TaxTMI 
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TaxTMI 
2022 (11) TMI 1575
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....Suar, District Rampur constituency. Public notice was issued by the Returning Officer fixing the election for the afore-stated programme for holding election constituency. According to the schedule of programme, the appellant and the first respondent along with others filed their nomination papers. The scrutiny of the nomination took place on 28th January, 2017. 3. After scrutiny and withdrawal of nomination papers, the appellant and six others including the election petitioner were the candidates who remained in the field for election. It may be noted that before the Returning Officer, the respondent (election petitioner) filed an objection against the appellant alleging that he is less than 25 years of age and, therefore, is not qualified to contest the election in view of Article 173(b) of the Constitution. The objection was overruled by the Returning Officer and accordingly the election took place as per the schedule, in which the appellant and the respondent (election petitioner) contested along with others. The result of the election was declared on 11th March, 2017 in which the appellant secured highest votes and was declared elected. 4. The respondent filed the electi....
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....r the certificate, the mother of appellant is Tazeen Fatima and his father is Mohd. Azam Khan. The date of birth as recorded in the certificate of Secondary School Examination (Class-X) results, 2007 of the appellant (Mohd. Abdullah Azam Khan) is 01.01.1993. A copy of the certificate of Secondary School Examination (Class-X) results of the appellant (Mohd. Abdullah Azam Khan) obtained from the Central Board of Secondary Education is enclosed and marked as Annexure-4 to this petition. (v) That the appellant (Mohd. Abdullah Azam Khan) appeared in Intermediate examination in the year 2009 St. Paul's School, Rampur. The said papers and records are available with St. Paul's School, Rampur and the Central Board of Secondary Education, CBSE. (vi) That the election petitioner has made best efforts to get the admission form, examination form as also documents pertaining to the Intermediate Examination of the appellant (Mohd. Abdullah Azam Khan), but has not been able to get the same. The election petitioner has only been able to get the certificate of Secondary School Examination (Class X) results of the appellant from the Central Board of Secondary Education. ....
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....date of birth reflecting in the birth certificate issued to him by Rampur Nagar Palika on 28th June, 2012, of 1st January, 1993 which was later cancelled and according to him, the birth certificate issued by Nagar Nigam, Lucknow, on 21st January, 2015 is based on the records maintained by Queen Mary's Hospital, Lucknow, where he was born, his date of birth as per the hospital records is 30th September, 1990. 10. The appellant came with a specific case before this Court that his date of birth reflected in his academic record of 1st January, 1993 was incorrect and that being the reason, the birth certificate issued on 28th June, 2012 by Nagar Palika, Rampur was duly cancelled on 30th January, 2015 and a duplicate certificate of birth dated 21st April, 2015 was issued by Queen Mary's Hospital, Lucknow, where he was born, indicating 30th September, 1990, as the correct date of birth of the appellant and accordingly he was above 25 years of age on the day when nomination form was filled by him for elections of U.P. Legislative Assembly from 34, Suar Assembly Constituency of District Rampur in the year 2017 and on that date the appellant attained the age of 25 years in terms o....
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.... 21st January, 2015. 13. To support it further, learned counsel submits that once the contents of the document pertaining to the appellant were disputed specifically in his written statement, the burden was on the election petitioner to prove that the date of birth of the appellant was 1st January, 1993 to which no efforts were made and the premise on which the High Court has proceeded to shift the burden of proof on the appellant is in disregard to the principles of the Evidence Act and the fact as alleged is to be proved by the person who pleads under the Evidence Act and made further following submissions :- (i) The appellant has stated his date of birth in his nomination papers as 30th September, 1990 along with supporting documents. Therefore, the burden of proof lies on the election petitioner/respondent to rebut the presumption by adducing admissible and reliable evidence that meets the standard of preponderance of probabilities and the election petitioner/respondent has failed to produce any legally admissible evidence on record so as to discharge his burden of proof. (ii) The respondent/election petitioner has failed to produce any direct and admissibl....
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....absence of any cross- examination of either of the defence witness or the documents placed on record which are public records stands proved in terms of Section 35 of the Evidence Act and further corroborated by the testimony of DW.5 by her service book, salary register, it was established that the appellant was born on 30th September, 1990 in Queen Mary's Hospital, Lucknow. (ix) The impugned judgment fails to consider the established evidence though it provides for proof of documents made in the regular course of business by a person other than the author and fails to consider Section 35 of the Evidence Act which states that documents prepared by an official (public or private) in performance of his duty recorded under law are relevant and admissible. (x) That with respect to the finding of manipulation and interpolation as being recorded in the impugned judgment regarding the birth register (Ex.R12), there is no evidence on record to support such a finding. No question was put to DW.2 as to any manipulation or interpolation in the document. In the absence of any evidence, the finding recorded in the impugned judgment is unsustainable. (xi) The impugn....
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....er [(2012) 5 SCC 634] and taking assistance of the judgments of this Court submits that the finding recorded by the High Court under the judgment impugned is not legally sustainable and deserves to be set aside. Submissions of the Respondent 15. Mr. Aadil Singh Boparai, learned counsel for the respondent, on the other hand, while supporting the finding returned by the High Court in the judgment impugned, submits that he was successful in establishing before the High Court that the date of birth of the appellant is 1st January, 1993 by leading evidence and also as per the admissions made by the appellant/witnesses, admittedly the appellant was not qualified to contest the election for the Member of Legislative Assembly, being less than 25 years of age in view of Article 173(b) of the Constitution on the date when nomination papers were filled or the date of declaration of result and made the following submissions: (i) The respondent/election petitioner placed unimpeachable evidence on record that includes the marksheet of the appellant's class X certificate, his passports dated 28th August, 2006 and original Birth Certificate issued on 28th June, 2012 by Nagar Pal....
