Andhra HC (Pre-Telangana)
Bhukya Bujji vs Bhukya Saraswathi And Ors. on 1 August, 2003
Equivalent citations: 2003(5)ALD187, 2003(5)ALT1
JUDGMENT Devinder Gupta, C.J.
1. The appellant contested the election of Sarpanch, Gram Panchayat, Marrigudem Village of Garla Mandal, Khammam District on 20.8.2001 and was duly declared elected. He seeks to challenge the order passed by the learned Single Judge dismissing her writ petition and thereby declining to set aside the order dated 18.1.2003 passed in Election Petition No. J/1548/2001 by the Agency Divisional Officer (R.D.O,)/Election Tribunal for Gram Panchayaths at Kothagudem, setting aside her election as Sarpanch.
2. Smt. Bhukya Saraswathi, the 1st respondent herein also contested the election of Sarpanch, Gram Panchayat, Marrigudem and remained unsuccessful. The appellant secured 606 votes, respondent No. 1 secured 466 votes and the third candidate secured 138 votes and thus the appellant was declared successful. First respondent filed an election petition before the Election Tribunal questioning the election of the appellant herein as Sarpanch. The ground to set aside the election was that the appellant had given birth to two children after the commencement of the Andhra Pradesh Panchayat Raj Act, 1994 (Act No. 13 of 1994) (for short "the Act") and as such was not eligible to contest the election of Sarpanch, in view of the disqualification provided under Sub-section (3) of Section 19 of the Act, therefore, she could not have been declared as successful candidate in the election. It was alleged that the 1st respondent had gathered the particulars of the children of the appellant from Tribal Primary Health Centre, Mulkanur, Garla Mandal, Khammam District and that the last child of the appellant was born on 29.12.1997 and placed reliance upon the certificate issued by the Medical Officer of Primary Health Centre on 24.8.2001. Another ground urged to set aside the election was the influence alleged to have been exercised on the voters of the Panchayat by the husband of the appellant. Election Petition was contested by the appellant denying all allegations and pleading that she had four children, the first and second child were born in 1990 and 1992 respectively, the third child was born on 20.1.1994 and the last child was born on 13.1.1995. It was thus pleaded that she had not incurred any disqualification by reason of Sub-section (3) of Section 19 of the Act. She also denied any influence having been exercised by her husband.
3. Parties led evidence before the Election Tribunal. As regards exercise of alleged undue influence, the Election Tribunal concluded that there was no evidence worth acceptance. However, placing reliance on Ex.A.1 to A.3 produced by respondent No. 1 it was held that the appellant gave birth to her last child on 29.12.1997. Thus believing the version of respondent No. 1 and disbelieving the version of the appellant and rejecting the documents Ex.B.1 to B.7 produced by the appellant and the oral evidence led by her, Election Petition was allowed. Consequently, election of the appellant as Sarpanch was held as void in view of the disqualification incurred by the appellant as per Sub-section (3) of Section 19 of the Act. Simultaneously, a declaration was issued declaring that respondent No. 1 has been duly elected as Sarpnach of the Panchayat under Rules 12, 13, 14 and 15 of A.P. Panchayat Raj Rules, 1995. This order of the Election Tribunal was challenged in the writ petition filed by the appellant.
4. Learned Single Judge declined to interfere with the impugned order passed by the Election Tribunal on the ground that the Election Tribunal while appreciating the evidence on record had not, committed any error, as it was open for the Election Tribunal to take into consideration relevant merit of the evidence adduced by both the parties. The Election Tribunal had rightly placed reliance upon the documents Ex.A.1 to A.3 and had rightly discarded documents Ex.B.1 to B.4. The learned Judge held that since the appellant was having more than two children as on the date of commencement of the Act, in terms of Sub-section (3) of Section 19 of the Act, she had incurred disqualification. It was further held that a person is disqualified under Sub-section (3) of Section 19 of the Act if he is having more than two children as on the date of the commencement of the Act. As regards the second proviso to Sub-section (3) of Section 19, the learned Judge held that the same would be applicable only to those persons who are continuing in Office as on the date of commencement of the Act and not to others. Holding so, the learned Judge dismissed the writ petition.
