Andhra Pradesh High Court - Amravati

Mr. Kokku Ravi Prasad vs The State Election Commission, on 4 November, 2022

           * HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

                  + WRIT PETITION No.5617 OF 2022;
                   WRIT PETITION No.6145 OF 2022
                                and
                    WRIT PETITION No.4527 of 2022

                         % 4th November, 2022

W.P.No.5617 of 2022
# Chakali Manikanta
                                                         ... Petitioner..
AND
$ The Hon'ble Election Tribunal-cum-Junior
Civil Judge, Kamalapuram, Kadapa District
and 11 others.
                                                       ... Respondents.

! Counsel for the Petitioner : Mr. T.D.Phanikumar Mr. Harinath Reddy Soma

^ Counsel for the 1st respondents : Standing counsel ^ Counsel for the 3rd respondent : Mr. Peeta Raman Ms. Priyanka Sonkamble ^ Counsel for the 4th respondents: Mr. Vivek Chandra Sekhar Standing Counsel ^ Counsel for the 5th respondent : Government Pleader for Revenue ^ Counsel for the 6th respondent: Government Pleader for Panchayat Raj ^ Counsel for the 7&8th respondents: Mr. Vinod K. Reddy, Standing counsel

< Gist:

> Head Note:

? Cases referred:

1) (1990) 2 SCC 173

2) (2001) 6 SCC 260

3) (2004) 7SCC 654

4) (2003) 8 SCC 673

5) (201) 10 SCC 715

6) (2010) 4 SCC 491

7) (2020) 4 SCC 659

8) (2005) 3 SCC 702

9) AIR 1971 SC 1944

10) AIR 1983 CAL 337

11) AIR 1961 CAL 359

12) (2003) 1 SCC 240

13) (2003) 8 SCC 752

14) (2006) 5 SCC 173

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

WRIT PETITION No.5617 OF 2022;

WRIT PETITION No.6145 OF 2022 and WRIT PETITION No.4527 of 2022 COMMON ORDER:

W.P.No.5617 of 2022 is filed seeking a certiorari and

challenging the order dated 28.01.2022 passed in Election

O.P.No.3 of 2021 by the Election Tribunal-cum-Junior Civil

Judge, Kamalapuram, Kadapa District.

W.P.No.6145 of 2022 is filed to call for records of Order

dated 28.01.2022 passed in E.O.P.No.3 of 2021 by the

Election Tribunal-cum-Junior Civil Judge, Kamalapuram,

Kadapa District and assailing the action of the official

respondents in not declaring the 2nd petitioner i.e., 9th

respondent in EOP, as Sarpanch of Veerapunayanipalle Gram

Panchayat, Veerapunayanipalle Mandal, Kadapa District, in

place of the disqualified Sarpanch i.e., 6th respondent.

W.P.No.4527 of 2022 is filed challenging the action of

the respondents in not declaring the petitioner as elected to

the post of Sarpanch as the elected candidate was declared

disqualified by the order dated 28.01.2022 passed in

E.O.P.No.3 of 2021 by the Election Tribunal-cum-Junior Civil

Judge, Kamalapuram, Kadapa District.

2. Since the subject matter in all the writ petitions is

one and the same, they were heard together with the consent

of all the learned counsel. Main arguments were heard in

W.P.No.5617 of 2022.

3. This Court has heard Sri Phani Kumar for Sri

Harinath Reddy Soma, learned counsel for the petitioner

(W.P.No.5617 of 2022), who is the 6th respondent in

E.O.P.No.3 of 2021. Sri Peeta Raman, learned counsel argued

for the main contesting respondent (3rd respondent). Sri

Vinod K. Reddy, learned standing counsel and the learned

Government Pleader for Panchayat Raj have also made their

submissions.

4. The record was summoned for from the lower

Court by this Court's order dated 10.08.2022.