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....tember, 1990 or it is 1st January, 1993. Purpose of the Evidence Act 17. The purpose of the Evidence Act, 1872 is to prove and disprove the existence of facts in issue and to find out the truth of the facts which are asserted by the parties as the decision of the case lies upon/depends upon the truthfulness of those facts. The Act essentially does the balancing of interest between the parties to the proceedings and such balancing has to be done by establishing the truth of the facts asserted. Ultimately, the Indian Evidence Act, 1872 is about the quest towards truthfulness. "Procedure is the handmade of justice and not its mistress" i.e. procedure is not to control justice but procedure is the helping hand of justice and it helps to facilitate justice. 18. It is a well-established dictum of the Evidence Act that misplacing the burden of proof vitiates the judgment. At the same time, the rule relating to the burden of proof is based upon certain practical considerations of convenience and reasonableness and also of policy, but where there is a rebuttable presumption of law in favour of one party, the burden of rebutting it lies upon the later. 19. At the same time, when ....
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....e burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of the onus of proof becomes academic [see Union of India v. Sugauli Sugar Works (P) Ltd. [(1976) 3 SCC 32] and Cox and Kings (Agents) Ltd. v. Workmen [(1977) 2 SCC 705]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established. 21. As per Section 35 of the Evidence Act, a register of record maintained in terms of the statute or by statutory authority in the regular course of business would be a relevant fact and in the aforementioned backdrop, the evidence brought on record is required to be considered. The parties have led their documentary as well as oral evidence and have marked exhibits in reference to relevant documents placed by the election petitioner and the appellant in support of their respective claims to justify with regard to the date of birth of the appellant. The oral and documentary evidence relied upon has been noticed in paras 8 and 9 of the judgment and are reproduced herein : 8. Both the parties hav....
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....trar birth and death, Nagar Palika Parishad, Rampur, dated 30.1.2015, cancelling the birth certificate of the respondent dated 28.6.2012, as under :- "श्री मोहम्मद अब्दुल्ला आजम खान पुत्र श्री मोहम्मद आज़म खान निवासी मो० घेर मीर याज खां, जेल रोड़ रामपुर को इस कार्यालय द्वारा दिनांक 28-06-12 को निर्गत जन्म प्रमाण पत्र आज दिनांक 30-01-15 को निर....
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....ning Officer R3 A32 Declaration of results by Returning Officer on 11.03.2017 R4 A100/1- 2 Copy of page no. 174 of EOT Register of Queen Mary's Hospital, Lucknow, containing entries of admission of patients dated 29.09.1990, and thereafter entries dated 7th August 1990, 22.09.1990 and 24.09.1990 R5 A101/1- 2 Copy of page No. 225 of MLR Register of Queen Mary's Hospital bearing cuttings and overwriting and no date of admission of Mrs. Tazeen Fatima (mother of the respondent) R6 A37 Duplicate birth certificate dated 21.04.2015 issued by Queen Mary's Hospital of K.G. Medical University containing baby's name "baby of Tazeen Fatima" born on 30.09.1990 R7 A38/1-2 Discharge ticket of indoor patient Tazeen Fatima in Queen Mary's Hospital admitted on 07.08.1990 and discharge on 24.10.1990 R8 A41/1-3 Information dated 12.09.2017 given by Professor Vineeta Das, HOD King George Medical University to the mother of the respondent under the RTI Act 2005 intimating that as per rules of the hospital, record of only 10 years is kept. Since matter is of 1990, therefore, true copy of admission register containing entries is not....
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....uter generated sheet of Nagar Nigam, Lucknow, mentioning date of birth registration 21.012015, date of birth 30.09.1990 and name Mohd. Abdullah Azam Khan, place of birth - Queen Mary's Hospital, dated 21.4.2015 A96/4-5 Photostat copy of birth register of Nagar Nigam, Lucknow containing entry in the name of Abdullah Mohd. Azam Khan recorded in the register on 30.09.1990. Above it on A95/4 are two entries of birth recorded on 07.02.1992 and 25.06.1993 bearing order of some officer to record the birth. The next page (A95/5) starts with the date 02.10.1990 but at the bottom of the page dates are 26.09.1990 and 27.09.1990 9. Oral Evidence of Defendant/respondent: D.W .- 1 - Dr. Shailendra K. Tiwari, Assistant Director of Higher Education, U.P. Prayagraj. D.W .- 2 - Dr. Archana Dwivedi, Additional Municipal Commissioner, Lucknow. D.W .- 3 - Dr. Uma Singh, Sr. Gynecologist Queen Mary's Hospital (Department of Obst. & Gyno.) D.W .- 4 - Dr. Vineeta Das - HOD Obst. & Gyno., Queen Mary's Hospital, Lucknow. D.W .- 5 - Dr. Tazeen Fatima, (mother of the respondent) D.W .- 6 - Dr. Vandana Sharma - Principal....
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.... A-51/1 - copy of birth certificate No. 3857 of the appellant issued by Nagar Palika Parishad, Rampur, showing date of birth of the appellant as 01.01.1993 and date of Registration 28.06.2012. (iv) Ex. P1 - paper No. A-49/1-4, appellant's pass port application dated 06.07.2012, filed by him under his signature mentioning his date of birth as 01.01.1993, and place of birth Rampur. (v) Ex. P-1 - paper No. 53/1, Pass port preview details of appellant's pass port No. K-7951741, dated 13.07.2012 and Ex. P- 2 - paper No. A62/1-3, copy of appellant's pass port No. K- 7951741, dated 13.07.2012 bearing date of birth as 01.01.1993 and entries of departure/arrival dated 30.04.2013, 05.05.2013, 09.06.2015 and 26.07.2016 and Visa dated 09.07.2014 all mentioning date of birth as 01.01.1993. (vi) Ex.R-11 (Paper No. A95/1-34) the copy of service book of the appellant's mother filed by the appellant in evidence and proved by the D.W .- 1. It contains G.I.S. Nomination form signed and submitted by the appellant's mother (D.W .- 5) on 26.04.2001 mentioning appellant's age to be 8 years. (vii) Ex. P3 - paper No. 80/1, copy of appellant's ....
