Smt. Peddapally Padmavathi vs Smt.N.Sumitra And 5 Others
2022 Latest Caselaw 6282 Tel

                                          1


               THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                        AND
               THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

                       WRIT APPEAL Nos.788 & 789 of 2022

COMMON JUDGMENT: (Per the Hon'ble Sri Justice C.V.Bhaskar Reddy)

        Both these writ appeals are preferred by the appellant, under Clause

15 of Letters Patent, questioning the correctness and legality of the common

order    passed   by    the   learned   Single   Judge     dated   21.11.2022   in

W.P.Nos.29737 and 29738 of 2022.


2.      The sole appellant in both these writ appeals is the writ petitioner who

instituted the aforementioned two writ petitions questioning the common

order dated 14.07.2022 passed in E.O.P.Nos.1 and 2 of 2019 on the file of

the Election Tribunal-cum-Senior Civil Judge, Nagarkurnool.


3.      Since the contentions are common and also in view of the fact that

both the writ petitions were decided by a common order by the learned

Single Judge, it is appropriate that both these appeals should be disposed of

by this common judgment. For the sake of convenience, we will set out in

detail the facts leading to institution of W.P.No.29737 of 2022.         The writ

petitioner is the appellant, respondent No.5 is the petitioner in E.O.P.No.1 of

2019 and respondent No.1 is the petitioner in E.O.P.No.2 of 2019.

4. The case of the appellant/writ petitioner is that pursuant to the

notification issued by respondent No.2/Chief Election Commissioner to

conduct elections to the posts of Mandal Parishad Territorial Constituency

(MPTC) and Zilla Parishad Territorial Constituency (ZPTC) in the State of

Telangana, she filed her nomination to contest for the post of ZPTC from

Telkampally Constituency, Nagarkurnool District, as nominated by TRS

party. On 29.04.2019, respondent Nos.1 and 5 filed their objections before

respondent No.4/Returning Officer (Election Officer) stating that the

appellant is having three children or more than two children after the cut-off

date as prescribed under the Telangana Panchayat Raj Act, 2018 (briefly

"the Act", hereinafter) and she is not eligible to contest the elections in view

of the bar contained under Section 21(3) of the Act. The appellant has

submitted her explanation before respondent No.4/Returning Officer on

29.04.2019 stating that she was blessed with three sons viz., the first child

P. Bharath Kumar was born on 29.12.1997, whereas the other two sons viz.,

P.Vinay Kumar and P.Ganesh were born as twins on 01.09.2001.

Respondent No.4/Returning Officer, after considering the objections filed by

respondent Nos.1 and 5 and the explanation submitted by the appellant,

passed orders vide letter No.A1/66/2019 dated 29.04.2019 accepting the

nomination submitted by the appellant. The elections were held and the

appellant was declared elected for the post of Member, ZPTC of Talkapally

Constituency and subsequently she was elected as Chairperson, Zilla Praja

Parishad, Nagarkurnool and was serving in the said capacity.

5. Aggrieved by the rejection of their complaints and the result of the

elections to the post of ZPTC, Telkapally Constituency, which was reserved

for Scheduled Caste (SC-Mahila), respondent Nos.1 and 5 herein, who

contested in the elections for the said post, have instituted E.O.P.No.1 of

2019 and E.O.P.No.2 of 2019 on the file of the Election Tribunal-cum-Senior

Civil Judge, Nagarkurnool, under Section 242 of the Act read with Rule 2

(i)(ii)(b) of the Telangana Panchayat Rules, 2018 seeking to declare the

election of the appellant as Member of ZPTC, Telkapally, as null and void, as

she incurred disqualification under Section 21(3) of the Act and also sought

for a consequential direction to respondent Nos.1 to 3 therein to conduct

fresh election to the said post by issuing fresh notification as per law.

6. Before the Election Tribunal, in E.O.P.No.1 of 2019, on behalf of the

election petitioner P.Ws.1 and 2 were examined and Exs.P.1 to P.8 were

marked and on behalf of the appellant, R.Ws.1 and 2 were examined and

Exs.R.1 to R.7 were marked. In E.O.P.No.2 of 2019, on behalf of the election

petitioner, P.W.1 was examined and no documentary evidence was produced

on her behalf and on behalf of the appellant, R.Ws.1 and 2 were examined

and Exs.R.1 to R.5 were marked.

