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Aadi Sreeni Vs. Ramesh Chennamaneni and Anoth - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Judge
AppellantAadi Sreeni
RespondentRamesh Chennamaneni and Anoth
Excerpt:
hon'ble sri justice r.kantha rao election petiton no.1 of 2010 date:14. 08-2013 aadi sreenivas...petitioner ramesh chennamaneni and another....respondents counsel for petitioner: sri m.p.chandramouli counsel for 1st respondent : sri y.rama rao counsel for 2nd respondent : g.p. for general administration head note: ?.cases referred:1. (2001)8 scc2332. (2012)7 scc7883. (2001)8 scc2334. (2003)8 scc6735. air1977sc1724hon'ble justice r.kantha rao election petition no.1 of2010order: briefly stated, the averments in the election petition are the following:2. bye-election was held for no.28-vemulawada assembly constituency, karimnagar district in andhra pradesh on 27.07.2010, results were declared on 30.07.2010 in which the first respondent was the returning candidate. in 2009 general elections,.....
Judgment:

HON'BLE SRI JUSTICE R.KANTHA RAO ELECTION PETITON No.1 of 2010 Date:

14. 08-2013 Aadi Sreenivas...Petitioner Ramesh Chennamaneni and another....Respondents Counsel for petitioner: Sri M.P.Chandramouli Counsel for 1st respondent : Sri Y.Rama Rao Counsel for 2nd respondent : G.P. for General Administration HEAD NOTE: ?.Cases referred:

1. (2001)8 SCC2332. (2012)7 SCC7883. (2001)8 SCC2334. (2003)8 SCC6735. AIR1977SC1724HON'BLE JUSTICE R.KANTHA RAO ELECTION PETITION No.1 OF2010

ORDER

: Briefly stated, the averments in the election petition are the following:

2. Bye-election was held for No.28-Vemulawada Assembly Constituency, Karimnagar District in Andhra Pradesh on 27.07.2010, results were declared on 30.07.2010 in which the first respondent was the returning candidate. In 2009 General Elections, the first respondent, who was the nominee of TRS party, won the election. Subsequently, the first respondent resigned, the seat became vacant and therefore bye-election was held on 27.07.2010. In the said bye- election, the petitioner contested as candidate of Indian National Congress, the first respondent as the candidate of TRS, one Gandra Venkateshwara Rao, candidate of TDP and Devarakonda Srinivas as independent candidate. Total votes polled in the said bye-election were 1,20,987. One vote was rejected. Out of the valid votes polled, the petitioner secured 28,695, whereas, the first respondent secured 79,146 votes, Gandra Venkateshwara Rao secured 4387 and Devarakonda Srinivas secured 8759 votes. Thus, the first respondent was declared elected in the said bye-election.

3. The petitioner filed the election petition challenging the election of the first respondent on the ground that he was not a citizen of India on the date of election and as such, he was not qualified to be chosen to fill a seat in the Legislative Assembly under Article 173 and 191(1)(d) and (e) of the Constitution of India and Section 16 of the Representation of People Act, 1951. According to the petitioner, the first respondent had voluntarily obtained the citizenship of Germany in the year 1993 and also obtained a German Passport, which is valid up 02.04.2017. The version of the petitioner is that Article 173 of the Constitution of India stipulates that a person shall not be qualified to be chosen to fill a seat in the Legislature of State unless he is a Citizen of India, Article 191(1(d) and (e) stipulate that a person shall be disqualified for being chosen as and for being continued as a member of the Legislative Assembly if he is not a Citizen of India. Section 5 of the Citizenship Act provides for acquiring citizenship by registration, Section 5(1)(f) enables a person who was earlier a Citizen of Independent India to get himself registered as citizen of India, if he has been residing in India for one year before making an application for registration. It is submitted by the petitioner that the first respondent, who was intending to contest the bye-election made an application in Form III-B to the District Collector-cum-District Magistrate, Karimnagar on 31.03.2008 under Section 5(1)(f) of the Citizenship Act, 1955 to register him as a citizen of India. Clause 6(b) of the application contains the statement that ".I have resided in India throughout the period of 12 months immediately preceding the date of application".. The first respondent affirmed that he had resided in India throughout the period of 12 months immediately preceding the date of application to bring his case under Section 5(1)(f) of the Citizenship Act, but he has not filed the entries in the passport in proof of the said statement.

