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2008 DIGILAW 934 (AP)

Gavara Satti Babu v. Gavara Siva Sankar Rao

2008-10-31

L.NARASIMHA REDDY

body2008
JUDGMENT : Elections to the Gram Panchayat of Gulivandada Village, Kothavalasa Mandal, Vizianagaram District were held on 02.08.2006. The petitioner and respondents 1 to 3 contested for the office of Sarpanch. The petitioner was declared elected. The 1st respondent filed E.O.P.No.2 of 2006 before the Election Tribunal-cum-Junior Civil Judge, Kothavalasa, challenging the election of the petitioner. It was pleaded that the petitioner held the office of President of the Water Users Association (for short ‘the Association’) of Venkayyacheruvu of the Village and thereby, incurred disqualification under Section 18 of the A.P.Panchayat Raj Act (for short ‘the Act’). It was alleged that the Returning Officer, 5th respondent herein, rejected the nomination of the petitioner, whereas the Deputy District Election Authority i.e., Revenue Divisional Officer, Vizianagaram, allowed the appeal preferred by the petitioner and accordingly, the nomination was accepted. No other grounds were urged. The petitioner opposed the E.O.P., by stating that though he was the President of the Association, he submitted resignation to that office on 19.07.2006 itself and that it was accepted by the Superintending Engineer of the Irrigation Department. He further contended that as on the date of scrutiny, he ceased to be the President of the Association and the appellate authority was also convinced about his eligibility to contest in the election. Through its order, dated 09.09.2008, the Tribunal allowed the O.P. Apart from setting aside the election of the petitioner, it held that the 1st respondent be declared elected. The petitioner challenges the order of the Tribunal. Sri D. Krishna Murthy, learned counsel for the petitioner submits that the Tribunal relied upon Section 32 of the Andhra Pradesh Farmers’ Management of Irrigation Systems act, 1997 Employees Managing of Irrigation System Act 1997 (for short ‘the 1997 Act’), as it stood before amendment, though the elections were held subsequent thereto. He contends that even if the petitioner held the office of President of the Association, as on the date of nomination, once the rejection is accepted before the date of scrutiny, the disqualification cannot be attached. Learned counsel submits that the Tribunal had misread the evidence, misapplied the provisions of law and had set aside the election of the petitioner, contrary to the provisions of the 1997 Act and the Rules made thereunder. The 1st respondent filed a caveat and on his behalf, Sri Ravindra Babu took notice and advanced extensive arguments. Learned counsel submits that the Tribunal had misread the evidence, misapplied the provisions of law and had set aside the election of the petitioner, contrary to the provisions of the 1997 Act and the Rules made thereunder. The 1st respondent filed a caveat and on his behalf, Sri Ravindra Babu took notice and advanced extensive arguments. He contends that admittedly, the petitioner held the office of President of the Association, as on the date of filing of nomination, and it was not even mentioned by him that he submitted resignation to that office, much less, that it was accepted. He submits that the petitioner did not choose to file the letter of resignation or the proceedings, through which it was accepted, in the evidence. He further submits that the 1997 Act had only stated that the resignation of an elected office bearer shall be accepted by the prescribed authority and no Rules have been framed in this regard. Learned counsel pleads that unless and until the Superintending Engineer is prescribed as the authority to accept resignation, the so-called proceedings of acceptance, dated 19.07.2006, cannot be taken into consideration. It is also urged that the Returning Officer, who deposed as R.W.5, categorically stated that the petitioner did not even mention that he submitted resignation to the office of President of the Association. Learned Government Pleader for Panchayat Raj has also advanced arguments, on the same lines. The District Election Authority notified the following programme for election to the Gram Panchayat. 15.07.2006 - filing of nominations 19.07.2006 - last date for submission of nominations 20.07.2006 - scrutiny of nominations 21.07.2006 - objections to the nominations 22.07.2006 - disposal of objections 23.07.2006 - withdrawal of nominations and publication of valid nominations 02.08.2006 - date of poling The petitioner and respondents 1 to 3 submitted nominations. During the course of scrutiny, the 1st respondent raised an objection that the petitioner held the office of President of the Association and thereby, incurred disqualification under Section 18 of the Act. Since the petitioner did not dispute that he held the office and there was nothing on record to disclose that he submitted resignation to that office or that it was accepted, the 5th respondent rejected the nomination of the petitioner, through order, dated 20.07.2006. The petitioner preferred an appeal before the Deputy District Election Authority, Vizianagaram. Since the petitioner did not dispute that he held the office and there was nothing on record to disclose that he submitted resignation to that office or that it was accepted, the 5th respondent rejected the nomination of the petitioner, through order, dated 20.07.2006. The petitioner preferred an appeal before the Deputy District Election Authority, Vizianagaram. He contended that on 19.07.2006, he submitted resignation to the Superintending Engineer, Irrigation Department, Visakhapatnam and vide proceedings, dated 19.07.2006, the latter accepted his resignation. Taking