Allahabad High Court
Ritu Devi vs State Of Up And 9 Others on 20 December, 2024
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citaption No. 2024:AHC:199370 Reserved on :25.11.2024 Delivered on :20.12.2024 Court No. - 9 Case :- WRIT - C No. - 36450 of 2024 Petitioner :- Ritu Devi Respondent :- State Of Up And 9 Others Counsel for Petitioner :- Ankur Jaiswal,Sangam Singh,Vinayak Mithal Counsel for Respondent :- Ajeet Kumar Singh,C.S.C.,Tarun Agrawal,Udai Chandani Hon'ble Rohit Ranjan Agarwal,J.
1. Petitioner, before this Court, was elected as Chairman in Nagar Panchayat-Maniyar, Pargana-Khareed, District-Ballia, for which the election for Nagar Panchayat was notified by State Election Commission on 17.04.2023. Nomination by candidates was to be made between 24.04.2023 to 27.04.2023. Votes were casted on 11.05.2023, and counting was held on 13.05.2023. Petitioner was declared as a returned candidate on 13.05.2023 and a certificate was issued.
2. On 16.05.2023, election petitioner/respondent no. 5 moved an application/complaint before District Magistrate/Election Officer against returned candidate regarding material suppression of fact as to her age mentioned in the educational certificate submitted along with nomination paper and disclosure of the age. An inquiry was set up by Additional District Magistrate (Finance and Revenue) on 18.05.2023 and directed the District Basic Education Officer to inquire into the correct age of returned candidate. On the same day, respondent no. 5 filed an election petition before District Magistrate, Ballia. On 23.05.2023, District Basic Education Officer, Ballia submitted his report wherein it was mentioned that three dates of birth of returned candidate/petitioner were mentioned in different class of Registers, mentioning date of birth as 30.07.1992 in Class Ist Register, second date of birth mentioned as 30.07.1997 and third of the year 1994. A First Information Report was lodged on 25.05.2023 against petitioner, however, she took oath as Chairman of Nagar Panchayat-Maniyar on 20.05.2023. By judgment impugned dated 23.10.2024, her election has been declared null and void and election petitioner has been declared as a winning candidate.
3. Petitioner has challenged the impugned judgment on various grounds. It has been contended that whether a Transfer Certificate of School can be used as a sole basis of date of birth and its evidential value in election matter. Secondly, whether the eligibility for the post of Chairman is determined by School Certificate/School Register/Transfer Certificate. Thirdly, whether burden of proof/onus can be shifted over to petitioner.
4. Then, it is contended that whether concealment of age has materially affected the result of election. Fifthly, whether Election Tribunal can declare runner up candidate as a winner candidate. It was then contended that whether concealment of age amounts to corrupt practice of Election Tribunal in declaring any document as forged without giving opportunity of examination-in-chief or cross examination of concerned person. Seventhly, it was further contended that whether document which is attached with an affidavit can be used for purpose of educational qualification or date of birth. Lastly, it was contended that whether Election Tribunal/Presiding Officer can rely upon an ex-parte inquiry report without giving opportunity of hearing to petitioner.
5. Learned counsel for returned candidate had submitted that no primary evidence was adduced to prove date of birth, and Transfer Certificate and School Register are not primary evidence. No original documents were ever produced and only photocopies were filed. According to him, in case, the documents were proved, the contents were to be proved by witnesses. Only execution of documents can be proved by witnesses. According to him, the evidence adduced only proves that candidate did not attend Junior High School (Class VIII), which is not an essential requirement for the post in question. It was then contended that documents filed by petitioner, such as, Voter Id, in evidence of date of birth was not taken into consideration. It was then contended that requirement to furnish information regarding educational qualification come from the judgment of Supreme Court in case of Union of India vs. Association for Democratic Reforms and another, (2002) 5 SCC 294. Guidelines framed by Election Commission was struck down by Apex Court observing that mere concealment of fact regarding educational qualification does not amount to rejection of nomination paper. It was then contended that Election Tribunal could not have declared the election petitioner as a winning candidate as it was against the dictum of Apex Court rendered in case of Prakash Khandre vs. Vijay Kumar Khandre, (2002) 5 SCC 568.
