*HON’BLE SRI JUSTICE P.S. NARAYANA +WRIT PETITION No.14674 of 2009 % 19-10-2009 #Danavath @ Ramavath Tarabai … Petitioner V. $1. Mudavath Prameela and 7 others … Respondents * * * !Counsel for the petitioner: Sri C. Raghu Counsel for the respondent No.1: Sri E. Madan Mohan Rao Counsel for the respondent No.2: None Counsel for the respondent Nos.3 to 8: GP for Panchayat Raj and GP for Revenue < Gist: > Head Note: ? Cases referred: 1. AIR 1973 SC 2362 2. AIR 1959 SC 422 3. AIR 1964 Rajasthan 126 4. 2003 (6) ALD 252 5. 2003 (3) ALD 427 6. 2004 (5) ALT 400 7. 2005 (1) ALT 403 HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.14674 of 2009 Date: October 19, 2009 Between: Danavath @ Ramavath Tarabai … Petitioner And 1. Mudavath Prameela and 7 others … Respondents * * * ORDER: On 23.7.2009 this Court initially directed the matter to appear in the list on 31.7.2009 at 2-15 p.m. and till then it was directed that the status quo obtaining as on that day be maintained by the parties. On 31.7.2009 this Court issued Rule Nisi and the status quo granted earlier on 23.7.2009 was extended until further orders. 2. The first respondent-contesting respondent filed W.V.M.P.No.2401 of 2009 praying for vacation of the interim order specified supra. 3. Heard Sri C. Raghu, learned counsel representing the writ petitioner, Sri E. Madan Mohan Rao, learned counsel representing the first respondent in the writ petition and the learned Government Pleader for Panchayat Raj and learned Government Pleader for Revenue representing respondents 3 to 8. 4. The counsel on record at this stage made a request for final disposal of the writ petition and, hence, the writ petition was heard finally by this Court and the same is being disposed of finally. 5. The petitioner filed the present writ petition praying for issuance of a writ of Certiorari or any other appropriate writ, order or direction, calling for the records and declaring the order dated 17.7.2009 in O.P.No.4 of 2006 made by the Election Tribunal-cum-Junior Civil Judge, Devarakonda, Nalgonda District, as illegal, arbitrary, without jurisdiction, perverse and contrary to the provisions of A.P. Panchayat Raj Act, 1994 (hereinafter in short referred to as “Act” for the purpose of convenience) and set aside the same and pass such other suitable orders. 6. Sri C. Raghu, learned counsel representing the writ petitioner had taken this Court through the relevant portions of the order under challenge and also had drawn the attention of this Court to the relevant provisions of the Act and also the relevant rules and would maintain that in the facts and circumstances of the case since the order under challenge is not sustainable, the same is liable to be set aside. The learned counsel also had drawn the attention of this Court to the oral and documentary evidence available on record and the relevant findings recorded by the Election Tribunal-Junior Civil Judge, Devarakonda, Nalgonda District and would maintain that the Election Tribunal-Junior Civil Judge, Devarakonda (hereinafter in short referred to as “Tribunal” for the purpose of convenience) had not recorded proper reasons and certain of the important documents had not been considered at all. The counsel also had drawn the attention of this Court to G.O.Ms.No.111 and also the Rules 12 and 13 apart from Sections 17 and 233 of the Act. While elaborating his submissions the learned counsel also laid emphasis on Ex.R-6 and Ex.R-7 and further would point out that except Ex.P-3, no other acceptable evidence had placed before this Court relating to the age and the author of the said document had not been examined and the correspondent was examined. The learned counsel also would point out that the learned Tribunal also adopted double standards in appreciation of evidence. The learned counsel also pointed out to the relevant paras and further would point out that the pleadings of the parties appear to be something different from the nature of evidence and the nature of grounds which had been put forth and the aspect of burden of proof also had not been properly appreciated. The non-framing of appropriate issues for point for consideration also had been pointed out. While further elaborating his submissions the learned counsel representing writ petitioners Sri C. Raghu would maintain that even if for any reason this Court to come to a conclusion that the writ petitioner is to be disqualified to hold the office by virtue of under age, the declaration in favour of the first respondent as having been duly elected cannot be granted, especially, in the absence of necessary pleading and necessary material in this regard. The learned counsel also further pointed out that this aspect of under age cannot be permitted to be raised, especially, in the light of Ex.R-6 and Ex.R-7 and this aspect was not considered at all by the Tribunal and on this ground alone the writ petition to be allowed. While further elaborating his submissions the learned counsel would maintain that despite the limitations imposed on the writ court while exercising Certiorari jurisdiction when the writ court is satisfied that there was non- consideration of the material piece of evidence then definitely the Certiorari jurisdiction can be invoked and the order under challenge suffering from such infirmity definitely can be interfered with. The learned counsel also placed reliance on certain decisions. 