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Andhra High Court · body

2008 DIGILAW 885 (AP)

Golla Jayamma v. District Collector

2008-10-17

L.NARASIMHA REDDY

body2008
Judgment : Common Judgment: The subject matter of these three writ petitions is identical. Hence, they are disposed of through a common judgment. Elections to the Narayanapuram Gram Panchayat were held on 06.07.2006. The petitioners in these writ petitions were declared elected as Members of Ward Nos.1, 6 and 2 respectively. The persons arrayed as respondents No.2 in each of the writ petitions (for short ‘the respondents’) filed O.P.Nos.2, 5 and 3 respectively before the Election Tribunal-cum-Junior Civil Judge, Alampur, challenging the election of the petitioners. The common ground urged in all the election petitions is that the petitioners herein have given birth to third child after expiry of one year from 30.05.1994, on which date the Andhra Pradesh Panchayat Raj Act, 1994 (for short ‘the Act’), came into force. The petitioners denied the allegations. They have also raised objection as to the jurisdiction of the Tribunal to decide the said issue. Through separate but similar judgments, dated 16.04.2007, the Tribunal allowed the election petitions. The election of the petitioners was set aside and the respondents were declared elected. The petitioners contend that an issue relating to the disqualifications under Sections 17, 18 and 19 of the Act is to be determined in accordance with the procedure prescribed under Section 22 of the Act and that there is no scope for the Tribunal to entertain the O.Ps. It is urged that the respondent did not plead, much less prove the basic and relevant facts. They further contend that the Tribunal deviated from the settled principles of evidence and held that the petitioners incurred disqualification by placing burden upon them, though no documentary or oral evidence was adduced, by the respondents, on material aspects. On behalf of the respondents, it is pleaded that once it is not disputed that the petitioners have more than two children, the burden rests upon them to prove that the third child was not born after 30.05.1995. They assert that the jurisdiction of the Tribunal to decide the question of disqualification under Section 17 to 19 of the Act, in an election is independent of the power of the District Court under Section 22 of the Act and that there is no overlapping. They assert that the jurisdiction of the Tribunal to decide the question of disqualification under Section 17 to 19 of the Act, in an election is independent of the power of the District Court under Section 22 of the Act and that there is no overlapping. Learned counsel for the petitioners submits that the proceedings instituted by the respondents before the Tribunal are more akin to the applications, under Section 22 of the Act, inviting opinion relating to disqualification, than the election petitions, provided for under the Act and the Rules. He also submits that even if the election petitions are maintainable, it was obligatory for the respondents to plead and prove the facts leading to disqualification and that not a word was said about the manner, in which, the petitioners are said to have incurred disqualification. He further submits that the Tribunal rested the burden of proof upon the petitioners and bestowed its attention only to scrutinize the evidence adduced by the petitioners, though no evidence, worth its name, was adduced by the respondents. Learned counsel appearing for the respondents submits that the view taken by the Tribunal that it has jurisdiction to entertain the O.Ps is based upon a Judgment rendered by this Court in M. Jagannadha Rao vs. Govt. of A.P. ( 2007 (1) ALD 779 ). He further submits that where the allegation is that the respondent in an election petition incurred disqualification, on account of his or her giving birth to third child, the burden rests upon such candidates to prove that the birth of the child took place within one year from 30.05.1994. The Tribunal framed the similar issues, in all the petitions, and they read as under: I) Whether this Court has jurisdiction to entertain the petition? II) Whether the District Collector, Mahaboobnagar is necessary party to this petition. If so, the petition is bad for non-joinder of necessary party? III) Whether the 1st Respondent is disqualified to continue as Ward Member of Narayanapuram Gram Panchayat? IV) Whether the Petitioner is entitled for declaration as Ward member of Narayanapuram Gram Panchayat. In all the election petitions, only the respective petitioner deposed as P.W.1 and the certificate issued by the M.R.O. was marked as Ex.A.1. No other evidence was adduced on their behalf. The evidence of the petitioners herein was a bit elaborate and in all the cases, R.Ws. In all the election petitions, only the respective petitioner deposed as P.W.1 and the certificate issued by the M.R.O. was marked as Ex.A.1. No other evidence was adduced on their behalf. The evidence of the petitioners