MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI KHAN

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 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 year 2017. c) The judgment of this Court in Narender Singh (supra) is of no assistance to the appellant herein as evidence on record does not give rise to inferences in favour of the appellant herein. d) The judgment of this Court in Joshna Gouda (supra) is also distinguishable. In the said case, the controversy was with regard to the eligibility to contest for the post of Sarpanch under the Orissa Gram Panchayat Act, 1964, it was contended by the first respondent therein that the appellant therein was not eligible to contest as he had not attained the age of 21 years. Therefore, the Election Petition was filed to seek setting aside of the election of the respondent therein. The appellant therein contested the Election Petition. In the said case, the question was whether the appellant therein was born on 07.07.1985 and not on 20.06.1986 as contended by the first respondent-election petitioner therein. The successful candidate therein had produced Exbs. A to in support of the fact that she was born on 07.07.1985. The High Court found that H

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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 the appellant therein as 07.07.1985 but such an entry came to be made pursuant to an application made by the appellant therein subsequent to the nominations in the election in question. Therefore, the High Court refused to place any reliance on the said document also. This Court held that the High Court had rightly refused to believe those documents and the 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, 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 on the oral and documentary evidence let in that case. It was held that there was an inconsistency regarding the age of the appellant therein and particularly with reference to her admission in the Upper Primary School and hence, the appeal was allowed and the Election Petition was dismissed. The aforesaid judgment is not applicable to the present case as in the present case there is a clear and unambiguous admission on the part of the appellant through the nomination form being part of the Service Book - (Ex). 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.

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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 with the passports and visa issued by the concerned authorities showing the date of birth of the appellant as 01.01.1993 which have been produced by the election petitioner in support of his case. The issuance of the fresh passport during the pendency of the Election Petition showing the date of birth as 30.09.1990 is of no consequence and cannot be of any assistance to the appellant herein.

Similarly, Class X Secondary School Examination Certificate and Class XII Secondary School Examination Certificate which indicate the date of birth of the appellant as 01.01.1993 even till date, are also in consonance with the earlier passports and visa documents produced by the 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 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

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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

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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)