7. The learned Government Pleader for Panchayat Raj and the learned Government Pleader for Revenue would maintain that predominantly this is a dispute between the writ petitioner and the first respondent. Since the learned Government Pleader for Panchayat Raj and the learned Government Pleader for Revenue are representing the official respondents, there is no need to make any elaborate submissions except pointing out to the relevant portions of the order under challenge. 8. Sri E. Madan Mohan Rao, the learned counsel representing the first respondent in all thoroughness had taken this Court through Ex.P- 2, Ex.P-3, Ex.P-6 and also paras 14, 15 and 16 and also further pointed out to Ex.R-2, Ex.R-3, Ex.R-5, Ex.R-6 and Ex.R-7 as well. The learned counsel also pointed out to Rule 12 and Rule 13 of the Rules governing the field and further pointed out to the relevant portions of the findings recorded by the Tribunal and would maintain that in the light of the clear and convincing findings recorded by the Tribunal since the same had been done on appreciation of oral and documentary evidence available on record in proper perspective, this is not a fit matter to be interfered with and the same is liable to be dismissed. The counsel also relied on certain decisions to substantiate his submissions. 9. Heard the counsel on record, perused the averments made in the affidavit filed in support of the writ petition, the averments made in the counter-affidavit of R-1, the findings recorded by the Tribunal in O.P.No.4 of 2006 aforesaid and also the other material placed before this Court. 10. The unsuccessful first respondent in O.P.No.4 of 2006 on the file of the Tribunal had challenged the said order in the present writ petition. It is needless to say that the petitioner is the first respondent in the present writ petition, the contesting respondent who filed an application W.V.M.P.No.2401 of 2009 to vacate the interim order. 11. Before taking up further discussion in the light of the order under challenge and the material placed before this Court, it may be appropriate to have a glance at the respective pleadings of the parties, the evidence available on record adduced before the Tribunal and the findings recorded by the Tribunal in nut-shell. 12. The first respondent in the writ petition – the petitioner in O.P.No.4 of 2006 made the following averments in the said O.P. and the said averments in brief are as hereunder. The Government of Andhra Pradesh had announced the election to the post of Grama Sarpanch and Ward Members, M.P.T.C. (Mandal Parishad Territorial Constituency) and Zilla Parishad Territorial Constituencies and in accordance with the said declaration of Chief Election Officer of State Election Commission of Andhra Pradesh had declared election schedule in exercise of the powers conferred by the Article 243 K of Constitution of India and Section 201 of A.P. Gram Panchayat Raj (conduct of election) Rules, 2006. As per schedule the respective Election Officers issued election notification on 15.7.2006 and filing of nomination was started on 15.7.2006 till 19.7.2006 and the scrutiny took place on 20.7.2006 up to 3.00 p.m. and elected candidates list was announced on the same day. The polling held on 6.8.2006 between 7.00 a.m. to 1.00 p.m. The counting was started at 14.00 hours onwards and declared the elected candidate on the same day. The petitioner is a registered voter at Konda Mallepally village vide voters list Sl.No.3367 contested election of the Konda Mallepally Gram Panchayat for the post of Sarpanch with the symbol of ‘DOOR’ (talupu) and respondent No.1 contested with the symbol of ‘GASS STOVE’. The respondent No.3 having received nominations and after scrutiny, published form No.8 showing names of contestants and respective symbols. The post of Sarpanch for Gram Panchayat, Konda Mallepally was reserved for Scheduled Tribes ladies quota. The polling was taken place as per schedule on 06.8.2006, and after completion of voting, the counting was started, from 14.00 hours on that day and after the counting respondent No.4 declared respondent No.1 as successful candidate elected as Sarpanch of Konda Mallepally village. As per the declaration, petitioner secured 1311 votes, while respondent No.1 had secured 1850 votes and thus petitioner was declared defeated by margin of 539 votes by first respondent. 