MOHD. ABDULLAH AZAM KHAN versus NAWAB KAZIM ALI KHAN

MOHD. ABDULLAH AZAM KHAN

NAWAB KAZIM ALI KHAN

(Civil Appeal No. 104 of 2020)

NOVEMBER 07, 2022

[AJAY RASTOGI AND B. V. NAGARATHNA, JJ.]

Constitution of India, 1950 – Art.173(b) – Breach of –Qualification for membership of the State Legislature – Age criteriafor contesting State Legislative Assembly elections – Discrepancyin date of birth – Burden of proof – Public documents – Probativevalue – Two different Birth Certificates of appellant showing dateof birth at two different places and on two different dates, namely,one on 01.01.1993 at Rampur and another on 30.09.1990 atLucknow – Elections took place for Uttar Pradesh State LegislativeAssembly during January-March 2017 – Appellant was declaredelected from the Suar constituency, District Rampur – Respondent-election petitioner challenged the election of the appellant on groundthat he was born on 01.01.1993 and therefore was less than 25years of age when he filed his nomination papers, and was notqualified to contest the election for State Assembly – In rebuttal,appellant claimed his date of birth to be 30.09.1990 – High Courtdeclared the election of appellant to be void and set aside his election– Held (per Ajay Rastogi, J.): When any fact is especially withinthe knowledge of party, the burden of proving it lies upon thatparty – The term “especially” means facts which are pre-eminentlyor exceptionally within the knowledge of person – This rule cannotapply when the fact is such as to be capable of being known alsoby persons other than the party – In the instant case, respondentestablished from the documentary evidence which belongs to theappellant that, from day one appellant has shown his date of birthas 1[st] January, 1993 not just in his academic record but also in thebirth certificate obtained from Nagar Palika, Rampur in the year2012 – This could have been possible only when the relevantdocumentary evidence was available with the competent authorityin the office of Nagar Palika, Rampur – Since the documents wereissued from the office of the public officers based on the relevantdata made available by the appellant himself, there was sufficient

Aprobative value, as required u/s.35 of the Evidence Act – Merelybecause the same was later on cancelled by the appellant, it maynot lose its evidentiary value – Date of birth of appellant throughoutin his records is 1st January, 1993 and only in the year 2015 whenhe became keen to enter into active politics, DW-5- his mother,submitted an application before Nagar Nigam, Lucknow for theBfirst time on 17[th] January, 2015, claiming that appellant was bornon 30th September 1990 – Procedure prescribed u/s.13(3) of theAct, 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 toCdocumentary evidence obtained from the Queen Mary’s Hospital,Lucknow, as foundation on which the birth certificate was issuedon 21[st] January 2015 by Nagar Nigam, Lucknow – Impugnedjudgment of High Court accordingly upheld – Held (per B.V.Nagarathna, J.) (Concurring) : As per s. 101, the burden of provinga fact always lies upon the party who substantially asserts theDaffirmative and until such burden is discharged, the other party isnot required to be called upon to prove his case – Burden to provedocuments lie on plaintiff alone as onus is always on the personasserting proposition or fact – Once the plaintiff discharges theinitial burden of prove and makes out case which entitles him toErelief, in terms of s. 102, the onus shifts to the defendants to provethose 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 orotherwise must always be adjudged on the basis of evidence led bythe parties – s. 106 is an exception to the general rule and it stipulatesFthat when fact to be proved is peculiarly within the knowledge ofa party, it is for him to prove it – In an election petition, the initialburden to prove determination of age of returned candidate lies onthe petitioner, however, burden lies on the respondent to prove factswithin his special knowledge – In the present case, despite theGvoluminous oral and documentary evidence, the appellant has beenunable to prove the fact that he was born on 30.09.1990 –Consequently, he was not 25 years old at the time of filing thenomination – Election of the appellant to state legislative assemblyset aside – Evidence Act, 1972 – ss. 101 to 106, 35 and 21 –Registration of Birth and Death Act, 1969 – s.13(3) – U.P.H

Registration of the Birth and Death Rules, 2002 – r.9 –Representation of People’s Act, 1951 – ss. 15 and 116 A.

Evidence Act, 1972 – Passports and Visas – Evidentiary valueof admitted documents – Whether the information entered in thepassport application would amount to proof as to contents of suchapplication, including the date and place of birth entered therein –Held (per B.V. Nagarathna, J.): Great evidentiary value has to beattached to an application submitted to government establishmentor Office, such as Passport Office and the details entered in suchapplication, together with the documents submitted therewith, mustbe understood to be tendered by the applicant who signs theapplication form thereby accepting that the information submittedtherein is true and correct and to the best of his knowledge – In thepresent case, appellant having admitted the fact that his date ofbirth was 01.01.1993 and place of birth was Rampur, in theapplication form dated 06.07.2012, it was not open for appellantto subsequently resile from the aforesaid clear admission andcontend that he was unaware that an ‘incorrect’ date of birth wasrecorded in certain documents – Documentary evidence producedby respondent election petitioner has cogent and probative value –This is because the said documents are consistent with the admitteddocuments of appellant as well as with the admissions made by theappellant himself.Evidence – Public documents – Probative value of documentsmade, without following statutory procedure – Whether the BirthCertificate issued on 21.01.2015 by the Nagar Nigam, Lucknow,was valid piece of evidence – Held (per B.V. Nagarathna, J.):Birth certificate issued by the Nagar Nigam Lucknow was withoutfollowing the mandatory provisions of s.13 of the Births and DeathsRegistration Act, 1969 – s. 13(3) of the 1969 Act and r. 9 of the U.PRegistration of Birth and Death Rules, 2002 provides that any birthor death which had not been registered within one year of itsoccurrence, shall be registered only on an order made by aMagistrate of First Class or Presidency Magistrate after verifyingthe correctness of birth and death – In the present case, NagarNigam, Lucknow, had no jurisdiction to register the birth of theappellant after twenty five years from the date on which he wasstated to be born by the issuance of the Birth Certificate on

A21.01.2015 without an order of the Sub Divisional Magistrate asrequired 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 andfactual inaccuracies which cannot be ignored – Therefore, no weightBcan be placed on birth certificate issued by the Nagar Nigam,Lucknow on 21.01.2015 which is stated to be issued on strength ofan entry made in birth register maintained by hospital – Registrationof Birth and Death Act, 1969 – s.13(3) – U.P. Registration of theBirth and Death Rules, 2002 – r.9.CEvidence – Medical Evidence – Evidentiary value of boneossification test for determining age – Held (per B.V. Nagarathna,J.): Ossification test cannot be solely relied upon as conclusiveproof of age – The general rule for determining the age is that itcan vary plus or minus two years and that the date of birth of aDperson is to be determined on the basis of the material on recordand on appreciation of evidence adduced by parties – Report of anossification test can, at most, be used to corroborate other relevantevidences, oral or documentary.

Evidence – Documents of identity – Relevance of Aadhar

ECard, Voter I.D. Card and Driving License as regards proof of dateof birth – Held (per B.V. Nagarathna, J.): Aadhar card is meansof identity and not proof of date of birth – On facts, the AadharCard, Voter I.D. Card and Driving License did not conclusivelyestablish that the appellant was above twenty five years of age onthe date of filing his nomination papers or on the date of declarationFof 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 CourtGHELD:

per Ajay Rastogi, J.

1. When any fact is especially within the knowledge of aparty, the burden of proving it lies upon that party. The term“especially” means facts which are pre-eminently or exceptionallyH

within the knowledge of person. It is true that it cannot applywhen the fact is such as to be capable of being known also bypersons other than the party. This rule is an exception to therule of burden of proof. Thus, when person acts with someintention other than that which the character and circumstancesof the act suggest, the burden of proving the intention is uponhim. The bottom line of the purpose of the Indian Evidence Actis to adopt procedure that helps to facilitate justice and ultimatelywhat 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, register ofrecord maintained in terms of the statute or by statutory authorityin the regular course of business would be relevant fact. Fromthe evidence on record, the respondent was able to establishfrom the documentary evidence which belongs to the appellantthat consistently from day one he has shown his date of birth as1st January, 1993 not only in his academic record but also in thebirth certificate obtained by him issued on 28[th] 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 relevantdocumentary evidence was available with the competent authority/in the office of Nagar Palika, Rampur and this fact cannot be ruledout. The respondent has established on record that the date ofbirth of the appellant is 1st January, 1993 and this fact was notdisputed by the appellant that the documents placed and reliedupon by the respondent on record are public documents issuedby the competent authorities. [Paras 21 and 28][418-B; 425-E-G]

3. The appellant was not holding any documentary evidenceto support his claim prior to being placed on record in the courseof election petition from Queen Mary’s Hospital, which was madeto be basis in the year 2015 to seek duplicate birth certificateof 30[th] September, 1990. To make it further clear, the duplicatebirth certificate was issued by Queen Mary’s Hospital on 21stApril, 2015 (Ex.A37) indicating the date of birth of the baby ofDW.5 on 30[th] September, 1990. From this document, it is clearthat on 17[th] January, 2015, on the date when the application wassubmitted by his mother (DW.5) addressed to the Chief Health

AOfficer, Nagar Nigam, Lucknow, to obtain the birth certificate ofthe appellant there was no documentary evidence available inthe custody of DW.5 to support that the child was born in thehospital on 30[th] September, 1990. [Para 34][427-G-H; 428-A-B]

4. Apart from oral evidence to support the documents placedBon record obtained from the Queen Mary’s hospital, it appearsthat the EOT register where the name of DW.5, mother of theappellant has been shown, entry appears to be partially erasedand rest of the page other than the entry relating to DW.5, nochange is being reflected from the entire document. [Para41][432-B]C

5. When the entire evidence is before the Court, it is wellsettled that the burden of proof becomes immaterial at the givenpoint of time the document made ante litem motam can be reliedupon safely when such documents are admissible under Section35 of the Evidence Act. [Para 42][432-C]D

6. In the instant case, the academic record of the appellantconsistently indicates the recorded date of birth of the appellantis 1st January, 1993 and to be more specific before 17[th] January,2015, all documents which were released from various publicoffices under the signatures of public authorities, the date of birthEof the appellant has throughout been shown as 1st January, 1993and as stated by DW.5 (mother of the appellant) and so also theappellant (DW.10) after doing his post-graduation he wanted tocome in active politics, application was submitted on 17[th] January,2015 for the first time to the office of the Nagar Nigam, LucknowFfor obtaining the birth certificate of the appellant based on QueenMary’s Hospital, Lucknow and the fact is that no documentaryevidence was supported along with the application, except theaffidavit sworn by DW.5 to the application dated 17[th] January, 2015and it is not possible for common man to get the birth certificatein the existing facts and circumstances, but so far as the appellantGis concerned, birth certificate was issued with no loss of time on21[st] January, 2015 which was otherwise not possible. [Para 43]

7. It is also trite law that when both the parties have adducedevidence and that too is in reference to common question and

particularly for determination of age, which is the subject matterof dispute and when both the parties have adduced evidence, thequestion 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, 1993and which is duly supported by his academic record from Class Xonwards at all stages which had been generated only under theappellant’s own signatures or under the authority of the appellantand this in no manner could be disputed. Merely because thesame has been later on cancelled by the appellant, it may notlose its evidentiary value. [Paras 46 and 47][432-F-G; 433-A-B]

8. Section 13(3) of the Registration of Birth and Death Act,1969, clearly postulates that delayed registration of birth and deathare permissible provided procedure prescribed has beenfollowed after taking orders from the Magistrate and proving thecorrectness of the date of birth. Although the defence of theappellant is that since his name was already registered in therecords of Nagar Nigam, Lucknow, Section 13(3) of theRegistration of Birth and Death Act, 1969 may not apply, but thissubmission appears to be misplaced for the reason that on thebasis of the birth record maintained by the Nagar Palika, Rampur,the birth certificate was issued to him under the orders of thecompetent authority on 28[th] June, 2012, and there cannot be twoseparate 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 theNagar Nigam, Lucknow. The procedure as prescribed underSection 13(3) of the Act, 1969, in the ordinary course of business,was supposed to be adopted by the authorities while freshcertificate of date of birth was issued to him on 21[st] January,2015, which indeed has not been followed by the competentauthority by Nagar Nigam, Lucknow. [Para 48][434-H; 435-A-D]

9. In the instant case, the date of birth of the appellantthroughout in his records is 1st January, 1993 and only in theyear 2015 when the appellant became keen to enter into activepolitics, the mother of the appellant (DW-5) submitted anapplication for the first time on 17[th] January, 2015, claiming that

Athe appellant was born on 30[th] September 1990, and birthcertificate may be immediately issued to her and within threedays, birth certificate was issued by the Nagar Nigam, Lucknowon 21[st] January, 2015. In support thereof, the documentaryevidence which the appellant has placed on record obtained fromthe Queen Mary’s Hospital, Lucknow, as foundation on whichBthe birth certificate has been issued as alleged from the NagarNigam, Lucknow, in the considered view of this Court, noprobative value could have been attached to it. [Para 49][435-D-

Brij Mohan Singh v. Priya Brat Narain Sinha andCOthers [1965] 3 SCR 861; Joshna Gouda v. BrundabanGouda and Another (2012) 5 SCC 634 : [2012] 1SCR 464; Birad Mal Singhvi v. Anand Purohit (1988)Supp. SCC 604 : [1988] 2 Suppl. SCR 1; Sushil Kumarv. Rakesh Kumar (2003) 8 SCC 673 : [2003] 4 Suppl.DSCR 802; Rakesh Kumar v. Sunil Kumar (1999) 2 SCC489 : [1999] 1 SCR 470; Updesh Kumar and Others v.Prithvi Singh and Others (2001) 2 SCC 524 : [2001] 1SCR 454; State of Punjab v. Mohinder Singh (2005) 3SCC 702 : [2005] 2 SCR 758; Vishnu alias Undrya v.State of Maharashtra (2006) 1 SCC 283 : [2005] 5ESuppl. SCR 474; Satpal Singh v. State of Haryana(2010) 8 SCC 714 : [2010] 9 SCR 50 and UttamraoShivdas 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 aperson is bound to prove the existence of any fact, it is said thatthe burden of proof lies on that person. This section is based onthe rule, ei incumbit probation qui dicit, non qui negat, which meansthat the burden of proving fact rests on the party whoGsubstantially asserts the affirmative of the issue and not upon theparty who denies it, because negative is usually incapable ofproof. The burden of proving fact always lies upon the personwho asserts and until such burden is discharged, the other partyis not required to be called upon to prove his case. The court hasHto examine as to whether the person upon whom the burden lies

has been able to discharge his burden. However, the above ruleis subject to the general principle that things admitted need notbe proved. The question as to whether burden of proof has beendischarged by party to the lis or not, would depend upon thefacts and circumstances of the case. If the facts are admitted or, ifotherwise, sufficient materials have been brought on record soas to enable Court to arrive at definite conclusion, it is idle tocontend that the party on whom the burden of proof lies wouldstill be liable to produce direct evidence. Burden to provedocuments lie on plaintiff alone as onus is always on the personasserting proposition or fact which is not self-evident. [Paras12.2, 12.3, and 12.4][447-E-H; 448-A-B]

2. Also, there is an essential distinction between burden ofproof and onus of proof. Burden of proof lies upon person whohas to prove the fact and it never shifts, onus of proof on theother hand, shifts. Such shifting of onus is continuous processin the evaluation of evidence. For instance, In suit for possessionbased on title, once the plaintiff has been able to create highdegree of probability so as to shift the onus on the defendant, itis for the defendant to discharge his onus and in the absencethereof, the burden of proof lying on the plaintiff shall be held tohave been discharged so as to amount to proof of the plaintiffstitle. [Para 12.5][448-D-E]

3. Section 106 is an exception to the general rule laid downin Section 101, that the burden of proving fact rest on the partywho substantially asserts the affirmative of the issue. Section 106is not intended to relieve any person of that duty or burden butstates that when fact to be proved is peculiarly within theknowledge of party, it is for him to prove it. It applies to caseswhere the fact is especially within party’s knowledge and tonone else. The expression ‘especially’ used in Section 106 meansfacts that are eminently or exceptionally within one’s knowledge.This means party having personal knowledge of certain factshas duty to appear as witness and if he does not go to thewitness box, there is strong presumption against him. In anElection Petition, the initial burden to prove determination ofage of returned candidate lies on the petitioner, however, burden

[2022] 12 S.C.R.

Alies 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 anapplication submitted to government establishment or Office,such as Passport Office and the details entered in suchBapplication, together with the documents submitted therewith,must be understood to be tendered by the applicant who signsthe application form thereby accepting that the informationsubmitted therein is true and correct and to the best of hisknowledge. The successful candidate herein, having signed theapplication form dated 06.07.2012 wherein it has been expresslyCentered that his date of birth was 01.01.1993 and place of birthwas Rampur, cannot, at later juncture claim that he was unaware,till the year 2015 that his date of birth as per various documentswas 01.01.1993 and his place of birth was Lucknow. The fact thatthe successful candidate self-attested the birth certificate issuedDby the Municipal Corporation, Rampur, wherein his date of birthhas been recorded as 01.01.1993, would establish that thesuccessful candidate acknowledged, accepted and sought to relyon such fact in order to secure passport on the basis of suchinformation. It is therefore not open to the successful candidateto subsequently resile from the aforesaid clear admission andEcontend that he was unaware that an ‘incorrect’ date of birth wasrecorded in certain documents. Having admitted the fact that hisdate of birth was 01.01.1993 and place of birth was Rampur, inthe application form dated 06.07.2012 which was at an undisputedpoint of time, the successful candidate cannot resile from theFsame. [Para 13.5][453-E-H; 454-A-B]

5. Birth certificate dated 21.01.2015 was issued withoutfollowing 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 birthGor death which had not been registered within one year of itsoccurrence, shall be registered only on an order made by aMagistrate of First Class or Presidency Magistrate afterverifying the correctness of the birth or death and upon paymentof the prescribed fee. Rule 9(3) of the U.P. Registration of the

Birth and Death Rules, 2002, provided that any birth or deathwhich had not been registered within one year of its occurrence,shall be registered only on an order of the Sub-DivisionalMagistrate and after payment of late fee of Rs. 10/. Therefore,the Nagar Nigam, Lucknow, had no jurisdiction to register thebirth of the successful candidate after twenty five years from thedate on which he was stated to be born by the issuance of theBirth Certificate on 21.01.2015 (Ex. P2 Paper No. A63/ 1) withoutan order of the Sub-Divisional Magistrate as required underSection 13(3) of the 1969 Act, read with Rule 9(3) of the U.P.Registration of the Birth and Death Rules, 2002. The birthcertificate (Ex. P2 Paper No. A63/ 1) issued by the Nagar Nigam,Lucknow, on 21.01.2015 was null and void. [Para 15.4][460-D-H]

6. No weight can be placed on the birth certificate dated21.01.2015, issued by the Nagar Nigam, Lucknow, which is statedto be issued on the strength of an entry made in the birth registermaintained by the hospital and is created by manipulation andinterpolation in the relevant hospital records. In the absence ofany explanation as to why the relevant birth list, forming the basisof the entry in the birth register, was not available to be producedbefore the Court, no evidentiary value can be attached to thebirth register. Consequently, the birth certificate dated21.01.2015, issued by the Nagar Nigam, Lucknow on the strengthof such documents, cannot be held to be valid document. [Para15.13][463-A-C]7. It is also to be noticed that Birth Certificate showing thedate of birth of the successful candidate as 01.01.1993 was stillholding the field and valid and thus till the same was cancelledsubsequently, the successful candidate had two Birth Certificatesshowing his date of birth at two different places and on twodifferent dates, namely, one on 01.01.1993 at Rampur and anotheron 30.09.1990 at Lucknow which clearly indicates that only oneBirth Certificate was valid and correct as far as successfulcandidate’s date of birth is concerned. The certificate showingthe date of birth of the successful candidate as 01.01.1993 atRampur is the correct certificate and not the one subsequentlyobtained in the year 2015. [Para 15.14][463-C-E]

