parties have adduced
evidence and that too is in reference to a common question and
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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. 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. [Paras 46 and 47][432-F-G; 433-A-B]
8. 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. 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. [Para 48][434-H; 435-A-D]
9. 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 (DW-5) submitted an
application for the first time on 17th January, 2015, claiming that
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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 the considered view of this Court, no
probative value could have been attached to it. [Para 49][435-DF]
Brij Mohan Singh v. Priya Brat Narain Sinha and
Others [1965] 3 SCR 861; Joshna Gouda v. Brundaban
Gouda and Another (2012) 5 SCC 634 : [2012] 1
SCR 464; Birad Mal Singhvi v. Anand Purohit (1988)
Supp. SCC 604 : [1988] 2 Suppl. SCR 1; Sushil Kumar
v. Rakesh Kumar (2003) 8 SCC 673 : [2003] 4 Suppl.
SCR 802; Rakesh Kumar v. Sunil Kumar (1999) 2 SCC
489 : [1999] 1 SCR 470; Updesh Kumar and Others v.
Prithvi Singh and Others (2001) 2 SCC 524 : [2001] 1
SCR 454; State of Punjab v. Mohinder Singh (2005) 3
SCC 702 : [2005] 2 SCR 758; Vishnu alias Undrya v.
State of Maharashtra (2006) 1 SCC 283 : [2005] 5
Suppl. SCR 474; Satpal Singh v. State of Haryana
(2010) 8 SCC 714 : [2010] 9 SCR 50 and Uttamrao
Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil
(2009) 13 SCC 131 : [2009] 9 SCR 538 - referred to.
per B.V Nagarathna, J. (Concurring)
1. 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 probation 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
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has been able to discharge his burden. However, the above rule
is subject to the general principle that things admitted need not
be proved. 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. Burden to prove
documents lie on plaintiff alone as onus is always on the person
asserting a proposition or fact which is not self-evident. [Paras
12.2, 12.3, and 12.4][447-E-H; 448-A-B]
2. Also, 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. [Para 12.5][448-D-E]
3. 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
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lies on the respondent to prove facts within his special knowledge.
[Para 12.10][449-C-E]
4. 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. 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 self-attested 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. [Para 13.5][453-E-H; 454-A-B]
5. Birth certificate dated 21.01.2015 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
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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/. Therefore,
the Nagar Nigam, Lucknow, had no jurisdiction to register the
birth of the successful candidate after twenty five 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 Sub-Divisional 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. The birth
certificate (Ex. P2 Paper No. A63/ 1) issued by the Nagar Nigam,
Lucknow, on 21.01.2015 was null and void. [Para 15.4][460-D-H]
6. 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. In the absence of
any explanation as to why the relevant birth list, forming the basis
of the entry in the birth register, was not available to be produced
before the Court, no evidentiary value can be attached to the
birth register. Consequently, 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. [Para
15.13][463-A-C]
7. 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. 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. [Para 15.14][463-C-E]
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI
KHAN
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8. Entries pertaining to the birth of the successful candidate,
in the Emergency O.T.(E.O.T.) and Maternity Labour Room
(M.L.R.) registers were mired with discrepancies, overwriting
and factual inaccuracies. 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. [Para
16.18][468-F-H]
9. An ossification test cannot 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.
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. In
that background, 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 twenty six years
at the relevant time, cannot be accepted as conclusive proof of
his age and the same would not hold any water. [Paras 17.2 and
17.3][469-G-H; 470-A-D]
10.1. The appellant-successful candidate was not born on
30.09.1990 and was not twenty-five 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 DW-5 at an undisputed point of time and which is part of her
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Service Book which is adduced as evidence at the behest of the
appellant-successful 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.
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 respondent-election petitioner. In
fact, the appellant-successful 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. [Para 20][479-A-F]
10.2. 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. [Para 20][479-G-H]
10.3. Further, on a perusal of the E.O.T. and M.L.R.
registers, it is clear that the same are mired with discrepancies,
over-writing and factual inaccuracies and the same cannot be
ignored. Therefore, 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. [Para
20][480-A-C]
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI
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10.4. No weight can be placed 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. [Para 20][480-C-D]
10.5. The Aadhar card, driver's licence and voter ID of the
appellant-successful candidate, 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. [Para 20][480-D-E]
Brij Mohan Singh v. Priya Brat Narain Sinha and Ors.
