*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION Nos.14181 and 14461 of 2004 %27-08-2004 # R.JAYALAKSHMAMMA ..PETITIONER Vs. $ THE ELECTION TRIBUNAL-CUM-SENIOR CIVIL JUDGE, PUNGANUR, CHITTOOR DISTRICT AND OTHERS ..RESPONDENTS !COUNSEL FOR PETITIONER: MR. MR.C.RAMACHANDRA REDDY ^ COUNSEL FOR RESPONDENTS 2&3: A.K.NARASIMHA RAO <GIST >HEAD NOTE: ?CASES REFERRED: 1. 2003 (1) ALD 488 2. (2002) 5 SCC 568 3. AIR 1964 SC 477 4. (1992) 2 SCC Supp.312 5. 1996 (1) ALT 32 (DB) 6. 1996 (1) ALT 32 (DB 7. (2004) 4 SCC 714 = 2004 AIR SCW 3888 8. AIR 1965 SC 282 9. AIR 1988 SC 1796 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF AUGUST TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NOs : 14181 and 14461 of 2004 WRIT PETITION NO : 14181 of 2004 Between: R.Jayalakshmamma W/o. P.Ramakrishna R/o. Marrimakulapalli, Kagathi Post, Chowdepalli Mandal, Chittoor District. ..... PETITIONER AND 1 The Election Tribunal-Cum- Senior Civil Judge, Punganur, Chittoor District. 2 M.Chandravadana W/o. M.Venkataramana Raju R/o. Chowdepalli Village Post and Mandal, Chittoor District. 3 M.Jyothi W/o. Rathnappa R/o. Chowdepalli Village Post and Mandal Chittoor District. 4 Election Officer-Cum-Chief Executive Officer, Zilla Parishad, Chittoor. 5 Election Officer, Chowdepally Mandal, Chittoor 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 particularly one in the nature of writ of Certiorari calling for the records in O.P.No.14/2001 dt.3.8.2004 on the file of the 1st respondent Tribunal namely the Election Tribunal-Cum-Senior Civil Judge, Punganur, Chittoor District and quash the same as illegal arbitrary, unconstitutional and without jurisdiction. Counsel for the Petitioner: MR.C.RAMACHANDRA REDDY Counsel for the Respondent Nos.2&3:A.K.Narasimha Rao WRIT PETITION NO : 14461 of 2004 Between: R. Jayalakshmamma, W/o. P. Ramakrishna, Hindu, R/o. Marrimakulapalli, Kagathi Post, Chowdepalli Mandal, Chittoor District. ..... PETITIONER AND 1 The Election Tribunal-cum-- Senior Civil Judge, Punganur, Chittoor District. 2 M. Jyothi, W/o. Rathnappa, Hindu, R/o. Chowdepalli Village Post and Mandal, Chittoor District. 3 M. Chandravadana, W/o. M. Venkataramana Raju, Hindu, R/o. Balasamudram Village, Pandillapalli, Chowdepalle Mandal, Chittoor District. 4 Election Officer-cum-Chief Executive Officer, Zilla Parishad, Chittoor District. 5 Election Officer, Chowdepally Mandal, Chittoor 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 to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records in O.P.NO. 12/2001 dt. 3-8-2004 on the file of the 1st respondent Tribunal namely the Election Tribunal-cum-Senior Civil Judge, Punganur, Chittoor District and quash the same as illegal, arbitrary, unconstitutional and without jurisdiction. Counsel for the Petitioner: MR.C.RAMACHANDRA REDDY Counsel for the Respondent Nos.2&3: A.K.Narasimha Rao The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION NOs.14181 and 14461 and 2004 COMMON ORDER: Introduction These two Writ Petitions are filed seeking a Writ of Certiorari to quash the common order of the Election Tribunal-cum-Senior Civil Judge, Punganur, in O.P.Nos.12 and 14 of 2001, dt.3.8.2004. Hence, both the Writ Petitions are being disposed of by this common order. By the impugned order, the learned Election Tribunal set aside the election of the petitioner as Zilla Parishad Territorial Constituency (ZPTC) Member of Chowdepalle Mandal and further declared, Smt.Chandravadana, W/o.Venkataramana Raju (second respondent in Writ Petition No.14181 and third respondent in Writ Petition No.14461 of 2004), as duly elected candidate of ZPTC Member of Chowdepalle Mandal. In this common order, the parties shall be referred to by their status in Writ Petition No.14461 of 2004. In consonance with Part IX of the Constitution of India, Andhra Pradesh Panchayat Raj Act, 1994 (for short, the Act) envisages three-tier Panchayat Raj system. The apex tier constituted under Section 177 of the Act is called, Zilla Parishad. It consists of Zilla Parishad Territorial Constituencies and as per Section 178 of the Act every Mandal in the District shall be a territorial constituency and members are elected by method of secret ballot by the registered voters in the territorial constituency concerned (See Section 179). Sections 183 and 184 deal with qualification and disqualification of the candidates respectively. Sub-section (1) of Section 184, disqualifies a person to be a member ZPTC if such candidate is interested in a subsisting contract with Mandal Parishad or Zilla Parishad. Sub-section (2) of Section 184 applies the provisions of Sections 18 to 22 of the Act to ZPTC Member as they apply to a Member of Gram Panchayat. Be it noted under Section 19(3), a person having more than two children shall be disqualified for election as Member. The first proviso to sub-section (3) contains an exception to the general rule. It provides that if the birth of additional child (third child) is within one year from the date of commencement, the same shall not be taken into consideration for the purpose of Section 19(3) of the Act. The Act came into force