A8. 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, overwritingand factual inaccuracies. Both such registers were notauthenticated by any Officer of Queen Mary’s Hospital or KingGeorge University and were not attested. By DW3’ s ownBadmission, the only basis on which she was stating that the relevantentries in the registers were genuine was on her understandingof the working procedures of the hospital. This does not inspiremuch confidence as to the genuineness of the entries made inthe registers, which ex facie appear to be manipulated. [ParaC16.18][468-F-H]

9. An ossification test cannot be solely relied upon asconclusive proof of age and the said test is by no means aninfallible or accurate test to determine the correct number ofyears of person’s life. The general rule for determining the ageDis that it can vary plus or minus two years and that the date ofbirth of person is to be determined on the basis of the materialon record and on appreciation of evidence adduced by parties.The report of an ossification test can, at most, be used tocorroborate other relevant evidences, oral or documentary. Evenso, relying on the aforesaid case, the High Court had rightlyEobserved that if the margin factor of (plus or minus) two years isapplied to the case of the successful candidate, it could also meanthat in the year 2017 the age of the successful candidate was 24years which would indicate that he was born in the year 1993. Inthat background, the medical examination report of the successfulFcandidate dated 27.01.2017 based on an ossification testconducted, wherein his age was recorded to be twenty six yearsat the relevant time, cannot be accepted as conclusive proof ofhis age and the same would not hold any water. [Paras 17.2 and17.3][469-G-H; 470-A-D]

G10.1. The appellant-successful candidate was not born on30.09.1990 and was not twenty-five years old at the time of filingthe nomination as the appellant has been unable to prove thesaid fact despite the voluminous oral and documentary evidenceprovided on record. In fact, G.I.S. Nomination Form submittedby DW-5 at an undisputed point of time and which is part of herH

Service Book which is adduced as evidence at the behest of theappellant-successful candidate goes against the case of theappellant. The G.I.S. Nomination Form is in consonance with thepassports and visa issued by the concerned authorities showingthe date of birth of the appellant as 01.01.1993 which have beenproduced by the election petitioner in support of his case. Theissuance of the fresh passport during the pendency of the ElectionPetition showing the date of birth as 30.09.1990 is of noconsequence and cannot be of any assistance to the appellant.Similarly, Class X Secondary School Examination Certificate andClass XII Secondary School Examination Certificate whichindicate the date of birth of the appellant as 01.01.1993 even tilldate, are also in consonance with the earlier passports and visadocuments produced by the respondent-election petitioner. Infact, the appellant-successful candidate had relied upon theeducational certificates indicating his date of birth as 01.01.1993and his place of birth as Rampur for the purpose of securing hisearlier passports and visa. [Para 20][479-A-F]

10.2. Moreover, the stand taken by the successful candidatethat all documents pertaining to the Birth Certificate dated28.06.2012 issued by the office of Nagar Palika Parishad, Rampur,were burnt due to short circuit on 08.05.2015 would suggestthat the said birth certificate, wherein the date of birth of thesuccessful candidate was recorded as 01.01.1993 came to bedestroyed and later cancelled were under suspiciouscircumstances. [Para 20][479-G-H]

10.3. Further, on perusal of the E.O.T. and M.L.R.registers, it is clear that the same are mired with discrepancies,over-writing and factual inaccuracies and the same cannot beignored. Therefore, no weight can be placed on the birth certificatedated 21.01.2015, issued by the Nagar Nigam, Lucknow, whichis stated to be issued on the strength of an entry made in thebirth register maintained by the hospital, which itself is notauthentic in the absence of production of the birth list indicatingthe birth of the appellant on 30.09.1990, and is created bymanipulation and interpolation in the hospital records. [Para20][480-A-C]

10.4. No weight can be placed on the result of theossification test as other documents such as the matriculationcertificate, date of birth certificate issued by the Nagar PalikaParishad, Rampur and passports prove that the age and the dateof birth recorded in such documents is contrary to the result ofthe ossification test. [Para 20][480-C-D]

10.5. The Aadhar card, driver’s licence and voter ID of theappellant-successful candidate, which were issued on the strengthof the duplicate certificates issued by the Queen Mary’s Hospital,Lucknow, and the Nagar Nigam, Lucknow, on 21.04.2015 and21.01.2015, respectively, are not proof of the successfulcandidate’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 MalSinghvi v. Anand Purohit A.I.R. 1988 SC 1796 : [1988]2 Suppl. SCR 1; Joshna Gouda vs. Brundaban Gouda(2012) 5 SCC 634 : [2012] 1 SCR 464 and NarenderSingh v. Mala Ram and Ors. (1999) 8 SCC 198 –distinguished.

Mukarrab and others v. State of U.P. (2017) 2 SCC210 : [2016] 8 SCR 557; RVE Venkatachala Gounderv. Arulmigu Viswesaraswami and VP Temple AIR 2003SC 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 SCC9 : [1972] 2 SCR 646; Ram Singh v. Col. Ram Singh1985 (Supp.) SCC 611 : [1985] 2 Suppl. SCR 399;Thiru John v. Returning Officer (1977) 3 SCC 540 :[1977] 3 SCR 538; Kalwa Devadattam v. Union A.I.R.1964 SC 880 : [1964] 3 SCR 191; Sushil Kumar vs.Rakesh Kumar (2003) 8 SCC 673 : [2003] 4 Suppl.SCR 802 Rani Chandra Kunwar v. Chaudhari NarpatSingh and Ors. (1906) SCC OnLine PC 26 and Robinsv. National Trust Company 1927 AC 515 – referred to.

MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALIKHAN

ACIVIL APPELLATE JURISDICTION: Civil Appeal No.104 of2020.

From the Judgment and Order dated 16.12.2019 of the High Courtof Judicature at Allahabad, UP in Election Petition No.8 of 2017.

Kapil Sibal, Sr. Adv., M. Nizam Pasha, Zubair Khan, AdityaSamaddar, 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, AmarjeetSingh, Pratik Ahuja, B.N. Dubey, Kumar Gaurav, Ms. Ritu Reniwal,Vishal Kumar Singh, Robin Khokhar, Ashok K. Mahajan, Advs. for theRespondent.

The Judgments of the Court were delivered by

RASTOGI, J.D

D1. Instant appeal has been filed under Section 116A of theRepresentation of People Act, 1951 assailing the judgment and orderdated 16[th] December, 2019 passed by the High Court of Judicature atAllahabad, holding the election of the returned candidate (appellant) from34, Suar Assembly Constituency of District Rampur, as void andconsequently 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 holdingelection of U.P. State Legislative Assembly from 34, Suar, District Rampurconstituency. Public notice was issued by the Returning Officer fixingthe election programme for holding election for the afore-statedconstituency. According to the schedule of programme, the appellantand the first respondent along with others filed their nomination papers.The scrutiny of the nomination took place on 28[th] January, 2017.

3. After scrutiny and withdrawal of nomination papers, theappellant and six others including the election petitioner were thecandidates who remained in the field for election. It may be noted thatbefore the Returning Officer, the respondent (election petitioner) filedan objection against the appellant alleging that he is less than 25 years ofage and, therefore, is not qualified to contest the election in view of

Article 173(b) of the Constitution. The objection was overruled by theReturning Officer and accordingly the election took place as per theschedule, in which the appellant and the respondent (election petitioner)contested along with others. The result of the election was declared on11[th] March, 2017 in which the appellant secured highest votes and wasdeclared elected.

4. The respondent filed the election petition before the High Courtof Judicature at Allahabad on the solitary ground that the appellant wasnot qualified to contest the election for member of Legislative Assemblyin view of Article 173(b) of the Constitution as he was less than 25 yearsof age when he filed his nomination papers and also on the day on whichhe contested the election from 34, Suar Assembly Constituency of DistrictRampur.

5. In the election petition, the respondent (election petitioner), interalia, contended that objection as regards the age of the appellant wasraised by him in the first instance before the Returning Officer, but thesame was rejected without appreciating the bare documentary evidenceon record and despite the date of birth of the appellant being 1[st] January,1993, which was recorded throughout in his academic records, includinghis Secondary School Examination Certificate in 2007 from the CentralBoard of Secondary Education and Intermediate Examination in 2009from St. Paul’s School, Rampur affiliated to Central Board of SecondaryEducation, Delhi, the Returning Officer failed to consider the same andarbitrarily overruled the objection raised by him.

6. In the election petition, the following objections were raisedand for better appreciation the same are reproduced as under:

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

(ii)That the appellant (Mohd. Abdullah Azam Khan) appearedin Secondary School (Class – X) Examination in the year2007. When he appeared for Secondary School examination,Ghis roll number was 5260139. He appeared from St. Paul’sSchool, Rampur, which was affiliated with the Central Boardof Secondary Education, New Delhi.

(iii)That the appellant (Mohd. Abdulla Azam Khan) himselffilled-up the admission form and examination form, and in

408SUPREME COURT REPORTS

his own handwriting, mentioned his date of birth as01.01.1993. The record of the appearance and examinationof the appellant (Mohd. Abdullah Azam Khan) are availablewith the Central Board of Secondary Education, New Delhi.

(iv)That the Central Board for Secondary Education has issuedBthe Secondary School Examination (Class-X) result bearingthe roll number, name, mother’s name and father’s nameand date of birth of the appellant (Mohd. Abdullah AzamKhan). As per the certificate, the mother of appellant isTazeen Fatima and his father is Mohd. Azam Khan. Thedate of birth as recorded in the certificate of SecondaryCSchool Examination (Class-X) results, 2007 of the appellant(Mohd. Abdullah Azam Khan) is 01.01.1993. copy of thecertificate of Secondary School Examination (Class-X)results of the appellant (Mohd. Abdullah Azam Khan)obtained from the Central Board of Secondary EducationDis enclosed and marked as Annexure-4 to this petition.

(v)That the appellant (Mohd. Abdullah Azam Khan) appearedin Intermediate examination in the year 2009 St. Paul’sSchool, Rampur. The said papers and records are availablewith St. Paul’s School, Rampur and the Central Board ofESecondary Education, CBSE.

(vi)That the election petitioner has made best efforts to get theadmission form, examination form as also documentspertaining to the Intermediate Examination of the appellant(Mohd. Abdullah Azam Khan), but has not been able to getFthe same. The election petitioner has only been able to getthe certificate of Secondary School Examination (Class X)results of the appellant from the Central Board of SecondaryEducation.

(vii)That the appellant (Mohd. Abdullah Azam Khan) thereafterGjoined Galgotias University, Greater Noida for his Master’sDegree where he has filled-up form for admission with thesame date of birth (01.01.1993). The record of the appellant(Mohd. Abdullah Azam Khan) in respect of his Master’sDegree is available with Galgotias University, GreaterNoida.

7. Thereafter, in his Master’s degree which he passed out fromGalgotias University, Greater Noida, including his passport and otherdocuments annexed with the nomination papers which are within thepublic domain consistently indicated that he was born on 1[st] January,1993.

8. In addition to this, the contention of respondent no.1 before theHigh Court was that the appellant/returned candidate belongs to veryinfluential family and his father was Cabinet Minister (Urban Planning,Development and Local Bodies) in Government of Uttar Pradesh duringthe period 2012 to 2017 and because of his local influence and being theMinister in-charge, documentary evidence has been created by him inthe year 2015, which was thereafter made to be the basis and foundationto justify and support the date of birth of the appellant herein which, asalleged, was wrongly recorded in the school records and the fact is thatthe records maintained by Queen Mary’s Hospital, Lucknow, whichindicates that the appellant was born on 30[th] September, 1990, is laterdevelopment and were created in the year 2015 to support that theappellant was qualified to contest election in the year 2017 in terms ofthe requirement of Article 173(b) of the Constitution.

9. In counter, the appellant in the written statement came with aspecific case that the documents on which the election petitioner hasrelied upon regarding the date of birth based on the school/academicrecords, although the said documents belong to the appellant but his dateof birth is incorrectly and inadvertently registered as 1[st] 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 as1[st] January, 1993 and that was incorrectly shown throughout in hisacademic records in Secondary School Examination/IntermediateExamination and also in his higher studies including the date of birthreflecting in the birth certificate issued to him by Rampur Nagar Palikaon 28[th] June, 2012, of 1[st] January, 1993 which was later cancelled andaccording to him, the birth certificate issued by Nagar Nigam, Lucknow,on 21[st] January, 2015 is based on the records maintained by QueenMary’s Hospital, Lucknow, where he was born, his date of birth as perthe hospital records is 30[th] September, 1990.

10. The appellant came with specific case before this Courtthat his date of birth reflected in his academic record of 1[st] January,

A1993 was incorrect and that being the reason, the birth certificate issuedon 28[th] June, 2012 by Nagar Palika, Rampur was duly cancelled on 30[th]January, 2015 and duplicate certificate of birth dated 21[st] April, 2015was issued by Queen Mary’s Hospital, Lucknow, where he was born,indicating 30[th] September, 1990, as the correct date of birth of theappellant and accordingly he was above 25 years of age on the dayBwhen nomination form was filled by him for elections of U.P. LegislativeAssembly from 34, Suar Assembly Constituency of District Rampur inthe year 2017 and on that date the appellant attained the age of 25 yearsin terms of Article 173(b) of the Constitution for contesting the electionof 34, Suar Assembly Constituency of District Rampur.C11. Both the parties placed the documentary as well as oralevidence in support of their respective defences. The High Court afterdue appreciation of the documentary as well as oral evidence on recordand taking note of the submissions made by the parties returned thefinding that on the date of filing of nomination papers i.e. 25[th] January,D2017, on the date of scrutiny of nomination papers i.e. 28[th] January,2017 and on the date of declaration of result of 34, Suar AssemblyConstituency of District Rampur i.e. 11[th] March 2017, the appellant wasless than 25 years of age and thus, was not qualified to contest theelection in terms of Article 173(b) of the Constitution and declared theelection of the appellant to be void and consequently it came to be setEaside by the impugned judgment dated 16[th] December, 2019.

Submissions of the Appellant

12. Mr. Kapil Sibal, Senior Advocate appearing for the appellant,submits that there is statutory presumption of validity of the nominationFpapers as reflected under para 6 of Chapter VI of the Handbook ofReturning Officers, as held by Three-Judge Bench of this Court inRakesh Kumar v.Sunil Kumar[1] (para 18) and later considered inUttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil[2](paras35, 40 and 44) and further submits that the school/academic records onwhich reliance was placed by the election petitioner/respondent and ofGwhich cognizance has been taken by the High Court under the impugnedjudgment was not disputed by the appellant, but the appellant disputedthe contents of the document relied upon by the respondent throughout

1 (1999) 2 SCC 489H2 (2009) 13 SCC 131

and that can be reflected from the written statement filed by the appellantto the election petition and it was the specific case of the appellant thatthe date of birth as recorded in his school records i.e. 1[st] January, 1993is incorrect and wrongly recorded, in fact, he was born on 30[th] September,1990 and to support his date of birth, sufficient primary documentaryevidence was placed on record which pertains to the authenticated recordof Queen Mary’s Hospital, Lucknow, which is Government hospitaland followed with the birth certificate issued by the competent authorityi.e. Nagar Nigam, Lucknow dated 21[st] January, 2015.

13. To support it further, learned counsel submits that once thecontents of the document pertaining to the appellant were disputedspecifically in his written statement, the burden was on the electionpetitioner 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 HighCourt has proceeded to shift the burden of proof on the appellant is indisregard to the principles of the Evidence Act and the fact as alleged isto be proved by the person who pleads under the Evidence Act andmade further following submissions:-

(i)The appellant has stated his date of birth in his nominationpapers as 30[th] September, 1990 along with supportingdocuments. Therefore, the burden of proof lies on theelection petitioner/respondent to rebut the presumption byadducing admissible and reliable evidence that meets thestandard of preponderance of probabilities and the electionpetitioner/respondent has failed to produce any legallyadmissible evidence on record so as to discharge his burdenof proof.

(ii)The respondent/election petitioner has failed to produce anydirect and admissible evidence to prove that the appellantwas born on 1[st] January, 1993 and was not born on 30[th]September, 1990 and in support, the only document producedby the respondent/election petitioner is the certificate ofClass X Exam which is not document for proof of age.

(iii)No other document or witness was produced by therespondent to prove an alternate date of birth of theappellant, or to prove the fact that he was not of 25 yearsof age at the time of scrutiny of nomination papers.

A(iv)To the contrary, the appellant has adduced sufficient, reliableand cogent oral and unimpeachable documentary evidencewhich if considered in totality, establishes preponderanceof probabilities that he was above 25 years of age as on28[th] January, 2017.

B(v)The best evidence of the date of birth is the testimonialevidence of the mother of the appellant (DW.5) and thedoctor who delivered the male child and that is the onlydirect evidence to support the birth of the appellant on aspecific date.

C(vi)The appellant’s mother (DW.5) in her affidavit inexamination-in-chief has categorically stated that she wasa lecturer in Political Science in Govt. Girls PG College,Rampur and she gave birth four times. The children fromthe first two deliveries in 1982 and 1984 died at the time ofbirth and the third child born in the year 1985 is her elderDson Mohd. Adib and thereafter she again availed thirdsanctioned maternity leave from 7[th] August, 1990 to 4[th]November, 1990 which is duly supported by service book,proved by DW.1 and that acknowledges that she gave birthto male child on 30[th] September, 1990 in Queen Mary’sEHospital, Lucknow, in maternity department of King GeorgeMedical University, Lucknow, Government Hospital andit is supported with discharge certificate dated 24[th] 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 haveFsupported the delivery of male child to DW.5 mother of theappellant on 30[th] September, 1990.

(vii)The appellant has further explained that the incorrect dateof birth in the school record was an error committed on thepart of the family friend Shahzeb Khan (DW.9) who gotGthe 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 thedocuments placed on record which are public records standsproved in terms of Section 35 of the Evidence Act and further

corroborated by the testimony of DW.5 by her service book,salary register, it was established that the appellant wasborn on 30[th] September, 1990 in Queen Mary’s Hospital,Lucknow.

(ix)The impugned judgment fails to consider the establishedevidence though it provides for proof of documents madein the regular course of business by person other than theauthor and fails to consider Section 35 of the Evidence Actwhich states that documents prepared by an official (publicor private) in performance of his duty recorded under laware relevant and admissible.

(x)That with respect to the finding of manipulation andinterpolation as being recorded in the impugned judgmentregarding the birth register (Ex.R12), there is no evidenceon record to support such finding. No question was put toDW.2 as to any manipulation or interpolation in thedocument. In the absence of any evidence, the findingrecorded in the impugned judgment is unsustainable.

(xi)The impugned judgment incorrectly record that Section 13of the Births and Deaths Registration Act, 1969 and Rule 9of the UP Registration of Birth and Death Rule, 2002 havenot been followed while the birth certificate dated 21[st] April,2015 was issued. However, the fact is that the birth of theappellant was registered contemporaneously in the year1990 in Nagar Nigam, Lucknow and it was only duplicatecertificate of registration which was issued on 21[st] January,2015.

(xii)The documents relied upon by the election petitioner/respondent are not admissible in evidence and in any caseare not proof of date of birth of the appellant on 1[st] January,1993.

(xiii) The school records are not the direct evidence of the factof birth and on balance of probabilities, it cannot be givenpre-eminence over direct evidence of the mother, deliveringdoctor and contemporaneously maintained hospital records.