6. Reliance has been placed upon Birad Mal Singhavi vs. Anand Purohit, AIR 1988 SC 1796; Nanje Kumar vs. Additional District Judge and others, ADJ 2010 (7) 769; Abdul Majeed (Meera Sahib) vs Bhargavan (Krishnan) MLA and others, AIR 1963 Ker 18; Brij Mohan Singh vs Priya Brat Narain Sinha and others, AIR 1965 SC 282; R. Chandran vs M.V. Marappan, (1973) 2 SCC 166; Joshna Gouda vs. Brundaban Gouda and Anr, (2012) 5 SCC 634; Harsh Kumar vs Bhagwan Sahai Rawat, (2003) 7 SCC 709; Kripa Shankar Chatterji vs Gurudas Chatterji and Ors, (1995) 5 SCC 1; Prakash Khandre vs Dr Vijaya Kumar Khandre, (2002) 5 SCC 568; Nand Kishore vs State Election Commission, (2003) 50 ALR 159 (All); Smt. Dimpal vs Rajesh Baluni & Ors, AIR 2016 UTT 17; Govind Singh vs. Harichand Kaur, (2011) 2 SCC 621; Peoples Union for Civil Liberties (P.U.C.L) and Anr vs. Union of India and Association for Democratic Reform, (2003) 4 SCC 399 and Anugrah Narayan Singh vs. Harsh Vardhan Bajpayee, 2022: AHC: 145488.
7. Counsel for respondent no. 5 submitted that petitioner had made wrong disclosure of her date of birth and as per Section 43-AA(b) of The Uttar Pradesh Municipalities Act, 1916 (hereinafter called as "Act of 1916"), a person shall not be chosen as President of Municipality unless he has attained the age of 30 years on the date of his nomination as a candidate for election to the post of President. According to him, age of petitioner was only 25 years 9 months and 29 days. According to him, educational certificate submitted by petitioner of Naveen Balika Junior High School is a forged, fabricated and manufactured document. Transfer Certificate of petitioner reveals date of birth as 30.07.1997 and thus barred by the provisions of Section 43-AA(b) of the Act. A joint affidavit filed by Block Development Officer, District Basic Education Officer as well as Principal clearly reveals that petitioner was a student of Composite Vidyalaya of Class VI till 28.02.2009 and in Transfer Certificate, her date of birth is mentioned as 30.07.1997. It was next contended that the initial burden of proof was upon election petitioner/respondent no. 5 who had discharged the same. However, certain facts which are within the knowledge of the returned candidate/petitioner is upon her to prove in terms of Section 106 of The Indian Evidence Act, 1872. Reliance has been placed upon decision of Apex Court rendered in case of Mohd. Abdullah Azam Khan vs. Nawab Kazim Ali Khan, 2022 SCC OnLine SC 1544.
8. On question of Transfer Certificate being valid over the date mentioned in the Aadhaar Card, reliance has been placed upon a decision of Apex Court rendered in case of Saroj and others vs. Iffco-Tokio General Insurance Co. and Others, 2024 SCC OnLine SC 3038.
9. I have heard the respective counsel for the parties and perused the material on record.
10. Before proceeding to decide the issue in hand, a cursory glance of relevant provisions of U.P. Act No. II of 1916 and The Uttar Pradesh Municipalities (Election of Members, Corporators, Chairmen and Mayors) Rules, 2010 are necessary for better appreciation of the case.
11. Section 43-AA of the Act of 1916 prescribes the qualification for Presidentship of a Municipality. According to it, no person shall be chosen as a President of the Municipality unless he is an elector for any ward, and has attained the age of 30 years on the date of his nomination. Relevant Section 43-AA is extracted hereasunder:-
"[43-AA. Qualification for Presidentship. -] [(1) A person shall not be qualified to be chosen as President of a] [Municipality] unless he, -
(a) is an elector for any ward [in the municipal area];
(b) has attained the age of thirty years on the date of his nomination as a candidate for election to the office of President.
(2) A person shall be disqualified for being chosen as, and for being, President of a [Municipality] if he, -
(a) is or has become subject to any of the disqualification [mentioned in clauses (a) to (g) and (i) to (k)] of Section 13-D and the disqualification has not ceased or been removed under the said section; or
(b) [* * *] (3) [* * *]"
12. Section 48(2)(b)(i) provides for removal of President who has incurred any of the disqualifications mentioned in Sections 12-D and 43-AA.
