THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY W.P.No.16346 of 2009 Dt:04-02-2010 Between : Chowdary Kamala Bai ..Petitioner And The District Election Authority and others .. Respondents Counsel for the Petitioner: Sri K. Rahuveer Reddy Counsel for respondent : G.P. for Panchayat Raj & Rural Development, Sri K. Venumadhav, for R-5 < GIST >HEAD NOTE: ? CASES REFERRED : [1] 2006 (5) ALT 505 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY W.P.No.16346 of 2009 ORDER: Election to the Laxmipur Gram Panchayat, of Adilabad District was held on 29-07-2006. The petitioner and respondents 5 and 6 contested for the office of Sarpanch. The petitioner secured 213 votes, the 5th respondent, 206 votes, and the 6th respondent 134 votes, and accordingly, the petitioner was declared as elected. The 5th respondent filed O.P.No.22 of 2006 before the Election Tribunal-cum-Junior Civil Judge, Sirpur (for short ‘the Tribunal’). The principal ground urged against the petitioner was that she had four children by the date of election, and thereby incurred disqualification under Section 19 of the A.P. Panchayat Raj Act (for short ‘the Act’). The petitioner opposed the O.P. She contended that her husband Ganapathi, was married to another woman and begot two children, and thereafter he married her, and through their wedlock, two children were born. Her contention was that all the four children of her husband are being treated as though, all of them were born to her. Through its order dated 30-07-2009, the Tribunal allowed the O.P. and has set aside the election of the petitioner. Apart from that, the 5th respondent was declared as elected. Hence, this writ petition. Sri K. Raghuveer Reddy, learned counsel for the petitioner submits that the Tribunal recorded findings without there being any basis. He contends that, though the petitioner took specific plea that she had only two children, and that the other two children, named in the election petition, were born out of the wedlock of her husband, with his first wife, it was not at all taken into account. He submits that except filing the bonafide certificates of the children, the 5th respondent did not place any material to prove that all of them are the children of the petitioner. Sri K.Venumadhav, learned counsel for the 5th respondent, on the other hand, submits that, when prima facie material is placed before the Tribunal, that the petitioner had four children, the burden rested upon her, to disprove that fact. He contends that the Tribunal has undertaken extensive discussion, with reference to the pleadings, and the impugned order does not warrant interference. The petitioner secured majority of votes in the election and was declared as elected, for the office of Sarpanch. The 5th respondent filed O.P., alleging that the petitioner incurred disqualification under Section 19 of the Act. The petitioner flatly denied the same. The Tribunal framed only two points for its consideration, viz., a) whether the petitioner had more children, than two, as on the date of filing of the nomination, and b) whether the 5th respondent is declared as Sarpanch. The 5th respondent deposed as PW-1; a Midwife in a Hospital was examined as PW-2, and the Headmaster, who issued the bonafide certificates, marked as Exs.A-3 to A-5; was examined as PW- 3. Ex.A-1 is the acknowledgement of nomination and Ex.A-2 is the receipt. The petitioner deposed as RW-1, and on her behalf, RWs 2 to 5 were also examined. The principal issue for consideration is, as to whether the petitioner had more than two children, as on the date of filing of the nomination. The 5th respondent relied upon the three bonafide certificates, marked as Exs.A-3 to A-5. In his petition, the 5th respondent stated that the petitioner had four children, by name, Parvathi, Umadevi, Sriram and Sairani. The first child is said to be studying in Upper Primary School, Gangapur Village, and the other three children, in the Government Primary School, Sirpur town. The petitioner stated that the first two children were born to her husband, through his first wife. Exs.A-3 to A-5 are the bonafide certificates issued in respect of three children, viz., Umadevi, Sairam and Sairani. PW-3 was examined to prove them. It was elicited through him that the name of the father, i.e. Ganapathi alone was written, and that the certificates do not depict the name of the mother. Had the disqualification been pleaded against the husband of the petitioner, the record would have been sufficient to prove the facts. The O.P is filed against the petitioner. The petitioner is not the mother of all the four children. When this plea was taken, the Tribunal repelled it, by placing reliance upon the judgment in Nallapati Kotamma v. Lanka Bhagya Lakshmi and others[1] . That was a case, where the parentage of the child was not in dispute. The person against whom the O.P was filed, took the plea that one of the children was given in adoption. The Tribunal rightly placed the burden upon him, to prove it. Such is not the case here. The petitioner flatly denied the allegation, and she stuck to the plea, that she had only two children. Still the Tribunal had set aside the election. The order passed by the Tribunal cannot be sustained in law, since it runs contrary to the principles of evidence. Hence, the writ petition is allowed, and the order in O.P.No.11 of 2006 is set aside. There shall be no order as to costs. ______________________ L. NARASIMHA REDDY, J. Dt.04-02-2010. Note: Mark L.R. copies. (B/O) KO* [1] 2006 (5) ALT 505