(xiv) The error in school records was sufficiently explained byDW.5 and accordingly necessary steps were taken by the

appellant for correction of the school records by letterdated 23[rd] March, 2015 submitted by the appellant to theRegional Officer, CBSE, as proved by DW.7, Arun JosephDayal, Director of St. Paul’s School, Civil Lines, Rampur.

(xv)The reliance on the alleged Group Insurance Scheme (GIS)BNomination form in the service book of DW.5 was not anadmitted document to establish that the appellant was bornin 1993 and this was serious misappreciation of theevidence on record committed by the High Court.

(xvi) When confronting witness as to any previous statementin document it is mandatory that the said document bepointed out to the witness under Section 145 of the IndianEvidence Act to which no efforts were made by therespondent/election petitioner and at the best it is merely apiece of circumstantial evidence which has no legal backingand cannot establish birth of the appellant on 1[st] January,1993.

14. These, according to the appellant, were serious manifest errorswhich were committed by the High Court in passing the judgmentimpugned and in support of his submissions, counsel placed reliance onthe judgments of this Court in Brij Mohan Singh v. Priya Brat NarainESinha and Others[3], Birad Mal Singhvi v. Anand Purohit[4]and JoshnaGouda v. Brundaban Gouda and Another[5] and taking assistance ofthe judgments of this Court submits that the finding recorded by theHigh Court under the judgment impugned is not legally sustainable anddeserves to be set aside.

FSubmissions of the Respondent

15. Mr. Aadil Singh Boparai, learned counsel for the respondent,on the other hand, while supporting the finding returned by the HighCourt in the judgment impugned, submits that he was successful inestablishing before the High Court that the date of birth of the appellantGis 1[st] January, 1993 by leading evidence and also as per the admissionsmade by the appellant/witnesses, admittedly the appellant was notqualified to contest the election for the Member of Legislative Assembly,

3 (1965) 3 SCR 8614 (1988) Supp. SCC 604H5 (2012) 5 SCC 634

being less than 25 years of age in view of Article 173(b) of the Constitutionon the date when nomination papers were filled or the date of declarationof result and made the following submissions:

(i)The respondent/election petitioner placed unimpeachableevidence on record that includes the marksheet of theappellant’s class X certificate, his passports dated 28[th]BAugust, 2006 and original Birth Certificate issued on 28[th]June, 2012 by Nagar Palika, Rampur and his self-filledpassport application of the year 2006 and all thesedocuments reflect the date of birth of the appellant as 1[st]January, 1993.

(ii)The documents relied upon by the respondent are admissiblein evidence and relevant under Sections 21 and 35 of theIndian Evidence Act. The evidence projected by theappellant was false and fabricated and rightly discarded bythe High Court. Cancellation process was initiated by theappellant after the birth certificate was issued by NagarNigam, Lucknow on 21[st] January, 2015 indicating 30[th]September, 1990 as date of birth of the appellant. But,execution of the documents relied upon by the respondenthas never been disputed and all are public documents inwhich consistently his date of birth recorded is 1[st] January,1993 and thus, the burden was on the appellant to adduceevidence to rebut the presumption as aforesaid, that his dateof birth is 30[th] September, 1990 and not 1[st] January, 1993.

(iii)Both the parties have adduced their evidence in the electionpetition, that all pertains to the appellant, not to somebodyelse. The record of the election petition which pertains tothe academic record, including passport and birth certificateof the appellant, until 2015 consistently indicates his date ofbirth as 1[st] January, 1993.

(iv)That in rebuttal, the appellant placed on record claiming hisdate of birth to be 30[th] September, 1990, which could nothave inspired confidence. In support of his submissions,counsel for the respondent has placed reliance on thejudgment of this Court in Sushil Kumar v. Rakesh Kumar[6]

6 (2003) 8 SCC 673

416SUPREME COURT REPORTS

Aand taking assistance thereof submitted that the finding offact returned by the High Court is based on due appreciationattached to its probative value and only thereafter it hasbeen held that the appellant has failed to establish his dateof birth as 30[th] September, 1990 and rightly declared theelection of the appellant to be null and void and not eligibleBto contest the election in view of Article 173(b) of theConstitution.

16. We have heard learned counsel for the parties and with theirassistance perused the documentary and oral evidence on record, inextenso. Taking into consideration the settled principles as laid down byCthis Court, it is to be examined whether the date of birth of the appellant,as claimed by him, is 30[th] September, 1990 or it is 1[st] January, 1993.

Purpose of the Evidence Act

17. The purpose of the Evidence Act, 1872 is to prove and disprovethe existence of facts in issue and to find out the truth of the facts whichDare asserted by the parties as the decision of the case lies upon/dependsupon the truthfulness of those facts. The Act essentially does thebalancing of interest between the parties to the proceedings and suchbalancing has to be done by establishing the truth of the facts asserted.Ultimately, the Indian Evidence Act, 1872 is about the quest towardsEtruthfulness. “Procedure is the handmade of justice and not itsmistress” i.e. procedure is not to control justice but procedure is thehelping hand of justice and it helps to facilitate justice.

18. It is well-established dictum of the Evidence Act thatmisplacing the burden of proof vitiates the judgment. At the same time,Fthe rule relating to the burden of proof is based upon certain practicalconsiderations of convenience and reasonableness and also of policy,but where there is rebuttable presumption of law in favour of oneparty, the burden of rebutting it lies upon the later.

19. At the same time, when any fact is especially within theGknowledge of party, the burden of proving it lies upon that party. Theterm “especially” means facts which are pre-eminently or exceptionallywithin the knowledge of person. It is true that it cannot apply when thefact is such as to be capable of being known also by persons other thanthe party. This rule is an exception to the rule of burden of proof. Thus,when person acts with some intention other than that which the characterH

and circumstances of the act suggest, the burden of proving the intentionis upon him. The bottom line of the purpose of the Indian Evidence Actis to adopt procedure that helps to facilitate justice and ultimately whatis required is to unearth the truth, to prevail.

20. So far as the principles of burden of proof is concerned, theprinciples have been succinctly laid down by this Court in Sushil Kumar(supra) paras 28 to 32 :

28. It is no doubt true that the burden of proof to show that acandidate who was disqualified as on the date of the nominationwould be on the election petitioner.

29. It is also true that the initial burden of proof that nominationpaper of an elected candidate has wrongly been accepted is onthe 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 personwho wishes the court to believe in its existence, unless it is providedby any law that the proof of that fact shall lie on any particularperson.

31. Furthermore, in relation to certain matters, the fact being withinthe special knowledge of the respondent, the burden to prove thesame would be on him in terms of Section 106 of the IndianEvidence Act. However, the question as to whether the burden toprove particular matter is on the plaintiff or the defendant woulddepend upon the nature of the dispute. (See Orissa MiningCorpn. v. Ananda Chandra Prusty [(1996) 11 SCC 600]

32. The age of person in an election petition has to be determinednot only on the basis of the materials placed on record but also upontaking into consideration the circumstances attending thereto. The initialburden to prove the allegations made in the election petition althoughwas upon the election petitioner but for proving the facts which werewithin the special knowledge of the respondent, the burden was uponhim in terms of Section 106 of the Evidence Act. It is also trite that whenboth parties have adduced evidence, the question of the onus of proofbecomes 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 party to

Athe lis shall be binding on him and in any event presumption must bemade that the same is taken to be established.

21. As per Section 35 of the Evidence Act, register of recordmaintained in terms of the statute or by statutory authority in the regularcourse of business would be relevant fact and in the aforementionedBbackdrop, the evidence brought on record is required to be considered.The parties have led their documentary as well as oral evidence andhave marked exhibits in reference to relevant documents placed by theelection petitioner and the appellant in support of their respective claimsto justify with regard to the date of birth of the appellant. The oral anddocumentary evidence relied upon has been noticed in paras 8 and 9 ofCthe judgment and are reproduced herein :

8. Both the parties have led documentary and oral evidences.Following papers have been admitted in evidence and have beenmarked as Exhibits as under:-

Petitioner’s evidences:DEFGH

ABCDEFGH

D.W.-9 - Shahzeb Khan, friend of father of the respondent.

D.W.-10 - Mohd. Abdullah Azam Khan, respondent.

Analysis of the Evidence

22. Now, we shall advert to the circumstances appearing in thecase which support the view taken by us. The notification was issuednotifying the schedule for election of UP State Legislative Assemblyfrom 34, Suar Assembly Constituency of District Rampur as under:-

(a)Date of filing of nomination25[th] January, 2017(b)Date of scrutiny of nomination28[th] January, 2017(c)Date of withdrawal of nomination30[th] January, 2017(d)Date of allotment of symbols1[st] February, 2017(e)Date of Poll15[th] February, 2017(f)Date of counting11[th] March, 2017

23. The appellant filled his nomination papers on 24[th] January,2017, and was declared elected on 11[th] March, 2017 by securing thehighest 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 contestthe 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 hisnomination papers and the date on which he contested the election andalso on the date of declaration of the result of 34, Suar AssemblyConstituency of District Rampur.

25. The documentary evidence placed by the respondent/electionpetitioner on record to substantiate that the date of birth of the appellantis 1[st] January, 1993 are all public documents issued by the publicauthorities and are admissible in evidence in terms of Section 35 of theIndian Evidence Act, are as follows:

Following documentary evidences, record birth year of theappellant to be the year 1993 (01.01.1993):—

(i) Ex. P4 - paper No. A-25/1 - Copy of secondary schoolexamination Class 10[th] result 2007 issued by Central Board ofSecondary Education.

(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 birth01.01.1993.

(iii) Ex. P1 - paper No. A-51/1 - copy of birth certificate No. 3857of the appellant issued by Nagar Palika Parishad, Rampur, showingdate of birth of the appellant as 01.01.1993 and date of Registration28.06.2012.

(iv) Ex. P1 - paper No. A-49/1-4, appellant’s pass port applicationdated 06.07.2012, filed by him under his signature mentioning hisdate of birth as 01.01.1993, and place of birth Rampur.

(v) Ex. P-1 - paper No. 53/1, Pass port preview details ofappellant’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 01.01.1993and entries of departure/arrival dated 30.04.2013, 05.05.2013,D09.06.2015 and 26.07.2016 and Visa dated 09.07.2014 allmentioning date of birth as 01.01.1993.

(vi) Ex.R-11 (Paper No. A95/1-34) the copy of service book ofthe appellant’s mother filed by the appellant in evidence and provedby the D.W.-1. It contains G.I.S. Nomination form signed andsubmitted by the appellant’s mother (D.W.-5) on 26.04.2001mentioning appellant’s age to be 8 years.

(vii) Ex. P3 - paper No. 80/1, copy of appellant’s birth certificatedated 28.06.2012, issued by Nagar Palika Parishad, Rampur, issuedon the basis of original record of birth. This birth certificate wasFsubsequently cancelled by the Registrar on 30.01.2015 on theapplication of the appellant.

26. The respondent/election petitioner appeared as witness,PW.1 and while supporting the documentary evidence established thatthe date of birth of the appellant as per the school records and otherdocumentary evidence placed on record is 1[st] January, 1993, at the sametime made specific averment in his examination-in-chief regarding thedocuments placed by the appellant/returned candidate on record, thatthese are all fake and forged documents which are manufactured tocreate false evidence regarding the age and date of birth of the appellant.Further, the official documents issued prior to the year 2015 consistently

indicate his date of birth as 1[st] January, 1993 and that is also elicitedfrom his cross-examination.

27. The Court Witnesses, PW.2 Mohd. Naseem, the PassportOfficer, Bareilly, PW.3 Mohd. Ateer Ansari, Junior Passport Assistant,Bareilly and PW.4 Tej Pal Singh Verma, Chief Sanitation and FoodInspector/Deputy Registrar Birth and Death, Nagar Palika, Rampur wereexamined and they supported the public documents placed on recordwhich establishes that the birth certificate issued by the HealthDepartment, Nagar Palika, Rampur dated 28[th] June, 2012, in addition,the online application filled by the appellant for the issuance of passport,the old Passport No.F 8757022 issued on 28[th] August, 2006 by PW.2and PW.3 and placed on record the relevant online application and otherdocuments which were filed by the appellant in January 2015 and allsuch documents were duly supported by the public officers P.W.2 andP.W.3 in their deposition. The Court Witness PW.4 in his examination-in-chief deposed that all registers and other records related to birthcertificate No.3857 dated 28[th] June, 2012 of the appellant have beendestroyed because of the fire due to short circuit on 8[th] May, 2015 in theoffice of Nagar Palika, Rampur and is unable to place any record priorto 8[th] May, 2015, but verified the birth certificate dated 28[th] June, 2012as the record is available in the computer system and copy was placedon record and all these documents were generated either by the appellanthimself or at his instance.

28. Thus, from the evidence on record, the respondent was ableto establish from the documentary evidence which belongs to the appellantthat consistently from day one he has shown his date of birth as 1[st]January, 1993 not only in his academic record but also in the birthcertificate obtained by him issued on 28[th] June, 2012 (Ex. A-80/1) byNagar Palika, Rampur his date of birth as 1[st] January, 1993 which couldhave been possible only when the relevant documentary evidence wasavailable with the competent authority/in the office of Nagar Palika,Rampur and this fact cannot be ruled out.The respondent has establishedon record that the date of birth of the appellant is 1[st] January, 1993 andthis fact was not disputed by the appellant that the documents placedand relied upon by the respondent on record are public documents issuedby the competent authorities.

29. At this stage, the objection of the appellant was that althoughthe documents relied upon by the respondent belong to him, but the

Acorrectness of the documents is in question, in rebuttal the defence ofthe appellant throughout even in the defence evidence put forward wasthat in the year 1995 because his father was away, friend of his fatherDW.9, Shahzeb Khan, took him to the school in 1995 and got recordedhis date of birth as 1[st] January, 1993. Even if this stand of the appellantis taken on the face value, the date of birth which is recorded in hisBSecondary School Examination, followed with his passport of the year2006 and his certificate of birth issued by Nagar Palika, Rampur withregistration No.RNPB2012-03857 dated 28[th] June, 2012 of which detailshave been furnished at least upto the year 2015 consistently in allunimpeachable documentary evidence not only in his academic recordsCbut in all other correspondence, he has throughout reflected his date ofbirth as 1[st] January, 1993, and since these are all his documents issuedfrom the office of public authorities by the public officers based on therelevant data made available by the appellant himself/on filling applicationonline or physically, the documents released to him in the name of theappellant disclose his date of birth as 1[st] January, 1993 and afterDevaluation of the documentary evidence supported by oral evidence onrecord, this Court certainly can record that it has sufficient probativevalue, as required under Section 35 of the Evidence Act.30. At the same time, the appellant, on the other hand, has notdisputed these documents which have been relied upon by the respondentE(election petitioner), of which detailed reference has been made in para8,said documents belong to the appellant himself and are in public domain,issued by the public authorities/competent authorities and obviouslyinformation has been extended by the appellant himself and to make thesmoke clear at this stage, the defence of the appellant was that at theFtime when the appellant went to the school in 1995, the friend of hisfather DW.9 got recorded his date of birth will not have any significance,since in the matriculation certificate and all applications which are filledby the appellant himself and these documents are generated which theappellant has been failed to counter at any given point of time. In

countering, the appellant has come out with defence that his motherGDW.5 who was Lecturer in Postgraduate College and retired in2009, in her cross-examination deposed that her son (the appellant) afterdoing his M.Tech became active in politics in the year 2015 and at thistime she proceeded for issuance of birth certificate from Nagar Nigam,Lucknow and submitted application on 17[th] January, 2015 (Ex.A-96/1-H5).

31. It is curious to note that the request made by her was addressedto the Chief Health Officer, Nagar Nigam, Lucknow with statementthat her son (the appellant) was born on 30[th] September, 1990 in QueenMary’s Hospital, Lucknow and the birth certificate is urgently neededfor very important and unavoidable reasons and she enclosed her ownaffidavit. On such an application being furnished, within three days, thebirth 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 commonman.

32. It is sufficient to note that there was no documentary evidenceobtained from Queen Mary’s Hospital, Lucknow, prior to the applicationdated 17[th] January, 2015, submitted by her (mother of appellant) forseeking birth certificate from Nagar Nigam, Lucknow and it is not thecase of the appellant that his date of birth recorded as 1[st] January, 1993was due to some inadvertence, but at later stage, it came across that thecorrect date of birth of the appellant is 30[th] September, 1990 and thisfact revealed in the year 2015, the family proceeded to obtain certificateof birth from Nagar Nigam, Lucknow.

33. It is also to be noted that on 28[th] June, 2012, birth certificatewas obtained by the appellant from Nagar Palika, Rampur and supportingdocumentary evidence must have been available in the office of NagarPalika, Rampur, or placed by the appellant, on the basis of which thebirth certificate has been issued to him on 28[th] June, 2012, and admittedlyit is not possible that at two different places (Rampur/Lucknow) hisbirth has taken place or record is maintained and the document obtainedfrom Nagar Palika, Rampur, on 28[th] June, 2012 was completely concealedand the documents were later generated/obtained from Queen Mary’sHospital, Lucknow, which were for the first time placed on record in thecourse of the election petition.34. In other words, the appellant was not holding any documentaryevidence to support his claim prior to being placed on record in the courseof election petition from Queen Mary’s Hospital, which was made to bea basis in the year 2015 to seek duplicate birth certificate of 30[th]September, 1990. To make it further clear, the duplicate birth certificatewas issued by Queen Mary’s Hospital on 21[st] April, 2015 (Ex.A-37)indicating the date of birth of the baby of DW.5 on 30[th] September,1990. From this document, it is clear that on 17[th] January, 2015, on the

Adate when the application was submitted by his mother (DW.5) addressedto the Chief Health Officer, Nagar Nigam, Lucknow, to obtain the birthcertificate of the appellant there was no documentary evidence availablein the custody of DW.5 to support that the child was born in the hospitalon 30[th] September, 1990.

B35. duplicate birth certificate was obtained from Queen Mary’sHospital, Lucknow on 21[st] April, 2015 but what happened to the original,if any, has never been placed by the appellant on record. Just to make aclarification that even in the application dated 17[th] January, 2015, submittedby DW.5 (appellant’s mother) there was no mention of certificateearlier issued and the demand is to issue duplicate certificate of theCdate of birth of the appellant who is born, as alleged, in the Queen Mary’sHospital, Lucknow on 30[th] September, 1990. The very foundation onwhich the appellant has proceeded to establish that his date of birth is30[th] September, 1990 falls on the ground.

36. It was admitted by DW.5 in her cross-examination that in allDhis school records, Xth, XIIth, Undergraduate, Postgraduate degree, hisdate of birth recorded is 1[st] January, 1993 and that the question put toher in cross-examination about the date of birth of the appellant recordedin the academic record is 1[st] January, 1993, she made very curiousstatement that it is the appellant who informed her that his date of birthEis wrongly recorded in his school records, but neither the appellant normother-DW.5 ever proceeded in seeking correction in the date of birthcertificate 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,Fthe date of birth certificate issued from Nagar Palika, Rampur on 28[th]June, 2012, his date of birth recorded as 1[st] January, 1993 and curiously,for the first time, in his examination-in-chief he has stated that his mothertold him that he was born on 30[th] September, 1990, and not on 1[st] January,1993, and in reference to all the documents which were put to him incross-examination, his only statement was that although these documentsGbelong to him, but his date of birth has been incorrectly recorded, andlater cancelled, but while making statement of date of birth beingincorrect, nothing in counter was placed on record, except the documentsplaced for the first time in the course of the election petition. From wherethis fact was gathered, it was not disclosed even in the cross-examinationand statement was made in his cross-examination that his date of birthHeither in his birth certificate dated 28[th] June, 2012 or in passport whereverrecorded of 1[st] January, 1993 at later stage was cancelled and hasmade completely evasive answer in his cross-examination. To supportin evidence, the appellant has produced three basic documents, EOTregister (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. VineetaDas, 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,5097carry any overwriting on the particular entry, she admitted that yes,overwriting has been done and which can be seen in column no.3 of it.In further question put to her in the cross-examination about thedescription in column no.16 of the register that whether it matches withthe information mentioned in rest of the column, and also that whetherthe entry of period of pregnancy at page 174 of EOT register is differentfrom entry of period of pregnancy in page 225 of MLR register, sheadmitted that yes, all these entries are different. The extract of questionsput to Dr. Uma Singh (DW.3) in reference to the so-called official recordof the hospital is as under:

(a)Whether you can say confidently that the information ofthe children born on 30.09.1990 was sent to MunicipalCorporation, Lucknow?

