MOHD. ABDULLAH AZAM KHAN v. NAWAB KAZIM ALI KHAN

The Judgments of the Court were delivered by RASTOGI, J.

1Copy pinpoint1. Instant appeal has been filed under Section 116A of the Representation of People Act, 1951 assailing the judgment and order dated 16th December, 2019 passed by the High Court of Judicature at Allahabad, holding the election of the returned candidate (appellant) from 34, Suar Assembly Constituency of District Rampur, as void and consequently came to be set aside. E Factual background of the case

2Copy pinpoint2. The notification under the Representation of the People Act, 1951 (hereinafter referred to as “the Act 1951”) was notified for holding election of U.P. State Legislative Assembly from 34, Suar, District Rampur F constituency. Public notice was issued by the Returning Officer fixing the election programme for holding election for the afore-stated 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.

3Copy pinpoint3. 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 H

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Article 173(b) of the Constitution. The objection was overruled by the A 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. B

4Copy pinpoint4. The respondent filed the election petition before the High Court of Judicature at Allahabad on the solitary ground that the appellant was not qualified to contest the 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 filed his nomination papers and also on the day on which he contested the election from 34, Suar Assembly Constituency of District C Rampur.

5Copy pinpoint5. In the election petition, the respondent (election petitioner), inter alia, contended that objection as regards the age of the appellant was raised by him in the first instance before the Returning Officer, but the same was rejected without appreciating the bare documentary evidence D on record and despite the date of birth of the appellant being 1st January, 1993, which was recorded throughout in his academic records, including his Secondary School Examination Certificate in 2007 from the Central Board of Secondary Education and Intermediate Examination in 2009 from St. Paul’s School, Rampur affiliated to Central Board of Secondary E Education, Delhi, the Returning Officer failed to consider the same and arbitrarily overruled the objection raised by him.

6Copy pinpoint6. In the election petition, the following objections were raised and 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) appeared in Secondary School (Class – X) Examination in the year

2007. When he appeared for Secondary School examination, his roll number was 5260139. He appeared from St. Paul’s School, Rampur, which was affiliated with the Central Board of Secondary Education, New Delhi. (iii) That the appellant (Mohd. Abdulla Azam Khan) himself filled-up the admission form and examination form, and in H

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A his own handwriting, mentioned his date of birth as 01.01.1993. The record of the appearance and examination of the appellant (Mohd. Abdullah Azam Khan) are available with the Central Board of Secondary Education, New Delhi. (iv) That the Central Board for Secondary Education has issued B the Secondary School Examination (Class-X) result bearing the roll number, name, mother’s name and father’s name and date of birth of the appellant (Mohd. Abdullah Azam Khan). As per 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 C 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 D 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 E 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. (vii) That the appellant (Mohd. Abdullah Azam Khan) thereafter joined Galgotias University, Greater Noida for his Master’s Degree where he has filled-up form for admission with the same date of birth (01.01.1993). The record of the appellant (Mohd. Abdullah Azam Khan) in respect of his Master’s Degree is available with Galgotias University, Greater Noida. H

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7Copy pinpoint7. Thereafter, in his Master’s degree which he passed out from A Galgotias University, Greater Noida, including his passport and other documents annexed with the nomination papers which are within the public domain consistently indicated that he was born on 1st January, 1993.

8Copy pinpoint8. In addition to this, the contention of respondent no.1 before the B High Court was that the appellant/returned candidate belongs to a very influential family and his father was a Cabinet Minister (Urban Planning, Development and Local Bodies) in Government of Uttar Pradesh during the period 2012 to 2017 and because of his local influence and being the Minister in-charge, documentary evidence has been created by him in the year 2015, which was thereafter made to be the basis and foundation to justify and support the date of birth of the appellant herein which, as alleged, was wrongly recorded in the school records and the fact is that the records maintained by Queen Mary’s Hospital, Lucknow, which indicates that the appellant was born on 30th September, 1990, is a later development and were created in the year 2015 to support that the appellant was qualified to contest election in the year 2017 in terms of the requirement of Article 173(b) of the Constitution.

