Bhukya Bujji vs Bhukya Saraswathi and Others

G. Rohini, J.—This writ petition is filed seeking a writ of certiorari calling for records relating to the order dated 18.1.2003 in Election Petition No. J/1548/2001 on the file of the Agency Divisional Officer, Revenue Divisional Officer, Election Tribunal for Gram Panchayats at Kothagudem and to quash the same.

The writ petitioner is the respondent No. 1 in the Election Petition, whose election as Sarpanch to Marrigudem Gram Panchayat of Garla Mandal was questioned therein. The 1st respondent herein is the Election Petitioner.

Election to the post of Sarpanch of Marrigudem Gram Panchayat was held on 20.8.2001. The writ petitioner who secured 606 votes was declared elected to the post of Sarpanch. The 1st respondent herein who secured 466 votes filed the Election Petition u/s 233 of the A.P. Panchayat Raj Act, 1994 on the ground that the writ petitioner is having more than two children and thus suffered disqualification u/s 19(3) of the A.P. Panchayat Raj Act, 1994, and therefore her election is liable to be set aside.

Certain other allegations were also made alleging corrupt practices by the husband of the writ petitioner, but the same were not pressed before the Tribunal.

The writ petitioner contested the said Election Petition by filing a counter. It is stated in the counter that she gave birth to her last child on 13.1.1995, and therefore Section 19(3) of A.P. Panchayat Raj Act is not applicable and she does not suffer any disqualification as alleged in the Election Petition.

Both the parties adduced oral as well as documentary evidence to substantiate their respective pleas. On appreciation of the evidence on record, the Election Tribunal allowed the Election Petition declaring that the election of the respondent-Writ Petitioner is void in view of the disqualification as per Section 19(3) of A.P. Panchayat Raj Act. It is further declared that the Election Petitioner has been duly elected as President of the Gram Panchayat, Marrigudem Village under Rules 12, 13, 14 and 15 of A.P. Panchayat Raj Rules, 1995.

Aggrieved by the said order the present Writ Petition has been filed.

The learned Counsel appearing for the Writ Petitioner Sri M. Surendar Rao contended that absolutely no evidence was adduced on behalf of the 1st respondent-Election Petitioner, to substantiate the allegation that the Writ Petitioner suffered disqualification u/s 19(3) of the Act. The learned Counsel further contended that the findings recorded by the Election Tribunal are based on mere suspicions, surmises and conjectures and that the Election Tribunal grievously erred in reversing the election mandate and in depriving the Writ Petitioner of the elected office on unfounded allegations, which could not be substantiated by any material evidence.

On the other hand, the learned Counsel for the 1st respondent Sri P. V.S.S.S. Rama Rao, submitted that the findings recorded by the Election Tribunal are based on the evidence on record and the impugned order does not suffer from any error of law or error of jurisdiction. The learned Counsel further submitted that it is not open to this Court to re-appreciate the evidence and to substitute the findings of the Election Tribunal in exercise of certiorari jurisdiction, and therefore, interference of this Court is not at all warranted.

I have also heard the learned Government Pleader who produced the entire record relating to the Election Petition.

Before the Election Tribunal, the Election Petitioner, who is the 1st respondent herein, examined herself as PW.1 and reiterated the contents of the Election Petition. She also examined three other witnesses, among them, P.W.2 is a resident of Marrigudem Village and he deposed that the Writ Petitioner gave birth to her last child in the year 1997. P.W.3 is the Medical Officer of Tribal Primary Health Centre, Mulkanur, who issued Ex.A1 certificate. He deposed that Ex.A1 certificate was issued on the basis of the records maintained by the hospital. P.W.4 is the ANM of Marrigudem Village, who stated that the date of birth of the last child of the Writ Petitioner, mentioned as 29.12.1997 in Ex.A1, is based on Household Register and the Immunization Register being maintained by her. Exs.A2 and A3 are the entries made in the School Admission Register relating to the first and second daughters of the Writ Petitioner, which show that they were admitted in school in the year 1999-2000.

The learned Counsel for the petitioner contends that the above evidence is not sufficient to establish the date of birth of the last child of the Writ Petitioner, and thus, the 1st respondent-Election Petitioner, failed to discharge the burden placed on her to establish a clear case that the Writ Petitioner suffered disqualification u/s 19(3) of the Act. He also contends that the burden of proof lies on the Election Petitioner and it is not open to the Election Petitioner to take advantage of the weakness, if any, in the case set up by the respondents. Thus, according to the learned Counsel, the Election Tribunal committed an error in allowing the Election Petition on the ground that the entries in the Date of Birth Register, produced by the Writ Petitioner, appear to be antedated, and cannot be believed.

I am unable to agree with the contention of the learned Counsel. It is true that the initial burden is on the Election Petitioner to establish her case. But once the evidence is let in by the respondent, the Election Tribunal is required to appreciate the evidence adduced by both the parties in support of the irrespective cases and to record its findings on the issues and to decide the case on merits.