7. The Election Tribunal, after examination of evidence, has observed

that the first son of the appellant, by name P.Bharath Kumar, was born on

29.12.1997 and the third son by name P. Ganesh was born on 01.09.2001

and the said fact is not in dispute, but the only dispute is with regard to the

date of birth of the second son i.e., P.Vinay Kumar, who is said to have been

born on 03.09.1999 i.e., after the cut-off date which, according to the

election petitioners, amounts to disqualification of the appellant to contest

in the elections for having more than two children as provided under Section

21(3) of the Act. However, the appellant has taken a specific plea in the

Election Petitions that her two sons viz., P.Vinay Kumar and P.Ganesh were

born as twins on the same day i.e., on 01.09.2001, as such the

disqualification prescribed under Section 21(3) of the Act does not attract to

the case of the appellant.

8. The election petitioner in E.O.P.No.1 of 2019, in support of her

contention, has filed Ex.P-1 i.e., certified copy of birth certificate of P.Bharat

Kumar issued by GHMC, Hyderabad, Ex.P-3 i.e., birth certificate of

P.Ganesh issued by GHMC, Hyderabad, whereas the appellant has filed

Ex.R-4 i.e., the birth certificate of P.Ganesh, Ex.R-5 i.e., bona fide certificate

of P.Ganesh and Ex.R-6 which is the community and date of birth certificate

of P.Ganesh. Ex.R-1 is certified copy of birth certificate of P.Vinay Kumar,

Ex.R-2 is his bona fide certificate, Ex.R-3 is the certified copy of community

and date of birth certificate of P.Vinay Kumar, wherein the date of birth of

P.Vinay Kumar is mentioned as 01.09.2001. Thus the appellant contended

that her second son P.Vinay Kumar and third son P.Ganesh were born as

twins on 01.09.2001, as such she has not incurred any disqualification

prescribed under Section 21(3) of the Act.

9. The Election Tribunal held that as per the cross-examination of the

appellant, she admitted that P.Vinay Kumar and P.Ganesh were born in

Vijay Mary Hospital, Hyderabad. Except a vague suggestion to the election

petitioners that she obtained Exs.P-4 and P-5, nothing has been elicited to

decide the contents or authenticity of Exs.P-4 and P-5 wherein the date of

birth of P.Vinay Kumar is mentioned as 03.09.1999 and P.Ganesh as

01.09.2001 as corroborated by Ex.P-7, which is a bona fide certificate

issued by Sri Sairam High School, Hyderabad, certifying that P.Vinay Kumar

studied in their school from 1st standard to 7th standard and his date of

birth is recorded as 03.09.1999. The Election Tribunal further held that the

burden of proof lies on the returned candidate i.e., the appellant, but the

appellant has failed to discharge her burden to prove that P.Vinay Kumar

and P.Ganesh were born as twins on 01.09.2001 as alleged in the petition,

which she could prove without difficulty or inconvenience.

10. On a keen verification of the above documents, the Election Tribunal

observed that in order to decide the date of birth of the second son of the

appellant i.e., P.Vinay Kumar, Exs.P-2, P-5 and P-7 are very crucial. Ex.P-2

is the certificate copy of birth certificate of P.Vinay Kumar issued by GHMC,

Hyderabad, Ex.P-7 is bona fide certificate of P.Vinay Kumar issued by Sri

Sairam High School, Hyderabad, certifying that P.Vinay Kumar S/o of

Bangaia, Studied from 1st standard to 7th standard in the said school during

the academic year 2005 to 2012 and his date of birth is 03.09.1999. The

Election Tribunal further held that a careful examination of the above

documents would reveal that the date of birth of P.Vinay Kumar is

03.09.1999 as corroborated by Ex.P-2 to P-7 and in view of the said fact, the

appellant had three children as on the date of filing of the nomination for

elections rendering herself disqualified to contest the elections as per the

specific bar contained under Section 21(3) of the Act. Thus the Election

Tribunal has allowed the Election Petitions by declaring the election of the

appellant (respondent No.1 in E.O.P.No.1 of 2019 and respondent No.4 in

E.O.P.No.2 of 2019) as Member of ZPTC, Telkapally Constituency,

Nagarkurnool District, as void and also declaring the election petitioner in

E.O.P.No.1 of 2019 (respondent No.5 in W.A.No.788 of 2022 and respondent

No.1 in W.A.No.789 of 2022) as duly elected member of ZPTC, Telkapally

Constituency, Nagarkurnool District. Aggrieved by the said order, the

appellant/writ petitioner preferred the writ petitions before the learned

Single Judge.