5. The crux of the matter is about the age of the 6th

respondent in Election O.P.No.3 of 2021, who is the Writ

Petitioner in W.P.No.5617 of 2022, and the core issue is - Is

he disqualified to stand for election because he is under aged

and not 21 years old as required under Section 17 of the A.P.

Panchayat Raj Act, 1994? Along with this an issue is raised

about the actual name of the 6th respondent in the E.O.P.

6. The parties will be referred to as they are arrayed

as in Election O.P.No.3 of 2021 for the sake of convenience.

The prayer in the Election Petition filed before the Junior Civil

Judge-cum-Election Tribunal is as follows:

"...to pass an order declaring the action of respondents in not declaring the 6th respondent as intelligible for contesting in elections as under aged by considering petitioner's objections before scrutinizing the nominations and allowing him to contest in elections and also declaring him as elected and allowing him to administer oath as "Sarpanch" for Veerapunayunipalle (V.N.Palli) Gram Panchayat, Veerapunayunipalle Mandal, Kadapa District, Andhra Pradesh as illegal, arbitrary, discriminative, mala fide, unjust, void ab initio besides violative of the Sec.17 of A.P. panchayat Raj Act, 1994 and also violative of the Art.14 of the Constitution of India."

7. In the course of the pleading it is stated that the

6th respondent has hidden all the correct details to hide his

"original identity and Date of Birth". In the counter filed by

the 6th respondent it is asserted that the 6th respondent is

always known as "Chakali Manikanta" and is not known as

"Konduru Veera Manikanta". In the cause title the 6th

respondent is described both as Chakali Manikanta and

Konduru Veera Manikanta. Petitioner's case is that the real

name of the candidate is Konduru Veera Manikanta and that

he is underaged.

8. The parties went to trial and introduced evidence.

Exs.A1 to A10 were marked and PWs 1 to 4 were examined for

the petitioner in the EOP. Exs.B1 and B2 were marked

RWs.1 to 3 were examined for the respondents. After

considering the oral and documentary evidence the trial court

came to the conclusion that Konduru Veera Manikanta and

Chakali Manikanta are one and the same person. The trial

Court also came to the conclusion that as per Ex.A1 the Date

of Birth of the 6th respondent is 05.06.2000. Therefore, the

Court held that as per Ex.A1 the 6th respondent was

disqualified to contest the election as he is under aged since

he has not completed the age of 21 years as required by the

law.

9. This Court notices that in the Election O.P. that is

filed the pleadings are not very proper. No clear or categorical

pleadings are there raising the issues which were considered

by the Election Tribunal. Nevertheless, both the parties went

to trial, introduced evidence, cross-examined witnesses and

invited the findings on the age / on the alleged impersonation

/ identity of the 6th respondent. Very extensive arguments

were also advanced before this Court also about the

respective merits and demerits of each of the documents that

were marked in the evidence and also the conclusions

reached by the Court below which lead to filing of the current

writ petitions before this Court. This Court notices on a

reading of the findings of the Court below that the trial Court

Judge was convinced that both Konduru Veera Manikanata

and Chakali Manikanta are one and the same. The trial

Court also came to the conclusion that the entries in Ex.A1

and A2 regarding the Date of Birth of the 6th respondent

constitute good proof of age. The Court also held that the

Date of Birth Certificate, dated 02.02.2021 (which is a part

and parcel of nomination form Ex.B1 / Ex.A7) which was

signed by the Tahsildar is not correct. The Date of Birth

mentioned in this certificate of Chakali Manikanta is

01.01.1999 and this was held to be incorrect by the trial

Court.

10. The issue that has to be decided by this Court

while exercising power in a writ of certiorari is whether the

trial Court acted in accordance with law or contrary to the

law? However, before doing so Court wishes to refer to some

of the important cases (amongst the great many cited during

the hearing) to fix the parameters / boundaries for deciding

the lis.

(a) Laxmi Narayan Nayak v Raratan Chaturvedi and

others1

"5. This Court in a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substance of which being:

(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] and Kona Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442] .

