Election - Disqualification of candidates: (3) A person having more than two children shall be disqualified for election or for continuing as member: Provided that the birth within one year from the date of commencement of the Andhra Pradesh Panchayat Raj Act, 1994 hereinafter in this section referred to as the date of such commencement, of an additional child shall not be taken into consideration for the purposes of this section: Provided further that a person having more than two children (excluding the child if any born within one year from the date of such commencement) shall not be disqualified under this section for so long as the number of children he had on the date of such commencement does not increase: Provided also that the Government may direct that the disqualification in this section shall not apply in respect of a person for reasons to be recorded in writing.-; Writ Jurisdiction - limited - the settled legal position is that the jurisdiction of the High Court to issue writ of certiorari is supervisory in nature, that while exercising this jurisdiction the Court is not entitled to act as an appellate court, and that the findings of fact arrived at by inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings.-except the Tribunal/Court had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding.;

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

W.P.No.42819 of 2016

21-02-2017

Katla Prashanthi w/o. Shanker @ Shankaiah..Petitioner

Dudapaka Shoba, w/o Shanker and 9 others....Respondents  

Counsel for the Petitioner: Sri O.Manoher Reddy

Counsel for the 1st Respondent: Sri S.Satyam Reddy


<GIST:

>HEAD NOTE:  

? Cases referred

1 2013 (6) ALD 592
2 2005 (5) ALD 742
3 2005 (2) ALD 174 (DB)
4 2004 (5) ALD 525
5 2017 (1)ALD 655 (DB)