9Copy pinpoint9. In counter, the appellant in the written statement came with a specific case that the documents on which the election petitioner has relied upon regarding the date of birth based on the school/academic records, although the said documents belong to the appellant but his date of birth is incorrectly and inadvertently registered as 1st 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 as 1st January, 1993 and that was incorrectly shown throughout in his academic records in Secondary School Examination/Intermediate Examination and also in his higher studies including the 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, G 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.

10Copy pinpoint10. The appellant came with a specific case before this Court that his date of birth reflected in his academic record of 1st January, H

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A 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 B 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 of Article 173(b) of the Constitution for contesting the election of 34, Suar Assembly Constituency of District Rampur.

11Copy pinpoint11. Both the parties placed the documentary as well as oral evidence in support of their respective defences. The High Court after due appreciation of the documentary as well as oral evidence on record and taking note of the submissions made by the parties returned the finding that on the date of filing of nomination papers i.e. 25th January, D 2017, on the date of scrutiny of nomination papers i.e. 28th January, 2017 and on the date of declaration of result of 34, Suar Assembly Constituency of District Rampur i.e. 11th March 2017, the appellant was less than 25 years of age and thus, was not qualified to contest the election in terms of Article 173(b) of the Constitution and declared the election of the appellant to be void and consequently it came to be set aside by the impugned judgment dated 16th December, 2019. Submissions of the Appellant

12Copy pinpoint12. Mr. Kapil Sibal, Senior Advocate appearing for the appellant, submits that there is a statutory presumption of validity of the nomination papers as reflected under para 6 of Chapter VI of the Handbook of Returning Officers, as held by a Three-Judge Bench of this Court in Rakesh Kumar v.Sunil Kumar 1 (para 18) and later considered in Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil 2 (paras 35, 40 and 44) and further submits that the school/academic records on which reliance was placed by the election petitioner/respondent and of which cognizance has been taken by the High Court under the impugned judgment was not disputed by the appellant, but the appellant disputed the contents of the document relied upon by the respondent throughout

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

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

13Copy pinpoint13. 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 1 st 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. F (ii) The respondent/election petitioner has failed to produce any direct and admissible evidence to prove that the appellant was born on 1st January, 1993 and was not born on 30th September, 1990 and in support, the only document produced by the respondent/election petitioner is the certificate of G Class X Exam which is not a document for proof of age. (iii) No other document or witness was produced by the respondent to prove an alternate date of birth of the appellant, or to prove the fact that he was not of 25 years of age at the time of scrutiny of nomination papers. H

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A (iv) To the contrary, the appellant has adduced sufficient, reliable and cogent oral and unimpeachable documentary evidence which if considered in totality, establishes a preponderance of probabilities that he was above 25 years of age as on 28th January, 2017. B (v) The best evidence of the date of birth is the testimonial evidence of the mother of the appellant (DW.5) and the doctor who delivered the male child and that is the only direct evidence to support the birth of the appellant on a specific date. C (vi) The appellant’s mother (DW.5) in her affidavit in examination-in-chief has categorically stated that she was a lecturer in Political Science in Govt. Girls PG College, Rampur and she gave birth four times. The children from the first two deliveries in 1982 and 1984 died at the time of birth and the third child born in the year 1985 is her elder D son Mohd. Adib and thereafter she again availed third sanctioned maternity leave from 7th August, 1990 to 4th November, 1990 which is duly supported by service book, proved by DW.1 and that acknowledges that she gave birth to a male child on 30th September, 1990 in Queen Mary’s E Hospital, Lucknow, in maternity department of King George Medical University, Lucknow, a Government Hospital and it is supported with discharge certificate dated 24th 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 have supported the delivery of male child to DW.5 mother of the appellant on 30th September, 1990. (vii) The appellant has further explained that the incorrect date of birth in the school record was an error committed on the part of the family friend Shahzeb Khan (DW.9) who got the 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 the documents placed on record which are public records stands proved in terms of Section 35 of the Evidence Act and further H

