THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4575 OF 2005 DATED APRIL, 2011 BETWEEN Smt.Savarapu Jayamani …Petitioner And The Election Tribunal-cum- Senior Civil Judge, Bobbili, Vijayanagaram District and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4575 OF 2005 ORDER: The petitioner was elected as a Zilla Parishad Territorial Constituency Member from Seethanagaram Mandal, Vizianagaram District, on 15.07.2001. Her election was called in question by the defeated candidate, the second respondent herein, in Election O.P.No.1 of 2001 before the Election Tribunal-cum-Senior Civil Judge, Bobbili, on the ground that the petitioner suffered a disqualification for election under Section 19(3) read with Section 184(2) of the Andhra Pradesh Panchayat Raj Act, 1994 (for brevity, ‘the Act of 1994’). By Order and Decree dated 01.03.2005, the Election Tribunal allowed Election O.P.No.1 of 2001, setting aside the election of the petitioner and declaring the second respondent as the duly elected Member from Seethanagaram Zilla Parishad Territorial Constituency. Hence, this petition invoking the certiorari jurisdiction of this Court. This Court granted interim suspension of the order of the Election Tribunal on 11.03.2005 which was extended until further orders on 28.03.2005. By virtue of the interim orders, the petitioner continued in office and completed her term in the year 2006. In effect, the directions of the Election Tribunal are rendered otiose. However, as the declaration of the Election Tribunal with regard to the disqualification suffered by the petitioner, owing to the finding that the birth of her third child was beyond the cut-off date stipulated in Section 19(3) proviso of the Act of 1994, would have an impact on the petitioner’s future political career, Sri M.V.Durga Prasad, her counsel, pressed for adjudication of the case on merits on this aspect. According to the learned counsel, the petitioner’s third child was born on 09.12.1994 and not on 20.07.1995 as contended by the second respondent. He therefore asserted that the statutory disqualification was not applicable on facts in view of the proviso to Section 19(3) of the Act of 1994. He pointed out that the date of birth of the third child was duly proved by the petitioner by adducing in evidence the Births Register maintained by Peda Bhogila Gram Panchayat (Ex.B.3) and the certified copy of the birth certificate (Ex.B.2). The learned counsel stated that in the light of this evidence, the presumption under Section 35 read with Section 81 of the Indian Evidence Act, 1872 (for brevity, ‘the Act of 1872’) would be attracted. He argued that in the light of this clinching evidence, the Election Tribunal ought not to have returned a finding that the date of birth of the third child of the petitioner was 20.07.1995 as contended by the second respondent. Smt.M.Bhaskara Lakshmi, learned counsel for the second respondent, on the other hand, contended that the school record (Exs.A.2 and A.3) pertaining to the petitioner’s third child clearly evidenced that his date of birth was entered therein as 20.07.1995 and as the same remained unaltered, the finding of the Election Tribunal based on the said exhibits could not be assailed. Section 19(3) of the Act of 1994 reads as under: “19. Disqualification of Candidates:–– (1) ……… (2) ……… (3) A person having more than two children shall be disqualified for election or for continuing as member: Provided that the birth within one year from the date of commencement of the Andhra Pradesh Panchayat Raj Act, 1994 hereinafter in this clause referred to as the date of such commencement, of an additional child shall not be taken into consideration for the purposes of this clause; ………” Section 184(2) makes the provisions of Section 19 applicable to a member of the Zilla Parishad on par with members of the Gram Panchayat. As the Act of 1994 came into effect from 30.05.1994, the first proviso to Section 19(3) renders the birth of a third child after 30.05.1995 a disqualification for election under the Act of 1994. In the present case, according to the petitioner, her third child was born on 09.12.1994, well before the stipulated cut-off date whereas the second respondent would maintain that the third child of the petitioner was born on 20.07.1995, thereby inviting the disqualification under the provision to contest the subject election. Both parties adduced evidence in support of their contentions. The petitioner relied upon the Births and Deaths Register (Ex.B.3) maintained by the Gram Panchayat of Peda Bhogila, where her third child was born and the birth certificate (Ex.B.2) issued by the said Gram Panchayat wherein the date of birth of her third child was mentioned as 09.12.1994. She also examined the Executive Officer of Peda Bhogila Gram Panchayat (R.W.2) in support of the above evidence. The second respondent, on the other hand, examined the Head Master of M.P.Elementary School, Peda Bhogila, as P.W.2 and adduced in