A.I.R. 1965 SC 282 : [1965] 3 SCR 861; Birad Mal
Singhvi v. Anand Purohit A.I.R. 1988 SC 1796 : [1988]
2 Suppl. SCR 1; Joshna Gouda vs. Brundaban Gouda
(2012) 5 SCC 634 : [2012] 1 SCR 464 and Narender
Singh v. Mala Ram and Ors. (1999) 8 SCC 198 -
distinguished.
Mukarrab and others v. State of U.P. (2017) 2 SCC
210 : [2016] 8 SCR 557; RVE Venkatachala Gounder
v. Arulmigu Viswesaraswami and VP Temple AIR 2003
SC 4548 : (2003) 8 SCC 752: [2003] 4 Suppl.
SCR 450 and National Insurance Co. Ltd. v. Rattani
(2009) 2 SCC 75 : [2008] 17 SCR 1251 - relied on.
P.C. Purushothama Reddiar v. S. Perumal (1972) 1 SCC
9 : [1972] 2 SCR 646; Ram Singh v. Col. Ram Singh
1985 (Supp.) SCC 611 : [1985] 2 Suppl. SCR 399;
Thiru John v. Returning Officer (1977) 3 SCC 540 :
[1977] 3 SCR 538; Kalwa Devadattam v. Union A.I.R.
1964 SC 880 : [1964] 3 SCR 191; Sushil Kumar vs.
Rakesh Kumar (2003) 8 SCC 673 : [2003] 4 Suppl.
SCR 802 Rani Chandra Kunwar v. Chaudhari Narpat
Singh and Ors. (1906) SCC OnLine PC 26 and Robins
v. National Trust Company 1927 AC 515 - referred to.
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Case Law Reference
In the judgment of Rastogi, J.
[1999] 1 SCR 470
referred to
Para 12
[2009] 9 SCR 538
referred to
Para 12
[1965] 3 SCR 861
referred to
Para 14
[1988] 2 Suppl. SCR 1
referred to
Para 14
[2012] 1 SCR 464
referred to
Para 14
[2003] 4 Suppl. SCR 802
referred to
Para 14
[2001] 1 SCR 454
referred to
Para 42
[2005] 2 SCR 758
referred to
Para 42
[2005] 5 Suppl. SCR 474
referred to
Para 42
[2010] 9 SCR 50
referred to
Para 42
In the judgment of Nagarathna, J.
[1988] 2 Suppl. SCR 1
distinguished
Para 8.8
[2003] 4 Suppl. SCR 802
referred to
Para 8.8
[2012] 1 SCR 464
distinguished
Para 8.8
[1965] 3 SCR 861
distinguished
Para 8.9
[1972] 2 SCR 646
referred to
Para 9.7
[2016] 8 SCR 557
relied on
Para 9.10
[2008] 17 SCR 1251
relied on
Para12.3
[2003] 4 Suppl. SCR 450
relied on
Para 12.5
[1964] 3 SCR 191
referred to
Para 12.7
[1977] 3 SCR 538
referred to
Para 12.12
(1999) 8 SCC 198
distinguished
Para 12.13
[1985] 2 Suppl. SCR 399
referred to
Para 12.13
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI
KHAN
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CIVIL APPELLATE JURISDICTION: Civil Appeal No.104 of
2020.
From the Judgment and Order dated 16.12.2019 of the High Court
of Judicature at Allahabad, UP in Election Petition No.8 of 2017.
Kapil Sibal, Sr. Adv., M. Nizam Pasha, Zubair Khan, Aditya
Samaddar, Ms. Rupali, Samuel, Yojit Singh, Kamal Mohan Gupta, Advs.
for the Appellant.
Aadil Singh Boparai, Harsh Andani, Gurlabh S. Bhaika Sindhu,
Sumer Singh Boparai, Tushar Aggarwal, Sidhant Saraswat, Amarjeet
Singh, Pratik Ahuja, B.N. Dubey, Kumar Gaurav, Ms. Ritu Reniwal,
Vishal Kumar Singh, Robin Khokhar, Ashok K. Mahajan, Advs. for the
Respondent.
The Judgments of the Court were delivered by
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 afore-stated
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
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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
filled-up the admission form and examination form, and in
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI
KHAN [AJAY RASTOGI, J.]
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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 (Class-X) 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 (Class-X) results, 2007 of the appellant
(Mohd. Abdullah Azam Khan) is 01.01.1993. A copy of the
certificate of Secondary School Examination (Class-X)
results of the appellant (Mohd. Abdullah Azam Khan)
obtained from the Central Board of Secondary Education
is enclosed and marked as Annexure-4 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 filled-up 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.
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7.