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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. C (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 D recorded in the impugned judgment is unsustainable. (xi) The impugned judgment incorrectly record that Section 13 of the Births and Deaths Registration Act, 1969 and Rule 9 of the UP Registration of Birth and Death Rule, 2002 have not been followed while the birth certificate dated 21st April, E 2015 was issued. However, the fact is that the birth of the appellant was registered contemporaneously in the year 1990 in Nagar Nigam, Lucknow and it was only a duplicate certificate of registration which was issued on 21st January,

2015. F (xii) The documents relied upon by the election petitioner/ respondent are not admissible in evidence and in any case are not a proof of date of birth of the appellant on 1st January, 1993. (xiii) The school records are not the direct evidence of the fact G of birth and on a balance of probabilities, it cannot be given pre-eminence over direct evidence of the mother, delivering doctor and contemporaneously maintained hospital records. (xiv) The error in school records was sufficiently explained by DW.5 and accordingly necessary steps were taken by the H

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A appellant for correction of the school records by a letter dated 23rd March, 2015 submitted by the appellant to the Regional Officer, CBSE, as proved by DW.7, Arun Joseph Dayal, Director of St. Paul’s School, Civil Lines, Rampur. (xv) The reliance on the alleged Group Insurance Scheme (GIS) B Nomination form in the service book of DW.5 was not an admitted document to establish that the appellant was born in 1993 and this was a serious misappreciation of the evidence on record committed by the High Court. (xvi) When confronting a witness as to any previous statement C in a document it is mandatory that the said document be pointed out to the witness under Section 145 of the Indian Evidence Act to which no efforts were made by the respondent/election petitioner and at the best it is merely a piece of circumstantial evidence which has no legal backing and cannot establish birth of the appellant on 1st January, D 1993.

14Copy pinpoint14. These, according to the appellant, were serious manifest errors which were committed by the High Court in passing the judgment impugned and in support of his submissions, counsel placed reliance on the judgments of this Court in Brij Mohan Singh v. Priya Brat Narain E Sinha and Others3, Birad Mal Singhvi v. Anand Purohit4 and Joshna Gouda v. Brundaban Gouda and Another5 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. F Submissions of the Respondent

15Copy pinpoint15. 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 G 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, 3

(1965) 3 SCR 861

4 (1988) Supp. SCC 604 H 5 (2012) 5 SCC 634

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A and taking assistance thereof submitted that the finding of fact returned by the High Court is based on due appreciation attached to its probative value and only thereafter it has been held that the appellant has failed to establish his date of birth as 30th September, 1990 and rightly declared the election of the appellant to be null and void and not eligible to contest the election in view of Article 173(b) of the Constitution.

16Copy pinpoint16. We have heard learned counsel for the parties and with their assistance perused the documentary and oral evidence on record, in extenso. Taking into consideration the settled principles as laid down by this Court, it is to be examined whether the date of birth of the appellant, as claimed by him, is 30th September, 1990 or it is 1st January, 1993. Purpose of the Evidence Act

17Copy pinpoint17. 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.

18Copy pinpoint18. 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.

19Copy pinpoint19. At the same time, when any fact is especially within the knowledge of a party, the burden of proving it lies upon that party. The term “especially” means facts which are pre-eminently or exceptionally within the knowledge of a person. It is true that it cannot apply when the fact is such as to be capable of being known also by persons other than the party. This rule is an exception to the rule of burden of proof. Thus, when a person acts with some intention other than that which the character H

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and circumstances of the act suggest, the burden of proving the intention A is upon him. The bottom line of the purpose of the Indian Evidence Act is to adopt a procedure that helps to facilitate justice and ultimately what is required is to unearth the truth, to prevail.

20Copy pinpoint20. So far as the principles of burden of proof is concerned, the principles have been succinctly laid down by this Court in Sushil Kumar B (supra) paras 28 to 32 :

28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.

29. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the 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 person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian E Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute. (See Orissa Mining Corpn. v. Ananda Chandra Prusty [(1996) 11 SCC 600]

32. The age of a person in an election petition has to be determined not only on the basis of the materials placed on record but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the 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 H

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

21Copy pinpoint21. 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 have led documentary and oral evidences. Following papers have been admitted in evidence and have been marked as Exhibits as under:-

D Petitioner’s evidences:

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Oral evidence of Election-petitioner: D P.W. 1- Kazim Ali Khan (Election-petitioner) P.W. 2- Mohd. Naseem, Passport Officer, Bareilly P.W. 3- Mohd. Ateer Ansari, Junior Passport Assistant, Bareilly P.W. 4- Tej Pal Singh Verma, Chief Sanitation and Food Inspector/ Deputy Registrar Birth and Death, Nagar Palika Parishad, Rampur E Defendant’s/respondent’s Evidences. Documentary Evidence.