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....e. 28. Thus, from the evidence on record, the respondent was able to establish from the documentary evidence which belongs to the appellant that consistently from day one he has shown his date of birth as 1st January, 1993 not only in his academic record but also in the birth certificate obtained by him issued on 28th June, 2012 (Ex. A-80/1) by Nagar Palika, Rampur his date of birth as 1st January, 1993 which could have been possible only when the relevant documentary evidence was available with the competent authority/in the office of Nagar Palika, Rampur and this fact cannot be ruled out. The respondent has established on record that the date of birth of the appellant is 1st January, 1993 and this fact was not disputed by the appellant that the documents placed and relied upon by the respondent on record are public documents issued by the competent authorities. 29. At this stage, the objection of the appellant was that although the documents relied upon by the respondent belong to him, but the correctness of the documents is in question, in rebuttal the defence of the appellant throughout even in the defence evidence put forward was that in the year 1995 because his father was....
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....of a birth certificate from Nagar Nigam, Lucknow and submitted application on 17th January, 2015 (Ex.A-96/1-5). 31. It is curious to note that the request made by her was addressed to the Chief Health Officer, Nagar Nigam, Lucknow with a statement that her son (the appellant) was born on 30th September, 1990 in Queen Mary's Hospital, Lucknow and the birth certificate is urgently needed for very important and unavoidable reasons and she enclosed her own affidavit. On such an application being furnished, within three days, the birth certificate was issued by Nagar Nigam, Lucknow on 21st January, 2015 (Ex.A-96/3) indicating his date of birth as 30th September, 1990, which could not have been ordinarily possible to obtain by the common man. 32. It is sufficient to note that there was no documentary evidence obtained from Queen Mary's Hospital, Lucknow, prior to the application dated 17th January, 2015, submitted by her (mother of appellant) for seeking a birth certificate from Nagar Nigam, Lucknow and it is not the case of the appellant that his date of birth recorded as 1st January, 1993 was due to some inadvertence, but at later stage, it came across that the correct da....
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.... which the appellant has proceeded to establish that his date of birth is 30th September, 1990 falls on the ground. 36. It was admitted by DW.5 in her cross-examination that in Xth, XIIth, Undergraduate, all his school records, Postgraduate degree, his date of birth recorded is 1st January, 1993 and that the question put to her in cross-examination about the date of birth of the appellant recorded in the academic record is 1st January, 1993, she made a very curious statement that it is the appellant who informed her that his date of birth is wrongly recorded in his school records, but neither the appellant nor mother-DW.5 ever proceeded in seeking correction in the date of birth certificate at any given point of time prior to the year 2015. 37. The appellant himself appeared as DW.10 in the witness box. It was his admission throughout that in the academic record, his passport, the date of birth certificate issued from Nagar Palika, Rampur on 28th June, 2012, his date of birth recorded as 1st January, 1993 and curiously, for the first time, in his examination-in-chief he has stated that his mother told him that he was born on 30th September, 1990, and not on 1st January, 1993,....
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....g has been done in it. Overwriting is seen in column no.3 of it. (c) Whether you can tell by seeing the description in column no. 16 of above register that whether it matches with the information mentioned in rest of the column of above register? Ans : No (d) Whether the nature of period of pregnancy at page no. 174 of EOT register Annual No.5097 column no.10 is different from the entry of period of pregnancy in page no.225 of MLR register Annual No.1826, Column no.10? Ans : Yes. (e) Whether in the manner in which the entries are made at page no.225 of MLR register it matches with the entries made on the above page of other account number? Ans : Do not match totally. (f) The EOT register and MLR register which you have brought with you today in the Court and presented before the Court, is it attested or signatured by any of the officer or department head by Queen Mary's hospital or King George Medical? And the entries therein or any of the page is signed or counter signed by any of the officer or doctor of the hospital? And whether both the above mentioned hospital registers are authenticated by any of the officer o....
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....e has tried to insert a further illegal entry and if it would have been in continuation on the next page at page 44 after 30th September, 1990, the second entry comes on 2nd October, 1990 and on 1st October, 1990 there is no entry. At the same time, all entries appear to have been made at the same point of time in continuation and this Court cannot attach any credence to the documents on which the appellant has heavily relied upon which, according to him, is the basis for issuance of the birth certificate on a mere application submitted by the mother DW.5 dated 17th January, 2015, issued by the Nagar Nigam, Lucknow on 21st January, 2015. Rest of the documents supported by the oral evidence placed by the appellant on record are only to justify that DW.5 was on maternity leave and a male child was born in the year 1990 and the third maternity leave was availed by her from 7th August, 1990 to 24th October, 1990 and a male child was born on 30th September, 1990, no credence of any kind could be attached to it. 41. That apart from oral evidence to support the documents placed on record obtained from the Queen Mary's hospital, we have looked into the relevant documents and from na....
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...., 2015 which was otherwise not possible. It may be noticed that cancellation has taken place at a later point of time and who is the authority competent to cancel, nothing has been brought on record but the fact is that the appellant himself has obtained the certificate of birth from Nagar Palika, Rampur on 28th June, 2012 indicating his date of birth as 1st January, 1993 apart from other documentary evidence which the appellant later got cancelled. This fact cannot be ruled out that there must be the evidence available before the Nagar Palika, Rampur, based on which Birth Certificate was issued to him on 28th January, 2012. A very peculiar situation is created. Two birth certificates are issued by two different authorities (Nagar Palika, Rampur/Nagar Nigam, Lucknow) at different point of time, the presumption is that there must be some documentary evidence available in the custody of municipality indicating two different dates of birth of the same person at the same time i.e. the appellant herein. 44. The judgment relied upon by the appellant in Birad Mal Singhvi (supra) was a case where one of the defeated candidates filed an election petition and his submission was that there....
