THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO. 1567 OF 2008 JUDGMENT : (Per BPR,J) The appellant in this appeal purportedly filed under Clause 15 of the Letter Patent Appeal is the unsuccessful petitioner in the writ petition filed by him under extraordinary jurisdiction under Article 226 of the Constitution of India, where he sought for a writ of Certiorari assailing the correctness of the orders passed in E.O.P. No. 2 of 2006 on the file of Election Tribunal cum Junior Civil Judge, Kothavalasa dated 9.9.2008, whereunder his election to the post of Sarpanch of Gram Panchayat of Gulivindada of Kothavalasa mandal, Vijayawada is set aside. Briefly the facts of the case are that the petitioner is one of the contestants in the elections conducted on 2.8.2006 for the post of Sarpanch of Grampanchayat of Gulivindada of Kothavalasa mandal, Vizianagaram district. In the schedule as prescribed by the District Election Authority by issuance of notification, 15.7.2006 is last date for submission of nominations, 20.7.2006 is last date for scrutiny of nominations, 21.7.2006 is last date for submission of objections to the nominations, 22.7.2006 is last date for disposal of objections, 23.7.2006 is date for withdrawal of nominations and publication of valid nominations and ultimately the date of poling is scheduled on 2.8.2006. During the course of the scrutiny, an objection was raised by the contesting respondent herein that the appellant herein is disqualified under Section 18 of the A.P. Panchayat Raj Act since he was holding an office of President of the Water Users Association. Initially his nomination was rejected by the Returning Officer/5th respondent, however, on appeal by the appellant herein, the Appellate Authority- Revenue Divisional Officer, allowed the said appeal and accordingly the nomination of the appellant herein was taken as valid and thus he participated in the election and ultimately obtained 1426 votes, whereas the first respondent secured 299 votes. Obviously, having regard to the number of votes secured, the appellant was declared as elected. Challenging the said election, the present proceedings have been initiated under E.O.P. No. 2 of 2006 on the file of the Election Tribunal-cum- Junior Civil Judge, Kothavalasa, by the respondents only on the ground that the appellant is disqualified having regard to the office held by him as a President of an Water Users Association. In reply the case of the appellant was to the effect that though the objection was initially accepted, but same was subsequently, set at naught in an appeal, therefore, it no longer sustain, further even for such acceptance of nomination there is good reason which has been accepted by the Appellate Authority viz., that he has submitted his resignation on 19.7.2006 and same was accepted and therefore the disqualification , no longer subsists and he is rightly entitled to contest and thus duly elected. With these basic pleadings as set forth, apart from several other allegations as contained, the Tribunal took up the case and after framing the issues, proceeded with the enquiry. During the course of the enquiry on behalf of the respondents herein P.W.1 to P.W.3 were examined and documents in Ex.A1 and A2 were marked, whereas on behalf of respondents/appellants R.W.1 to R.W.5 were examined and no documents were marked. On appraisal thereof, the Tribunal held that there is no material produced at the relevant point of time as to due acceptance by the competent authority about the said alleged resignation, therefore the appellant is disqualified and accordingly under the impugned orders dated 9.9.2008 the main O P was allowed and the election of the appellant was set aside. Challenging the same, in the writ petition, the main contention was again buttressing the plea having regard to the resignation having been duly accepted and same was acted upon by the Appellate Authority in accepting his resignation, there is no illegality nor any disqualification. Rebutting these, the case of the respondent was in support of the orders and reasons given thereby, by the Tribunal for holding that the election is void since the appellant holds a disqualification. The learned Single Judge by referring to several contentions and also by going through the provisions of A.P. Panchayat Raj Act, the A P Farmers’ Management of Irrigation Systems Act, 1997, Employees Managing of Irrigation System Act, 1997 and taking into account the evidence, which has been produced from both sides apart from the admitted position as spoken to by the appellant, it was found categorically that at a time when the scrutiny was processed through, there was no material produced on behalf of the appellant about his resignation much less a mention was made in regard to the office which he was holding and it is also found on perusal of the memorandum of grounds which were allowed later by the Appellate Authority that those documents were filed only in the appeal. Even in the course of enquiry before the Tribunal no such material was forthcoming. Further, the appellant himself while being examined, admitted that till completion of the election of Panchayat, he did not hand over the charge of President of the Association and that he did not make any mention of tendering resignation in the nomination papers. The evidence of RW.5 who is Scrutiny Officer was also taken into consideration about the fact that the appellant did not file any document relating to resignation and the same has remained un-assailed in the cross examination. Placing reliance on Section 32 the Act 1997 as amended by Act 7 of 2003 it was found that the competent authority to accept the resignation is only the General Body but not the Superintending Engineer, whereas in the present case, the Superintending Engineer has accepted the resignation and there is absolutely no explanation forthcoming on behalf of the appellant either before the learned Single Judge or even in this appeal as to how he could get over the objection as to the competency of the proceedings allegedly accepting his resignation. On totality of appreciation of the facts and circumstances and the total failure on the part of the appellant herein to substantiate his case about his bonafides about the disqualification the factum of his holding the post and the resignation thereof and that too by the competent authority as required under the law, the learned Single Judge did not find favour with any of the pleas as sought to be urged on behalf of the appellant. Even in this appeal, we have considered the submissions made on behalf of the appellant as well the respondents herein and find that nothing much nor any addition is pointed out to show as to how the findings arrived at by the Tribunal and the reasons given in support thereof, apart from the reasons given by the learned Single Judge could be found fault with. It is clear case that appellant has totally suppressed the factum of his holding the office and utterly failed to discharge his burden laying on him to show that very factum of resignation or even the competency thereof. Across the Bar, reliance is placed on judgment in VATAL NAGARAJ Vs. R.DAYANAND SAGAR[1], THELLAKULA JALAYYA Vs. NAMANA VENKATESWARA RAO[2]. In the earlier decision (Vatal Nagaraj case ) the Apex Court while considering the provisions of Representation of the People Act (43 of 1951) as to the corrupt practice and appreciation of evidence and consequent burden held that “in election jurisprudence tracking down corrupt practices is of paramount importance. In doing this the rules of the game must be fairly observed. The facts constitutive of corrupt practices have to be avoided and the burden is on the party pleading”. In the later case, which was again a case of election to the office in Municipality and while considering the same, it was held that a nomination if accepted by the Returning Officer as valid forms the basis of the election. Though it is liable to be held invalid in an election petition, there is real election on the basis of the said nomination paper and the voters are entitled to vote for one or the other of the contesting parties. If an election been held, the defeated candidate cannot be declared as elected unless it held that the electors with the knowledge of the disqualification of one of the candidates had thrown away their votes. It is immaterial whether there are two candidates including the disqualified candidate or if there are more than two candidates, for, when there is an election the question really becomes one between the successful candidate and the electorate. The later decision has been pressed into service on behalf of the respondents herein for a declaration to be made in their favour as having been duly elected since there are only two candidates in the election, however, having regard to the facts and circumstances, the very nature of case involved, apart from the votes as polled, it is felt desirable that no such declaration can be granted, necessarily this leads for a fresh election to be conducted rather than declaring the respondent as elected. Having regard to the aforesaid reasons, we do not find any merits in the above appeal and accordingly the same is hereby dismissed. No costs. _______________ B PRAKASH RAO,J _______________ SANJAY KUMAR,J DATE: 6-12-2010 TVK [1] AIR 1975 SC 349 [2] 1956 ANWR (2) 1026