(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh v. Surinder Singh [(1973) 2 SCC 599: (1974) 1 SCR 52] , Kona Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442] and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] .

(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya v. Lachhi Ram [(1955) 1 SCR 608: AIR 1954 SC 686] and Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660] .

(4) The evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh [(1984) 4 SCC 649] .

(1990) 2 SCC 173

(5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660] , M. Narayana Rao v. G. Venkata Reddy [(1977) 1 SCC 771: (1977) 1 SCR 490] , Lakshmi Raman Acharya v. Chandan Singh [(1977) 1 SCC 423: (1977) 2 SCR 412] and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC 260].

(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660], Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12: AIR 1964 SC 1366] and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC 260]."

(b) Tarlochan Dev Shara v State of Punjab and

Others2 (Para 7)

7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case.

relied on by the petitioner; and

(2001) 6 SCC 260

"8. True it is that the relief clause in the election petition in the present case is not very happily worded. The election petitioner would have been better advised to specifically seek a declaration to the effect that he was elected. However, we cannot be oblivious of the fact that panchayat elections are part of Gram Swaraj system. Most of the provisions relating to election and election petitions in the laws governing Panchayats are in pari materia with the provisions contained in the Representation of the People Act, 1951. Yet the procedural laws relating to panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting. A recent decision by a Constitution Bench in Sardar Amarjit Singh Kalra v. Pramod Gupta [(2003) 3 SCC 272] once again reminds us to remember that laws of procedure are meant to regulate effectively, assist and aid the object of doing substantive and real justice. Procedural laws must be liberally construed to really serve as handmaid of justice, make them workable and advance the ends of justice. Technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it."

(d) Sushil Kumar v Rakesh Kumar4 (Para 25)

25. It is beyond any cavil that in the event a person is elected who does not fulfil the constitutional requirements, the election would be void despite the fact that the Returning Officer has accepted his nomination paper. (See Durga Shankar Mehta v. Thakur Raghuraj Singh [AIR 1954 SC 520 : (1955) 1 SCR 267].)

(e) Rajendra Kumar Meshram v Vanshmani Prasad Verma and another5 (Para-10) "10. Under Section 100(1)(d), an election is liable to be declared void on the ground of improper acceptance of a nomination if such improper acceptance of the nomination has materially affected the result of the election. This is in distinction to what is contained in Section 100(1)(c) i.e. improper rejection of a nomination which itself is a sufficient ground for invalidating the election without any further requirement of proof of material effect of such rejection on the result of the

(2004) 7 SCC 654

(2003) 8 SCC 673

(2016) 10 SCC 715

election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did not endeavour to go into the further question that would be required to be determined even if it is assumed that the appellant returned candidate had not filed the electoral roll or a certified copy thereof and, therefore, had not complied with the mandatory provisions of Section 33(5) of the 1951 Act."

11. These cases lay down the parameters / yardsticks

for this Court in deciding this matter.

12. The issue before the Election Tribunal and this

Court is the Date of Birth of the 6th Respondent/writ

petitioner. The question is whether his Date of Birth is

05.06.2000 (in which case he would be disqualified) or

01.01.1999 as per the certificate filed with his nomination

form (which would qualify him).

13. This Court notices that Exs.A1 and A2 were relied

on by the trial Court. They were marked through P.W.1, who

is the petitioner before this Court. Ex.A1 is as follows:

14. Ex.A2 is as follows:

15. Exs.A1 and Ex.A2 were marked through P.W.1. In

the cross-examination of PW1 on 20.10.2021 a suggestion

was put that Ex.A1 does not belong to Chakali Manikanta

and it is a created document. A suggestion was also put that

Ex.A2 does not belong to Chakali Manikanta and it is a

created document. Similarly, with regard to Ex.A3 also

certain cross-examination is there.