13. The State Government on 18.06.2010 had notified 2010 Rules in respect of election of Members, Corporators, Chairmen and Mayors of Municipalities. Rule 2(d) defines "Contesting candidate", which means a candidate whose name is included in the list of contesting candidates. Rule 2(h) defines "election' which means an election to fill the office of a member or corporator or The Chairman or The Mayor as the case may be of a municipality. Rule 2(i) defines "election return" which means an election return in a Form specified by the State Election Commission. Similarly, "Municipality" has been defined in Rule 2(k) which means an institution of self-Government constituted under Article 243-Q.
14. Rule 19 provides for appointment of dates for nominations, scrutiny and withdrawal for election of members, corporators, chairmen and Mayors of Municipalities. It is extracted hereasunder:-
"19 (1) In accordance with the time schedule determined by the Commission under rule-7, the District Election Officer shall, by public notice, call upon the constituencies of the Municipalities in the district to elect the Chairman or the Mayor as the case may be and one member or one corporator as the case may be from each ward in Municipality.
(a) the last date for filing of nominations, which shall be the seventh day after the date of publication of the notification under this sub rule, or if that date is a public holiday, the next succeeding day which is not a public holiday,
(b) the date for scrutiny of nominations, which shall be the day next to the last date for filing of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday:
(c) the last date for withdrawal of candidature, which shall be the second day after the date for scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday:
(d) the day which shall not be earlier than seven days after the date fixed for withdrawal of nomination, on which a poll shall, if necessary, be taken.
(e) the hours within which such poll be taken;
(f) the place, date and time at which counting of votes shall commence.
(2) The District Election Officer shall appoint a returning officer for each Municipality for election of its members or corporators or the Chairman or the Mayor the case may be, and may also appoint assistant returning officers to assist him."
15. Rule 20 provides for presentation of nomination papers for elections to the Municipalities, which is as under:-
"20. (1) On the day appointed under rule 19 for nomination and for the presentation of nomination papers, any person qualified under the Act for election as a member or corporator or Chairman or Mayor of a Municipality and desiring to seek such election, hereafter in referred to as the candidate, shall deliver in person or through proposer to the returning officer his or her nomination paper in prescribed Form duly filled in and signed by him or her or bearing his or her thumb impression:
Provided that if a candidate belonging to Scheduled Castes, Scheduled Tribes or backward classes submits his or her nomination paper for a reserved ward, he or she shall attach a copy of the certificate to that effect issued by an officer authorized by the State Government:
Provided further that a candidate belonging to the Scheduled Castes or Scheduled Tribes or backward classes or a women of any category shall not be debarred to contest election from a general ward:
(2) Any nomination paper not delivered as provided in sub-rule (1) shall be liable to be rejected.
(3) More than one nomination paper may be filed on behalf of a candidate by different voters from the same constituency ward, but the total nomination papers filed on behalf of candidate shall not exceed four per ward or constituency. In case more than four nominations are presented, only the first four presented shall be considered and the rest shall be summarily rejected.
(4) A voter cannot nominate, as a proposer, more than one candidate. Where a voter has signed on nominations, for more than one candidate, all such nominations other than the first one received by the returning officer shall stand invalid.
(5) Every nomination paper subscribed and signed as aforesaid must be delivered to the returning officer in person by the candidate or any of the proposers on the days and between the hours fixed for the nomination of candidates at the place specified in this behalf in the public notice issued by the district election officer under rule-19."
16. Rule 21 provides that once nomination papers under Rule 20 are delivered, the returning officer is to inform the person delivering the same for scrutiny thereof, which is as under:-
"21. Upon delivery of a nomination paper under rule 20 the returning officer shall inform the person so delivering the same of the day, hour and place appointed for the scrutiny thereof and shall endorse thereon in his or her handwriting,
(i) the serial number of the ward or constituency from which the candidate proposes to seek election,
(ii) the serial number of the nomination paper for such ward or constituency,
(iii) the name of the person, delivering the nomination paper together with the name of the person, if any, identifying such person, and
(iv) the date on which and the hour at which, the nomination paper was delivered to him."
17. Rule 22 is of great significance as it provides for information from a candidate to furnish under the Act in his or her nomination paper delivered under Rule 19 and 20. Information to be furnished includes educational qualification of a candidate. Sub-rule (2) of Rule 22 provides that candidate or his or her proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under Rule 19 and 20, shall also deliver to him or her an affidavit or declaration sworn by a candidate in a prescribed Form verifying the information specified in sub-rule (1). Rule 22 is extracted hereasunder:-
"22. (1) A candidate shall, apart from any information which he or she is required to furnish under the Act in his or her nomination paper delivered under rule 19 and rule 20 also furnish the information as to whether-
(i) he or she is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he or she has been convicted of an offence other than any offence referred to in clause (1) for imprisonment for one year or more.
