IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTIETH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos. 24880 and 25025 of 2008 WRIT PETITION NO : 24880 of 2008 Between: Kamasani Pedda Kotaiah S/o. Venkateswarlu R/o. Sivapuram Village, Vinukonda Mandal, Guntur Dist. ..... PETITIONER AND 1 Chimakurthi China Venkateswarlu (Hindu) S/o. Pullaiah R/o. Sivapuram Village, Vinukonda Mandal, Guntur District. 2 The Election Office, Stage - I Sivapuram Gram Panchayat, Vinukonda Mandal, i.e., R. Nageswara Rao, (A.E.), Panchayat Raj, Bollapalli, Guntur District. 3 The Election Office, Stage - II Sivapuram Gram Panchayat, Vinukonda Mandal, i.e., M. Ugandhar, School Assistant, Z.P.H. School, Muppalla, Ipur Mandal, Guntur District. 4 The District Election Authority Gram Panchayat Elections i.e., Joint Collector, Guntur, Guntur District. 5 The Deputy District Election Authority I.e., R.D.O. Narasaraopet, Guntur District. 6 Perusomula Polaiah (Hindu) S/o. Pullaiah R/o. Sivapuram Village, Vinukonda Mandal, Guntur District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ, order or direction more particularly one in the nature of "Writ of Certiorari" call for the records relating to and in connection with the order in Election O.P.No.2/2006 dt.17-10- 2008 on the file of the Election Tribunal cum Junior Civil Judge, Vinukonda, Guntur District wherein the Petitioner's election as Sarpanch of Sivapuram Gram Panchayat, Guntur District is set aside and the District Collector was directed to take further necessary steps and to declare the same as illegal arbitrary and contrary to the Rules and consequentially to quash the same. Counsel for the Petitioner:MR.V.V.LAKSHMI NARAYANA Counsel for the Respondents: O.MANOHAR REDDY(SC FOR APTRANSCO) WRIT PETITION NO : 25025 of 2008 Between: Cheemakurthi China Venkateswarlu S/o. Pullaiah R/o.Sivapuram Village, Vinukonda Mandal, Guntur District. ..... PETITIONER AND 1 The Electilon Office, Stage I Sivapuram Grampanchayat, Vinukonda Mandal, Guntur District. i.e., R. Nageswara Rao (A.E.), Panchayatraj Bollapalli. 2 The Electilon Office, Stage II Sivapuram Grampanchayat, Vinukonda Mandal, Guntur District. i.e., M. Ugandhar, School Assistant ZPH School, Muppalla, Ipur Mandal, Guntur District. 3 The District Electilon Authority, Gramapanchayat Elections i.e., Joint Collector, Guntur. 4 Deputy District Electilon Authority, i.e., RDO, Narasaraopet. 5 Kamasani Peda Kotaiah S/o. Venkateswarlu R/o.Sivapuram Village, Vinukonda Mandal, Guntur District. 6 Perusomula Polaiah S/o. Pullaiah R/o.Sivapuram Village, Vinukonda Mandal, Guntur District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Certiorari or any other appropriate writ or direction calling for the records relating to the order of the Election Tribunal-cum-Junior Civil Judg, Vinukonda, Guntur District passed in E.O.P.No.2/2006 dated 17.10.2008 and set aside the same in so far not declaring the peitioner as elected Sarpanch of Sivapuram Grampanchayat, Vinukonda Mandal, Guntur District and consequently declare the petitioner as elected Sarpanch of Sivapuram grampanchayat Vinukonda mandal, Guntur District. Counsel for the Petitioner:MR.O.MANOHER REDDY Counsel for the Respondents : MR.M.PRABHAKAR RAO The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos.24880 and 25025 of 2008 COMMON ORDER: An order, dated 17.10.2008, passed by the Election Tribunal- cum-Junior Civil Judge, Vinukonda, in E.O.P.No.2 of 2006 is challenged in these two writ petitions. For the sake of convenience, the parties herein are referred to as arrayed in W.P.No.24880 of 2008. The petitioner was elected as Sarpanch of Sivapuram Gram Panchayat of Vinukonda Mandal, Guntur District, on 29.07.2006. The first respondent, who contested and lost against the petitioner, filed E.O.P.No.2 of 2006 before the Election Tribunal-cum-Junior Civil Judge, Vinukonda. It was alleged that the petitioner incurred disqualification under Section 19(3) of the A.P. Panchayat Raj Act, 1994 (for short ‘the Act’), by giving birth to a third child, after 30.05.1995. The petitioner denied the allegation and pleaded that the third child was born on 15.07.1994. Through its order, dated 17.10.2008, the Tribunal had set aside the election of the petitioner and directed the Election Authority to conduct fresh elections. The petitioner challenges the order of the Election Tribunal. The first respondent filed W.P.No.25025 of 2008 challenging the order of the Tribunal, insofar as it did not grant the relief of declaring him elected as Sarpanch. The petitioner contends that the first respondent failed to prove the allegation that the third child of the petitioner was born on 15.07.1996, as alleged. He contends that even according to the evidence on record, the date of birth of the child, by name, Atchamma, is 15.07.1994. It is also urged that the Tribunal proceeded on assumptions, even in the matter of disqualifying the petitioner. The first respondent, on the