on30.05.1994, as notified by the Government of Andhra Pradesh vide G.O.Ms.No.304 dated 25.05.1994. The second proviso to sub-section (3) of Section 19 further clarifies that a person having more than two children excluding the additional third child born within one year from the date of commencement of the Act shall not be disqualified so long as the number of the children on the date of commencement does not increase. Therefore, if the additional/third child is born to a person between the period 30.05.1994 to 29.05.1995, the same shall have no effect on the general principle and still such person can contest the election. If a person has three children including additional third child born after 29.05.1995 such person shall be disqualified for being elected as Member of any panchayat body under the Act including Zilla Parishad. Background Facts The election for Chowdepalli ZPTC was held on 12.7.2001. The petitioners, respondents 2 and 3 were the three candidates in the fray as they only filed valid nominations. The counting took place on 17.1.2001 and the petitioner was declared elected for ZPTC Member, Chowdepalle. As per Section 233 of the Act no election held under the Act shall be called in question except by way of an election petition presented to such authority in accordance with the Rules as may be made in that behalf. The Government of Andhra Pradesh in exercise of their powers under Section 233 and Section 268(1) of the Act have promulgated the Rules called, ‘the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (for short, the Rules). Second respondent filed such election petition being O.P.No.12 of 2001 praying the learned Election Tribunal to set aside the election of the petitioner as Member of Chowdepalle ZPTC by declaring the election as null and void and further declare the petitioner as disqualified to contest. Third respondent filed O.P.No.14 of 2001 praying the learned Tribunal to set aside the election of the petitioner and declare the third respondent as duly elected ZPTC Member of Chowdepalle. Both the OPs were filed on similar grounds. Ms.M.Jyothi and Ms.M.Chandravardana, respondents 2 and 3, alleged in their respective OPs that the petitioner played fraud and misrepresentation on the Election Officer by submitting a declaration that she is not disqualified to contest for the office or ZPTC Member, that she gave birth to three children, by name Mahidhar, who was born on 18.1.1987, Maruthi, who was born on 24.1.1989 and Yamini Divya, who was born on 8.7.1995, that the third child of the petitioner was born on 8.7.1995 as per the date of birth certificate issued by the Child Development Project Officer of Integrated Child Development Scheme (ICDS) Project, Punganur and therefore under Section 184(2) read with Section 19(3) of the Act the petitioner is disqualified to file the nomination as she is having three children at the time of filing her nomination. The petitioner herein filed a counter to the OPs denying the allegation. She disputed the date of birth certificate given by the Project Officer of ICDS Project, Punganur on the ground of competence of the Project Officer of ICDS Project, Punganur to issue such certificate. She asserted that as per school records the date of birth of third child is 16.3.1995 and that Yamini Divya was born on 16.3.1995 at Vijaya Nursing Home, Madanapale and when the same was intimated to the concerned authorities who duly entered in the birth register in the office of Madanapalle Municipality. The petitioner also filed additional counter affidavit reiterating that she gave birth to third child on 16.3.1995 and therefore she falls in the excepted category under first proviso to Section 19(3) of the Act. She also stated that earlier she contested for the office of MPTC Member, Chowdepalli and nobody in the Mandal raised any objection regarding disqualification at the time of election of MPTC Member of Kagathi. The pleadings of the petitioner herein in both the OPs were same. The learned Tribunal clubbed both the OPs and recorded evidence in O.P.No.12 of 2001. Second respondent (petitioner in O.P.No.12 of 2004) examined herself as P.W.1 besides P.Ws.2 to 7 and marked Ex.A.1, which is the certificate issued by B.Ramadevi in the office of ICDS Project. Third respondent examined herself as R.W.1 and her brother-in-law (M.Ramakrishnam Raju) as R.W.2. She summoned Mr. S. Ravindra Babu, the Commissioner of Madanapalli Municipality, who is examined as C.W.1, and Dr.Ananda Babu, owner and proprietor of Vijaya Nursing Home, Madanapalli, who was examined as C.W.2 and Mr.M.R.Jayaprakash, C.W.3. Third respondent also marked Exs.B.13 to B.17. Exs.X.1 to X.33 were marked through C.W.1, C.W.2 and C.W.3. The petitioner herein examined herself as R.W.3 and no other witness was examined on her behalf. The learned Tribunal considered the following points. 1. Whether the first respondent is disqualified to contest for the post of Membership of ZPTC, Chowdepalle Mandal under Section 19(3) of A.P.Panchayat Raj Act, 1994 ? 2. Whether the petitioner is entitled to declaration as prayed for by her ? 