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A R12 A-96/1-5 Application of Dr. Tazeen Fatima, dated 17.01.2015 (mother of the respondent) to Nagar Swastha Adhikari, Nagar Nigam, Lucknow, requesting him to issue birth certificate of her son Mohd. Abdullah Azam Khan as per enclosed affidavit. Her son's birth may be got verified from the records of Queen B Mary's Hospital. A96/3 Computer 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 C 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 D 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:

E 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 F (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) G D.W.-6 - Dr. Vandana Sharma - Principal RajkiyaMahila Post Graduate Degree College, Rampur. D.W.-7 - Arun Josheph Dayal. Director Saint Paul School, Civil Line, Rampur. D.W.-8 - Dr.Satibir Sing Ken, Radiologist, District Hospital, H Rampur.

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D.W.-9 - Shahzeb Khan, friend of father of the respondent. A D.W.-10 - Mohd. Abdullah Azam Khan, respondent. Analysis of the Evidence

22Copy pinpoint22. Now, we shall advert to the circumstances appearing in the case which support the view taken by us. The notification was issued B notifying the schedule for election of UP State Legislative Assembly from 34, Suar Assembly Constituency of District Rampur as under:- (a) Date of filing of nomination 25th January, 2017 (b) Date of scrutiny of nomination 28th January, 2017 C (c) Date of withdrawal of nomination 30th January, 2017 (d) Date of allotment of symbols 1st February, 2017 (e) Date of Poll 15th February, 2017 (f) Date of counting 11th March, 2017 D

23Copy pinpoint23. The appellant filled his nomination papers on 24th January, 2017, and was declared elected on 11th March, 2017 by securing the highest number of votes i.e. 1,06,443 votes.

24Copy pinpoint24. In the election petition filed by the respondent/election petitioner, his solitary objection was that the appellant was not qualified to contest E the 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 his nomination papers and the date on which he contested the election and also on the date of declaration of the result of 34, Suar Assembly Constituency of District Rampur. F

25Copy pinpoint25. The documentary evidence placed by the respondent/election petitioner on record to substantiate that the date of birth of the appellant is 1st January, 1993 are all public documents issued by the public authorities and are admissible in evidence in terms of Section 35 of the Indian Evidence Act, are as follows: G Following documentary evidences, record birth year of the appellant to be the year 1993 (01.01.1993):— (i) Ex. P4 - paper No. A-25/1 - Copy of secondary school examination Class 10th result 2007 issued by Central Board of Secondary Education. H

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A (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 birth 01.01.1993. (iii) Ex. P1 - paper No. A-51/1 - copy of birth certificate No. 3857 of the appellant issued by Nagar Palika Parishad, Rampur, showing B 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. C (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, D 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 birth certificate dated 28.06.2012, issued by Nagar Palika Parishad, Rampur, issued on the basis of original record of birth. This birth certificate was subsequently cancelled by the Registrar on 30.01.2015 on the application of the appellant.

26Copy pinpoint26. The respondent/election petitioner appeared as a witness, PW.1 and while supporting the documentary evidence established that the date of birth of the appellant as per the school records and other documentary evidence placed on record is 1st January, 1993, at the same time made a specific averment in his examination-in-chief regarding the documents placed by the appellant/returned candidate on record, that these are all fake and forged documents which are manufactured to create false evidence regarding the age and date of birth of the appellant. H Further, the official documents issued prior to the year 2015 consistently

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indicate his date of birth as 1st January, 1993 and that is also elicited from his cross-examination.

