IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.26032 of 2007 Between: P. Raja Sekhar ..... PETITIONER AND The District Collector-cum-Election Authority (PR), Guntur, Guntur District and others .....RESPONDENTS WRIT PETITION No.28003 of 2007 Between: Bolagani Siva Shankara Rao ..... PETITIONER AND Pattipati Raja Sekhar and others .....RESPONDENTS COMMON ORDER: These writ petitions are being disposed of by a common order in view of the fact that both these writ petitions are filed against the same order made in Election O.P.No.7 of 2006 dated 19-11-2007 on the file of the Special Officer (Election Tribunal) cum Principal Junior Civil Judge, Tenali, Guntur District. 2. The un-successful first respondent being aggrieved of the order made in Election O.P.No.7 of 2006 filed W.P.No.26032 of 2007 wherein the rule nisi was issued on 06-12-2007 and interim suspension had been granted. The petitioner in the aforesaid Election O.P.No.7 of 2006 aggrieved of not declaring him as duly elected as Sarpanch filed W.P.No.28003 of 2007. Rule nisi had been issued in this writ petition on 28-12- 2007. The counter affidavits had been filed. 3. Sri G. Ravi Mohan, learned counsel representing the writ petitioner in W.P.No.26032 of 2007 and contesting respondent in W.P.No.28003 of 2007 made submissions in elaboration and would maintain that unless and until caste certificate is duly cancelled till then the findings recorded by the Election Tribunal cannot be sustained. The learned counsel had taken this court through the contents of the affidavit filed in support of the writ petition and also the counter affidavit and would maintain that the impugned order as such cannot be sustained. The learned counsel also would maintain that and not granting declaration in favour of the writ petitioner in other W.P.No.28003 of 2007 also cannot be found fault inasmuch as no acceptable evidence in this regard had been placed before the Election Tribunal. The learned counsel also relied on certain decisions to substantiate his submissions. 4. Per contra Sri Polavarapu Sreenivas, learned counsel representing the respondents in W.P.No.26032 of 2007 i.e., respondent No.4 and the writ petitioner in W.P.No.28003 of 2007 made elaborate submissions and also placed before this court the order made in W.P.No.12474, 25624 and 25756 of 1998, dated 22- 10-2008 and would maintain that in the light of the same, there cannot be any doubt or controversy that Tammali caste in this area would not fall under B.C. Community and when that being so the nomination ought to have been rejected and the very acceptance of nomination being bad in law since it is a question of disqualification when specifically it was pleaded that only there had been two contesting candidates while allowing the Election O.P.No.7 of 2006 and declaring the election of the duly elected candidate as invalid, on that ground automatically the Election Tribunal ought to have declare the writ petitioner in W.P.No.28003 of 2007 as having been duly elected and negativing this relief in the light of the facts and circumstances cannot be sustained. 5. The other counsel on record the learned Government Pleader for Panchayat Raj Mr.Prabhakar Rao and Mr.Ravindra Babu also made certain submissions. 6. Heard the counsel, perused the order under challenge and also the respective pleadings of the parties. 7. Sri P. Rajashekar the duly elected candidate to the office of the Sarpanch in question filed W.P.No.26032 of 2007 praying for the issuance of writ of Certiorari to call for the records and to quash the order and decree passed in Election O.P.No.7 of 2006 dated 19-11-2007 on the file of the Special Officer (Election Tribunal)-cum-Principal Junior Civil Judge, Tenali, Guntur District, as the order passed by the Election Tribunal is illegal, void and without jurisdiction and pass such other suitable orders. 8. The decisions reported in 2003(1) ALT 738 and 2007 (4) ALD 817 also had been referred to apart from G.O.Ms.No.111 and Rules 5 and 6 of the Rules as well in the grounds. 9. It is stated that the 4th respondent filed Election O.P.No.7 of 2006, against the petitioner contending that his election as Sarpanch of Chavali Gram Panchayat is not valid and to declare petitioner election as void as petitioner is not qualified to contest to the post of Sarpanch of Chavali Gram Panchayat and to declare him as duly elected to the post of Sarpanch of Chavali Gram Panchayat and for such other reliefs. 