Supreme Court of India
MOHD. ABDULLAH AZAM KHANversusNAWAB KAZIM ALI KHAN
- Citation
- 2022 INSC 1178
- Decided
- 7 November 2022
- Disposal
- Dismissed
- Bench
- AJAY RASTOGI
Holding
The appellant was not born on 30‑09‑1990, was under 25 at the relevant dates, and his election was void.
Summary
The appellant, Mohd. Abdullah Azam Khan, was elected to the Uttar Pradesh Legislative Assembly in 2017, but the election petitioner challenged his eligibility on the ground that he was under 25 years of age at the time of filing his nomination. The dispute centered on conflicting birth dates shown in two birth certificates—one dated 01‑01‑1993 issued by Nagar Palika, Rampur, and another dated 30‑09‑1990 issued by Nagar Nigam, Lucknow—along with school records, passports, and hospital registers. The Supreme Court examined the burden of proof under Sections 101‑106 of the Evidence Act, concluding that facts especially within a party’s knowledge must be proved by that party, and that public documents issued by competent authorities have probative value under Section 35. The Court found the later birth certificate and related hospital records unreliable, rejected the ossification test as conclusive proof, and held that the appellant failed to prove the 1990 birth date. Consequently, the Court affirmed the High Court’s decision that the appellant was ineligible and set aside his election.
Issues considered
- Whether the appellant satisfied the age qualification of 25 years under Article 173(b) of the Constitution and Section 36(2) of the Representation of People Act, 1951.
- What is the appropriate allocation of the burden of proof in an election petition concerning the age of a returned candidate.
- The evidentiary value of the two conflicting birth certificates, school records, passports, and hospital registers under the Indian Evidence Act.
- Whether the birth certificate issued by Nagar Nigam, Lucknow, complied with the procedural requirements of the Registration of Births and Deaths Act, 1969 and the U.P. Registration Rules.
- The relevance and weight of an ossification test and identity documents such as Aadhar, voter ID, and driving licence in determining the appellant’s date of birth.
Legislation cited
- Constitution of Indias. 173(b)
- Indian Evidence Act, 1872s. 101, s. 102, s. 103, s. 105, s. 106, s. 21, s. 35, s. 58, s. 91
- Registration of Births and Deaths Act, 1969s. 13(3)
- Representation of People Act, 1951s. 15, s. 36(2)
- U.P. Registration of Birth and Death Rules, 2002s. 9
Subjects
election petitionage qualificationArticle 173(b)burden of proofIndian Evidence Actbirth certificateRegistration of Births and Deaths Actossification testpublic documentselectoral law
Judgment
[2022] 12 S.C.R. 391 391
MOHD. ABDULLAH AZAM KHAN A
v.
NAWAB KAZIM ALI KHAN
(Civil Appeal No. 104 of 2020)
NOVEMBER 07, 2022 B
[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
C
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 D
elected from the Suar constituency, District Rampur – Respondent-
election 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,
E
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 F
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
G
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 H
391
392 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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 21 st
January, 2015 – No probative value could have been attached to
C documentary evidence obtained from the Queen Mary’s Hospital,
Lucknow, as a foundation on which the birth certificate was issued
on 21 st 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
D
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
E 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
F
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
G 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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MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 393
KHAN
Registration of the Birth and Death Rules, 2002 – r.9 – A
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 – B
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 C
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 D
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. E
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 F
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 G
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
H
394 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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.
C 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
D 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
E 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
F 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
G 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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MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 395
KHAN
within the knowledge of a person. It is true that it cannot apply A
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
B
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][416-
G-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 C
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 D
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 E
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-E-
G] F
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 G
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
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396 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B 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]
C
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]
D
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
E 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
F 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
G 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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MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 397
KHAN
particularly for determination of age, which is the subject matter A
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
B
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, C
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 D
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 E
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, F
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 G
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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398 SUPREME COURT REPORTS [2022] 12 S.C.R.
A the appellant was born on 30 th September 1990, and birth
certificate may be immediately issued to her and within three
days, birth certificate was issued by the Nagar Nigam, Lucknow
on 21 st January, 2015. In support thereof, the documentary
evidence which the appellant has placed on record obtained from
the Queen Mary’s Hospital, Lucknow, as a foundation on which
B
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-D-
F]
Brij Mohan Singh v. Priya Brat Narain Sinha and
C 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.
D 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
E 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)
F
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
G 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
H to examine as to whether the person upon whom the burden lies
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 399
KHAN
has been able to discharge his burden. However, the above rule A
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
B
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] C
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 D
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] 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 F
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 G
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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400 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 401
KHAN
Birth and Death Rules, 2002, provided that any birth or death A
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
B
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, C
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 D
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 E
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 F
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 G
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]
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402 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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]
G 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
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 403
KHAN
Service Book which is adduced as evidence at the behest of the A
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
B
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 C
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
D
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 E
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, F
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 G
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]
H
404 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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]
B
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
C 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
D (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
E 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
F 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.
G 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.
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 405
KHAN
Case Law Reference A
In the judgment of Rastogi, J.
[1999] 1 SCR 470 referred to Para 12
[2009] 9 SCR 538 referred to Para 12
B
[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 C
[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
D
[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 E
[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
F
[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
G
[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
H
406 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B 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,
C Vishal Kumar Singh, Robin Khokhar, Ashok K. Mahajan, Advs. for the
Respondent.
The Judgments of the Court were delivered by
RASTOGI, J.
D 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.
E
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
F 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.
G 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
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 407
KHAN [AJAY RASTOGI, J.]
Article 173(b) of the Constitution. The objection was overruled by the A
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.
