THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY Writ Petition No.16174 of 2007 ORDER: Elections to the Gram Panchayat of Morampalli Banjar were held on 18.08.2006. The petitioner, 2nd respondent herein and two others, by name Borra Subhadra and Bukya Gomili filed their nominations, for the office of Sarpanch. On an objection raised by the 2nd respondent that the petitioner incurred disqualification under Section 19(3) of the Panchayat Raj Act (for short ‘the Act’), the nomination of the petitioner was rejected by the Election Officer, 3rd respondent herein. An appeal preferred by the petitioner to the Revenue Divisional Officer was allowed and her nomination was accepted. The petitioner secured 1,924 votes and the 2nd respondent, 1,384 votes. The other two candidates got 861 and 104 votes respectively. The petitioner was declared elected. The 2nd respondent filed an election petition before the Election Tribunal-cum-Agency Divisional Officer, Paloncha, and the same was taken up as R.C.No.D/1896/2006. The only ground pleaded in the election petition was that the petitioner incurred disqualification under Section 19(3) of the Act, in view of the fact that she had more children than two. The petitioner denied the allegation and stated that she did not incur any disqualification. An objection was raised as to the every competence of the Tribunal to entertain the election petition. Through its order, dated 30.06.2007, the Tribunal allowed the election petition and had set aside the election of the petitioner. A direction was issued to conduct election to the office of Sarpanch. The same is challenged in this writ petition. Sri C.Damoder Reddy, learned counsel for the petitioner submits that the burden to prove that the petitioner incurred disqualification squarely rested upon the 2nd respondent and the latter did not even enter the witness box. He contends that the Election Tribunal did not follow the prescribed procedure and it has not even prepared the appendix of evidence. He also contends that the election of the petitioner was set aside, only on the basis of the evidence of an Anganwadi Worker, who has noting to do with the maintenance of records, and by placing the burden upon the petitioner. Sri M.Rajamalla Reddy, learned counsel for the 2nd respondent submits that his client had placed sufficient material before the Tribunal to substantiate her contention that the petitioner incurred disqualification under Section 19(3) of the Act and though adequate opportunity was given to the petitioner, she did not prove otherwise. At the time of commencement of the election programme itself, the 2nd respondent raised an objection to the nomination filed by the petitioner, stating that the latter incurred disqualification, and her nomination was rejected. The appellate authority allowed the appeal and the petitioner remained in the fray. The 2nd respondent challenged the election of the petitioner on the same ground viz., disqualification under Section 19(3) of the Act. The petitioner resisted the election petition on two grounds viz., lack of jurisdiction of the Tribunal and by denying the plea as to disqualification. The Tribunal discussed the preliminary objection at length and held that it has jurisdiction to decide the matter. The petitioner did not seriously contest that finding and this Court is not inclined to take any different view. Now it needs to be seen as to whether the finding recorded by the Tribunal that the petitioner incurred disqualification can be sustained in law. Section 19(3) of the Act directs that a person, who has more than two children, shall not be entitled to contest in the election or to continue in an elected office. The first proviso is to the effect that in case, the third child is born within one year from the date on which the Act came into force, the disqualification does not get attracted. There is also a provision for exempting an individual from operation of Section 19(3) of the Act. The petitioner did not plead that she was exempted by the Government from the purview of Section 19(3) of the Act. Since the 2nd respondent wanted that the election of the petitioner be set aside, the burden squarely rested upon her to prove the relevant facts. The Rules made under the Act mandate that the procedure for recording of evidence, receiving of documents, prescribed under C.P.C. would apply to the election petitions also. The 2nd respondent could have proved the contents of the election petition only by figuring as witness. The pleadings in a case can be said to have been proved, if only they are spoken to by the plaintiff/petitioner or anyone on his/her behalf with specific authorization. The record discloses that the 2nd respondent did not depose as a witness at all. Two persons were examined as witnesses. One of them is an Anganwadi Worker and through her, certain documents were filed. An Anganwadi worker is neither an authority to issue records relating to the date of birth of children, nor the one, who is supposed to have custody of such records. Exs.A.7 and A.8 are said to have been marked through the Anganwadi worker. The other witness is the Medical Officer of the Primary Health Center. Through him, Exs.A.1 to A.6 were marked and the Tribunal itself eschewed the entire oral and documentary evidence of the Medical Officer from consideration, on the ground that there are inconsistencies. The petitioner states that she was not given opportunity to adduce her evidence. The order passed by the Tribunal does not disclose as to when the evidence on behalf of the 2nd respondent was closed and whether the petitioner failed to adduce her evidence, in spite of being given an opportunity. The Tribunal rested its findings against the petitioner on the basis of the evidence of the Anganwadi Worker and the observations made by this Court in B.Kantha Reddy vs. MDO-cum-ADEA, Mahabubnagar[1]. It proceeded on the assumption that it was for the petitioner to prove that she did not incur disqualification. When the 2nd respondent and no one authorized by her have entered the witness box, the petitioner cannot be expected to lead any evidence. This Court in W.P.No.1616 of 2007 and batch 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 wants such a declaration. The purport of Sections 101 to 103 of the Evidence Act and the judgments of the Supreme Court was considered. Obviously on account of it not being a regular Court, the Tribunal though has undertaken extensive discussion, did not bestow its attention to these basic principles. A finding that a candidate had incurred disqualification under Section 19(3) of the Act would render the candidate unfit to contest in such an election for the rest of his/her life. Therefore, the findings in this regard must rest on a very solid and strong foundation. This Court is of the view that the matter needs to be considered afresh by the Tribunal, after giving opportunity to the parties. Hence, the writ petition is allowed and the order in R.C.No.D/1896/2006 is set aside. The matter is remanded to the Tribunal for fresh consideration and disposal, after giving opportunity to both the parties to adduce evidence. The petitioner shall not be entitled to raise any objection as to the maintainability of the election petition. The Tribunal shall endeavour to dispose of the election petition within a period of three (3) months from the date of receipt of this order. There shall be no order as to costs. ________________________ (L.NARASIMHA REDDY,J) Date: 28.11.2008 JSU THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY Writ Petition No.16174 of 2007 Date: 28.11.2008 JSU [1] 2005(5) ALD 742