VIJAYA KARI Vs. K SWARNALALHA

JUDGEMENT

(1.) This appeal arises out of an election petition filed to set aside the election for 50th Division of Visakhapatnam Municipal Corporation.

(2.) The essential averments may be stated: The appellant is 1st respondent in O P 1/1981 on the file of the Election Tribunal, Municipal Corporation of Visakhapatnam. The notification dated 3-8-1981 for elections to the Visakhapatnam Municipal Corporation was issued pursuant to Act 9 of 1979 constituting Visakhapatnam Municipality as a Corporation. On the basis of the said notification the Special Officier published the calender of election events on 4-8-1981 notifying that the nominations should be filed between 4-8-1981 to 10-8-1981 and the date for scrutiny of nominations was fixed on 11-8-1981 and the date of polling was scheduled on 27-8-1631. Kondamuri Swarnalatha (petitioner in the Election Petition). Smt. Vijaya Kari (1st respondent in the Election Petition) and Smt. Devaki Pasupuleti (2nd respondent) filed nominations for 50th Division. The 1st respondent filed the nomination on 7-8 1981 stating her age as 19 years in accordance with the age entered in electoral roll. The Returning Officer returned the nomination on the ground that the candidate did not attain the age of 21 years on the notifying date as provided in Sec. 21 of the Hyderabad Municipal Corporation Act and therefore she is not eligible to contest for the election. Thereupon, the 1st respondent filed application dated 7-8-81 before the Electoral Registration Officer for correcting her age as 23 in the place of 19 and in support of this application produced the extract of entries in Matriculation examination certificate indicating her date of birth as 15-4-1958 and the marriage certificate issued by the Collector. On the perusal of these documents the Electoral Officer passed an order that her age should be corrected as sought for and the amended electoral voters list also was issued. Thereafter the 1st respondent filed nomination on 10-8-1981 mentioning her age and also enclosing the amended electoral roll: The Returning Officer received the same without any objection since the age mentioned in the amended electoral roll and the age mentioned in the nomination form satisfied the requirement of sec. 21 of the Act. The objections were filed by the petitioner and another stating that the actual date of birth of the 1st respondent is 15-4-62 and therefore her nomination should not have been accepted. After hearing both sides the Returning Officer overruled the objections and accepted the nomination on the strength of the documents filed before him and the amended electoral roll appended to the nomination form. The elections were conducted on 7-8 81 and in the elections the petitioner, 1st respondent and 2nd respondent contested the election. In the count conducted on 28-8-81 the 1 st respondent secured 1337 votes and the petitioner polled 1320 and the 2nd respondent secured 604 votes and the 1st respondent was declared duly elected councillor for 50th Division The petitioner filed the petition to set aside the election of the 1st respondent as her nomination is ab initio void as she was underaged on the date of filing the nomination. The amended electoral roll cannot be acted upon as she secured the amendment on the basis of false and fabricated Matriculation certificate. The acceptance cf the nomination by the Raturning Officer is illegal as he also relied upon false and fabricated documents As the nomination of 1st respondent is abinitin void her election is liable to be set aside and the petitioner should be declared as duly elected as she secured the maxium number of votes next to 1st respondent.

(3.) This petition is resisted by the 1st respondent on several grounds. It is pleaded that the Tribunal has no jurisdiction to go behind the electoral rolls or the amended electoral rolls and the Tribunal has to deal only with the incidents that cropped up from the date of nomination. Further, the petitioner is not competent to question the qualification or disqualification of the 1st respondent, who has been duly elected, before the Tribunal since the Commissioner or the Corporator alone can take such objections before the Tribunal constituted under Sec.86 of the Act. The Tribunal is not competent to go into the question of any wrongful entries or corrections in the electoral roils. Further, this petition is bad for non-joinder of the necessary parties as the Electoral Registration Officer and the Returning Officer are not made necessary parties. The 1st respondent was 23 years old on all material dates ie. the date of nomination, date of scrutiny and day of declaration of results on 28-8-1981 and is therefore competent to contest for the councillorship. It is further stated that the 1st respondent was born on 18-8-1959 as the 5th child and first female child of her parents Soorla Paul and Santamma, who were converted Chirstians from the scheduled caste community. The 1st respondent was not named immediately after birth but she was called Catherine affectionately by her brothers and parents and subsequently she was named as Deevena Varaprasad Vijaya Kumari. The father of the 1st respondent was employed in the Hindustan Shipyard Limited and was entitled for a permanent service record in 1961. The 1st respondent's last sister i.e. Mari Sundari Ratnakumari was born on 17.9.1962. When 1st respondent was about 6 years old her parents admitted her in first class in Gandhigram Vidhyanilayam in 1965 mentioning her real date of birth as 18-8-1959. Because of poverty the 1st respondent discontinued her studies in 1967 at the instance of her parents and in 1968 she was once again admitted in the first class in the same school and she studied there till she discontinued in 1969. Again she was admitted in 4th class in 1971 and studied upto Intermediate class. After first discontinuation when she was admitted and readmitted, the 1st respondent learnt that her parents or guardian gave incorrect underaged dates of births to suit age requirement for admission and further education. The incorrect date of birth given at the time of second re-admission was carried right through till she discontinued her studies after Intermediate class. During her education she professed and followed the original religion of her community viz., scheduled caste and after attaining the majority she married out of her own free will other caste community person Sri Karri Trilochan Rao on 22-7-1979. After she discovered that her correct age was not mentioned in the electoral rolls for 50th Division, she moved the Electoral Registration Officer for correction of the age and the Electoral Registration authority after verification of records corrected the age as sought for. On 10-8-1981 she filed the nomination papers complying with the necessaryr equirements and on 11-8-1981 the Returning Officer after satisfying himself regarding the age accepted the nomination. The 1st respondent did not mislead the Electoral Registration Officer or the Returning Officer. The allegation regarding the filing of the nomination and the return of the same on the ground of under age and raising the objection on 11-8-1981 by the petitioner against the nomination of 1st respondent and that she was disqualified as undereged and that the amended electoral toll is null and void are denied. The Electoral Registration Officer corrected the mistake regarding the . age after enquiry on 7-8-1981. The 1st respondent never produced any fabricated certificate before the Electoral Registration Officer and the petitioner did not raise any objection in the presence of this respondent by filing any objection memo. The 1st respondent did not make a false declerstion that she belongs to scheduled caste and that she deposited Rs. 100/- but not Rs. 50/-. In any event, the petitioner is net entitled to the declaration that she is duly elected in the event of setting aside the election since it cannot be predicted that she would have polled the votes polled by the 1st respondent.