B
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 C
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 D
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 E
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, F
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, G
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 H
408 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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.
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 409
KHAN [AJAY RASTOGI, J.]
7. Thereafter, in his Master’s degree which he passed out from A
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 B
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 in-charge, documentary evidence has been created by him in
the year 2015, which was thereafter made to be the basis and foundation C
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 D
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 E
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 F
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, G
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, H
410 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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.
C 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,
D 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
E 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
F papers as reflected under para 6 of Chapter VI of the Handbook of
Returning Officers, as held by a Three-Judge Bench of this Court in
Rakesh Kumar v.Sunil Kumar 1 (para 18) and later considered in
Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil 2 (paras
35, 40 and 44) and further submits that the school/academic records on
which reliance was placed by the election petitioner/respondent and of
G 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
1
(1999) 2 SCC 489
2
H (2009) 13 SCC 131
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 411
KHAN [AJAY RASTOGI, J.]
and that can be reflected from the written statement filed by the appellant A
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
B
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.
13. To support it further, learned counsel submits that once the
contents of the document pertaining to the appellant were disputed
C
specifically in his written statement, the burden was on the election
petitioner to prove that the date of birth of the appellant was 1 st January,
1993 to which no efforts were made and the premise on which the High
Court has proceeded to shift the burden of proof on the appellant is in
disregard to the principles of the Evidence Act and the fact as alleged is
to be proved by the person who pleads under the Evidence Act and D
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 E
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.
F
(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
G
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.
H
412 SUPREME COURT REPORTS [2022] 12 S.C.R.
A (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.
B (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.
C (vi) The appellant’s mother (DW.5) in her affidavit in
examination-in-chief 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
D
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
E 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
F
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
G
the admission of the appellant in the school in 1995.
(viii) It was further submitted that in the absence of any cross-
examination of either of the defence witness or the
documents placed on record which are public records stands
proved in terms of Section 35 of the Evidence Act and further
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 413
KHAN [AJAY RASTOGI, J.]
corroborated by the testimony of DW.5 by her service book, A
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 B
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.
C
(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 D
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, E
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. F
(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 G
of birth and on a balance of probabilities, it cannot be given
pre-eminence 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 H
414 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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)
B 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
C 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,
D 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
E Sinha and Others3, 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.
F 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
G 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,
3
(1965) 3 SCR 861
4
(1988) Supp. SCC 604
H 5
(2012) 5 SCC 634
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 415
KHAN [AJAY RASTOGI, J.]
being less than 25 years of age in view of Article 173(b) of the Constitution A
on the date when nomination papers were filled or the date of declaration
of result and made the following submissions:
(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 B
August, 2006 and original Birth Certificate issued on 28th
June, 2012 by Nagar Palika, Rampur and his self-filled
passport application of the year 2006 and all these
documents reflect the date of birth of the appellant as 1st
January, 1993.
C
(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 D
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, E
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 F
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 G
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
6
(2003) 8 SCC 673 H
416 SUPREME COURT REPORTS [2022] 12 S.C.R.
A and taking assistance thereof submitted that the finding of
fact returned by the High Court is based on due appreciation
attached to its 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
B
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
C 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
D 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
E 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 well-established dictum of the Evidence Act that
misplacing the burden of proof vitiates the judgment. At the same time,
F 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
G knowledge of a party, the burden of proving it lies upon that party. The
term “especially” means facts which are pre-eminently or exceptionally
within the knowledge of a person. It is true that it cannot apply when the
fact is such as to be 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
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 417
KHAN [AJAY RASTOGI, J.]
and circumstances of the act suggest, the burden of proving the intention A
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 B
(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 C
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 D
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 E
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 F
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
G
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
H
418 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B 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
C 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:-
D Petitioner’s evidences:
E
F
G
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 419
KHAN [AJAY RASTOGI, J.]
A
B
C
D
E
F
G
H
420 SUPREME COURT REPORTS [2022] 12 S.C.R.
A
B
C
Oral evidence of Election-petitioner:
D P.W. 1- Kazim Ali Khan (Election-petitioner)
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
E
Defendant’s/respondent’s Evidences.
Documentary Evidence.
F
G
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 421
KHAN [AJAY RASTOGI, J.]
A
B
C
D
E
F
G
H
422 SUPREME COURT REPORTS [2022] 12 S.C.R.
A R12 A-96/1-5 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
B 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
C 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
D 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:
E 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
F (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)
G D.W.-6 - Dr. Vandana Sharma - Principal RajkiyaMahila 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,
H Rampur.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 423
KHAN [AJAY RASTOGI, J.]
D.W.-9 - Shahzeb Khan, friend of father of the respondent. A
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 B
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
C
(c) Date of withdrawal of nomination 30th January, 2017
(d) Date of allotment of symbols 1st February, 2017
(e) Date of Poll 15th February, 2017
(f) Date of counting 11th March, 2017
D
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 E
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.
F
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:
G
Following documentary evidences, record birth year of the
appellant to be the year 1993 (01.01.1993):—
(i) Ex. P4 - paper No. A-25/1 - Copy of secondary school
examination Class 10th result 2007 issued by Central Board of
Secondary Education.
H
424 SUPREME COURT REPORTS [2022] 12 S.C.R.
A (ii) Ex. P1 - paper No. A-52/2-3, 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. A-51/1 - copy of birth certificate No. 3857
of the appellant issued by Nagar Palika Parishad, Rampur, showing
B date of birth of the appellant as 01.01.1993 and date of Registration
28.06.2012.
(iv) Ex. P1 - paper No. A-49/1-4, 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.
C
(v) Ex. P-1 - paper No. 53/1, Pass port preview details of
appellant’s pass port No. K-7951741, dated 13.07.2012 and Ex.