(iii) the assets (immovable, movable, bank balances, etc., 1 of a candidate and of his or her spouse and that of his or her dependents
(iv) liabilities, if any, particularly whether they are any other dues of any public financial institutions or of the Central or the Stat Government dues.
(v) the educational qualification of the candidate.
(2) The candidate or his or her proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under rule 19 and 20, also deliver to him or her an affidavit or declaration sworn by the candidate in a prescribed Form verifying the information specified in sub-rule (1)."
18. Rule 24 provides for scrutiny of nomination papers, which is as under:-
"24. (1) On the date and time fixed for scrutiny of nomination papers under rule 19 the returning officer shall examine the nomination papers and decide all objections which may be made to any nomination and may, either on such objection or on his or her own motion, after such summary inquiry, if any, as he or she thinks necessary, and after giving the candidate a reasonable opportunity of being heard, declare invalid any nomination on any of the following grounds:-
(a) that the candidate is not qualified or is disqualified for election;
(b) that he or she is not identical with the person whose number or name on the voters' list is stated in the nomination paper to be the number or name of the candidate;
(c) that his or her signature or thumb impression is not genuine or has been obtained by fraud, coercion or undue influence;
(d) that there has been a failure in complying with the provisions of rule-20 and 21
(e) that the candidate has not made or caused to be made the deposit referred to in rule-23.
(f) that the candidate has not attained the minimum age required for being elected as a member or corporator or chairman or mayor as the case may be
(g) that the proposer has not been enrolled as a voter of the ward or constituency for which the nomination has been filed.
(h) that the proposer has subscribed nomination for more than one candidates in the same ward subject to the provisions as contained in sub-rule (4) of rule 20 (2) On the date fixed for the scrutiny of nomination under rule 23, the candidates, and their election agents, or one proposer of each candidate or one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint.
(3) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(4) A failure to complete or a defect in completing the declaration as to symbols in a nomination paper in prescribed from shall not be deemed to be defect of a substantial character within the meaning of sub-rule(3).
(5) For the purposes of this rule an entry in the electoral roll for the time being in force of a ward or constituency shall be conclusive evidence of the fact that the person referred to in that entry is an electoral for that ward unless it is proved that he or she is subject to a disqualification mentioned in the Act.
(6) The returning officer shall endorse on each nomination paper his or her decision accepting or rejecting the same and, in case of rejection, a brief statement of his or her reason for such rejection.
(7) The scrutiny shall be completed on the same day and no adjournment or the proceeding shall be allowed.
(8) In case any dispute regarding the status of a candidate being considered eligible to be elected against a reserved seat arises at the time of scrutiny of nomination, the returning officer may ask the candidate to produce the original of the certificate referred to above or any other documents in support of the claim of the candidate. After scrutiny of such evidence, the returning officer shall declare whether the candidate's claim for being eligible to be elected from a reserved seat of a Municipality is acceptable or not."
19. From reading of Rule 19 to 24, it is clear that every candidate who is contesting an election of a member, corporator, Chairman or Mayor of a Municipality has to undergo the procedure as laid down in the Rules. Rule 19 provides for date of nomination, scrutiny and withdrawal of nomination papers while Rule 20 speaks about presentation of the nomination papers for the election to the Municipalities for its various posts. Rule 22 is of great significance as it directs a candidate that apart from the information he or she has furnished under the Act or in his or her nomination paper delivered under Rule 19 and 20, the candidate is also required to furnish further information as provided under sub-rule 1(i) to 1(v). These information has to be furnished through an affidavit or declaration sworn in a prescribed form verifying the information specified in sub-rule (1) of Rule 22 meaning thereby that the information furnished apart from that of Rule 19 and 20 must be correct. The language used in Rule 22 is mandatory in nature and not directory.
20. In case of a candidate contesting for the post of President of a Municipality, charging section is Section 43-AA which prescribes the essential qualification. Non adherence to the two conditions laid down in the said section disqualifies a person to be elected as a President. Mandatory requirement is that he should be an elector for any ward and secondly has attained the age of 30 years on the date of his nomination as a candidate for election to the office of President. In case of non fulfillment of either of the conditions would lead to his disqualification and removal from the post of President as envisaged under Section 48(2)(b)(i).
