2022 (11) TMI 1575 - SC - Indian Laws

Election of returned candidate invalidated for breach of Article 173(b) after failure to prove minimum age

SC upheld the HC's decision setting aside the election of the returned candidate from 34-Suar Assembly Constituency for breach of Art. 173(b). On ... Validity of election of the returned candidate (appellant) from 34, Suar Assembly Constituency of District Rampur - improper acceptance of successful candidate's nomination paper - breach of Article 173(b) of the Constitution of India - principles of burden of proof - HELD THAT:- As per Section 101 of the Indian Evidence Act, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This section is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved. The question as to whether burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence, vide National Insurance Co. Ltd. vs. Rattani [2008 (12) TMI 826 - SUPREME COUR] - Burden to prove documents lie on plaintiff alone as onus is always on the person asserting a proposition or fact which is not self-evident. This position is summarised in the observation to the effect that, an assertion that a man who is alive was born requires no proof; the onus, is not on the person making the assertion, because it is self-evident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion. Thus, great evidentiary value has to be attached to an application submitted to a government establishment or Office, such as a Passport Office and the details entered in such application, together with the documents submitted therewith, must be understood to be tendered by the applicant who signs the application form thereby accepting that the information submitted therein is true and correct and to the best of his knowledge - It is therefore not open to the successful candidate to subsequently resile from the aforesaid clear admission and contend that he was unaware that an 'incorrect' date of birth was recorded in certain documents. Having admitted the fact that his date of birth was 01.01.1993 and place of birth was Rampur, in the application form dated 06.07.2012 which was at an undisputed point of time, the successful candidate cannot resile from the same. The stand taken by the successful candidate that all documents pertaining to the Birth Certificate dated 28.06.2012 were burnt due to a short circuit on 08.05.2015 in the office of Nagar Palika Parishad, Rampur, would suggest that the said birth certificate, wherein the date of birth of the successful candidate was recorded as 01.01.1993 came to be later cancelled under suspicious circumstances. It is rather strange that a birth certificate pertaining to the year 1993, was destroyed in the year 2015 under peculiar circumstances, at a time when the successful candidate was making several efforts to get his date of birth changed in various records - the said birth certificate was cancelled. PW-4 has deposed that all the documents relating to the issuance of birth certificate to the successful candidate were destroyed in fire on 08.05.2015 which is indeed strange and mysterious as by then the successful candidate had already obtained 'duplicate' birth certificate from the Municipal Corporation, Lucknow. Thus, no weight can be placed on the birth certificate dated 21.01.2015, issued by the Nagar Nigam, Lucknow, which is stated to be issued on the strength of an entry made in the birth register maintained by the hospital and is created by manipulation and interpolation in the relevant hospital records. It is therefore held that in the absence of any explanation as to why the relevant birth list, forming the basis of the entry in the birth register, was not available to be produced before the Court, no evidentiary value can be attached to the birth register. It is consequently held that the birth certificate dated 21.01.2015, issued by the Nagar Nigam, Lucknow on the strength of such documents, cannot be held to be a valid document - the finding of the High Court as to the invalidity of the birth certificate dated 21.01.2015, issued by the Nagar Nigam, Lucknow, is affirmed. The medical examination report of the successful candidate dated 27.01.2017 based on an ossification test conducted, wherein his age was recorded to be twenty-six years at the relevant time, cannot be accepted as conclusive proof of his age and the same would not hold any water. This is especially so when other documents such as matriculation certificate, date of birth certificate issued by the Nagar Palika Parishad, Rampur and passports, which have been acknowledged by this Court on various occasions to serve as proof of date of birth are in fact available in the instant case but the date of birth recorded in the said documents is contrary to the result of the ossification test - This is because other documents which would serve as proof of age are available and the date of birth recorded in such documents is contrary to the result of the ossification test. The appellant-successful candidate was not born on 30.09.1990 and was not twenty-five years old at the time of filing the nomination as the appellant has been unable to prove the said fact despite the voluminous oral and documentary evidence provided on record. In fact, G.I.S. Nomination Form submitted by DW-5 at an undisputed point of time and which is part of her Service Book which is adduced as evidence at the behest of the appellant-successful candidate goes against the case of the appellant. The G.I.S. Nomination Form is in consonance with the passports and visa issued by the concerned authorities showing the date of birth of the appellant as 01.01.1993 which have been produced by the election petitioner in support of his case. The issuance of the fresh passport during the pendency of the Election Petition showing the date of birth as 30.09.1990 is of no consequence and cannot be of any assistance to the appellant herein. The acceptance of the nomination of the appellant-successful candidate was improper. The findings of the High Court in this regard do not require any interference. Hence, the judgment impugned is affirmed and consequently, the appeal is dismissed. The election of the appellant-successful candidate herein to the Uttar Pradesh Legislative Assembly from 34-Suar Constituency, District Rampur, Uttar Pradesh, is set aside. Appeal dismissed. 