*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY Writ Petition Nos.9616, 9622 & 9676 of 2007 % 17.10.2008 Between: Golla Jayamma and others. .... PETITIONERS AND The District Collector and others. ...RESPONDENTS ! COUNSEL FOR PETITIONER: Sri A.Kranthi Kumar Reddy ^ COUNSEL FOR RESPONDENTS : G.P. for Panchayat Raj & Sri C.Prakash Reddy < Gist: > Head Note: ? CITATIONS: 1. 2007(1) ALD 779 2. AIR 1961 SUPREME COURT 1316 3. AIR 1961 SUPREME COURT 1474 4. AIR 1964 SUPREME COURT 136 5. AIR 1965 SUPREME COURT 183 6. 1927 AC 505 7. 2004(5) ALD 525 8. 2005(5) ALD 742 9. AIR 1964 SUPREME COURT 136 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 9616, 9622 & 9676 of 2007 COMMON JUDGMENT: The subject matter of these three writ petitions is identical. Hence, they are disposed of through a common judgment. Elections to the Narayanapuram Gram Panchayat were held on 06.07.2006. The petitioners in these writ petitions were declared elected as Members of Ward Nos.1, 6 and 2 respectively. The persons arrayed as respondents No.2 in each of the writ petitions (for short ‘the respondents’) ﬁled O.P.Nos.2, 5 and 3 respectively before the Election Tribunal-cum- Junior Civil Judge, Alampur, challenging the election of the petitioners. The common ground urged in all the election petitions is that the petitioners herein have given birth to third child after expiry of one year from 30.05.1994, on which date the Andhra Pradesh Panchayat Raj Act, 1994 (for short ‘the Act’), came into force. The petitioners denied the allegations. They have also raised objection as to the jurisdiction of the Tribunal to decide the said issue. Through separate but similar judgments, dated 16.04.2007, the Tribunal allowed the election petitions. The election of the petitioners was set aside and the respondents were declared elected. The petitioners contend that an issue relating to the disqualiﬁcations under Sections 17, 18 and 19 of the Act is to be determined in accordance with the procedure prescribed under Section 22 of the Act and that there is no scope for the Tribunal to entertain the O.Ps. It is urged that the respondent did not plead, much less prove the basic and relevant facts. They further contend that the Tribunal deviated from the settled principles of evidence and held that the petitioners incurred disqualiﬁcation by placing burden upon them, though no documentary or oral evidence was adduced, by the respondents, on material aspects. On behalf of the respondents, it is pleaded that once it is not disputed that the petitioners have more than two children, the burden rests upon them to prove that the third child was not born after 30.05.1995. They assert that the jurisdiction of the Tribunal to decide the question of disqualiﬁcation under Section 17 to 19 of the Act, in an election is independent of the power of the District Court under Section 22 of the Act and that there is no overlapping. Learned counsel for the petitioners submits that the proceedings instituted by the respondents before the Tribunal are more akin to the applications, under Section 22 of the Act, inviting opinion relating to disqualiﬁcation, than the election petitions, provided for under the Act and the Rules. He also submits that even if the election petitions are maintainable, it was obligatory for the respondents to plead and prove the facts leading to disqualiﬁcation and that not a word was said about the manner, in which, the petitioners are said to have incurred disqualification. He further submits that the Tribunal rested the burden of proof upon the petitioners and bestowed its attention only to scrutinize the evidence adduced by the petitioners, though no evidence, worth its name, was adduced by the respondents. Learned counsel appearing for the respondents submits that the view taken by the Tribunal that it has jurisdiction to entertain the O.Ps is based upon a Judgment rendered by this Court in M.Jagannadha Rao vs. Govt. of A.P.[1]. He further submits that where the allegation is that the respondent in an election petition incurred disqualification, on account of his or her giving birth to third child, the burden rests upon such candidates to prove that the birth of the child took place within one year from 30.05.1994. The Tribunal framed the similar issues, in all the petitions, and they read as under: I) Whether this Court has jurisdiction to entertain the petition? II) Whether the District Collector, Mahaboobnagar is necessary party to this petition. If so, the petition is bad for non-joinder of necessary party? III) Whether the 1st Respondent is disqualiﬁed to continue as Ward Member of Narayanapuram Gram Panchayat? IV) Whether the Petitioner is entitled for declaration as Ward member of Narayanapuram Gram Panchayat. In all the election petitions, only the respective petitioner deposed as P.W.1 and the certiﬁcate issued by the M.R.O. was marked as Ex.A.1. No other evidence was adduced on their behalf. The evidence of the