4. It is stated by the petitioner that the first respondent enclosed only the photo and address portion of the passport to the application. The first respondent also enclosed the residential permit dated 29.03.2009 issued by the registration officer/Superintendent of Police, Karimnagar. According to the petitioner, the residential permit has to be surrendered at the time of departure of the first respondent to a Foreign State. On the back of he said permit there is the endorsement of the Superintendent of Police, Karimnagar dated 31.03.2008 to the effect that Chennamaneni Ramesh, Foreigner of German National was intending to departure for Germany on 01.04.2008 through Rajiv Gandhi International Air Port, Hyderabad. There is another endorsement of the Superintendent of Police, Karimnagar dated 30.01.2009 which was to the effect that the first respondent came to India on 19.02.2009 and reported about his arrival in his office on 30.01.2009.

5. The petitioner therefore, submits that these enclosures were made to show that as on the date of his application on 31.03.2008, the first respondent completed one year stay in India, the first respondent has not reported his arrival in India after 22.01.2007, he has not obtained Form 'A' under the Registration of Foreigners Rules or the residential permit, he came to India on 28.02.2008 and started the game from 26.03.2008, on which date he applied for residential permit to the Superintendent of Police, Karimnagar. According to the petitioner, the first respondent did not mention the date of his arrival in India. It is further submitted that the Superintendent of Police, Karimnagar in his report dated 29.03.2008 sent to the Additional Director General of Police Intelligence, Hyderabad stated that Dr. Chennamaneni Ramesh German National who arrived Karimnagar District on 22.07.2008 reported about his arrival on 26.03.2008.

6. The contention of the petitioner is that the first respondent suppressed the fact that he went out of India on 01.03.2007 and came back to India on 28.02.2008, made the application for registration on 31.03.2008 and went back to Germany on 01.04.2008. Thus, between 22.01.2007 and 31.03.2008 the first respondent stayed in India only for 96 days. According to the petitioner, entries in the passport are the only piece of evidence to establish the actual stay of the petitioner in India, but the District Collector without any scrutiny as to the correctness of the particulars of the application, in a casual manner forwarded the application to the State Government on 15.04.2008 with a covering letter. The State Government in its turn forwarded the application to the Government of India, Home Affairs, which had issued certificate on 03.02.2009 under Rule 10(1) of the Citizenship Rules. The petitioner thus submits that the authorities at all the levels of scrutiny and consideration have not taken care to verify the claim of the first respondent with reference to the entries in the passport and the immigration records at the Rajiv Gandhi International Airport, Shamshabad. It is also submitted that the petitioner had not stayed in India for one year prior to 31.03.2008 is also evident from the fact that the news item published in Andhra Jyothi Telugu Daily Newspaper dated 26.12.2007 stating that the first respondent met Sri Vayalar Ravi, Indian Minister for External Affairs two days ago in a conference in Berlin and brought to his notice the problems that are being faced by immigrant Indians in Gulf Countries. The photos of the first respondent with Sri Vaylar Ravi were also published. The petitioner filed the newspaper clipping containing the photographs of the first respondent.

7. According to the petitioner, the first respondent filed application in Form 6 on 15.02.2009 before the Electoral Registration Officer, Vemulawada Assembly Constituency for inclusion of his name in the Electoral Roll. The Tahsildar, Vemulawada signed as Electoral Registration Officer and the seal of Electoral Registration Officer was not affixed in the relevant column. The proposed inclusion of the name of the first respondent in Electoral Roll was not published on the notice board calling for objections. Thus, according to the petitioner, inclusion of the first respondent's name in electoral roll at S.No.1416 of Poling Station No.160 of Vemulawada is in utter disregard of the procedure in the Registration of Electors Rules, 1960.

8. The contention of the petitioner is that the first respondent is neither a citizen of India nor an ordinary resident of Vemulawada constituency on the crucial date and therefore, his inclusion in the voters list in the Vemulawada constituency is illegal and void. The scrutiny of the nominations was scheduled on 10.07.2009 on which date at 10.30 AM, the petitioner filed objections before the Returning Officer, 28-Vemulawada Assembly Constituency stating that Dr. Chennamaneni Ramesh, the first respondent did not reside in India for a continuous period of one year prior to his application for citizenship as required under Section 5(1)(f) of the Citizenship Act and therefore, the citizenship certificate dated 03.02.2009 and his inclusion in the electoral roll is illegal and void. The Returning Officer received the objection petition, but failed to scrutinize the nomination of the first respondent and overruled the objection in capricious manner and published the list of valid nominations on 12.07.2010.

9. The crux of the election petition as can be seen from the averments made is that the first respondent by making a false statement in the application dated 31.03.2008 for grant of certificate of citizenship enclosed false records to the application by suppressing the fact of leaving India on two occasions from 22.01.2007 to 31.03.2008 obtained the certificate of registration under Citizenship Act from the Union Government. Suppression of material facts by the first respondent amounted to fraud and therefore, the entry in the electoral roll is also vitiated and that he is not eligible to contest for the seat of member of Legislative Assembly Constituency of Vemulawada and consequently the election of the first respondent as MLA on 30.07.2010 is liable to be declared as void.