13. Many irregularities and illegalities were committed while receiving nominations by Stage-1 Election Officer. With the result, the election of petitioner was materially effected the entire election and if there was no material irregularities and illegalities, the petitioner would have succeeded and won the election. Respondent No.3 committed following material irregularities and illegalities. (1) R-1 is active worker of ruling party i.e., Congress-I and stage-1 Officer Palla Venkat Reddy working as Head Master, Z.P.H.S. Konda Mallepally and the respondent used heavy influence on him and the Stage-1 Election Officer turned as leather tie acted on the directions of respondent No.1. Thus, respondent No.3 acted partially and caused prejudice by receiving the nomination improperly of respondent No.1 though respondent No.1’s name is not appeared on the electoral final voters list of Gram Panchayat, Konda Mallepally and accepted the nomination of respondent No.1. (2) The stage-1 officer acted contrary to provisions of Section 17 of A.P. Panchayat Raj Act, 1994. Section 17 speaks no person shall be qualified for election as a member of Gram Panchayat unless his name appears on its electoral role and he is not less than 21 of years age. (3) Respondent No.3 while receiving the nominations had not taken proper care on the date of scrutiny on 20.7.2006 in spite of objections raised by petitioner in regard of age of respondent No.1 and he ignored the fact and deaf eared the matter and he ought not have received the nomination, because respondent No.1 had not completed 21 of years age on the date of filing of nominations. (4) Even after the election, the petitioner had submitted several representations to respondent No.6 District Collector, Nalgonda and respondent No.7 Revenue Divisional Officer, Miryalguda requesting to enquire into the matter, but nobody took any efforts to enquire into the matter. Respondent No.3 who is stage-1 officer and in charge of receiving nominations having come under the influence of respondent No.1, with mala fide intention on the date of scrutiny i.e., on 20.7.2006 acted arbitrarily and biased manner and illegally received nomination improperly which ought to have been rejected, because first respondent had not completed her age of 21 years. 14. The first respondent is only 17 years 4 months on the date of filing of nomination and her age is furnished in memo of Secondary School Certificate vide No.13398, dated 02.8.2006. As per certificate issued by office of the Commissioner for Government Examinations, Andhra Pradesh, Hyderabad, Board of Secondary her date of birth is mentioned as 03.3.1989. Respondent No.1 appeared S.S.C. public examination held in the month of March, 2004 with hall ticket No.0612842 through Nirmala High School, Nidamanoor in Nalgonda District wherein also her date of birth is mentioned as 03.3.1989. 15. Many irregularities and illegalities were committed, while receiving the improper nomination of respondent No.1 by respondent No.3 which facilitated the election of first respondent contrary to the provisions of Section 17 of A.P. Panchayat Raj Act, 1994 (hereinafter in short referred to as “Act” for the purpose of convenience). The third respondent ought to have rejected the nomination of first respondent with proper scrutiny as objections raised by the petitioner. Respondent No.3 in collusion with first respondent accepted nomination and facilitated the first respondent to win the election. This election Tribunal had got territorial jurisdiction to try the petition. Respondent No.1 was declared as elected to the post of Sarpanch of Konda Mallepally village on 06.8.2006 and the petition is within the limitation of time. 16. It may be also appropriate to have a glance at the stand taken by the present writ petitioner shown as the first respondent in the said O.P. and the averments made are as hereunder. Several of the averments had been denied. It was also pleaded that Respondent No.1 was born on 31.10.1984 in Srinivasa Maternity & General Nursing Home, Miryalguda run by Dr. B. Nagender and the said doctor had issued certificate that she was born on 31.10.1984 and she studied X class in Vidyaniketan High School, Miryalaguda. Though she studied in the said school, she appeared the examination through Nirmala High School, Nidmanoor, Nalgonda District. The T.C. issued by Vidyanikethan High School shows the date of birth as 31.10.1984 and apart from the same before her marriage she was residing at Donka Thanda, Tripuraram Mandal, Nalgonda District and she was enrolled as a voter and the voters list also shows her age as 21 years at serial No.1054 and she transferred her vote from Donka Thanda to Konda Mallepally and it was transferred and added in “Additional List” and her age was shown as 22 years. Memo dated 22.8.2006, the age certificate issued by Commissioner for Government Examinations, was shown to be issued on the same day and it was based merely on the Secondary School Certificate wherein it was erroneously reflected