11. The learned Single Judge, after considering the rival submissions of

both the learned counsel for the parties, observed as under:-

"The admitted facts before this Court are that the petitioner- Padmavathi is having three children viz., P. Bharath Kumar, P. Vinay Kumar and P. Ganesh. There is no dispute with regard to the date of birth of the first child namely P. Bharath Kumar being born on 29.12.1997. While it is the contention of the petitioner that the other two sons namely P. Vinay Kumar and P. Ganesh are twins and were born on the same day i.e. 01.09.2001. The contention of the respondents is that they were born on two different dates i.e. P. Vinay Kumar on 03.09.1999 and P. Ganesh on 01.09.2001. The petitioner in support of her stand, has got marked Exs.R.1 and R.4, the certified copies of the Birth certificates issued by the GHMC through Mee Seva. It is the further contention of the respondents that certified copies obtained from the GHMC through Mee Seva and marked as Exs.R.1 and R.4 are fabricated documents and to substantiate the same, the contesting respondents have produced the letter from GHMC under Ex.P.4 and also the letter issued by the Assistant Medical Officer of Health Department under Ex.P.5, which clearly show that Vinay Kumar was born on 03.09.1999 and not on 01.09.2001 as contended by the writ petitioner.

In order to verify the genuinity of documents produced by the petitioner, this Court vide order dated 14.10.2022 has called for the original records of Birth and Deaths Register pertaining to Ward No.10, Circle 7, from the office of the Greater Hyderabad Municipal Corporation, Khairatabad, and pursuant to the said order, the Deputy Commissioner has produced the original records before this Court.

The petitioner has mainly relied on the certified copy of the birth certificates issued by GHMC, which were marked as Exs.R.1 and R.4, to support her case that in the second pregnancy twins were born. The

said certified copies reveal that P.Vinay Kumar was born on 01.09.2001 vide Birth Certificate Registration No.4498 whereas P. Ganesh is also shown to have born on the very same day i.e. on 01.09.2001 vide Birth Certificate Registration No.4499, but as per the original GHMC records produced before this Court, as against registration No.4498, the following details are mentioned:

      1) Date & Time of Birth :              01.09.2001 at 1.11 am

      2) Sex                     :           Female

      3) Name of the child :                 --

      4) Father's name       :               K. Virachari

      5) Mother's name       :               K. Shashikala

      6) Hospital name       :               Vijay Marie Hospital

But, in the copy of the Birth Certificate, issued by the GHMC through Mee Seva, and filed by the petitioner in respect of registration No.4498 (marked as Ex.R.1), the following details are mentioned:

      1) Name                :               P. Vinay Kumar

      2) Date of Birth       :               01-Sep-2001

      3) Place of Birth      :               Vijay Marie Hospital Hyderabad

      4) Name of Father      :               P. Bangaraiya

      5) Name of Mother      :               P. Padmavathi

Scanned copy of the original record in respect of registration No.4498 of Birth & Deaths Register produced by the authorities, is appended hereunder.

Further, as per the original records as against registration No.4499, the following details are mentioned:

      1) Date & Time of Birth :              01.09.2001 at 3.12 am

      2) Sex                         :       Male

      3) Name of the child               :   P. Ganesh

      4) Father's name               :       P. Bangaraiya

      5) Mother's name       :               P. Padmavathi

      6) Hospital name       :               Vijay Marie Hospital

In the copy of the Birth Certificate, obtained through Mee Seva and filed by the petitioner in respect of registration No.4499, the above details are reflected correctly.