21. Thus, Section 43-AA, 48(2)(b)(i) and Rule 19 to 24 cannot be read in isolation. Departure from any conditions prescribed therein leads to ultimate disqualification of a contesting candidate. Rule 19, 20 and 21 no doubt lay procedure for election of member, corporator, Chairman and Mayor, while Section 43-AA deals with qualification of a President. Thus, any procedural lapse or misinformation provided in the nomination paper or information sought under Rule 22 would inevitably lead to the conclusion that the person is not qualified for the post he or she is contesting.
22. In the instant case, petitioner who is a returned candidate was required under Rule 22 to furnish information regarding her educational qualification. She had appended her Class VIII marks-sheet allegedly issued by Naveen Balika Junior High School wherein her date of birth was mentioned as 15.02.1991. It was challenged by election petitioner/respondent no. 5 on the ground that she had studied from Composite Vidyalaya and was issued a Transfer Certificate wherein her date of birth was mentioned as 30.07.1997 and her date of admission was mentioned as 18.07.2007. On the inquiry being conducted by District Basic Education Officer, it has surfaced that marks-sheet issued by Naveen Balika Junior High School is a forged document.
23. The argument raised from petitioner's side that Transfer Certificate or School Register are not primary evidence as to date of birth cannot be accepted in the instant case looking to the facts that disclosure made by petitioner as to her date of birth is on the basis of certificate issued by Naveen Balika Junior High School and the date mentioned in the Aadhaar Card. Election petitioner has prima facie discharged her duties by establishing from the report of District Basic Education Officer and joint affidavit filed by Block Development Officer, District Basic Education Officer and Principal stating that her date of birth as mentioned in the marks-sheet of Naveen Balika Junior High School is forged and as per her Transfer Certificate, her date of birth is 30.07.1997 which is correct.
24. According to Section 103 of Indian Evidence Act, 1872 (hereinafter called as "Act of 1972"), the burden of proving as to a 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.
25. Initially, burden was discharged by the election petitioner/respondent no. 5 that the document accompanying, as per Rule 22, was a forged document and date of birth mentioned therein was wrong and petitioner has not completed the age of 30 years and was disqualified as per Section 43-AA of the Act.
26. Burden of proving the correct date of birth now fell upon the petitioner who was to discharge the burden as per Section 106 which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
27. In Mohd. Abdullah Azam Khan (supra), Hon'ble Apex Court while discussing the principles of burden of proof had relied upon the decision of the Apex Court rendered in case of Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673 wherein the Apex Court had considered the scope of Section 103 & 106 of Act of 1872 and held as under:-
"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 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 : 1997 SCC (L&S) 408 : AIR 1997 SC 2274] .)
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] (SCC para 14) and Cox and Kings (Agents) Ltd. v. Workmen [(1977) 2 SCC 705 : 1977 SCC (L&S) 342 : AIR 1977 SC 1666] (AIR para 36)]. 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."
28. Thus, the argument raised from petitioner's side falls flat, and it was incumbent upon petitioner to have discharged her burden which shifted upon her to prove that she was qualified in terms of Section 43-AA(b) of the Act of 1916, as it is a mandatory provision and State Legislature is competent to legislate for fixing the age of President for contesting the election at 30 years, which has been upheld in case of Dharamvir Agrawal vs. State of U.P and others, (2001) 1 SAC 6.
29. Ground nos. 2, 3, 4, 6, 7 and 8 raised by petitioner are interlinked with first ground taken challenging the legality of judgment wherein a Transfer Certificate can be used as a sole basis of date of birth and its evidential value in the election matter.
30. The Court is basically dealing with a case where the petitioner who is a returned candidate was required to disclose her qualification as per Section 43-AA of the Act. Rules provide for the declaration to be made by petitioner in her nomination papers which are filed under Rule 19 and 20. Rule 22 mandates furnishing of certain information along with an affidavit verifying the contents thereof. Once, there is a challenge to the basic essential qualification as prescribed under the Act and prima facie evidence is brought on record to demonstrate that there has been violation of essential qualification, the burden shifts upon the returned candidate to prove otherwise.
31. Initially, burden was upon election petitioner who had made allegations in her election petition which she prima facie succeeded in establishing through the report of District Basic Education Officer that documents appended along with Rule 22 which formed the basis of date of birth was forged, the burden thereupon shifted upon the returned candidate in terms of Section 106 of the Act of 1872.