herein was a bit elaborate and in all the cases, R.Ws. 1 to 3 were examined and the date of birth certificate of the concerned child in each case was marked as Ex.B.1. Two questions arise for consideration in this batch of writ petitions. The first is as to whether the Tribunal had the jurisdiction to entertain the election petitions to determine the issue as to the disqualification mentioned in Section 19(3) of the Act. The second is about the party, on whom the burden to prove the alleged disqualification rests. The Act stipulates the disqualifications of different categories in Section 17, 18 and 19 of the Act. Section 22 of the Act prescribes the procedure to be followed in deciding the question of disqualification under the relevant provisions. The District Court is conferred with the power to adjudicate such questions and the adjudication can be at the instance of various authorities mentioned therein. It needs to be noted that the disqualifications stipulated under Sections 17, 18 and 19 of the Act not only operate as a bar against an individual for being elected to an Office, but also to continue therein, even if elected. If a disqualification of one category or the other is pleaded as a ground for setting aside the election of a person, the only remedy is to present an election petition as provided for under Section 233 of the Act and the Rules made thereunder. The Court of Junior Civil Judge, which is designated as Election Tribunal, is conferred with the jurisdiction to entertain the election petitions in relation to Gram Panchayats. Challenge to an election in any other manner is prohibited under Article 243-O of the Constitution of India and Section 233 of the Act. The remedy or the mechanism provided for under Section 22 of the Act is not in the form of an election petition. While an election petition has to be filed within a stipulated time from the date of election, there is no such restriction to file a petition under Section 22 of the Act. The parameters for adjudication are also somewhat different for the two categories of proceedings. While an election petition has to be filed within a stipulated time from the date of election, there is no such restriction to file a petition under Section 22 of the Act. The parameters for adjudication are also somewhat different for the two categories of proceedings. In a petition filed under Section 22 of the Act, the adjudication is confined to declaration as to whether an elected person incurred disqualification under Sections 17 to 19 of the Act. It is not the concern of the Court as to what consequences should flow form such declaration. In an election petition, on the other hand, the Tribunal is conferred with the power to set aside the election, may be on the same finding, and to declare the next man in terms of majority, as elected. Though the adjudication into the question of disqualification, soon after the election or much thereafter, can be sought in a petition under Section 22 of the Act, the option for an aggrieved party to institute an election petition, if it is otherwise tenable, cannot be scuttled. In M. Jagannadha Rao’s case (1 supra), this Court held that the remedy under one provision is not exclusive of the other and that they operate in totally different fields. If one closely examines issue No.3, framed by the Tribunal, an impression would certainly be gained that it is the one, which can constitute the subject matter of a petition under Section 22 of the Act, than an O.P. under Section 233 of the Act. Be that as it may, the parties understood the dispute between them as to the disqualification at the inception viz., while filing the nominations. Therefore, the first question deserves to be answered against the petitioners and that the election O.Ps. filed against them are maintainable in law. The second question concerns mostly about the principles of evidence. The pleadings in all the O.Ps. are somewhat abstract in nature. Except stating that the petitioners herein have incurred disqualification by giving birth to more than two children, no particulars are mentioned as to the date of birth of the third child, much less to any supporting material. The petitioners flatly denied the allegation that they have incurred disqualification. Even assuming that the respondents maintained precision of the pleadings and reserved their right to adduce evidence during the trial, they failed at that stage also. The petitioners flatly denied the allegation that they have incurred disqualification. Even assuming that the respondents maintained precision of the pleadings and reserved their right to adduce evidence during the trial, they failed at that stage also. The oral evidence is scanty and devoid of any particulars. The documentary evidence is equally irrelevant on this question. In fact, the Tribunal itself summed up the purport of the pleadings and evidence of the respondents herein as under: “It is not the specific allegation of the petitioner that the last child of the 1st Respondent was born