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2009 DIGILAW 39 (AP)

Eesam Vijaya v. Venumula Sathamma

2009-02-04

L.NARASIMHA REDDY

body2009
JUDGMENT : Elections to the Gram Panchayat, Survail, were held on 02-08-2006. The petitioner and respondents 7 and 8 contested for the office of Sarpanch. The petitioner was declared elected as Sarpanch, as she secured highest number of votes. The 1st respondent raised an objection for the candidature of the petitioner, on the ground that the latter had more than two children, and thereby incurred disqualification under Section 19(3) of the A.P. Panchayat Raj Act, 1994, (for short 'the Act'). After the results were declared, she filed O.P.No.16 of 2006 before the Election Tribunal-cum-the Court of Junior Civil Judge, Nalgonda (for short 'the Tribunal'). Through its order dated 03-11-2008, the Tribunal allowed the O.P., and had set aside the election of the petitioner. The 1st respondent was declared elected as Sarpanch. The said order is challenged in this writ petition. Sri V. Hari Haran, learned counsel for the petitioner, submits that the 1st respondent failed to prove that the petitioner incurred disqualification. He contends that though it was proved through RW-4, that Eesam Gowthami, who is said to be the daughter of the petitioner, is, in fact, the daughter of RW-4, the Tribunal ignored the said fact. He submits that the Tribunal has placed the burden upon the petitioner, to prove that she does not incur disqualification and such an approach is contrary to settled principles of law. He places reliance upon the judgment of this Court in Golla Jayamma v. District Collector ( 2009 (1) ALD 570 ). Sri Ravishankar Jandhyala, learned counsel for the 1st respondent, filed caveat. He submits that his client has proved beyond any pale of doubt, through oral and documentary evidence, that the petitioner incurred disqualification, and that the order passed by the Tribunal does not suffer from any legal or factual infirmity. He contends that the evidence of RW-4 is not trustworthy, much less, the documents, Exs.B-1 to B-6, filed by her. The only ground urged by the 1st respondent, to challenge the election of the petitioner is that, the latter incurred disqualification under Section 19(3) of the Act. She pleaded that the petitioner is the mother of three children, viz., Gowthami, Haritha and Venkatesham. There is no dispute, as to the date of birth of Venkatesham, i.e. 23-05-2002. In case, the petitioner is the mother of the three children, the disqualification contemplated under Section 19(3) of the Act operates against her. She pleaded that the petitioner is the mother of three children, viz., Gowthami, Haritha and Venkatesham. There is no dispute, as to the date of birth of Venkatesham, i.e. 23-05-2002. In case, the petitioner is the mother of the three children, the disqualification contemplated under Section 19(3) of the Act operates against her. The petitioner specifically pleaded that Gowthami is the daughter of his brother-in-law i.e., brother of her husband. Therefore, much controversy turned around, as to whether Gowthami is the daughter of the petitioner, at all. Though other grounds were also urged, the 1st respondent did not concentrate on the same, and both the parties went to trial on the only issue. The trial Court framed the point for consideration as under: "Whether the respondent No.1 is having 3 children as alleged by the petitioner? If so, whether the election of respondent No.1 is hit by section 19(3) of A.P. Panchayat Raj Act, 1994 ? To prove her case, the 1st respondent examined PWs 1 to 4 and filed Exs.A-1 to A-6. On her part, the petitioner examined RWs 1 to 4, and filed Exs.B-1 to B-6. The Tribunal allowed the O.P. Therefore, it needs to be seen, as to whether the findings recorded by the Tribunal are correct. The 1st respondent, as PW-1, repeated her pleadings in the O.P. She also filed Exs.A-1, the voter's list, and Ex.A-2, the nomination deposit receipt. They are not of much relevance for the issue. Ex.A-3 is the family members certificate issued by the Mandal Revenue Officer. In this, Gowthami was also shown as the daughter of the petitioner and her husband. Ex.A-4 is a bonafide certificate of Haritha. So is the case with Ex.A-5, the birth certificate of Harshavardhan. Ex.A-6 is the letter addressed by the Superintendent of Maternity Hospital, Hyderabad, to the petitioner, along with the case sheet. By deposing as RW-1, the petitioner clearly stated that Gowtami is not her daughter. On the other hand, she asserted that the girl is the daughter of Easam Ramachandraiah, RW-4, her brother-in law. The original household card was marked as Ex.B-1. Similar household card of RW-4 was marked as Ex.B-2. Ex.B-3 is the bonafide certificate issued in respect of Gowthami. Ex.B-4 is her Secondary School Certificate, and Ex.B-5 is the conduct certificate, in respect of Gowthami. Ex.B-6 is her Intermediate Certificate. The original household card was marked as Ex.B-1. Similar household card of RW-4 was marked as Ex.B-2. Ex.B-3 is the bonafide certificate issued in respect of Gowthami. Ex.B-4 is her Secondary School Certificate, and Ex.B-5 is the conduct certificate, in respect of Gowthami. Ex.B-6 is her Intermediate Certificate. If these are taken on their face value, it stands established that Gowthami is the daughter of RW-4. The gist of the evidence on record has been indicated in the preceding paragraphs. It can be said that, by repeating the contents of the election petition, and by filing Exs.B-1 to B-6, the 1st respondent had partly discharged her burden. However, once the 1st respondent examined RWs 1 to 4, and placed before the Court, the documentary evidence, in the form of Exs.A-1 to A-6, the burden squarely rested upon the 1st respondent, to prove her allegations. The nature of proof required in matters of this nature, and the discharge of burden thereof, was dealt with by this Court in Golla Jayamma's case (supra). It was held that the burden to prove that an elected candidate had incurred disqualification under Section 19(3) of the Act, squarely rests upon the person, who pleads the disqualification. Reference was made to the principle underlying Sections 101 and 103 of the Evidence Act, 1872. The said principle squarely gets attracted to the facts of this case. It emerges that the 1st respondent did not discharge her burden. When the petitioner as well as her husband are sought to be disqualified for the rest of their lives, from contesting or holding the offices, the proof ought to have been perfect, and not equivocal in nature. The learned counsel for the 1st respondent submitted that though his client wanted to confront RW-4, with some other evidence, she was not given an opportunity, and even now, it can be extended. This Court is of the view that, in case the 1st respondent can prove that Gowtami is not the daughter of RW-1, and on the other hand, she is the daughter of the petitioner herein, the petitioner deserves to be disqualified. For this purpose, the matter needs to be remanded. Hence, the writ petition is allowed, and the order dated 03-11-2008 is set aside. For this purpose, the matter needs to be remanded. Hence, the writ petition is allowed, and the order dated 03-11-2008 is set aside. The matter is remanded to the Tribunal for fresh consideration and disposal, as to the question, whether Gowtami, named in the Election Petition, is the daughter of the petitioner herein, as alleged by the 1st respondent, or RW-4, or the daughter of RW-1, as pleaded by the 1st respondent herein. It shall be open to the parties to adduce additional evidence. The Tribunal shall dispose of the matter within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.