| Headnote |
Constitution of India, 1950 – Art.173(b) – Breach of – Qualification for membership of the State Legislature – Age criteria for contesting State Legislative Assembly elections – Discrepancy in date of birth – Burden of proof – Public documents – Probative value – Two different Birth Certificates of appellant showing date of birth at two different places and on two different dates, namely, one on 01.01.1993 at Rampur and another on 30.09.1990 at Lucknow – Elections took place for Uttar Pradesh State Legislative Assembly during January-March 2017 – Appellant was declared elected from the Suar constituency, District Rampur – Respondent-election petitioner challenged the election of the appellant on ground that he was born on 01.01.1993 and therefore was less than 25 years of age when he filed his nomination papers, and was not qualified to contest the election for State Assembly – In rebuttal, appellant claimed his date of birth to be 30.09.1990 – High Court declared the election of appellant to be void and set aside his election – Held (per Ajay Rastogi, J.): 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 – This rule cannot apply when the fact is such as to be capable of being known also by persons other than the party – In the instant case, respondent established from the documentary evidence which belongs to the appellant that, from day one appellant has shown his date of birth as 1st January, 1993 not just in his academic record but also in the birth certificate obtained from Nagar Palika, Rampur in the year 2012 – This could have been possible only when the relevant documentary evidence was available with the competent authority in the office of Nagar Palika, Rampur – Since the documents were issued from the office of the public officers based on the relevant data made available by the appellant himself, there was sufficient probative value, as required u/s. 35 of the Evidence Act – Merely because the same was later on cancelled by the appellant, it may not lose its evidentiary value – Date of birth of appellant throughout in his records is 1st January, 1993 and only in the year 2015 when he became keen to enter into active politics, DW-5- his mother, submitted an application before Nagar Nigam, Lucknow for the first time on 17th January, 2015, claiming that appellant was born on 30th September 1990 – Procedure prescribed u/s. 13(3) of the Act, 1969 was not followed by competent authority at Nagar Nigam, Lucknow while issuing fresh certificate of date of birth on 21st January, 2015 – No probative value could have been attached to documentary evidence obtained from the Queen Mary’s Hospital, Lucknow, as a foundation on which the birth certificate was issued on 21st January 2015 by Nagar Nigam, Lucknow – Impugned judgment of High Court accordingly upheld – Held (per B.V. Nagarathna, J.) (Concurring) : As per s. 101, the burden of proving a fact always lies upon the party who substantially asserts the affirmative and until such burden is discharged, the other party is not required to be called upon to prove his case – Burden to prove documents lie on plaintiff alone as onus is always on the person asserting a proposition or a fact – Once the plaintiff discharges the initial burden of prove and makes out a case which entitles him to relief, in terms of s. 102, the onus shifts to the defendants to prove those circumstances which would disentitle the plaintiff of the relief – However once the evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the basis of evidence led by the parties – s. 106 is an exception to the general rule and it stipulates that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it – In an election petition, the initial burden to prove determination of age of returned candidate lies on the petitioner, however, burden lies on the respondent to prove facts within his special knowledge – In the present case, despite the voluminous oral and documentary evidence, the appellant has been unable to prove the fact that he was born on 30.09.1990 – Consequently, he was not 25 years old at the time of filing the nomination – Election of the appellant to state legislative assembly set aside – Evidence Act, 1972 – ss. 101 to 106, 35 and 21 – Registration of Birth and Death Act, 1969 – s. 13(3) – U.P Registration of the Birth and Death Rules, 2002 – r. 9 – Representation of People’s Act, 1951 – ss. 15 and 116 A.Evidence Act, 1972 – Passports and Visas – Evidentiary value of admitted documents – Whether the information entered in the passport application would amount to proof as to contents of such application, including the date and place of birth entered therein – Held (per B.V. Nagarathna, J.): Great evidentiary value has to be attached to an application submitted to a government establishment or Office, such as a Passport Office and the details entered in such application, together with the documents submitted therewith, must be understood to be tendered by the applicant who signs the application form thereby accepting that the information submitted therein is true and correct and to the best of his knowledge – In the present case, appellant 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, it was not open for appellant 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 – Documentary evidence produced by respondent election petitioner has cogent and probative value – This is because the said documents are consistent with the admitted documents of appellant as well as with the admissions made by the appellant himself.Evidence – Public documents – Probative value of documents made, without following statutory procedure – Whether the Birth Certificate issued on 21.01.2015 by the Nagar Nigam, Lucknow, was a valid piece of evidence – Held (per B.V. Nagarathna, J.): Birth certificate issued by the Nagar Nigam Lucknow was without following the mandatory provisions of s.13 of the Births and Deaths Registration Act, 1969 – s. 13(3) of the 1969 Act and r. 9 of the U.P Registration of Birth and Death Rules, 2002 provides that any birth or death which had not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of First Class or Presidency Magistrate after verifying the correctness of birth and death – In the present case, Nagar Nigam, Lucknow, had no jurisdiction to register the birth of the appellant after twenty five years from the date on which he was stated to be born by the issuance of the Birth Certificate on 21.01.2015 without an order of the Sub Divisional Magistrate as required u/s. 13(3) of the 1969 Act, r/w r. 9(3), 2002 Rules – Moreover, perusal of hospital records such as the Emergency O.T. (E.O.T) register and the Maternity Labour room Register (MLR), shows that same are mired with discrepancies, overwriting and factual inaccuracies which cannot be ignored – Therefore, no weight can be placed on birth certificate issued by the Nagar Nigam, Lucknow on 21.01.2015 which is stated to be issued on strength of an entry made in birth register maintained by hospital – Registration of Birth and Death Act, 1969 – s. 13(3) – U.P. Registration of the Birth and Death Rules, 2002 – r. 9. Evidence – Medical Evidence – Evidentiary value of bone ossification test for determining age – Held (per B.V. Nagarathna, J.): Ossification test cannot be solely relied upon as conclusive proof of age – The general rule for determining the age is that it can vary plus or minus two years and that the date of birth of a person is to be determined on the basis of the material on record and on appreciation of evidence adduced by parties – Report of an ossification test can, at most, be used to corroborate other relevant evidences, oral or documentary.Evidence – Documents of identity – Relevance of Aadhar Card, Voter I.D. Card and Driving License as regards proof of date of birth – Held (per B.V. Nagarathna, J.): Aadhar card is a means of identity and not a proof of date of birth – On facts, the Aadhar Card, Voter I.D. Card and Driving License did not conclusively establish that the appellant was above twenty five years of age on the date of filing his nomination papers or on the date of declaration of result of the legislative assembly election in question. Words and Phrases – Difference between “burden of proof” and “onus of proof” – Explained. |