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

W.P.No.42819 of 2016

O R D E R:
        In the present writ petition, challenge is to the order dated
01.12.2016 passed by the Election Tribunal (Junior civil Judge), Mulug and
the order of the District Collector, Warangal District passed vide proceedings
No.111/2016/A, dated 09.12.2016.
2.      The facts and circumstances, leading to the filing of the present writ
petition are as under:
2.1.    In the election held on 23.07.2013, petitioner herein got
elected as Sarpanch of Ghanpur (Mulug) Gram Panchayat, Warangal  
District.  Respondent No.1 filed O.P.No.3 of 2013 under Section 22
read with sections 19 (3) and 233 of the A.P. Panchayat Raj Act, 1994
to declare the petitioner as disqualified under Section 19 (3) of the
Act,  to set aside the election as null and void and to declare her as
Sarpanch elected.  The petitioner herein filed a counter, denying the
allegations and averments in the said election O.P.  The learned
Junior Civil Judge, by way of an order dated 01.12.2016 declared the
election of the petitioner as null and void and further declared the first
petitioner herein as Sarpanch of the Grampanchayat.  In pursuance of
the said order of the Election Tribunal, the District Collector passed an
order vide proceedings No.111/2016/A dated 09.12.2016.
2.2.    In the above background, assailing the validity and the legal
sustainability of the said order, the present writ petition came to be
filed.
3.      Heard Sri O.Manoher Reddy, learned counsel for the petitioner,
Sri S. Satyam Reddy, learned Senior Counsel appearing for
Smt.K.V.Rajashree, learned counsel for the first respondent apart from
perusing the material available before the Court.
4.      Submissions/contentions of Sri O.Manohar Reddy, learned counsel for
the petitioner:
4.1.    The order of the Election Tribunal is erroneous, contrary to law
and opposed to the very spirit and object of the provisions of the
Panchayat Raj Act, 1994 and the Rules framed there-under.
4.2.    The questioned order passed by the Election Tribunal is
contrary to the material available on record.
4.3.    The Tribunal did not assign any reasons, much less valid
reasons for declaring the first respondent elected as Sarpanch.
4.4.    The first respondent did not raise any objection with regard to
alleged disqualification of the writ petitioner at the time of scrutiny of
nominations before the Scrutiny Officer, as such, it would not be open
for the first respondent to raise objection under Sub-section (3) of
Section 19 of the Panchayat Raj Act, 1994.
4.5.    The Election Tribunal grossly erred in relying on the evidence
of PWs.2 and 3 and no copy of the enquiry report was furnished to
the petitioner.
4.6.    In support of his submissions and contentions, learned counsel
for the petitioner placed reliance on the judgment of this Court in the
case of YELLAPRAGADA PRABHAKARA RAO v. SOUTHERN            
POWER DISTRIBUTION CO., OF A.P. LTD., TIRUPATHI .      
5.      Submissions/contentions of Sri S.Satyam Reddy, learned Senior
counsel appearing for the first respondent:
5.1.    The order of the Election Tribunal does suffer neither from any
illegality nor perversity and in the absence of the same the impugned
order is not amenable for any judicial review under Article 226 of the
Constitution of India.
5.2.    Since the Election Tribunal thoroughly and elaborately
considered the entire material on record, the impugned order does
not warrant any interference of this Court under Article 226 of the
Constitution of India.
5.3.    By adducing oral and documentary evidence, the first
respondent could successfully prove that the writ petitioner sufferd
disqualification as per section 19 (3) of the Panchayat Raj Act, 1994.
5.4.    Since the first respondent got next  highest number of votes,
the Tribunal is perfectly justified in declaring R.1 as the candidate
elected as Sarpanch of Grampanchayat.
5.5.    The S.S.C certificate which is of the year 2016 i.e., a certificate
issued after elections after tampering of the school records, cannot be
looked into.
5.6.    The Tribunal, after elaborately analyzing the evidence, came to
the conclusion that the date of birth of the writ petitioners fourth
child was manipulated  as 23.03.1995 as such the said findings
supported by reasons cannot be faulted.
6.      In the above background, now the issues that emerge for
consideration of this Court are:
1.      Whether the orders of the Election Tribunal and the orders of
the District Collector are in accordance with law or whether the same
warrant any interference of this Court under Article 226 of the
Constitution of India?
2.      Whether Writ of Certiorari can be issued in the facts and
circumstances?
7.      Issue No.1:
        The case of the election petitioner/first respondent herein is that as
on the date of filing of nominations for election to the office of the Sarpanch,
the writ petitioner was having 4 children i.e., two daughters and two sons