10. Further it is averred that the State Election Commissioner had issued a notification to conduct the elections of the Gram Panchayat on 09-07-2006 for Chavali Gram Panchayat. Sarpanch post was reserved for B.C. Candidate as the petitioner belongs to B.C. Community i.e., "Tammali" community the petitioner filed his nomination to the post of Sarpanch of Chavali Gram Panchayat on 15-07-2006. Scrutiny and withdrawal of nominations was took place on 23-07-2006. The date of election took place on 06-08- 2006. On the date of nomination the petitioner produced his caste certificate issued by the Mandal Revenue Officer, Vemuru on 20- 07-2006 after conducting an enquiry. None of the contesting candidates including the 4th respondent ever raised any objection that petitioner does not belong to B.C. Community. Therefore, the state-I Election Officer accepted his nominations and he participated in the election. After counting, the petitioner was declared as elected as the petitioner got highest number of votes. Therefore, on 06-08-2006 the 3rd respondent declared him as elected as Sarpanch. Thereafter the 4th respondent filed Election O.P.No.7 of 2006 under Section 233 of A.P. Panchayat Raj Act, 1994 before the Election Tribunal (Principal Junior Civil Judge, Tenali alleged that the petitioner does not belongs to B.C. (Tammali) Caste but he belongs to Brahmin (F.C.) community. Therefore, the allegation of the 4th respondent is that the petitioner belongs to F.C. Community and he is disqualified to contest in the election which is reserved for B.C. Community, by ignoring the community certificate by M.R.O., of Vemuru Mandal. It is stated that this petitioner belongs to TAMMALI Caste that being posted in the list of item No.29 in Group-a published by the Government in the Gazettee in the G.O.Ms.No.1793, Education, dated 23-09-1970, filed his nomination as Backward Class candidate for the said Sarpanch Post. In the election O.P. petitioner filed the transfer certificated obtained from A.V.S. Junior College, Bhattiprolu, along with caste certificate issued by the M.R.O., Vemuru that petitioner belongs to B.C. (Tammali) Community. The petitioner filed counter and contested Election Petition, denying the material averments of 4th respondent. 11. It is further stated that the allegations in the Election O.P. are very vague. The 4th respondent further alleged that he submitted the certificate from the M.R.O., Vemuru by managing him, he got certificate of B.C. Community. The 4th respondent did not furnish any particulars in what way he managed the M.R.O., Vemuru to get B.C. Certificate. The concise statement is lacking material particulars. As per G.O.Ms.No.31, PRRD & R (Election III) Department, dated 03-03-1995 and as per Rule 12 (B) the contesting candidate shall mention all particulars, if there is any corrupt practice as laid down under Section 211 of the Act as being commended by a returned candidate or his election agent or by any person on his behalf. Clause D(2) also says if there is any corrupt practice commended interest of returned candidate or any agent other than election candidate with the connivance of the returned candidate. The Election Tribunal has not jurisdiction to decide the validity of the community certificate issued by the competent authority. 12. It is also stated that as per 2006 (2) A.L.D. 80 the A.P. (S.C., S.T., & B.C.) Regulation of issue of Community Certificate Act, 1993 and Rules, Section 5 confers power of the District Collector to cancel the community certificate which was obtained in a fraudulent manner and no authority is not vested with any power either to withdraw or cancel the certificate issued by competent authority like M.R.O., or R.D.O., as the case may be. As per Rule 9 of the Rules framed there under, the Community Certificate issued in his favour is not cancelled or suspended by the authority so far. It has reached its finality. Without questioning validity of the certificate obtained by the M.R.O., before any appellate authority same cannot be questioned before the Election Tribunal without observing any norms, principles or Rules framed under the Act. 13. Certain specific grounds had also been raised in the affidavit filed in support of the writ petition. A Counter affidavit had been filed by the 4th respondent in this writ petition. It is needless to say that this 4th respondent is the writ petitioner in W.P.No.28003 of 2007. 14. In the counter affidavit filed by the 4th respondent it is stated that State Election Commission notified the Elections to the Gram Panchayats in the State by their Notification dated 09-07-2006. The dispute in the present writ petition pertains to the election to the post of Sarpanch of Chavali Gram Panchayat. The post of Sarpanch was reserved to the Backward Class candidate to the said Gram Panchayat. The nominations have to be filed from 15- 07-2006 to 19-07-2006. The scrutiny of Nominations and withdrawals of Nomination will take place on 20-07-2006. The date of Election is 06-08-2006. As this respondent belongs to the Gowda Caste which is a recognized Backward Class Caste filed his Nomination on 19- 07-2006. The petitioner herein belongs to a Brahmin Community which is a forward Caste Community and not eligible to file his Nomination to the post of Sarpanch. However, he secured a false Caste Certificate from the M.R.O., Vemuru as if he belongs to "Tammali" caste which is said to be a Backward Class and filed his Nomination. In fact the Government issued G.O.Ms.No.20 Backward Classes Welfare (A-1) Department dated 21-07-1997 clarifying that the "Tammali" caste people residing other than Nalgonda, Mahabubnagar, Karimnagar, Nizamabad and Adilabad are not Shudras and they are part of the Brahmin Community and they are not entitled to get Backward Caste Certificate. 