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2020 DIGILAW 868 (TS)

Rathod Anusuya Bai v. State of Telangana

2020-12-21

CHALLA KODANDA RAM

body2020
ORDER : Challa Kodanda Ram, J. 1. In Writ Petition No. 2820 of 2020, the petitioner invoked the jurisdiction of certiorari to call for the records relating to Order No. H/334/2019, dated 13.1.2020 of the 4th respondent-Election Tribunal and Agency Revenue Divisional Officer, Utnoor, Adilabad District and declare her election as Sarpanch of Jaithram Thanda Gram Panchayat, Utnoor Mandal, Adilabad District as null and void, while declaring the 6th respondent as elected for the said post. 2. Writ Petition No. 7836 of 2020 is filed seeking a mandamus declaring the proceedings dated 31.1.2020 of the 2nd respondent-District Collector (Panchayat Wing), Adilabad appointing the 6th respondent as Sarpanch, Jaithram Thanda, Utnoor Mandal, as illegal and contrary to the provisions of the Telangana Panchayat Raj Act, 2018 (for short, 'the Act'). 3. So far as writ of certiorari is concerned, it is well-settled that the said writ is available when the statutory authority made an order without jurisdiction or in violation of the principles of natural justice. Certiorari jurisdiction is an exception and can be invoked by filing a statutory appeal in the circumstances stated supra. 4. The petitioner in Writ Petition No. 2820 of 2020 contested for the post of Sarpanch in the elections conducted on 31.10.2019 for the Gram Panchayat Jaitram Thanda, Utnoor Mandal and was elected. The 6th respondent, who was the sole contesting candidate, filed election petition before the 4th respondent to declare the petitioner disqualified to contest the elections, in terms of Section 21(3) of the Act read with the Rules made thereunder on the ground that she gave birth to the 3rd child on 25.7.1999 after the cut-off date i.e., 31.5.1995. The 6th respondent further prayed to declare herself as elected candidate. The election petition was contested by the petitioner, who pleaded that the child was born on 25.5.1995, and prayed for dismissal of the election petition. Evidence was adduced by both the parties. While the petitioner had relied on the bona fide and Conduct certificates issued by the school authorities from 1st to 5th class and another 6th to 8th class, the 6th respondent had placed on record the bona fide Certificates issued by TWPS, Jaitramguda, S/c Narsapur-B of Utnoor Mandal and Prathibha High School, Indervelly. Evidence was adduced by both the parties. While the petitioner had relied on the bona fide and Conduct certificates issued by the school authorities from 1st to 5th class and another 6th to 8th class, the 6th respondent had placed on record the bona fide Certificates issued by TWPS, Jaitramguda, S/c Narsapur-B of Utnoor Mandal and Prathibha High School, Indervelly. Before the 4th respondent, the 6th respondent besides examining herself, had also examined one Sri Jadhav Mukund Rao S/o. Chithaman Rao, R/o. Utnoor, who is working as Single Teacher at TWPS of Jaithramguda School from 21.8.2015 and Sri Daveli Shivaji, S/o. Dathathri, Retired Teacher, 75 years, R/o. Shyampur of Utnoor Mandal and is also the founder of Prathibha School which was started in 2004 and closed in 2018 on account of there being no sufficient students. So far as the petitioner herein is concerned, she had examined herself besides examining her third son, Rathod Sachin, S/o. Gajanand. The 4th respondent called for the records from CDPO, Utnoor, Tahsildar, Utnoor and Indervelly vide letter dated 30.11.2019. 5. The witnesses examined on behalf of the 6th respondent had spoken about the third child of the petitioner and as per the bona fide certificates issued on 6.2.2019, he was born on 25.7.1999. The records placed by the Tahsildar further reveal that Mr. Rathod Sachin had submitted an Application for issue of Caste Certificate through mee-seva based on the unattested bona fide Certificates of Sri Vani Vidya Mandir, UPS Indervelly and New Pragathi Vidya High School, Adilabad. The same were not believed on account of discrepancy. The said Rathod Sachin in the cross-examination gave evasive replies. 6. The 4th respondent having considered the material placed before it, found that the third child of the petitioner was born on 24.3.1998 after the cut-off date i.e., 31.5.1995, thus, she incurred disqualification in terms of Section 21(3) of the Act. The election petition was accordingly allowed by the order dated 27.8.2019 setting aside the election of the petitioner. Challenging the said order, the petitioner filed Writ Petition No. 19832 of 2019 which was disposed of directing the 4th respondent to decide the matter afresh after hearing the parties and after considering the pleadings raised/evidence adduced by the parties within a period of four weeks from the date of receipt of a copy of the order. 