HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
C.M.A.No.1376 of 2011
23-11-2012
B. Ravi Yadav
Cherkula Uday Kumar and others
!Counsel for the Appellant
Counsel for Respondents: Sri J. Prabhakar
<Gist:
>Head Note:
?Cases referred:
1. 2010 (9) SCC 209
2. AIR 1976 KARNATAKA 231
3. AIR 1988 SC 1796
4. (1999) 9 SCC 386
5. (2003) 8 SCC 745
6. AIR 1981 SC 361 (1)
7. (2003) 8 SCC 673
8. (2005) 12 SCC 121
9. 2009(9) SCALE 18
10. (1998) 7 SCC 337
JUDGMENT: (per Hon'ble Sri Justice G.Krishna Mohan Reddy)
In this appeal assailed order dated 28-11-2011 passed in E.O.P.No.638 of
2010 (O.P.) on the file of the Court of Chief Judge-cum-Election Tribunal, City
Civil Courts, Hyderabad (for short 'Tribunal').
2. The appellant herein is the fourth respondent, the first respondent
herein is the petitioner and the respondents 2 to 11 herein are the remaining
respondents in the O.P. For the sake of convenience, we refer the parties as
arrayed in the O.P.
3. The petitioner filed the O.P. under Sections 71 to 87 of the Greater
Hyderabad Municipal Corporation Act, 1955 (for short 'GHMC Act') read with
Andhra Pradesh Municipal Corporation (Conduct of Election of Members) Rules,
2005 (for short 'the Rules') seeking to declare the election of the fourth
respondent as Member of Ward No.69, Langer House, Greater Hyderabad Municipal
Corporation (for short 'the Ward') as void and consequently to set aside it, and
to declare the fourth respondent as not entitled to continue in that post and
further to declare the petitioner to have been duly elected as the Member of
that Ward under Section 21-B of the GHMC Act.
4. Election notification for conducting elections to the Greater
Hyderabad Municipal Corporation (GHMC) 2009 was issued by the State Election
Commission vide Election Notification No.1107/SEC/F1/2009-1, dated 28-10-2009.
The petitioner and the respondents 4 to 11 contested the election. In the
election the fourth respondent secured 5069 votes while the petitioner secured
4862 votes whereas the other respondents secured far lesser number of votes.
Consequently the fourth respondent was declared as the elected candidate i.e.,
as the Ward Member.
5. In this context it is pleaded and alleged against the fourth respondent as
follows:
He begot three children namely
B. Uday born on 13-11-1995, B. Sai Pranay born on 25-09-1997 and Rohith born on
19-04-2000 by reason of which he was barred to contest the election under
Section 21-B of the GHMC Act.
But suppressing that fact, he filed his
nomination papers.
The residential address at the time of birth of the said children was given as
9-1-333 or 9-1-333/F/21, Hyderabad which represents the actual house address of
the fourth respondent.
It is also pleaded that all the three children of the fourth respondent are
studying in New Horizon School at 9-1-365/1, Lakshmareddy Complex, Sangam Road,
Langer House, Hyderabad in the records of which also their respective dates of
birth were given accordingly. It is also specifically pleaded that the
petitioner will take appropriate steps to summon relevant records from concerned
authorities at appropriate time to prove his claim.
Hence it is pleaded that
the election of the fourth respondent should be declared as void and set aside
and the petitioner be declared as the elected candidate for the post as he
secured the second highest number of votes in the election.
6. The respondents 1, 2 and 5 to 11 remained ex parte.
7. The third respondent filed counter pleading that
the fourth
respondent submitted declaration in Form-B that he was having only two children.
As no objection was raised at the time of scrutiny, the fourth respondent was
qualified to contest the election.
It is pleaded that he is not aware
personally whether the fourth respondent got three children when he filed his
declaration.
It is also denied by him that in fact the fourth respondent got
three children by the relevant date. He put the petitioner to strict proof of
the averments made in the petition.
8. The fourth respondent filed counter specifically denying the pleas
taken by the petitioner.
According to him he got only two children when he
submitted the declaration.