5. The aforementioned orders are under challenge before us in this appeal. We heard learned Counsel appearing for both the parties and have gone through the material on record.
6. Learned Counsel appearing for the appellant vehemently contended that the Election Tribunal was not justified in discarding documents Exs.B.1 to B.7 relied upon by the appellant and relying upon documents Ex.A.1 to A.3. Appreciation of evidence, according to the learned Counsel, is not in consonance with the provisions of law. The Tribunal in setting aside election relied upon inadmissible evidence. The Election Tribunal as well as the learned Single Judge failed to draw statutory presumption available to various entries made in the Birth and Death Register maintained by the Gram Panchayat. Therefore, the finding recorded by the Election Tribunal holding that respondent No. 1 was successful in proving that the last child of the appellant was born on 29.12.1997 is perverse.
7. The learned Counsel appearing for respondent No. 1 tried to support the impugned orders contending that the scope of judicial review against the order of the Tribunal is limited. Election Tribunal having appreciated the evidence and having come to the conclusion that the last child of the appellant was born on 29.12.1997, no interference is called for with the impugned order. Assuming that on the evidence adduced before the Election Tribunal it was possible to form a different view than the one formed by the Tribunal, it is not permissible to interfere with the impugned orders since the view formed by the Election Tribunal is a possible view, which can be formed on the evidence. Thus there is no perversity in the finding recorded by the Tribunal. Another point urged by the learned Counsel for Respondent No. 1 was that even assuming that the contention of the appellant that the last child was born on 13.1.1995 is true, in that case also, she had incurred disqualification as she was having more than two children as on the date of commencement of the Act or the relevant date as referred to in Sub-section (3) of Section 19 of the Act. Therefore, the conclusion arrived at by the Election Tribunal was justified and no interference is called for by this Court.
8. In order to appreciate the submissions made at the bar and in order to satisfy ourselves whether the view taken by the Election Tribunal is the possible view which could be taken on the evidence and the findings recorded are not perverse and not liable to be interfered by this Court, we were taken through, the entire oral and documentary evidence adduced before the Election Tribunal. We will make reference to the same in detail.
9. In support of her petition, respondent No. 1 appeared as P.W.1 and placed reliance upon three certificates Exs.A.1 to A.3. She deposed that the appellant had four children, out of them two were born after 1995 and the last daughter was born in the year 1997. The Medical Officer, Primary Health Centre, Mulkanur had issued certificate Ex.A.1 stating that the appellant had four children and relying upon the said certificate election petition was filed by her. She stated that she was not personally aware of the material dates of birth of the children of the appellant. P.W.2 Tejavath Laxman also contested the election in support of respondent No. 1 and was elected as a ward member. He stated that he and the appellant belong to the same caste and as such all functions in the house of appellant were being attended by him. She had four children; the last child was born in 1997. He claims to have attended the cradle ceremony of the last child and according to him; two children of the appellant were born after 1995. He was subjected to cross-examination and was unable to give the dates or month of birth of the other children or even the approximate order of their birth or their names. P.W.3 Sri Konda Rao was Medical Officer at PHC, Mulkanur at the relevant time. He stated that certificates produced by the 1st respondent were issued about the children of Sri Bukya Ramulu and the appellant basing on the reports of field staff. According to the report of the field staff, the last daughter of the appellant was born on 29.12.1997. He admitted that Ex.A.1 was not an entry from the Birth and Death Register and it was not a certificate of birth. He also stated that he had not personally recorded the dates of births of the children but merely relied upon the information gathered by the field staff. Actual dates of birth were not known to him or to his field staff. He further stated that the information recorded in Ex.A.1 was not supplied by the appellant or her husband but by others. P.W.4 is Smt. D. Hemalatha who was working as A.N.M. at Marrigudem Sub-Centre. She also stated that Ex.A.1 was issued as a certificate of birth basing on the Household Register and Enumeration Register. In cross-examination she stated that dates of birth of the children were not told by their parents and last daughter's date of birth was not there either in the Household Register or in the Enumeration register. Placing reliance on the above evidence, election of the appellant was sought to be set aside.
