S. Gangadhar Goud Vs. Chikkela Laxman and ors. - Court Judgment

Excerpt:
- - he contends that the failure of the petitioner to enter the witness box is fatal. , who was one of the defeated candidates, deposed as rw-1, and supported the case of the 1st respondent. by taking note of the fact that the petitioner did not enter the witness box, the tribunal held, and in fact, justifiably, that he failed to discharge his burden. failure in this regard is bound to entail in serious consequences. this court is of the view that the petitioner deserves to be given an opportunity, particularly in view of the fact that the disqualification would remain for the rest of the life of the petitioner as well as his wife.l. narasimha reddy, j.1. election to the jankampet gram panchayat of nizambad district was held in the year 2006. the petitioner and respondents 1 to 4 filed nominations for the office of sarpanch. the petitioner was declared elected. the 1st respondent filed o.p. no. 2 of 2006 before the election tribunal-cum-junior civil judge, bodhan, challenging the election of the petitioner, on the ground that the latter incurred disqualification under section 19(3) of the a.p. panchayat raj act (for short 'the panchayat raj act'). it was alleged that the petitioner gave birth to third child on 26-03-1997, and thereby incurred disqualification. it was also mentioned that on an earlier occasion the petitioner filed nomination for the office of mandal parishad territorial constituency (mptc), and on an objection raised by the 1st respondent, the nomination of the petitioner was rejected, on the ground that he incurred disqualification under section 19(3) of the panchayat raj act. he pleaded that though a specific objection was raised, the returning officer negated the objection.2. the petitioner filed a counter, denying the allegations made by the 1st respondent. according to him, the third child was born on 12-09-1994. respondents 2 to 4 also filed counters, supporting the case of the 1st respondent. through its order dated 02-04-2008, the tribunal allowed the o.p., and had set aside the election of the petitioner. the 1st respondent was declared as elected, for the office of sarpanch. hence this writ petition. sri k. ramakrishna reddy, learned senior counsel appearing for the petitioner, submits that the date of birth of the third child of the petitioner was evidenced by ex.a-6, and the contents thereof, proved that the petitioner did not incur any disqualification, at all. he contends that the tribunal was mostly impressed by the fact that the petitioner did not enter the witness box, and that the necessity for the petitioner to adduce any oral evidence did not exist, in view of the facts, that are evident from the evidence adduced by the 1st respondent himself. learned senior counsel submits that, being a certificate issued under a statute, ex.a-6 was the conclusive proof of the date of birth of the child, and that the order passed in the o.p. cannot be sustained in law.3. sri m. raja malla reddy, learned counsel for the 1st respondent, on the other hand, submits that, except denying the allegations made in the election petition, by filing a counter, the petitioner did not take any steps to prove, at least the contents of his counter. he contends that the failure of the petitioner to enter the witness box is fatal. it is also pleaded that the 1st respondent filed ex.a-6 only to demonstrate the discrepancy of the dates of birth in ex.a-1, on the one hand, and ex.a-6, on the other hand; and filing of the certificates, by itself, cannot relieve the burden of the petitioner, to prove the facts, which are in his special knowledge. learned government pleader for panchayat raj has also advanced arguments, almost on the same lines.4. the election of the petitioner was challenged only on the ground that he incurred disqualification under section 19(3) of the panchayat raj act. the petitioner denied the said allegation by filing counter. on behalf of the 1st respondent, pws 1 to 9 were examined, and exs.a-1 to a-10 were marked. the petitioner did not choose to examine any witnesses on his behalf. on the other hand, 2nd respondent in the o.p., who was one of the defeated candidates, deposed as rw-1, and supported the case of the 1st respondent. rw-2 is the stage-i election officer in the election. the panchayat raj act came into force, with effect from 29-05-1994. section 19(3) of that act directs that, an individual, who has more children than two, by the date on which it came into force, would not be entitled, either to continue in an elected office, or to get elected. exemption is provided, in case the third child was born within one year from the date on which, the panchayat raj act came into force. according to the 1st respondent, the date of birth of the third child of the petitioner is, 26-03-1997. he placed reliance upon ex.a-1, a certificate issued by the panchayat