P-2 - paper No. A62/1-3, copy of appellant’s pass port No. K-
7951741, dated 13.07.2012 bearing date of birth as 01.01.1993
and entries of departure/arrival dated 30.04.2013, 05.05.2013,
D 09.06.2015 and 26.07.2016 and Visa dated 09.07.2014 all
mentioning date of birth as 01.01.1993.
(vi) Ex.R-11 (Paper No. A95/1-34) 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
E 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
F 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
G documentary evidence placed on record is 1st January, 1993, at the same
time made a specific averment in his examination-in-chief 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.
H Further, the official documents issued prior to the year 2015 consistently
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 425
KHAN [AJAY RASTOGI, J.]
indicate his date of birth as 1st January, 1993 and that is also elicited A
from his cross-examination.
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 B
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 C
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 examination-
in-chief deposed that all registers and other records related to birth
certificate No.3857 dated 28th June, 2012 of the appellant have been D
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. E
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. A-80/1) by F
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 G
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 H
426 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
Secondary School Examination, followed with his passport of the year
2006 and his certificate of birth issued by Nagar Palika, Rampur with
registration No.RNPB2012-03857 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
C 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 1st January, 1993 and after
D
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
E (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
F 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
G DW.5 who was a Lecturer in a Postgraduate College and retired in
2009, in her cross-examination deposed that her son (the appellant) after
doing his M.Tech became active in politics in the year 2015 and at this
time she proceeded for issuance of a birth certificate from Nagar Nigam,
Lucknow and submitted application on 17th January, 2015 (Ex.A-96/1-
H 5).
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 427
KHAN [AJAY RASTOGI, J.]
31. It is curious to note that the request made by her was addressed A
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
B
birth certificate was issued by Nagar Nigam, Lucknowon 21 st January,
2015 (Ex.A-96/3) indicating his date of birth as 30 th September, 1990,
which could not have been ordinarily possible to obtain by the common
man.
32. It is sufficient to note that there was no documentary evidence
obtained from Queen Mary’s Hospital, Lucknow, prior to the application C
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 D
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 E
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 F
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 G
a basis in the year 2015 to seek a duplicate birth certificate of 30 th
September, 1990. To make it further clear, the duplicate birth certificate
was issued by Queen Mary’s Hospital on 21st April, 2015 (Ex.A-37)
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 H
428 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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.
B 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
C 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 cross-examination that in all
D 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 cross-examination 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
E is wrongly recorded in his school records, but neither the appellant nor
mother-DW.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,
F 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 examination-in-chief 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
cross-examination, his only statement was that although these documents
G 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 cross-examination
H and a statement was made in his cross-examination that his date of birth
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 429
KHAN [AJAY RASTOGI, J.]
either in his birth certificate dated 28th June, 2012 or in passport wherever A
recorded of 1st January, 1993 at a later stage was cancelled and has
made a completely evasive answer in his cross-examination. To support
in evidence, the appellant has produced three basic documents, EOT
register (R-4), MLR register (R-5) and discharge ticket of Indoor Patient.
Dr. Tazeen Fatima, DW.5 (R-7)and the oral evidence of Prof. Vineeta
B
Das, HoD, Obst. & Gyno. (DW.4), Dr. Uma Singh, Sr. Gynaecologist
(DW.3) who produced all the registers relating to Queen Mary’s Hospital,
Lucknow, of the relevant period of the year 1990, when put to cross-
examination, reference to the EOT register and particularly to page 174,
the question put to her whether entry 174 of EOT register Annual No,5097
carry any overwriting on the particular entry, she admitted that yes, C
overwriting has been done and which can be seen in column no.3 of it.
In a further question put to her in the cross-examination 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 D
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 so-called official record
of the hospital is as under:
(a) Whether you can say confidently that the information of E
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
F
of EOT register Annual No.5097 carried along by you
that any overwriting has been done in this or not?
Ans. : Yes, overwriting has been done in it. Overwriting is seen
in column no.3 of it.
(c) Whether you can tell by seeing the description in column G
no.16 of above register that whether it matches with the
information mentioned in rest of the column of above
register?
Ans.: No
H
430 SUPREME COURT REPORTS [2022] 12 S.C.R.
A (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.
B (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
C
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
D 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.
E 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.
F 39. At the same time, so far as the register of the Nagar Nigam,
Lucknow (Ex.R-12) which has been produced by DW.2 Dr. Archan
Dwivedi, she appears to have completely surrendered in cross-
examination in support of the documents placed by her. Few of the
questions put to her in cross examination to produce the register of
G 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?
H Ans.: Yes.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 431
KHAN [AJAY RASTOGI, J.]
(b) Above papers were shown again and asked that can you A
see this and till that what is date of registration of birth of
the respondent mentioned therein?
Ans.: In column number 3 of this paper date of birth registration
is 21.01.2015.
(c) After how many days the birth certificate is being issued B
after the related entries made in birth register?
Ans.: When the applicant gives a request letter thereafter the
birth certificate is issued. Birth registration is done
immediately after receiving of birth list from the hospital.
C
(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 D
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.