27Copy pinpoint27. The Court Witnesses, PW.2 Mohd. Naseem, the Passport Officer, Bareilly, PW.3 Mohd. Ateer Ansari, Junior Passport Assistant, Bareilly and PW.4 Tej Pal Singh Verma, Chief Sanitation and Food Inspector/Deputy Registrar Birth and Death, Nagar Palika, Rampur were examined and they supported the public documents placed on record which establishes that the birth certificate issued by the Health Department, Nagar Palika, Rampur dated 28th June, 2012, in addition, the online application filled by the appellant for the issuance of passport, the old Passport No.F 8757022 issued on 28th August, 2006 by PW.2 and PW.3 and placed on record the relevant online application and other documents which were filed by the appellant in January 2015 and all such documents were duly supported by the public officers P.W.2 and P.W.3 in their deposition. The Court Witness PW.4 in his examination- in-chief deposed that all registers and other records related to birth certificate No.3857 dated 28th June, 2012 of the appellant have been destroyed because of the fire due to short circuit on 8th May, 2015 in the office of Nagar Palika, Rampur and is unable to place any record prior to 8th May, 2015, but verified the birth certificate dated 28th June, 2012 as the record is available in the computer system and a copy was placed on record and all these documents were generated either by the appellant himself or at his instance. E

28Copy pinpoint28. 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 F 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 G 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.

29Copy pinpoint29. At this stage, the objection of the appellant was that although the documents relied upon by the respondent belong to him, but the H

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A 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 away, a friend of his father DW.9, Shahzeb Khan, took him to the school in 1995 and got recorded his date of birth as 1st January, 1993. Even if this stand of the appellant is taken on the face value, the date of birth which is recorded in his B Secondary School Examination, followed with his passport of the year 2006 and his certificate of birth issued by Nagar Palika, Rampur with registration No.RNPB2012-03857 dated 28th June, 2012 of which details have been furnished at least upto the year 2015 consistently in all unimpeachable documentary evidence not only in his academic records but in all other correspondence, he has throughout reflected his date of birth as 1st January, 1993, and since these are all his documents issued from the office of public authorities by the public officers based on the relevant data made available by the appellant himself/on filling application online or physically, the documents released to him in the name of the appellant disclose his date of birth as 1st January, 1993 and after evaluation of the documentary evidence supported by oral evidence on record, this Court certainly can record that it has a sufficient probative value, as required under Section 35 of the Evidence Act.

30Copy pinpoint30. At the same time, the appellant, on the other hand, has not disputed these documents which have been relied upon by the respondent E (election petitioner), of which detailed reference has been made in para 8,said documents belong to the appellant himself and are in public domain, issued by the public authorities/competent authorities and obviously information has been extended by the appellant himself and to make the smoke clear at this stage, the defence of the appellant was that at the F time when the appellant went to the school in 1995, the friend of his father DW.9 got recorded his date of birth will not have any significance, since in the matriculation certificate and all applications which are filled by the appellant himself and these documents are generated which the appellant has been failed to counter at any given point of time. In countering, the appellant has come out with a defence that his mother G DW.5 who was a Lecturer in a Postgraduate College and retired in 2009, in her cross-examination deposed that her son (the appellant) after doing his M.Tech became active in politics in the year 2015 and at this time she proceeded for issuance of a birth certificate from Nagar Nigam, Lucknow and submitted application on 17th January, 2015 (Ex.A-96/1- H 5).

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31Copy pinpoint31. 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, 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 common man.

32Copy pinpoint32. 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 date of birth of the appellant is 30th September, 1990 and this fact revealed in the year 2015, the family proceeded to obtain a certificate of birth from Nagar Nigam, Lucknow.

33Copy pinpoint33. It is also to be noted that on 28th June, 2012, a birth certificate was obtained by the appellant from Nagar Palika, Rampur and supporting documentary evidence must have been available in the office of Nagar E Palika, Rampur, or placed by the appellant, on the basis of which the birth certificate has been issued to him on 28th June, 2012, and admittedly it is not possible that at two different places (Rampur/Lucknow) his birth has taken place or record is maintained and the document obtained from Nagar Palika, Rampur, on 28th June, 2012 was completely concealed and the documents were later generated/obtained from Queen Mary’s F Hospital, Lucknow, which were for the first time placed on record in the course of the election petition.