32. Petitioner nowhere discharged her burden to establish that she qualified in terms of Section 43-AA of the Act to contest the election being 30 years of age on the date of nomination and only reliance was placed upon the date of birth mentioned in the Aadhaar Card.
33. In the recent judgment rendered in case of Saroj (supra) by Hon'ble Apex Court, it has been held that Aadhaar Card cannot be the basis of proving of date of birth. Relevant paras 9.4, 9.5, 9.6, 9.8 and 10 are extracted hereasunder:-
"9.4 The second aspect is the age of the deceased. The High Court, relied on the age as mentioned in the Aadhar Card of the deceased, i.e., 1st January, 1969. However, as submitted by the claimant-appellants, the School Leaving Certificate records the date of birth of the deceased to be 7th October, 1970. This will affect the multiplier to be applied. Let us now consider this question.
It has to be noted at the outset that a School Leaving Certificate has been accorded statutory recognition. Sub-section (2) of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 20153 reads thus:
"(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board..."
(Emphasis Supplied) Whether the Aadhar Card is sufficient proof of a person's age, has come up for consideration before some High Courts, albeit in the context of different statutes. We shall refer to a few instances but, prior to doing so, it is also important to take note of the purpose behind introduction of the Aadhar Scheme. In the Constitution Bench judgment in K.S. Puttaswamy v. Union of India (5-J.)4 Dr. A.K. Sikri, J. wrote as hereinbelow extracted, encapsulating the object and purpose of Aadhar:--
"24. Before adverting to the discussion on various issues that have been raised in these petitions, it would be apposite to first understand the structure of the Aadhaar Act and how it operates, having regard to various provisions contained therein. UIDAI was established in the year 2009 by an administrative order i.e. by resolution of the Govt. of India, Planning Commission, vide notification dated January 28, 2009. The object of the establishment of the said Authority was primarily to lay down policies to implement the Unique Identification Scheme (for short the 'UIS') of the Government, by which residents of India were to be provided unique identity number. The aim was to serve this as proof of identity, which is unique in nature, as each individual will have only one identity with no chance of duplication. Another objective was that this number could be used for identification of beneficiaries for transfer of benefits, subsidies, services and other purposes. This was the primary reason, viz. to ensure correct identification of targeted beneficiaries for delivery of various subsidies, benefits, services, grants, wages and other social benefits schemes which are funded from the Consolidated Fund of India ...
Summing up the Scheme:
62. The whole architecture of Aadhaar is devised to give unique identity to the citizens of this country. No doubt, a person can have various documents on the basis of which that individual can establish her identity. It may be in the form of a passport, Permanent Account Number (PAN) card, ration card and so on. For the purpose of enrolment itself number of documents are prescribed which an individual can produce on the basis of which Aadhaar card can be issued. Thus, such documents, in a way, are also proof of identity. However, there is a fundamental difference between the Aadhaar card as a means of identity and other documents through which identity can be established. Enrolment for Aadhaar card also requires giving of demographic information as well as biometric information which is in the form of iris and fingerprints. This process eliminates any chance of duplication. ..... It is for this reason the Aadhaar card is known as Unique Identification (UID). Such an identity is unparalleled."
(Emphasis supplied) 9.5 Turning back to the question of whether Aadhar Card can serve as a proof of age, a perusal of some High Court judgments reveals that this question has been considered on quite a few occasions in the context of the JJ Act. Illustratively, in Manoj Kumar Yadav v. State of M.P.5 a learned Single Judge of the Madhya Pradesh High Court held that when it comes to establishing the age, on a plea of juvenility the age mentioned in the Aadhar Card could not be taken as a conclusive proof in view of Section 94 of the JJ Act. Similar observations have been made in Shahrukh Khan v. State of M.P.6 holding that if the genuineness of the School Leaving Certificate is not under challenge, the said document has to be given due primacy.
The Punjab & Haryana High Court in the context of the Prohibition of Child Marriage Act, 2006, in Navdeep Singh v. State of Punjab & Others 7 held that Aadhar Cards were not "firm proof of age". Observations similar in nature were also made in Noor Nadia v. State of Punjab8, Muskan v. State of Punjab9 as well as several other orders/judgments, in various contexts.
Views aligning with the one referred to above have been taken by the High Court of Judicature of Allahabad in Parvati Kumari v. State of U.P.10; the Himachal Pradesh High Court in Kumit Kumar v. State of H.P.11 and the High Court of Kerala in Sofikul Islam v. State of Kerala12.