15. Further it is stated that basing on the said false Caste Certificate he filed Nomination and the same was accepted by the Scrutiny Officer i.e., the 2nd respondent herein on 20-07-2006. The petitioner suppressed the Government G.Os., and played fraud on the respondents and the public. The false Caste Certificate is non-est in the eye of law. Even though no objection was raised at the time of scrutiny as alleged by the petitioner, it will not confer any right or privilege on the petitioner to get elected to the post of Sarpanch and continue in the said Post and his Election can be challenged by filing an Election Petition as provided under the provisions of A.P. Panchayat Raj Act and the Rules made thereunder. 16. It is also stated that after the lapse of time for withdrawal of Nominations, the petitioner and respondent No.4 alone in the fray. The Elections took place on 06-08-2006 and the petitioner was declared as Elected. Immediately this respondent filed Election O.P.No.7 of 2006 on the file of the Election Tribunal-cum-Principal Junior Civil Judge, Tenali challenging the Election of the petitioner on the ground that he was disqualified to be elected to the pot of Sarpanch as it was reserved for the B.C., candidates and he is not a B.C. candidate. This respondent took specific pleading in the election O.P. at para- 12 that the petitioner herein and this respondent are only the final contesting candidates in the Election as the other candidates who filed Nomination have withdrawn their nominations within the time. In para-13 of the Election Petition it was categorically stated that this respondent would have elected unanimously as Sarpanch as there are no other Backward Caste contesting candidates. Even in Paras-16 & 17 the same was repeated. In the prayer portion at Para-20 a specific relief to declare this respondent was unanimously elected to the post of Sarpanch was prayed for. This respondent as PW-1 reiterated the said plea. The petitioner herein who is respondent No.1 in the Election Petition, the respondents 2 & 3 who are the Election Officers did not deny the averments made by this respondent in their counters or in evidence and the averment is deemed to have been admitted. The admitted facts need not be proved as per Section 58 of the Evidence Act. If the petitioner herein or the respondents 2 and 3 have denied these facts, this respondent would have adduced the evidence to prove the said fact. Apart from it, the original Records are before the Election Tribunal and it ought to have verified the same. Thus, after declaring the Election of the Petitioner as illegal, by its Order dated 19-07-2007, the Tribunal ought to have declared this respondent as duly elected Sarpanch. The Tribunal below committed grave illegality, irregularity and procedural impropriety in not declaring this respondent as duly elected. This is an error apparent on the face of the record which is liable to be corrected by this court in exercise of its powers under Article 226 of the Constitution of India. 17. It is also stated that the petitioner herein raised the contention of lack of jurisdiction to entertain the Election Petition in view of the provisions contained in A.P. (S.C., S.T., & B.C.) Regulations of issue of community Certificate Act, 1993 and relied upon certain decisions. The Tribunal below rejected the contentions of the petitioner and gave a finding that the Election Tribunal is competent to go into the question whether a person really belongs to a particular community to be elected to the Representative post. The Tribunal relied upon several Supreme Court and High Court decisions and held that the Tribunal can enter into a question of Caste Certificate issues and to pass appropriate orders in the Election Petitions. There is no illegality or impropriety committed by the Tribunal as contended by the petitioner in Ground No.a, e, f, g & h. The contention of the petitioner in Ground No.