16. Thereafter, one M.Anuradha was examined as

P.W.3. In her chief-examination she deposed that she has

issued Ex.A1 as per the School Admission Register for 2005-

2006. As per this Ex.A1 the Date of Birth of Konduru Veera

Manikanata is 05.06.2000. In the cross-examination she

admits that since the year 2020 she has been maintaining the

School Admission Register. She also states that she does not

know the procedure that was adopted by her predecessors

during their respective tenures. She clearly admits in the

further cross-examination on behalf of the 6th and 10th

respondents that she has no personal knowledge whether at

the time of admission of a student during 2005-06 a

certificate issued by Karanam or Sarpanch was taken to enter

the age of the student. She also clearly admits that she has

no personal knowledge about the entries in the School

Admission Register during the tenure of her predecessors.

She admits that she is giving evidence as per the School

Admission Register brought by her to the Court.

17. Ex.A2, which is reproduced above in the order,

does not talk of the Date of Birth or mention about the Date

of Birth. Therefore, this Court notices that the only evidence

available before the trial Court from the petitioner's side with

regard to the Date of Birth is Ex.A1.

18. Sri Phani Kumar, learned counsel for the 6th

respondent and current writ petitioner had argued that when

the truth of the contents of the document is an issue the mere

marking of the document is not enough. He relies upon the

case in Life Insurance Corporation of India and another v

Ram Pal Singh Bisen6 for this proposition.

19. C. Doddanarayana Reddy v C. Jayarama

Reddy7 was also relied upon by Sri Phani Kumar to argue

that Ex.A1 is not enough to non-suit the 6th respondent. This

judgment also supports his contention about the proof of the

entries in School Admission Register and holds as follows:

"14. We do not find any merit in the arguments raised. The public document in terms of Section 74 of the Evidence Act, 1872 includes the documents forming records of official bodies or tribunals. Section 76 of the said Act gives a right to any person to demand a copy of a public document on payment of a fee together with the certificate written at the foot of such copy that it is a true copy of such document. Certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. The plaintiff has produced photocopy of the certificate (Ext. P/1) on the records of this appeal. Such certificate does not show that it is said to be a certified copy of a public document as contemplated by Section 76 of the said Act.

15. School leaving certificate has been produced by the plaintiff and said to be signed by his father. The person who has recorded the date of birth in the school register or the person who proves the signature of his father in the school transfer certificate has not been examined. No official from the school nor any person has proved the signatures of his father on such certificate. Apart from the self-serving statement, there is no evidence to show that the entry of the date of birth was made by the official-in-charge, which alone would make it admissible as evidence under Section 35 of the Evidence Act, 1872.

However, the High Court has not found any other

(2010) 4 SCC 491

(2020) 4 SCC 659

evidence to prove the truthfulness of the certificate (Ext. P/1).

16. ..............

17. In Birad Mal Singhvi [Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] , the date of birth was sought to be proved by the Principal of the school. Though, the Principal could not produce the admission form in original or its copy. It was held therein that the entries contained in the school's register are relevant and admissible but have no evidentiary value for the purpose of proof of date of birth of the candidates. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information the date of birth was recorded in the aforesaid document. It was held as under : (Birad Mal Singhvi case [Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] , SCC p. 618, para

14) "14. ... No doubt, Exts. 8. 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated, neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to

be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned."

18. In Madan Mohan Singh [Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : (2010) 3 SCC (Civ) 655] , this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, 1872 but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. The Court held as under : (SCC pp. 216-17, paras 20-22) "20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc. the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282] , Birad Mal Singhvi v. Anand Purohit [Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604] , Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana [Satpal Singh v. State of Haryana, (2010) 8 SCC 714 : (2010) 3 SCC (Cri) 1081] .)"

20. In addition, learned counsel for the 6 th respondent

also relied upon a compilation of judgments including the

judgment reported in State of Punjab v. Mohinder Singh 8.

(This judgment is also referred to by the learned trial Judge).