9.6 We find that the Unique Identification Authority of India13, by way of its Circular No. 08 of 2023, has stated, in reference to an Office Memorandum issued by the Ministry of Electronics and Information Technology dated 20th December 2018, that an Aadhar Card, while can be used to establish identity, it is not per se proof of date of birth. This office memorandum dated 20th December, 2018 was taken note of by a learned Division Bench of the Bombay High Court in State of Maharashtra v. Unique Identification Authority of India14 in its order dated 28th July, 2023. The Circular is extracted hereinbelow for ready reference:--
F. No. HQ-13065/1/2022-AUTH-II HQ/8075 Unique Identification Authority of India (Authentication and Verification Division) UIDAI Headquarter Bangla Sahib Road, Behind Kali Mandir Gole Market, New Delhi-110 001 Dated 22.12.2023 Circular No. 08 of 2023 Subject : Accepting Aadhar as a proof of Date of Birth (DoB) - regarding.
It has been observed that AUAs/KUAs are considering and accepting Aadhar card/e-Aadhaar as one of the acceptable documents for proof of Date of Birth (DoB).
2. In this regard, it is pertinent to mention that, Aadhaar is a unique 12 digit ID issued to a resident after he/she undergoes the enrolment process by submitting his/her demographic and biometric information. Once a resident is assigned an Aadhaar number, it can be used to authenticate the resident through various modes as prescribed under Aadhaar Act, 2016 and Regulations framed there under.
3. At the time of enrolment/updation, UIDAI records DoB as claimed by the resident, on the basis of the documents submitted by them, as specified under the list of supporting documents for Aadhaar enrolment, provided on the UIDAI website (https://uidai.gov.in/images/commdoc/26 JAN 2023 Aadhar List of documents English.pdf). Further, it is to be noted that Regulations 10(4) and 19A of the Aadhaar (Enrolment and UPDATE) Regulations, 2016, mention that verification of the enrolment and update data shall be performed as provided in Schedule III.
4. In this regard, attention is drawn towards Office Memorandum dated 2-0.12.2018 issued by MeitY through UIDAI, where it has been stated that "An Aadhaar number can be used for establishing identity of an individual subject to authentication and thereby, per se its not a proof of date of birth" (copy enclosed).
5. This aspect of the Aadhar Act, 2016 has been reiterated/highlighted/stressed upon by different High Courts in recent judgments. The most recent one is given by the Hon'ble High Court of Bombay, in the case of State of Maharashtra v. Unique Identification Authority of India dated 28.07.2023 (copy enclosed).
6. In view of the above, it is required that use of Aadhaar, as a proof of DoB needs to be deleted from the list of acceptable documents.
7. This issues with the approval of the Competent Authority.
Encl : As above.
(Sanjeev Yadav) Director Tel : 011-23478609 Email : [email protected] (Emphasis supplied)"
9.8 In Shabana v. NCT of Delhi16 a learned Division Bench of the Delhi High Court in a case where the petitioner-mother sought a writ of habeas corpus for her daughter, recorded a statement made for and on behalf of UIDAI that "Aadhar Card may not be used as proof of date of birth.
10. That being the position, as it stands with respect to the determination of age, we have no hesitation in accepting the contention of the claimant-appellants, based on the School Leaving Certificate. Thus, we find no error in the learned MACT's determination of age based on the School Leaving Certificate."
34. In that case, the Apex Court had in categorical terms accepted School Leaving Certificate as a proof of date of birth in place of Aadhaar Card.
35. Next, coming to the argument raised from the petitioner's side as to whether concealment of age would amount to corrupt practice, I find that Section 43-AA(1)(b) clearly provides that a person shall not be qualified to be chosen as a President of a Municipality unless he has attained the age of 30 years on the date of his nomination. The restriction therein clearly reveals that once it is found that any candidate is below the age of 30 years on the date of nomination, he or she stands disqualified for the post of President of a Municipality. Likewise, provisions of Section 48(2)(b)(i) provides for removal of a President who has incurred any disqualification mentioned in Sections 12-D and 43-AA. The burden had shifted to petitioner upon the report coming from District Basic Education Officer that the School Certificate was forged and fabricated, thus, leading to the inevitable conclusion that date of birth mentioned therein was also wrong. It was incumbent upon the petitioner to have discharged the burden of proof which had shifted upon her to prove that she was 30 years of age and qualified in terms of Section 43-AA(b) to contest the election of President of a Municipality, which she failed to do so. No documentary evidence was adduced except the Aadhaar Card to substantiate her claim. The Aadhaar Card cannot be the basis of proof of date of birth.