other hand, contends that he had placed best possible evidence before the Tribunal and on a thorough discussion thereof, a finding was recorded to the effect that the date of birth of the third child, by name, Atchamma is invariably beyond 30.05.1995 and no exception can be taken to it. Heard learned counsel for the petitioner, learned counsel for the first respondent and learned Government Pleader for Panchayat Raj. In the election that was held on 29.07.2006, the petitioner, respondents 1 and 6 filed their nominations for the office of Sarpanch. While the petitioner secured 531 votes; respondent No.1 secured 513 votes and respondent No.6 secured 21 votes. Therefore, the petitioner was declared elected. The only ground on which the first respondent challenged the election of the petitioner was that the petitioner gave birth to a third child on 15.07.1996. Section 19(3) of the Act provides for disqualification of an individual, who has more than two children, either from contesting, or to continue in any elected office. Exception is carved out in cases, where a child, in excess of two, is born within one year, from the date on which the Act came into force. The Act came into force on 30.05.1995 and the third child, if born before 30.05.1995, would not bring about disqualification for the parents. On behalf of first respondent, PWs.1 to 5 were examined and Exs.P.1 to P.8 were marked. On behalf of petitioner, RWs.1 to 4 were examined and Exs.B.1 was marked and Exs.X.1 and X.2 were taken on record. Since the first respondent wanted the election of the petitioner to be set aside, the burden squarely rested upon him to prove the facts pleaded by him. Though in his oral evidence, PW.1 repeated the contents of the election petition, he did not file any document to prove the same. It was only through PW.4, who was a witness summoned through the Court, that Exs.P.1 to P.8, copies of school records, were marked. Ex.P.1 is an application form, in respect of the third child of the petitioner, by name, Atchamma; Ex.P.2 is the record sheet; Ex.P.3 is the admission register and Exs.P.4 to P.8 are attendance registers from 1988-89 to 2005-06. Strictly speaking, this evidence cannot be said to have been adduced by the first respondent and the marking ought to have given in ‘c’ series. Be that as it may, a perusal of Exs.P.1 to P.8 clearly discloses that the date of birth of the third child of the petitioner was mentioned as 15.07.1994. This not only belies the case of the first respondent, but also adds strength to the plea raised by the petitioner. Except this evidence, the first respondent did not rely on any other evidence. The trial Court unfortunately proceeded as though the entries in Exs.P.1 to P.8 were interpolated, and almost ignored them, little realizing that if Exs.P.1 to P.8 are to be ignored, there is nothing, which supports the plea of the first respondent. The basis on which the Tribunal arrived at the conclusion that the third child of the petitioner was born beyond 30.05.1995 was that the date of birth of the second child is 16.10.1993. It was assumed that another child could not have born within that short spell, and accordingly a presumption was drawn to the effect that the date of birth of the third child is beyond 30.05.1995. On the face of it, this inference is fallacious. Firstly, the date of birth of the second child is not at all in issue. It is only when the date of birth of the second child is beyond any pale of controversy, an effort can be made to draw an inference, to reckon the date of birth of the third child. Secondly, even if the period is to be reckoned, it need not stop at 15.07.1994 and the disqualification does not get attracted as long as the date of birth of the third child does not go beyond 30.05.1995. In W.P.No.9616 of 2007 and batch, this Court had undertaken extensive discussion as to the nature of evidence to be adduced in matters of this type. It was held that the burden to prove that a third child or subsequent child was born beyond 30.05.1995, is squarely upon the person who pleads it and the person who is sought to be disqualified cannot be expected to prove the negative. In the instant case, apart from there not being any reliable evidence adduced by the first respondent, the petitioner has filed Ex.B.1, the date of birth certificate of the third child, which accords with the entries in Exs.P.1 to P.8. The disqualification of an individual under Section 93 of the Act would haunt him for the rest of the life. Evidence of very high standard is needed to attach disqualification of such serious nature. A situation of that nature cannot be brought about, on the strength of inferences or presumptions. Hence, W.P.No.24880 of 2008 is allowed and the order of the Tribunal is set aside. W.P.No.25025 of 2008 is dismissed. There shall be no order as to costs. _______________________ Dt.20.11.2008 L.NARASIMHA REDDY, J Note:L.R.Copy to be marked. GJ