E
Apart from the said documents, we have looked into the extract copies
of the birth register maintained by the Nagar Nigam, Lucknow (Ex.R-
12). 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 30 th F
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
G
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, H
432 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B 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
C that the burden of proof becomes immaterial at the given point of time
the document made ante litem motamcan 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 Kumarand Others v. Prithvi Singh and
Others 7 , State of Punjab v. Mohinder Singh 8 , Vishnu alias
D Undrya v. State of Maharashtra 9 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
E 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
F 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 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
G Nagar Nigam, Lucknow for obtaining the birth certificate of the appellant
based on Queen Mary’s Hospital, Lucknow and the fact is that no
7
(2001) 2 SCC 524
8
(2005) 3 SCC 702
9
(2006) 1 SCC 283
H 10
(2010) 8 SCC 714
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 433
KHAN [AJAY RASTOGI, J.]
documentary evidence was supported along with the application, except A
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
B
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 C
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
D
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 E
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 F
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, G
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 H
434 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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 :
B
“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. 684-85, para 32)
C “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
D 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
E (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
F 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
G 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
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 435
KHAN [AJAY RASTOGI, J.]
delayed registration of birth and death are permissible provided a 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
B
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 C
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
D
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 (DW-5) submitted an application for the first time on 17th
January, 2015, claiming that the appellant was born on 30thSeptember E
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 F
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 exten so, we
find that no manifest error was committed by the High Court in passing G
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.
H
436 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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.
B 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
C from the 34-Suar 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
D 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),
E notifying the election of Uttar Pradesh State Legislative Assembly, inter-
alia, 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
F 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 34-Suar Constituency, District Rampur,
Uttar Pradesh. Subsequently, the election petitioner, namely, Nawab
Kazim Ali Khan, filed an objection before the Returning Officer,
G
challenging the successful candidate’s nomination on the ground that he
had not attained the age of twenty-five 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
H daily, Dainik Jagran Amar Ujala on 28.01.2017.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 437
KHAN [B. V. NAGARATHNA, J.]
3.3. By order dated 30.01.2017, the Returning Officer rejected A
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 twenty-six 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
B
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 twenty-six years.
Consequent to the rejection of the objections raised by the election
petitioner and on the basis of the documents submitted and details C
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 34- D
Suar 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 E
Uttar Pradesh Legislative Assembly be declared as null and void, for
non-compliance 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: F
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 twenty-
five years of age, both, as on the date of scrutiny of the G
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.
H
438 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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
C 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
D 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
E 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,
F Lucknow, and not on 01.01.1993 as alleged by the election
petitioner. Therefore, he was above the age of twenty-five
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
G 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
H there was no defect of a substantial nature in the successful
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 439
KHAN [B. V. NAGARATHNA, J.]
candidate’s nomination paper and accompanying A
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 B
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. C
(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 D
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 E
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 twenty-five years of age, whereas, according to
his new pan card he was twenty-six years of age.
(C) Further, the successful candidate had opened a bank account
F
no. 34341386006 in State Bank of India with Pan Card No.
DFOPK6164K wherein his date of birth in the bank account
was recorded as 01.01.1993. That the successful candidate
had two pan cards and had not disclosed his correct income
while contesting the legislative assembly elections.
Evidence: G
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 PW-1 -
PW-4 witnesses. The election petitioner got marked Exhibit P-1 to P-4
documents. H
440 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 7.2. The successful candidate let in oral evidence through DW-1
- DW-10 witnesses. The successful candidate got marked Exb. No.-
R1-R12 documents.
7.3. On the basis of oral and documentary evidence on record,
High Court allowed the Election Petition filed by the election petitioner
B herein and set aside the election of the successful candidate/appellant
herein in respect of 34-Suar Constituency, District Rampur, held in the
year 2017. Being aggrieved successful candidate has preferred this
appeal.
Submissions:
C 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 appellant-successful candidate
D 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
E understanding of the fact in issue. That the appellant-successful candidate,
at the time of filing his nomination as well on the date of polling, had
completed the age of twenty-five 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
F 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.
G 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 (DW-5) and the doctor (DW-3)
who delivered the successful candidate. That the law of evidence
requires that direct and primary evidence, if available, must be given
H for proof of a fact and such evidence would be the best evidence of
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 441
KHAN [B. V. NAGARATHNA, J.]
such fact. This foundational rule is reflected, inter-alia, in Sections 59 A
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.
B
8.4. It was vehemently contended that DW-5’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 C
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 DW-3, namely, Dr. Uma D
Singh, who is stated to be the doctor who enabled the delivery of the
successful candidate, it was submitted that the statements made by DW-
3, when considered together with the hospital records, conclusively
establish that the successful candidate was born on 30.09.1990. That
DW-3 was one such witness, who was connected with the successful
candidate’s birth in a manner as would enable her to vouchsafe the truth E
as to the date of birth of the successful candidate. That the High Court
committed a grave error in disregarding the evidence of DW-3 on the
sole ground that she stated that she was unable to say with certainty that
the baby born to DW-5 on 30.09.1990, was in fact, the successful
candidate. That to expect DW-3 to make such an assertion, was an F
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 G
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.
H
442 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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 DW-4, 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 DW-3 and
C 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
D probabilities, be given pre-eminence 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.
E
8.9. It was further submitted that the error in the school records
had been sufficiently explained by DW-5, as well as DW-9, 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
F 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
G 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
H 01.01.1993.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 443
KHAN [B. V. NAGARATHNA, J.]
8.11. On the basis of the aforesaid submissions, it was asserted A
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
B
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. C
9. The submissions on behalf of the learned counsel for respondent-
election 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 D
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 E
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 twenty-
five 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 F
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 G
recorded in the Class-X mark-sheet 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
H
444 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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.
B 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 cross-examination had
stated that the process of cancellation was initiated in the year 2018,
C
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.
D
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
E 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
F
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
G
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.
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 445
KHAN [B. V. NAGARATHNA, J.]
9.7. Learned counsel for the election petitioner referred to the A
GIS (Group Insurance Scheme) Nomination form in the service book
(Ex. R-11 Paper No. A-95/25) of the successful candidate’s mother,
which was proved in evidence by DW-1- 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
B
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 DW-5 – Dr.
