Smt. Peddapally Padmavathi vs Smt. Thogari Renuka
2022 Latest Caselaw 6022 Tel

      THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

       WRIT PETITION Nos.29737 and 29738 OF 2022

COMMON ORDER:

      Since the issue involved in both the writ petitions is

intrinsically connected with each other, they are taken up

together and being disposed of by this common order.

      Aggrieved by the common order dated 14.07.2022 passed

by   the    Election    Tribunal-cum-Senior      Civil   Judge    at

Nagarkurnool in E.O.P. No.2 of 2019 and E.O.P.No.1 of 2019,

the present writ petitions are filed.

      For the sake of convenience, the parties are hereinafter

referred to as they are arrayed in W.P. No.29737 of 2022.

      Brief facts leading to filing of the present writ petitions are

that pursuant to the notification issued by respondent No.2-

Chief Election Commissioner to conduct elections of Manal

Parishad Territorial Constituency (MPTC) and Zilla Parishad

Territorial Constituency (ZPTC) in the State of Telangana, the

petitioner-Padmavathi, respondent No.1-Smt. Thogari Renuka

and respondent No.5-Smt.N. Sumithra have contested for the

post of ZPTC from Tekulapally Constituency, Nagarkurnool

District, which is a reserved seat for 'Schedule Caste SC)-

Mahila'. At the time of scrutiny of nomination, complaints were

made against the petitioner that she was having three children

as on the cut-off date and therefore she is ineligible to contest

the election. The petitioner has submitted a detailed explanation

to the Returning Officer stating that in the first delivery, she

gave birth to a male child namely P. Bharath Kumar, who was

born on 29.12.1997 and in the second pregnancy, she gave

birth to two male children viz., P. Vinay Kumar and P. Ganesh

on 01.09.2001 and stated to have filed relevant material in

support of the said reply. The Returning Officer duly taking into

consideration the said explanation has rejected the complaints

and allowed the nomination of the petitioner to the post of

ZPTC. In the elections that were held, the petitioner was elected

to the post of ZPTC and subsequently, she had been elected as

Chairperson of Zilla Parishad, Nagarkurnool District, and in the

said capacity she is presently serving. Aggrieved by the

rejection of their complaints and the result of the Elections to

the post of ZPTC, the respondent No.1-Smt. Thogari Renuka,

who also contested for the said post of ZPTC on behalf of the

Bharatiya Janata Party, has filed E.O.P. No.2 of 2019 and the

respondent No.5-Smt. N. Sumitra has filed E.O.P. No.1 of 2019

before the Election Tribunal-cum-Senior Civil Judge,

Nagarkurnool. The Tribunal vide common order dated

14.07.2022 has allowed both the EOPs declaring the election of

the writ petitioner-Padmavathi as void and declaring the

respondent No.1-Smt. Thogari Renuka as duly elected member

of ZPTC of Tekulapally Constituency. However, the prayer to

direct the respondent authorities to conduct fresh elections was

negatived. Aggrieved thereby, the writ petitioner is before this

Court by filing the present writ petitions.

On 19.07.2022, this Court while admitting the writ

petitions has granted interim suspension of the common

judgment dated 14.07.2022 passed by the Election Tribunal in

OP Nos.1 and 2 of 2019.

A counter affidavit has been filed in W.P. No.29737 of

2022 along with a vacate stay petition. Further, in both the writ

petitions additional counters have also been filed. It is mainly

contended that the Election Tribunal having conducted a full-

fledged trial in the Election OPs filed by the contesting

respondents has passed the impugned common order holding

that the petitioner is having more than two children after the

cut off date i.e. 31.05.1995. That the petitioner has incurred

automatic disqualification under Section 21 (3) of the Telangana

Panchayat Raj Act, 2018 (in short 'the Act') as she is having

three children. That the petitioner has failed to substantiate her

claim that in the second delivery she gave birth to twin boys on

01.09.2001. The Tribunal has disbelieved the version of the

petitioner and passed the impugned order based on the

documentary evidence. It is further urged that even for the sake

of argument the contention of the petitioner that she has given

birth to twins on 01.09.2001 is taken to be true, still the Act

does not permit any exemption under Section 21 (3) of the Act.

That the Tribunal has given a reasoned order and the petitioner

has no locus to challenge the impugned order and that the Writ

Petitions are liable to be dismissed. It is further stated that the

petitioner has taken the plea that she gave birth to twins on

01.09.2001 and in support of her case, she has produced Date

of Birth Certificates issued by the Registrar of Birth and Deaths,

letter issued by the Director of Vijay Marie Hospital, Hyderabad,

and also the bonafide certificates of the children issued by Sai

Ram High School, Hyderabad. However, the Tribunal has

disbelieved the said documents after careful examination of the

contra documents produced by the contesting respondents

herein. Hence, the petitioner cannot again make averments

with regard to the genuineness or authenticity of the

documents, which were already marked and relied by the

Tribunal while passing the impugned order. It is submitted that

after finding that the Registrar of Birth and Deaths has issued

two different Date of Birth Certificates to the petitioner and

respondent No.5, at paragraph Nos.29 and 30 of the impugned

common order dated 14.07.2022, the Tribunal has expressed

doubt about the veracity of the said certificates and pointed out

that both the petitioner as well as respondent No.5 took no

steps to examine the Registrar of Birth and Deaths and

therefore concluded that the said Date of Birth Certificates filed

by the petitioner are of no help in determining the lis.

The other contention of the petitioner is that in respect of

election of her husband a similar issue was raised and the

Revenue Divisional Officer after conducting an enquiry had held

that he is entitled for benefit of doubt and therefore the

petitioner is also entitled for similar concession.