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.... part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established." This Court therein followed, inter alia, Birad Mal Singhvi [1988 Supp SCC 604] and several other decisions." 47. In the instant case, the documents issued by Nagar Palika, Rampur in the year 2012, clearly indicate the recorded date of birth as 1st January, 1993 and which is duly supported by his academic record from Class X onwards at all stages which had been generated only under the appellant's own signatures or under the authority of the appellant and this in no manner could be disputed. Merely because the same has been later on cancelled by the appellant, it may not lose its evidentiary value. 48. In this regard, it may be relevant to note that Section 13(3) of the Registration of Birth and Death Act, 1969, clearly postulates that delayed registration of birth and death are permissible provided a procedure prescribed has been followed after taking orders from the Magistrate and proving the correctness of the date of birth. Although the defence of the appellant is that since his name was already registered in the records of....
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....the reasoning and also assign additional reasons for dismissing the appeal. 2. This appeal assails the judgment of the High Court of Judicature at Allahabad, dated 16.12.2019 in Election Petition No.08 of 2017 by which the petition filed by the election petitioner herein against the successful candidate herein has been allowed and the election of the successful candidate herein, to the Uttar Pradesh Legislative Assembly from the 34-Suar Constituency, District Rampur held in the year 2017 has been set aside. For the sake of convenience, the rank of the parties herein shall be referred to as per their rank and status in the Election Petition filed before the High Court. In other words, they shall be referred to as the election petitioner and the successful candidate, respectively. 3. Succinctly stated, the facts giving rise to the instant appeal are as under: 3.1. A notification was published under Section 15 of the Representation of People Act, 1951(hereinafter referred to as R.P. Act), notifying the election of Uttar Pradesh State Legislative Assembly, inter-alia, from 34- Suar Constituency, District Rampur, Uttar Pradesh. As per the said notification, the last date for....
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....uccessful candidate to the Uttar Pradesh Legislative Assembly be declared as null and void, for non-compliance of the requirements of Article 173(b) of the Constitution of India. The said prayer was allowed by the High Court and the election of the successful candidate was set aside. Hence, this appeal. Pleadings: 5. The averments made by the election petitioner in his Election Petition do not call for a reiteration except to the following extent: i) That the successful candidate had not completed twenty-five years of age, both, as on the date of scrutiny of the nomination papers as well as on the date of the election and therefore, his candidature seeking election to the Uttar Pradesh Legislative Assembly ought not to have been accepted in light of Article 173(b) of the Constitution of India read with Section 36(2) of the R.P. Act. ii) That the birth certificates produced by the successful candidate before the Returning Officer were duplicate certificates issued by the Queen Mary's Hospital, Lucknow, and the Nagar Nigam, Lucknow, on 21.04.2015 and 21.01.2015, respectively, and not on 30.09.1990, being the date on which the successful candidate was state....
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....petitioner reiterated the contents of his election petition. (B) The election petitioner has taken an additional plea to the effect that on 14.08.2017, the Election Officer Rampur, had forwarded a representation which was moved by one, Mr. Akash Kumar Saxena, Chairman of the Indian Industries Association, to the Chief Election Officer, disclosing discrepancies with respect to the Pan Card of the successful candidate. That the successful candidate had clandestinely procured a new Pan Card bearing No. DWAPK7513R which was issued to him on 24.03.2015, showing his date of birth as 30.09.1990 by deliberately concealing the fact that he had already been issued Pan Card No. DFOPK6164K on 30.08.2013 in which his date of birth was recorded as 01.01.1993. As per the original pan card, the successful candidate was less than twenty-five years of age, whereas, according to his new pan card he was twenty-six years of age. (C) Further, the successful candidate had opened a bank account no. 34341386006 in State Bank of India with Pan Card No. DFOPK6164K wherein his date of birth in the bank account was recorded as 01.01.1993. That the successful candidate had two pan cards and ha....
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....idence of the successful candidate's mother (DW-5) and the doctor (DW-3) who delivered the successful candidate. That the law of evidence requires that direct and primary evidence, if available, must be given for proof of a fact and such evidence would be the best evidence of such fact. This foundational rule is reflected, inter-alia, in Sections 59 to 65 and Section 91 of the Indian Evidence Act, 1872 (hereinafter referred to as "Evidence Act" for the sake of brevity). In the instant case, the evidence of the successful candidate's mother and the delivering doctor is direct oral evidence of the fact of birth of the successful candidate on a given date. 8.4. It was vehemently contended that DW-5's testimony was fully corroborated by the recitals in her service book and salary register, as also by the hospital records. That the hospital records such as the Emergency O.T. (E.O.T) register and the Maternity Labour room Register (MLR), were not only primary and direct evidences that were contemporaneous to the event of birth, but were also public documents which were produced from proper custody and therefore, they would be both relevant and admissible under Section 35 r....
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..... It was next contended that the High Court's reliance on school records of the successful candidate, wherein his date of birth was incorrectly recorded as 01.01.1993, was misplaced. That school records are not direct evidence of the fact of birth and cannot, on a balance of probabilities, be given pre-eminence over direct evidence of the mother, delivering doctor and contemporaneously created hospital records. In order to buttress such averments, reliance was placed on Birad Mal Singhvi vs. Anand Purohit A.I.R. 1988 SC 1796; Sushil Kumar vs. Rakesh Kumar (2003) 8 SCC 673; Joshna Gouda vs. Brundaban Gouda (2012) 5 SCC 634. 8.9. It was further submitted that the error in the school records had been sufficiently explained by DW-5, as well as DW-9, who is the person who is stated to have accompanied the successful candidate to get him admitted in school. That it is a common practice in India to give a belated date of birth at the time of admission in school so as to secure benefit of enhanced years of public service, and such practice has been acknowledged by this Court in Brij Mohan Singh vs. Priya Brat Narain Sinha and Ors. A.I.R. 1965 SC 282. 8.10. As regards the election....