and their date of births being 11.02.1989, 12.12.1991, 20.04.1993 and
23.03.1999 as per school records.  On the other hand, the case of the first
respondent in O.P.No.3/2013, who is the petitioner herein, in her counter, is
that the four issues were born on 04.10.1988, 18.10.1990, 20.04.1994 and
23.03.1995. The sum and substance of the case of the election petitioner is
that since the fourth issue of the writ petitioner herein was born after the
cutoff date, the writ petitioner suffered disqualification as per Section 19 (3)
of the A.P. Panchayat Raj Act, 1994.  In this context it may be appropriate
and apposite to refer to the said provision of law.  Section 19 (3) of the Act,
reads as under:
      19. Disqualification of candidates: (3) A
person having more than two children shall be disqualified
for election or for continuing as member:
      Provided that the birth within one year from the
date of commencement of the Andhra Pradesh Panchayat  
Raj Act, 1994 hereinafter in this section referred to as the
date of such commencement, of an additional child shall
not be taken into consideration for the purposes of this
section:
      Provided further that a person having more than
two children (excluding the child if any born within one
year from the date of such commencement) shall not be
disqualified under this section for so long as the number
of children he had on the date of such commencement
does not increase:  Provided also that the Government
may direct that the disqualification in this section shall not
apply in respect of a person for reasons to be recorded in
writing.
8.      Now, it is required to be examined as to whether the material
available on record shows that the writ petitioner suffered disqualification as
per Section 19 (3) of the A.P. Panchayat Raj Act, 1994.  On the basis of the
pleadings available, the learned Junior Civil Judge framed the following
issues for trial:
1.      Whether the respondent No.1 suffered disqualification for the
post of Sarpanch as per Section 19 (3) of the A.P. Panchayt Raj Act,
1994?
2.      Whether Mani Sharma, the fourth issue of the respondent No.1
is born on 23.03.1995 as claimed by the respondent No.1?
3.      Whether the date of birth of Mani Sharma is tampered in the
school records?
4.      Whether the petitioner is entitled for the relief as prayed for?
5.      Whether the election of the respondent No.1 as Sarpanch,
Grampanchayat, Ghanpur (v) is liable to be declared as illegal, null
and void?
6.      To what relief?
9.      During the course of trial, election petitioner/first respondent herein
examined himself as PW.1 and also examined one Mr.M.Krishna Murthy,  
Deputy Educational Officer, Mulugu as PW.2 and Sri Lyagalla Krishna, Head
Master of Froebel Model High School, Ghanpur (M), wherein the fourth issue
of the writ petitioner herein studied, as PW.3 and on behalf of the Election
Petitioner, Exs.P.1 to P.21 and X.1 to X11 were filed and the writ petitioner
herein examined herself as RW.1 and examined her husband as RW.2 and  
filed Exs.R.1 to R.7 on her behalf to substantiate her case.
10.     It is to be noted that except examining herself as RW.1 and
examining her husband as RW.2, the respondent No.1 in the election O.P,
who is the writ petitioner herein did not examine any uninterested witnesses
to substantiate her case.  On the other hand, the election petitioner apart
from examining herself as PW.1, as stated supra also examined the Deputy
Educational Officer, Mulugu and Head Master of Froebel Model High School
wherein the fourth issue of the writ petitioner prosecuted the studies as
PW.2 and PW.3.  Both PW.2 and PW.3 are uninterested witnesses and the  
reality remains that the writ petitioner herein did not attribute any malafides
against them.
11.     The Election Tribunal, took into consideration the evidence of PW.2
who deposed, in clear and vivid terms, that on being instructed by the
District Educational Officer pursuant to the directions of the District
Collector,
he proceeded to Froebel High School where the fourth issue of the petitioner
studied  on 12.08.2013 and verified the Admission Register and found the
date of birth tampered in the Admission Register as 23.03.1995 from
23.03.1999 and collected the said Admission Register from the school and
shown the same to the District Educational Officer while submitting Ex.X4
enquiry report.  He also categorically stated that subsequently he handed
over the said records to the School.  PW.2 also stated about the statement of
the Head Master of the School that he himself changed the date of birth in
the Admission Register.  It is also evident from the impugned order that the
Election Tribunal had considered the evidence of PW.3, Head Master of the
School who categorically stated that the original date of birth was registered
as 23.03.1999 and about five years back basing on the ration card produced
by the parents, the then vice principal changed the said date of birth as
23.03.1995.  It is crystal clear from the evidence of PW.3 and as per Exs.X.6