10. In order to rebut the evidence led by respondent No. 1, the appellant led oral and documentary evidence and stepped into witness box as R.W.1. She stated that her marriage was performed in the year 1988. First child Jamuna (daughter) was born in 1990, second child Renuka (daughter) was born in 1992. Third child Mahender (son) was born on 20.1.1994 and the last child (daughter) Devi was born on 13.1.1995. She stated that Devi was studying in Second Class in Gamya Tanda School. P.W.2 Ramula Subbarao, was Panchayat Secretary, Garla Panchayat since 16.6.1997. He stated that the post of Executive Officer in Gram Panchayats was re-designated as Panchayat Secretary. He stated that Marrigudem Gram Panchayat was separated from erstwhile Garla Gram Panchayat and Gammu Tanda, which is now part of Marrigudem Gram Panchayat. It was part of Garla Gram Panchayat in the past. Births and Deaths in the jurisdiction of Gram Panchayat would be recorded by the Executive Officer. Births and Deaths pertaining to Gammu Tanda were recorded in the registers of Garla Panchayat. He proved the birth certificate pertaining to the birth of last child of appellant as Ex.B.2 and stated that he had issued the said certificate basing upon the entries recorded in the Birth and Death Register maintained by the Gram Panchayat in regular course. Entry of birth was made on 20.1.1995 in the register to the effect that Bukya Devi was born on 13.1.1995. He further stated that during the relevant period when the entry was made Mr. Y. Jayapal was working as Executive Officer and he was well versed with his handwriting and identified his handwriting and signatures and basing upon the same, certificate Ex.B.2 was issued. He also proved Ex.B.3, which is the entry of birth pertaining to the fourth child of the appellant Bukya Devi. This witness was subjected to cross-examination. He stated that Ex.B.3 was part of the register of Garla Gram Panchayat. He also stated that though it was not stated anywhere like that, he stated that on the first page there was rubber stamp impression of Gram Panchayat and on that no signature of any Executive Officer was found. He further maintained that in the register, pages were there from 1994 to March, 1995. He denied that it was a false document but maintained that the entire register of Births and Deaths from 1994 to 1998 pertains to Births and Deaths of the Gram Panchayat. He was not questioned in regard to any individual entry or any interpolation in Ex.B.3 entry. However, he stated that the entries were not made during his tenure.
11. Mr. Bukka Bhadru who was working as Vidya Volunteer in Gamya Tanda Primary School and who had worked as Headmaster in the school till 22.12.2001 stated that the appellant and her husband got admitted their children in the school. He knew the last child of the appellant and stated that while admitting a child in school, a declaration form would be taken from the parents of the child. He stated that in the case of the last child of the appellant also, a declaration was taken from the father of the child and thereafter an entry was made in the admission register. He further stated that the entry in the admission register discloses the date of birth of Bukya Devi, daughter of the appellant as 13.1.1995 and thus proved the document Ex.B.5. On the basis of the said entry in the admission register, Ex.B.1 certificate pertaining to Bukya Devi was issued. He signed the certificate and testified the same to be correct. He also proved the entry Ex.B.6 in admission register pertaining to Bukya Mahender the son of the appellant. He also proved Ex.B.7, an entry pertaining to Bukya Mahender stating that as per the admission register date of birth of the son of the appellant was 9.1.1994. He stated that he has no relationship with the appellant. During the cross-examination he also stated that the other children of the appellant also studied in the same school. Bukya Ramulu, husband of the appellant was examined as R.W.4. He stated that the last child was born on 13.1.1995 and the third child was born in the year 1994.
