IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 12190 of 2008 Between: Thathireddy Sandhya Rani, W/o. Dhasaradha Reddy, (Elected 11th Ward Member for Kanigiri Grama Panchayat R/o. Kasireddy Bazar, kothapet, Kanigiri, Prakasam District. ..... PETITIONER AND 1 The Election Commissioner for the State of A.P., Hyderabad. 2 The Secretary, Panchayat Raj Department, Hyderabad. 3 The Collector cum District Election Authority, Prakasam District, Ongole. 4 The Revenue Divisional Officer cum Deputy Election Authority, Kandukur, Prakasam District. 5 Mandal Parishad Development officer cum Mandal Election Authority, Kanigiri Mandal, Prakasam District. 6 The Stage-I-Officer, held by Smt. S.Lydiyamma, Project Director, ICDS, Ongole, Prakasam District. 7 Rachamalla Nageswari, W/o. Srinivasa Reddy, Hindu, R/o. Kanigiri Village and Mandal, Prakasam District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more in the nature of WRIT OF CERTIORARI challenging for the records leading to the passing of orders in E.O.P.No.11 of 2006 dated 3-6-2008 on the file of the Learned Junior Civil Judge, Kanigiri in setting aside the election of the petitioner to the Post of Member of the 11th Ward, Kanigiri Grampanchayat, Prakasam District on the ground of Underage and quash the same. Counsel for the Petitioner : MR. M.SUBBA REDDY Counsel for the Respondents : MR. V.V.PRABHAKARA RAO The Court made the following : THE HON’BLE MS. JUSTICE G. ROHINI WRIT PETITION NO.12190 OF 2008 ORDER : This writ petition is filed seeking a Certiorari to call for the records relating to the order dated 3.6.2008 in Election O.P.No.11 of 2006 on the file of the Court of the Junior Civil Judge, Kanigiri and to quash the same being arbitrary and illegal. The writ petitioner was elected as Member of 11th ward of Kanigiri Gram Panchayat in the election held on 2.8.2006. The 7th respondent herein who was the unsuccessful candidate filed Election O.P.No.11 of 2006 before the Election Tribunal-cum-Junior Civil Judge, Kanigiri to set aside the election of the writ petitioner on the ground that she had not completed the age of 21 years and thus suffered a disqualification under Section 17 of the A.P. Panchayat Raj Act, 1994 (for short, ‘the Act’). The 7th respondent also sought a consequential declaration that she was the duly elected Ward Member for 11th ward of Kanigiri Gram Panchayat. The Tribunal below, after hearing both the parties, by order dated 3.6.2008 allowed E.O.P.No.11 of 2006 thereby setting aside the election of the writ petitioner holding that she was less than 21 years of age by the date of election. The said order is under challenge in this writ petition. I have heard the learned counsel for the writ petitioner as well as the learned counsel appearing for the 7th respondent who appeared at the stage of admission itself and the learned Government pleader for Panchayat Raj appearing for other respondents. At the outset, Section 17 of the Act which provides for qualification of candidates for election as a member of Gram Panchayat may be extracted hereunder : “Sec. 17. Qualification of candidates :- No person shall be qualified for election as a member of a Gram Panchayat unless his name appears on its electoral roll and he is not less than twenty one years of age.” On a plain reading of the above provision, it is clear that the candidate shall not be less than 21 years of age to contest the election as a Member of the Gram Panchayat. In the instant case, the election was conducted on 2.8.2006 and on the same day the writ petitioner was declared as elected. The 7th respondent herein filed the election petition on 1.9.2006 alleging that the writ petitioner/returned candidate did not complete the age of 21 years and therefore she was not qualified. The writ petitioner/returned candidate filed a counter stating that she was born in the year 1984 at Markapur and the same was registered in the office of the Municipal Corporation, Markapur and thus she had completed the age of 22 years and the allegation in the election petition was false and without any basis. Both the parties adduced oral and documentary evidence to substantiate their respective claims. The 7th respondent herein/election petitioner got herself examined as P.W.1 and reiterated the allegation made in the election petition. She also examined the headmistress of Zilla Parishad High School, Markapur as P.W.2 through whom Date of Birth Certificate of the writ petitioner, dated 4.9.2006, issued by the Zilla Parishad High School (Girls), Markapur and an attested copy of extract of the Admission Register of the year 1997-1999 of the Zilla Parishad High School (Girls), Markapur were marked as Exs.X1 and X2 respectively. P.W.2 in her deposition stated that the writ petitioner was admitted in Zilla Parishad High School, Markapur during the academic year 1997-98 and that as per Ex.X-2 extract from the Admission Register her admission number was 8616 and her date of birth was entered as 9.2.1987. P.W.2 also deposed that the date of birth of the writ petitioner was entered in the admission register as per the declaration given by her parents and that she completed her 10th class during the