note of this, the appellate authority had set aside the order passed by the 5th respondent rejecting the nomination and accordingly, directed that the nomination be accepted. Thereby, the name of the petitioner came to be included in the list of valid nominations. In the poling, that was held on 02.08.2006, the petitioner secured 426 votes and the 1st respondent, 299 votes. Naturally, the petitioner was declared elected. In the election petition filed by the 1st respondent, only one ground was urged viz., that the petitioner incurred disqualification under Section 18 the Act. He pleaded that the petitioner was holding the office of president of Association, as on the date of submission of nomination. In proof of this plea, a certificate was issued by the Irrigation Department of the concerned area, to the effect that the petitioner continued to hold the office, was filed. The petitioner, on the other hand, pleaded that his resignation was accepted on 19.07.2006 itself. On behalf of the respondents, P.Ws.1 to 3 were examined. The order of the appellate authority was marked as Ex.A.1 and the letter issued by the Irrigation Department, certifying that the petitioner continued to hold the office of President was marked as Ex.A.2. The petitioner deposed as R.W.1. The evidence of one Mr.Gandreddi Ramana examined on his behalf was eschewed. R.Ws.3 and 4 were examined on his behalf. The 5th respondent herein deposed as R.W.5. The Tribunal framed the following issues for its consideration: 1. Whether the acceptance of resignation by the first respondent tendered to the Superintendent Engineer is valid? 2. Whether the petitioner is entitled for declaration of the election of the first respondent as Sarpanch of Gram Panchayat Gulvindada as void? 3. Whether the petitioner is entitled for declaration as legally elected Sarpanch of Gulivindada Gram Panchayat? It answered all of them against the petitioner herein. 2. Whether the petitioner is entitled for declaration of the election of the first respondent as Sarpanch of Gram Panchayat Gulvindada as void? 3. Whether the petitioner is entitled for declaration as legally elected Sarpanch of Gulivindada Gram Panchayat? It answered all of them against the petitioner herein. Therefore, it needs to be seen as to whether (a) the petitioner incurred disqualification under Section 18 of the Act from being elected as Sarpanch of the Village; and (b) the order passed by the Tribunal in E.O.P.No.2 of 2006 suffers from any legal or factual infirmity. Section 18 of the Act is a comprehensive provision, taking in its fold, the positions in various Government and semi-Government organizations, as constituting disqualification for a candidate, to contest in the election, or to continue in the elected office. It is not in dispute that the petitioner held the office of President of the Association as on the date of filing of the nomination and that the same is covered by Section 18 of the Act. He submitted his nominations on 19.07.2006, and did not make any mention of the office held by him, much less, did he state that he submitted resignation. It is only when the 1st respondent procured a letter from the Irrigation Department to the effect that the petitioner continued to hold the office of President of the Association that he initiated steps for submission of resignation. However, by the time the 5th respondent took up scrutiny of nominations, there was neither any letter of resignation nor acceptance thereof. Though an attempt is made to plead that the resignation was accepted on 19.07.2006 by the Superintending Engineer and a copy thereof was sought to be presented before the 5th respondent, the evidence on record does not support this plea. In categorical terms, R.W.5 stated that nothing was placed before him. The evidence of the petitioner in the cross- examination is rather inconsistent, self-contradictory and vague. He said that he submitted his letter of resignation to the Head Master. At another place, he said that he filed the letter of resignation before the Returning Officer, while filing the nomination. According to him, the Superintending Engineer or the Executive Engineer has no supervisory powers over the President of the Water Users Association. He admitted that nobody had given him a letter, stating that the letter of resignation was accepted. At another place, he said that he filed the letter of resignation before the Returning Officer, while filing the nomination. According to him, the Superintending Engineer or the Executive Engineer has no supervisory powers over the President of the Water Users Association. He admitted that nobody had given him a letter, stating that the letter of resignation was accepted. He pleaded ignorance as to who accepted his resignation. He also admitted that till the completion of election of panchayat, he did not hand over the charge of President of the Association, and that he did not make any mention of tendering resignation, in the nomination papers. R.W.1 is a Member from Ward No.2 and R.W.4 is the election agent of the petitioner. Both of them tried to depose that R.W.5 refused to receive the letter of acceptance of resignation. However, in the cross-examination, they revealed their ignorance about the proceedings before the 5th respondent. Further, R.W.5 categorically stated that the petitioner did not file any document relating to resignation before him and nothing contrary was elicited in the cross- examination. On rejection of nomination by R.W.5, the petitioner approached the appellate authority. The appeal was allowed and the nomination of the petitioner was accepted. The order of the appellate authority simply makes a reference to the acceptance of resignation by the Superintending Engineer, vide proceedings