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IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, J.
Nawab Kazim Ali Khan - Appellant
Versus
Mohd. Abdullah Azam Khan - Respondent
Election Petition No. 8 of 2017
Decided On : 16-12-2019
The court was tasked with determining the validity of an election in which the winning candidate, Abdullah Azam Khan, was alleged to be ineligible due to age restrictions. The court considered various pieces of evidence, including educational certificates, passport and visa records, birth certificates, and medical reports, to determine Khan's age at the time of the election.
Fact of the Case:
The election petitioner, Naveen Sinha, filed an election petition challenging the election of Abdullah Azam Khan, the respondent, to the Uttar Pradesh State Legislative Assembly from the 34-Suar constituency. The petitioner alleged that Khan was ineligible to contest the election because he was less than 25 years of age on the date of filing nomination papers, the date of scrutiny of nomination papers, and the date of declaration of results, in violation of Article 173(b) of the Constitution of India.
Finding of the Court:
After examining the evidence presented by both parties, the court found that Khan was born on January 1, 1993, and was therefore less than 25 years of age on the relevant dates. The court held that Khan was ineligible to contest the election and that his election was void.
Issues: 1. Whether Abdullah Azam Khan was less than 25 years of age on the date of filing nomination papers, the date of scrutiny of nomination papers, and the date of declaration of results, in violation of Article 173(b) of the Constitution of India? 2. Whether Khan's election was void due to his ineligibility?
Ratio Decidendi: The court relied on several principles of law and evidence in reaching its decision. These principles included: * The burden of proof lies on the election petitioner to establish the ineligibility of the respondent. * The initial burden of proof that a candidate's nomination paper has been wrongly accepted is on the election petitioner. * The age of a person in an election petition is determined not only on the basis of the materials placed on record but also upon taking into consideration the circumstances attending thereto. * 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. * False statements made before the court, whether on affidavit or not, are not to be treated lightly and adverse inferences should be drawn.
Final Decision: The court allowed the election petition and declared Khan's election void. The court also directed that the substance of its decision be communicated to the Election Commission of India and the Speaker of the Uttar Pradesh Legislative Assembly.
JUDGMENT :
1. Heard Shri Naveen Sinha, learned Senior Advocate, assisted by Ms. Kalpana Sinha and Shri Raghav Nayar, learned counsel for the election petitioner and Sri N.K. Pandey along with Sri S.A. Kazmi, learned counsel for the respondent - returned candidate.
Facts
2. Briefly stated facts of the present case are that notification under the Representation of the People's Act 1951 (hereinafter referred to as “the Act 1951”) was issued notifying for election of U.P. State Legislative Assembly from 34-Suar, District – Rampur constituency. A public notice was also issued by the Returning Officer fixing the following programme for holding the election from the aforesaid constituency :-
(a) Date of filing nomination 25.01.2017
(b) date of scrutiny of nomination papers 28.01.2017
(c) Date of Withdrawal of nomination papers 30.01.2017
(d) Date of allotment of symbols 01.02.2017
(e) Date of poll 15.02.2017
(f) Date of counting 11.03.2017
3. After scrutiny and withdrawal of nomination papers, the election petitioner and six other persons including the respondent were the candidates who remained in the field for the election. Before the Returning Officer the Election petitioner filed an objection against the respondent alleging that the respondent is less than 25 years of age and, therefore, he is not qualified to contest the election in view of Article 173(b) of the Constitution of India. The objection was rejected by the Returning Officer. The election took place as per schedule in which the respondent - Mohd. Abdullah Azam Khan, son of Mohd. Azam Khan who had filed his nomination papers on 24.1.2017, was declared elected on 11.3.2017. He secured 1,06,443 votes. The petitioner stood 3rd and had secured 42,233 votes.
4. The election petitioner has filed the present election petition on the sole ground that “ the respondent was not qualified to contest the election for member of legislative assembly in view of Article 173(b) of the constitution of India, inasmuch as the respondent was less than 25 years of age when he filed his nomination papers and when he contested the election from 34 Suar, District- Rampur constituency.”
5. The concise statement of material fact in respect of ground reproduced above, have been mentioned in paragraphs 25 to 28 of the election petition, which are reproduced below :-
25. That the concise statement of material facts, in respect of ground A are as follows:
(i) That the respondent was born on 01.01.1993, and, therefore, as on the date of the nomination of scrutiny, the said Mohd. Abdullah Azam Khan, respondent was much below 25 years of age.
(ii) That the said Mohd. Abdullah Azam Khan – respondent 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 for Secondary Education, New Delhi.
(iii) That the respondent Mohd. Abdulla Azam Khan himself filled-up the admission form and examination form, and in his own handwriting, mentioned his date of birth as 01.01.1993. The record of the appearance and examination of respondent Mohd. Abdullah Azam Khan are available with the Central Board for Secondary Education, New Delhi.
(iv) That the Central Board for Secondary Education has issued the Secondary School Examination (Class-X) result bearing the roll number, name, mother's name and father's name and date of birth of respondent Mohd. Abdullah Azam Khan. As per the certificate, the mother of respondent is Tazeen Fatima and his father is Mohd. Azam Khan. The date of birth as recorded in the certificate for Secondary School Examination (Class-X) results of the respondent Mohd. Abdullah Azam Khan is 01.01.1993. A copy of the certificate for Secondary School Examination (Class-X) results of respondent Mohd. Abdullah Azam Khan obtained from the Cen
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