Ans.:Yes.

(b)Whether you can tell after seeing the entry of page 174Fof EOT register Annual No.5097 carried along by youthat any overwriting has been done in this or not?

Ans. :Yes, overwriting has been done in it. Overwriting is seenin column no.3 of it.

(c)Whether you can tell by seeing the description in columnGno.16 of above register that whether it matches with theinformation mentioned in rest of the column of aboveregister?

Ans.:No

A(d)Whether the nature of period of pregnancy at page no.174of EOT register Annual No.5097 column no.10 isdifferent from the entry of period of pregnancy in pageno.225 of MLR register Annual No.1826, Column no.10?

Ans.:Yes.

(e)Whether in the manner in which the entries are made atpage no.225 of MLR register it matches with the entriesmade on the above page of other account number?

Ans. :Do not match totally.

(f)The EOT register and MLR register which you haveCbrought with you today in the Court and presented beforethe Court, is it attested or signatured by any of the officeror department head by Queen Mary’s hospital or KingGeorge Medical? And the entries therein or any of thepage is signed or counter signed by any of the officer orDdoctor of the hospital? And whether both the abovementioned hospital registers are authenticated by any ofthe officer or department head?

Ans.:Above both registers are not authenticated by the officerof Queen Mary’s hospital or King George University.EAbove both registers are also not attested. But some ofthe pages are signed by consultant of the hospital.

38. To support the documents placed on record from the QueenMary’s Hospital, Dr. Vineeta Das (DW.4), the HoD, Obstetrics &Gynecology Department, also appeared in the witness box.F39. At the same time, so far as the register of the Nagar Nigam,

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. ArchanDwivedi, she appears to have completely surrendered in cross-examination in support of the documents placed by her. Few of thequestions put to her in cross examination to produce the register ofGRegistration of Birth and Death maintained by the Nagar Nigam,Lucknow be relevant to quote:

(a)Whether is it necessary to maintain the birth register inthe format given in Registration of Birth & Death Act,1969?

HAns.:Yes.

(b)Above papers were shown again and asked that can yousee this and till that what is date of registration of birth ofthe respondent mentioned therein?

Ans.:In column number 3 of this paper date of birth registrationis 21.01.2015.

(c)After how many days the birth certificate is being issuedafter the related entries made in birth register?

Ans.:When the applicant gives request letter thereafter thebirth certificate is issued. Birth registration is doneimmediately after receiving of birth list from the hospital.

(d)Whether the statement given by you today in front ofcourt is based on the official record maintained in theoffice?

Ans.:Yes, again stated that the above said birth register is notin the prescribed format, and again want to state that thesaid format only followed but it has not been used in thiscase. Pagination has not been done and neither registerhas been attested nor pagination has been done by anycompetent officer.

40. The witness has not even been able to support the documents.Apart from the said documents, we have looked into the extract copiesof 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 of30[th] September, 1990 and there was no space left on the page, still itreveals that someone has tried to insert further illegal entry and if itwould have been in continuation on the next page at page 44 after 30[th]September, 1990, the second entry comes on 2nd October, 1990 and on1[st] October, 1990 there is no entry. At the same time, all entries appearto have been made at the same point of time in continuation and thisCourt cannot attach any credence to the documents on which theappellant has heavily relied upon which, according to him, is the basis forissuance of the birth certificate on mere application submitted by themother DW.5 dated 17[th] January, 2015, issued by the Nagar Nigam,Lucknow on 21[st ]January, 2015. Rest of the documents supported by theoral evidence placed by the appellant on record are only to justify thatDW.5 was on maternity leave and male child was born in the year1990 and the third maternity leave was availed by her from 7[th] August,

A1990 to 24[th] October, 1990 and male child was born on 30[th] September,1990, no credence of any kind could be attached to it.

41. That apart from oral evidence to support the documents placedon record obtained from the Queen Mary’s hospital, we have lookedinto the relevant documents and from naked eye it appears that the EOTBregister where the name of DW.5, mother of the appellant has beenshown, entry appears to be partially erased and rest of the page otherthan the entry relating to DW.5, no change is being reflected from theentire document.

42. When the entire evidence is before the Court, it is well settledCthat the burden of proof becomes immaterial at the given point of timethe document made ante litem motamcan be relied upon safely whensuch documents are admissible under Section 35 of the Evidence Act.This Court in large number of judgments, including Brij MohanSingh (supra), Updesh Kumarand Others v. Prithvi Singh andOthers[7], State of Punjab v. Mohinder Singh[8], Vishnu aliasDUndrya v. State of Maharashtra[9] and Satpal Singh v. State ofHaryana[10] came to the conclusion that while considering such an issueand documents admissible under Section 35 of the Evidence Act, has toexamine the probative value of the contents of the document. Theauthenticity of entries may also depend on whose information such entryEstood 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 appellantconsistently indicates the recorded date of birth of the appellant is 1[st]January, 1993 and to be more specific before 17[th] January, 2015, allFdocuments which were released from various public offices under thesignatures of public authorities, the date of birth of the appellant hasthroughout been shown as 1[st ]January, 1993 and as stated by DW.5(mother of the appellant) and so also the appellant herein (DW.10) afterdoing his post-graduation he wanted to come in active politics, applicationwas submitted on 17[th] January, 2015 for the first time to the office of theGNagar Nigam, Lucknow for obtaining the birth certificate of the appellantbased on Queen Mary’s Hospital, Lucknow and the fact is that no

7 (2001) 2 SCC 5248 (2005) 3 SCC 7029 (2006) 1 SCC 283H10 (2010) 8 SCC 714

documentary evidence was supported along with the application, exceptthe affidavit sworn by DW.5 to the application dated 17[th] January, 2015and it is not possible for common man to get the birth certificate in theexisting facts and circumstances, but so far as the appellant is concerned,birth certificate was issued with no loss of time on 21[st] January, 2015which was otherwise not possible. It may be noticed that cancellationhas taken place at later point of time and who is the authority competentto cancel, nothing has been brought on record but the fact is that theappellant himself has obtained the certificate of birth from Nagar Palika,Rampur on 28[th] June, 2012 indicating his date of birth as 1[st] January,1993 apart from other documentary evidence which the appellant latergot cancelled. This fact cannot be ruled out that there must be the evidenceavailable before the Nagar Palika, Rampur, based on which BirthCertificate was issued to him on 28[th] January, 2012. very peculiarsituation is created. Two birth certificates are issued by two differentauthorities (Nagar Palika, Rampur/Nagar Nigam, Lucknow) at differentpoint of time, the presumption is that there must be some documentaryevidence available in the custody of municipality indicating two differentdates of birth of the same person at the same time i.e. the appellantherein.

44. The judgment relied upon by the appellant in Birad Mal Singhvi(supra) was case where one of the defeated candidates filed an electionpetition and his submission was that there were two other candidateswhose nomination papers were arbitrarily rejected by the election officerbut they neither came in the witness box nor any person appeared in thewitness box to support the date of birth recorded in the matriculationcertificates of those two candidates. In the given situation, those recordscould not have been relied upon and become inadmissible in view ofSection 35 of the Evidence Act.

45. So far as the judgment relied upon by the appellant in JoshnaGouda (supra) was case where the reliance was placed on the schooladmission register and admission form, including the transfer certificate,but no supporting evidence/proof was available on record. In that context,a finding was recorded that conclusive finding regarding the probativevalue in reference to the three documents Exhs.5, 5A and 7 could not beattached.

46. It is also trite law that when both the parties have adducedevidence and that too is in reference to common question and

Aparticularly for determination of age, which is the subject matter of disputeand when both the parties have adduced evidence, the question of onusof proof becomes academic. This has been considered by this Court inRakesh Kumar (supra) wherein as regards the determination of ageof the candidate in terms of Section 36(2) of the Representation of thePeople Act, 1951, this Court observed :B

“27. In Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673] thisCourt as regards determination of age of candidate in terms ofSection 36(2) of the Representation of the People Act, 1951observed: (SCC pp. 684-85, para 32)

C“32. The age of person in an election petition has to bedetermined not only on the basis of the materials placed onrecord but also upon taking into consideration the circumstancesattending thereto. The initial burden to prove the allegationsmade in the election petition although was upon the electionpetitioner but for proving the facts which were within the specialDknowledge of the respondent, the burden was upon him in termsof Section 106 of the Evidence Act. It is also trite that whenboth parties have adduced evidence, the question of the onusof proof becomes academic [see Union of India v. SugauliSugar Works (P) Ltd. [(1976) 3 SCC 32] and Cox and KingsE(Agents) Ltd. v. Workmen [(1977) 2 SCC 705 : 1977 SCC(L&S) 342] ]. Furthermore, an admission on the part of partyto the lis shall be binding on him and in any event presumptionmust be made that the same is taken to be established.”

This Court therein followed, inter alia, Birad Mal Singhvi [1988FSupp 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 as1[st] January, 1993 and which is duly supported by his academic recordfrom Class X onwards at all stages which had been generated onlyGunder the appellant’s own signatures or under the authority of the appellantand this in no manner could be disputed. Merely because the same hasbeen later on cancelled by the appellant, it may not lose its evidentiaryvalue.

48. In this regard, it may be relevant to note that Section 13(3) ofthe Registration of Birth and Death Act, 1969, clearly postulates thatH

delayed registration of birth and death are permissible provided aprocedure prescribed has been followed after taking orders from theMagistrate and proving the correctness of the date of birth. Althoughthe defence of the appellant is that since his name was already registeredin the records of Nagar Nigam, Lucknow, Section 13(3) of theRegistration of Birth and Death Act, 1969 may not apply, but thissubmission appears to be misplaced for the reason that on the basis ofthe birth record maintained by the Nagar Palika, Rampur, the birthcertificate was issued to him under the orders of the competent authorityon 28[th] June, 2012, and there cannot be two separate records of birthavailable in two different municipalities (Rampur/Lucknow) of the sameperson and in the given situation, no credibility can be attached on therecords maintained by the Nagar Nigam, Lucknow, and in our consideredview, the procedure as prescribed under Section 13(3) of the Act, 1969,in the ordinary course of business, was supposed to be adopted by theauthorities while fresh certificate of date of birth was issued to him on21[st] January, 2015, which indeed has not been followed by the competentauthority by Nagar Nigam, Lucknow.

49. In the instant case, the date of birth of the appellant throughoutin his records is 1[st] January, 1993 and only in the year 2015 when theappellant became keen to enter into active politics, the mother of theappellant (DW-5) submitted an application for the first time on 17[th]January, 2015, claiming that the appellant was born on 30[th]September1990, and birth certificate may be immediately issued to her and withinthree days, birth certificate was issued by the Nagar Nigam, Lucknowon 21[st] January, 2015. In support thereof, the documentary evidencewhich the appellant has placed on record obtained from the Queen Mary’sHospital, Lucknow, as foundation on which the birth certificate hasbeen issued as alleged from the Nagar Nigam, Lucknow, in ourconsidered view, no probative value could have been attached to it.50. The High Court, in our considered view, has examined thedocumentary and the oral evidence available on record in exten so, wefind that no manifest error was committed by the High Court in passingthe 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.

ANAGARATHNA J.

I have had the benefit of reading the judgment proposed by HisLordship Ajay Rastogi, J. While I concur with the reasoning as well as theconclusion arrived at by His Lordship, I, however, wish to elaborate on thereasoning and also assign additional reasons for dismissing the appeal.

2. This appeal assails the judgment of the High Court of Judicatureat Allahabad, dated 16.12.2019 in Election Petition No.08 of 2017 bywhich the petition filed by the election petitioner herein against thesuccessful candidate herein has been allowed and the election of thesuccessful candidate herein, to the Uttar Pradesh Legislative AssemblyCfrom the 34-Suar Constituency, District Rampur held in the year 2017has been set aside.

For the sake of convenience, the rank of the parties herein shallbe referred to as per their rank and status in the Election Petition filedbefore the High Court. In other words, they shall be referred to as theDelection petitioner and the successful candidate, respectively.

3. Succinctly stated, the facts giving rise to the instant appeal areas under:

3.1. notification was published under Section 15 of theRepresentation of People Act, 1951(hereinafter referred to as R.P. Act),Enotifying the election of Uttar Pradesh State Legislative Assembly, inter-alia, from 34-Suar Constituency, District Rampur, Uttar Pradesh. Asper the said notification, the last date for filing the nomination forcontesting the election was 25.01.2017 and the poll was scheduled to beheld on 15.02.2017. The appellant was the successful candidate whileFthe election petitioner was the unsuccessful candidate who filed theelection 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, NawabKazim Ali Khan, filed an objection before the Returning Officer,Gchallenging the successful candidate’s nomination on the ground that hehad not attained the age of twenty-five years at the time of filing hisnomination and was therefore, ineligible to contest the election in viewof Article 173(b) of the Constitution of India. The election petitioner hadfiled his objection on the basis of newspaper article published in localHdaily, Dainik Jagran Amar Ujala on 28.01.2017.

3.3. By order dated 30.01.2017, the Returning Officer rejectedthe objection filed by the election petitioner herein by observing that thesuccessful candidate herein had stated in Column of Section 3 of thenomination form, as also in Form 26, that his age was twenty-six years.That in support of such claim, the successful candidate had attached hisBirth Certificate (No.229428) which was issued to him by the NagarNigam, Lucknow, on 21.05.2015 and in the said document, the date ofbirth of the successful candidate was recorded as 30.09.1990. It wasfurther noted that as per the successful candidate’s Aadhar card and theelectoral roll, his age at the relevant time was twenty-six years.Consequent to the rejection of the objections raised by the electionpetitioner and on the basis of the documents submitted and detailsfurnished by the successful candidate in the nomination form, hisnomination was accepted by the Returning Officer.

3.4. The election was held as scheduled on 15.02.2017 and on11.03.2017, the appellant was declared as the successful candidate inthe election to the Uttar Pradesh Legislative Assembly from the 34-Suar Constituency, District Rampur. The election petitioner herein stoodthird in the said election.

4. In the above background, the election petitioner filed ElectionPetition No.08 of 2017 before the High Court of Judicature at Allahabad,seeking declaration that the election of the successful candidate to theUttar Pradesh Legislative Assembly be declared as null and void, fornon-compliance of the requirements of Article 173(b) of the Constitutionof India. The said prayer was allowed by the High Court and the electionof the successful candidate was set aside. Hence, this appeal.

Pleadings:

5. The averments made by the election petitioner in his ElectionPetition do not call for 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 thenomination papers as well as on the date of the electionand therefore, his candidature seeking election to the UttarPradesh Legislative Assembly ought not to have beenaccepted in light of Article 173(b) of the Constitution ofIndia read with Section 36(2) of the R.P. Act.

438SUPREME COURT REPORTS

Aii)That the birth certificates produced by the successfulcandidate before the Returning Officer were duplicatecertificates issued by the Queen Mary’s Hospital, Lucknow,and the Nagar Nigam, Lucknow, on 21.04.2015 and21.01.2015, respectively, and not on 30.09.1990, being thedate on which the successful candidate was stated to haveBbeen born. Therefore, such documents did not reflect thecorrect date of birth of the successful candidate.

iii)That the Returning Officer rejected the objection filed bythe election petitioner without verifying the date of birth ofthe successful candidate in the original birth certificatesCissued by the Queen Mary’s Hospital, Lucknow and theNagar Nigam, Lucknow. The birth certificates issued bythe Queen Mary’s Hospital, Lucknow and the Nagar Nigam,Lucknow were fabricated documents and the successfulcandidate’s actual birth certificate was issued by theDRegistrar (Birth and Death), Nagar Palika Parishad, Rampur,Uttar Pradesh and as per the said document, his date ofbirth was 01.01.1993 and not 30.09.1990 as contended bythe successful candidate.

On the above pleadings, the election petitioner sought setting asidethe election of the successful candidate.E

6. In response to the Election Petition, the successful candidate inthe election, filed his written statement before the High Court, interalia, with the following averments:

i)That he was born on 30.09.1990 at Queen Mary’s Hospital,FLucknow, and not on 01.01.1993 as alleged by the electionpetitioner. Therefore, he was above the age of twenty-fiveyears as on the last date of filing the nomination, i.e., on25.01.2017, on the date of scrutiny of his nomination, i.e.,28.01.2017 and on the date on which he was declared asthe elected candidate, i.e., on 11.03.2017. Hence, he wasGduly qualified to contest the election and hold the office ofa Member of Legislative Assembly, under Article 173(b) ofthe Constitution of India and provisions of the R.P. Act.

ii)That the Returning Officer rightly rejected the objectionsraised by the election petitioner in view of the fact thatHthere was no defect of substantial nature in the successful

candidate’s nomination paper and accompanyingdocuments.

With the aforesaid averments it was prayed that the ElectionPetition filed by the election petitioner be dismissed by the High Court asbeing devoid of merit.

6.1. The election petitioner filed his replication to the writtenstatement which is summarised as under:

(A)While denying the contents of the written statement to betrue and the documents attached to the written statementbeing fabricated, forged and misleading, the electionpetitioner reiterated the contents of his election petition.

C(B)The election petitioner has taken an additional plea to theeffect that on 14.08.2017, the Election Officer Rampur, hadforwarded representation which was moved by one, Mr.Akash Kumar Saxena, Chairman of the Indian IndustriesAssociation, to the Chief Election Officer, disclosingDdiscrepancies with respect to the Pan Card of the successfulcandidate. That the successful candidate had clandestinelyprocured new Pan Card bearing No. [REDACTED] whichwas issued to him on 24.03.2015, showing his date of birth as30.09.1990 by deliberately concealing the fact that he hadalready been issued Pan Card No. [REDACTED] onE30.08.2013 in which his date of birth was recorded as01.01.1993. As per the original pan card, the successful candidate

was less than twenty-five years of age, whereas, according tohis new pan card he was twenty-six years of age.

(C)Further, the successful candidate had opened bank accountno. 34341386006 in State Bank of India with Pan Card No.[REDACTED] wherein his date of birth in the bank accountwas recorded as 01.01.1993. That the successful candidatehad two pan cards and had not disclosed his correct incomewhile contesting the legislative assembly elections.

Evidence:

7. The parties let in oral as well as documentary evidence in theElection 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-4documents.

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 petitionerBherein and set aside the election of the successful candidate/appellantherein in respect of 34-Suar Constituency, District Rampur, held in theyear 2017. Being aggrieved successful candidate has preferred thisappeal.

Submissions:C

We have heard Shri Kapil Sibal, learned senior counsel instructedby learned counsel on behalf of the successful candidate whose electionhas 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 candidateDdo not call for reiteration and are epitomised as under:

8.1. Learned senior counsel, Shri Kapil Sibal, appearing on behalfof the successful candidate submitted that the impugned judgment of theHigh Court had been rendered based on an erroneous appreciation oflaw and facts relating to the controversy at hand, and also on an incorrectEunderstanding of the fact in issue. That the appellant-successful candidate,at the time of filing his nomination as well on the date of polling, hadcompleted the age of twenty-five years and was therefore competent inall respects to hold the office of Member of Legislative Assembly.