secretary, on an earlier occasion.5. before the gram panhcyat elections, the government held elections for the mandal parishads. the petitioner filed his nomination for the office of mptc. the 1st respondent raised an objection by filing ex.a-9, and relied upon ex.a-1. the nomination of the 1st petitioner was rejected through ex.a-10. in the o.p., the 1st respondent pleaded that, though the facts remained the same, the nomination of the petitioner for the office of sarpanch of gram panchayat was accepted. the petitioner, no doubt, filed a counter, denying the allegations as to incurring disqualification. however, he did not choose to enter the witness box, at least, to speak to the contents of the counter, filed by him. it is true that, under the provisions of the indian evidence act (for short 'the act'), the filing of a certificate, issued under enactment, would be proof of the contents thereof. however, it needs to be observed that the certificate ex.a-6, was filed not by the petitioner, in support of his contention. on the other hand it was filed by the 1st respondent, to demonstrate the discrepancy, or inconsistency between the contents of ex.a-1, on the one hand, and ex.a-6 on the other hand. by taking note of the fact that the petitioner did not enter the witness box, the tribunal held, and in fact, justifiably, that he failed to discharge his burden.6. petitioner places heavy reliance upon certain information elicited through some of the witnesses, particularly the panchayat secretary, about the contents of ex.a-1. an attempt was made to shake the trustworthiness of ex.a-1. however, despite the birth certificate, ex.a-6 becoming part of the record of the o.p., the petitioner was not available to be cross-examined, vis-a-vis the document. it is not as if that the document was filed by the petitioner. it hardly needs any mention, that though the filing of a document, by itself, may be treated as proof of it, under section 61 of the act, the person, who opposes it, is entitled to cross-examine the party, who derives benefit out of such document. for instance, if a document is filed as a certified copy of an entry in a register, the question as to its genuinity cannot be dealt with, unless the person, who intends to rely upon it; enters the witness box and answers the relevant queries.7. there is another angle from which, the matter needs to be examined. the concept of burden of proof has several facets. it is difficult to state with authority, that the burden of proof in a particular case exists in a specified form, and it stands discharged with a definite step. much would depend upon the facts of each case. in chapter-vii of the act, almost 10 sections are devoted, to define or describe the burden of proof, in different sets of circumstances. though the burden, in the instant case, is upon the 1st respondent, by operation of section 101 of the act, the petitioner has to share the burden, placed upon him, under section 107 of the act, viz., to prove a fact, which is specially within his knowledge, i.e., the date of birth of the third child.8. another facet of the matter is that, mere filing of pleadings would not be sufficient in a case. the pleadings, at the most, would help the court, to identify the area of controversy and to frame issues. once the issues are framed, the respective parties have to adduce evidence, in support of, or opposition to the issues. even where a defendant is confident of the weakness of the plaintiff's case, he has to enter the witness box, at least, to speak to the contents of the written-statement. failure in this regard is bound to entail in serious consequences.9. obviously because the entries in ex.a-6 supported the case of the petitioner herein, he did not feel the necessity of adducing any evidence. however, the advice tendered to him, in this regard, was not sound. the contents of his counter were not spoken to by anyone. this court is of the view that the petitioner deserves to be given an opportunity, particularly in view of the fact that the disqualification would remain for the rest of the life of the petitioner as well as his wife. for the forgoing reasons, the writ petition is allowed, and the order in o.p. no. 2 of 2006 is set aside. the matter is remanded to the tribunal for the limited purpose of enabling the petitioner to adduce evidence. in case he fails to adduce such evidence, within one month from the commencement of the proceedings, after remand, the order, which is under challenge, shall stand confirmed. if any evidence is adduced, it shall be open to the 1st respondent, not only to cross-examine such witnesses, but also to adduce further evidence. the tribunal shall pass appropriate orders, duly taking into account, the evidence so adduced. 10. this exercise shall be completed within a period of three months from the date of receipt of a copy of this judgment.11. there shall be no order as to costs.