(b), (c) and (d) is untenable. The petitioner cannot improve his case in the present writ petition by raising new pleas. No such grounds are raised in the counter filed to the election O.P. nor argued the same points before the Tribunal. Hence, those grounds cannot be permitted to be raised in the present writ petition. Apart from this technicality, this respondent specifically contended that the "Tammali" community is not a recognized B.C. Community in the Andhra Area as per Government G.Os. The said fact was not denied by the petitioner. Even in his evidence as R.W.1, he admitted “except him no other "Tammali" caste people is residing in that village. Hence, the question of vagueness in the pleading does not arise at all. Even assuming that no objection is taken at the time of scrutiny of nomination, the same will not deprive the right of this respondent in challenging the Elections in the Tribunal as provided under the provisions of A.P. Panchayat Raj Act. The provisions of A.P. Community Act, 1993 is for a different purpose and the same will not come in the way of filing Election Petitions. 18. Further it is stated that the post of Sarpanch is for a period of five years and already one year four months had lapsed. By obtaining interim orders, the petitioner is continuing in the office of the Sarpanch and certain further averments also had been made and dismissal of the writ petition has been prayed for. 19. The said 4th respondent in W.P.No.26032 of 2007 filed W.P.No.28003 of 2007 paying for a writ of Certiorari to call for the records and to Quash the order and decree in so far as not declaring the petitioner herein as elected as Sarpanch of Chavali Gram Panchayat in Election O.P.No.7 of 2006 dated 19-11-2007 on the file of the Special Officer (Election Tribunal)-cum-Principal Junior Civil Judge, Tenali, Guntur District as illegal, arbitrary and non-exercise of the jurisdiction vested in it and consequently declare the petitioner herein is deemed to have been elected as Sarpanch of Chavali Gram Panchayat, Vemuru Mandal, Guntur District and pass such other suitable orders. 20. Several of the averments made in affidavit filed support of the writ petition are substantially on same lines as averred in the counter affidavit in W.P.No.26032 of 2007. It is stated that the State Election Commission notified the Elections to the Gram Panchayats in the State by their Notification dated 09-07-2006. The dispute in the present writ petition pertains to the election to the post of Sarpanch of Chavali Gram Panchayat. The post of Sarpanch was reserved to the Backward Class candidate to the said Gram Panchayat. The nominations have to be filed from 15- 07-2006 to 19-07-2006. The scrutiny of Nominations and withdrawals of nomination will take place on 20-07-2006. The date of Election is 06-08-2006. As this petitioner belongs to the Gowda Caste which is a recognized Backward Class Caste filed his Nomination on 19- 07-2006. The respondent No.1 herein belongs to a Brahmin Community which is a forward Caste Community and not eligible to file his Nomination to the post of Srpanch. However, he secured a false Caste Certificate from the M.R.O., Vemuru as if he belongs to "Tammali" caste which is said to be a Backward Class and filed his Nomintion. In fact the Government issued G.O.Ms.No.20 Backward Classes Welfare (A-1) Department dated 21-07-1997 clarifying that the "Tammali" caste people residing other than Nalgonda, Mahabubnagar, Karimnagar, Nizamabad and Adilabad are not Shudras and they are part of the Brahmin Community and they are not entitled to get Backward Caste Certificate. 21. Further it is stated that basing on the said false Caste Certificate respondent No.1 filed Nomination and the same was accepted by the Scrutiny Officer i.e., the 2nd respondent herein on 20-07-2006. The respondent No.1 suppressed the Government G.Os., and played fraud on the respondents 2 and 3 and the public. The false Caste Certificate is non-est in the eye of law. Even though no objection was raised at the time of scrutiny as alleged by the respondent No.1, it will not confer any right or privilege on the respondent No.1 to get elected to the post of Sarpanch and continue in the said Post and his Election can be challenged by filing an Election Petition as provided under the provisions of A.P. Panchayat Raj Act and the Rules made thereunder. 22. It is also stated that after the lapse of time for withdrawal of Nominations, the petitioner and respondent No.1 alone are in the fray. The Elections took place on 06-08-2006 and the respondent No.1 was declared as Elected. Immediately this petitioner filed Election O.P.No.7 of 2006 (Ex.P- 1) on the file of the Election Tribunal-cum-Principal Junior Civil Judge, Tenali challenging the Election of the respondent No.1 on the ground that he was disqualified to be elected to the pot of Sarpanch as it was reserved for the B.C., candidates and he is not a B.C. candidate. This petitioner took specific pleading in the election O.P. at para-12 that the petitioner herein and respondent No.1 are only the final contesting candidates in the Election as the other candidates who filed Nomination have withdrawn their nominations within the time. In para-13 of the Election Petition it was categorically stated that this petitioner would have elected unanimously as