In para-8 of the judgment, the Hon'ble Supreme Court of

India noted that the Court had directed the respondent to

produce the original school leaving certificate. In the School

Leaving Certificate it was noticed that a particular date of

birth was indicated. This was examined vis-à-vis horoscope

which is other material available to determine the issue.

When these two were compared the Hon'ble Supreme Court of

India came to conclusion that the entry in a school record,

regarding Date of Birth is more than authentic evidence vis-à-

vis horoscope. In the opinion of this Court, this judgment is

not in a strict sense applicable to the facts of this case.

21. Ex.A1 is the only document which contains the

Date of Birth of Konduru Veera Manikanta and states that the

date of birth is 05.06.2000. As per the settled law on the

subject including the case in Bholanath Amritlal Purohit v

State of Gujarat9, merely marking a document without

examining the author etc., is not enough to prove the "truth"

of the contents. It is also clear that Ex.A1 is not a "certified

copy". The citation in C. Doddanarayana Reddy case (7

(2005) 3 SCC 702

AIR 1971 SC 1944

supra) relied on by learned counsel for the petitioner

supports this contention.

22. The original school record is not produced before

the Court. The person who gave the information to record

that his Date of Birth as "05.06.2000" is not examined.

Neither the original School Register nor proper extract of the

school register is marked as a document. Therefore, as the

proof of the contents of the document is an issue in this case,

this Court is of the opinion that Ex. A1 by itself cannot be

accepted as the gospel truth to hold that "05.06.2000" is the

correct date of birth of the 6th respondent. In contradiction,

to this the 6th respondent along with his nomination paper

has filed his Date of Birth which is recorded as 01.01.1999.

This certificate dated 02.02.2021 is part and parcel of Ex.B1

(equal to Ex.A7). Ex.B1 was marked through the evidence of

R.W.1, who is the returning officer who accepted the

nomination papers. She relied on this Date of Birth to decide

his age. In the cross-examination of R.W.1 nothing was

elicited about the Date of Birth of R.W.2 (6th respondent). Her

satisfaction about the Date of Birth of the 6th respondent is

not raised in the cross-examination. Thereafter, R.W.2 filed

his chief examination and was cross-examined on

23.11.2021. Even in the said cross-examination nothing was

mentioned about the contents of the Date of Birth Certificate,

which is a part and parcel of Ex.B1, which shows that his

Date of Birth is 01.01.1999. No cross-examination is there on

this Date of Birth or on the contents of the document,

particularly as this Date of Birth (01.01.1999) was accepted

by the Returning Officer during the Scrutiny of the

Nominations.

23. The law on the subject is very clear and failure to

cross-examine on important aspects means that the opposite

party accepts the contentions. The relevant case law is

Traders Syndicate v Union of India10. The learned single

Judge of the Calcutta High Court relied on A.E.G.Garapiet v

A.Y. Derdarian11 and held as follows:

"AIR 1961 Cal 359 is an authority on this point. In para 10 of this report at p. 362 it was held:--

"Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that, this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-

examination is being made comes to give and lead evidence by producing witness. It has been stated on high authority of the House of Lords that this much a

AIR 1983 Cal 337

AIR 1961 Cal 359

counsel is bound to do when cross-examining that he must put to each of his opponent's witness in turn, so much of his own case as concerns that, particular witness or in which that witness has any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety."

(Emphasis supplied)

24. This case is cited with approval in Sarwan Singh

v State of Punjab12.

