Summary
This was an appeal against the Allahabad High Court's order voiding the 2017 election of Mohd. Abdullah Azam Khan from the Suar constituency, on the ground that he was under 25 as Article 173(b) requires. The Supreme Court dismissed it. His school certificates, passports, visa and a 2012 Rampur birth certificate all gave 01.01.1993, and he had used them until 2015. His 1990 date rested on a Lucknow birth certificate obtained in 2015, within days of his mother's application, and on hospital registers with overwriting and interpolation. Since both sides had led evidence, the burden of proof was academic. Nagarathna J., concurring, added that his mother's 2001 nomination form giving his age as eight confirmed a 1993 birth.
Issues
- Whether the returned candidate was born on 30.09.1990, as he claimed, or on 01.01.1993, and so whether he was qualified under Article 173(b) when his nomination was accepted for the 2017 Uttar Pradesh Legislative Assembly election.
- How the burden of proof and the probative value of public documents under Section 35 of the Evidence Act operate where both parties have led evidence on age.
Provisions considered
- Article 173(b), Constitution of IndiaA candidate for a Legislative Assembly must be at least 25; the appellant, born on 01.01.1993, was not qualified on the dates of nomination, scrutiny and result. (¶¶ 4, 11, 50)
- Sections 35, 101 to 106, Indian Evidence Act, 1872Public records made ante litem motam carry probative value; facts within a party's special knowledge are for him to prove; when both sides lead evidence, onus becomes academic. (¶¶ 18, 19, 20, 21, 42, 46)
- Section 13(3), Registration of Births and Deaths Act, 1969A fresh birth certificate issued in 2015 for a 1990 birth without the delayed-registration procedure, while a Rampur record already existed, carried no credibility. (¶ 48)
- Section 116A, Representation of the People Act, 1951Statutory appeal against the High Court's judgment in the election petition. (¶ 1)
Held
- When both parties have adduced evidence on age the question of onus becomes academic, and a fact especially within a party's knowledge must be proved by him; documents admissible under Section 35 must still be weighed for probative value, including the source of the entry. (¶¶ 18, 19, 20, 42, 46)
- The appellant's Class X certificate, passports of 2006 and 2012, passport applications signed by him, visa and the Nagar Palika, Rampur birth certificate of 28.06.2012 all recorded 01.01.1993; these public documents, generated on his own information and used until 2015, are not deprived of evidentiary value by their later cancellation. (¶¶ 25, 27, 28, 29, 30, 47)
- The claim of birth on 30.09.1990 rested on a birth certificate issued by Nagar Nigam, Lucknow within three days of the mother's application of 17.01.2015 without supporting documents or the Section 13(3) procedure, an unauthenticated birth register with an inserted entry, and hospital registers bearing overwriting and inconsistent entries; no probative value attaches to them, and two birth records in two municipalities for one person cannot both stand. (¶¶ 31, 32, 33, 34, 35, 37, 39, 40, 41, 43, 48, 49)
- Concurring, Nagarathna J. added that the mother's Group Insurance Scheme nomination form of 26.04.2001, produced by the appellant himself, stated his age as eight, an unexplained admission consistent with birth in 1993; the ossification report, Aadhaar, voter ID and driving licence obtained after 2015 do not prove the 1990 date; and acceptance of the nomination was improper.
Result
Civil Appeal No. 104 of 2020 against the Allahabad High Court's judgment dated 16.12.2019 in Election Petition No. 8 of 2017 dismissed; the appellant's election from 34-Suar constituency remains set aside; no costs.