In the instant case, the Writ Petitioner produced Exs.B1, B2 and B4 to B7 documents, which are all entries made in the School Admission Registers. That apart, she also filed Ex.B3, which is an extract of the entry in the Date of Birth Register relating to Garla Gram Panchayat. The Election Tribunal observed that Ex.B3 entry made in the Register appears to be interpolated and the said entry, which was at the last line of the page with ante date and in different handwriting, was quite abnormal and cannot be accepted. On appreciation of the entire evidence on record, the Tribunal below disbelieved the stand taken by the respondent-Writ Petitioner and concluded that the last child of the Writ Petitioner ,was born on 29.12.1997, It cannot be said that the Tribunal below has committed any error in appreciating the evidence on record. As observed above, it is always open to the Tribunal to take into consideration the relative merit of the evidence adduced by both the parties. I do not see any reason to interfere with the finding of fact recorded by the Tribunal below on appreciation of the evidence on record.

Even otherwise, on the basis of the admissions made by the Writ Petitioner in the pleadings as well as the evidence adduced before the Tribunal below, it is clear that she suffered a disqualification u/s 19(3) of the Act, since admittedly, she is having more than two children by the date of the commencement of the Act.

Sub-section (3) of Section 19 of the Act runs as follows:

"A person having more than two children shall be disqualified for election or for continuing as member:

Provided that the birth within one year from the date of commencement of the A.P. Panchayat Raj Act, 1994 hereinafter in this section referred to as the date of such commencement, of additional child shall not be taken into consideration for the purpose of this section .

Provided further that a person having more than two children after excluding the child if any born within one year from the date of such commencement shall not be disqualified under this Section for so long as the number of children he had on the date of such commencement does not increase.

Provided also the Government may direct that disqualification in this Section shall not apply in respect of a person for reasons to be recorded in writing."

As can be seen, a person having more than two children as on the date of commencement of the Act, shall be disqualified for election, however, an exception has been provided under the proviso, which says that where additional child was born within one year from the date of commencement of the Act, such additional child shall not be taken into consideration. The expression "additional child", in the proviso shall be construed as "third child" since the main provision, in clear terms, disqualified a person "having more than two children". Thus, it is clear that where a person is having more than two children i.e., three or more as on the date of commencement of the Act, he is disqualified. No exception applies to such a person. The disqualification acquired by him is absolute and he cannot contest for the election. However, a person having two children, on the date of commencement of the Act, gives birth to a third child within one year from the date of commencement of the Act, such person is covered by the first proviso and consequently, he does not acquire disqualification. It is relevant to note that the Act came into force on 21.4.1994. Therefore, if a third child was born between 21.4.1994 and 20.4.1995, it cannot be treated as disqualification.

In the instant case, the specific plea in the Election Petition is that the 1st respondent-Writ Petitioner is having four children. The Writ Petitioner in her counter did not deny the said allegation, but stated that Section 19(3) is applicable only to the candidates who are having more than two children and gave birth to one of them on or after 22.4.1995. It is also pertinent to note that in her evidence as R.W.1 before the Election Tribunal, the Writ Petitioner has categorically stated that her first child was born in the year 1990, second child was born in the year 1992, third child was born on 20.1.1994 and fourth child was born on 13.1.1995. The husband of the Writ Petitioner, who deposed before the Election Tribunal as R.W.4, reiterated the same. Thus, it is clear that by the date of coming into force of the Act, as per her own version, the Writ Petitioner was having three children. Since admittedly the petitioner is having more than two children as on the date of the commencement of the Act, she is disqualified for the election.

However, the learned Counsel for the petitioner vehemently contended that the 2nd proviso to Section 19(3) would attract to the case on hand. The learned Counsel contends that as per the second proviso, a person having more than two children after excluding the child if any born within one year from the date of the commencement of the Act, shall not be disqualified as long as the number of children he had on the date of such commencement does not increase. He contends that since the plea of the Writ Petitioner is that her fourth child was born on 13.1.1995 i.e., within one year from the date of commencement of the Act, she does not suffer any disqualification.

I am unable to agree with the contention of the learned Counsel for the petitioner. Obviously, the second proviso to Section 19(3) would apply only to the persons who are continuing in office as on the date of commencement of the Act. Such a candidate can continue in office, so long as the number of children he had on the date of such commencement (excluding the child if any born within one year from the date of commencement of the Act) does not increase. If the contention of the learned Counsel for the petitioner is accepted and the 2nd proviso is understood to have permitted a person admittedly having more than two children on the date of commencement of the Act to contest the election, it would defeat the object of the main provision itself.

Thus viewed from any angle, on the basis of her own pleadings and evidence, the Writ Petitioner is disqualified to contest the election. In the circumstances, it cannot be said that the order impugned suffers from any infirmity warranting interference under Article 226 of the Constitution of India.

The Writ Petition is accordingly dismissed. No costs.