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.....3. Learned counsel for the election petitioner contended that the correct date of birth of the successful candidate is 01.01.1993 as recorded in the Class-X mark-sheet of the successful candidate; the passports issued to him dated 28.08.2006 and 13.07.2012, the successful candidate's original birth certificate dated 28.06.2012 issued by the Nagar Palika Parishad, Rampur, the passport applications of the successful candidate pertaining to the year 2012 and the visa issued to the successful candidate dated 09.07.2014. It was further contended that the aforesaid documents are public documents and the same were not denied by the successful candidate, hence, they were admissible and relevant under Section 21 and 35 of the Evidence Act and a presumption would arise as to the validity of such documents. 9.4. It was next contended that the defence taken by the successful candidate that he came to know about the incorrect date of birth mentioned in the aforesaid documents only in the year 2015 and the passport and other documents were eventually cancelled, did not inspire confidence as the successful candidate in his cross-examination had stated that the process of cancellation was ....
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.... a piece of evidence by the successful candidate and was also adverted to by DW-5 - Dr. Tazeen Fatima in her cross-examination. However, she did not offer any explanation as to the successful candidate's age in the said form. In this regard, reliance was placed on the judgment of this Court in P.C. Purushothama Reddiar vs. S. Perumal (1972) 1 SCC 9 wherein it was observed that once a document is properly admitted, the contents of that document are also admitted in evidence and no further evidence would have to be let in by the party relying on such an admission to establish the fact so admitted. 9.8. It was submitted that the E.O.T Register (Ex. R-4 Paper No. A-100/1-2) and the M.L.R. Register (Ex. R-5 Paper No. A-101/1-2) adduced as evidence by the successful candidate, were neither authenticated nor certified by the competent authority of Queen Mary's Hospital. There were irregularities including entry of wrong name, discrepancy in the records pertaining to period of pregnancy, etc., which were admitted by DW-3, Dr. Uma Singh, in her cross-examination and more importantly, D.W.3 also stated that she could not confirm that the successful candidate was born on 30.09.1990....
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....en to fill a seat in the legislature of the state unless he is, in the case of seat in the legislative assembly, not less than twenty-five years of age and in the case of a seat in the legislative council not less than thirty years of age. Having heard learned senior counsel and learned counsel for the respective parties and on perusal of the material on record, the following points would arise for consideration: (i) Whether the High Court was correct and justified in allowing Election Petition No.08 of 2017 filed by the election petitioner against the successful candidate and thereby setting aside the election of the successful candidate to the office of Member of Legislative Assembly, from 34-Suar Constituency, District Rampur, Uttar Pradesh, on the ground that there was improper acceptance of successful candidate's nomination paper and there was a breach of Article 173(b) of the Constitution of India? (ii) What order? 11. The narration of facts and contentions would not call for reiteration except stating that the successful candidate is aggrieved by his election to the Legislative Assembly vis-à-vis 34- Suar Constituency, District Rampur, Utta....
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....ing 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, vide Robins vs. National Trust & Co. Ltd. 1927 AC 515: 101 IC 903. 12.5. It is also to be noted at this juncture that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and it never shifts, onus of proof on the other hand, shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. For instance, In a suit for possession based on title, once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title, vide RVE Venkatachala Gounder vs. Arulmigu Viswesaraswami and VP Temple AIR 2003 SC 4548 (4558-59): (2003) 8 SCC 752. 12.6. In terms of section 102 of the Evidence Act, the initial burden to prove its claim is ....
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....and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. If he does so, he must be held to have discharged his burden but if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. [Source: Sarkar on Law of Evidence, 20th Edition, Volume 2.] 12.12. In Sushil Kumar vs. Rakesh Kumar (supra), the controversy was with regard to the improper acceptance of the nomination of the sole respondent therein on the premise that he was under qualified to contest the Bihar Legislative Assemble election from 181, Parbatta Constituency. In the said case, inter alia, the horoscope of the respondent therein and admission register of New St. Xaviers School, Boring Road, Patna and transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents to prove that the successful candidate therein was not eligible to contest the said Assembly election. In the said case, Section 35 of the Indian Evidence Act was referred to and it was observed that the register maintained in terms of a statu....
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.... the year 1996 and was below twenty-five years of age on the date of filing of the nomination. With reference to the averments made in the bail application on behalf of the respondent therein and the same being an admission, reliance was placed on Thiru John vs. Returning Officer (1977) 3 SCC 540 to observe that a party's admission as defined in Sections 17 to 20, fulfilling the requirements of Section 21 of the Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and even though conclusive, shifts the onus on to the maker on the principle that 'what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted, the fact admitted must be taken to be established.' It was further observed in para 65 of the said judgment that : "65. Furthermore, a person should not be permitted to take advantage of his own wrong. He should either stand by his statement made before a court of law or should explain the same sufficiently. In the absence of any satisfactory explanation, the court will presume that the statement before ....
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....d always been aware of the fact that in the educational certificate and passports, his date of birth was shown as 01.01.1993 and had accepted the same till the year 2015. 13.2. PW-2, Shri. Mohd. Naseem, Passport Officer, Bareilly, deposed that he had brought photocopies of the documents referred to by the successful candidate at the time of making an application for the issuance of his Passport No. K-7951741 which was issued to him on 13.07.2012 from Bareilly Passport Office. PW-2 deposed that the successful candidate had annexed a copy of his birth certificate issued by the Health Department/Municipal Corporation, Rampur, on 28.06.2012, along with a copy of his online application form, a copy of a pass book pertaining to his bank account held with State Bank and a copy of his old Passport No. F-8757022 issued on 28.08.2006 which was valid till 31.12.2010. To a question whether self-attested copies of documents submitted by an applicant are maintained in the records, PW-2 deposed that original copies are returned and self-attested copies are scanned. 13.3. When a question was posed as to whether by modifying the particular entry of date of birth in the successful candidate....
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....l 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. 13.6. I also take note of the fact that the successful candidate had travelled to many foreign countries on his passports which were obtained in the year 2006 and 2012 and the visa which was granted in the year 2014 and in these documents his date of birth was shown as 01.01.1993. I am unable to accept that the successful candidate, who regularly used the passports obtained in the years 2006 and 2012 for international travel, failed all along, to notice that the date of birth recorded in the passports was incorrect. I refuse to believe that an educated individual such as the successful candidate herein, had not, in over nine years (2006 to 2015) looked at the first page of his passport and only later grasped that the date of birth entered therein was 'incorrect' only w....