1. ISSUES PRESENTED AND CONSIDERED (1) Whether the returned candidate had attained the minimum age of twenty-five years on the dates relevant under Article 173(b) of the Constitution, so as to be qualified to contest the Assembly election. (2) How the burden of proof and the rules of evidence under the Indian Evidence Act, 1872 operate in an election dispute relating to age, where both parties lead oral and documentary evidence, including public documents. (3) What is the probative value and legal effect of the conflicting documents relating to date and place of birth (school records, passports, earlier and later birth certificates from different municipalities, hospital registers, GIS nomination form, Aadhaar, driving licence, voter ID), particularly in light of Section 35 of the Evidence Act and Section 13(3) of the Registration of Births and Deaths Act, 1969 and allied Rules. (4) Whether an ossification test and medical opinion as to age can displace or override the other documentary and oral evidence on record regarding date of birth. (5) Whether, on the above, the acceptance of the nomination of the returned candidate was improper under the Representation of the People Act, 1951, warranting setting aside of his election. 2. ISSUE-WISE DETAILED ANALYSIS Issue (1) - Qualification under Article 173(b): date of birth and age of the returned candidate Legal framework (as discussed): (a) Article 173(b) of the Constitution: candidate for a seat in the Legislative Assembly must be 'not less than twenty-five years of age'. (b) Sections 36(2) and 100 of the Representation of the People Act, 1951, read with Section 116A (appeal): improper acceptance of a nomination of a disqualified candidate renders the election void. Interpretation and reasoning: (c) The election petition was founded on the sole ground that the returned candidate was below twenty-five years on (i) the last date of filing nomination, (ii) the date of scrutiny, and (iii) the date of declaration of result, as his true date of birth was 01.01.1993. (d) The Court examined extensively the competing claims: the election petitioner's case that the date of birth was 01.01.1993 versus the returned candidate's case that it was 30.09.1990. (e) The following consistent, pre-2015 documentary trail-admitted to relate to the returned candidate and issued by public authorities-recorded his date of birth as 01.01.1993 and place of birth as Rampur:   (i) Secondary School Examination (Class X) certificate, 2007 (CBSE) - Ex. P4.   (ii) Passport No. F-8757022 (28.08.2006) - Ex. P1.   (iii) Passport application dated 06.07.2012, signed by the candidate, declaring date of birth 01.01.1993 and place of birth Rampur - Ex. P1.   (iv) Passport No. K-7951741 (13.07.2012), associated visa and travel entries - Ex. P1, P2.   (v) Birth certificate dated 28.06.2012 issued by Nagar Palika Parishad, Rampur, showing date of birth 01.01.1993 and place of birth at Rampur - Ex. P1, P3.   (vi) GIS nomination form dated 26.04.2001 in the mother's service book (Ex. R11) stating the candidate's age as 8 years on that date, necessarily implying birth in 1993. (f) These documents were not denied as to authorship, issuance, or that they related to the candidate; he only asserted that the date 01.01.1993 was 'incorrectly' recorded. (g) The Court found inherently implausible the assertion that for many years, including while repeatedly using passports and visas for foreign travel and obtaining a municipal birth certificate in 2012, the candidate was unaware that his documents uniformly recorded his date of birth as 01.01.1993. (h) The Court noted the age progression: if born on 01.01.1993, his age at Class X (2007) and Class XII (2009) aligned with normal schooling ages; if born on 30.09.1990, he would have been significantly over-aged at those stages, with no satisfactory explanation on record. (i) The GIS nomination form, part of the mother's official service book produced by the defence itself, was treated as a clear admission at an undisputed time that the candidate was 8 years old in April 2001, corroborating birth in 1993. No explanation was offered to displace this admission. (j) By contrast, the candidate's post-2015 case of birth on 30.09.1990 rested on:   (i) A birth certificate issued on 21.01.2015 by Nagar Nigam, Lucknow, and related entries in the municipal register (Ex. R12);   (ii) A 'duplicate' birth certificate dated 21.04.2015 from Queen Mary's Hospital, Lucknow (Ex. R6);   (iii) EOT and MLR registers of Queen Mary's Hospital (Ex. R4, R5);   (iv) Discharge ticket of the mother and other hospital/material leave records; and   (v) Subsequent correction-oriented acts (Aadhaar, rectification requests to CBSE, etc.). (k) On scrutiny, the hospital registers and the Lucknow birth register were found to suffer from overwriting, interpolations, lack of authentication, non-compliance with statutory formats, and absence of the underlying 'birth list' from the hospital which should have formed the basis for municipal registration. Some entries appeared to have been squeezed into pre-existing spaces and did not tally internal details (e.g. differing periods of pregnancy; inconsistent handwriting; wrong religion entry). (l) It was also significant that:   (i) The 2012 Rampur birth certificate (01.01.1993) existed and was cancelled only after the 2015 Lucknow certificate (30.09.1990) was obtained.   (ii) On the date the mother applied in January 2015 to Nagar Nigam, Lucknow, no prior, contemporaneous hospital or municipal document of 1990 showing birth of the candidate on 30.09.1990 was produced or proved.   (iii) The cancellation of the Rampur birth certificate and the alleged destruction of Rampur birth records in a 2015 fire occurred in close temporal proximity to efforts to obtain a new date of birth, which the Court construed as suspicious. Conclusions: (m) Evaluating all evidence, the Court held that:   (i) The reliable and contemporaneous documentary record, particularly school certificate, pre-2015 passports, the 2012 Rampur birth certificate, and the GIS nomination form, established the candidate's date of birth as 01.01.1993.   (ii) The candidate's claim of birth on 30.09.1990 and the supporting Lucknow/hospital documents lacked credibility and probative value and were treated as manipulated or at least not trustworthy. (n) Consequently, on the relevant dates (25.01.2017 - last date for nomination; 28.01.2017 - scrutiny; 11.03.2017 - declaration of result) the candidate was less than 25 years of age and therefore constitutionally disqualified under Article 173(b) to contest or hold the office of Member of Legislative Assembly. Issue (2) - Burden of proof, special knowledge and effect of both sides leading evidence Legal framework (as discussed): (a) Sections 101-106, 35 and 58 of the Indian Evidence Act, 1872. (b) Principles reiterated from Sushil Kumar v. Rakesh Kumar; Rakesh Kumar v. Sunil Kumar; Birad Mal Singhvi; Robins v. National Trust Co.; Kalwa Devadattam; Narender Singh; and other authorities cited. Interpretation and reasoning: (c) The Court restated that:   (i) Initial burden (Section 101) to prove disqualification by age lies on the election petitioner who asserts the fact.   (ii) However, facts 'especially' within the knowledge of a party (Section 106)-such as one's own true date of birth and the basis for contradicting long-standing records-must be proved by that party.   (iii) When both parties adduce substantive evidence on the same issue, the question of onus becomes largely academic; the court must decide on the totality of evidence (Sushil Kumar; Rakesh Kumar). (d) Here, the election petitioner discharged the initial burden by producing unimpeached public documents issued at undisputed points of time, all showing 01.01.1993, and by examining public officials who proved those records. (e) Once execution and authorship of those documents were admitted by the candidate, their contents, including the recorded date of birth, attracted a presumption of correctness under Sections 21, 35 and 58, shifting the practical onus to the candidate to rebut them by cogent evidence. (f) The candidate, in turn, voluntarily took on a positive case (birth on 30.09.1990) and led extensive evidence in that regard. The Court therefore assessed the whole evidentiary corpus, treating abstract questions of onus as secondary. (g) Admissions in pleadings, official forms (e.g. passport application), and the GIS nomination form were treated as substantive evidence and binding unless satisfactorily explained, in line with Sushil Kumar and allied precedents on the evidentiary force of admissions. Conclusions: (h) The election petitioner's initial burden to show that the candidate was underage was held discharged; the candidate failed to discharge the corresponding burden under Section 106 to establish a different true date of birth within his special knowledge. (i) On the totality of evidence adduced on both sides, the Court found that the election petitioner's version (birth on 01.01.1993) stood proved on a preponderance of probabilities, while the candidate's contrary version did not. Issue (3) - Probative value of conflicting documents: public records, delayed registration, and alleged manipulation Legal framework (as discussed): (a) Section 35 Evidence Act: entries in public or official records made in performance of duty are relevant. (b) Registration of Births and Deaths Act, 1969, Section 13(3), and U.P. Registration of Births and Deaths Rules, 2002, Rule 9(3): procedure and competence for delayed registration (after one year) require an order of a Magistrate/Sub-Divisional Magistrate after verification. Interpretation and reasoning: (c) The Court distinguished between:   (i) Earlier, consistent, ante-litem-motam public records (school certificate, original passports, 2012 Rampur birth certificate, GIS form) made in the normal course of affairs; and   (ii) Later, litigation-prompted or politically-timed documents (2015 Lucknow birth certificate and related municipal and hospital entries; duplicate hospital birth certificate; Aadhaar, corrected DL and voter ID) created when the candidate sought to align his age for electoral eligibility. (d) The earlier set of documents fulfilled Section 35 requirements; their authenticity and provenance were supported by testimony from relevant public officers and by the candidate's own prior use of those records. (e) The later Lucknow-based documents were undermined because:   (i) The municipal birth register was not in prescribed statutory format, unpaginated, and unauthenticated; the crucial entry was squeezed into limited space and did not follow chronological order; the supporting 'birth list' from the hospital was unavailable.   (ii) The entry noted the candidate as 'Hindu' though he is Muslim, suggesting it related originally to another birth and was subsequently altered.   (iii) The municipal authorities issued a birth certificate on 21.01.2015 for a 1990 birth without any order from a Magistrate or SDM, in clear breach of Section 13(3) and Rule 9(3), rendering the registration and certificate without legal foundation.   (iv) The hospital EOT and MLR registers showed overwriting, erasures, inconsistent particulars (including different periods of pregnancy), and were unsigned/unauthenticated by any competent officer; the identifying link between the recorded 'male child' and the candidate was not established.   (v) The supposed 'duplicate' hospital birth certificate of 21.04.2015 was unsupported by production of any original birth certificate or the formal chain of correspondence from the Chief Medical Superintendent; the deposing doctor could not produce or identify the foundational application/records. (f) From these features, the Court inferred manipulation and interpolation in the Lucknow municipal and hospital records, especially given the candidate's father's ministerial position over the concerned local body at the relevant time. (g) As regards Aadhaar, driving licence and voter ID recording 30.09.1990, the Court found they were all issued after 2015 on the strength of the impugned Lucknow birth certificate and therefore could not independently prove date of birth once that foundational certificate was discredited. Conclusions: (h) The consistent pre-2015 public records showing 01.01.1993 carried strong probative value under Section 35 and were accepted as reliable. (i) The 2015 Lucknow birth certificate, associated municipal and hospital entries, and all derivative documents (duplicate hospital certificate, Aadhaar, later DL and voter ID) were held to have no or negligible probative value due to statutory non-compliance, internal inconsistencies, and indicia of interpolation; they could not rebut the earlier records. (j) There cannot validly be two municipal birth records from two different places with conflicting dates for the same person; in the facts, only the Rampur-based 2012 certificate (supporting 01.01.1993) was considered credible. Issue (4) - Evidentiary value of ossification test and medical opinion Legal framework (as discussed): (a) General principles from Mukarrab v. State of U.P. on ossification tests: such tests are approximate, with a usual margin of error of ±2 years; they cannot by themselves conclusively determine age. Interpretation and reasoning: (b) A medical board report based on ossification tests suggested the candidate's age to be about 26 years as on the test in 2017. (c) The radiologist (DW-8) could not produce original medical records or full Board proceedings; he acknowledged that the assessed age could differ from actual age by about one year and refrained from claiming precision. (d) The Court held, in line with Mukarrab, that an ossification test is inherently approximate and at best corroborative. Applying the usual margin of error could still make the candidate only 24 in 2017, consistent with a 1993 birth. (e) Given the availability of numerous documentary records directly bearing on date of birth, and their clear preponderance in favour of 01.01.1993, the ossification report could not override those records. Conclusions: (f) The bone age report was not accepted as conclusive proof of age and could not displace the weight of the school, municipal and other documentary evidence; it had no decisive impact on the outcome. Issue (5) - Legality of acceptance of nomination and validity of election Legal framework (as discussed): (a) Representation of the People Act, 1951 - provisions concerning scrutiny and rejection/acceptance of nomination (including Section 36(2)) and setting aside of elections for improper acceptance of nomination of a disqualified candidate. (b) Article 173(b) - constitutional disqualification by age. (c) Principles from Sushil Kumar, Rakesh Kumar, and other election cases: courts must balance the need not to lightly disturb elections with the duty to ensure that constitutionally disqualified persons do not hold office. Interpretation and reasoning: (d) On the factual findings, the Court held that:   (i) The true date of birth of the candidate is 01.01.1993.   (ii) He was under 25 years on the dates of nomination, scrutiny, polling, and declaration of result in 2017.   (iii) He thus did not satisfy the constitutional qualification in Article 173(b) and was disqualified at the threshold. (e) The acceptance of his nomination by the Returning Officer, based on the subsequently procured Lucknow birth certificate and supporting documents, was therefore 'improper acceptance' within the meaning of the election law. (f) The Court recognised that election results should not be overturned on flimsy grounds but emphasised that a person constitutionally disqualified cannot be allowed to occupy the office; fulfilling the constitutional mandate against disqualified office-holders must prevail. Conclusions: (g) The High Court correctly found improper acceptance of the candidate's nomination on account of breach of Article 173(b) and rightly declared his election void. (h) The appeal under Section 116A of the Representation of the People Act, 1951 was dismissed; the judgment of the High Court was affirmed; and the candidate's election to the Legislative Assembly from the concerned constituency was set aside.