34Copy pinpoint34. In other words, the appellant was not holding any documentary evidence to support his claim prior to being placed on record in the course of election petition from Queen Mary’s Hospital, which was made to be G a basis in the year 2015 to seek a duplicate birth certificate of 30 th September, 1990. To make it further clear, the duplicate birth certificate was issued by Queen Mary’s Hospital on 21st April, 2015 (Ex.A-37) indicating the date of birth of the baby of DW.5 on 30th September,

1990. From this document, it is clear that on 17th January, 2015, on the H

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A date when the application was submitted by his mother (DW.5) addressed to the Chief Health Officer, Nagar Nigam, Lucknow, to obtain the birth certificate of the appellant there was no documentary evidence available in the custody of DW.5 to support that the child was born in the hospital on 30th September, 1990.

35Copy pinpoint35. A duplicate birth certificate was obtained from Queen Mary’s Hospital, Lucknow on 21st April, 2015 but what happened to the original, if any, has never been placed by the appellant on record. Just to make a clarification that even in the application dated 17th January, 2015, submitted by DW.5 (appellant’s mother) there was no mention of a certificate earlier issued and the demand is to issue a duplicate certificate of the date of birth of the appellant who is born, as alleged, in the Queen Mary’s Hospital, Lucknow on 30th September, 1990. The very foundation on which the appellant has proceeded to establish that his date of birth is 30th September, 1990 falls on the ground.

36Copy pinpoint36. It was admitted by DW.5 in her cross-examination that in all his school records, Xth, XIIth, Undergraduate, 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.

37Copy pinpoint37. 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, and in reference to all the documents which were put to him in cross-examination, his only statement was that although these documents belong to him, but his date of birth has been incorrectly recorded, and later cancelled, but while making a statement of date of birth being incorrect, nothing in counter was placed on record, except the documents placed for the first time in the course of the election petition. From where this fact was gathered, it was not disclosed even in the cross-examination and a statement was made in his cross-examination that his date of birth

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KHAN [AJAY RASTOGI, J.]

either in his birth certificate dated 28th June, 2012 or in passport wherever A recorded of 1st January, 1993 at a later stage was cancelled and has made a completely evasive answer in his cross-examination. To support in evidence, the appellant has produced three basic documents, EOT register (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. Vineeta B Das, 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,5097 carry 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 a further question put to her in the cross-examination about the description in column no.16 of the register that whether it matches with the information mentioned in rest of the column, and also that whether the entry of period of pregnancy at page 174 of EOT register is different from entry of period of pregnancy in page 225 of MLR register, she admitted that yes, all these entries are different. The extract of questions put to Dr. Uma Singh (DW.3) in reference to the so-called official record of the hospital is as under: (a) Whether you can say confidently that the information of the children born on 30.09.1990 was sent to Municipal Corporation, Lucknow? Ans.: Yes. (b) Whether you can tell after seeing the entry of page 174 F of EOT register Annual No.5097 carried along by you that any overwriting has been done in this or not? Ans. : Yes, overwriting 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 G no.16 of above register that whether it matches with the information mentioned in rest of the column of above register? Ans.: No H

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A (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. B (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 or department head? Ans.: Above both registers are not authenticated by the officer of Queen Mary’s hospital or King George University. E Above both registers are also not attested. But some of the pages are signed by consultant of the hospital.

38Copy pinpoint38. To support the documents placed on record from the Queen Mary’s Hospital, Dr. Vineeta Das (DW.4), the HoD, Obstetrics & Gynecology Department, also appeared in the witness box.

39Copy pinpoint39. 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. Archan Dwivedi, she appears to have completely surrendered in cross- examination in support of the documents placed by her. Few of the questions put to her in cross examination to produce the register of G Registration of Birth and Death maintained by the Nagar Nigam, Lucknow be relevant to quote: (a) Whether is it necessary to maintain the birth register in the format given in Registration of Birth & Death Act, 1969? H Ans.: Yes.