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....shown to be the address of his parents at the time of birth of the child i.e., the successful candidate as well as the permanent address of parents. The inference to be drawn from the said document is that in the year 2012, the petitioner consciously applied to Nagar Palika Parishad, Rampur for obtaining the birth certificate in order to append the same for obtaining a new passport. The further inference that I draw from the said document is that the successful candidate has sought his birth certificate from the Nagar Palika Parishad, Rampur as he was born at Rampur and the birth certificate clearly indicates that he was born on 01.01.1993. Subsequently, the said birth certificate was cancelled. PW-4 has deposed that all the documents relating to the issuance of birth certificate to the successful candidate were destroyed in fire on 08.05.2015 which is indeed strange and mysterious as by then the successful candidate had already obtained "duplicate" birth certificate from the Municipal Corporation, Lucknow. ii) Re: Educational Certificates of the successful candidate: 14. As per the Secondary School examination Class X certificate (Exhibit P4, paper no. A-25/1) issued in the ....
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....uccessful candidate to St. Paul School to get him admitted in nursery class was also examined. DW-9 deposed that in the year 1995, he took the successful candidate to St. Paul's School, Civil Lines, Rampur, to get him admitted into the said school. That after completing the admission process, the master who was in charge of giving admission, got the successful candidate enrolled in Nursery class and put his date of birth as 01.01.1993 in the admission form and asked DW-9 to sign it and DW-9 signed the same. 14.4. I am of the view that the version narrated by the successful candidate to explain the 'error' in his date of birth, as recorded in all educational records, would not aid the successful candidate's case. Further, it is to be noted that DW-5-Tazeen Fatima in Paragraph 12 of her Examination-in-Chief and the successful candidate in Paragraph 53 of his written statement had stated that DW-9- Shahzeb Khan, the successful candidate's father's friend, had got him admitted in the nursery class of St. Paul School, Rampur, in the year 1995, and had inadvertently mentioned the date of birth of the successful candidate as 01.01.1993. However, DW-9- Shahzeb....
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....ent two reminders to the Regional Office, C.B.S.E., Allahabad, on 19.05.2015 and 21.09.2015 stating that in the register of birth and death and the Birth Certificate provided by the Hospital, the date of birth of the successful candidate was shown as 30.09.1990 and therefore, it should be changed from 01.01.1993 to 30.09.1990. Further, in the reminders, DW-7 stated that in the register of birth and death and the Birth Certificate provided by the Hospital, the date of birth of the successful candidate was shown as 30.09.1990 and therefore, the date of birth in the educational records should also be changed from 01.01.1993 to 30.09.1990. 14.7. It is further noted that on the request made on behalf of the successful candidate, several letters were addressed by the Principal of St. Paul School, Rampur to the Regional Officer, Central Board of Secondary Education, Allahabad requesting for permission to correct the date of birth of the successful candidate. Further, the said permission was not granted and on 30.10.2017, a letter was addressed to the mother of the successful candidate - DW-5 stating that the matter was twenty years' old and it was not possible for the school to tra....
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....er authenticated nor certified by any competent officer and was not even paginated. That DW-2 in her cross-examination had admitted that the Birth Register was maintained by a clerk and was not in the prescribed format as per the mandate of the 1969 Act, and the same had not been authenticated or verified by a competent official. Further, the Birth Register was not paginated and the entry of the name of the successful candidate's mother was not made in a chronological order. DW-2 further testified that the Birth List maintained by the hospital, on the basis of which birth entry is made in the birth register maintained by the municipality, was not available. On the basis of the afore-stated oral and documentary evidence, the High Court held that the Birth Register (Ex. 12 Paper No. A-96/4-5) was a clear case of manipulation and interpolation, as the entry of the successful candidate's date of birth and name was inserted in the small space at the bottom of the page showing it to have been made on 30.09.1990. It was also noted that the successful candidate's entry in the Birth Register did not bear any signature or an order of any authority of the Nagar Nigam, Lucknow, or ....
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.... is held that the birth certificate (Ex. P-2 Paper No. A-63/1) issued by the Nagar Nigam, Lucknow, on 21.01.2015 was null and void. 15.5. From the impugned judgment, it is further noted that the entry with respect to the successful candidate's date of birth in the Birth Register, showing it to be 30.09.1990, was inserted in all probability in the year 2015. The High Court took note of the fact that the birth certificate was issued to the successful candidate on 21.01.2015 by the Nagar Nigam, Lucknow, and at that time, the father of the successful candidate was a Cabinet Minister of the Department of Urban Development and Local Bodies and the Nagar Nigam, Lucknow, came under his Ministry. The High Court was therefore of the view that the entry in the birth register was a result of undue pressure on authorities by the interested parties and was clearly manipulated. The High Court therefore, held that the evidence adduced by Dr. Tazeen Fatima (DW-5), mother of the successful candidate and by DW-10- the successful candidate, was false and wholly untrustworthy. 15.6. In order to ascertain the validity of the Birth Certificate bearing Registration No. NNLKO-B-2015-292611 issued....
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....ony of DW-2, entries in birth register are made according to the birth list provided by the hospital. Therefore, in order to give any finding as to the validity of the birth certificate dated 21.01.2015, issued by the Nagar Nigam, Lucknow, the validity of the antecedent documents, such as the birth register and birth list maintained by the hospital, on the strength of which the birth certificate dated 21.01.2015 was issued, needs to be examined. 15.10. As is evident from the relevant portion of DW-2's cross examination, although the birth register was to be maintained in the format prescribed in this regard in the 1969 Act, such format was not followed in the present case, while recording the entry pertaining to the successful candidate's birth on 30.09.1990. Further, while it is stated that such entry was recorded in the birth register on the basis of a birth list maintained by the hospital, it is admitted that the birth list pertaining to the successful candidate's birth is not available. This means, the basis of making the entry in the birth register maintained by the municipality was not available. 15.11. These facts are to be further considered in light of th....