evidence the Register of Admissions of the said School (Ex.A.2) and the entry therein pertaining to the admission of the third child of the petitioner (Ex.A.3), indicating his date of birth as 20.07.1995. Faced with this contradictory documentary evidence, the Election Tribunal disbelieved Exs.B.2 and B.3 on the ground that the name of the petitioner’s third child, Avinash Ambedkar, had been entered in the Register of Births and Deaths (Ex.B.3) in a different handwriting with different ink. It accordingly placed reliance on the school record, taking into account the deposition of the Head Master, P.W.3, who stated to the effect that the father of the child, the petitioner’s husband, had furnished the information as to his date of birth. Sri M.V.Durga Prasad, learned counsel, relied on case law to support his contention that this approach on the part of the Election Tribunal was unsustainable in law. The learned counsel pointed out that the evidence of the Head Master, P.W.3, was not consistent and there was no proof of the petitioner’s husband having furnished the date of birth of the child as 20.07.1995. The learned counsel further contended that in the light of the presumption of genuineness which attaches to the entry in the birth record maintained by the competent authority under the provisions of the Act of 1872, the Election Tribunal ought not to have brushed aside the same peremptorily. I n RAVINDER SINGH GORKHI v. STATE OF U.P.[1], the Supreme Court observed that Section 35 of the Act of 1872 requires certain conditions to be fulfilled before a document can be held to be admissible thereunder: “(i) it should be in the nature of an entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto.” Needless to state, the Births and Deaths Register maintained by the competent authority, the Gram Panchayat of the Village, in due accordance with the prescribed procedure would, in the usual course, be covered by Section 35 of the Act of 1872. In CIDCO v. VASUDHA GORAKHNATH MANDEVLEKAR[2], the Supreme Court observed: “18. The deaths and births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent (See Birad Mal Singhvi v. Anand Purohit[3]).” In the present case, except for the statement of the Head Master, P.W.3, that the father of the third child furnished his date of birth as 20.07.1995, there is no other evidence in support of this claim. In any event, the birth record would have primacy over the school record. This legal position is further exemplified by the later Judgment of the Supreme Court in MADAN MOHAN SINGH v. RAJNI KANT[4], wherein it was observed that if the date of birth depicted in the school register/certificate stands belied by the contemporaneous documents like the date of birth register, the entry in the school register is to be discarded. In C.THIMMAIAH v. STATE OF A.P.[5], a Division Bench of this Court affirmed this legal position and held that the births and deaths register maintained by the statutory authority raised a presumption of correctness and would prevail over an entry made in the school register. The only reason furnished by the Election Tribunal for discarding the entry of the date of birth of the third child as 09.12.1994 in Ex.B.3 Register is that the name of the third child was entered in a different handwriting and with a different ink, thereby indicating that it was subsequently interpolated. The Election Tribunal however lost sight of the fact that the register was maintained in seriatim and the entry made on 16.12.1994, in the said seriatim, indicating the date of birth of the third child of the petitioner as 09.12.1994, contained the name of the father and the mother. Therefore, even if the name of the child had been subsequently interpolated it did not have the effect of rendering the entry suspect. It is nobody’s case that the petitioner, having had a child on 09.12.1994, had another child thereafter on 20.07.1995. Therefore, once the entry in the register reflected the name of the parents correctly and was made in due and proper course as per seriatim, mere interpolation of the child’s name thereafter is of no consequence. The presumption of genuineness attaching to the said entry under Section 81 of the Act of 1872 did not therefore stand negated by such interpolation. Once the entry of the date of birth in the said register is accepted to be genuine, in the light of the law laid down by the Supreme Court and followed by this Court referred to supra, the said entry would prevail over the entry in the school record. The order of the Election Tribunal based on the entry in the school record overlooking the statutory birth record is therefore unsustainable in law. The impugned order is accordingly set aside and the Writ Petition is allowed. In the circumstances, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. ________APRIL, 2011. VGSR [1] (2006) 5 SCC 584 [2] (2009) 7 SCC 283 [3] 1988 Supp. SCC 604 = AIR 1988 SC 1796 [4] AIR 2010 SC 2933 [5] 2010 (4) ALT 67 (DB)