Tazeen Fatima in her cross-examination. However, she did not offer C
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
D
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. R-4 Paper No.
A-100/1-2) and the M.L.R. Register (Ex. R-5 Paper No. A-101/1-2)
adduced as evidence by the successful candidate, were neither
E
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 DW-3, Dr. Uma Singh, in her cross-examination and
more importantly, D.W.3 also stated that she could not confirm that the
successful candidate was born on 30.09.1990. F
9.9. It was next contended that the Birth Certificate issued by the
Nagar Nigam, Lucknow, wherein the date of birth of the successful
candidate was shown as 30.09.1990, was based on a purported entry in
the birth register (Ex. R-12 A 96/4-5) which was tendered as evidence
by DW-2, Dr. Archana Dwivedi, Additional Municipal Commissioner, G
Nagar Nigam, Lucknow and the said entry was as a result of manipulation
of the public records. That DW-2 in her cross-examination 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
H
446 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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, DW-2 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
B
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
C
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
D counsel for the election petitioner referred to the testimony of DW-8,
Dr. Satbir Singh Ken, who, in his cross-examination 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
E 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
F state unless he is, in the case of seat in the legislative assembly, not less
than twenty-five 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
G 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
H candidate to the office of Member of Legislative
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 447
KHAN [B. V. NAGARATHNA, J.]
Assembly, from 34-Suar Constituency, District Rampur, A
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? B
11. The narration of facts and contentions would not call for
reiteration except stating that the successful candidate is aggrieved by
his election to the Legislative Assembly vis-à-vis 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. C
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 D
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. E
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 F
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 G
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, H
448 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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.
B 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 self-
evident. 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 self-evident
that he had been born. But to assert that he had been born on a certain
C 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
D 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
E 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 (4558-59): (2003) 8 SCC 752.
F 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.
G 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,
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 449
KHAN [B. V. NAGARATHNA, J.]
unless it is provided by any law that the proof of that fact shall lie on any A
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
B
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.
C
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 D
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 E
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 F
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.
G
[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
H
450 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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
C 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
D Birad Mal Singhvi (supra) and it was observed that in the absence of
primary material on the basis whereof the age was recorded, it would
not be possible to accept the evidence produced therein. While examining
the admission register of the school relied upon by the successful candidate
therein, it was observed that entries in the said register had been made
by one person with two different pens in one sitting. Also, there were
E 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
F 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
G was not trustworthy. Further, the horoscope filed by the respondent in
the said case did not inspire confidence. Further, DW-2 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
H for any purpose whatsoever. Also, an application was filed on behalf of
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 451
KHAN [B. V. NAGARATHNA, J.]
the respondent therein in respect to the occurrence which took place in A
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 twenty-five 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 B
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 C
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 :
D
“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 E
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 F
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 G
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
H
452 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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.
C i) Re: Passports and Visas of the appellant-successful
candidate:
13. The election petitioner adduced Ex. P-1 and P-3 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
D 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
E 2006 and 2012 (Ex. P-1 – Paper No. A- 49/1-4) 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.
F 13.2. PW-2, 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. K-7951741 which was issued to him
on 13.07.2012 from Bareilly Passport Office. PW-2 deposed that the
successful candidate had annexed a copy of his birth certificate issued
G
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. F-8757022 issued on 28.08.2006 which
was valid till 31.12.2010. To a question whether self-attested copies of
H documents submitted by an applicant are maintained in the records,
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 453
KHAN [B. V. NAGARATHNA, J.]
PW-2 deposed that original copies are returned and self-attested copies A
are scanned.
13.3. When a question was posed as to whether by modifying
the particular entry of date of birth in the successful candidate’s old
Passport No. K-7951741, a new Passport No. Z-4307442 after
mentioning his date of birth as 30.09.1990 was issued to him on B
10.01.2018, PW-2 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. K-7951741 and if
after that a new Passport No. Z-4307442 was issued, he would have
to check from the system. That he would be able to present records C
pertaining to Passport No. Z-4307442 on the next date fixed by the
Court, if the same had in fact been issued.
13.4. Further, on perusal of Ex. P-1, paper No. A-49/1-4, 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 D
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. E
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 F
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 G
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 H
454 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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
C 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
D 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.
E 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. 2012-03857, 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.
F That such documents were available only in a computer-generated form
and a copy of Birth Certificate No. 3857, Register No. R.N.P.B. 2012-
03857, 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
G 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
H strange that a birth certificate pertaining to the year 1993, was destroyed
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 455
KHAN [B. V. NAGARATHNA, J.]
in the year 2015 under peculiar circumstances, at a time when the A
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
B
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 2012-03857 to the Nagar
Palika Parishad, Rampur and on the same date, birth certificate was C
issued to the successful candidate showing the date of birth as “01-Jan-
1993”. The place of birth was shown as ^^?ksj eht ckt [kk] tsy jksM] jkeiqj**.
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 D
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
E
born at Rampur and the birth certificate clearly indicates that he was
born on 01.01.1993. Subsequently, the said birth certificate was cancelled.
PW-4 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 F
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. A-25/1) 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. G
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. H
456 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
(DW-9) 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
B
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.
C 14.2. In this regard, D.W.-5 mother of the successful candidate
deposed that her family friend Shahzeb Khan (DW-9) 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
D was born on 30.09.1990 and the date of birth mentioned in his educational
record was incorrect. DW-5 was asked if she knew that her son-the
successful candidate had mentioned his date of birth in Class X, Class
XII, under graduate degree and post graduate degree as 01.01.1993.