petitioners herein was a bit elaborate and in all the cases, R.Ws. 1 to 3 were examined and the date of birth certiﬁcate of the concerned child in each case was marked as Ex.B.1. Two questions arise for consideration in this batch of writ petitions. The ﬁrst is as to whether the Tribunal had the jurisdiction to entertain the election petitions to determine the issue as to the disqualiﬁcation mentioned in Section 19(3) of the Act. The second is about the party, on whom the burden to prove the alleged disqualification rests. The Act stipulates the disqualiﬁcations of diﬀerent categories in Section 17, 18 and 19 of the Act. Section 22 of the Act prescribes the procedure to be followed in deciding the question of disqualiﬁcation under the relevant provisions. The District Court is conferred with the power to adjudicate such questions and the adjudication can be at the instance of various authorities mentioned therein. It needs to be noted that the disqualiﬁcations stipulated under Sections 17, 18 and 19 of the Act not only operate as a bar against an individual for being elected to an Oﬃce, but also to continue therein, even if elected. If a disqualiﬁcation of one category or the other is pleaded as a ground for setting aside the election of a person, the only remedy is to present an election petition as provided for under Section 233 of the Act and the Rules made thereunder. The Court of Junior Civil Judge, which is designated as Election Tribunal, is conferred with the jurisdiction to entertain the election petitions in relation to Gram Panchayats. Challenge to an election in any other manner is prohibited under Article 243-O of the Constitution of India and Section 233 of the Act. The remedy or the mechanism provided for under Section 22 of the Act is not in the form of an election petition. While an election petition has to be ﬁled within a stipulated time from the date of election, there is no such restriction to ﬁle a petition under Section 22 of the Act. The parameters for adjudication are also somewhat diﬀerent for the two categories of proceedings. In a petition ﬁled under Section 22 of the Act, the adjudication is conﬁned to declaration as to whether an elected person incurred disqualiﬁcation under Sections 17 to 19 of the Act. It is not the concern of the Court as to what consequences should ﬂow form such declaration. In an election petition, on the other hand, the Tribunal is conferred with the power to set aside the election, may be on the same ﬁnding, and to declare the next man in terms of majority, as elected. Though the adjudication into the question of disqualiﬁcation, soon after the election or much thereafter, can be sought in a petition under Section 22 of the Act, the option for an aggrieved party to institute an election petition, if it is otherwise tenable, cannot be scuttled. In M.Jagannadha Rao’s case (1 supra), this Court held that the remedy under one provision is not exclusive of the other and that they operate in totally different fields. If one closely examines issue No.3, framed by the Tribunal, an impression would certainly be gained that it is the one, which can constitute the subject matter of a petition under Section 22 of the Act, than an O.P. under Section 233 of the Act. Be that as it may, the parties understood the dispute between them as to the disqualiﬁcation at the inception viz., while ﬁling the nominations. Therefore, the ﬁrst question deserves to be answered against the petitioners and that the election O.Ps. ﬁled against them are maintainable in law. The second question concerns mostly about the principles of evidence. The pleadings in all the O.Ps. are somewhat abstract in nature. Except stating that the petitioners herein have incurred disqualiﬁcation by giving birth to more than two children, no particulars are mentioned as to the date of birth of the third child, much less to any supporting material. The petitioners ﬂatly denied the allegation that they have incurred disqualiﬁcation. Even assuming that the respondents maintained precision of the pleadings and reserved their right to adduce evidence during the trial, they failed at that stage also. The oral evidence is scanty and devoid of any particulars. The documentary evidence is equally irrelevant on this question. In fact, the Tribunal itself summed up the purport of the pleadings and evidence of the respondents herein as under: “It is not the speciﬁc allegation of the petitioner that the last child of the 1st Respondent was born after one year of the commencement of the act and the third child is not covered under the exemption. The petitioner neither alleged in her pleading not let any evidence in this regard.” This observation is common to all the O.Ps. The conclusions, that can be derived from the observation must have resulted in dismissal of the petitions, since the petitioners therein failed to plead or prove the necessary facts. In fact, there was no necessity for the petitioners herein