as 03.3.1989 on wrong information furnished by the Nirmala High School and that she never studied in Nirmala High School but merely appeared through Nirmala High School in SSC examination. The petitioner never raised any objection that her age was 17 years 4 months at the time of filing nomination. Without furnishing of total votes polled and votes polled to the petitioner and respondent No.2, the second relief cannot be granted. The age of the first respondent is 21 years at the time of notification on electoral role. As per the date of birth certificate issued by the Miryalaguda Municipality, vide Proceedings A4/15/MM/2006 in Form No.5 her date of birth is 31.10.1984 and as per Lr.No.A1/3596/2006, dated 14.9.2006, addressed by the R.D.O. Muryalaguda to the Commissioner, Miryalguda Municipality her date of birth was shown as 31.10.1984. The petition is barred by time. 17. The second respondent though filed counter-affidavit had not chosen to contest the matter. Respondent No.5 also filed counter denying the averments made in the O.P. Respondents 3, 4 & 6 to 8 filed a memo of adoption. 18. Issues settled before the Tribunal: (1) Whether the election of first respondent for the post of sarpanch, Gram Panchayat, Konda Mallepally is liable to be set aside? (2) Whether the petitioner is entitled to be declared elected for the post of sarpanch of Gram Panchayat, Konda Mallepally? (3) To what relief? 19. Oral and documentary evidence adduced before the Tribunal: Witnesses examined for the petitioner: P.W.1: Mudavath Prameela P.W.2: G.Vijayalaxmi Pandit P.W.3: Ch. Yadagiri Reddy Witnesses examined for the respondents: R.W.1: Ramavath Thara Bai R.W.2: G. Rajender Kumar R.W.3: Dhanavath Kamsa R.W.4: Dr. Nagender Bokre R.W.5: Pall Venkat Reddy Exhibits marked on behalf of petitioner: Ex.P-1/19.7.2006: Nomination deposit receipt Ex.P-2/22.8.2006: Age certificate of R.W.1 issued by Joint Secretary Commissioner for Government Examinations, Hyderabad. Ex.P-3/20.7.2006: Bonafide certificate of R1 issued by Nirmala High School, Nidmanoor. Ex.P-4/ Xerox copy of voters list of Gram Panchayat Konda Mallepally Ex.P-5/ Relevant entry in Xerox of attested copy of nominal roll relating to R.W.1 at serial No.77. Ex.P-6/15.6.2004: Form of transfer certificate related to R.W.1 Exhibits marked on behalf of respondents: Ex.R-1/29.8.2006: Xerox copy of petition in O.P.No.04/06 served on RW.1 Ex.R-2/ Birth certificate of RW.1 issued by R.W.4 Ex.R-3/16.9.2006: Birth certificate of RW.1 issued by Miryalaguda Municipality. Ex.R-4/7.9.2006: Birth certificate of R.W.1 issued by M.R.O, Tripuraram. Ex.R-5/25.7.1998: Study and conduct certificate of R.W.1 issued by Head Master, Vidyaniketan High School, Miryalaguda Ex.R-6/ Attested Xerox copy of voter list of Konda Mallepally Ex.R-7/ Xerox copy of voters list of Donka Thanda Gram Panchayat 20. Findings recorded by the Tribunal in brief: The Tribunal after referring to the respective stands taken by the parties in O.P.No.4 of 2006 aforesaid and also in the respective counter-affidavits, having settled issues, recorded the respective contentions, appreciated the evidence of P.Ws.1 to 3, R.Ws.1 to 5, Exs.P-1 to P-6 and Exs.R-1 to R-7 and ultimately came to the conclusion that the writ petitioner in the present writ petition, first respondent in the O.P. aforesaid, was of under age on the relevant date when the nomination was accepted and, hence, she was declared as disqualified for the election. 21. Elaborate findings had been recorded in relation to the oral and documentary evidence referred to supra. 22. In the light of the submissions made by the counsel on record in the present writ petition, the following points arise for consideration. (1) Whether the order under challenge in the present writ petition, the order made by the Tribunal in O.P.No.4 of 2006, to be confirmed or to be disturbed in the facts and circumstances of the case? (2) Whether the declaration granted in favour of the petitioner in O.P. specified supra as having been duly elected for the office of sarpanch i.e., first respondent in the present writ petition to be confirmed or to be disturbed in the facts and circumstances of the case? (3) If so, to what relief the parties would be entitled? 23. Point No.1: The respective pleadings of the parties, the issues settled by the Tribunal, the evidence available on record and the findings recorded by the Tribunal in brief already had been specified supra. The first respondent herein, the petitioner in the aforesaid O.P., examined herself as P.W.1 and had deposed that she is a registered voter at Konda Mallepally vide voters list serial No.3367 and as per the election Notification dated 15.7.2006 filing of nominations started on 15.7.2006 till 19.7.2006. Scrutiny had taken place on 20.7.2006 up to 7.00 p.m. Polling was held on 06.8.2006 between 7.00 a.m. to 1.00 p.m. and she contested the said elections with the symbol of ‘door’ and she got 1311 votes in her favour and the first respondent in the O.P. i.e., the writ petitioner contested with the symbol of ‘gas stove’ and she got 1850 votes and the second respondent contested with the symbol of ‘harmonium’ and got only 62 votes and after completion of counting process, respondent No.4 declared the writ petitioner as successful candidate and declared the first respondent in the writ petition as defeated with margin of 539 votes. 