25. The trial Court had two different dates of births

i.e., 05.06.2000, which is as per Ex.A1, and 01.01.1999,

which is as per Ex.A7. Ex.A1 is filed through P.W.1 and

sought to be proved through P.W.3. Neither P.W.1 nor P.W.3

has any knowledge about the correctness of the said

data/date which is mentioned in Ex.A1. The original

document on the basis of which Ex.A1 was prepared is not

produced or exhibited. Ex.A1 was issued on 23.02.2021 by

Smt.M.Anuradha, who was examined as P.W.3. Ex.A1

pertains to the year 2005-06. As per the case law on the

subject unless and until a person concerned with the

information in / about the document is examined or the

original entry is exhibited and evidence is given about the

contents thereof it cannot be said to have been proved. In

addition, Ex.B1 is issued the Revenue Authorities. It carries

a presumption in its favour as it is an official record (Section

(2003) 1 SCC 240

114 (e) of the Evidence Act). There is also no cross-

examination on the contents of this document. Therefore, in

the light of the case law, which is referred to above, this Court

has to hold that the findings of the trial Court in paragraphs

26 to 29 are not correct. This is a manifest error and is in

disregard of the law on the subject which resulted in the

failure of justice. This Court also holds that the trial Court

should not have disbelieved the contents of the Date of Birth

Certificate filed along with the nomination by the 6th

respondent or accepted Ex.A1 and its contents. The

petitioner in the lower Court was also unable to establish that

the Aadhaar / PAN Card / Voter ID of the 6th respondent are

fake or false. In fact there is no evidence at all about the

"fake documents". The trial Court also wrongly concluded

that as per Ex.A1/Ex.A2 the father of the 6th respondent

admitted him in the above schools.

26. The other major issue that is raised is about the

alleged impersonation or Chakali Manikanta being also

known as Konduru Veera Manikanta. The oral and

documentary evidence shows that there is confusion about

the "surname" and the "name of the candidate". The trial

Court rightly noticed this aspect in paragraphs 23 and 24.

The Serial No.1475 and 1477 of voters list show that names of

the persons mentioned therein are "Konduru" Lakshmi Devi

and "Konduru" Veerayya. These were identified by R.W.2 as

the photographs of his mother and father in his cross-

examination, but he states that he does not know whether

surname of his mother and the surname of his father at

Sl.No.1475 and 1477 are shown as Konduru. Witness also

identifies the names of his father and mother in the

photographs affixed in Ex.A.9 but states further that he does

not know whether the aadhaar numbers at page 9 and 10 are

of his parents or not.

27. Ex.A4 clearly shows that it is issued to Chakali

Lakshmi Devi. On the reverse of the Card the names of

Chakali Jyothi, "KONDURU" Satish and also Chakali Satish

are as family members. Konduru Satish, stated to be born on

01.01.2001, is recorded as the son Chakali Lakshmi Devi.

Chakali Lakshmi and Chakali Veerayya are the executants of

Ex.A9. Similarly, the door number, in which the 6 th

respondent/writ petitioner resides, is house No.4/290. This

is in Ex.B1 Nomination form. A "No Dues" certificate from the

Panchayat is filed and the house bearing D.No.4/290 is

identified as the house of the 6th respondent "Chakali"

Manikanta. This is also the door number of the executants of

Ex.A9 sale deed and the door number in the voters list in

S.No.1475/1477 with the surname "KONDURU". Therefore,

there is any amount of confusion about the Chakali and

Konduru surnames. However, the question before Court is

whether "Chakali" Manikonda is the same person as

"Konduru" Veera Manikanta.

28. Learned counsel for the respondents also took

great pains to argue about Ex.A8, which is an attested copy of

a Job card of the 6th respondent family. Learned counsel took

pains to link the data in Ex.A8 with Exs.A9, A10 etc. But this

Court notices that Ex.A8 has been marked "subject to proof,

relevancy and admissibility". The examination-in-chief of

P.W.1 on 01.10.2021 and the appendix of evidence in the

impugned judgment bear testimony to this objection being

raised. Once a document has been marked subject to proof,

admissibility and relevancy it cannot be treated as a

document that is validly exhibited in evidence. Unfortunately,

the learned counsel arguing the matter in the trial Court and

the learned Judge of the trial Court have lost sight of this

issue and have not argued on this crucial aspect. The

objection raised about its admissibility has not been answered

by the trial Court either. In fact after hearing the learned

counsel this Court reopened the hearings and heard the

learned counsels about this particular point but it could not

clarify on the same.