to X.10 attendance registers for the classes 2 to 6 that the date of birth is
only 23.03.1999.  The Tribunal also considered Ex.X.11, altered date of birth
of Katla Manisharma for the year 2005-2006.  The Tribunal while dealing
with evidentiary value of the S.S.C certificate produced by the writ petitioner
herein found that Ex.R.6 S.S.C certificate is obtained basing on the tampered
record and the same cannot be taken into consideration.    The said finding
in the considered opinion of this Court, having regard to the facts and
circumstances of the case and voluminous evidence available on record by
any stretch of imagination cannot be faulted.
12.     Another significant aspect which needs mention in this context is that
the years of birth of various students who prosecuted the studies along with
the fourth issue of the writ petitioner were shown as 1999 or 2000, as such,
the finding of the Court below cannot be faulted.  In view of the categorical
findings of the Tribunal the Judgment of this Court reported in
YELLAPRAGADA PRABHAKARA RAO (supra 1) would not render any        
assistance to the petitioner herein.  In the case of B.KANTHA REDDY v.
MANDAL DEVELOPMENT OFFICER-CUM-ADDITIONAL DISTRICT              
ELECTIONN AUTHORITY, MANOPAD MANDAL, MAHABUBNAGAR ,                
this Court categorically found that it is for the person against whom the
allegation is made as per Section 19 (3) to disprove the same.
13.     Another significant aspect which needs mention in this connection is
that the petitioner herein is praying for a Writ in the nature of Certiorari.
While dealing with the para-meters of Writ of Certiorari, the Honble Apex
Court in the case of SYED YAKOOB v. K.S.RADHAKRISHNAN AND        
OTHERS, at paragraph 7 held as under:
        7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Art. 226
has been frequently considered by this Court and the true
legal position in that behalf is no longer in doubt. A writ of
certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or Tribunals; these are cases
where orders are passed by inferior courts or tribunals
without jurisdiction, or in excess of it, or as a result of
failure to exercise jurisdictions. A writ can similarly be
issued where in exercise of jurisdiction conferred on it,
the Court or Tribunal acts illegally or improperly, as for
instance, it decides a question without giving an
opportunity to be heard to the party affected by the
order, or where the procedure adopted in dealing with the
dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ
of certiorari is a supervisory jurisdiction and the Court
exercising it is not entitled to act as an appellate Court.
This limitation necessarily means that findings of fact
reached by the inferior Court or Tribunal as a result of the
appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may
appear to be. In regard to a finding of fact recorded by
the Tribunal a writ of certiorari can be issued if it is shown
that in recording the said finding, the Tribunal had
erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence, that
would be regarded as an error of law which can be
corrected by a writ of certiorari. In dealing with this
category of cases, however, we must always bear in mind
that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the
ground that the relevant and material evidence adduced
before the Tribunal was insufficient or inadequate to
sustain the impugned finding. The adequacy or sufficiency
of evidence led on a point and the inference of fact to be
drawn from the said finding are within the exclusive
jurisdiction of the Tribunal, and the said points cannot be
agitated before a writ court. It is within these limits that
the jurisdiction conferred on the High Courts under Art.
226 to issue a writ of certiorari can be legitimately
exercised (vide Hari Vishnu Kamath v. Syed Ahmed
Ishaque ), Nagendra Nath Bora v. The Commissioner of
Hills Division and Appeals, Assam ([1958] S.C.R. 1240.),
and Kaushalya Devi v. Bachittar Singh.
14.     In the case of BURADA KANAKA RATNAM v. SENIOR      
SUPERINTENDENT OF POSTS, BHIMAVARAM DIVISION , the Division          
Bench of this Court at paragraph 12, held as under:
12. On the settled principles relating to exercise of
certiorari jurisdiction the decisions are two numerous and
the well settled principles need no repetition at the hands
of this Court. The fact that the writ petitioner had been
staying with one K. Satyanarayana, is not in controversy.
The fact that the writ petitioner also was nominated at a
particular point of time by the said K. Satyanarayana for
Provident Fund benefits also is not in controversy. No
doubt it is stated that subsequent thereto it had been
withdrawn. The fact that the writ petitioner begot a child
through K. Satyanarayana also is not in controversy. It is
also pertinent to note that when the writ petitioner was
directed to produce the educational certificate of her child
through the said Satyanarayana, the same was not
produced before this Court. Clear findings had been
