THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.5566 AND 5567 OF 2010 26.03.2010 W.P.No.5566 of 2010 Between: Tatiparthi Raghavaiah ….Petitioner AND The Presiding Officer, ZPTC Chair Person, Elections & District Collector, Ananthapur and others …Respondents W.P.No.5567 of 2010 Between: Guvvala Sreekantha Reddy ….Petitioner AND The Presiding Officer, ZPTC Chair Person, Elections & District Collector, Ananthapur and others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.5566 AND 5567 OF 2010 COMMON ORDER: These writ petitions are filed challenging the orders dated 21.12.2009 of the Court of District Judge, Anantapur in two separate original petitions under Section 181-A of the Andhra Pradesh Panchayat Raj Act, 1994 (the Act, for brevity). By two impugned orders, learned District Judge upheld the order of the District Collector dated 27.10.2006 disqualifying the petitioners as Zilla Parishad Territorial Constituency (ZPTC) members of Anantapur Zilla Parishad on the ground that they disobeyed party Whip and voted to the candidate of opposite party for election to the office of Chairperson of Zilla Parishad. W.P.No.5566 of 2010 is filed against the order in O.P.No.460 of 2006 on the file of the District Court by Tatiparthi Raghavaiah (hereafter referred to in this order as ‘first petitioner’). The other writ petition is filed against O.P.No.461 of 2006 by Guvvala Sreekantha Reddy (hereafter referred to as ‘second petitioner’). The first petitioner was elected as Member of ZPTC of N.P.Kunta Mandal in 2006 and second petitioner was elected as Member of ZPTC, Bukkarayasamudram. The District Collector who is an election officer for election of Chairperson and Vice Chairperson of Zilla Parishad, issued notification convening the meeting of the elected ZPTC Members. The meeting was held on 10.07.2006. Indian National Congress (INC) and Telugu Desam Party (TDP) fielded their candidates. Second respondent was TDP’s candidate for Chairperson. Third respondent who is member of Legislative Assembly was appointed as Whip. He issued Whip to petitioners to be present in the special meeting on 10.07.2006 and cast his vote in favour of second respondent for Chairperson and K.Rama Murthy for Vice Chairperson, candidates on behalf of TDP. After elections, T.Kavitamma and M.Narsimhulu candidates on behalf of INC were declared elected as Chairperson and Vice Chairperson respectively. Third respondent gave a complaint to the District Collector alleging that petitioners shifted their loyalties to INC, occupied their seats allotted to INC, deliberately defected the party, disobeyed the party Whip and gave vote in favour of INC candidates for the posts of Chairperson and Vice Chairperson of Zilla Parishad. The Presiding Officer then issued a show cause notice dated 12.07.2006 calling upon the petitioners to explain as to why they should not be declared ceased to be Members of ZPTC under Section 181(1) of the Act for having violated the Party Whip. Both the petitioners separately submitted their written explanations on 24.07.2006. The main contentions were that they occupied the seats where INC members occupied under bona fide belief that all the members take seats at one place and have to raise hands at the time of voting; that the party Whip and other MLAs of TDP obtained signatures of all ZPTC Members of TDP on the paper with an endorsement of receiving copy, took all the copies, that they had no opportunity of reading the contents of the Whip, that the Whip was not even served on the Members of ZPTC, that Members of TDP failed to appear and participate in the proceedings and hence, they had no opportunity to honour the Whip and cast vote in favour of TDP candidates and that in the elections to co-opted members, they voted for TDP candidates. On considering the explanations, the Presiding Officer cum District Collector passed an order on 27.10.2006 declaring that the petitioners ceased to be members of ZPTC of the respective constituencies. Feeling aggrieved by the said orders, the petitioners instituted original petitions under Section 181-A of the Act praying the District Court to set aside the orders of the Presiding Officer cum District Collector and consequently restore their ZPTC Membership. The first petitioner in his O.P., gave evidence as P.W.1 and marked three documents. The third respondent gave evidence as R.W.1 and marked party Whip as Ex.B.1. Second petitioner also gave evidence as P.W.1 and marked four documents and third respondent gave evidence as R.W.1 and marked party Whip as Ex.B.1. Considering the evidence on record, learned District Judge relied on the admissions made by petitioners in their oral evidence, and Ex.A.3 (proceedings of the election), and held that the petitioners invited disqualification as per Rule 22 of the Andhra Pradesh Conduct of Election of Member (Co-opted), President and Vice President of Mandal Parishad and Member (Co-opted), Chairperson and Vice Chairperson of Zilla Parishad Rules, 2006 (the Rules, for brevity) by defying the Party Whip and that they failed to prove that the orders of the District Collector are illegal or violative of statutory provisions or natural justice. Accordingly, both the O.Ps., are dismissed. The counsel for petitioners submits that the Presiding Officer cum District Collector acted illegally beyond his jurisdiction in passing the order, Ex.A.1, disqualifying the petitioners as Members of ZPTC. According to them, the service of party Whip by third respondent was not proved and therefore, Section 181(1) of the Act is not attracted. Nextly, they contend that the election of Chairperson and Vice Chairperson of Zilla Parishad was unanimous and therefore, the party Whip allegedly served on the petitioners became redundant. They would also urge that District Collector himself did not appear before election tribunal and did not submit himself for cross-examination to prove the issue and service of Whip on the