He also claimed that the election process was done as per the relevant Rules and
norms as framed under law whereas as he secured the highest number of votes, he
was elected for the post and had been discharging his duties.
Therefore, he
pleaded to dismiss the O.P.
9. For the petitioner he got himself examined as PW-1 and got marked Exs.A-1
to A-6. The third respondent reported that he got no oral or documentary
evidence whereas the fourth respondent did not adduce any evidence.
10. For the disposal of the petition, the Tribunal framed and considered
the following points:
1) Whether the petitioner is entitled to seek a declaration that the election of
the 4th respondent to the post of Croporator/Member of Ward Number 69, Langer
House, Greater Hyderabad Municipal Corporation is void? And if so, whether the
petitioner is also entitled to further declaration that the said respondent is
not entitled to continue as Corporator of the said Ward?
2) If the answer to the Point No.1 is in the positive, whether the petitioner
being the candidate, who secured second highest number of votes, next to the 4th
respondent is entitled to be declared as elected to the post of Corporator for
Ward No.69, Langer House, Greater Hyderabad Municipal Corporation?
3) To what relief?
11. On the consideration of the material available, the Tribunal allowed the
O.P. and upheld the claim of the petitioner.
It is observed by the Tribunal to
substantiate the result that there is no specific denial of the fact that the
fourth respondent is having three children as mentioned in the petition which
amounts to admission which is a strong circumstance which goes against him as
per the settled law of construction and appreciation of the pleadings.
On the
other hand the petitioner as PW-1 got filed Exs.A-1 to A-3, birth certificates
of the children of the fourth respondent, Ex.A-4 notification issued by the
State Election Commission dated 28-10-2009, Ex.A-5, Annexure-32, Form No.30 and
Ex.A-6, a copy of the details of the contested candidates of the Ward.
Importantly the fourth respondent did not cross examine PW-1 inspite of giving
several opportunities whereby the evidence of PW-1 remained unchallenged.
Thus
it is proved that by the relevant date the fourth respondent got three children
by reason of which his election is invalid under law.
12. So aggrieved by the order of the Tribunal, this appeal has been preferred.
13. Learned counsel for the fourth respondent would contend that the
adjudication of the election disputes is not to be conducted on the basis of
probabilities.
The election petitions are quasi criminal in nature as a result
of which proof beyond reasonable doubt is expected from the petitioner because
invalidation of an election is antidemocratic and it constitutes a lifetime ban
on the contestant who has been returned by the will of the people.
In the
present case except filing Exs.A-1 to A-3 which are the extracts of birth
certificates of the alleged children of the fourth respondent, though official
documents, no other evidence was placed before the Court.
He pleads that an
extract of birth certificate is not conclusive proof and it should be
corroborated by other evidence as laid down by the Apex Court in MADAN MOHAN
SINGH v. RAJINI KANTH 1.
He claims that a document may be admissible but as to
whether the entry contained therein has any probative value may still be
required to be examined in the facts and circumstances of a particular case and
the authenticity of the entries made therein would depend upon as to on whose
information such entries were recorded and also what was the source of
information.
According to him absolutely there is no evidence in that context
in the case on hand.
He asserts that even though the petitioner was not cross
examined, the evidentiary value of his interested testimony cannot be
sacrosanct.
He pleads that the documents are just proof of giving the
relevant information which does not mean that they are true entries. It is his
specific plea that the name given as B. Ravi Yadav as father of B. Uday in Ex.A-
1 and resident of House No.9-1-333, Hyderabad cannot be equated with the
relevant entries made in Exs.A-2 and A-3 respectively for the purpose of
deciding the paternity and also the maternity of B. Uday as there has been
sufficient difference.
He also claims that the petitioner and the fourth
respondent belong to same locality whereby in all probabilities the petitioner
should have knowledge about the children of the fourth respondent by the date of
filing the nominations as a result of which immediately he could have raised
necessary objection which in fact was not done for which adverse inference is to
be drawn against him. He claims further that the father's name given in Ex.A-1
birth certificate is not tallying with the father's name given in Exs.A-2 and A-
3 birth certificates in respect of which discrepancy there is no explanation.