recorded on the strength of the respective pleadings and
also on the material available on record which are findings
relating to fact to the effect that there was re-marriage.
The principles of burden of proof relating to proof of
factum of marriage which had been referred to supra by
the decided cases in relation to the other maintenance
claims or in proof of the findings of bigamy cannot be
imported in toto in appreciating such questions in relation
to employment matters under service jurisprudence. Be
that as it may, the fact remains that a finding had been
recorded in this regard and even if the said finding is
based on insufficient evidence it cannot be a ground for
disturbing such a finding while exercising certiorari
jurisdiction.
15.     In the case of R.JAYALAKSHMAMMA v. ELECTION TRIBUNAL-        
CUM-SENIOR CIVIL JUDGE, PUNGANUR, CHITTOOR AND OTHERS ,            
this Court at paragraphs 13, 14 held thus:
13. At the outset the principles and the scope of power
of judicial review to quash a decision of statutory Tribunal
may briefly be reiterated. It is well settled that while
judicially reviewing the decision of a statutory Tribunal,
High Court ordinarily does not substitute its opinion for
the opinion or finding recorded by the Tribunal on
appreciation of oral and documentary evidence. Merely
because other view is also possible from such
reappreciation of same evidence, it cannot be a ground
for High Court to deviate from the finding of the fact
recorded by the Tribunal, re-appreciate the evidence on
record and give its own finding which is different from the
finding recorded by the Tribunal. It is axiomatic that the
Court of judicial review is not an Appellate Court and the
Court essentially reviews the decision making process
rather than decision itself. Nonetheless, it is also settled
that when the question is raised that the Tribunal has
committed jurisdictional error or committed grave error
apparent on the face of the record while appreciating the
evidence, recording findings of fact and applying law to
such findings on fact, the Court of judicial review can
always; curiously though, - look into the evidence to see
whether the finding of fact is perverse and whether the
proper principles of appreciation of evidence have been
applied to the facts. Even after such exercise, if the Court
finds that the findings are grounded on substantially
acceptable evidence, the findings cannot be upset and
reappreciation of evidence as an Appellate Court is not
within the purview of judicial review.
14. Yet another well settled principle is that it is not every
error can be corrected in judicial review. Only grave error
apparent on the face of the record would be amenable for
judicial scrutiny. A reference may be made to a
Constitution Bench judgment of the Supreme Court in
Syed Yakoob v. Radhakrishnan, , HB, Gandhi v. Gopi
Nath, (1992) 2 SCC Supp. 312, and a Division Bench
judgment of this Court in The Depot Manager,
A.P.S.R.T.C. v. P. Gangarajulu, 1995 (3) ALD 1054= 1996
(1) ALT 32 (DB).
16.     In the case of DR.K.L.NARAYANA v. SPECIAL TRIBUNAL U/A.P.      
LAND GRABBING PROHIBITIOIN ACT , this Court at paragraph 13 of    
the Judgment, held as under:
      13. . What emerges from the settled legal position
is that the jurisdiction of the High Court to issue writ of
certiorari is supervisory in nature, that while exercising this
jurisdiction the Court is not entitled to act as an appellate
court, and that the findings of fact arrived at by inferior
Court or Tribunal as a result of the appreciation of evidence
cannot be reopened or questioned in writ proceedings.
However, having regard to the finding of fact recorded by
the Tribunal, writ of certiorari can be issued, if it is shown
that in recording such finding the Tribunal/Court had
erroneously refused to admit admissible and material
evidence or had erroneously admitted inadmissible evidence
which has influenced the impugned finding. Writ of certiorari
can be issued for correcting jurisdictional errors of the
inferior Courts/Tribunals, where they exercise jurisdiction not
vested in them or acted in excess of their jurisdiction or have
failed to exercise jurisdiction. Similarly, if a finding of fact is
based on no evidence that would be treated as an error of
law which can be corrected by writ of certiorari.

17.     In the present case also, this Court does not find any perversity and.
inherent lack of jurisdiction in the order impugned. Since the Election
Tribunal considered the entire material available on record meticulously and
in an elaborate manner and arrived at the conclusions, this Court does not
find any valid reasons to meddle with the impugned order in exercise of the
jurisdiction conferred under Article 226 of the Constitution of India.
18.     For the aforesaid reasons, writ petition is dismissed.  As a sequel,
miscellaneous petitions, if any, shall stand closed. There shall be no order as
to costs.
______________
A.V.SESHA SAI, J
Date:21.02.2017

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