petitioners and therefore, the order of the tribunal is vitiated by error. First respondent relied on video clipping of the proceedings of the election meeting and the same was not produced before the tribunal. In the absence of any such evidence, petitioners were deprived of the opportunity to confront witness to prove the defence. Section 181-A of the Act constitutes District Courts having territorial jurisdiction over the area as the tribunal to resolve the dispute as to correctness of the proceedings under which a Member of Zilla Parishad is held to have ceased to hold office as a consequence of disobedience of party Whip issued under second proviso to Section 181(1) of the Act. When the District Court is constituted as fact finding tribunal to examine the correctness of the proceedings of disqualification, in a petition for judicial review, ordinarily the factual dispute cannot be revisited. Whether the statutory tribunal exercised jurisdiction vested in it within the scope of the statute? Whether statutory tribunal exceeded its jurisdiction and whether such tribunal committed grave error apparent on the face of record in interpreting the law correctly and applying the law properly to the facts? These are the only limited queries before a Court of Judicial Review. If the tribunal considered the evidence on record and arrived at a finding, the High Court under Article 226 of the Constitution of India cannot substitute its opinion to that of the tribunal, even if two views are possible. The Court of Judicial Review cannot assume the role of appellate Court and exercise deeper scrutiny of the evidence. These principles are well settled. (see Syed Yakoob v Radhakrishnan[1], H.B.Gandhi v Gopi Nath[2] and State of U.P., v Johri Mal[3]). The conspectus of the impugned order may now be noticed. The evidence of P.W.1 and Ex.A.2 (letter of TDP) and Ex.A.3 (election proceedings of first respondent) are important in the case. In both the cases, evidence is similar. P.W.1, as noticed by District Court, admitted that sitting arrangements were made for INC and TDP members separately, that at the time of election of co-opted Members, TDP members sat together on one side and that when the voting was ordered he and another lifted their hands in favour of candidate of INC. He also feigned ignorance that the entire election proceedings were videographed. Ex.A.3 is a detailed document containing proceedings of election held on 10.07.2006, towards its end, it is clearly stated that the petitioners herein belonging to TDP voted for INC. Ex.A1, proceedings was prepared by District Collector, who was personally present. If only they wanted to prove the defence, nothing prevented the petitioners to summon the District Collector as well as video clipping allegedly available with District Collector because Section 102 of Evidence Act, 1872 casts burden on them. I n R.Jayalakshmamma v Election Tribunal cum Senior Civil Judge, Punganur, Chittoor[4], I have held that when the competent authority issues proceedings that a candidate ceased to hold office, the burden lies on such person to show that he did not incur disqualification. Relevant observations are as follows. The election of the petitioner was assailed on the ground that she incurred disqualification under Section 19(3) of the Act. The burden of proof lies on her because as per Section 102 of the Evidence Act, the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given either side. Assuming that the respondents 2 and 3 did not produce any evidence to prove that case, it is the petitioner who would not succeed in the case if she fails to prove that her child was born within one year from the date of coming into force of the Act. As rightly pointed out by the learned Senior Counsel, the disqualification under Section 19(3) of the Act would disqualify petitioner once for all in her lifetime to seek election for any office or post under the Act. Therefore, this Court has examined the original record and is of considered opinion that the petitioner has failed to discharge the burden in accordance with law and the learned Tribunal was justified in rejecting the evidence adduced by the petitioner. A ground is urged in the writ affidavit and also before this Court that there was no proper service of Whip by third respondent. This appears to be an afterthought. In Ex.A.1, first respondent has summarised the explanation submitted by petitioners in response to show cause notice. In the said explanation, they admit that the third respondent obtained their signatures from all ZPTC Members on a paper as an endorsement of receiving the Whip. This is proper service of Whip and the Rules do not contemplate any specific mode of service of Whip. A perusal of Ex.A.3 would show that the Whip was served and disobeyed by the petitioners. The submission that the election was unanimous cannot be accepted. When the meeting was called at 3.00 p.m., there were fifty members present. The petitioners sat among the INC members. There was bedlam in the meeting. At that stage, 13 ZPTC Members of TDP went out of the meeting. They were called through a mike, in vain. When the voting was ordered, 32 ZPTC members including the petitioners raised their hands in favour of INC candidates. If the election was unanimous, there was no necessity to convene the meeting and there was no necessity for members present to raise the hands. Therefore, the plea of the petitioners is unsustainable. In the result, for the above reasons, it must be held that the impugned orders, dated 21.12.2009, of the learned District Judge in O.P.Nos.460 and 461 of 2006, do not suffer from any error muchless grave error apparent on the face of record warranting interference in these certiorari proceedings. The writ petitions are accordingly dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 26.03.2010 Pln [1] AIR 1964 SC 477 [2] (1992) 2 SCC Supp 312 [3] (2004) 4 SCC 714 [4] 2004 (5) ALD 525