He also has pleaded that non-examination of the fourth respondent himself as a
witness in support of his claim alone is not a ground to uphold the claim of the
petitioner unless he places substantial evidence to uphold his claim at the
outset. He further has pleaded that the Tribunal failed to appreciate the
fundamental principles enumerated and also the evidence recorded properly by
reason of which the ultimate findings given by the Tribunal are not tenable and
hence are liable to be set aside.
He has very much emphasized that though the petitioner pleaded in the petition
that he would take necessary steps for summoning the concerned authority or
authorities and examine them with reference to the entries under consideration
to prove the question on hand, he failed to take any measures to do so for which
adverse inference is to be drawn. To substantiate these contentions, he has
relied upon the decisions reported in
H. SUBBA RAO v. LIFE INSURANCE CORPORATION OF INDIA 2, BIRAD MAL SINGHVI v.
ANAND PUROHIT 3, JEET MOHINDER SINGH v. HARMINDER SINGH JASSI 4 and NARBADA DEVI
GUPTA v. BIRENDRA KUMAR JAISWAL 5.
14. In reply learned counsel for the petitioner would contend that Ex.A-1 on
one hand and Exs.A-2 and A-3 on the other hand contain mostly common entries.
He pleads that the difference found with regards to the father's name mentioned
therein is only minor in nature whereas on the overall examination of the
matter, it is clear that all those entries are pertaining to only one person and
one address. According to him Exs.A-1 to A-3 are public documents by reason of
which the entries made therein shall be presumed to be true and correct unless
that presumption is rebutted by placing necessary evidence which is not the case
here. Therefore, he argues that to rebut the contents of Exs.A-1 to A-3, the
fourth respondent should have taken necessary steps to examine himself and the
concerned authority as witnesses which was not done for which adverse inference
is to be drawn. In support of his plea he has placed reliance upon the
decisions reported in HARPAL SINGH v. STATE OF H.P. 6, SUSHIL KUMAR v. RAKESH
KUMAR 7, RAM BHUAL v. AMBIKA SINGH 8 and UTTAMRAO SHIVDAS JANKAR v. R.V. MOHITE-
PATIL 9.
15. Therefore, it is to be seen as to -
1) Whether the petitioner placed sufficient evidence before the Tribunal to the
effect that the fourth respondent got three children by the relevant date in
order to accept his nomination for the post in question?
2) Whether the entries made in Ex.A-1 conclusively prove the paternity or
parentage of the so called first child namely B. Uday? and
3) Whether the Tribunal properly examined the matter and its findings are not
tenable?
Point Nos.1 to 3:
16. By virtue of Section 77 of the Indian Evidence Act, certified copies
may be produced in proof of the contents of the public documents or parts of the
public documents of which they purport to be copies. By virtue of Section 79
thereof, the Court shall presume to be genuine every document purporting to be a
certificate, certified copy or other document, which is by law declared to be
admissible as evidence of any particular fact and which purports to be duly
certified by any officer of the Central Government or of a State Government, or
by any officer in the State of Jammu and Kashmir who is duly authorized thereto
by the Central Government, provided that such document is substantially in the
form and purports to be executed in the manner directed by law in that behalf.
Further the Court shall also presume that any officer by whom any such document
purports to be signed or certified, held, when he signed it, the official
character which he claims in such paper.
17. About the authenticity of the evidence of PW-1 importantly it is endorsed
that inspite of giving number of adjournments, necessary steps were not taken to
cross-examine him. So it cannot be invalidated as he was not cross-examined.
There is no real dispute that Exs.A-1 to A-3 are the certified copies of
corresponding public documents. As laid down in SURESH BUDHARMAL KALANI v.