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....al Evidence: 16. DW-3-Dr. Uma Singh, Senior Gynaecologist, Queen Mary's Hospital stated that she had brought with her, the relevant labour room register and operation theatre register (O.T. Register). Referring to page no. 225 of the Labour register (M.L.R.) annual no. 1826 monthly no. 257, she deposed that the entry pertained to Dr. Tazeen Fatima, successful candidate's mother and as per the said entry she delivered a male child on 30.09.1990 at 3:43 a.m. She also stated that she had signed and issued the duplicate birth certificate dated 21.04.2015 (A-37). In answer to a question as to the authority which issues birth certificates in Queen Mary's Hospital, DW-3 stated that duplicate birth certificates are issued by the person nominated by the Department Head. As regards the procedure for issuance of duplicate birth certificates, DW-3 deposed that an application requesting for a duplicate birth certificate is to be made to the Chief Medical Superintendent of King George University who would thereafter forward the same to the Department Head who would issue the duplicate certificate. DW-3 answered in the negative when asked whether she had brought to the Court the ap....
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....igh Court observed that Page No. 174 of the E.O.T. Register of Queen Mary's Hospital, Lucknow, (Ex. R-4 Paper No. A-100/1-2) containing entries of the admission of patients on 29.09.1990, which showed that the mother of the successful candidate, Tazeen Fatima, was admitted in the hospital and gave birth to a male child, was not trustworthy as contents had been struck out and there was overwriting on the name of "Tazeen Fatima" on the relevant page of the E.O.T. Register. That the entries made in Column 13 and Column 16 did not contain material particulars as shown in entries on the same page pertaining to other patients. The High Court also noticed that the entry in the relevant page of the E.O.T register did not match with the entries in Page No. 225 of the M.L.R. Register (Ex. R-5 Paper No. A- 101/1-2). That there was overwriting on the name of "Mrs. Tazeen Fatima" on the relevant page of the M.L.R. Register and that the relevant page of the M.L.R. Register did not contain the date of admission and registration number. The High Court also observed that the period of pregnancy was recorded in the M.L.R. as 38 weeks as against the period of 32 weeks recorded in the E.O.T regist....
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....erring to Document A-37 (Duplicate Birth Certificate issued on 21.04.2015) DW-4 was asked whether the same had been signed by her, she answered in the affirmative. As to the contents of Document A-37, DW-4 deposed that it was a duplicate birth certificate which was issued on 21.04.2015 by the Gynaecology Department of the hospital she worked at. DW-4 further deposed that in the first column, it had been recorded that the birth certificate pertained to the baby of Tazeen Fatima, the sex and caste of the child i.e., Male and Muslim, were also recorded; in the second column the name of the mother, Smt. Tazeen Fatima was written and in the third column; father's name i.e., Mohd. Azam Khan was written; and in the fourth column, the grandfather's name was written. DW-4 deposed that in the next line, the date and time of delivery i.e., 30.09.1990 at 3:43 a.m. were mentioned. 16.9. On being questioned as to the procedure that is followed for issuing a duplicate birth certificate, DW-4 stated that the Chief Medical Superintendent, King George Medical University sends a letter to the Head of Department who in turn appoints a Medical Consultant for the issuance of duplicate birth c....
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....related to the delivery of the successful candidate nor had she made the entries in the E.O.T. Register. The High Court therefore observed that, without there being any record present with DW-4, it was wrong on her part to certify that the successful candidate was born on 30.09.1990 in Queen Mary's Hospital, Lucknow. 16.15. Based on the above reasoning, the High Court was rightly of the view that the evidence given by DW-3- Dr. Uma Singh and DW-10- the successful candidate could not establish that he was born on 30.09.1990 in Queen Mary's Hospital, Lucknow. 16.16. It is obvious on a perusal of the E.O.T. and M.L.R. registers that the same are riddled with discrepancies, over-writing and factual inaccuracies. A glaring discrepancy, which would have a material bearing on the successful candidate's case is that the period of pregnancy recorded in the M.L.R. register was recorded as 38 weeks as against the period of 32 weeks recorded in the E.O.T register. It is also noted that in the M.L.R. register, Mrs. Tazeen Fatima's name alone has been written in a different handwriting and different ink as compared to the rest of the particulars pertaining to such entry. Th....
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....he successful candidate's age as the same could not be proved by DW-8, Dr. Satbir Singh Ken, Radiologist, District Hospital, Rampur, who was a part of the Medical Board that determined the age of the successful candidate to be 26 years. The High Court based its decision on the fact that DW-8 could not produce the original medical report or the records pertaining thereto. It was also observed that a bone ossification test would always have to be considered having regard to the fact that the results thereof could differ, by up to two years from the actual age of the person tested, vide Mukarrab and others vs. State of U.P. (2017) 2 SCC 210. 17.1. In this background, it may also be noted that DW-8 deposed that in his opinion, there could be a difference of one year between the actual age of the successful candidate and the age suggested in the report of the bone ossification test. That on being asked whether it was correct to say that bone ossification tests could not tell the correct age, DW-8 refused to make any comment and stated that he was only a radiologist and had given only the X-Ray report. 17.2. The aforesaid statements would have to be considered in light of the l....
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....nation Form: 18. This issue pertains to the evidentiary value of the contents of the G.I.S. (Group Insurance Scheme) nomination form which formed a part of the Service Book (Ex. R-11 Paper No. A95/1-34) of the successful candidate's mother, which is relied upon by the successful candidate. In Paper No. A95/25 of the said Service Book is the G.I.S. Nomination Form of the mother of the successful candidate, which records, inter-alia, that on 26.04.2001, she had nominated the appellant-successful candidate and two other family members under the Group Insurance Scheme 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 as on 26.04.2001. 18.1. The High Court observed that DW-1- Dr. Shailendra K. Tiwari, Assistant Director of Higher Education, Prayagraj, U.P., brought the successful candidate's mother's Service Book (Ex. R-11 A95/1-34) which contained the G.I.S. (Group Insurance Scheme) Nomination Form (Ex. R-11 A95/25) which was signed by the mother of the successful candidate on 26.04.2001. The High Court concluded that the successful candidate was born in the year 1993. 18.2. The ....