24. Specific stand had been taken by P.W.1 that the writ petitioner was aged only 17 years 4 months on the date of filing of the nomination as per the memo of Secondary School Certificate bearing No.13398, dated 02.8.2006, and her date of birth is 03-03-1989 and the writ petitioner appeared S.S.C. examination held in the month of March 2004 with hall ticket No.0612842 through Nirmala High School, Nidmanoor, wherein also her date of birth was shown as 03-3-1989 and certain further allegations had been made as against the official respondents. 25 P.W.1 also deposed about Ex.P-1 nomination deposit receipt, Ex.P-2 age certificate of the writ petitioner issued by the Additional/Joint Secretary, office of the Commissioner for Government Examinations, Hyderabad on 22.8.2006, Ex.P-3 bona fide certificate relating to the writ petitioner issued by Nirmala High School, Nidmanoor, dated 20.7.2006, Ex.P-4 xerox copy of voters list of 2006 of Konda Mallepally village. 26. The Superintendent in Directorate for Government Examinations, Hyderabad, was examined as P.W.2 and P.W.2 corroborated the evidence of P.W.1 with regard to the said date of birth and P.W.2 deposed that previously their office was known as office of the Commissioner for Government Examinations, Hyderabad, and Ex.P-2 was issued by their office and as per the date of birth given by the Head Master, as given by the parents of the writ petitioner, the date of birth was mentioned in their records and also in Ex.P-2 and the writ petitioner appeared for S.S.C. examination with registration No.0612842 in March 2004 and as per the records the date of birth of the writ petitioner is 03-3-1989. 27. One Ch. Yadagiri Reddy, correspondent of Nirmala High School, Nidmanoor, was examined as P.W.3 who deposed about Ex.P-3 bona fide certificate issued by their school, who also corroborated the stand taken not only by P.W.1 but also by P.W.2. This witness deposed about Ex.P-5 and Ex.P-6. Some comment had been made on the aspect of non-examination of Prabhakar Reddy and examining the correspondent Ch. Yadagiri Reddy. But however, the Tribunal recorded clear findings in this regard and came to the conclusion that Exs.P-3, P-5 and P-6 can be relied on in the light of the evidence of P.w.3. 28. No doubt, certain further submissions had been made that the Tribunal adopted double standards in appreciation of evidence. R.W.1, no doubt, deposed that she had successfully completed 21 years of age and her name is appearing in voters list with serial No.4145 of Konda Mallepally Gram Panchayat voters list, 2006. At the time of scrutiny also P.W.1 did not raise any objection with regard to her age. Ex.P-2 is fabricated and this witness deposed in detail in relation to Ex.P-2 and Ex.P-3 as well and further deposed in relation to Exs.R-1 to R-7. Ex.R-1 is the served petition copy from Court, Ex.R-2 is the birth certificate issued by Dr. B. Nagender to the mother of the writ petitioner, Ex.R-3 is the birth certificate of the writ petitioner issued by Miryalaguda Municipality, Ex.R-4 is the date of birth certificate issued by the M.R.O, Tripuraram, Ex.R-5 is the study and conduct certificate issued by the Head Master, Vidya Nikethan High School, Miryalguda, Ex.R-6 is the voters list of Gram Panchayat Konda Mallepally, Ex.R-7 is the voters list of Gram Panchayat Donka Thanda. 29. G. Rajender Kumar, Commissioner, Miryalguda Municipality, was examined as R.W.2 who deposed that he was instructed to produce birth register for the year 2006. Ex.R-3 is in relation to the writ petitioner and the date of birth is 31.10.1984. R.W.2 also deposed that as per the instructions of RDO, Ex.R-3 was issued and enquiry regarding date of birth of R-1 was conducted by RDO, Miryalguda and afterwards a letter was addressed to Miryalguda Municipality and by making necessary entries Ex.R-3 was issued and photostat copy of birth register for the year 2006 in which date of birth of the writ petitioner was entered at serial Nos.2022/2006. 30. The mother of the writ petitioner was examined as R.W.3, who, no doubt, deposed that the writ petitioner was born on the day when Smt. Indira Gandhi was assassinated and she gave birth to the writ petitioner at Miryalguda Hospital belonging to one Dr. Nagender. 31. Dr. Nagender was examined as R.W.4 who, no doubt, deposed about the birth certificate and further deposed that there are no records pertaining to Ex.R-2, since he will not maintain the records beyond 5 years. 32. The retired Head Master