after one year of the commencement of the act and the third child is not covered under the exemption. The petitioner neither alleged in her pleading not let any evidence in this regard.” This observation is common to all the O.Ps. The conclusions, that can be derived from the observation must have resulted in dismissal of the petitions, since the petitioners therein failed to plead or prove the necessary facts. In fact, there was no necessity for the petitioners herein to adduce any evidence, because there was nothing to be rebutted. All the same, as advised, they have adduced fairly elaborate evidence, both oral and documentary. The Birth Certificate issued by the competent authority under the Registration of Births and Deaths Act in respect of the third child was filed in each case. The Sarpanch, who issued the certificate, was examined as R.W.2. The Election Authority-cum-Mandal Parishad Development Officer was examined as R.W.3. The entire discussion on issue No.3 was devoted to the validity of the certificates issued under the Registration of Births and Deaths Act, relied upon by the petitioners. The evidence of the witnesses examined on their behalf was discussed and thereafter, the provisions of the Registration of Births and Deaths Act were analyzed. The certificates were ignored, on the ground that they were not issued by the Executive Officer of the Panchayat. The observations or findings of the Tribunal on this aspect, in all the three cases, read on these lines: “According to her chief affidavit the 1st Respondent is having three children and her third child was born within one year from the date of the commencement of the Act. Except her oral assertion there is no other cogent evidence in support of her contention. Except her oral assertion there is no other cogent evidence in support of her contention. As per the evidence available on record the evidence of 1st Respondent is not reliable and Ex.B1 is not proved. The 1st Respondent is failed to discharge onus of proof that her third child was born within one year from the date of the commencement of the act. Hence this point decided against the 1st Respondent and in favour of the petitioner.” It is apt to mention here that the observation of the Tribunal that the respondents herein neither alleged in their pleadings that the petitioners herein have given birth to third child and thereby incurred disqualification nor they have adduced any evidence, was made at the commencement of discussion on point No.3 The Tribunal rested its finding, on the fact that the petitioners herein failed to discharge their onus of proof. Therefore, it becomes necessary to make reference to Sections 101 to 103 of the Evidence Act, which deal with the burden of proof in general and burden of proof of a particular fact. The provisions are precise and it is useful to extract them. They read as under: 101. Burden of proof:- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. 102. On whom burden of proof lies:- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. Illustrations (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. 103. Burden of proof as to particular fact:- 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. Illustrations (a) A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission. (b) B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it. The language employed in the said provisions gives substantial guidance in this regard. The burden of proof is the one, which covers the entire case and rests upon the person, who makes an effort to convince the Court to give a judgment, as to his right or entitlement, in his favour. In the course of adjudication of the larger question, it may become necessary to decide certain facts, which are either in the knowledge of the plaintiff or which are known only to the defendant. In such cases, Section 102 or 103 gets attracted. In the course of adjudication of the larger question, it may become necessary to decide certain facts, which are either in the knowledge of the plaintiff or which are known only to the defendant. In such cases, Section 102 or 103 gets attracted. These principles have their origin in the Dharmakosa of Narada, wherein it is said as under: “What the claimant has fully declared word for word in the plaint, he must substantiate by adducing evidence at the third stage of the case.” “Where the defendant has denied the plaint (allegations) by means of a special plea (pratyavascandana), it becomes incumbent on him to prove his assertion, and he is then placed in the position of a claimant.” Brihaspati declared as under: “The plaintiff shall prove his declaration and the defendant his special plea;” Proof of the facts pleaded in the proceedings, civil or criminal, is a very important step, in the adjudication, under any system. The principles, underlying the method of proof, are almost universal. Basically, it is for the person, who approaches the Court seeking a relief or remedy, to prove, what is pleaded by him. In the criminal cases, the prosecution