12. The Election Tribunal while appreciating the evidence declined to accept Exs.B.1 to B.7 observing that Ex.B.3 is the entry in the Birth and Death Register of Garla Gram Panchayat but the inner pages of the register does not bear the name of any Panchayat or any seal of the Gram Panchayat. It was further observed that as seen from the register, Ex.B.3 entry was made therein in the month of April, 1996, whereas the Executive Officer had put his signature and date thereunder on 25.5.1996 which was quite unnatural. He also observed that Ex.B.3 register pertains to the years 1994 to 1998, but pages relating to the years 1994, 1995 and 1996 are not found in the said register. He also observed that Ex.B.3 entry in the register was made at the last of the line with ante date with different writing and sanctity cannot be given to Ex.B.3 Birth and Death Register and therefore the same was not acceptable. He also declined to place reliance on Exs.B.1 and B.2 the entries in school admission register relating to the first and second daughter of the appellant stating that they studied in first class in the year 1999-2000 whereas R.W.3 deposed that the first daughter of the appellant studied in the school upto 3rd class in the year 1999-2000 which is contradictory version. It was also observed that though registers were maintained since 1999-2000, but they did not contain any official signature such as the signature of the Mandal Education Officer or the signature of Mandal Development Officer and as such no legal sanctity can be attached to the said register. Thus, the Tribunal placed reliance on Exs.A.1 to A.3 and proceeded to set aside the election of the appellant. The learned Single Judge did not interfere with such appreciation of evidence.
13. Having considered the material and gone through the record, we are of the view that the approach of the Election Tribunal in appreciating the evidence is totally perverse and contrary to the basic principles governing appreciation of evidence. Headmaster of the School had entered appearance in witness box and deposed on oath that he was Headmaster at the relevant time when the children were admitted in the school and a declaration was filed by the father of the children declaring the respective dates of birth of the children. He stated that the third child Mahender and the fourth child Bukya Devi of the appellant were admitted in the school and their dates of births were recorded as 20.1.1994 and 13.1.1995 respectively. He was not subjected to cross-examination on the said aspect. No question was put to him that there was any discrepancy in the register or that it was not recorded in the normal and usual course of business of the school. Thus, there was no ground to have discarded this piece of evidence.
14. Even the Secretary of the Gram Panchayat, who appeared in witness box specifically stated that he had not made the entries in the Register. He stated that at the relevant time in the year 1995 one Mr. Jayapal was the Executive Officer who made entries. He duly recognised his signatures. Strangely enough, this witness produced the register and proved the entries but was not subjected to cross-examination to the extent and on the points which the Election Tribunal used in discarding the entries holding that the relevant entry i.e., 13.1.1995 was towards the end of the page or that it was interpolated. We have perused the Photostat copy of document Ex.B.3. The entry is not on the last page or last line but it is in the middle of the page. The date of registration is shown as 20.1.1995 whereas the date of birth is recorded as 13.1.1995. The Election Tribunal doubted the entry Ex.B.3 on the ground that though the entry was made in April, 1996, the Executive Officer signed it in May, 1996, which, according to the Tribunal, was quite unnatural. But such entry, in our view, could not have been manipulated at least in the year 1996 in case the version of P.W.1 is accepted that the child was born in 1997. How could an entry find place in the register in year 1996 or prior thereto in case the child was born in the year 1997? There was absolutely no ground to have disbelieved the version of the Secretary Gram Panchayat that the register was maintained in regular course of business. The points taken as aid by the Election Tribunal in discarding the evidence of the appellant were not put to the witnesses. Thus, the entire approach in appreciation of the evidence by the Election Tribunal was perverse.
15. The register is maintained under the provisions of the Registration of Births and Deaths Act, 1969 (Central Act No. 18 of 1969). Section 35 of the Evidence Act provides that entries made in such a register in public record in performance of official duty relevant. Presumption of correctness is attached to such entries. Therefore, on the evidence led, not only the extracts from register are admissible in evidence under Section 35 of Evidence Act but presumption of regularity of official acts done in discharge of the public duties ought to have been raised under Section 114 of the Evidence Act. Evidence led by respondent No. 1 was neither relevant nor admissible under Section 50 of the Evidence Act. Though P.W.2 stated that he belongs to the same caste as that of the appellant, he was unable to give the approximate dates or months or years of birth of the other three children. His statement could not have been relied upon by the Election Tribunal being an interested person having fought election in support of respondent No. 1.