8.2. It was contented that the fact in issue in the present case isFnot whether the successful candidate entered his date of birth as01.01.1993 in his official documents, but whether the successful candidatewas actually born on 01.01.1993; or whether despite the fact that certaindocuments had recorded the successful candidate’s date of birth to be01.01.1993, he was actually born on another date, i.e., 30.09.1990.

8.3. It was submitted that the best evidence as regards the actualdate of birth of the successful candidate, was the testimonial evidenceof the successful candidate’s mother (DW-5) and the doctor (DW-3)who delivered the successful candidate. That the law of evidencerequires that direct and primary evidence, if available, must be givenHfor proof of fact and such evidence would be the best evidence of

such fact. This foundational rule is reflected, inter-alia, in Sections 59to 65 and Section 91 of the Indian Evidence Act, 1872 (hereinafterreferred to as “Evidence Act” for the sake of brevity). In the instantcase, the evidence of the successful candidate’s mother and thedelivering doctor is direct oral evidence of the fact of birth of thesuccessful candidate on given date.

8.4. It was vehemently contended that DW-5’s testimony wasfully corroborated by the recitals in her service book and salary register,as also by the hospital records. That the hospital records such as theEmergency O.T. (E.O.T) register and the Maternity Labour roomRegister (MLR), were not only primary and direct evidences that werecontemporaneous to the event of birth, but were also public documentswhich were produced from proper custody and therefore, they would beboth relevant and admissible under Section 35 read with Section 74 ofthe Evidence Act.

8.5. Further, referring to the testimony of DW-3, namely, Dr. UmaSingh, who is stated to be the doctor who enabled the delivery of thesuccessful candidate, it was submitted that the statements made by DW-3, when considered together with the hospital records, conclusivelyestablish that the successful candidate was born on 30.09.1990. ThatDW-3 was one such witness, who was connected with the successfulcandidate’s birth in manner as would enable her to vouchsafe the truthas to the date of birth of the successful candidate. That the High Courtcommitted grave error in disregarding the evidence of DW-3 on thesole ground that she stated that she was unable to say with certainty thatthe baby born to DW-5 on 30.09.1990, was in fact, the successfulcandidate. That to expect DW-3 to make such an assertion, was anabsurd requirement, which was not contemplated under law.

8.6. Shri Kapil Sibal, learned senior counsel sought to explain thediscrepancy in the period of pregnancy of the successful candidate’smother, as recorded in Column 10 of the relevant entry in the maternitylabour room register by stating that the age of the successful candidate’smother at the time, i.e., 38 years, had been incorrectly entered in thecolumn dedicated for ‘period of pregnancy.’ That this was in the natureof clerical error and ought not to be held to have material bearing onthe authenticity of the record itself, more so, when all other detailsrecorded in the said register were correct.

A8.7. As regards the allegations of forgery and fabrication of thehospital records, it was averred that by making entries as to the successfulcandidate’s birth on later date, it would require single horizontal spacein the registers ought to have been kept blank since 1990, till wheneverthe successful candidate is alleged to have created the forged records.Such an assumption is wholly improbable and therefore, there is noBpossibility of forgery and fabrication of the hospital records. Further, nosuch absurd presumption could be made particularly when the hospitalrecords stood corroborated by the testimonial evidence of DW-4, namely,Dr. Vineeta Das, Head of the Department of Gynaecology and Obstetricsas well as by the birth certificate dated 21.04.2015 issued by DW-3 andCDW 4 and proved by them.

8.8. It was next contended that the High Court’s reliance on schoolrecords of the successful candidate, wherein his date of birth wasincorrectly recorded as 01.01.1993, was misplaced. That school recordsare not direct evidence of the fact of birth and cannot, on balance ofDprobabilities, be given pre-eminence over direct evidence of the mother,delivering doctor and contemporaneously created hospital records. Inorder to buttress such averments, reliance was placed on Birad MalSinghvi vs. Anand Purohit A.I.R. 1988 SC 1796; Sushil Kumar vs.Rakesh Kumar (2003) 8 SCC 673; Joshna Gouda vs. BrundabanGouda (2012) 5 SCC 634.

8.9. It was further submitted that the error in the school recordshad been sufficiently explained by DW-5, as well as DW-9, who is theperson who is stated to have accompanied the successful candidate toget him admitted in school. That it is common practice in India to givea belated date of birth at the time of admission in school so as to secureFbenefit of enhanced years of public service, and such practice has beenacknowledged by this Court in Brij Mohan Singh vs. Priya Brat NarainSinha and Ors. A.I.R. 1965 SC 282.

8.10. As regards the election petitioner’s reliance on the GISnomination form of the successful candidate’s mother, wherein she hadGstated that the successful candidate was eight years old as on 26.04.2001,it was submitted that the said document was neither direct norcontemporaneous proof of birth on certain date. The GIS nominationform was at best piece of circumstantial evidence which had no weightand could not establish that the successful candidate’s date of birth was01.01.1993.H

8.11. On the basis of the aforesaid submissions, it was assertedthat the election petitioner had not produced sufficient evidence so asto discharge the burden of proof to prove his positive case, as requiredunder law, vide Birad Mal Singhvi (supra) and Sushil Kumar(supra). That the entire case of the election petitioner was based onconjectures and farfetched presumptions as to exertion of pressure bythe successful candidate’s father, for issuance of forged certificatesand therefore, the Election Petition ought not to have been entertainedby the High Court.

With the aforesaid averments, it was prayed that the impugnedjudgment be set aside and the instant appeal be allowed by dismissingthe election petition.

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 theimpugned judgment and contended that there was no infirmity in thefindings and decision of the High Court which would call for interferenceby this Court. Hence, it was prayed that the instant appeal may bedismissed and the judgment of the High Court dated 16.12.2019 beconfirmed.

9.2. Learned counsel elaborated his submissions by contendingthat the nomination of the successful candidate herein to be candidatefor the Uttar Pradesh Legislative Assembly Elections from the SuarDistrict Constituency, District Rampur, was erroneously accepted asthe successful candidate was underaged and had not completed twenty-five years of age which is qualification and an eligibility criterion underArticle 173 (b) of the Constitution of India. That since the nomination ofthe successful candidate was improperly accepted and he was ultimatelydeclared the successful candidate in the said election, the result wasliable to be set aside which was rightly done by the High Court.

9.3. Learned counsel for the election petitioner contended thatthe correct date of birth of the successful candidate is 01.01.1993 asrecorded in the Class-X mark-sheet of the successful candidate; thepassports issued to him dated 28.08.2006 and 13.07.2012, the successfulcandidate’s original birth certificate dated 28.06.2012 issued by the NagarPalika Parishad, Rampur, the passport applications of the successfulcandidate pertaining to the year 2012 and the visa issued to the successful

Acandidate dated 09.07.2014. It was further contended that the aforesaiddocuments are public documents and the same were not denied by thesuccessful candidate, hence, they were admissible and relevant underSection 21 and 35 of the Evidence Act and presumption would arise asto the validity of such documents.

B9.4. It was next contended that the defence taken by the successfulcandidate that he came to know about the incorrect date of birthmentioned in the aforesaid documents only in the year 2015 and thepassport and other documents were eventually cancelled, did not inspireconfidence as the successful candidate in his cross-examination hadstated that the process of cancellation was initiated in the year 2018,Cmuch after the election petitioner filed the Election Petition before theHigh Court. That such conduct of the successful candidate wasdemonstrative of the fact that attempts were made to fabricate an earlierdate of birth in the records pertaining to the successful candidate, onlywhen his election was challenged, and not prior to that.D

9.5. Learned counsel for the election petitioner averred that hehad discharged the initial burden of proof by adducing the aforesaiddocuments as evidence wherein the date of birth of the successfulcandidate was recorded as 01.01.1993. That the existence of suchdocuments as well as the contents thereof stood admitted by theEsuccessful candidate; so also, the fact that the said documents weresigned and submitted by him before the competent authorities. In thatcontext, reliance was placed on the judgment of the Privy Council inRani Chandra Kunwar vs. Chaudhari Narpat Singh and Ors. (1906)SCC OnLine PC 26 to contend that once the successful candidate hadadmitted the execution of the aforesaid public documents, the onus ofFproof shifted on the successful candidate to adduce evidence to rebutthe presumption and further demonstrate that his date of birth is30.09.1990 and not 01.01.1993.

9.6. The election petitioner also relied on Sushil Kumar vs. RakeshKumar (2003) 8 SCC 673, to assert that, when both the parties haveGadduced evidence in an election petition, the question of onus of proofwould become academic and therefore, it was for the Court to appreciatethe contrary oral and documentary evidence and arrive at conclusion,de hors considerations as to who was to discharge whole or part of theburden of proof.

9.7. Learned counsel for the election petitioner referred to theGIS (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 Directorof Higher Education, Uttar Pradesh, to contend that the said form wassigned by the mother of the successful candidate on 26.04.2001 and inthe said form she had admitted that the successful candidate was eightyears old as on 26.04.2001. Such an admission was conclusive proof ofthe fact that he was born in the year 1993 and was therefore eight yearsold in April, 2001. The said GIS Form was adduced as piece of evidenceby the successful candidate and was also adverted to by DW-5 – Dr.Tazeen Fatima in her cross-examination. However, she did not offerany explanation as to the successful candidate’s age in the said form. Inthis regard, reliance was placed on the judgment of this Court in P.C.Purushothama Reddiar vs. S. Perumal (1972) 1 SCC 9 wherein itwas observed that once document is properly admitted, the contentsof that document are also admitted in evidence and no further evidencewould have to be let in by the party relying on such an admission toestablish 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 neitherauthenticated nor certified by the competent authority of Queen Mary’sHospital. There were irregularities including entry of wrong name,discrepancy in the records pertaining to period of pregnancy, etc., whichwere admitted by DW-3, Dr. Uma Singh, in her cross-examination andmore importantly, D.W.3 also stated that she could not confirm that thesuccessful candidate was born on 30.09.1990.

9.9. It was next contended that the Birth Certificate issued by theNagar Nigam, Lucknow, wherein the date of birth of the successfulcandidate was shown as 30.09.1990, was based on purported entry inthe birth register (Ex. R-12 96/4-5) which was tendered as evidenceby DW-2, Dr. Archana Dwivedi, Additional Municipal Commissioner,Nagar Nigam, Lucknow and the said entry was as result of manipulationof the public records. That DW-2 in her cross-examination had statedthat the birth register was maintained by clerk and was not in theprescribed format as per the mandate of the Registration of Births Act,1969, (hereinafter referred to as the “Act”, for the sake of brevity), and

Athe same had not been authenticated or verified by competent official.Further, the birth register was not paginated and the entry of the nameof the successful candidate’s mother was not made in chronologicalorder. Also, DW-2 testified that the Birth List maintained by the hospital,on the basis of which birth entry of successful candidate’s name wasmade in the birth register maintained by the municipality, was notBavailable. Therefore, the substratum or the basis of making the entry inthe birth register maintained by the municipality was not available andhence, the corresponding entry was result of extraneous factors.

9.10. Further, it was submitted that reliance placed by thesuccessful candidate on the result of the ossification test did not proveCthat he was born on 30.09.1990. In order to buttress such contention,learned counsel for the election petitioner placed reliance on Mukarraband others vs. State of U.P. (2017) 2 SCC 210 wherein it was observedby this Court that Ossification Test cannot be solely relied upon and isnot conclusive proof of age. In furtherance of such an argument, learnedDcounsel for the election petitioner referred to the testimony of DW-8,Dr. Satbir Singh Ken, who, in his cross-examination had admitted thatossification test is not definitive proof of age as the result of such atest could vary from the actual age, to certain degree.

With the aforesaid averments, it was prayed that the present appealEbe dismissed as being devoid of merit and the impugned judgment beconfirmed.

Points for consideration:

10. Article 173(b) of the Constitution of India states that personshall not be qualified to be chosen to fill seat in the legislature of theFstate unless he is, in the case of seat in the legislative assembly, not lessthan twenty-five years of age and in the case of seat in the legislativecouncil not less than thirty years of age.

Having heard learned senior counsel and learned counsel for therespective parties and on perusal of the material on record, the followingGpoints would arise for consideration:

(i)Whether the High Court was correct and justified inallowing Election Petition No.08 of 2017 filed by theelection petitioner against the successful candidate andthereby setting aside the election of the successfulHcandidate to the office of Member of Legislative

Assembly, from 34-Suar Constituency, District Rampur,Uttar Pradesh, on the ground that there was improperacceptance of successful candidate’s nomination paperand there was breach of Article 173(b) of theConstitution of India?

(ii)What order?

11. The narration of facts and contentions would not call forreiteration except stating that the successful candidate is aggrieved byhis election to the Legislative Assembly vis-à-vis 34- Suar Constituency,District Rampur, Uttar Pradesh, being set aside at the instance of theelection petitioner by the impugned judgment of the High Court.

12. Before proceeding to consider the evidence let in by therespective parties in order to ascertain whether, the conclusions arrivedat by the High Court in allowing the Election Petition filed by the electionpetitioner herein, are just and proper, it is necessary to discuss anddelineate on the relevant judgments of this Court cited at the Bar withregard to burden of proof in light of the relevant provisions of the EvidenceAct.

12.1. The legal scheme governing various aspects of ‘burden ofproof’ in the Indian context, is contained in Sections 101 to 106 of theIndian Evidence Act.

12.2. As per Section 101 of the Indian Evidence Act, when aperson is bound to prove the existence of any fact, it is said that theburden of proof lies on that person. This section is based on the rule, eiincumbit probatio qui dicit, non qui negat, which means that the burdenof proving fact rests on the party who substantially asserts theaffirmative of the issue and not upon the party who denies it, because anegative is usually incapable of proof. The burden of proving factalways lies upon the person who asserts and until such burden isdischarged, the other party is not required to be called upon to prove hiscase. The court has to examine as to whether the person upon whomthe burden lies has been able to discharge his burden. However, theabove rule is subject to the general principle that things admitted neednot be proved.

12.3. The question as to whether burden of proof has beendischarged by party to the lis or not, would depend upon the facts andcircumstances of the case. If the facts are admitted or, if otherwise,

Asufficient materials have been brought on record so as to enable Courtto arrive at definite conclusion, it is idle to contend that the party onwhom the burden of proof lies would still be liable to produce directevidence, vide National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC75: AIR 2009 SC 1499.

B12.4. Burden to prove documents lie on plaintiff alone as onus isalways on the person asserting proposition or fact which is not self-evident. This position is summarised in the observation to the effect that,an assertion that man who is alive was born requires no proof; theonus, is not on the person making the assertion, because it is self-evidentthat he had been born. But to assert that he had been born on certainCdate, if the date is material, requires proof; the onus is on the personmaking the assertion, vide Robins vs. National Trust & Co. Ltd. 1927AC 515: 101 IC 903.

12.5. It is also to be noted at this juncture that there is an essentialdistinction between burden of proof and onus of proof. Burden of proofDlies upon person who has to prove the fact and it never shifts, onus ofproof on the other hand, shifts. Such shifting of onus is continuousprocess in the evaluation of evidence. For instance, In suit forpossession based on title, once the plaintiff has been able to create ahigh degree of probability so as to shift the onus on the defendant, it isEfor the defendant to discharge his onus and in the absence thereof, theburden of proof lying on the plaintiff shall be held to have been dischargedso as to amount to proof of the plaintiffs title, vide RVE VenkatachalaGounder vs. Arulmigu Viswesaraswami and VP Temple AIR 2003SC 4548 (4558-59): (2003) 8 SCC 752.12.6. In terms of section 102 of the Evidence Act, the initial burdento prove its claim is always on the plaintiff and if he discharges thatburden and makes out case which entitles him to relief, the onusshifts to the defendant to prove those circumstances, if any, which woulddisentitle the plaintiff of the same.

G12.7. Where, however, evidence has been led by the contestingparties, abstract considerations of onus are out of place and truth orotherwise 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 particularfact lies on that person who wishes the Court to believe in its existence,H

unless it is provided by any law that the proof of that fact shall lie on anyparticular person. This section amplifies the general rule in section 101that the burden of proof lies on the person who asserts the affirmative ofthe issue. It lays down that if person wishes the court to believe in theexistence of particular fact, the onus of proving that fact, is on him,unless the burden of proving it is cast by any law on any particularperson.

12.9. Section 105 is an application of the rule in section 103. Whenparties to dispute adduce evidence to substantiate their claim, onusbecomes academic and divided, entailing each party to prove theirrespective plea.

12.10. Section 106 is an exception to the general rule laid down inSection 101, that the burden of proving fact rest on the party whosubstantially asserts the affirmative of the issue. Section 106 is notintended to relieve any person of that duty or burden but states thatwhen fact to be proved is peculiarly within the knowledge of party, itis for him to prove it. It applies to cases where the fact is especiallywithin party’s knowledge and to none else. The expression ‘especially’used in Section 106 means facts that are eminently or exceptionallywithin one’s knowledge. This means party having personal knowledgeof certain facts has duty to appear as witness and if he does not goto the witness box, there is strong presumption against him. In anElection Petition, the initial burden to prove determination of age ofreturned candidate lies on the petitioner, however, burden lies on therespondent to prove facts within his special knowledge. (Sushil Kumarvs. Rakesh Kumar (supra))

12.11. The provisions of Section 106 are unambiguous andcategorical in laying down that when any fact is especially within theknowledge of person, the burden of proving that fact is upon him. If hedoes so, he must be held to have discharged his burden but if he fails tooffer an explanation on the basis of facts within his special knowledge,he fails to discharge the burden cast upon him by Section 106.

[Source: Sarkar on Law of Evidence, 20[th] Edition, Volume 2.]

12.12. In Sushil Kumar vs. Rakesh Kumar (supra), thecontroversy was with regard to the improper acceptance of thenomination of the sole respondent therein on the premise that he wasunder qualified to contest the Bihar Legislative Assemble election from

A181, Parbatta Constituency. In the said case, inter alia, the horoscopeof the respondent therein and admission register of New St. XaviersSchool, Boring Road, Patna and transfer certificate issued by SwamiVivekananda Vidyalaya, Mithapur, Patna, were produced as documentsto prove that the successful candidate therein was not eligible to contestthe said Assembly election. In the said case, Section 35 of the IndianBEvidence Act was referred to and it was observed that the registermaintained in terms of statute or by statutory authority in regularcourse of business would be relevant fact and if such vital evidencehad been produced, it would clinch the issue. It was observed that thereis no reliable evidence on record to show that the date of birth wasCrecorded in the school register on the basis of the statement of anyresponsible person and that the admission register or transfer certificateissued by primary school do not satisfy the requirements of Section 35of the Evidence Act.

Further, reference was made to Brij Mohan (supra) as well asDBirad Mal Singhvi (supra) and it was observed that in the absence ofprimary material on the basis whereof the age was recorded, it wouldnot be possible to accept the evidence produced therein. While examiningthe admission register of the school relied upon by the successful candidatetherein, it was observed that entries in the said register had been madeby one person with two different pens in one sitting. Also, there wereEother alterations in the said register and hence, no credence could begiven to the same. It was observed that forgery in the register had beendone in crude form and the High Court had noticed the same but stillproceeded to rely upon the said documents which amounted to amisdirection in law. It was further observed that the respondent thereinFhad special knowledge as to in which school he had studied and shouldhave disclosed the same instead of disclosing the details of his education.He had taken recourse to suppression veri and suggestion falsi andhad 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 respondentGwas not trustworthy. Further, the horoscope filed by the respondent inthe said case did not inspire confidence. Further, DW-2 who let in evidenceon the horoscope was bystander who had nothing to do either with thepreparation of the horoscope or with the writing thereof and his evidencewas not trustworthy and the horoscope could not have been looked intoHfor any purpose whatsoever. Also, an application was filed on behalf of

the respondent therein in respect to the occurrence which took place inApril, 1995, and the date of birth of the appellant was said to be fourteenyears as on that date, and, thus, sixteen years in the year 1996 and wasbelow twenty-five years of age on the date of filing of the nomination.