7. Challenging the said order, the petitioner filed Writ Petition No. 19832 of 2019 which was disposed of directing the 4th respondent to decide the matter afresh after hearing the parties and after considering the pleadings raised/evidence adduced by the parties within a period of four weeks from the date of receipt of a copy of the order. 7. Heard learned Counsel for the petitioners Sri S. Surender Reddy and Sri Jalli Kanakaiah, Sri G. Narender Reddy, learned Standing Counsel for the Gram Panchayat, learned Government Pleader for Revenue and Sri Gajanand Chakravarthy, learned Counsel for the 6th respondent. 8. In Writ Petition No. 2820 of 2020, the petitioner challenges the impugned order on the ground that (1) the 6th respondent failed to deposit Rs. 1,000/- as security for the costs of the election petition, thus, there is violation of Rule 5(2) of the Telangana Panchayat Raj (Authority & Manner to dispose Election Petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads) Rules, 2018; (2) the Tribunal failed to follow Rule 7 while conducting inquiry even though the Rules mandate that election petition shall be inquired into by the Election Tribunal in accordance with the procedure applicable under the Code of Civil Procedure for trial of suits; (3) the 6th respondent failed to complain about the election results at the time of declaring the results; and (4) the evidence adduced by the petitioner was not properly appreciated, more particularly with respect to the aspect that the 3rd child was born before the cut-off date i.e., 31.5.1995. 9. This Court has no hesitation to reject ground No. 2 raised by the learned Counsel for the petitioner that there was no enquiry conducted for, there is ample material on record to show that respective chief-affidavits were filed and the witnesses were also subjected to cross-examination. Further, Rule 7 of the Rules does not, in verbatim, apply to the C.P.C. and that the 4th respondent has power to utilise certain provisions of CPC. Applicability of CPC is only limited as contemplated in Rule 7 and not mutatis mutandis. Thus, it is also well-settled that quasi-judicial Tribunal is not bound by all the trappings of CPC except to the extent of statute or Rules. 10. Applicability of CPC is only limited as contemplated in Rule 7 and not mutatis mutandis. Thus, it is also well-settled that quasi-judicial Tribunal is not bound by all the trappings of CPC except to the extent of statute or Rules. 10. At the outset, it may be noted that in Writ Petition No. 19832 of 2019 filed by the petitioner, the order of the Tribunal initially made on 27.8.2019 was set aside, on the ground that the same had not discussed the evidence properly and thereafter, the impugned order dated 13.1.2020 was passed. 11. Having considered the submissions of the learned Counsel for the petitioner Sri S. Surender Reddy in Writ Petition No. 2820 of 2020, and keeping in view the parameters and scope of the certiorari jurisdiction, if one examines the facts on record and the impugned order, it would be clear that the Tribunal had meticulously discussed the evidence adduced by the respective parties and found that the third child was born after the cut-off date. While the 6th respondent had placed on record the bona fide certificates issued by the TWPS, Jaitramguda for three children (1) Rathode Veena, DOB 16.4.1992, (2) Rathode Krishna, DOB 20.5.1993 and (3) Rathode Sachin, DOB 25.7.1999 alongwith the Aadhar Card of the petitioner, the hall ticket issued for the 2nd year D.Ed. Examination in April, 2019 for Rathode Sachin, S/o. Rathod Gajanand, the petitioner had placed on record the Caste Certificate and DOB Certificate of Rathode Sachin. The bona fide and Conduct Certificates issued by the Head Master, Sri Vani Vidya Mandir, Indravelly for Classes-I to V, the family details issued by the ICDS, in all these documents, the petitioner had claimed DOB of the 3rd child Rathode Sachin as 25.5.1995. The bona fide and Conduct Certificates issued by the Head Master, Sri Vani Vidya Mandir, Indravelly for Classes-I to V, the family details issued by the ICDS, in all these documents, the petitioner had claimed DOB of the 3rd child Rathode Sachin as 25.5.1995. The Tribunal, having discussed the evidence on record elaborately, after calling for original records from CDPO, Utnoor and Indravelly which reveal that Rathode Sachin DOB was 20.5.1995, the 2nd child DOB was 27.8.1992 and the 1st child DOB 30.3.1990 which were written only with pencil, hence, the same was held to be not reliable and further the file