initiates the proceedings stating certain facts and it is for it, to prove them. Certain exceptions are, however, recognized, wherein the defending party in a civil or criminal case also has to discharge the burden, depending on the circumstances. In the normal parlance, this is known as “onus of proof”. In the Evidence Act, the expression “onus of proof” is not employed. Not only in the Heading of the Chapter, but also in the text of various sections, the expression “burden of proof” is used. On a close scrutiny of various Sections of Chapter VII of the Evidence Act, it becomes clear that a distinction is made between the burden of proof, as a matter of law and pleading, on the one hand, and the burden of establishing a case through evidence, on the other hand. In a way, it can be said that the first one is reflected in Section 101 of the Evidence Act. In clear and unambiguous terms, it directs that it is for the party, who desires the Court to give a judgment (which, invariably, is the plaintiff) who has to prove the facts, which he asserts. This becomes clear even from the stage of the institution of the proceedings. In clear and unambiguous terms, it directs that it is for the party, who desires the Court to give a judgment (which, invariably, is the plaintiff) who has to prove the facts, which he asserts. This becomes clear even from the stage of the institution of the proceedings. The second part viz., the burden of establishing a case through evidence becomes clear, after the defence is delivered, and at the stage of framing of issues. As is well known, the written statement in a suit may contain all or any of the four types of pleas viz., admission, denial, fresh case and res judciata. If a principal fact pleaded by the plaintiff that constituted the basis for his claim is admitted by the defendant, the necessity for the former to prove that fact ceases to exist. In case, the admission is as to the whole case, without there being any necessity for trial, a judgment deserves to be delivered. Order X C.P.C. provides for such a facility. On the other hand, if it is only in relation to certain aspects, and the prayer in the suit is resisted on some other grounds, it becomes necessary for the Court to undertake an exercise to identify the actual area of controversy. Even at that stage, some times recourse needs to be had to certain provisions of law, which provide for an inference in a given set of facts. Chief Justice Subba Rao in his inevitable style, particularly as to brevity and relevance, has explained the whole concept together with illustration in Kundan Lal vs. Custodian, Evacuee Property (AIR 1961 SUPREME COURT 1316). Reproduction of the relevant portion of the judgment would avoid the necessity of explaining the concept further, which reads as under: “The rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act. The phrase “burden of proof” has two meanings- one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admissions, made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact.” An illustration, to drive home the point, was furnished in the judgment, as under: To illustrate how this doctrine works in practice, we may take a suit on a promissory note. Under S. 101 of the Evidence Act, “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”. Therefore, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved, the rule of presumption laid down in S.118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, S. 118 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant.” As a matter of fact, a reading of the entire judgment would be more instructive. In another judgment in Nanji & Co. vs. Jatashankar Dossa (AIR 1961 SUPREME COURT 1474), delivered with a short time, the learned Judge summed up the discussion as under: “Under the Evidence Act there is an essential distinction between the phrase “burden of proof” as a matter of law and pleading, and as a matter of adducing evidence. Under S.101 of the Evidence Act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts. Under S.101 of the Evidence Act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other.” In Raghavamma vs. Chenchamma (AIR 1964 SUPREME COURT 136), the same learned Judge explained the distinction between the burden and onus of proof, as under: “There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. In criminal cases also, the same dichotomy exists. The burden to prove the facts alleged against the accused squarely rests upon the prosecution. Where, however, the accused pleads certain facts, in his special knowledge or otherwise, which, if accepted, would extricate him from the charge, the burden rests upon him to prove them. Plea of alibi can be cited as an instance. Whether one calls it as burden of proof or onus of proof, it is to be guided by the principles mentioned above. The well known text books on the law of evidence also proceed on the same lines. If a Civil Court is attentive enough at the stage of framing of issues, much of the confusion in relation to placing