THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.9125 OF 2007 DATED 30TH JULY, 2010 BETWEEN Gattu Yellaiah … Petitioner And The Returning Officer, Deputy E.E. Panchayat Raj, Kothakota, Mahaboobnagar District. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.9125 OF 2007 ORDER: The petitioner, an unsuccessful candidate in the election to the Zilla Parishad Territorial Constituency, Peddamandadi, Mahaboobnagar District, assails the dismissal of his Election O.P.No.23 of 2006 by order dated 21.03.2007 of the Election Tribunal- cum-Senior Civil Judge, Wanaparthy. The subject election was held on 02.07.2006 and the second respondent herein was declared elected. The petitioner stood second in terms of the number of votes polled. He filed the subject election petition alleging that the second respondent was disqualified under Section 19(3) read with Section 156 of the Andhra Pradesh Panchayat Raj Act, 1994, as he had three children. He sought a consequential direction to declare him as elected as he polled the second highest number of votes. According to the petitioner, the second respondent had a daughter, K.Anjali Devi through his first wife, and a son and a daughter, through his second wife. The petitioner examined himself as P.W.1 and three other witnesses as P.Ws.2 to 4. He got marked Exs.P.1 to 3 and Exs.X.1 & 2. The second respondent examined himself as R.W.1 and three other witnesses as R.Ws.2 to 4. He adduced documentary evidence Exs.R.1 to 51. It was the case of the second respondent that his first wife divorced him long ago and that he had no issues through her. He claimed that he had only two children through the second wife, a son and a daughter. He therefore asserted that he did not attract the disqualification alleged by the petitioner. The petitioner relied upon a school admission register marked as Ex.X.1 wherein at Sl.No.427 (marked as Ex.X.2), the name ‘K.Anjali Devi’ is noted and the name of the father is shown as ‘K.Venkataswamy’. The second respondent however stated that there were several persons by the same name ‘Venkataswamy’ residing in the village and relied upon the voters’ list to demonstrate the same. The trial Court took into account the evidence of the petitioner, speaking as P.W.1, that the second respondent’s first marriage took place in the year 1993 and the fact that the Bonafide Certificate of the child, K.Anjali Devi, (Ex.P.3) indicated that her date of birth was 10.06.1993. The Election Tribunal therefore came to the conclusion that it would be impossible when the marriage of the second respondent took place in the year 1993, that he could have had a daughter in June, 1993 itself. Further, the second respondent was elected earlier as a Ward Member of Peddamandadi Gram Panchayat and also as Sarpanch of the said Gram Panchayat in the years 1996 and 2004 respectively. In these elections the kith and kin of the petitioner contested and lost but this ground had not been raised by them. Based on the aforestated circumstances, the Election Tribunal held that the petitioner failed to prove that the second respondent had more than two children and that the child, K.Anjali Devi, was his daughter through the first marriage. The election petition was accordingly dismissed. Sri D.Jagan Mohan Reddy, learned counsel for the petitioner, contended that the Tribunal ought to have placed the burden of proof upon the second respondent to show that he was not the father of the child, K.Anjali Devi. He relied on Section 106 of the Indian Evidence Act, 1872 in this regard. Section 106 reads as under: “106. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden of proving the fact is upon him.” However, it is to be noted that the allegation that the second respondent had three children is being levelled by the petitioner. The same is denied by the second respondent. Therefore the burden to prove the allegation lies upon the petitioner and not the second respondent. Section 106 of the Indian Evidence Act, 1872 is therefore of no avail to the petitioner. As matters stand, the only piece of evidence available with the petitioner in support of his allegation is the school register (Exs.X.1 & 2) wherein the name of the father of K.Anjali Devi is shown to be ‘K.Venkataswamy’. It is however to be noted that the second respondent is named ‘Kommu Venkataswamy’. In the light of the evidence adduced by the second respondent that there are several ‘Venkataswamys’ in the village and when there is no indication as to what the ‘K’ in ‘K.Venkataswamy’ entered in Ex.X.2 stands for, it cannot be assumed that the reference therein is to the second respondent. In the totality of the facts and circumstances obtaining before it, the Election Tribunal came to the considered opinion that there was no proof that the second respondent attracted the disqualification stipulated under Section 19(3) read with Section 156 of the Andhra Pradesh Panchayat Raj Act, 1994. In that view of the matter, no defect or lacuna in exercise of jurisdiction by the Election Tribunal is made out warranting interference by this Court under Article 226 of the Constitution of India. The Writ Petition is devoid of merit and is accordingly dismissed. No costs. ____________________ SANJAY KUMAR, J. 30TH JULY, 2010 VGSR