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....ument when the successful candidate himself was relying on it. 18.6. I, therefore, affirm the findings of the High Court that the G.I.S. Nomination Form (Ex. R-11 Paper No. A95/25) came into existence at an undisputed point of time and is a piece of evidence which proves that the successful candidate was born in the year 1993. vii) Re: Aadhar Card, Voter I.D. Card and Driving License: 19. This issue pertains to the effect of the following documents of identity, wherein the successful candidate's date of birth has been recorded as 30.09.1990, namely, copy of Aadhar Card, driving licence and Voter ID Card of the appellant-successful candidate. Strong reliance has been placed on the above-listed documents to contend that the date of birth recorded therein is 30.09.1990, which is in accordance with the date of birth reflected in the duplicate birth certificates issued by the Queen Mary's Hospital, Lucknow, and the Nagar Nigam, Lucknow, on 21.04.2015 and 21.01.2015, respectively. 19.1. The High Court, on perusal of the successful candidate's Aadhar Card (Ex. P-2 Paper No. A-66/1), Driving License (Ex. P-2 Paper No. A-67/1) and Voter I.D. Card (Ex. P-2 Paper No. A....
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....at the said documents were obtained, merely as a means to corroborate the false claims of the successful candidate as to his date of birth and hence are not worthy of consideration as corroborative evidence for the purpose of proving the date of birth of the successful candidate. 20. I shall now discuss the judgments cited on behalf of the appellant: a) In Brij Mohan Singh vs. Priya Brat Narain Sinha (supra), on an examination of the entire oral and documentary evidence, this Court held that the election petitioner therein had not been able to prove that the successful candidate therein was below twenty-five years of age on the date of filing of his nomination while the appellant himself also was not able to show that he was at least twenty-five years of age on that date. It was observed that the burden of proving the age was on the election petitioner and when the said burden was not discharged, the election petition must fail. The aforesaid dictum is of no assistance to the appellant herein as the position with respect to the factual matrix is at variance. Although, the election petitioner herein contended that the successful candidate was less than twenty-five years of ....
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....candidate. While the election petitioner in the instant case stated that it is 01.01.1993 and he has produced documents and let in oral evidence in support of the same, the appellant-successful candidate has stated that his date of birth is 30.09.1990 and in support of this fact, has tried to let in both oral and documentary evidence. While considering the oral and documentary evidence on record, I find that the appellant has failed to prove his case that he was born on 30.09.1990. On the other hand, the evidence on record in the form of oral and documentary admissions produced by the appellant herein when juxtaposed and appreciated with the oral and documentary evidence of the respondent-election petitioner herein indicates that the appellant has failed to prove that he was born on 30.09.1990 while the election petitioner has proved that the appellant herein was born on 01.01.1993. This is because the appellant has not let in evidence to show as to on what basis the birth certificate was issued by the Queen Mary's Hospital in which the appellant was born, as well as the basis on which the other birth certificate had been issued by the Nagar Nigam, Lucknow. This is because the ....
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....by the appellant himself to the effect that, it was only in the year 2015 that he found out that the date of birth mentioned in his records was shown to be 01.01.1993 and that he was born in Rampur and based on the Birth Certificate issued by Nagar Palika Parishad, Rampur, he had continued his affairs including travelling overseas on passports and visas issued on the basis of the Birth Certificate issued by Nagar Palika Parishad, Rampur, which showed that he was born on 01.01.1993. Further, it was only after the commencement of the proceedings in the election petition and the challenge raised to his date of birth that the appellant made attempts to establish that he was born on 30.09.1990 and hence, took steps to get his educational record, passport and other documents of identity "rectified" so as to make them consistent with his stand as against the election petition. The subsequent alterations made in the documents pertaining to the appellant herein cannot have a bearing on the case since even according to the appellant it was on the basis of the following documents, namely, his Class X Marksheet, his Passport and Visa that the appellant herein was continuing with his activit....
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....ained the age of 21 years. Therefore, the Election Petition was filed to seek setting aside of the election of the respondent therein. The appellant therein contested the Election Petition. In the said case, the question was whether the appellant therein was born on 07.07.1985 and not on 20.06.1986 as contended by the first respondent-election petitioner therein. The successful candidate therein had produced Exbs. A to H in support of the fact that she was born on 07.07.1985. The High Court found that Exbs. A and H are voters' list of the years 2007 and 2008 respectively which were prepared later in point of time to the filing of the nomination papers in election in question and they do not reflect the date of birth of the appellant therein. Ex. D being horoscope was rightly not relied upon. Ex. E being a certificate of date of birth issued under the provisions of the Registration of Births and Deaths Act showing the date of birth of the appellant therein as 07.07.1985 but such an entry came to be made pursuant to an application made by the appellant therein subsequent to the nominations in the election in question. Therefore, the High Court refused to place any reliance on the....
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....ct, G.I.S. Nomination Form submitted by DW-5 at an undisputed point of time and which is part of her Service Book which is adduced as evidence at the behest of the appellant-successful candidate goes against the case of the appellant. The G.I.S. Nomination Form is in consonance with the passports and visa issued by the concerned authorities showing the date of birth of the appellant as 01.01.1993 which have been produced by the election petitioner in support of his case. The issuance of the fresh passport during the pendency of the Election Petition showing the date of birth as 30.09.1990 is of no consequence and cannot be of any assistance to the appellant herein. Similarly, Class X Secondary School Examination Certificate and Class XII Secondary School Examination Certificate which indicate the date of birth of the appellant as 01.01.1993 even till date, are also in consonance with the earlier passports and visa documents produced by the respondent-election petitioner herein. In fact, the appellant-successful candidate had relied upon the educational certificates indicating his date of birth as 01.01.1993 and his place of birth as Rampur for the purpose of securing his earlier....