the burden of proof on a particular party can be avoided. The language employed while framing an issue, in fact would disclose as to which of the parties has to prove the relevant facts. More often, the difficulty arises, if issues are framed in a casual manner, and the parties are made to litigate at a later stage, as regards discharge of burden of proof. The language employed while framing an issue, in fact would disclose as to which of the parties has to prove the relevant facts. More often, the difficulty arises, if issues are framed in a casual manner, and the parties are made to litigate at a later stage, as regards discharge of burden of proof. Secondly, identifying the actual cause of action would also have a bearing on the burden of proof. It is well known that cause of action is a bundle of facts, to be pleaded by the plaintiff, as the basis for grant of relief. It must be recognized that in a cause or litigation, not only the plaintiff but also the defendant has the knowledge of several facts. However, it is always for the plaintiff to prove the facts, which are necessary to constitute the basis for grant of the relief in his favour. The mere fact that the defendant is also aware of some of the facts, cannot bring about a situation, of requiring him to prove those facts. The reason is that if the plaintiff fails to prove such facts, he would fail and Section 102 of the Act gets attracted It is only when the facts constituting the cause of action are proved or when they are not denied, that the defendant would be under obligation to prove the facts pleaded by him, to avoid the possibility of becoming a judgment debtor. The standard of proof is another aspect. This varies from one category of cases to the other. For instance, the extent of proof, that is needed in civil cases is relatively less, when compared to the one in criminal cases. In the former, it is sufficient, if the evidence probablises the fact in issue or relevant fact, whereas in the latter, the facts pleaded are required to be proved beyond any reasonable doubt. The election petitions are treated as quasi criminal, in nature. Though not on par with the criminal cases, the standard of proof of the facts pleaded in the election petitions is relatively higher. Where corrupt practices are pleaded or disability is attached to a candidate, from contesting in future elections also, it is equated to criminal cases. The election petitions are treated as quasi criminal, in nature. Though not on par with the criminal cases, the standard of proof of the facts pleaded in the election petitions is relatively higher. Where corrupt practices are pleaded or disability is attached to a candidate, from contesting in future elections also, it is equated to criminal cases. In Jagdev Singh vs. Pratap Singh (AIR 1965 SUPREME COURT 183), the Supreme Court observed as under: “(12) It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful candidate is liable to be set aside on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail. The evidence may be examined bearing this approach to the evidence in mind.” Reverting to the facts of the case, the plea taken in all the election petitions was the one referable to Section 19(3) of the Act, which reads as under: 19(3) 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 Andhra Pradesh Panchayat Raj Act, 1994 hereinafter in this section referred to as the date of such commencement, of an additional child shall not be taken into consideration for the purpose of this section; Provided further that a person having more than two children (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 that the Government; may direct that the disqualification in this section shall not apply in respect of a person for reasons to be recorded in writing. From this, it is clear that to render an elected person as disqualified, by applying the provisions of Section 19(3) of the Act, it is necessary to plead and prove that - (a) the individual concerned had more children than two; and (b) the thirdchild was born after 30.05.1995. The mere fact that a person had more children than two by itself does not bring about the disqualification. It is only when the second limb is proved that the disqualification gets attracted. Therefore, the initial burden itself must be on both the aspects. Unfortunately, the issues framed by the Tribunal do not reflect the actual controversy nor do they determine the contours of evidence. In this regard, it is apt to refer to the Judgment of Privy Council in Robins vs. Natinal Trust Co. (1927 AC 505) The principle, in this regard, was explained in the following paragraph: “The onus is always on a person who asserts a proposition or a fact which is not self-evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion because it is self-evident that he had been born. But to assert that he was born on a certain date, if the date is material and require proof; the onus is on the person making the assertion. Now in conducting any enquiry the determining tribunal will