STATE OF MAHARASHTRA 10, ""Presumption" is an inference of a certain fact drawn
from other proved facts. While inferring the existence of a fact from another,
the Court is only applying a process of intelligent reasoning which the mind of
a prudent man would do under similar circumstances. Presumption is not the
final conclusion to be drawn from other facts. But it could as well be final if
it remains undisturbed later. Presumption in law of evidence is a rule
indicating the stage of shifting the burden of proof. From a certain fact of
facts the Court can draw an inference and that would remain until such inference
is either disapproved or dispelled. For the purposes of reaching one conclusion
the Court can rely on a factual presumption. Unless the presumption is
disapproved or dispelled or rebutted the Court can treat the presumption as
tantamounting to proof. However, as a caution of prudence it may be observed
that it may be unsafe to use that presumption to draw yet another discretionary
presumption unless there is a statutory compulsion."
18. It is to be presumed thereby that necessary information or details
containing in Exs.A-1 to A-3 were given by certain person or persons following
which those entries were registered in the corresponding births and deaths
register of the Corporation. Always that may not represent that in fact true
details of birth and parentage were given whereas that only represents that such
information was given to the concerned authority for the purpose of registering
that information. Thereby additional evidence may be necessary to determine the
question of genuineness of those details so given.
19. So far as this case is concerned, Exs.A-2 and A-3, which are not disputed,
have been put forth to substantiate that the entries made in Ex.A-1 pertaining
to the so called child of the fourth respondent namely B. Uday are genuine. What
is important is that virtually the fourth respondent is not disputing Exs.A-2
and A-3 or the entries made therein. In order to draw the presumption of
accepting the contents in Ex.A-1 as genuine, definitely the details given in
Exs.A-2 and A-3 can be taken into consideration. The concept of drawing
presumption is equally applicable to both criminal cases and also civil cases.
20. With regards to the question of proof or burden of proof in the present
context, in JEET MOHINDER SINGH's case (4 supra), allegations of corrupt
practices of bribery, incurring excess expenditure than authorized expenditure
and also corrupt practices of undue influence as defined under clauses (1), (2)
and (6) of Section 123 and Section 77 of the Representation of People Act were
made against a returned candidate. It is observed by the Apex Court that the
charge of corrupt practice is quasi-criminal in character. If substantiated it
leads not only to the setting aside of the election of the successful candidate,
but also of his being disqualified to contest an election for a certain period.
It may entail extinction of a person's public life and political career. A
trial of an election petition though within the realm of civil law is akin to
trial on a criminal charge. Two consequences follow, firstly, the allegations
relating to commission of a corrupt practice should be sufficiently clear and
stated precisely so as to afford the person charged a full opportunity of
meeting the same. Secondly, the charges when put to issue should be proved by
clear, cogent and credible evidence. To prove the charge of corrupt practice a
mere preponderance of probabilities would not be enough. There would be a
presumption of innocence available to the person charged. The charge shall have
to be proved to the hilt, the standard of proof being the same as in a criminal
trial. It is further held by the Apex Court that the success of a candidate who
has won at an election should not be lightly interfered with. Any petition
seeking such interference must strictly conform to the requirements of the law.
Though the purity of the election process has to be safeguarded and the Court
shall be vigilant to see that people do not get elected by flagrant breaches of
law or by committing corrupt practices, the setting aside of an election
involves serious consequences not only for the returned candidate and the
constituency, but also for the public at large inasmuch as re-election involves
an enormous load on the public funds and administration.
21. In NARBADA DEVI GUPTA's case (5 supra), it is observed by the Apex Court
"The legal position is not in dispute that mere production and marking of a
document as exhibit by the Court cannot be held to be a due proof of its
contents. Its execution has to be proved by admissible evidence, that is, by
the "evidence of those persons who can vouchsafe for the truth of the facts in
issue". The situation is, however, different where the documents are produced,
they are admitted by the opposite party, signatures on them are also admitted
and they are marked thereafter as exhibits by the Court."
22. As laid down in H. SUBBA RAO's case (2 supra),
it is an accepted principle that an entry in the Register of Births is not
conclusive evidence of the disputed date of birth. So also is an entry made
pursuant to the direction of the Magistrate, under Section 13(3) of the
Registration of Births and Deaths Act, 1969. The policy of law embodied in
Section 13 is to avoid manipulation in the entries relating to the date of
births and deaths. The section is just a constraint on the Registrar. It is
not a provision whereby an aggrieved party could get an adjudication on his
disputed date of birth. The order of the Magistrate binds only the Registrar and
not others.