consisting of Certificate No. CND021917697576 submitted by the Tahsildar, Utnoor discloses the DOB was entered with respect to Rathode Sachin as 25.5.1995 based on the unattested bona fide Certificates submitted on behalf of the petitioner in mee-seva and further, the claim of the petitioner is that the 3rd child studied 1st to 5th classes from 2004 to 2009 based on the Headmaster's certificate of Sri Vani Vidya Mandir, UPS, Indravelly, whereas the said conduct certificate was issued on 21.6.2012 by the Head Master/Correspondent, New Pragathi Vidya High School, Adilabad with respect to Rathode Sachin stating that he studied 6th to 8th from 2004 to 2007 thus, the contradiction was evident, hence, the same was also not believed. The Tribunal, having copiously discussed the evidence on record, disbelieved the version of the petitioner and believed the version of the 6th respondent and allowed the election petition. As the Tribunal being the final fact-finding authority, and the scope of certiorari jurisdiction being limited with respect to examining the want of jurisdiction or violation of the principles of natural justice and the same not being there in the present writ petition on facts, the order of the Tribunal allowing the election petition does not warrant interference. 12. In Writ Petition No. 7836 of 2020, the petitioner herein, who is the Upa-Sarpanch of the Gram Panchayat, challenges the order dated 31.1.2020 disqualifying the petitioner in Writ Petition No. 2820 of 2020 from the post of Sarpanch under Section 21(3) and declaring the 6th respondent as elected to hold the said post. 12. In Writ Petition No. 7836 of 2020, the petitioner herein, who is the Upa-Sarpanch of the Gram Panchayat, challenges the order dated 31.1.2020 disqualifying the petitioner in Writ Petition No. 2820 of 2020 from the post of Sarpanch under Section 21(3) and declaring the 6th respondent as elected to hold the said post. The petitioner claims that in terms of Section 38 of the Act, as the Tribunal had disqualified the Sarpanch on 13.1.2020, the Collector ought to have appointed her as Sarpanch, but however, ignoring her request, the District Collector appointed the 6th respondent as the Sarpanch. 13. Sri Jalli Kanakaiah and Sri S. Surender Reddy, learned Counsel for the petitioners in both the writ petitions during the arguments, raised an interesting ground that the 6th respondent could not have been declared as elected candidate as her election petition seeking disqualification of the petitioner in Writ Petition No. 2820 of 2020 was not on the ground of committing any corrupt practices as laid down under Section 211 and on a fair reading of Rules 13 and 15, declaration of elected candidates election as void does not automatically empower the Tribunal to declare the contesting candidate as elected. Elaborating on the same, the learned Counsel would submit that to put it in other words, it is the case of the petitioners that only in cases where the election is challenged on the ground of corrupt practices, the elected candidate adopting corrupt practices in the event of election petition being allowed, the election petitioner cannot be declared as elected. 14. To fortify their arguments, learned Counsel Sri Jalli Kanakaiah relied on the judgments reported in (1) Kalyan Singh Chouhan v. C.P. Joshi, 2011 (3) ALD 90 (SC); (2) G. Vanaja G. Shivajothi v. Bhanumati, 2012 (6) ALD 759 (DB) and (3) Prakash Khandre v. Dr. Vijay Kumar Khandre, (2002) 5 SCC 568 ; Sri Surender Reddy relied on K. Venkat Narasimha Reddy v. Y. Sathi Reddy, 2008 (5) ALD 703 and Sri Gajanand Chakravarthy on R. Jayalakshmamma v. Election Tribunal-cum-Senior Civil Judge, 2004 (5) ALD 525 : 2004 (5) ALT 400 ; Pagadala Ravi v. Gauravaram Prabhakar Reddy, W.P. Nos. 8200 and 10037 of 2018 and Vishwnatha Reddy v. Konappa Rudrappa Nadgouda, AIR 1969 SC 604 . 15. 8200 and 10037 of 2018 and Vishwnatha Reddy v. Konappa Rudrappa Nadgouda, AIR 1969 SC 604 . 15. On the other hand, Sri V. Mallik, learned Counsel assisted by Sri Gajanand Chakravarthi supported the impugned order and further, submitted that the judgments relied on by the petitioners have no application and are distinguishable. The learned Counsel has drawn the attention of this Court to the Constitution Bench judgment of the Supreme Court in Konappa's case (supra). 