often find that onus is sometimes on the side one contending party; sometimes on the side of the other, or as it is often expressed, that in certain circumstances the onus shifts” Here itself, it needs to be noted that a finding leading it disqualification of a candidate would haunt him for the rest of the life and he would not be eligible to contest. In a way, it can be said that the consequences are more far reaching than those flowing from the proof of corrupt practice. The reason is that the disqualification in the event of proof of a corrupt practice is for a limited period. Though the controversy appears to be simple, a relatively longer discussion is undertaken, to drive home the point that the burden to prove relevant facts squarely rested upon the persons, who filed the election petitions. The reason is that the disqualification in the event of proof of a corrupt practice is for a limited period. Though the controversy appears to be simple, a relatively longer discussion is undertaken, to drive home the point that the burden to prove relevant facts squarely rested upon the persons, who filed the election petitions. It has already been pointed out that it was not even pleaded in the respective election petitions that the elected candidates gave birth to third child after 30.05.1995. The mere fact that the petitioners herein admitted that they had children beyond two, would not attract Section 19 (3) of the Act. Before such an eventuality could take place, the respondents were under obligation to plead and prove that the third child was born after one year from 30.05.1994. The occasion to place the burden on the petitioners under Sections 102 and 103 of the Evidence Act would have arisen, if only they have either admitted of having a third child after one year from 30.05.1994 or the respondents have proved it, but a justification is pleaded by the petitioners to extricate themselves from the liability of being disqualified, such as by obtaining exemption, as provided for in Section 19 of the Act. That is not the case here. Consciously or unwittingly the Tribunal treated the principal question viz., the date of birth of the third child, as a specific fact and placed the onus of proof on the petitioners, instead of treating it as a principal issue and placing the burden on the persons, who pleaded it. When the plea itself was silent, and the respondents have not chosen even to mention the basic facts about this controversy, there was no basis for the Tribunal in placing the entire burden upon the petitioners herein and holding that they failed to discharge the burden. This is nothing but the result of misapplication of principles contained in Sections 101 to 103 of the Evidence Act. Learned counsel for the respondents relied upon two judgments rendered by the learned Single Judges of this Court. The first is the one in R. Jayalakshmamma vs. Election Tribunal-cum-Senior civil lJudge, Punganur ( 2004(5) ALD 525 ) and the second is in B. Kantha Reddy vs. MDO-cum-ADEA, Mahabubnagar (2005(5) ALD 742). In fact, the judgment in R. Jayalakshmamma’s case was followed in the subsequent judgment in B. Kantha Reddy’s case. The first is the one in R. Jayalakshmamma vs. Election Tribunal-cum-Senior civil lJudge, Punganur ( 2004(5) ALD 525 ) and the second is in B. Kantha Reddy vs. MDO-cum-ADEA, Mahabubnagar (2005(5) ALD 742). In fact, the judgment in R. Jayalakshmamma’s case was followed in the subsequent judgment in B. Kantha Reddy’s case. As in the instant case, there also the controversy was as to the disqualification under Section 19(3) of the Act. The burden of proof, in the election petition, where the ground under Section 19(3) of the Act was pleaded, was identified as one of the points in the Judgment in R. Jayalakshmamma’s case (2 supra). The entire discussion on this point, commencing from paragraph 22 onwards, was in relation to the documents in B-series and X-series and that there was no reference to evidence, if any, adduced by the election petitioner in that case. After extensive discussion and reasoning, the discussion was summed up as under: “31. The election of the petitioner was assailed on the ground that she incurred disqualification under Section 19(3) of the Act. The burden of proof lies on her because as per Section 102 of the Evidence Act, the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side. Assuming that the Respondents 2 and 3 did not produce any evidence to prove that case, it is the petitioner who would not succeed in the case if she fails to prove that her child was born within one year from the date of coming into force of the Act. As rightly pointed out by the learned Senior Counsel, the disqualification under Section 19(3) of the Act would disqualify petitioner once for all in her lifetime to seek election for any office or post under the Act. Therefore, this Court has examined the original record and is of considered opinion that the petitioner has failed to discharge the burden in accordance with law and the learned Tribunal