36. Petitioner was given ample opportunity to lead evidence and bring on record the correct facts but she never made any genuine effort to cross-examine any of the person to prove her case beyond doubt. Documents adduced before court below by petitioner were only copy of Aadhaar Card (Paper No. 67C), Copy of PAN card (Paper No. 68C), Certified copy of Parivar Register (Paper No. 69C), Copy of Admission Register (Paper No. 70C), Copy of Voter List for Municipal Board Election, Copy of Voter ID (Paper No. 74C) and Birth Certificate of son of O.P. No. 1 (Paper No. 75C). Along with it, Registers from Naveen Balika Junior High School and Composite Vidyalaya were summoned. She had never moved an application before court below to cross-examine District Basic Education Officer or any Principal of either of the Institutions. The argument raised thereof as to ex-parte inquiry report without giving opportunity of hearing has no significance as no effort was made for cross-examining the officers who had submitted the report.
37. Lastly, it was contended that Election Tribunal should not have declared respondent no. 5 as winner candidate which was against the dictum of Apex Court.
38. Law relating to declaration of election petitioner as returned candidate, on succeeding in election petition was for the first time considered by Constitution Bench of Hon'ble Supreme Court in case of Vishwanatha Reddy vs. Konappa Rudrappa Nadgouda and another, AIR 1969 SC 604 wherein the Apex Court held as under:-
"12. .....A very large percentage of the electorate in our country is, unfortunately illiterate and sections thereof not infrequently speak a language different from the language of the Majority. It would be well-nigh impossible to give information of the disqualification of a candidate in a medium which the illiterate clears understand. We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the returning officer as validly nominated but who is in truth disqualified, could still be treated as valid votes, for the purposes of determining whether a fresh election should be held, When there are only two contesting candidates and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate."
39. The decision in Vishwanatha Reddy (supra) was followed in Thiru John vs. Returning Officer, (1977) 3 SCC 540. In D.K. Sharma vs. Ram Sharan Yadav, 1993 Supp (2) SCC 117, Hon'ble Apex Court held that where there are more than two candidates in the field, it is not possible to apply the same ratio as could be applied when there are only two candidates as held in Vishwanatha Reddy (supra).
40. In Prakash Khandre (supra), Hon'ble Apex Court followed the earlier dictum and held as under:-
"24. In view of the aforesaid settled legal position, in our view, the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of the elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa case [(1969) 2 SCR 90 : AIR 1969 SC 604 sub nom Vishwanatha Reddy v. Konappa Rudrappa Nadgouda] that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as "thrown away" only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case, for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that the elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been the voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr Vijay Kumar Khandre as elected requires to be set aside."
41. Recently, the Apex Court in case of Muniraju Gowda P.M. vs. Munirathna, (2020) 10 SCC 192 considering the earlier decisions of Apex Court held that relief cannot be granted to petitioner therein and he cannot be declared as a returned candidate once his election petition is allowed as there were 14 candidates in the fray, including the petitioner and respondents therein.
42. In the instant case, it is an admitted case that election petitioner along with six other candidates contested for the post of Chairman, Nagar Panchayat-Maniyar, Pargana-Khareed, District-Ballia. The returned candidate who is petitioner before this Court was declared elected. The Election Tribunal while allowing the election petition filed by election petitioner/respondent no. 5 could not have granted the relief of declaring her winner once the returned candidate was found disqualified in terms of Section 43-AA(b) of the Act of 1916. No finding has been recorded by Election Tribunal as to why the election petitioner/respondent no. 5 is declared as winner once the election of returned candidate/petitioner was set aside.
43. Considering the facts and circumstances of the case, the impugned judgment and order dated 23.10.2024 is modified to the extent that the election petitioner/respondent no. 5 shall not be declared as a winner candidate for the post of President, Nagar Panchayat-Maniyar, Pargana-Khareed, District-Ballia and the State Election Commission, Lucknow shall hold fresh elections for the aforesaid post. Rest of the judgment disqualifying the returned candidate/petitioner in terms of Section 43-AA(b) of the Act of 1916 needs no interference by this Court.
44. In view of said fact, the writ petition stands disposed of.
Order Date :- 20.12.2024 V.S.Singh