dated 19.07.2006. In the memorandum of grounds of appeal presented before the appellate authority, it is mentioned that the original as well as the xerox copies of letter of acceptance are filed along with the appeal. It clearly discloses that the original and copy of the letter of acceptance of resignation were not presented before respondent No.5 at all. The order of the appellate authority is very brief and it was passed almost on one sided presentation of the case. It was not verified as to whether the Superintending Engineer is the competent authority to accept the resignation. Assuming that the resignation to the office of President of the Association was accepted, before the last date for rejection of nominations, it has to be verified as to whether there was such an acceptance. Section 32 of the 1997 Act, as amended by Act 7 of 2003, reads as under: 32. Assuming that the resignation to the office of President of the Association was accepted, before the last date for rejection of nominations, it has to be verified as to whether there was such an acceptance. Section 32 of the 1997 Act, as amended by Act 7 of 2003, reads as under: 32. Resignation:- (1) A Member or President or Vice-President or Chairman or Vice-Chairman of the Managing Committee of a farmers organization may resign his office through a letter sent by registered post or tendered in person to the authority designated and it shall be processed and disposed of in the manner prescribed. From this, it becomes evident that it is only the authority prescribed under the Rules framed under the Act, that is competent to accept the resignation. Learned counsel for the petitioner is not able to cite any Rule, which confers the power on any authority to accept the resignation of the President of the Association. Even if one goes by the analogy of the provisions in the General Clauses Act, it is the appointing authority, which is competent to accept resignation or to dismiss an appointed person. Therefore, in the absence of any prescribed authority, the only agency, that could have accepted the resignation, was the general body, which elected the petitioner. Admittedly, the resignation was not even presented before the general body. Therefore, there was no valid and proper acceptance of the resignation of the petitioner. The mere fact that the Tribunal had referred to a provision, which stood before amendment, does not make much of difference. This Court had given ample opportunity to the petitioner to substantiate his contention that his resignation was accepted. He has not chosen to file the letter of resignation or the proceedings, through which it is said to have been accepted, in his evidence before the Tribunal. By operation of Sections 102 and 103 of the Evidence Act, the burden to prove that the resignation was accepted squarely rested upon the petitioner. The reason is that he did not dispute the factum of his having been elected as the President of the Association or his holding the office as on the date of filing nomination. By operation of Sections 102 and 103 of the Evidence Act, the burden to prove that the resignation was accepted squarely rested upon the petitioner. The reason is that he did not dispute the factum of his having been elected as the President of the Association or his holding the office as on the date of filing nomination. Obviously, it was for the petitioner to prove otherwise, either on account of the likelihood of his facing adverse judgment, if no evidence is adduced (Sec. 102), or the fact being in his special knowledge (Sec. 103). Not only he failed to place the relevant proceedings before the Tribunal but also failed to adduce the evidence of the authority, who is said to have accepted the resignation. Therefore, there was a clear failure on the part of the petitioner to discharge his onus or burden, as one may choose to call it. The inescapable conclusion is that the petitioner incurred disqualification under Section 18 of the Act, for contesting to the office of Sarpanch. Coming to the second question, the Tribunal had discussed oral and documentary evidence extensively and had arrived at the correct and proper conclusion. It has already been pointed out that the petitioner did not make any endeavour to prove the facts, which are in his special knowledge. If one goes by the record strictly, there existed a situation of the petitioner holding the office of President of the Association, as on the date of filing nominations and there is nothing to indicate that his resignation was either submitted or accepted. The Tribunal made a reference to Section 32 of the 1997 Act, obviously because the amended provision was not brought to its notice. Things would have been different altogether, had it been a case, where the petitioner complied with the amended provision and the judgment was rested upon the provisions, as they stood before amendment. In the previous paragraphs, it was mentioned that as of now, there is no authority or provision of law, which confers power upon the Superintending Engineer to accept the resignation of the President of Association. Therefore, even if one blinks at the absence of the evidence on the part of the petitioner and proceeds on the assumption that the Superintending Engineer accepted the resignation, that would not wipe away the disqualification. Therefore, even if one blinks at the absence of the evidence on the part of the petitioner and proceeds on the assumption that the Superintending Engineer accepted the resignation, that would not wipe away the disqualification. Therefore, this Court is not inclined to interfere with the order passed by the Tribunal in the E.O.P.No.2 of 2006. The writ petition is, accordingly, dismissed. There shall be no order as to costs.