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Showing contexts for: Assembly election in Mohd. Abdullah Azam Khan vs Nawab Kazim Ali Khan on 7 November, 2022Matching Fragments
4. 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 Rampur.
5. 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 on record and despite the date of birth of the appellant being 1 st 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 Education, Delhi, the Returning Officer failed to consider the same and arbitrarily overruled the objection raised by him.
12.9. Section 105 is an application of the rule in section 103. When parties to a dispute adduce evidence to substantiate their claim, onus becomes academic and divided, entailing each party to prove their respective plea.
12.10. Section 106 is an exception to the general rule laid down in Section 101, that the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue. Section 106 is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it. It applies to cases where the fact is especially within a party’s knowledge and to none else. The expression ‘especially’ used in Section 106 means facts that are eminently or exceptionally within one’s knowledge. This means a party having personal knowledge of certain facts has a duty to appear as a witness and if he does not go to the witness box, there is a strong presumption against him. 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. (Sushil Kumar vs. Rakesh Kumar (supra)) 12.11. The provisions of Section 106 are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. If he does so, he must be held to have discharged his burden but if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. [Source: Sarkar on Law of Evidence, 20th Edition, Volume 2.] 12.12. In Sushil Kumar vs. Rakesh Kumar (supra), the controversy was with regard to the improper acceptance of the nomination of the sole respondent therein on the premise that he was under qualified to contest the Bihar Legislative Assemble election from 181, Parbatta Constituency. In the said case, inter alia, the horoscope of the respondent therein and admission register of New St. Xaviers School, Boring Road, Patna and transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents to prove that the successful candidate therein was not eligible to contest the said Assembly election. In the said case, Section 35 of the Indian Evidence Act was referred to and it was observed that the register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact and if such vital evidence had been produced, it would clinch the issue. It was observed that there is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person and that the admission register or a transfer certificate issued by a primary school do not satisfy the requirements of Section 35 of the Evidence Act.
vii) Re: Aadhar Card, Voter I.D. Card and Driving License:
19. This issue pertains to the effect of the following documents of identity, wherein the successful candidate’s date of birth has been recorded as 30.09.1990, namely, copy of Aadhar Card, driving licence and Voter ID Card of the appellantsuccessful candidate. Strong reliance has been placed on the abovelisted documents to contend that the date of birth recorded therein is 30.09.1990, which is in accordance with the date of birth reflected in the duplicate birth certificates issued by the Queen Mary’s Hospital, Lucknow, and the Nagar Nigam, Lucknow, on 21.04.2015 and 21.01.2015, respectively. 19.1. The High Court, on perusal of the successful candidate’s Aadhar Card (Ex. P2 Paper No. A66/1), Driving License (Ex. P2 Paper No. A67/1) and Voter I.D. Card (Ex. P2 Paper No. A68/1) held that the above mentioned documents are not evidence of date of birth of the successful candidate. It was of the view that the date of birth in the Driving License was corrected subsequently and that the Aadhar Card dated 07.03.2015 and the Voter I.D. Card dated 18.07.2016 were issued on the basis of the date of birth mentioned in the birth certificate dated 21.01.2015 issued by the Nagar Nigam, Lucknow, which had been held to be null and void. Reliance was placed on a judgment of its Court in Smt. Parvati Kumari and Ors. vs. State of U.P. Thru. Principal Secretary Home & Ors. (Misc. Bench No. 13419 of 2018) to hold that Aadhar card is a means of identity and not a proof of date of birth. The High Court therefore, held that the abovementioned documents did not conclusively establish that the successful candidate was above twentyfive 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.
The aforesaid dictum is of no assistance to the appellant herein as the position with respect to the factual matrix is at variance. Although, the election petitioner herein contended that the successful candidate was less than twentyfive years of age and therefore, was ineligible to contest the Assembly election and the election petitioner had the burden of proving the said fact but the successful candidate took up on himself to prove another fact, namely, that he was born on 30.09.1990 and not on 01.01.1993 and therefore, was above twentyfive years of age. Thus, the burden was on the respective parties to prove their respective cases. On going through the oral and documentary evidence in this case, I find that the appellant herein has failed to prove that he was born on 30.09.1990 in spite of letting in voluminous oral and documentary evidence in view of the discussion and findings arrived at by us. On the other hand, the evidence let in by the respondentelection petitioner, when juxtaposed to the pertinent admissions let in by the appellant herein, has, in my view, enabled the respondent herein to prove his case before the High Court. The reasoning and conclusion of the High Court in my view is thus, just and proper on the appreciation of the evidence on record in the instant case.