3. To what relief ? On the first point, learned Tribunal came to the conclusion that the respondents 2 and 3 herein established that petitioner gave birth to her third child on 8.7.1995 and not on 16.3.1995 as pleaded by her and that she is disqualified to file the nomination for the office of ZPTC Member, Chowdepalle. On the second point, as the petitioner in O.P.No.12 of 2001 did not seek declaration as elected, the learned Tribunal declared the petitioner in O.P.No.14 of 2001, (third respondent herein) as elected Member of ZPTC, Chowdepalle. Both the OPs were accordingly allowed. Be it noted that the learned Tribunal relied on evidence of P.Ws.1, 3, 4 and 7, R.Ws.1 and 2, C.W.1, and various documents marked as exhibits during trial and essentially considered the disputed question of fact as was incumbent on the learned Tribunal. Aggrieved by the common judgment of the learned Tribunal, petitioner filed these two Writ Petitions. When Writ Petition No.14181 of 2004 came up before my learned brother Hon’ble Sri Justice B.Prakasha Rao, His Lordship while ordering to maintain status quo as on that date, observed that having regard to the fact that the Writ Petition arises out of the final orders passed in the election petition, the matter shall be decided finally at the stage of admission itself as agreed by the parties. Subsequently, Writ Petition No.14461 of 2004 filed against O.P.No.12 of 2001 came up before me when this Court directed to tag this Writ Petition with earlier Writ Petition. With the consent of the parties, the matters were heard at length on 17.8.2004, 18.8.20904 and 19.8.2004. This Court also obtained original record from the Court of Senior Civil Judge, Punganur, who decided the election petitions. The learned Senior Counsel for the petitioner and the learned counsel for respondents 2 and 3 also perused the record. Submissions Sri K.Pratap Reddy, learned Senior Counsel for the petitioner submits that having approached the Tribunal, alleging disqualification of the petitioner under Section 19(3) of the Act, the burden was on respondents 2 and 3 herein, to prove their allegation and that they failed to produce cogent and convincing evidence. On the contrary, the petitioner has produced clinching evidence including the records kept and maintained during the course of official business and that the learned Tribunal committed error in accepting the evidence, which is not permissible in law, and rejecting the evidence which ought to have been accepted. Learned Senior Counsel would urge that the learned Tribunal considered the matter in a wild way ignoring the relevant evidence on record. To sustain the prayer for a Writ of Certiorari, he placed strong reliance on Exs.B.2, B.9, B.20, X.22, X.23, X.24 and evidence of Municipal Commissioner, C.W.1. He would also contend that the evidence of P.W.3, Anganwadi worker, who produced Ex.A.1, X.1 and X.2 is mere hearsay evidence and therefore, the learned Tribunal committed grave error apparent on the face of the record in concluding that third child of petitioner was born on 8.7.1995. The learned Senior Counsel also submits that the standard of proof required in election petition is higher than in a civil proceeding and evidence on record is not sufficient to hold against petitioner. He placed reliance on a decision of learned Single Judge of this Court in J.Puspalatha v. Election Tribunal, Bhongir. Lastly the learned Counsel placing reliance on the decision of the Supreme Court in Prakash Khandre v. Dr.Vijay Kumar Khandre contends that granting declaration in favour of third respondent especially when there are more than two candidates in the election was impermissible under law. Per contra, learned counsel for respondents 2 and 3, Sri A.K.Narasimha Rao, submits that the lower Tribunal has decided the matter based on record after due appreciation of evidence and therefore it is not permissible for this Court to re- appreciate the evidence in this Writ Petition for Certiorari. He would also urge that there is abundant evidence to conclude that third child of the petitioner was born on 8.7.195 and therefore, she is disqualified under Section 19(3) read with Section 184(2) of the Act. He placed strong reliance on evidence of P.Ws.3, 4, 7, C.Ws.1, 2 and 3, Exs.B.6, B.7, B.8 and B.20, and X.14 to X.22 and X.24 in support of the contention that petitioner delivered third child at Vijaya Nursing Home, Punganur, on 8.7.1995 and that the contention of the petitioner that she delivered third child on 16.3.1995 Vijaya Nursing Home, Madanapale is false and incorrect. Point for Consideration The point that arises for consideration is whether the learned Senior Civil Judge- cum-Election Tribunal under the Act has committed grave error apparent on the face of the record in setting aside the election of the petitioner ? This broad issue for adjudication would also take in its fold the question of burden of proof, the question of Tribunal considering or not considering relevant and irrelevant material and the question of alleged perversity and findings by the Tribunal. Principles of Judicial Review At