16. The entire controversy, in the present cases, revolves round the Tribunal considering Rules 12, 13 and 14 of the Rules, which read thus: 12. If in the opinion of the Election Tribunal, (a) that on the date of his election, a Returned Candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Act, or (b) that any corrupt practice as laid down under Section 211 of the Act has been committed by a Returned Candidate or his election agent or by any other person with the consent of the Returned Candidate or his election agent, or (c) that any nomination has been properly rejected, or (d) that the result of the election, insofar as it concerns a Returned Candidate has been materially affected,-- (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice, committed in the interest of the Returned Candidate by an Agent other than his election agent, with the connivance of the Returned Candidate, or (iii) by any improper reception, refusal, or rejection of any vote, or the reception of any vote which is void, (iv) by any non-compliance with the provisions of the Act, or any Rules or Orders made under the Act. (A) The Election Tribunal shall declare the election of the Returned Candidate to be void. (B) If the Election Tribunal holds the Returned Candidate guilty under clause (b) and clause (d)(ii) of this rule, the Election Tribunal shall in addition to declare the Election of the Returned Candidate as void, shall also declared that the Returned Candidate shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order. 13. 13. If any person who has lodged a petition, as in addition to calling in question, the election of the Returned Candidate, claimed a declaration that he himself, or any other candidate, has been duly elected and the Tribunal is of the opinion- (a) that in fact, the petitioner or such other candidate, received the majority of the valid votes, or (b) that, but for the votes obtained by the Returned Candidate, by corrupt practices, the petitioner or such other candidate would have obtained, a majority of the valid votes, the Election Tribunal shall after declaring the election of the Returned Candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected. 15. (i) At the conclusion of the inquiry, the Election Tribunal shall declare whether the election of the Returned Candidate or candidates is void under Rules 12 and 13. (ii) If he declares the election of the Returned Candidate or Candidates void, he shall further pass an order either-- (a) declaring that any other party to the petition who has under these rules claimed the seat has been duly elected; or (b) order a fresh election, (iii) The order of the Election Tribunal under sub-rules (i) and (ii) shall be final; (iv) A copy of every order under sub-rule (1) or sub-rule (ii) shall be communicated to the Executive Authority of the Gram Panchayat, Mandal Parishad and Zilla Parishad, as the case may be, and the Election Authority. Analysis of Judgments: R. Jayalakshmamma v. Election Tribunal-cum-Senior Civil Judge's case: In this case, the learned Single Judge of this Court in Para 37 held that the Tribunal considering Rules 12, 13 and 15 while holding that in cases falling under Rule 13, the Election Tribunal has no option but to declare a candidate, who had received majority valid votes, as duly elected. That was a case where the election was challenged on the ground of the elected candidate having more than two children. In the said case, it may be noted that there were more than two candidates, who contested the election. After analyzing various judgments, the learned Single Judge had opined that on a fair consideration of Rule 13, after eliminating the disqualified candidates' votes from among the other candidates whoever has secured more valid votes, such candidate should be declared as elected candidate. After analyzing various judgments, the learned Single Judge had opined that on a fair consideration of Rule 13, after eliminating the disqualified candidates' votes from among the other candidates whoever has secured more valid votes, such candidate should be declared as elected candidate. This judgment was followed once again in Writ Petition Nos. 8200 and 10037 of 2018. In that case also, there are more than two candidates. G. Vanaja G. Shivajothi v. Bhanumati's case: In this judgment, the Division Bench, following the ratio laid down in Prakash Khandre's case (supra), in the facts of the said case, which is a matter arising under GHMC Act, had held that on setting aside the elected candidate's election, the candidate from among the other candidates, who secured more votes cannot be declared as an elected candidate. It may also be noted that there are more than two candidates. Prakash Khandre v. Dr. Vijay Kumar Khandre's case : this was a case where more than two candidates were in contest, allowing of an election petition setting aside the elected candidate from among the other candidates highest member, the person secured highest votes cannot automatically be declared as elected candidate. Further the Act/Rules should provide for such contingency. Without there being Rule/Act provided, such declaration cannot be made. Kalyan Singh Chouhan v. C.P. Joshi's case : This judgment is in relation to the general principles with regard to trial of election petitions and the relevant factors which are required to be taken into consideration in trying the election petitions. 