With reference to the averments made in the bail application onbehalf of the respondent therein and the same being an admission, reliancewas placed on Thiru John vs. Returning Officer (1977) 3 SCC 540to observe that party’s admission as defined in Sections 17 to 20, fulfillingthe requirements of Section 21 of the Evidence Act, is substantiveevidence proprio vigore. An admission, if clearly and unequivocallymade, is the best evidence against the party making it and even thoughconclusive, shifts the onus on to the maker on the principle that ‘what aparty himself admits to be true may reasonably be presumed to be soand until the presumption was rebutted, the fact admitted must be takento be established.’

It was further observed in para 65 of the said judgment that :

“65. Furthermore, person should not be permitted to takeadvantage of his own wrong. He should either stand by hisstatement made before court of law or should explain the samesufficiently. In the absence of any satisfactory explanation, thecourt will presume that the statement before court is correctand binding on the party on whose behalf the same has beenmade.”

Under Section 58 of the Indian Evidence Act, fact admittedneed not be proved.

12.13. In Narender Singh vs. Mala Ram and Ors. (1999) 8SCC 198, the controversy was with regard to the improper rejection ofnomination papers and the filing of an Election Petition by the candidatewhose nomination papers were improperly rejected and improperacceptance of the nomination papers of the returned candidate. ThisCourt speaking through Rajendra Babu, J., discussed about considerationand appreciation of evidence in an election dispute. In para 15 of thejudgment, it was observed that the general principle in the matter ofappreciation of evidence in an election dispute is that the onus to provethe essential facts which constitute the cause of action in such disputeis upon the person making it, namely, the election petitioner. Whatevidence would be sufficient to prove particular fact depends upon the

Acircumstances of each case. When the evidence adduced is capable ofdrawing an inference either way, the view that is favourable to thereturned candidate will have to be preferred. Reference was made toRam Singh vs. Col. Ram Singh 1985 (Supp.) SCC 611, wherein, itwas observed that “in borderline cases the courts have to undertake theonerous task of, ‘disengaging the truth from falsehood, to separate theBchaff from the grain’.”

Analysis:

I shall now analyse the oral and documentary evidence on recordin order to assess the correctness of the findings of the High Court.

i)Re: Passports and Visas of the appellant-successfulcandidate:

13. The election petitioner adduced Ex. P-1 and P-3 wherein thedate of birth of the successful candidate was shown as 01.01.1993, tocontend that the successful candidate was less than 25 years of age atDthe time of filing his nomination and the fact that the aforesaid documentsindicated the date of birth as 01.01.1993 was not disputed by the successfulcandidate although the said date was not accepted as his date of birth.

13.1. It is noted that the successful candidate had madeapplications under his own signature to obtain the passports in the yearE2006 and 2012 (Ex. P-1 – Paper No. A- 49/1-4) wherein he had mentionedhis date of birth as 01.01.1993. Therefore, the High Court held that thesuccessful candidate had always been aware of the fact that in theeducational certificate and passports, his date of birth was shown as01.01.1993 and had accepted the same till the year 2015.

F13.2. PW-2, Shri. Mohd. Naseem, Passport Officer, Bareilly,deposed that he had brought photocopies of the documents referred toby the successful candidate at the time of making an application forthe issuance of his Passport No. K-7951741 which was issued to himon 13.07.2012 from Bareilly Passport Office. PW-2 deposed that thesuccessful candidate had annexed copy of his birth certificate issuedGby the Health Department/Municipal Corporation, Rampur, on28.06.2012, along with copy of his online application form, copy ofa pass book pertaining to his bank account held with State Bank and acopy of his old Passport No. F-8757022 issued on 28.08.2006 whichwas valid till 31.12.2010. To question whether self-attested copies ofHdocuments submitted by an applicant are maintained in the records,

PW-2 deposed that original copies are returned and self-attested copiesare scanned.

13.3. When question was posed as to whether by modifyingthe particular entry of date of birth in the successful candidate’s oldPassport No. K-7951741, new Passport No. Z-4307442 aftermentioning his date of birth as 30.09.1990 was issued to him on10.01.2018, PW-2 deposed that he was not in position to answer thequestion as each application was available separately in the P.S.P.system. He deposed that in compliance of the Court’s order, he hadbrought only the available record of Passport No. K-7951741 and ifafter that new Passport No. Z-4307442 was issued, he would haveto check from the system. That he would be able to present recordspertaining to Passport No. Z-4307442 on the next date fixed by theCourt, if the same had in fact been issued.

13.4. Further, on perusal of Ex. P-1, paper No. A-49/1-4, which isthe Passport application dated 06.07.2012 made by the successfulcandidate, I am of the opinion that the same is made under his ownsignature and records his date of birth as 01.01.1993, and place of birthas Rampur. In that background, it is necessary to examine whether theinformation entered in the passport application dated 06.07.2012, wouldamount to proof, as to the contents of such application, including thedate and place of birth entered therein.

13.5. I am of the view that great evidentiary value has to beattached to an application submitted to government establishment orOffice, such as Passport Office and the details entered in suchapplication, together with the documents submitted therewith, must beunderstood to be tendered by the applicant who signs the applicationform thereby accepting that the information submitted therein is trueand correct and to the best of his knowledge. I find that the successfulcandidate herein, having signed the application form dated 06.07.2012wherein it has been expressly entered that his date of birth was01.01.1993 and place of birth was Rampur, cannot, at later junctureclaim that he was unaware, till the year 2015 that his date of birth as pervarious documents was 01.01.1993 and his place of birth was Lucknow.The fact that the successful candidate self-attested the birth certificateissued by the Municipal Corporation, Rampur, wherein his date of birthhas been recorded as 01.01.1993, would establish that the successfulcandidate acknowledged, accepted and sought to rely on such fact in

Aorder to secure passport on the basis of such information. It is thereforenot open to the successful candidate to subsequently resile from theaforesaid clear admission and contend that he was unaware that an‘incorrect’ date of birth was recorded in certain documents. Havingadmitted the fact that his date of birth was 01.01.1993 and place of birthwas Rampur, in the application form dated 06.07.2012 which was at anBundisputed point of time, the successful candidate cannot resile from thesame.

13.6. I also take note of the fact that the successful candidate hadtravelled to many foreign countries on his passports which were obtainedin the year 2006 and 2012 and the visa which was granted in the yearC2014 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 usedthe passports obtained in the years 2006 and 2012 for international travel,failed all along, to notice that the date of birth recorded in the passportswas incorrect. I refuse to believe that an educated individual such as the

Dsuccessful candidate herein, had not, in over nine years (2006 to 2015)looked at the first page of his passport and only later grasped that thedate of birth entered therein was ‘incorrect’ only while he was on theverge of entering politics and contesting an election to the LegislativeAssembly.

E13.7. Further, I also take note of the deposition of P.W.4. whodeposed that all the papers related to Birth Certificate No. 3857, RegisterNo. R.N.P.B. 2012-03857, dated 28.06.2012 had been destroyed in afire due to short circuit on 08.05.2015 in the office of Nagar PalikaParishad, Rampur and that no papers pertaining to period prior to suchdate were available in the Office of Nagar Palika Parishad, Rampur.FThat such documents were available only in computer-generated formand copy of Birth Certificate No. 3857, Register No. R.N.P.B. 2012-03857, dated 28.06.2012 was produced wherein the successfulcandidate’s date of birth was recorded as 01.01.1993.

13.8. The stand taken by the successful candidate that allGdocuments pertaining to the Birth Certificate dated 28.06.2012 wereburnt due to short circuit on 08.05.2015 in the office of Nagar PalikaParishad, Rampur, would suggest that the said birth certificate, whereinthe date of birth of the successful candidate was recorded as 01.01.1993came to be later cancelled under suspicious circumstances. It is ratherHstrange that birth certificate pertaining to the year 1993, was destroyed

in the year 2015 under peculiar circumstances, at time when thesuccessful candidate was making several efforts to get his date of birthchanged in various records. It is rather unbelievable that just when thesuccessful candidate began assuming an active role in politics andundertook various efforts towards correcting his date of birth in severalrecords, i.e., in the year 2015, the birth certificate and relevant documentspertaining to the said certificate, wherein the date of birth of the successfulcandidate was recorded as 01.01.1993 came to be destroyed in fireand was accordingly cancelled.

13.9. It is further noted that an application seeking birth certificatewas made on 28.06.2012 bearing No. RNPP 2012-03857 to the NagarPalika Parishad, Rampur and on the same date, birth certificate wasissued 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 ofbirth of the child i.e., the successful candidate as well as the permanentaddress of parents. The inference to be drawn from the said documentis that in the year 2012, the petitioner consciously applied to Nagar PalikaParishad, Rampur for obtaining the birth certificate in order to appendthe same for obtaining new passport. The further inference that Idraw from the said document is that the successful candidate has soughthis birth certificate from the Nagar Palika Parishad, Rampur as he wasborn at Rampur and the birth certificate clearly indicates that he wasborn on 01.01.1993. Subsequently, the said birth certificate was cancelled.PW-4 has deposed that all the documents relating to the issuance ofbirth certificate to the successful candidate were destroyed in fire on08.05.2015 which is indeed strange and mysterious as by then thesuccessful candidate had already obtained “duplicate” birth certificatefrom 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.The High Court has observed that the stand taken by the successfulcandidate in this regard is that he came to know that his date of birthwas ‘incorrectly’ mentioned as 01.01.1993 in the Certificate of SecondarySchool Examination (Class X) only in the year 2015 when he wasscrutinising his educational records, was unbelievable and untrue.

A14.1. As regards the successful candidate’s educational records,which record his date of birth to be 01.01.1993, his version is that due hisfather’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 incorrectlyrecorded as 01.01.1993 instead of 30.09.1990 and the same continued inBall 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 birthmentioned in his records and also sent many reminders to the school andthe 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.C14.2. In this regard, D.W.-5 mother of the successful candidatedeposed that her family friend Shahzeb Khan (DW-9) took the successfulcandidate to St. Paul School, Rampur, for his admission in Nursery Classin the year 1995 and wrongly entered the date of birth as 01.01.1993instead of 30.09.1990 in the admission form. That the successful candidate

was born on 30.09.1990 and the date of birth mentioned in his educationalDrecord was incorrect. DW-5 was asked if she knew that her son-thesuccessful candidate had mentioned his date of birth in Class X, ClassXII, 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 wasEwrongly mentioned and that the date of birth in other educational recordscould not be corrected without changing the date of birth mentioned inthe Class-X Certificate. Therefore, an application was made to thePrincipal, St. Paul School Rampur, to correct the date of birth as per theschool records.F14.3. DW-9, who is stated to be the person who accompanied thesuccessful candidate to St. Paul School to get him admitted in nurseryclass was also examined. DW-9 deposed that in the year 1995, he tookthe successful candidate to St. Paul’s School, Civil Lines, Rampur, to gethim admitted into the said school. That after completing the admission

process, the master who was in charge of giving admission, got theGsuccessful candidate enrolled in Nursery class and put his date of birthas 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 successfulcandidate to explain the ‘error’ in his date of birth, as recorded in allHeducational records, would not aid the successful candidate’s case.

Further, it is to be noted that DW-5-Tazeen Fatima in Paragraph12 of her Examination-in-Chief and the successful candidate in Paragraph53 of his written statement had stated that DW-9- Shahzeb Khan, thesuccessful candidate’s father’s friend, had got him admitted in the nurseryclass of St. Paul School, Rampur, in the year 1995, and had inadvertentlymentioned the date of birth of the successful candidate as 01.01.1993.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 thesuccessful candidate in the admission form. Therefore, I am not inclinedto attach much weight to the statements of either DW-5 or DW-7 in thisregard as they are inconsistent with each other.14.5. It is further noted that the successful candidate hasemphatically stated that his date of birth is 30.09.1990 and not 01.01.1993and that an erroneous date was given at the time of his admission tonursery class in the year 1995. This would mean that the successfulcandidate was sought to be admitted in nursery class when he was about5 ½ years of age which is not believable as he would be over-aged forthat class. On the other hand, if he was born on 01.01.1993, it is possiblethat at 2 ½ years he would have been admitted to nursery class which isthe right age to get admission in nursery. Further, the successful candidatehas completed his 10[th] standard in the year 2007 and his 12[th] standard inthe year 2009 which would mean that the successful candidate wasabout 14 ½ years when he completed his 10[th] standard and 16 ½ yearswhen he completed his 12[th] standard which is the normal age to do so. Ifaccording to the successful candidate his actual date of birth is30.09.1990, the inference is that he would have been about 17 ½ yearswhen he completed his 10[th] standard and 19 ½ years when he completedhis 12[th] standard which is improbable. Also, there is no explanation onrecord as to why at belated age he has completed his 10[th] standardand 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 successfulcandidate. He deposed that the successful candidate addressed letterdated 23.03.2015 to the school stating therein that in the year 2015 hecame to know that his date of birth was incorrectly entered in hiseducational certificates as 01.01.1993 whereas his actual date of birthwas 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,

AC.B.S.E, Allahabad, along with letter issued by him to the RegionalOffice, 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 tworeminders to the Regional Office, C.B.S.E., Allahabad, on 19.05.2015and 21.09.2015 stating that in the register of birth and death and theBirth Certificate provided by the Hospital, the date of birth of theBsuccessful candidate was shown as 30.09.1990 and therefore, it shouldbe 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 Certificateprovided by the Hospital, the date of birth of the successful candidatewas shown as 30.09.1990 and therefore, the date of birth in theCeducational records should also be changed from 01.01.1993 to30.09.1990.14.7. It is further noted that on the request made on behalf of thesuccessful candidate, several letters were addressed by the Principal ofSt. Paul School, Rampur to the Regional Officer, Central Board ofDSecondary Education, Allahabad requesting for permission to correctthe date of birth of the successful candidate. Further, the said permissionwas not granted and on 30.10.2017, letter was addressed to the motherof the successful candidate – DW-5 stating that the matter was twentyyears’ old and it was not possible for the school to trace the requireddetails. This would imply that the school records continue to show theEdate of birth of the successful candidate as 01.01.1993 and on that basisthe other educational records of the successful candidate also indicatehis date of birth as 01.01.1993. On perusal of the application seekingpassport application form submitted by the successful candidate, it isnoted that his date of birth and place of birth have been mentioned asF01.01.1993 and at Rampur. Further, two references given by him areRafi Raja Khan and Rizwan Mohammad Khan also residing at GhairMeer Baaz Khan, Jail Road, Rampur. The permanent residential addressdetails of the successful candidate were also shown as Ghair Meer BaazKhan, Jail Road, Rampur, Ganj, Uttar Pradesh. This would imply that inGthe school records, the date of birth of the appellant continues to be01.01.1993 and his place of birth as Rampur.

14.8. But since DW-7 in his request made to the C.B.S.E. reliedon the entry made in the register of birth and death and the BirthCertificate provided by the Hospital, it is necessary to examine whetherthe said register and the hospital records were genuine and can be reliedH

upon. Accordingly, such questions are examined in the following sectionof the analysis.

iii)Re: Whether the Birth Certificate bearing RegistrationNo. NNLKO-B-2015-292611 issued on 21.01.2015 bythe Nagar Nigam, Lucknow, was valid piece ofevidence?

15. To ascertain the validity of the birth certificate bearingRegistration No. NNLKO-B-2015-292611 issued on 21.01.2015 by theNagar Nigam, Lucknow, the High Court placed reliance on the followingdocuments: a) (Ex. R-12 A-96/1-5), b) (Ex. R-12 A-96/3), c) (Ex. 12Paper No. A-96/4-5)

15.1. On perusal of the aforesaid documents and the original hospitalfile relating to the issuance of birth certificate of the successful candidate,produced by DW-2, it is observed that the file merely contained anapplication and an affidavit (Ex. R-12 A-96/1-5) dated 17.01.2015 madeby the successful candidate’s mother to the City Health Officer, NagarNigam, Lucknow, for the issuance of birth certificate and computergenerated sheet (Ex. R-12 A-96/3) which contained particulars ofregistration of birth of the successful candidate.

15.2. The High Court further noted that the birth register (Ex. 12Paper No. A-96/4-5) adduced by DW-2 was neither authenticated norcertified by any competent officer and was not even paginated. ThatDW-2 in her cross-examination had admitted that the Birth Registerwas maintained by clerk and was not in the prescribed format as perthe mandate of the 1969 Act, and the same had not been authenticatedor verified by competent official. Further, the Birth Register was notpaginated and the entry of the name of the successful candidate’s motherwas not made in chronological order. DW-2 further testified that theBirth List maintained by the hospital, on the basis of which birth entry ismade in the birth register maintained by the municipality, was notavailable. 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)was clear case of manipulation and interpolation, as the entry of thesuccessful candidate’s date of birth and name was inserted in the smallspace at the bottom of the page showing it to have been made on30.09.1990. It was also noted that the successful candidate’s entry inthe Birth Register did not bear any signature or an order of any authority

Aof the Nagar Nigam, Lucknow, or the Sub-Divisional Magistrate; theHigh Court, therefore held that the entry of the successful candidate’sname was not made on 30.09.1990 and that the said entry was aninterpolation.

15.3. The High Court, on perusal of the affidavit (Ex. R-12 A-96/B1-5) dated 17.01.2015 made by Dr. Tazeen Fatima (DW-5), mother ofthe successful candidate while seeking issuance of the duplicate birthcertificate, held that the successful candidate’s mother in the said affidavithad concealed the fact that another Birth Certificate (Ex. P-3 PaperNo. A-80/1) issued by the Nagar Palika Parishad, Rampur, existed andwas subsequently cancelled on 30.01.2015.C

15.4. It is further observed that the mother of the successfulcandidate made an application to the City Health Officer, Nagar Nigam,Lucknow, for the issuance of the birth certificate on 17.01.2015, aftertwenty-five (25) years of the birth of the successful candidate and thesame was endorsed by an officer of the Nagar Nigam, Lucknow, onD19.01.2015 and immediately thereafter i.e. two days later, certificatewas issued to the successful candidate on 21.01.2015. That the birthcertificate was issued without following the mandatory provisions ofSection 13 of the 1969 Act. Also Rule 9 of the U.P. Registration of theBirth and Death Rules, 2002 and Section 13(3) of the 1969 Act, providedEthat any birth or death which had not been registered within one year ofits occurrence, shall be registered only on an order made by Magistrateof First Class or Presidency Magistrate after verifying the correctnessof 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, providedFthat any birth or death which had not been registered within one year ofits occurrence, shall be registered only on an order of the Sub- DivisionalMagistrate and after payment of late fee of Rs. 10/-. I am therefore ofthe view that, the Nagar Nigam, Lucknow, had no jurisdiction to registerthe birth of the successful candidate after twenty-five years from thedate on which he was stated to be born by the issuance of the BirthGCertificate on 21.01.2015 (Ex. P-2 Paper No. A-63/1) without an orderof the Sub-Divisional Magistrate as required under Section 13(3) of the1969 Act, read with Rule 9(3) of the U.P. Registration of the Birth andDeath Rules, 2002. In fine, it is held that the birth certificate (Ex. P-2Paper No. A-63/1) issued by the Nagar Nigam, Lucknow, on 21.01.2015Hwas null and void.

