In a major blow to Mohd. Abdullah Azam Khan, Samjwadi Party's MLA from Rampur, the Allahabad High Court disqualified him from the membership of the State Legislative Assembly for being less than 25 years of age as on the date of election.
Article 173(b) of the Constitution of India prescribes that in the case of a seat in the Legislative Assembly, a candidate must not be less than twenty five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age.
Azam Khan is the son of Mohd. Azam Khan, who was MLA and the then Cabinet Minister (Urban Planning, Development and Local Bodies) in Government of Uttar Pradesh, during the year 2012 to 2017.
The petition filed by one Nawab Kazim Ali Khan alleged that Azam had filed a fake affidavit, depicting that he was born in the year 1990, for the purpose of contesting assembly elections. It has been alleged that Azam was in fact born in the year 1993 and thus was not competent to stand in the 2017 assembly elections.
The Petitioner had also raised this issue before the Returning Officer the Election before the elections however, his objection came to be rejected.
The Petitioner submitted that Azam's Class X mark sheet issued by CBSE in 2007 clearly stated his date of birth to be 01.01.1993. He added that Azam had himself disclosed his date of birth as 01.01.1993 while obtaining passport in the year 2006 and in the year 2012. Moreover, Azam's mother had also filed a nomination form for group insurance scheme in the year 2001 in which she had mentioned Azam's age to be 8 years which also shows the birth year to be the year 1993.
Denying the allegations, Azam contended that the Class X CBSE Marksheet certificate had incorrectly mentioned his date of birth as 01.01.1993 instead of 30.09.1990 and he came to know about it for the first time in the year 2015 while he was pursuing his studies of M.Tech. and was forwarding towards his carrier/job. Therefore, he took steps for correction of his date of birth as 30.09.1990 in place of wrongly mentioned date of birth 01.01.1993. However, date of birth has not yet been corrected.
Azam also produced the fresh birth certificate issued to him by the Nagar Nigam, Lucknow along with the cancellation order of the old birth certificate, passed by the Nagar Palika Parishad, Rampur, to support his case.
While noting that the burden of proof to show that a candidate was disqualified as on the date of the nomination lay on the election petitioner in terms of Section 103 of the Indian Evidence Act, the court observed that the Petitioner had discharged the initial burden of proof with regard to the age of Azam Khan.
The court took note of several instances where Azam and his parents had overtly disclosed his birth year to be 1993. In such circumstances, the court did not believe that a highly educated family will take years to realize that the date of birth of their son is wrongly recorded in his Class X mark sheet. It said,
"The respondent and his parents are highly educated and socially and politically active…He has travelled to foreign countries several times on the basis of his passport obtained in the year 2006 and 2012 and visa in the year 2014 in which his date of birth was recorded as 01.01.1993 as disclosed by him. He obtained the passport by moving an application under his own signature in the year 2006 and thereafter in the year 2012 (Ex. P-1 – Paper No.A-49/1-4) in which he himself mentioned his date of birth as 01.01.1993. He obtained visa and travelled to foreign countries prior to and subsequent to the year 2015 and always mentioned his date of birth as 01.01.1993. His parents got registered his birth with the Registrar of Birth Nagar Palika Parishad, Rampur, mentioning his date of birth as 01.01.1993," Justice Surya Prakash Kesarwani noted.
False Birth Certificate
The court went on to hold that the fresh birth certificate and the order of cancellation of old certificate were false and fabricated.
It observed that the entry made in the aforesaid birth register of Nagar Nigam, Lucknow was a clear case of manipulation Advocate Azam's birth entry had been inserted in very little space at the bottom of the page, showing it to have been made on 30.09.1990. The court also noted that Azam's entry did not bear signature or order of any authority of the Nagar Nigam, Lucknow, or a Sub-Divisional Magistrate. Thus, it was held that the entry in the aforesaid birth register in Azam's name was not made on 30.09.1990.
The court also noted that Azam's father was the Cabinet Minister of the Department of Urban Development and Local Bodies and both Nagar Nigam, Lucknow as well as Nagar Palika Parishad, Rampur were under his ministry when the fresh certificate was issued and the order of cancellation of old birth certificate was passed.
"It shall not be out of place to mention that when the birth certificate dated 21.01.2015 of the respondent was got issued from Nagar Nigam, Lucknow, at that time the respondent's father was," the court remarked.
Delayed Registration of Birth
The court held that since Azam's registration of birth was delayed, Section 13 of the Registration of Births and Deaths Act, 1969 and Rule 9 of the U.P. Registration of Birth and Death Rules, 2002 would come into play.
These provisions specifically provide that any birth or death which has not been registered within one year of its occurrence shall be registered only on an order made by a Magistrate of Ist Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.
In this view it was held that Nagar Nigam, Lucknow, did not have the jurisdiction to register Azam's birth or to issue a birth certificate to him without an order of a Sub-Divisional Magistrate.
"Therefore, the aforesaid birth certificate of the respondent dated 21.01.2015 (Ex.P-2-Paper No.A-63/1) issued by the Registrar (Birth & Death), Nagar Nigam, Lucknow, registering 30.09.1990 as birth of the respondent is null and void," the court held.
Lastly, the court refused to appraise the medical report issued by CMO, Rampur, which had been produced by Azam to contend that his average age was 26 years as on the date of election.
The court said that it was bound to determine the age on the basis of material on record and on appreciation of evidence adduced by the parties. It added however that even if the aforesaid medical report could be looked into, then applying the general rule of age determination by ossification test- plus minus two years factor, the age of the respondent in 2017 would come to 24 indicating birth year of the respondent to be the year 1993.
"The medical evidence may be useful as guiding factor but it is not conclusive and has to be considered along with other cogent reasons," the court remarked.
Reliance was placed on Mukarrab & Ors. v. State of U.P., (2017) 2 SCC 210, whereby it was held,
"the age determination based on ossification test though may be useful is not conclusive . An X-ray ossification test can by no means be so infallible and accurate a test as to indicate the correct number of years and based of a person's life."
With these observations, the court held that as on the date of filing of nomination paper on 25.1.2017 and on the date of scrutiny of nomination paper on 28.01.2017 and on the date of declaration of result of Legislative Assembly Election of 34-Suar Assembly Constituency of District Rampur on 11.03.2017, Azam was less than 25 years of age and thus was not qualified to be chosen to fill the seat in legislature of the State in terms of Article 173 (b) of the Constitution of India.
"In view of the aforesaid, the Election-Petition is Allowed. The election of the respondent from 34-Suar Assembly Constituency of District Rampur is declared void and consequently it is set aside," the court directed.
Case Title: Nawab Kazim Ali Khan v. Mohd. Abdullah Azam Khan
Case no.: Election Petition No. 8/2017
Quorum: Justice Surya Prakash Kesarwani
Appearance: Advocates Sayed Fahim Ahmad, Anurag Asthana, Kalpana Sinha, Raghav Nayar, Rahul Agarwal and Syed Fahim Ahmed (for Petitioner); Advocates N.K. Pandey, Hridaya Narayan Mishra, Nazia Rafiq Khan, R.P.S. Chauhan and Safdar Ali Kazmi (for Respondent)
Click Here To Download Judgment