17. In the present case on hand, there is no dispute that the election was not challenged on the ground of there being any corrupt practices and the same was filed to disqualify the elected candidate to contest the elections, as she was having more than three children, third child was born after the cut-off date, hence, she had incurred disqualification under Section 21(3) of the Act. 18. The extreme proposition urged by the learned Counsel Sri Jalli Kanakaiah that only in cases where election is challenged on the ground of corrupt practices alone the Election Tribunal can declare other contesting candidate even having received highest number of valid votes cannot be declared as elected, is liable to be rejected. 18. The extreme proposition urged by the learned Counsel Sri Jalli Kanakaiah that only in cases where election is challenged on the ground of corrupt practices alone the Election Tribunal can declare other contesting candidate even having received highest number of valid votes cannot be declared as elected, is liable to be rejected. As a matter of fact, the judgments of the learned Single Judge to the extent of the said view held by the learned Single Judge in R. Jayalakshmamma's case (supra), so far as this aspect is concerned, deserves to be followed and there is no reason for this Court to take a contra view. The Scheme of the Rules gives ample power to the Election Tribunal in Rule 13 to declare the candidate challenging the election as successful candidate, even in cases where the election is not challenged on the ground of corrupt practices. The Rule empowers the Election Tribunal. The crux of the argument of the learned Counsel Sri Jalli Kanakaiah was based on the judgment of the Division Bench quoting the judgment of the Supreme Court in Prakash Khandre's case (supra), to the effect that the Election Tribunal cannot declare one among the contesting candidate to be a Sarpanch merely because election petition is to be allowed. A careful reading of the judgment in Prakash Khandre's case (supra), as pointed out by the learned Counsel Sri V. Mallik would show that the said case is a case where more than two candidates were in fray. While the Court in Prakash Khandre's case (supra), had held that declaration of a contesting candidate, who succeeds in the election petition is not automatic, the said observations were in the context of whether there were more than two candidates participating in the election process. The dicta in the said case cannot be read in isolation and the same has to be read with the orders in review of the Constitution Bench judgment of the Supreme Court in Konappa's case (supra). We may notice the dicta of the Supreme Court in Konappa's case (supra): "..........When there are only two contesting candidates and one of them is under a statutory disqualification, votes; cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. We may notice the dicta of the Supreme Court in Konappa's case (supra): "..........When there are only two contesting candidates and one of them is under a statutory disqualification, votes; cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded; and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate." 19. A close reading of Prakash Khandre's case (supra), discloses that there were total five contesting candidates and the Supreme Court had in fact extracted in Para 17 the ratio laid down in Konappa's case (supra), which is reproduced above. In G. Vanaja's case (supra), there was no occasion for the Division Bench to consider the ratio laid down in Konappa's case (supra), as in the said case focus was on the facts of that case. 20. In those circumstances and in the light of the authoritative pronouncement of the Constitution Bench of the Supreme Court in Konappa's case (supra), there is no illegality in the declaration of the successful candidate as a Sarpanch and the same does not warrant any interference. 21. This Court is not in agreement with the observations expressed by the learned Single Judge in R. Jayalakshmamma's case (supra), as they run contra to the dicta of the Constitution Bench of the Supreme Court in Konappa's case (supra). 22. Both the writ petitions are accordingly, dismissed. No costs. 23. The persistent effort made in contesting the case by all the learned Counsel especially Sri Gajanand Chakravarthy is appreciable. 24. Consequently, the miscellaneous petitions, if any stand closed.