23. Further in BIRAD MAL SINGHVI's case (3 supra), it was observed by the Apex
Court with reference to relevant factors "If the entry in scholar's register
regarding date of birth is made on the basis of information given by parents,
the entry would have evidentiary value but if it is given by a stranger or by
someone else who had no special means of knowledge of the date of birth, such an
entry will have no evidentiary value. Merely because the documents Exs.8, 9,
10, 11 and 12 were proved, it does not mean that the contents of the documents
were also proved. Mere proof of the documents Exs.8, 9, 10, 11 and 12 would not
tantamount to proof of all the contents or the correctness of date of birth
stated in the documents. Since the truth of the fact namely, the date of birth
of Hukmichand and Suraj Prakash Joshi was in issue, mere proof of the documents
as produced by the aforesaid two witnesses does not furnish evidence of the
truth of the facts or contents of the documents. The truth or otherwise of the
facts in issue, namely, the date of birth of the two candidates as mentioned in
the documents could be proved by admissible evidence i.e. by the evidence of
those persons who could vouchsafe for the truth of the facts in issue. No
evidence of any such kind was produced by the respondent to prove the truth of
the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi.
In the circumstances the dates of birth as mentioned in the aforesaid documents
have no probative value and the dates of birth as mentioned therein could not be
accepted."
24. On the other hand, in SUSHIL KUMAR's case
(7 supra), it was observed by the Apex Court with reference to question of age
of a returned candidate that the initial burden of proof is on the election
petitioner to prove the allegations made by him whereas then the onus shifts to
the returned candidate to prove the facts which are within his special
knowledge. However where both the parties adduced evidence, the question of
burden of proof becomes academic. It is also observed by the Apex Court that
the admission made by a party would be binding on him and a presumption can be
drawn that the same has been established. It is further observed that the age
of the candidate has to be proved on the basis of the material on record as well
as attending circumstances.
25. The principles laid down in the decisions cited above are to be adhered to
while disposing of this appeal. The contents of Exs.A-1 to A-3 and the non-
examination of the fourth respondent play crucial role in order to decide the
matter in proper perspective. Significantly Exs.A-2 and A-3 are admitted by the
fourth respondent which is very important here. It is necessary to extract the
relevant entries made in Exs.A-1 to A-3 for proper appreciation of the matter,
they are as follows:
Ex.A-1:
Name: B UDAY
Date of Birth: 13-Nov-1995 Sex: MALE
Place of Birth: VIJAY MARIE HOSPITAL
Name of Father: B RAVI YADAV
Name of Mother: B LAVANYA
Registration Number: 6946 Date of Registration:18-Nov-1995
Address at the time of Birth: 9-1-333, HYD, 228/95
Ex.A-2:
Name: B SAI PRANAY
Date of Birth: 25-Sep-1997 Sex: MALE
Place of Birth: VIJAY MARIE HOSPITAL
Name of Father: B RAVI
Name of Mother: B LAVANYA
Registration Number: 5643 Date of Registration:1-Oct-1997
Address at the time of Birth: H.NO.9-1-333, HYD, 21/96
Ex.A-3
Name: ROHIT
Date of Birth: 19-Apr-2000 Sex: MALE
Place of Birth: AREA HOSPITAL GOLCONDA
Name of Father: B RAVI
Name of Mother: B LAVANYA
Registration Number: 208 Date of Registration:19-Apr-2000
Address at the time of Birth: H.NO.9-1-333/F/21, LANGER HOUSE, HYD
So far as Exs.A-2 and A-3 are concerned, there is no difference with regards to
the name of the father given and also the house number given to the extent 9-1-
333 whereas the difference found is - in Ex.A-2, added to the house number "HYD,
21/36" and in Ex.A-3 added to the house number "/F/21, Lnager House, HYD"
whereas Langer House is a part of Hyderabad. On the other hand the difference
between Ex.A-1 on one hand and Exs.A-2 and A-3 on the other hand is that in the
first one the father's name was given as B. Ravi Yadav resident of 9-1-333, Hyd,
228/85, whereas father's name (B. Ravi) and house number were given in Exs.A-2
and A-3 with some difference as mentioned earlier. It is to be very much
reckoned with that in all these documents the mother's name was given as B.