was justified in rejecting the evidence adduced by the petitioner. Be it also noted that after parties lead their evidence burden of proof is not much of relevance and entire evidence has to be considered. The learned Tribunal did that and came to conclusion that petitioner’s third child would not have been born on 16.3.1995. Be it also noted that after parties lead their evidence burden of proof is not much of relevance and entire evidence has to be considered. The learned Tribunal did that and came to conclusion that petitioner’s third child would not have been born on 16.3.1995. After examining the evidence on record, this court does not see any valid ground to differ with learned Election Tribunal.” Not withstanding my own admiration for the relevant and extensive discussion undertaken in the said judgment, with reference to the relevant facts, and principles of law, I am unable to convince myself to fall in line with it. There is plethora of authority for the proposition that the burden of proof never shifts and that it would remain always on the party, who institutes the proceedings. In A. Raghavamma vs. Chenchamma (AIR 1964 SUPREME COURT 136), the Supreme Court held as under: “There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.” Whether one goes by the principle enunciated in Section 101 or 102 of the Evidence, it is always for the election petitioner to prove the basic facts pleaded by him. The basic facts in petition, where the disqualification referable to Section 19(3) of the Act is pleaded, include the factum of the elected candidate, having more than two children and the birth of the third child having taken, after 30.05.1995. It is only on proof of both these facts, that the onus would shift to the elected person, in case he pleaded any circumstances, which keep him outside the purview of disqualification. For instance, he may have been exempted by the Government, as provided for in the Section. That a particular individual had three children is, by itself, not at all a disqualification. Take for instance, the case of an individual, who had five children by the time the Act came into force. Mere proof of that fact does not bring about disqualification. It is only when it is proved that a child in excess of two was born after expiry 30.05.1995, that the disqualification gets attracted. Take for instance, the case of an individual, who had five children by the time the Act came into force. Mere proof of that fact does not bring about disqualification. It is only when it is proved that a child in excess of two was born after expiry 30.05.1995, that the disqualification gets attracted. Therefore, the principal question to be proved by an election petitioner, who pleads disqualification under Section 19(3) of the Act, is the date of birth of the third child and the burden to prove it squarely rests upon him. In R. Jayalakshmamma’s case (2 supra), in unequivocal terms, the burden was placed upon the person, who is said to have incurred disqualification. Even if one is to go by the text simplicitor of Section 102 of the Evidence Act, without any analysis thereof, the burden does not devolve upon the respondent in an election petition. The reason is that if no evidence is adduced in the election petition, by either side, the election petition would fail. Whatever may have been the circumstances, under which this Court placed burden of proof on the elected candidate, in the precedents referred to above, such an occasion does not arise in this case, on account of the fact that none of the respondents have discharged their initial burden to prove that the disqualification provided for under Section 19(3) of the Act is attracted vis-à-vis the petitioners. When they have failed even to plead the necessary facts, as observed by the Tribunal, there was no basis for the Tribunal to require the petitioners herein to prove anything. An election petitioner cannot be conferred the luxury of filing it and to enjoy the show, while the Tribunal records and appreciates the evidence of the person, whose election is challenged. It must not be forgotten that the Courts and Tribunals choose and in fact are required to be a bit more meticulous in election petitions to insist on the petitioners therein, to prove each and every fact pleaded by them, lest the mandate of the electorate is not over turned on half-baked facts and incomplete evidence. This Court finds that the approach adopted by the Tribunal in deciding the question of disqualification of the petitioners was totally untenable and opposed to the settled principles of evidence. The writ petitions are accordingly allowed and the impugned orders passed by the Tribunal are set aside. This Court finds that the approach adopted by the Tribunal in deciding the question of disqualification of the petitioners was totally untenable and opposed to the settled principles of evidence. The writ petitions are accordingly allowed and the impugned orders passed by the Tribunal are set aside. There shall be no order as to costs.