DW-5 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
E 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 Class-X Certificate. Therefore, an application was made to the
Principal, St. Paul School Rampur, to correct the date of birth as per the
school records.
F 14.3. DW-9, 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. DW-9 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
G successful candidate enrolled in Nursery class and put his date of birth
as 01.01.1993 in the admission form and asked DW-9 to sign it and DW-
9 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
H educational records, would not aid the successful candidate’s case.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 457
KHAN [B. V. NAGARATHNA, J.]
Further, it is to be noted that DW-5-Tazeen Fatima in Paragraph A
12 of her Examination-in-Chief and the successful candidate in Paragraph
53 of his written statement had stated that DW-9- 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.
B
However, DW-9- Shahzeb Khan, in Paragraph 5 of his Examination-in-
Chief 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 DW-5 or DW-7 in this
regard as they are inconsistent with each other.
C
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 over-aged for D
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
E
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 F
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 G
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 DW-7 to make the necessary changes.
He in turn forwarded the letter dated 23.03.2015 to the Regional Office,
H
458 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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,
DW-7 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
C 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
D 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 – DW-5 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
E
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
F 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
G 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 DW-7 in his request made to the C.B.S.E. relied
on the entry made in the register of birth and death and the Birth
Certificate provided by the Hospital, it is necessary to examine whether
the said register and the hospital records were genuine and can be relied
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 459
KHAN [B. V. NAGARATHNA, J.]
upon. Accordingly, such questions are examined in the following section A
of the analysis.
iii) Re: Whether the Birth Certificate bearing Registration
No. NNLKO-B-2015-292611 issued on 21.01.2015 by
the Nagar Nigam, Lucknow, was a valid piece of
evidence? B
15. To ascertain the validity of the birth certificate bearing
Registration No. NNLKO-B-2015-292611 issued on 21.01.2015 by the
Nagar Nigam, Lucknow, the High Court placed reliance on the following
documents: a) (Ex. R-12 A-96/1-5), b) (Ex. R-12 A-96/3), c) (Ex. 12
Paper No. A-96/4-5) C
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 DW-2, it is observed that the file merely contained an
application and an affidavit (Ex. R-12 A-96/1-5) dated 17.01.2015 made
by the successful candidate’s mother to the City Health Officer, Nagar D
Nigam, Lucknow, for the issuance of a birth certificate and a computer
generated sheet (Ex. R-12 A-96/3) which contained particulars of
registration of birth of the successful candidate.
15.2. The High Court further noted that the birth register (Ex. 12
Paper No. A-96/4-5) adduced by DW-2 was neither authenticated nor E
certified by any competent officer and was not even paginated. That
DW-2 in her cross-examination 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
F
paginated and the entry of the name of the successful candidate’s mother
was not made in a chronological order. DW-2 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 afore-stated oral and documentary evidence,
the High Court held that the Birth Register (Ex. 12 Paper No. A-96/4-5) G
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 H
460 SUPREME COURT REPORTS [2022] 12 S.C.R.
A of the Nagar Nigam, Lucknow, or the Sub-Divisional 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. R-12 A-96/
B 1-5) dated 17.01.2015 made by Dr. Tazeen Fatima (DW-5), 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. P-3 Paper
No. A-80/1) issued by the Nagar Palika Parishad, Rampur, existed and
was subsequently cancelled on 30.01.2015.
C
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
twenty-five (25) years of the birth of the successful candidate and the
same was endorsed by an officer of the Nagar Nigam, Lucknow, on
D
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
E 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
F 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 twenty-five years from the
date on which he was stated to be born by the issuance of the Birth
G Certificate on 21.01.2015 (Ex. P-2 Paper No. A-63/1) 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. In fine, it is held that the birth certificate (Ex. P-2
Paper No. A-63/1) issued by the Nagar Nigam, Lucknow, on 21.01.2015
H was null and void.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 461
KHAN [B. V. NAGARATHNA, J.]
15.5. From the impugned judgment, it is further noted that the A
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
B
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 (DW-5), mother of the C
successful candidate and by DW-10- the successful candidate, was false
and wholly untrustworthy.
15.6. In order to ascertain the validity of the Birth Certificate
bearing Registration No. NNLKO-B-2015-292611 issued on 21.01.2015
by the Nagar Nigam, Lucknow, regard must be had to the request letter D
addressed by the mother of the successful candidate - DW-5 – 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. E
15.7. DW-2 Dr. Archana Dwivedi, Additional Principal
Commissioner, Lucknow, deposed that as per the Court’s order dated
27.05.2019, she had brought the original birth certificate of the successful
candidate issued on 21.01.2015 and the Birth Record of Queen Mary’s
Hospital from 01.01.1990 to 31.12.1990. She admitted that the register/ F
hospital’s birth record did not contain page numbers nor had it been
certified by any competent officer or been attested. DW-2 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 cross-
examination, on being asked whether it was necessary to maintain the G
birth register in the format laid down in 1969 Act, DW-2 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, DW-2 deposed that the entries in the birth register H
462 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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,
DW-2 deposed that the birth certificate is issued when an applicant
B 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
C 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 DW-2, 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
D 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 DW-2’s cross
examination, although the birth register was to be maintained in the format
E 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
F 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
G 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.
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 463
KHAN [B. V. NAGARATHNA, J.]
15.13. In light of the aforesaid discussion, I am of the view that no A
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
B
relevant birth list, forming the basis of the entry in the birth register, was
not available to be produced before the Court, no evidentiary value can
be attached to the birth register. It is consequently held that the birth
certificate dated 21.01.2015, issued by the Nagar Nigam, Lucknow on
the strength of such documents, cannot be held to be a valid document.