29. Learned counsel for the petitioner has relied upon

the judgment in R.V.E. Venkatachala Gounder v. Arulmigu

Viswesaraswami & V.P. Temple13, wherein in para-19 the

Hon'ble Supreme Court of India held that for every document

admitted in evidence under Order XIII Rule 4 of CPC in the

suit being endorsed by or on behalf of the Court before such

an endorsement is made an objection should be raised about

the admissibility. The Supreme Court of India clearly held

that there are two types of objections:

a) An objection for the document sought to be proved is

itself inadmissible in evidence; and

b) An admissibility about the mode of proof.

30. Sri Phani Kumar submits that once an objection is

raised about the mode of proof and is taken up at an

appropriate stage the party tendering the evidence must cure

the defect by examining somebody who is connected with the

document or the like to prove the contents of the documents.

(2003) 8 SCC 752

The same was not done as needed by the law. As noticed on

01.10.2021 an objection was raised about Ex.A8. Nobody

connected with the document was examined. On the other

hand, P.W.3 was examined on 05.11.2021 with reference to

the contents of Ex.A1 (which was marked on 27.09.2021). No

such step was taken to examine anybody connected with

Ex.A8. Although a duty was cast both on the learned counsel

appearing in the lower Court and also upon the Court to

address this issue, it was left unaddressed. The lower Court

overlooked the legal issues arising out of this objection and

considered the document and its contents. Therefore, this

Court has to hold that Ex.A8 is not validly proved. Even

otherwise, this Court notices that Ex.A8 is an attested copy of

a job card, which is issued by the Mandal Praja Parishad

Officer on 29.09.2021. It is a Xerox copy which is signed by

the said officer. It is a copy of online application of a

computer record. Since it is an electronic record it also

requires appropriate certification before it is received in

evidence (Section 65-B of the Indian Evidence Act). The same

is also missing from Ex.A8. Therefore, for all these reasons,

this Court holds that Ex.A8 has not been validly received in

evidence. If it is not validly received in evidence its contents

cannot be considered for the purpose of the decision. The

lengthy arguments were advanced by the learned counsel for

the respondents cannot be taken into consideration. The

lower Court committed a patent error in relying on Ex.A8 and

its contents. This is visible from a reading of the impugned

order itself. The pleading and evidence in the election OP has

to be of a high standard. Laxmi Narayan Nayak case (1

supra) makes it clear. In the absence of a clear foundation

being laid in the pleading about the alleged impersonation or

change of name etc., the evidence introduced cannot be

looked into. Paras 5 (1) to 5 (4) reproduced earlier hold the

field.

31. This Court finds that the trial Court committed

manifest errors in relying on Exs.A1 and A8. The objection as

to "admissibility" etc., was not at all answered or dealt with.

These errors are visible / discernible from the record without

a detailed process of argument / reasoning. Neither Ex.A1

nor Ex.A8 can be deemed to be documents proved in

evidence. Para 11 of Municipal Council, Sujanpur v

Surinder Kumar14 which is as follows fully applicable:

"11. The High Court's jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be

(2006) 5 SCC 173

issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In Judicial Review of Administrative Action, IVth Edn., pp. 136-37, S.A. de Smith has summed up the position:

"(5) The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence."

32. The finding in para-19 of the impugned judgment

that the self declaration is not attested by two witnesses is

also not pleaded with clarity in the petition. Para-7 of the

petition refers to the lack of declaration of educational

qualification etc., but not about the lack of attesting

witnesses etc. Para 5(1) of Laxmi Narayan Nayak case (1

supra) is again applied.

CONCLUSION:

33. Hence, this Court opines that it is a fit case to

exercise the power under Article 226 of the Constitution of

India. The order dated 28.01.2022 is set aside and the Writ

Petition No.5617 of 2022 is allowed.