academic year 2001-02. As summoned by the Court P.W.2 also produced the Admission Register of the School for the years 1997 to 1999 before the Court. The extract of page-30 of the said Register was marked as Ex.X-2. She further stated that Ex.X-1 Date of Birth Certificate dated 4.9.2006 was issued by her on the basis of the entries in the Admission Register. Per contra, the writ petitioner/returned candidate deposed as R.W.2 and stated that she was born on 9.2.1984 at Markapur. However, in her cross-examination she admitted that she studied her 10th class in Z.P. High School (Girls), Markapur. The only other witness, she could examine as R.W.1 was the Stage-I Election Officer, who deposed that since no objections were received as to the alleged disqualification of the writ petitioner her nomination was declared as valid. However, in the cross-examination she admitted that the writ petitioner did not file any certificate in evidence of her age along with the nomination. It is also relevant to note that the writ petitioner could not produce any document to substantiate her plea that she was born on 9.2.1984 and merely filed her nomination form as Ex.R-1 and the declaration form as Ex.R-2. On appreciation of the above evidence, the Tribunal below held that the writ petitioner was less than 21 years of age by the date of her election and accordingly set aside her election. The learned counsel for the writ petitioner vehemently contended that since admittedly the 7th respondent failed to raise any objection with regard to the age of the writ petitioner either on the date of filing of nomination or at the time of scrutiny of nomination, it is not open to her to challenge her election at a later stage by way of election petition. It is also contended that having regard to the fact that P.W.2 was not the author of the entries in the Admission Register and even Ex.X-1 Certificate was issued by her on the basis of the Admission Register, the Tribunal below ought not to have relied upon her evidence. It is also the contention of the writ petitioner that since the election petitioner failed to produce any other evidence to establish the authenticity of the date of birth entered in the School Admission Register, the finding that the writ petitioner did not complete the age of 21 years is erroneous and liable to be set aside. It is true that, having alleged that the writ petitioner suffered a disqualification, the burden is on the 7th respondent/election petitioner. In the case on hand, she had not only specifically pleaded that the writ petitioner was born on 9.2.1987 but she also produced Exs.X-1 & X-2 documents through P.W.2. It is also relevant to note that the Admission Register, the extract of relevant page of which was marked as Ex.P-2 was also summoned by the Tribunal and the writ petitioner herself admitted that she studied in the said school. In the circumstances, there is no reason to suspect the authenticity of Ex.X-2 merely on the ground that P.W.2 was not the author of the same. However, the learned counsel for the petitioner while relying upon a decision of this Court in D. MADHUSUDHAN REDDY vs. ELECTION COURT[1] contended that the parents or near relations are the best persons to depose about the date of birth of a person entered in the School Admission Register and the Tribunal below committed a grave error in relying upon the evidence of the Headmistress of the School. As held in BIRAD MAL SINGHVI vs. ANAND PUROHIT[2] it is true that parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. However, this is a case where the School Admission Register was summoned by the Tribunal, the relevant page of which was marked as Ex.X-2. The said Register revealed that the date of birth of the writ petitioner was entered as 9.2.1987 on the basis of a declaration given by her parents. Since the Admission Register was produced before the Tribunal through a competent person and since there was no allegation of any manipulation of the entries and particularly since the writ petitioner herself admitted that she had studied in the said School, there is no reason to disbelieve the evidence of P.W.2. The fact that having pleaded that she was born on 9.2.1984, the writ petitioner/returned candidate could not produce any evidence either oral or documentary to support the same is also a relevant factor to uphold the finding recorded by the Tribunal below. Hence, the finding of fact recorded by the Tribunal below which is based on proper appreciation of the evidence on record does not warrant any interference. The Tribunal below was also justified in holding that the Stage-II Officer was not a necessary party to the election petition and the failure of the election petitioner to make the Stage-II Election Officer as a party did not vitiate the proceedings since the issue raised in the election petition was only with regard to the disqualification suffered by the writ petitioner and there was no allegation that the process of election was vitiated on any ground whatsoever. For the aforesaid reasons, the Writ Petition is dismissed. No costs. _____________ G. ROHINI,J. Dt. 17.07.2008 gbs [1] 1991 (1) ALT 349 [2] AIR 1988 SC 1796