15.14. It is also to be noticed that Birth Certificate showing the C
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 D
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.
E
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:
F
16. DW-3-Dr. 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 G
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 (A-37). In answer to a
question as to the authority which issues birth certificates in Queen Mary’s
Hospital, DW-3 stated that duplicate birth certificates are issued by the
person nominated by the Department Head. As regards the procedure H
464 SUPREME COURT REPORTS [2022] 12 S.C.R.
A for issuance of duplicate birth certificates, DW-3 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. DW-3 answered in the negative when asked
whether she had brought to the Court the application forwarded by the
B
Chief Medical Superintendent for the issuance of the duplicate birth
certificate. While DW-3 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
C 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, DW-3 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.
D 225 of M.L.R. register matched the entries made in the pages of other
annual numbers; DW-3 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, DW-3 stated that the register affirms
that ‘related lady’ gave birth to a male child on 30.09.1990. However,
E
DW-3 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
register brought by her was the successful candidate.
16.3. A question was put to DW-3 by the High Court as to whether,
the E.O.T. and M.L.R. registers which DW-3 brought with her were
F 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 counter-signed by any Officer or
Department Head of the Hospital and whether the registers were
authenticated by any Officer or Department Head. DW-3 deposed that
G both the registers were not authenticated by any Officer of Queen Mary’s
Hospital or King George University and were not attested. DW-3 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, DW-3 stated that she had stated that they were
H genuine on an understanding of the working procedure of the hospital.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 465
KHAN [B. V. NAGARATHNA, J.]
16.4. On a consideration of the aforesaid documentary evidence A
in light of the depositions of DW-3, the High Court observed that Page
No. 174 of the E.O.T. Register of Queen Mary’s Hospital, Lucknow,
(Ex. R-4 Paper No. A-100/1-2) 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
B
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 C
the entries in Page No. 225 of the M.L.R. Register (Ex. R-5 Paper No.
A-101/1-2). 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 D
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. E
16.5. It was further noted that the fact that the contents were
scored out and overwritten in the above-mentioned registers was admitted
by DW-3-Dr. Uma Singh, Sr. Gynaecologist, Queen Mary’s Hospital,
(Department of Obst. & Gyno.) in her oral evidence dated 31.07.2019.
F
16.6. From the deposition of DW-3-Dr. 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.
DW-3 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 G
herein. DW-3 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, DW-3 stated that the above-mentioned registers were maintained
H
466 SUPREME COURT REPORTS [2022] 12 S.C.R.
A by a clerk, and the concerned clerk was not produced by the successful
candidate to prove the alleged entries made in the above-mentioned
registers. Further, DW-3-Dr. 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.
B 16.7. More significantly, DW-3 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 DW-3 not being
C able to categorically state that successful candidate was delivered by
her on 30.09.1990. Therefore, in my view the evidence of DW-3 does
not, in any way further the case of the successful candidate.
16.8. DW-4, Dr. Vineeta Das is stated to be the doctor who issued
the Duplicate Birth Certificate on 21.04.2015. Referring to Document
D A-37 (Duplicate Birth Certificate issued on 21.04.2015) DW-4 was asked
whether the same had been signed by her, she answered in the
affirmative. As to the contents of Document A-37, DW-4 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. DW-4 further
E 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. DW-4 deposed that
F 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, DW-4 stated that the Chief Medical
Superintendent, King George Medical University sends a letter to the Head
G 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, DW-4 answered in the
H negative.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 467
KHAN [B. V. NAGARATHNA, J.]
16.11. On appreciating the above statements in light of the A
documents referred to above, it is noted that DW-4 in her cross-
examination 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
B
thereto.
16.12. The High Court observed that the entries in the E.O.T.
register (Ex. R-4 Paper No. A100/1-2) and in the M.L.R. register (Ex.
R-5 Paper No. A101/1-2) could not be proved to be genuine by the
successful candidate and that he failed to establish that he was the child C
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
(DW-5) regarding the alleged birth on 30.09.1990 could not be relied D
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, DW-4- Dr. Vineeta Das issued a letter (Ex. R-9 Paper No. A42/3) E
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. R-4 F
Paper No. A100/1-2) and in the relevant page of the M.L.R. Register
(Ex. R-5 Paper No. A101/1-2), 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 DW-4 in her cross-examination had stated that she was G
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 DW-4, it was
wrong on her part to certify that the successful candidate was born on
30.09.1990 in Queen Mary’s Hospital, Lucknow.
H
468 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 16.15. Based on the above reasoning, the High Court was rightly
of the view that the evidence given by DW-3- Dr. Uma Singh and DW-
10- 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
B that the same are riddled with discrepancies, over-writing 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
C 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.
D 16.17. While DW-3 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.
E 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.
F
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, over-writing 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
G University and were not attested. By DW-3’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
H manipulated.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 469
KHAN [B. V. NAGARATHNA, J.]
16.19. Further, it is noted from the Labour Room Register that the A
doctor who attended DW-5-the 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 DW-4, as she had not made the entries in the E.O.T. Register. B
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: C
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 DW-8, 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 D
based its decision on the fact that DW-8 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 E
vs. State of U.P. (2017) 2 SCC 210.
17.1. In this background, it may also be noted that DW-8 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 F
correct to say that bone ossification tests could not tell the correct age,
DW-8 refused to make any comment and stated that he was only a
radiologist and had given only the X-Ray 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
G
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 H
470 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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
C 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. This is especially
so when other documents such as matriculation certificate, date of birth
certificate issued by the Nagar Palika Parishad, Rampur and passports,
D 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
E 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.