16. From an appreciation of the evidence as adduced before the Election Tribunal, no other conclusion was possible except that the last child of the appellant was born only on 13.1.1995 and not in the year 1997 as alleged by respondent No. 1 who had approached the Tribunal to have the election of the appellant as Sarpanch set aside merely relying on documents Ex.A.1, which was neither admissible nor relevant. The same could not have been accepted in evidence since entries made therein were based upon hearsay evidence. Ex.A.1 was said to have been issued merely on the basis of the information alleged to have been collected by the field staff and not on the basis of the information furnished given by the parents of the child. Thus, the findings recorded by the Election Tribunal being perverse were liable to be quashed. The learned Single Judge erred in not quashing the same. Therefore, we hold that respondent No. 1 failed to prove that the 4th child of the appellant was born in 1997 and not on 13.1.1995 as alleged by her. We accept the version of the appellant on this score.
17. The next ground urged by learned Counsel for the respondent No. 1 is that even having more than two children as on the date of commencement of the Act would incur disqualification and since the appellant had more than two children as on the date of the commencement of the Act, she had incurred statutory disqualification. This submission is not worth acceptance.
18. Section 19 of the Act deals with disqualification on candidates. Sub-section (3) of Section 19 disqualifies a person having more than two children. It reads as follows:
(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.
19. A bare reading of Sub-section (3) would show that a person having more than two children is disqualified for election or for continuing as member. But the disqualification is subject to the two conditions. The first proviso says that the period within one year from date of commencement of the Act shall not be taken into consideration for the purpose of the section meaning thereby that if within one year from the date of commencement of the Act, an additional child was born, such child shall not be taken into consideration for the purpose of Sub-section (3) of the Section 19 of the Act. The second proviso is another exception, which says that a person having more than two children, excluding the child born within one year from the date of commencement of the Act, shall not be disqualified so song as the number of children he had on the date of commencement of the Act does not increase. The Act came into force with effect from 22.4.1994. The appellant had three children as on the date of commencement of the Act. From a plain and literal meaning of the second proviso, it is clear that a person having more than two children as on the date of commencement of the Act would not incur any disqualification under Sub-section (3) of Section 19 of the Act so long as the number of children he had as on the date of commencement of the Act does not increase, excluding the child born within one year from the date of commencement of the Act. In the instant case, the appellant had three children as on the date of the commencement of the Act. The fourth child was born on 13.1.1995, namely, within one year from the date of commencement of Act, who has to be excluded as per the first proviso. Excluding the fourth child the number of children of the appellant as on the date of commencement of the Act being three did not increase. Thus, we are of the considered view that the appellant incurred no disqualification. There is no disqualification in the statute in respect of a person who had already more than two children as on the date of the commencement of the Act. Such persons are disqualified only in the event the number of children they had as on the date of the commencement of the Act, excluding the child, if any, born within one year from the date of such commencement, increasing after 21-4-1995 i.e., after expiry of one year from the date of commencement of Act. In this view of the matter, we are unable to agree with the interpretation sought to be made by the learned Counsel for the respondent No. 1. We are, therefore, of the view that the Election Tribunal was not at all justified in setting aside the election of the appellant as Sarpanch.
20. Resultantly, the writ appeal is allowed. The impugned order of the learned Single Judge and that of the Election Tribunal are set aside. The election petition filed by respondent No. 1 is dismissed with costs quantified at Rs. 2,000/-. The appellant having been declared as successful candidate in the election held for the Office of Sarpanch of Gram Panchayat, Marrigudem village of Garla Mandal, Khammam District will continue to hold the same in accordance with law.