to adduce any evidence, because there was nothing to be rebutted. All the same, as advised, they have adduced fairly elaborate evidence, both oral and documentary. The Birth Certiﬁcate issued by the competent authority under the Registration of Births and Deaths Act in respect of the third child was ﬁled in each case. The Sarpanch, who issued the certiﬁcate, was examined as R.W.2. The Election Authority-cum-Mandal Parishad Development Officer was examined as R.W.3. The entire discussion on issue No.3 was devoted to the validity of the certiﬁcates issued under the Registration of Births and Deaths Act, relied upon by the petitioners. The evidence of the witnesses examined on their behalf was discussed and thereafter, the provisions of the Registration of Births and Deaths Act were analysed. The certiﬁcates were ignored, on the ground that they were not issued by the Executive Oﬃcer of the Panchayat. The observations or ﬁndings of the Tribunal on this aspect, in all the three cases, read on these lines: “According to her chief aﬃdavit the 1 st Respondent is having three children and her third child was born within one year from the date of the commencement of the Act. Except her oral assertion there is no other cogent evidence in support of her contention. As per the evidence available on record the evidence of 1st Respondent is not reliable and Ex.B1 is not proved. The 1st Respondent is failed to discharge onus of proof that her third child was born within one year from the date of the commencement of the act. Hence this point decided against the 1st Respondent and in favour of the petitioner.” It is apt to mention here that the observation of the Tribunal that the respondents herein neither alleged in their pleadings that the petitioners herein have given birth to third child and thereby incurred disqualiﬁcation nor they have adduced any evidence, was made at the commencement of discussion on point No.3 The Tribunal rested its ﬁnding, on the fact that the petitioners herein failed to discharge their onus of proof. Therefore, it becomes necessary to make reference to Sections 101 to 103 of the Evidence Act, which deal with the burden of proof in general and burden of proof of a particular fact. The provisions are precise and it is useful to extract them. They read as under: 101. Burden of proof:- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. 102. On whom burden of proof lies:- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. 103. Burden of proof as to particular fact:- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations (a) A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission. (b) B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it. The language employed in the said provisions gives substantial guidance in this regard. The burden of proof is the one, which covers the entire case and rests upon the person, who makes an eﬀort to convince the Court to give a judgment, as to his right or entitlement, in his favour. In the course of adjudication of the larger question, it may become necessary to decide certain facts, which are either in the knowledge of the plaintiﬀ or which are known only to the defendant. In such cases, Section 102 or 103 gets attracted. These principles have their origin in the Dharmakosa of Narada, wherein it is said as under: “What the claimant has fully declared word for word in the plaint, he must substantiate by adducing evidence at the third stage of the case.” “Where the defendant has denied the plaint (allegations) by means of a special plea (pratyavascandana), it becomes incumbent on him to prove his assertion, and he is then placed in the position of a claimant.” Brihaspati declared as under: “ The plaintiﬀ shall prove his declaration and the defendant his special plea;” Proof of the facts pleaded in the proceedings, civil or criminal, is a very important step, in the adjudication, under any system. The principles, underlying the method of proof, are almost universal. Basically, it is for the person, who approaches the Court seeking a relief or remedy, to prove, what is pleaded by him. In the criminal cases, the prosecution initiates the proceedings stating certain facts and it is for it, to prove them. Certain exceptions are, however, recognized, wherein the defending party in a civil or criminal case also has to discharge the burden, depending on the circumstances. In the normal parlance, this is known as “onus of proof”. In the Evidence Act, the expression “onus of proof” is not employed. Not only in the Heading of the Chapter, but also in the text of various sections, the expression “burden of proof” is used. On a close scrutiny of various Sections of Chapter VII of the Evidence Act, it becomes clear that a distinction is made between the burden of proof, as a matter of law and pleading, on the one hand, and the burden of establishing a case through evidence, on the other hand. In a way, it can be said that the ﬁrst one is