the outset the principles and the scope of power of judicial review to quash a decision of statutory tribunal may briefly be reiterated. It is well settled that while judicially reviewing the decision of a statutory tribunal, High Court ordinarily does not substitute its opinion for the opinion or finding recorded by the Tribunal on appreciation of oral and documentary evidence. Merely because other view is also possible from such reappreciation of same evidence, it cannot be a ground for High Court to deviate from the finding of the fact recorded by the Tribunal, re-appreciate the evidence on record and give its own finding which is different from the finding recorded by the Tribunal. It is axiomatic that the Court of judicial review is not an appellate Court and the Court essentially reviews the decision making process rather than decision itself. Nonetheless, it is also settled that when the question is raised that the tribunal has committed jurisdictional error or committed grave error apparent on the face of the record while appreciating the evidence, recording findings of fact and applying law to such findings on fact, the Court of judicial review can always; curiously though, - look into the evidence to see whether the finding of fact is perverse and whether the proper principles of appreciation of evidence have been applied to the facts. Even after such exercise, if the Court finds that the findings are grounded on substantially acceptable evidence, the findings cannot be upset and reappreciation of evidence as an appellate Court is not within the purview of judicial review. Yet another well settled principle is that it is not every error can be corrected in judicial review. Only grave error apparent on the face of the record would be amenable for judicial scrutiny. A reference may be made to a Constitution Bench Judgment of the Supreme Court in Syed Yakoob v. Radhakrishnan, H.B.Gandhi v. Gopi Nath, and a Division Bench Judgment of this Court in The Depot Manager, A.P.S.R.T.C. v. P.Gangarajulu. In Syed Yakoob v. Radhakrishnan (supra) the Supreme Court held that a Writ of Certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals when such tribunals passed orders without jurisdiction; passed orders in excess of jurisdiction; and failed to exercise such jurisdiction. While observing that in exercising Certiorari jurisdiction, the court is not entitled to act as an appellate authority, it was held that Writ of Certiorari cannot be issued unless the tribunal acts illegally or improperly, as for instance, it decides the question without giving opportunity of being heard to the party effected by the order or the procedure adopted by the tribunal is opposed to principles of natural justice. The principle that the findings of fact reached by the inferior Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in Writ proceedings was reaffirmed and it was held that only when there is error of law apparent on the face of the record, the Court can interfere in such matters. The relevant passage is as under. ….An error or law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said findings are within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised. (emphasis supplied) The Supreme Court also considered the question as to what is error law apparent on the face of record. It was held: It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record…. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of legal provision which is alleged to have been misconstrued or contravened. (emphasis supplied) I n H.P.Gandhi v. Gopi Nath (supra) after referring to Syed Yakoob v. Radhakrishnan (supra) it was held: Judicial review, it is trite, is not directed against the decision, but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of face. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court, Judicial review is not appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in decision making process but also on the correctness of the decision itself. In The Depot Manager, A.P.S.R.T.C. v. P.Gangarajulu, the Division Bench of this Court held that High Court cannot act as an appellate authority and review or revive the findings recorded by the tribunal except when it is proved that the findings are based on “no evidence” or the Tribunal arrived at the findings based on surmises and conjectures. In recent judgment in State of U.P. v Johri Mal, the Supreme Court laid down that though reappreciation of facts is not permissible in a petition for judicial review, the Court to a limited extent may scrutinise the facts to see whether decision making process is in accordance with law. The following observations of apex court are apposite: It is well settled that while exercising the power of judicial review the court is more concerned with the decision-making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact- finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision-maker’s opinion on facts is final. But while examining and scrutinizing the decision-making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the court with special reference to a