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(b) Above papers were shown again and asked that can you see this and till that what is date of registration of birth of the respondent mentioned therein? Ans.: In column number 3 of this paper date of birth registration is 21.01.2015. (c) After how many days the birth certificate is being issued after the related entries made in birth register? Ans.: When the applicant gives a request letter thereafter the birth certificate is issued. Birth registration is done immediately after receiving of birth list from the hospital. C (d) Whether the statement given by you today in front of court is based on the official record maintained in the office? Ans.: Yes, again stated that the above said birth register is not in the prescribed format, and again want to state that the D said format only followed but it has not been used in this case. Pagination has not been done and neither register has been attested nor pagination has been done by any competent officer.

40Copy pinpoint40. The witness has not even been able to support the documents. E Apart from the said documents, we have looked into the extract copies of 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 of 30th September, 1990 and there was no space left on the page, still it reveals that someone has tried to insert a further illegal entry and if it would have been in continuation on the next page at page 44 after 30 th F 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 G 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, H

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A 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.

41Copy pinpoint41. 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 naked eye it appears that the EOT B register where the name of DW.5, mother of the appellant has been shown, entry appears to be partially erased and rest of the page other than the entry relating to DW.5, no change is being reflected from the entire document.

42Copy pinpoint42. When the entire evidence is before the Court, it is well settled C that the burden of proof becomes immaterial at the given point of time the document made ante litem motamcan be relied upon safely when such documents are admissible under Section 35 of the Evidence Act. This Court in large number of judgments, including Brij Mohan Singh (supra), Updesh Kumarand Others v. Prithvi Singh and Others 7 , State of Punjab v. Mohinder Singh 8 , Vishnu alias D Undrya v. State of Maharashtra 9 and Satpal Singh v. State of Haryana10 came to the conclusion that while considering such an issue and documents admissible under Section 35 of the Evidence Act, has to examine the probative value of the contents of the document. The authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases.

43Copy pinpoint43. In the instant case, the academic record of the appellant consistently indicates the recorded date of birth of the appellant is 1st January, 1993 and to be more specific before 17th January, 2015, all documents which were released from various public offices under the signatures of public authorities, the date of birth of the appellant has throughout been shown as 1st January, 1993 and as stated by DW.5 (mother of the appellant) and so also the appellant herein (DW.10) after doing his post-graduation he wanted to come in active politics, application was submitted on 17th January, 2015 for the first time to the office of the G Nagar Nigam, Lucknow for obtaining the birth certificate of the appellant based on Queen Mary’s Hospital, Lucknow and the fact is that no 7 (2001) 2 SCC 524 8 (2005) 3 SCC 702 9 (2006) 1 SCC 283 H 10 (2010) 8 SCC 714

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KHAN [AJAY RASTOGI, J.]

documentary evidence was supported along with the application, except the affidavit sworn by DW.5 to the application dated 17th January, 2015 and it is not possible for a common man to get the birth certificate in the existing facts and circumstances, but so far as the appellant is concerned, birth certificate was issued with no loss of time on 21st January, 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.

44Copy pinpoint44. 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 were two other candidates whose nomination papers were arbitrarily rejected by the election officer but they neither came in the witness box nor any person appeared in the witness box to support the date of birth recorded in the matriculation certificates of those two candidates. In the given situation, those records could not have been relied upon and become inadmissible in view of F Section 35 of the Evidence Act.

45Copy pinpoint45. So far as the judgment relied upon by the appellant in Joshna Gouda (supra) was a case where the reliance was placed on the school admission register and admission form, including the transfer certificate, but no supporting evidence/proof was available on record. In that context, G a finding was recorded that conclusive finding regarding the probative value in reference to the three documents Exhs.5, 5A and 7 could not be attached.

46Copy pinpoint46. It is also trite law that when both the parties have adduced evidence and that too is in reference to a common question and H

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A particularly for determination of age, which is the subject matter of dispute and when both the parties have adduced evidence, the question of onus of proof becomes academic. This has been considered by this Court in Rakesh Kumar (supra) wherein as regards the determination of age of the candidate in terms of Section 36(2) of the Representation of the People Act, 1951, this Court observed : B “27. In Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673] this Court as regards determination of age of a candidate in terms of Section 36(2) of the Representation of the People Act, 1951 observed: (SCC pp. 684-85, para 32) C “32. The age of a person in an election petition has to be determined not only on the basis of the materials placed on record but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special D knowledge of the respondent, the 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 E (Agents) Ltd. v. Workmen [(1977) 2 SCC 705 : 1977 SCC (L&S) 342] ]. 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.” This Court therein followed, inter alia, Birad Mal Singhvi [1988 F Supp SCC 604] and several other decisions.”