reﬂected in Section 101 of the Evidence Act. In clear and unambiguous terms, it directs that it is for the party, who desires the Court to give a judgment (which, invariably, is the plaintiﬀ) who has to prove the facts, which he asserts. This becomes clear even from the stage of the institution of the proceedings. The second part viz., the burden of establishing a case through evidence becomes clear, after the defence is delivered, and at the stage of framing of issues. As is well known, the written statement in a suit may contain all or any of the four types of pleas viz., admission, denial, fresh case and res judciata. If a principal fact pleaded by the plaintiﬀ that constituted the basis for his claim is admitted by the defendant, the necessity for the former to prove that fact ceases to exist. In case, the admission is as to the whole case, without there being any necessity for trial, a judgment deserves to be delivered. Order X C.P.C. provides for such a facility. On the other hand, if it is only in relation to certain aspects, and the prayer in the suit is resisted on some other grounds, it becomes necessary for the Court to undertake an exercise to identify the actual area of controversy. Even at that stage, some times recourse needs to be had to certain provisions of law, which provide for an inference in a given set of facts. Chief Justice Subba Rao in his inevitable style, particularly as to brevity and relevance, has explained the whole concept together with illustration in Kundan Lal vs. Custodian, Evacuee Property[2]. Reproduction of the relevant portion of the judgment would avoid the necessity of explaining the concept further, which reads as under: “The rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act. The phrase “burden of proof” has two meanings- one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is ﬁxed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces suﬃcient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admissions, made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact.” An illustration, to drive home the point, was furnished in the judgment, as under: To illustrate how this doctrine works in practice, we may take a suit on a promissory note. Under S. 101 of the Evidence Act, “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”. Therefore, the burden initially rests on the plaintiﬀ who has to prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved, the rule of presumption laid down in S.118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiﬀ; but as soon as the execution is proved, S. 118 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant.” As a matter of fact, a reading of the entire judgment would be more instructive. In another judgment in Nanji & Co. vs. Jatashankar Dossa[3] , delivered with a short time, the learned Judge summed up the discussion as under: “Under the Evidence Act there is an essential distinction between the phrase “burden of proof” as a matter of law and pleading, and as a matter of adducing evidence. Under S.101 of the Evidence Act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other.” In Raghavamma vs. Chenchamma[4], the same learned Judge explained the distinction between the burden and onus of proof, as under: “There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiﬀ to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. In criminal cases also, the same dichotomy exists. The burden to prove the facts alleged against the accused squarely rests upon the prosecution. Where, however, the accused pleads certain facts, in his special knowledge or otherwise, which, if accepted, would extricate him from the charge, the burden rests upon him to prove them. Plea of alibi can be cited as an instance. Whether one calls it as burden of proof or onus of proof, it is to be guided by the principles mentioned above. The well known text books on the law of evidence also proceed on the same lines. If a Civil Court is attentive enough at the stage of framing of issues, much of the confusion in relation to placing the burden of proof on a particular party can be avoided. The language employed while framing an issue, in fact would disclose as to which of the parties has to prove the relevant facts. More often, the diﬃculty arises, if issues are framed in a casual manner, and the parties are made to litigate at a later stage, as regards discharge of burden of proof. Secondly, identifying the actual cause of action would also have a bearing on the burden of proof. It is well known that cause of action is a bundle of facts, to be pleaded by the plaintiﬀ, as the basis for grant of relief. It must be recognized that in a cause or litigation, not only the plaintiﬀ but also the defendant has the knowledge of several facts. However, it is always for the plaintiﬀ to prove the facts, which are necessary to constitute the basis for grant of the relief in his favour. The mere fact that the defendant is also aware of some