Moreover, as per the original record of Register of Births and Deaths pertaining to Ward No.10, the record containing Registration Nos.4070 to 5043 pertaining to the year 1999 reveals that the petitioner has given birth to P. Vinay Kumar on 03.09.1999 vide Birth Registration No.4708. Therefore, Ex.P.2 filed by the contesting respondents has to be held as a true and correct certified copy of the birth certificate of P. Vinay Kumar. The original record clearly points to the fact that the second and third children are born on two different dates and not on the same date and that they are not twins, as contended by the petitioner.

On careful comparison of the copies of the Birth Certificates filed by the petitioner with that of the original record produced before this Court, it has to be necessarily held that the birth certificate bearing No.4498, which is got marked by the petitioner as Ex.R.1 before the Tribunal, is a bogus and fabricated document, which has been issued contrary to the original record of Birth & Deaths Register maintained by the GHMC. The above proved factum clearly reveals that the petitioner has approached this Court with unclean hands."

Thus, the learned Single Judge held that the impugned order passed by the

Election Tribunal does not call for any interference and accordingly

dismissed the writ petitions. Hence, both these writ appeals.

12. Mr. Dammalapati Srinivas, learned Senior Advocate appearing for the

appellant, submits that the learned Single Judge ought not to have drawn

inference that Exs.R-1 to R-4 are fabricated documents, in the absence of

examination of the author of the said documents by the election petitioners,

as the election petitioners failed to discharge their burden to prove their

case that the appellant is having more than two children and incurred

disqualification prescribed under Section 21(3) of the Act. Learned counsel

further submits that standard of proof in election petitions would not be

preponderance of probabilities as in a civil action, but proof beyond

reasonable doubt as in a criminal trial is required and if a stringent test of

proof is not applied, a serious prejudice is likely to be caused to the

successful candidate whose election would not only be set aside, he may

also incur disqualification to contest the election for certain period, which

will adversely affect his political career. Learned counsel therefore submits

that heavy onus lies on the election petitioners to prove the charge of

disqualification, strictly in accordance with Sections 101 and 102 of the

Evidence Act and any deviation in this regard vitiates the entire proceedings

and renders the election petitions invalid, as such prays for allowing the writ

appeals.

13. Per contra, Mr. V. Ramakrishna Reddy, learned counsel appearing for

respondent No.5 in W.A.No.788 of 2022, submits that the scope of judicial

review against the order of the Election Tribunal is limited and the Election

Tribunal, having examined the oral and documentary evidence, has come to

a correct conclusion that P.Vinay Kumar was born on 03.09.1999. Learned

counsel further submits that the view formed by the Election Tribunal is

based on evidence and there is no perversity in the findings of the Election

Tribunal, as confirmed by the learned Single Judge, warranting interference

by this Court in exercise of Letters Patent jurisdiction.

14. On a careful consideration of the relevant statutory provisions and

submissions of the learned counsel on either side, we are of the view that

the learned Single Judge cannot be said to have erred in recording the

findings. Even assuming that on the evidence adduced before the Election

Tribunal, it was possible to form a different view than the one formed by the

Election Tribunal, it is not permissible to interfere with the impugned order,

since the view formed by the Election Tribunal is a possible view which can

be formed on the basis of evidence. Thus there is no perversity in the

findings recorded by the Election Tribunal as confirmed by the learned

Single Judge. The main part of the Sub-section (3) of Section 21 of the Act

in unmistakable terms introduced a disqualification for being a Member of

ZPTC of a person who is having more than two living children. The mandate

of legislature is clear and specific and purports to be in public interest.

15. There is a prima facie case that the appellant has more than two

children and as second and third children were born after the cut-off date,

she is ineligible to contest the election to the office of ZPTC, Telkapally or

continuation in the said post. Thus this Court finds that the findings of the

learned Single Judge, in confirming the orders of the Election Tribunal, are

in consonance with the evidence and material on record. It is settled

proposition of law that well reasoned order of the Election Tribunal which is

based on evidence on record shall not be disturbed in appeal filed under

Clause 15 of Letters Patent, unless there is grave infirmity in the order

under appeal.

16. In view of the reasons aforementioned, we are of the considered

opinion that the impugned order passed by the learned Single Judge does

not call for any interference and accordingly the writ appeals are dismissed.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending if any in these writ

appeals, shall stand closed.

______________________________________ UJJAL BHUYAN, CJ

______________________________________ C.V.BHASKAR REDDY, J 01.12.2022 JSU