47Copy pinpoint47. 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 G 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.

48Copy pinpoint48. 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 H

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delayed registration of birth and death are permissible provided a 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 Nagar Nigam, Lucknow, Section 13(3) of the Registration of Birth and Death Act, 1969 may not apply, but this submission appears to be misplaced for the reason that on the basis of the birth record maintained by the Nagar Palika, Rampur, the birth certificate was issued to him under the orders of the competent authority on 28th June, 2012, and there cannot be two separate 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 the Nagar Nigam, Lucknow, and in our considered view, the procedure as prescribed under Section 13(3) of the Act, 1969, in the ordinary course of business, was supposed to be adopted by the authorities while a fresh certificate of date of birth was issued to him on 21st January, 2015, which indeed has not been followed by the competent authority by Nagar Nigam, Lucknow.

49Copy pinpoint49. In the instant case, the date of birth of the appellant throughout in his records is 1st January, 1993 and only in the year 2015 when the appellant became keen to enter into active politics, the mother of the appellant (DW-5) submitted an application for the first time on 17th January, 2015, claiming that the appellant was born on 30thSeptember E 1990, and birth certificate may be immediately issued to her and within three days, birth certificate was issued by the Nagar Nigam, Lucknow on 21st January, 2015. In support thereof, the documentary evidence which the appellant has placed on record obtained from the Queen Mary’s Hospital, Lucknow, as a foundation on which the birth certificate has been issued as alleged from the Nagar Nigam, Lucknow, in our considered view, no probative value could have been attached to it.

50Copy pinpoint50. The High Court, in our considered view, has examined the documentary and the oral evidence available on record in exten so, we find that no manifest error was committed by the High Court in passing the impugned judgment, which may call for our interference.

51Copy pinpoint51. Consequently, the appeal fails and is accordingly dismissed. No costs.

52Copy pinpoint52. Pending application(s), if any, stand disposed of. H

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

B 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 C 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 D 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), E 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 filing the nomination for contesting the election was 25.01.2017 and the poll was scheduled to be held on 15.02.2017. The appellant was the successful candidate while F the election petitioner was the unsuccessful candidate who filed the election 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, Nawab Kazim Ali Khan, filed an objection before the Returning Officer, G challenging the successful candidate’s nomination on the ground that he had not attained the age of twenty-five years at the time of filing his nomination and was therefore, ineligible to contest the election in view of Article 173(b) of the Constitution of India. The election petitioner had filed his objection on the basis of a newspaper article published in a local H daily, Dainik Jagran Amar Ujala on 28.01.2017.

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3.3. By order dated 30.01.2017, the Returning Officer rejected A the objection filed by the election petitioner herein by observing that the successful candidate herein had stated in Column B of Section 3 of the nomination form, as also in Form 26, that his age was twenty-six years. That in support of such claim, the successful candidate had attached his Birth Certificate (No.229428) which was issued to him by the Nagar B Nigam, Lucknow, on 21.05.2015 and in the said document, the date of birth of the successful candidate was recorded as 30.09.1990. It was further noted that as per the successful candidate’s Aadhar card and the electoral roll, his age at the relevant time was twenty-six years. Consequent to the rejection of the objections raised by the election petitioner and on the basis of the documents submitted and details C furnished by the successful candidate in the nomination form, his nomination was accepted by the Returning Officer. 3.4. The election was held as scheduled on 15.02.2017 and on 11.03.2017, the appellant was declared as the successful candidate in the election to the Uttar Pradesh Legislative Assembly from the 34- D Suar Constituency, District Rampur. The election petitioner herein stood third in the said election.

4. In the above background, the election petitioner filed Election Petition No.08 of 2017 before the High Court of Judicature at Allahabad, seeking a declaration that the election of the successful candidate to the E 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: F

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 G 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. H