15.5. From the impugned judgment, it is further noted that theentry with respect to the successful candidate’s date of birth in the BirthRegister, showing it to be 30.09.1990, was inserted in all probability inthe year 2015. The High Court took note of the fact that the birth certificatewas issued to the successful candidate on 21.01.2015 by the NagarNigam, Lucknow, and at that time, the father of the successful candidatewas Cabinet Minister of the Department of Urban Development andLocal Bodies and the Nagar Nigam, Lucknow, came under his Ministry.The High Court was therefore of the view that the entry in the birthregister was result of undue pressure on authorities by the interestedparties and was clearly manipulated. The High Court therefore, heldthat the evidence adduced by Dr. Tazeen Fatima (DW-5), mother of thesuccessful candidate and by DW-10- the successful candidate, was falseand wholly untrustworthy.

15.6. In order to ascertain the validity of the Birth Certificatebearing Registration No. NNLKO-B-2015-292611 issued on 21.01.2015by the Nagar Nigam, Lucknow, regard must be had to the request letteraddressed by the mother of the successful candidate - DW-5 – TazeenFatima dated 19.01.2015 to the City Health Officer, Nagar Nigam,Lucknow, for the issuance of birth certificate to the successful candidateand the copy of the Birth Register maintained by the Nagar Nigam,Lucknow, in which entry in the name of the successful candidate wasmade on 30.09.1990.15.7. DW-2 Dr. Archana Dwivedi, Additional PrincipalCommissioner, Lucknow, deposed that as per the Court’s order dated27.05.2019, she had brought the original birth certificate of the successfulcandidate issued on 21.01.2015 and the Birth Record of Queen Mary’sHospital from 01.01.1990 to 31.12.1990. She admitted that the register/hospital’s birth record did not contain page numbers nor had it beencertified by any competent officer or been attested. DW-2 placed beforethe Court the relevant entry in the hospital birth record which pertainedto Tazeen Fatima’s delivery on 30.09.1990. In the course of cross-examination, on being asked whether it was necessary to maintain thebirth register in the format laid down in 1969 Act, DW-2 answered in theaffirmative; however, in response to the question as to whether the birthregister produced by her in Court was in the prescribed format, sheanswered in the negative. When asked on what basis the entry wasmade in the birth register on 30.09.1990 and whether she had broughtany papers related to it, DW-2 deposed that the entries in the birth register

Awere 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 question as to, after how many days of makingthe related entries in the birth Register, the birth certificate is issued,DW-2 deposed that the birth certificate is issued when an applicantBaddresses request letter and the birth is registered immediately afterreceiving birth list from the hospital.

15.9. It is noted that the birth certificate dated 21.01.2015, is saidto have been issued by the Nagar Nigam, Lucknow, on the strength ofthe entry made in the birth register maintained by the Queen Mary’sCHospital, Lucknow, wherein it was recorded that the successfulcandidate’s mother delivered male child on 30.09.1990. As per thetestimony of DW-2, entries in birth register are made according to thebirth list provided by the hospital. Therefore, in order to give any findingas to the validity of the birth certificate dated 21.01.2015, issued by theNagar Nigam, Lucknow, the validity of the antecedent documents, suchDas the birth register and birth list maintained by the hospital, on thestrength of which the birth certificate dated 21.01.2015 was issued, needsto be examined.

15.10. As is evident from the relevant portion of DW-2’s crossexamination, although the birth register was to be maintained in the formatEprescribed in this regard in the 1969 Act, such format was not followedin the present case, while recording the entry pertaining to the successfulcandidate’s birth on 30.09.1990. Further, while it is stated that such entrywas recorded in the birth register on the basis of birth list maintainedby the hospital, it is admitted that the birth list pertaining to the successfulFcandidate’s birth is not available. This means, the basis of making theentry in the birth register maintained by the municipality was not available.

15.11. These facts are to be further considered in light of thefinding of the High Court to the effect that the entry pertaining to thesuccessful candidate was inserted in small space at the bottom of theGpage, 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 birthregister, the successful candidate was recorded as ‘Hindu’. This wouldfurther strengthen the case of the election petitioner that the successfulcandidate’s details were subsequently added in space in the register,which originally pertained to some other birth.H

15.13. In light of the aforesaid discussion, I am of the view that noweight can be placed on the birth certificate dated 21.01.2015, issued bythe Nagar Nigam, Lucknow, which is stated to be issued on the strengthof an entry made in the birth register maintained by the hospital and iscreated by manipulation and interpolation in the relevant hospital records.It is therefore held that in the absence of any explanation as to why therelevant birth list, forming the basis of the entry in the birth register, wasnot available to be produced before the Court, no evidentiary value canbe attached to the birth register. It is consequently held that the birthcertificate dated 21.01.2015, issued by the Nagar Nigam, Lucknow onthe strength of such documents, cannot be held to be valid document.

15.14. It is also to be noticed that Birth Certificate showing thedate of birth of the successful candidate as 01.01.1993 was still holdingthe field and valid and thus till the same was cancelled subsequently, thesuccessful candidate had two Birth Certificates showing his date of birthat two different places and on two different dates, namely, one on01.01.1993 at Rampur and another on 30.09.1990 at Lucknow whichclearly indicates that only one Birth Certificate was valid and correct asfar as successful candidate’s date of birth is concerned. In my view, thecertificate showing the date of birth of the successful candidate as01.01.1993 at Rampur is the correct certificate and not the onesubsequently obtained in the year 2015.

15.15. In light of the above discussion, the finding of the HighCourt as to the invalidity of the birth certificate dated 21.01.2015, issuedby the Nagar Nigam, Lucknow, is affirmed.

iv)Re: Proof of Birth on 30.09.1990 on the basis of entriesin Hospital records and Oral Evidence:

16. DW-3-Dr. Uma Singh, Senior Gynaecologist, Queen Mary’sHospital stated that she had brought with her, the relevant labour roomregister and operation theatre register (O.T. Register). Referring to pageno. 225 of the Labour register (M.L.R.) annual no. 1826 monthly no.257, she deposed that the entry pertained to Dr. Tazeen Fatima, successfulcandidate’s mother and as per the said entry she delivered male childon 30.09.1990 at 3:43 a.m. She also stated that she had signed and issuedthe duplicate birth certificate dated 21.04.2015 (A-37). In answer to aquestion as to the authority which issues birth certificates in Queen Mary’sHospital, DW-3 stated that duplicate birth certificates are issued by theperson nominated by the Department Head. As regards the procedure

Afor issuance of duplicate birth certificates, DW-3 deposed that anapplication requesting for duplicate birth certificate is to be made tothe Chief Medical Superintendent of King George University who wouldthereafter forward the same to the Department Head who would issuethe duplicate certificate. DW-3 answered in the negative when askedwhether she had brought to the Court the application forwarded by theBChief Medical Superintendent for the issuance of the duplicate birthcertificate. While DW-3 stated that it was the responsibility of the ChiefMedical Superintendent to inform the Municipal Corporation about thebirth of child, she stated that she was unable to confidently say whetherthe information of the children born on 30.09.1990 was sent to theCMunicipal Corporation.16.1. Referring to the relevant entry in page No. 174 of emergencyO.T. register Annual No. 5097 and monthly no. 512, DW-3 was askedwhether there was any overwriting on it and she answered in theaffirmative. On being questioned whether the entries made in page no.D225 of M.L.R. register matched the entries made in the pages of otherannual numbers; DW-3 answered that they ‘do not match totally’.

16.2. Replying to question as to whether, as per the hospitalrecord presented before the Court it could be said that male child wasborn in the hospital on 30.09.1990, DW-3 stated that the register affirmsthat ‘related lady’ gave birth to male child on 30.09.1990. However,EDW-3 answered in the ‘negative’ when questioned as to whether shecould definitely say that the male child born on 30.09.1990 as per theregister brought by her was the successful candidate.

16.3. 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 wereFattested or signed by any Officer or Department Head of Queen Mary’sHospital or King George University and whether the entries in the saidregisters or any page was signed or counter-signed by any Officer orDepartment Head of the Hospital and whether the registers wereauthenticated by any Officer or Department Head. DW-3 deposed thatGboth the registers were not authenticated by any Officer of Queen Mary’sHospital or King George University and were not attested. DW-3 deposedthat she had neither made the relevant entries in the register nor had shesigned them. On being asked as to on what basis she could say that theentries in the register were genuine given that the same were neithermade nor signed by her, DW-3 stated that she had stated that they wereHgenuine on an understanding of the working procedure of the hospital.16.4. On consideration of the aforesaid documentary evidencein light of the depositions of DW-3, the High Court observed that PageNo. 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 ofpatients on 29.09.1990, which showed that the mother of the successfulcandidate, Tazeen Fatima, was admitted in the hospital and gave birth toa male child, was not trustworthy as contents had been struck out andthere was overwriting on the name of “Tazeen Fatima” on the relevantpage of the E.O.T. Register. That the entries made in Column 13 andColumn 16 did not contain material particulars as shown in entries on thesame page pertaining to other patients. The High Court also noticed thatthe entry in the relevant page of the E.O.T register did not match withthe 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. TazeenFatima” on the relevant page of the M.L.R. Register and that the relevantpage of the M.L.R. Register did not contain the date of admission andregistration number. The High Court also observed that the period ofpregnancy was recorded in the M.L.R. as 38 weeks as against the periodof 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 theM.L.R. register it was made in the name of “Mrs. Tazeen Fatima” andthe same was in different hand writing and different pen was usedas compared to other particulars.

16.5. It was further noted that the fact that the contents werescored out and overwritten in the above-mentioned registers was admittedby DW-3-Dr. Uma Singh, Sr. Gynaecologist, Queen Mary’s Hospital,(Department of Obst. & Gyno.) in her oral evidence dated 31.07.2019.

16.6. From the deposition of DW-3-Dr. Uma Singh, it is notedthat she had stated that the aforesaid two registers were neitherauthenticated nor signed by any officer or doctor of the hospital and thatthe 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 bornon 30.09.1990 as mentioned in the above registers was the appellantherein. DW-3 further deposed that it was the responsibility of the ChiefMedical Superintendent to give information pertaining to the births to theNagar Nigam, Lucknow, and that she was never given this responsibilityand that there was no post of Chief Medical Superintendent in the hospital.Further, DW-3 stated that the above-mentioned registers were maintained

Aby clerk, and the concerned clerk was not produced by the successfulcandidate to prove the alleged entries made in the above-mentionedregisters. Further, DW-3-Dr. Uma Singh could not produce the applicationmade by the mother of the successful candidate, to her, for the issuanceof duplicate birth certificate.

B16.7. More significantly, DW-3 who is said to have delivered thesuccessful candidate on 30.09.1990 could not categorically say that themale child that she delivered was indeed the successful candidate. Thus,there is no clinching evidence in this regard despite the documents soughtto be produced, which in any case have not been rightly believed by theHigh Court owing to overwriting, interpolation etc. and DW-3 not beingCable to categorically state that successful candidate was delivered byher on 30.09.1990. Therefore, in my view the evidence of DW-3 doesnot, in any way further the case of the successful candidate.16.8. DW-4, Dr. Vineeta Das is stated to be the doctor who issuedthe Duplicate Birth Certificate on 21.04.2015. Referring to DocumentDA-37 (Duplicate Birth Certificate issued on 21.04.2015) DW-4 was askedwhether the same had been signed by her, she answered in theaffirmative. As to the contents of Document A-37, DW-4 deposed thatit was duplicate birth certificate which was issued on 21.04.2015 bythe Gynaecology Department of the hospital she worked at. DW-4 furtherEdeposed that in the first column, it had been recorded that the birthcertificate pertained to the baby of Tazeen Fatima, the sex and caste ofthe child i.e., Male and Muslim, were also recorded; in the second columnthe name of the mother, Smt. Tazeen Fatima was written and in the thirdcolumn; father’s name i.e., Mohd. Azam Khan was written; and in thefourth column, the grandfather’s name was written. DW-4 deposed thatFin 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 forissuing duplicate birth certificate, DW-4 stated that the Chief MedicalSuperintendent, King George Medical University sends letter to the HeadGof Department who in turn appoints Medical Consultant for the issuanceof duplicate birth certificates and after that the clerk makes the duplicatebirth 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 theHnegative.

16.11. On appreciating the above statements in light of thedocuments referred to above, it is noted that DW-4 in her cross-examination had deposed that birth certificate was issued in the instantcase on an application received by the Chief Medical Superintendentbut she could not name the medical consultant nominated to prepare theduplicate birth certificate nor could she produce any document relatingthereto.

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 thesuccessful candidate and that he failed to establish that he was the childborn on 30.09.1990, as recorded in the aforesaid registers.

16.13. The High Court therefore rightly held that the successfulcandidate could not prove that he was born on 30.09.1990 at Lucknowand the evidence adduced by the mother of the successful candidate(DW-5) regarding the alleged birth on 30.09.1990 could not be reliedupon 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 ElectionPetition before the High Court) seeking information as to his date ofbirth, DW-4- Dr. Vineeta Das issued letter (Ex. R-9 Paper No. A42/3)dated 12.09.2017, to the Public Information Officer/Chief MedicalSuperintendent of King George Medical University, Lucknow, whereinshe 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 thecorrectness of the contents of the said letter was completely lost in viewof the fact that in the relevant page of the E.O.T. Register (Ex. R-4Paper 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 thesuccessful candidate. Thus, the birth of the successful candidate (dated30.09.1990) could not be related to those entries. The High Court furtherobserved that DW-4 in her cross-examination had stated that she wasneither related to the delivery of the successful candidate nor had shemade the entries in the E.O.T. Register. The High Court thereforeobserved that, without there being any record present with DW-4, it waswrong on her part to certify that the successful candidate was born on30.09.1990 in Queen Mary’s Hospital, Lucknow.

16.15. Based on the above reasoning, the High Court was rightlyof 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 on30.09.1990 in Queen Mary’s Hospital, Lucknow.

16.16. It is obvious on perusal of the E.O.T. and M.L.R. registersBthat the same are riddled with discrepancies, over-writing and factualinaccuracies. glaring discrepancy, which would have material bearingon the successful candidate’s case is that the period of pregnancyrecorded in the M.L.R. register was recorded as 38 weeks as againstthe period of 32 weeks recorded in the E.O.T register. It is also notedthat in the M.L.R. register, Mrs. Tazeen Fatima’s name alone has beenCwritten in different handwriting and different ink as compared to therest of the particulars pertaining to such entry. This would indicate thatthe name of the successful candidate’s mother was entered and adjustedinto the available space, and corresponding to particulars, which pertainedto some other patient in the Registers.

16.17. While DW-3 has deposed that the duplicate birth certificatewas issued after the application was made by the successful candidate’smother to the Chief Medical Superintendent of King George University,requesting for it which was forwarded to the department head of theconcerned hospital, but D.W.3 could not produce the forwarding letter.ENo effort was made by the successful candidate to produce the sameby procuring it by way of making an R.T.I. application. Therefore, I amnot convinced that the due procedure was followed before issuing theduplicate birth certificate dated 21.04.2015. In fact, when enquired aboutthe original birth certificate of the duplicate certificate of the successfulcandidate, there was no answer given.F

16.18. Having already noted that the entries pertaining to the birthof the successful candidate, in the E.O.T. and M.L.R. registers weremired with discrepancies, over-writing and factual inaccuracies, I amunable to ignore the same, especially since both such registers were notauthenticated by any Officer of Queen Mary’s Hospital or King GeorgeGUniversity and were not attested. By DW-3’s own admission, the onlybasis on which she was stating that the relevant entries in the registerswere genuine was on her understanding of the working procedures ofthe hospital. This does not inspire much confidence as to the genuinenessof the entries made in the registers, which ex facie appear to beHmanipulated.

16.19. Further, it is noted from the Labour Room Register that thedoctor who attended DW-5-the mother of the successful candidate atthe Queen Mary’s Hospital was Prof. (Dr.) A. Harish and not Dr. UmaSingh. Dr. A. Harish has not been examined in the matter.

16.20. I, therefore, am not inclined to place much weight on thetestimony of DW-4, as she had not made the entries in the E.O.T. Register.Therefore, her statements are not persuasive.

I, therefore, affirm the findings and decision of the High Courtqua this issue also.

v)Re: Medical Examination Report of the successfulcandidate:

17. The High Court did not accept the report of the ossificationtest, as conclusive proof of the successful candidate’s age as the samecould not be proved by DW-8, Dr. Satbir Singh Ken, Radiologist, DistrictHospital, Rampur, who was part of the Medical Board that determinedthe age of the successful candidate to be 26 years. The High Courtbased its decision on the fact that DW-8 could not produce the originalmedical report or the records pertaining thereto. It was also observedthat bone ossification test would always have to be considered havingregard to the fact that the results thereof could differ, by up to two yearsfrom the actual age of the person tested, vide Mukarrab and othersvs. State of U.P. (2017) 2 SCC 210.17.1. In this background, it may also be noted that DW-8 deposedthat in his opinion, there could be difference of one year between theactual age of the successful candidate and the age suggested in thereport of the bone ossification test. That on being asked whether it wascorrect 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 aradiologist and had given only the X-Ray report.

17.2. The aforesaid statements would have to be considered inlight of the law relating to the evidentiary value of bone ossificationtest. This Court has, in Mukarrab (supra), declared that an ossificationtest could not be solely relied upon as conclusive proof of age and thesaid test is by no means an infallible or accurate test to determine thecorrect number of years of person’s life. The general rule fordetermining the age is that it can vary plus or minus two years and thatthe date of birth of person is to be determined on the basis of the

Amaterial on record and on appreciation of evidence adduced by parties.It has therefore been authoritatively laid down by this Court that thereport of an ossification test can, at most, be used to corroborate otherrelevant evidences, oral or documentary. Even so, relying on theaforesaid case, the High Court had rightly observed that if the marginfactor of (plus or minus) two years is applied to the case of the successfulBcandidate, it could also mean that in the year 2017 the age of thesuccessful candidate was 24 years which would indicate that he wasborn in the year 1993.

17.3. In that background, I am of the view that the medicalexamination report of the successful candidate dated 27.01.2017 basedCon an ossification test conducted, wherein his age was recorded to betwenty-six years at the relevant time, cannot be accepted as conclusiveproof of his age and the same would not hold any water. This is especiallyso when other documents such as matriculation certificate, date of birthcertificate issued by the Nagar Palika Parishad, Rampur and passports,Dwhich have been acknowledged by this Court on various occasions toserve as proof of date of birth are in fact available in the instant case butthe date of birth recorded in the said documents is contrary to the resultof the ossification test. While I may have been inclined to place someweight on the result of the ossification test, in case other documentswhich would serve as proof of age were not available, I am unable toEaccept the same in the instant case. This is because other documentswhich would serve as proof of age are available and the date of birthrecorded in such documents is contrary to the result of the ossificationtest. Therefore, I affirm the findings and decision of the High Court quathis issue also.F

vi)Re: Declaration of the successful candidate’s motherwhile submitting the G.I.S. Nomination Form:

18. This issue pertains to the evidentiary value of the contents ofthe G.I.S. (Group Insurance Scheme) nomination form which formed apart of the Service Book (Ex. R-11 Paper No. A95/1-34) of the successfulGcandidate’s mother, which is relied upon by the successful candidate. InPaper No. A95/25 of the said Service Book is the G.I.S. NominationForm of the mother of the successful candidate, which records, inter-alia, that on 26.04.2001, she had nominated the appellant-successfulcandidate and two other family members under the Group InsuranceHScheme by stating their respective age as on the aforesaid date. In the

said form, the age of the successful candidate is stated as eight years ason 26.04.2001.