Learned counsel for the petitioner has stated that the

Tribunal without following the procedure contemplated under

the Indian Evidence Act, 1872 (in short 'the Evidence Act') has

relied on Ex.P.4-letter dated 30.04.2018 issued by the Assistant

Medical Officer of Health and Registrar of Birth and Death,

Khairatabad, Hyderabad, and Ex.P.5-letter dated 01.05.2019

issued by the Assistant Medical Officer of Health, and Ex.P.6-

letter dated 30.04.2019 issued by the Vijay Marie Hospital and

ignored the Birth Certificates under Exs.R.1 and R.4, obtained

through Mee Seva, and produced by the petitioner before the

Tribunal. That placing reliance on Exs.P.4 to P.6, which are

merely letters issued by the authorities of GHMC and Vijay

Marie Hospital, without examining the author of the said letters

or calling for the original record, is not only bad but contrary to

the well established procedure and principles of law. That the

Tribunal has thrown the burden on the petitioner herein for

establishing her case, which is against the principles of law,

more specifically the provisions of the Evidence Act. It is further

stated that the basic principle of law regarding proof is that the

initial burden of proof is always on the person who approaches

the Court, but not on the defendants or respondents with few

exceptions. That the Tribunal ought not have shifted the

burden on the petitioner herein without the respondents having

discharged their burden. The petitioner is arrayed as

respondent No.1 before the Tribunal, and the impugned order

passed by the Tribunal is contrary to the principles of law and

has to be necessarily set aside. Learned counsel has further

stated that all the documents produced by the respondents

herein, more particularly in the Election Petitions before the

Tribunal, are not marked through the author of those

documents or proved through them by examining them nor the

original record was called for and therefore the Tribunal ought

to have rejected the documents produced by the respondents as

not proved. The Tribunal has placed much reliance on the

documents produced by the respondents, more specifically on

Exs.P.4 and P.5, without examining the persons who issued

them or calling for the original records. Therefore, the learned

counsel has prayed to allow the present Writ Petitions.

Per contra, the learned Senior counsel appearing on

behalf of the contesting respondents has contended that the

letters issued by the Vijay Marie Hospital where the children of

the petitioner were born clearly establish that as per the

available records of the hospital, the date of birth of the three

children are of different dates. That the second and third issues

viz., Vinay Kumar and Ganesh are not twins born on the same

date, but born on different dates. Even the letter issued by the

GHMC Ex.P.5 also confirms the said fact. That the initial

burden of proof has been discharged by the respondents herein

and it was for the petitioner to prove that the second and third

children are twins born on the same date i.e. 01.09.2001 by

leading contra evidence, but she has failed to do so. The

documents submitted by the petitioner herein before the

Tribunal, more specifically, Exs.R.1 and R.4 are held to be

fabricated/manipulated by the Tribunal. That the impugned

order is in consonance with the ratio law down by this Hon'ble

Court as well as the Hon'ble Supreme Court and there is no

contrariness in the impugned order as alleged by the petitioner.

As per Section 102 of the Evidence Act, in an Election Petition,

the burden of proof has to be discharged by the petitioner

herein, but not by the respondents. That the other documents

filed by the petitioner before the Tribunal are based on the

manipulated documents i.e. Exs.R.1 and R.4 and therefore

cannot be relied on and rightly rejected by the Tribunal. That

the Tribunal has passed a well reasoned order based on the

documentary evidence and same does not call for any

interference by this Hon'ble Court under Article 226 of the

Constitution of India. That re-appreciation of evidence cannot

be done by this Court under Article 226 of the Constitution of

India and thus prayed to dismiss the writ petitions.

Perused the material on record.

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.

In K.D. Sharma vs. Steel Authority of India Limited1,

the Hon'ble Supreme Court has held that where the petitioner

approaches the Court with unclean hands and makes a false

statement or conceals material facts or misleads the Court, the

Court may dismiss the petition at the threshold without

considering the merits of the claim. The Court would be failing

in its duty if it does not reject the petition on the said ground.

The person, who approaches the Court with unclean hands,

cannot claim any equitable relief.

Even though the learned counsel for the petitioner has

vehemently argued that the original author of Exs.P.4 to P.6

were not examined and therefore the Tribunal ought to have

rejected the EOPs on this ground alone, it is to be noted that the

petitioner has not raised any such objection when the said

documents were marked before the Tribunal. Once the

1 (2008) 12 SCC 481

documents are marked without any protest or objection, the

Tribunal was bound to consider the said documents. Moreover,

Ex.P.2 issued by the GHMC is in consonance with the original

record and no illegality has been committed by the Tribunal by

placing reliance on Exs.P.4 and P.5.

Insofar as the another contention urged by the learned

counsel for the petitioner that when similar objection was taken

in respect of the election of her husband, the RDO concerned

has conducted an enquiry and held that he is entitled for benefit

of doubt, and therefore the petitioner is also entitled for similar

concession, it is to be seen that the proceedings conducted by

the RDO are summary in nature and no full-fledged enquiry was

conducted and therefore the said ground is also not available to

the petitioner herein.

For the afore-stated reasons and in view of the law laid

down by the Hon'ble Supreme Court in K.D. Sharma (referred

supra), this Court does not find any infirmity or illegality in the

order passed by the Tribunal. The reliance placed by the

Tribunal on Exs.P.4 to P.6 for rejecting the claim of the

petitioner is perfectly justified and inconsonance with the

original record. Therefore, the impugned order does not call for

any interference of this Court.

Accordingly, both the writ petitions are dismissed.

Miscellaneous petitions pending, if any, shall stand

closed.

__________________________ A.ABHISHEK REDDY, J Date : 21-11-2022.

sur