F 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. R-11 Paper No. A95/1-34) of the successful
G 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, inter-
alia, that on 26.04.2001, she had nominated the appellant-successful
candidate and two other family members under the Group Insurance
H Scheme by stating their respective age as on the aforesaid date. In the
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 471
KHAN [B. V. NAGARATHNA, J.]
said form, the age of the successful candidate is stated as eight years as A
on 26.04.2001.
18.1. The High Court observed that DW-1- Dr. Shailendra K.
Tiwari, Assistant Director of Higher Education, Prayagraj, U.P., brought
the successful candidate’s mother’s Service Book (Ex. R-11 A95/1-34)
which contained the G.I.S. (Group Insurance Scheme) Nomination Form B
(Ex. R-11 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 C
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. R-11 Paper No. A95/25)
showed that the successful candidate was only eight years old in the D
year 2001, which would imply that he was born in the year 1993. Further,
such admission on the part of DW-5-Tazeen 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 E
evidence by none other than the successful candidate and was also
referred to by DW-5–Tazeen Fatima in her cross-examination. 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, F
having relied on DW-5’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.
G
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. H
472 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 18.5. The said G.I.S. Form was adduced as evidence at the behest
of the successful candidate and the contents of the same were proved
by DW-1-Dr. Shailendra K. Tiwari and were not disputed by DW-5-
Tazeen 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
B
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. R-11 Paper No. A95/25) came into
C 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
D 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 appellant-successful candidate. Strong reliance
has been placed on the above-listed 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
E 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. P-2 Paper No. A-66/1), Driving License (Ex. P-2
Paper No. A-67/1) and Voter I.D. Card (Ex. P-2 Paper No. A-68/1)
F held that the above-mentioned documents are not evidence of date of
birth of the successful candidate. It was of the view that the date of
birth in the Driving License was corrected subsequently and that the
Aadhar Card dated 07.03.2015 and the Voter I.D. Card dated 18.07.2016
were issued on the basis of the date of birth mentioned in the birth
G 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 above-mentioned
H documents did not conclusively establish that the successful candidate
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 473
KHAN [B. V. NAGARATHNA, J.]
was above twenty-five years of age on the date of filing his nomination A
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 B
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 C
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 D
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 E
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.
F
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 G
that the successful candidate therein was below twenty-five 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 twenty-five years of age
on that date. It was observed that the burden of proving the age was on
H
474 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B was less than twenty-five 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 twenty-five years of age. Thus,
the burden was on the respective parties to prove their respective cases.
C 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 respondent-election petitioner, when juxtaposed to
D 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.
E 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, PW-3 and PW-5, being the
Principal, New Government High Secondary School, Jodhpur, since
1984 and Deputy Director (Examination) Board of Secondary
F 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
G 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.
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 475
KHAN [B. V. NAGARATHNA, J.]
In my view, the aforesaid case would have no relevance insofar A
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 appellant-
successful 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 appellant-successful candidate
B
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 C
appreciated with the oral and documentary evidence of the respondent-
election 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
D
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 E
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
F
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 respondent-election 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. P-1 to P-4 in which the date of birth of the successful candidate G
was shown as 01.01.1993. Although, voluminous documents were
produced by the appellant to contradict the same, the fact remains that
Ex R-11 being the copy of the service book of Tazeen Fatima Lecturer
Political Science, mother of the appellant-successful candidate it was
categorically stated that the appellant herein was eight years of age in H
476 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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.
B The factual matrix in the aforesaid case would not apply vis-à-
vis 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
C
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
respondent-election 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
D 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
E
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
F
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
G 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
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 477
KHAN [B. V. NAGARATHNA, J.]
30.09.1990 and made attempts to seek “duplicate” birth certificates from A
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.
B
Another significant point is that until the document at Ex. P-3
Paper No. A-80/1 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 C
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 herein-election petitioner
must fail. I say so for the reason that the appellant herein has produced D
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 appellant-successful candidate as 01.01.1993 and therefore, was
not eligible to contest for the election to the legislative assembly in the E
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 F
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
G
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 respondent-election 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 H
478 SUPREME COURT REPORTS [2022] 12 S.C.R.
A 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
B
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
C the appellant-successful 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.
D 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,
E because it is self-evident 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
F 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
G
part of the appellant through the nomination form being part of the Service
Book - (Ex). R-11 paper No. A-95/1-34 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,
H the judgment in Joshna Gouda is of no assistance to the appellant herein.
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 479
KHAN [B. V. NAGARATHNA, J.]
Summary of Conclusions: A
a) I am of the view that 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, B
G.I.S. Nomination Form submitted by DW-5 at an
undisputed point of time and which is part of her 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 C
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
D
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 E
as 01.01.1993 even till date, are also in consonance with
the earlier passports and visa documents produced by the
respondent-election petitioner herein. 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 F
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, G
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.
H
480 SUPREME COURT REPORTS [2022] 12 S.C.R.
A c) Further, on a perusal of the E.O.T. and M.L.R. registers, I
hold that the same are mired with discrepancies, over-writing
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
B
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.
C 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
D 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 appellant-successful candidate herein, which
were issued on the strength of the duplicate certificates
issued by the Queen Mary’s Hospital, Lucknow, and the
E 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:
F “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
G 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.”
H
MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI 481
KHAN [B. V. NAGARATHNA, J.]
In view of the aforesaid discussion which has been made after A
taking into consideration all the material on record, I find that the
acceptance of the nomination of the appellant-successful 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 appellant-
B
successful candidate herein to the Uttar Pradesh Legislative Assembly
from 34-Suar 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.
C
Bibhuti Bhushan Bose Appeal dismissed.
(Assisted by : Preetam Bharti, LCRA)
D
E
F
G
H
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