Sarpanch as there are no other Backward Caste contesting candidates. Even in Paras-16 & 17 the same was repeated. In the prayer portion at Para-20 a specific relief to declare this petitioner was unanimously elected to the post of Sarpanch was prayed for. This petitioner as PW-1 reiterated the said plea (Ex.P-2). The respondent No.1 herein who is respondent No.1 in the Election Petition, the respondents 2 & 3 who are the Election Officers did not deny the averments made by this petitioner in their counters or in evidence (Exs.P-3 to P-6) and the averment is deemed to have been admitted. The admitted facts need not be proved as per Section 58 of the Evidence Act. If the respondent No.1 herein or the respondents 2 and 3 have denied these facts, this petitioner would have adduced the evidence to prove the said fact. Apart from it, the original Records are before the Election Tribunal and it ought to have verified the same. Thus, after declaring the Election of the respondent No.1 as illegal, by its Order dated 19-07-2007 (Ex.P-7), the Tribunal ought to have declared this petitioner as duly elected Sarpanch. The Tribunal below committed grave illegality, irregularity and procedural impropriety in not declaring this petitioner as duly elected. This is an error apparent on the face of the record which is liable to be corrected by this court in exercise of its powers under Article 226 of the Constitution of India. 23. Hence, it is needless to say that this writ petition had been filed by the writ petitioner being aggrieved of that portion of the order wherein no relief had been granted in relation to his declaration as has been elected as the Sarpanch of the Gram Panchayat in question. 24. The order dated 22-10-2008 made in writ petition Nos.12474, 25624 and 25756 of 1998 had been placed before this court wherein the learned Judge of this court observed: “The petitioners in these cases claimed to belong to "Tammali" caste, which according to them is listed as backward class – D (BC-D) under G.O.Ms.No.1793 dated 23-09-1970. One of the petitioners applied for professional course – M.D. Course in Ayurveda and one completed B.Ed., course and was selected as Teacher. They claimed reservation and in that connection applied for caste/community certificate as belonging to BC-D, which was refused relying on G.O.Ms.No.20 dated 21-07-1997. Therefore, they filed these writ petitions. Impugned G.O.Ms.No.20 dated 21-07-1997 was issued to modify Serial No.29 of Group-D listed backward classes under G.O.Ms.No.1793 dated 23-09-1970, to the effect that “Tammali caste confined to five Districts – Adilbad, Karimnagar, Mahabubnagar, Nalgonda and Nizamabad of Telangana region and not to other parts of Andhra Pradesh. The petitioners in these writ petitions are from Prakasam District and therefore they were not given caste certificates as BC- D. It is mainly contended that G.O.Ms.No.1793 dated 23-09-1970 was passed based on recommendations of a commission which conducted a detailed enquiry and that without any such enquiry the Government cannot issue impugned G.O.Ms.No.20 dated 21-07-1997 notifying Tammali caste only in five districts mentioned above as BC-D and not treat Tammali caste in other districts of Andhra Pradesh as BC-D. Similar counter-affidavits are filed opposing the writ petitions. While making reference to the report dated 25-03-1977 of Anantharaman Commission, it is stated that the impugned G.O.Ms.No.20 dated 21-07-1997 was issued based on recommendations modifying G.O.Ms.No.1793 dated 23-09-1970 in which Tammali was recognized as BC-D for entire Andhra Pradesh. Relevant portion in the counter-affidavits reads as under: It is submitted that on a detailed examination and the evidence on record, the Commission, by its Report dated 25-03-1977, recommended to Government as hereunder: “(1) We hold that the caste "Tammali" recommended for inclusion by the Anantharaman Commission and accepted by the Government in their Order dated 23-09-1970 at Sl.No.29 of Group-D of the existing list of B.Cs. was a “Shudra Caste” confined to the 5 Districts of Nalgonda, Mahaboob Nagar, Karimnagar, Nizamabad and Adilabad of Telangana region and not to other parts of A.P. We also recommend to Government to issue appropriate modifications to the aforesaid order still in force incorporating the above recommendations; And (2) We recommend to the Government of A.P. to issue guidelines on issue of Social Status/Caste Certificates as formulated by the Supreme Court in Laveti Giri’s case and also our findings contained in para 36 of this Report”. This Court heard learned counsel for petitioners and learned Assistant Government Pleader for Social Welfare. Learned counsel for the petitioners contended that when initially Tammali caste was included in G.O.Ms.No.1973 dated 23-09-1970 as BC-D for entire Andhra Pradesh based on recommendations, as per Articles 15(4) and