18.1. The High Court observed that DW-1- Dr. Shailendra K.Tiwari, Assistant Director of Higher Education, Prayagraj, U.P., broughtthe successful candidate’s mother’s Service Book (Ex. R-11 A95/1-34)which contained the G.I.S. (Group Insurance Scheme) Nomination Form(Ex. R-11 A95/25) which was signed by the mother of the successfulcandidate on 26.04.2001. The High Court concluded that the successfulcandidate was born in the year 1993.

18.2. The High Court further observed that the election petitionerhad specifically raised this argument in paragraph 12 (iii) of the ElectionPetition and yet, the successful candidate did not make any averment inthis 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 theyear 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 undisputedpoint of time would have to be considered as conclusive proof of thefact that the successful candidate was born in the year 1993 and wastherefore eight years old in April, 2001 in the absence of any explanationto resile from the said admission. The said G.I.S Form was adduced asevidence by none other than the successful candidate and was alsoreferred to by DW-5–Tazeen Fatima in her cross-examination. However,she did not offer any explanation about the entry as to the successfulcandidate’s age in the said form and had not disputed the said G.I.S.Form which was part of her Service Book. The successful candidate,having relied on DW-5’s Service Book, of which the G.I.S. form is apart, cannot now seek to rely on the same selectively, i.e., on only thosedetails entered in the Service Book/G.I.S. form which would potentiallysupport his case while resiling or disregarding as irrelevant any entry ordetail therein which would have an adverse impact on his case.

18.4. This Court has held in P.C. Purushothama Reddiar vs. S.Perumal (1972) 1 SCC 9 that once document is properly admitted bythe party producing the said document, the contents of that documentare also admitted in evidence and no further evidence would have to belet in by the party relying on such admission to establish the fact soadmitted aliunde.

A18.5. The said G.I.S. Form was adduced as evidence at the behestof the successful candidate and the contents of the same were provedby DW-1-Dr. Shailendra K. Tiwari and were not disputed by DW-5-Tazeen Fatima. Therefore, the successful candidate cannot now beallowed to selectively admit the contents of the same. No attempt wasmade by the successful candidate to resile from the said admission byBoffering any explanation as to why reliance could not be placed on thesaid document when the successful candidate himself was relying on

18.6. I, therefore, affirm the findings of the High Court that theG.I.S. Nomination Form (Ex. R-11 Paper No. A95/25) came intoCexistence at an undisputed point of time and is piece of evidence whichproves 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 ofDidentity, wherein the successful candidate’s date of birth has beenrecorded as 30.09.1990, namely, copy of Aadhar Card, driving licenceand Voter ID Card of the appellant-successful candidate. Strong reliancehas been placed on the above-listed documents to contend that the dateof birth recorded therein is 30.09.1990, which is in accordance with thedate of birth reflected in the duplicate birth certificates issued by theEQueen Mary’s Hospital, Lucknow, and the Nagar Nigam, Lucknow, on21.04.2015 and 21.01.2015, respectively.19.1. The High Court, on perusal of the successful candidate’sAadhar Card (Ex. P-2 Paper No. A-66/1), Driving License (Ex. P-2Paper No. A-67/1) and Voter I.D. Card (Ex. P-2 Paper No. A-68/1)Fheld that the above-mentioned documents are not evidence of date ofbirth of the successful candidate. It was of the view that the date ofbirth in the Driving License was corrected subsequently and that theAadhar Card dated 07.03.2015 and the Voter I.D. Card dated 18.07.2016were issued on the basis of the date of birth mentioned in the birthGcertificate dated 21.01.2015 issued by the Nagar Nigam, Lucknow, whichhad been held to be null and void. Reliance was placed on judgment ofits 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 means of identity and not proof of date ofbirth. The High Court therefore, held that the above-mentionedHdocuments did not conclusively establish that the successful candidate

was above twenty-five years of age on the date of filing his nominationpapers or on the date of declaration of result of the legislative assemblyelection in question.

19.2. I am inclined to affirm the findings of the High Court quathis issue also. It is observed so, in light of the fact that the Aadhar cardwas issued on 07.03.2015, on the basis of the duplicate birth certificatedated 21.01.2015. Having held that the duplicate birth certificate dated21.01.2015 does not establish the date of birth of successful candidateas 30.09.1990 and that the same was issued under circumstances whichare suggestive of manipulation and interpolation of the hospital records,I am of the opinion that the Aadhar card which was issued on 07.03.2015would also not have any evidentiary value in so far as successfulcandidates’ date of birth is concerned. Further, the driver’s licence andvoter ID of the successful candidate herein, which were also issued onthe strength of the duplicate certificates issued by the Queen Mary’sHospital, Lucknow, and the Nagar Nigam, Lucknow, on 21.04.2015 and21.01.2015, respectively, would not serve as proof of the successfulcandidate’s date of birth, having regard to the observations in the precedingparagraphs of the discussion as to the proof of the date of birth of thesuccessful candidate being 30.09.1990.

19.3. It is observed that all these documents were secured post2015, at which time the successful candidate started taking active partin politics. I, therefore, am inclined to observe that the said documentswere obtained, merely as means to corroborate the false claims of thesuccessful candidate as to his date of birth and hence are not worthy ofconsideration as corroborative evidence for the purpose of proving thedate of birth of the successful candidate.

20. I shall now discuss the judgments cited on behalf of theappellant:

a) In Brij Mohan Singh vs. Priya Brat Narain Sinha (supra),on an examination of the entire oral and documentary evidence, thisCourt held that the election petitioner therein had not been able to provethat the successful candidate therein was below twenty-five years ofage on the date of filing of his nomination while the appellant himselfalso was not able to show that he was at least twenty-five years of ageon that date. It was observed that the burden of proving the age was on

Athe election petitioner and when the said burden was not discharged, theelection petition must fail.

The aforesaid dictum is of no assistance to the appellant herein asthe position with respect to the factual matrix is at variance. Although,the election petitioner herein contended that the successful candidateBwas less than twenty-five years of age and therefore, was ineligible tocontest the Assembly election and the election petitioner had the burdenof proving the said fact but the successful candidate took up on himselfto prove another fact, namely, that he was born on 30.09.1990 and noton 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.COn going through the oral and documentary evidence in this case, I findthat the appellant herein has failed to prove that he was born on 30.09.1990in spite of letting in voluminous oral and documentary evidence in viewof the discussion and findings arrived at by us. On the other hand, theevidence let in by the respondent-election petitioner, when juxtaposed toDthe 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, justand proper on the appreciation of the evidence on record in the instantcase.

Eb) In Birad Mal Singhvi Singh vs. Anand Purohit (supra),the question as regards the age of two candidates, namely, HukmiChand and Suraj Prakash Joshi was under consideration. The electionpetitioner therein had examined, inter alia, PW-3 and PW-5, being thePrincipal, New Government High Secondary School, Jodhpur, since1984 and Deputy Director (Examination) Board of SecondaryFEducation, Rajasthan, respectively. They produced the scholar’s register(Ex.-P8) and counterfoil of the Certificate of Board of SecondaryEducation (Ex.-P9) of Hukmi Chand, respectively, and tabulation recordof the Secondary School Examination, 1974, (Ex.-P10). In thedocuments at Ex.- P9 and P10, the date of birth of Hukmi Chand wasGrecorded as 13.06.1956. Similarly, insofar as Suraj Prakash Joshi isconcerned, Ex.-P11 being the tabulation record of Secondary SchoolExamination of 1977 indicated his date of birth as 11.03.1959 and thecounterfoil of certificates and the tabulation form recording the samedate of birth on the basis of what was mentioned by the candidate inthe examination form were produced.HIn my view, the aforesaid case would have no relevance insofaras 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 casestated that it is 01.01.1993 and he has produced documents and let inoral evidence in support of the same, the appellant-successful candidatehas 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 consideringthe oral and documentary evidence on record, I find that the appellanthas failed to prove his case that he was born on 30.09.1990. On theother hand, the evidence on record in the form of oral and documentaryadmissions produced by the appellant herein when juxtaposed andappreciated with the oral and documentary evidence of the respondent-election petitioner herein indicates that the appellant has failed to provethat he was born on 30.09.1990 while the election petitioner has provedthat the appellant herein was born on 01.01.1993. This is because theappellant has not let in evidence to show as to on what basis the birthcertificate was issued by the Queen Mary’s Hospital in which theappellant was born, as well as the basis on which the other birth certificatehad been issued by the Nagar Nigam, Lucknow. This is because theentries made in the EOT register and MLR have no evidentiary value inthe absence of the birth list sent by the hospital to the MunicipalCorporation which is the basis for registering birth in the birth registermaintained by it. Unless the hospital wherein the child was born sendsthe birth list to the Municipal Corporation, the issuance of birth certificateby it would have no probative value. The duplicate birth certificatesissued by Queen Mary’s Hospital and the Nagar Nigam, Lucknow, arede hors any basis in the instant case. I infer the same on perusal of thedocumentary and oral evidence discussed above. Therefore, the appellantherein has failed to prove that he was born on 30.09.1990.

On the other hand, the respondent-election petitioner has producedthe relevant evidence of an undisputed point of time to prove that theappellant herein was born on 01.01.1993. Such inference can be madefrom Ex. P-1 to P-4 in which the date of birth of the successful candidatewas shown as 01.01.1993. Although, voluminous documents wereproduced by the appellant to contradict the same, the fact remains thatEx R-11 being the copy of the service book of Tazeen Fatima LecturerPolitical Science, mother of the appellant-successful candidate it wascategorically stated that the appellant herein was eight years of age in

Athe year 2001 as per GIS nomination form submitted by her under herown signature on 26.04.2001. This critical admission made in the servicebook stating that the appellant herein was eight years of age in 2001 hasnot been explained nor any attempt has been made to contradict or resilefrom the same.BThe factual matrix in the aforesaid case would not apply vis-à-

BThe factual matrix in the aforesaid case would not apply vis-à-vis the case at hand as the respondent herein produced certain documentsin order to prove that the appellant herein was born on 01.01.1993 andthe said fact has been proved by producing the relevant oral anddocumentary evidence. When the said evidence is appreciated in lightof the admissions by the appellant herein, I find that the appellant hasCfailed to prove that he was born on 30.09.1990. In the circumstances, Iam of the opinion that the documentary evidence produced by therespondent-election petitioner has cogent and probative value. This isbecause the said documents are consistent with the admitted documentsof the appellant as well as with the admissions made by the appellantDhimself to the effect that, it was only in the year 2015 that he found outthat the date of birth mentioned in his records was shown to be 01.01.1993and that he was born in Rampur and based on the Birth Certificateissued by Nagar Palika Parishad, Rampur, he had continued his affairsincluding travelling overseas on passports and visas issued on the basisof the Birth Certificate issued by Nagar Palika Parishad, Rampur, whichEshowed that he was born on 01.01.1993.

Further, it was only after the commencement of the proceedingsin the election petition and the challenge raised to his date of birth thatthe appellant made attempts to establish that he was born on 30.09.1990and hence, took steps to get his educational record, passport and otherFdocuments of identity “rectified” so as to make them consistent with hisstand as against the election petition. The subsequent alterations madein the documents pertaining to the appellant herein cannot have bearingon the case since even according to the appellant it was on the basis ofthe following documents, namely, his Class X Marksheet, his PassportGand Visa that the appellant herein was continuing with his activities andidentified 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 contestingthe assembly elections which were held in the year 2017 and beingconscious of the fact that he could not do so as he was disqualified onaccount of being under aged, he took steps to alter his date of birth toH

30.09.1990 and made attempts to seek “duplicate” birth certificates fromthe Nagar Nigam, Lucknow and Queen Mary’s Hospital, Lucknow. Tillthen, the appellant herein was conscious of the fact that his date of birthin his educational and other records was 01.01.1993 and he used thosedocuments for the relevant purposes that necessitated the usage of thesaid documents.

Another significant point is that until the document at Ex. P-3Paper No. A-80/1 was cancelled, the appellant had possessed documentsshowing two dates of births, one, being 01.01.1993 as having been bornin Rampur and the other being 30.09.1990 as having been born inLucknow. In the circumstances, I am of the opinion that since the basison which the birth certificate was issued by the Nagar Nigam, Lucknowand Queen Mary’s Hospital, Lucknow, is not brought on record in theform of tenable and probative oral and documentary evidence, the caseof the appellant cannot be accepted at all.By this, it does not mean that respondent herein-election petitionermust fail. I say so for the reason that the appellant herein has producedmaterial 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 electionpetitioner who has produced documents indicating the date of birth ofthe appellant-successful candidate as 01.01.1993 and therefore, wasnot eligible to contest for the election to the legislative assembly in theyear 2017.

c) The judgment of this Court in Narender Singh (supra) is ofno assistance to the appellant herein as evidence on record does notgive rise to inferences in favour of the appellant herein.

d) The judgment of this Court in Joshna Gouda (supra) is alsodistinguishable. In the said case, the controversy was with regard to theeligibility to contest for the post of Sarpanch under the Orissa GramPanchayat Act, 1964, it was contended by the first respondent thereinthat the appellant therein was not eligible to contest as he had not attainedthe age of 21 years. Therefore, the Election Petition was filed to seeksetting aside of the election of the respondent therein. The appellanttherein contested the Election Petition. In the said case, the questionwas whether the appellant therein was born on 07.07.1985 and not on20.06.1986 as contended by the first respondent-election petitioner therein.The successful candidate therein had produced Exbs. to in supportof the fact that she was born on 07.07.1985. The High Court found that

AExbs. and are voters’ list of the years 2007 and 2008 respectivelywhich were prepared later in point of time to the filing of the nominationpapers in election in question and they do not reflect the date of birth ofthe appellant therein. Ex. being horoscope was rightly not relied upon.Ex. being certificate of date of birth issued under the provisions ofthe Registration of Births and Deaths Act showing the date of birth ofBthe appellant therein as 07.07.1985 but such an entry came to be madepursuant to an application made by the appellant therein subsequent tothe nominations in the election in question. Therefore, the High Courtrefused to place any reliance on the said document also. This Court heldthat the High Court had rightly refused to believe those documents andCthe appellant-successful candidate therein had failed to prove her dateof birth as 07.07.1985. But that does not automatically lead to theconclusion that the assertion of respondent No. 1 therein that the actualdate of birth of the appellant therein is 20.06.1986 was proved. It wasobserved by this Court that the burden to prove the fact that the appellanttherein was born on 20.06.1986 rested squarely on the election petitioner.DIn that regard, reliance was placed on Section 101 of the Evidence Act.It was further observed by placing reliance on Robins vs. NationalTrust Company 1927 AC 515 which is to the following effect:

“ … To assert that man who is alive was born requiresno proof. The onus is not on the person making the assertion,Ebecause it is self-evident that he had been born. But to assert thathe [had been] born on certain date, if the date is material, requiresproof; the onus is on the person making the assertion.”

This Court held that since the first respondent therein had failedto discharge the burden cast upon him, the Election Petition had to failFon the oral and documentary evidence let in that case. It was held thatthere was an inconsistency regarding the age of the appellant thereinand particularly with reference to her admission in the Upper PrimarySchool and hence, the appeal was allowed and the Election Petition wasdismissed. The aforesaid judgment is not applicable to the present caseas in the present case there is clear and unambiguous admission on theGpart of the appellant through the nomination form being part of the ServiceBook - (Ex). R-11 paper No. A-95/1-34 and the document produced bythe respondent/election petitioner herein. Those documents relate to theappellant herein and the appellant herein had acted upon those documentsuntil his date of birth was changed to 30.09.1990 in the year 2015. Thus,Hthe judgment in Joshna Gouda is of no assistance to the appellant herein.

Summary of Conclusions:

a)I am of the view that the appellant-successful candidatewas not born on 30.09.1990 and was not twenty-five yearsold at the time of filing the nomination as the appellant hasbeen unable to prove the said fact despite the voluminousBoral and documentary evidence provided on record. In fact,G.I.S. Nomination Form submitted by DW-5 at anundisputed point of time and which is part of her ServiceBook which is adduced as evidence at the behest of theappellant-successful candidate goes against the case of theappellant. The G.I.S. Nomination Form is in consonanceCwith the passports and visa issued by the concernedauthorities showing the date of birth of the appellant as01.01.1993 which have been produced by the electionpetitioner in support of his case. The issuance of the freshpassport during the pendency of the Election Petition showingDthe date of birth as 30.09.1990 is of no consequence andcannot be of any assistance to the appellant herein.

Similarly, Class X Secondary School ExaminationCertificate and Class XII Secondary School ExaminationCertificate which indicate the date of birth of the appellantas 01.01.1993 even till date, are also in consonance withthe earlier passports and visa documents produced by therespondent-election petitioner herein. In fact, the appellant-successful candidate had relied upon the educationalcertificates indicating his date of birth as 01.01.1993 andhis place of birth as Rampur for the purpose of securing hisearlier passports and visa.

b)Moreover, the stand taken by the successful candidate thatall documents pertaining to the Birth Certificate dated28.06.2012 issued by the office of Nagar Palika Parishad,Rampur, were burnt due to short circuit on 08.05.2015would suggest that the said birth certificate, wherein thedate of birth of the successful candidate was recorded as01.01.1993 came to be destroyed and later cancelled wereunder suspicious circumstances.

480SUPREME COURT REPORTS

Ac)Further, on perusal of the E.O.T. and M.L.R. registers, Ihold that the same are mired with discrepancies, over-writingand factual inaccuracies and the same cannot be ignored. Iam, therefore, of the view that no weight can be placed onthe birth certificate dated 21.01.2015, issued by the NagarNigam, Lucknow, which is stated to be issued on theBstrength of an entry made in the birth register maintainedby the hospital, which itself is not authentic in the absenceof production of the birth list indicating the birth of theappellant on 30.09.1990, and is created by manipulation andinterpolation in the hospital records.

d)I am not inclined to place any weight on the result of theossification test as other documents such as thematriculation certificate, date of birth certificate issued bythe Nagar Palika Parishad, Rampur and passports provethat the age and the date of birth recorded in such documentsDis contrary to the result of the ossification test.

e)It is further held that the Aadhar card, driver’s licence andvoter ID of the appellant-successful candidate herein, whichwere issued on the strength of the duplicate certificatesissued by the Queen Mary’s Hospital, Lucknow, and theNagar Nigam, Lucknow, on 21.04.2015 and 21.01.2015,respectively, are not proof of the successful candidate’sdate 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 naturehas to bear in mind that Article 173(b) of the Constitution of Indiaprovides for disqualification. person cannot be permitted tooccupy an office for which he is disqualified under the Constitution.The endeavour of the court therefore should be to see that aGdisqualified person should not hold the office but should not at thesame time unseat person qualified therefor. The court is requiredto proceed cautiously in the matter and, thus, while seeing that anelection of the representative of the people is not set aside onflimsy grounds but would also have duty to see that theconstitutional mandate is fulfilled.”

In view of the aforesaid discussion which has been made afterAtaking into consideration all the material on record, I find that theacceptance of the nomination of the appellant-successful candidatewas improper. The findings of the High Court in this regard do notrequire any interference. Hence, the judgment impugned is affirmedand consequently, the appeal is dismissed. The election of the appellant-Bsuccessful candidate herein to the Uttar Pradesh Legislative Assemblyfrom 34-Suar Constituency, District Rampur, Uttar Pradesh, is set aside.A certified copy of this decision be sent to Election Commissionforthwith.

Parties to bear their respective costs.

Bibhuti Bhushan Bose

(Assisted by : Preetam Bharti, LCRA)

Appeal dismissed.