Lavanya. There is no dispute about her name.
26. It is to be seen as to whether these discrepancies are sufficient to
create any doubt about the paternity or parentage of the child Uday. If that is
so, definitely additional evidence is required to dispel the doubt. There
should be clarity about the paternity or parentage and house address.
The additional informations given with regards to the house address cannot be
said to be contradictory to each other because the main part of it given as 9-1-
333 has been same. Further there would not be any address as house number 9-1-
333, Hyderabad in any other parts of Hyderabad which can be taken judicial
notice of. Apart from that the address given as house number 9-1-333, Hyderabad
only represents one particular house whereas the remaining information given as
228/85, 21/36, /F/21 may represent certain area in the city. When the house
address is clear, it cannot be said that they are pertaining to different areas.
The difference of these informations given as 228/85, 21/36, /F/21 is not
sufficient to disprove the main house address given.
27. That apart even though the fourth respondent is disputing the father's
name given as B. Ravi Yadav in Ex.A-1, in the cause title of the memorandum of
Appeal the same name has been given for him. Therefore, he is admitting one way
that he has also been called as B. Ravi Yadav. When he admits the contents of
Exs.A-2 and A-3 in which his name is given as
B. Ravi and in the cause title of the appeal he has given his name as B. Ravi
Yadav, which proves that the latter name given also represents him, he is
estopped from taking a contrary plea in view of giving different father's name
in Ex.A-1 compared to that given in Exs.A-2 and A-3. The admitted entries made
in Exs.A-2 and A-3 including the entries relating to the question of maternity
of the child Uday, the details given with regards to the house address and the
cause title given in the appeal showing the father's name as B. Ravi Yadav are
sufficient to prove that the fourth respondent got three children by the date of
submitting his nomination papers unless there is evidence to the contrary to
rebut that.
28. The non-examination of the fourth respondent as witness is to be taken
very seriously in the circumstances of the case. It is quite strange that in
such a serious matter the fourth respondent did not take measures for his
examination before the Tribunal. Even though sufficient evidence was placed
before the Tribunal by the petitioner to prove the allegations and set aside the
election, still he had chosen to refrain from attending the Court for giving
evidence and rebut the evidence adduced on behalf of the petitioner. This draws
an inference that having been under the impression that he would not have any
chance to disprove the claim of the petitioner if he was examined before the
Tribunal and also to keep open his avenues to question the claim of the
petitioner on the basis of the said differences found in Exs.A-1 to A-3, he
refrained himself from doing so. His attitude in doing so is highly deprecated.
In order to sustain the democratic norms every corresponding election should be
conducted freely and fairly and only genuine candidates are to be allowed to
contest the elections. The ultimate aim of each and every election should be to
serve the people of the country in the best possible way. If the returned
candidates are tainted with violating the law prescribed in that behalf, such
people cannot be expected of serving the people at large in the best possible
way. They can only remain in their posts as long as they serve the people
upholding the concept of democracy only.
29. As sufficient material is there to uphold the claim of the petitioner,
there is no need to adduce further evidence of any nature. Further simply
because the fourth respondent and the petitioner used to live in the same
locality that by itself may not be sufficient always to come to the conclusion
that to the knowledge of the petitioner the fourth respondent got three children
whereby the petitioner could have taken necessary measures at the time of filing
the nomination papers itself.
30. For the reasons discussed above, we have no hesitation to hold that the
question on hand has been proved beyond reasonable doubt as required to
establish a charge in a criminal case. All the contentions raised by the
learned counsel for the fourth respondent are not tenable. Ultimately we find
no merits in the appeal which thereby deserves to be dismissed.
31. In the result, the Civil Miscellaneous Appeal is dismissed with costs.
____________________
ASHUTOSH MOHUNTA, J
_________________________
G. KRISHNA MOHAN REDDY, J
Date: 23-11-2012