10. It is further submitted by the petitioner that he also filed a revision before the Government of India under Section 15 of the Citizenship Act on 15.06.2009 challenging the grant of Certificate of Registration dated 03.02.2009 in favour of the first respondent and awaiting orders in the said revision. The petitioner, therefore, filed the present election petition to declare the election of the first respondent as void as he is not qualified to be chosen to fill a seat in the Legislative Assembly from 28-Vemulawada Assembly Constituency as he is not a citizen of India since he obtained the certificate by playing fraud against the authorities concerned.

11. In his counter, apart from making general denial of all material allegations made in the election petition, the first respondent contended that the election petition is not maintainable since the petitioner did not plead any material facts or particulars constituting the cause of action as to how the first respondent was disqualified to contest the election. The averments in the election petition do not confirm to the mandatory requirement under Section 83 and 100(1)(a) of the Representation of People Act, 1951 and hence, the election petition is liable to be dismissed in limini.

12. He asserted that he is an elector of 28-Vemulawada Assembly Constituency and qualified to contest the bye-election held in the month of July, 2010, A.P. State Legislative Assembly and as such, he has not incurred any disqualification on the date of his election. According to him, the petitioner stated irrelevant facts in the process of trying to make out a case to attract the alleged disqualification to suit his plea in the election petition. He further submitted that the alleged factual statements set out in various paragraphs are totally irrelevant in questioning the first respondent's election. According to him, the petitioner failed to plead any material facts or grounds and ingredients for constituting any cause of action as required under law. He also stated that since he raised maintainability of the election petition on the ground that the petitioner has not made out any cause of action to question the election of the first respondent by pleading necessary material facts, particulars and ingredients, it is necessary to decide the maintainability of election petition as a preliminary issue before going into a full fledged trial. He submitted that he is the citizen of India and ordinary resident of 28- Vemulawada Assembly Constituency, Karimnagar District and elector of the said town. According to him, therefore, he is fully qualified to contest the election.

13. He further specifically denied the allegations that he was not a citizen of India on the date of election and asserted that pursuant to the application made by him with the Central Government under Section 5(1)(f) of the Citizenship Act, the Central Government was pleased to confer Indian Citizenship on 03.02.2009 vide certificate No.34. The said certificate is very much in force as on the date of election and even till today and therefore, the first respondent is a citizen of India.

14. He further asserted that the Central Government conferred Indian Citizenship on him under the provisions of Citizenship Act and as per the provisions of the Citizenship Act, the Central Government is only competent to cause an enquiry into the issue of citizenship. The petitioner also approached the Central Government and lodged a false and frivolous complaint upon which the Central Government has initiated action and issued notices to the first respondent. Aggrieved thereby, the petitioner has approached the High Court of Andhra Pradesh and filed Writ Petition No.3737 of 2010 and the High Court by its order dated 19.02.2010 granted interim order and subsequently, vacate stay petition filed by the Central Government was also dismissed. The election petitioner also filed implead petition and counter in the said writ petition. The election petitioner also filed another Writ Petition No.6374 of 2010 seeking a mandamus directing the Central Government to dispose of the revision petition filed by the petitioner against the first respondent on 15.02.2000 pending before the Central Government. The first respondent submitted that the two writ petitions are pending before the High Court of Andhra Pradesh.

15. It is further contended by the first respondent that the question whether the citizenship is valid or not has to be exclusively decided by the Central Government in accordance with Citizenship Act and this Court trying the election petition in the absence of any contrary declaration by the Central Government in accordance with the provisions of the Citizenship Act, has no jurisdiction to decide the issue of citizenship in the election petition. It is further contended that the petitioner has no locus standi to question the election of the first respondent on the ground of citizenship since the competent authority under the Citizenship Act had already adjudicated upon this aspect and the petitioner availed the statutory remedy by filing revision before the Government of India. Therefore, according to the first respondent till the matter is decided by the competent authority i.e. Government of India, the petitioner cannot re-agitate the very same issue through the election petition before this Court. It is contended that the petitioner having already raised the issue before the Central Government cannot pursue the self-same question before this Court in an election petition.

16. It is further submitted that in any event, the first respondent was elected in the elections held during 2009 and continued as MLA representing the constituency till his resignation throughout and he was re-elected in the bye- election. Even otherwise, according to the first respondent, he being a resident and voter of the subject constituency for more than the required period, as such, the petitioner is not entitled to question the same and the election petition is therefore, not maintainable in law or on facts. It is also submitted that the petitioner filed E.P.No.4 of 2009 before this Court questioning the election of the first respondent and the same was dismissed on 02.07.2010. Raising the above contentions the first respondent sought to dismiss the election petition.

17. The petitioner filed rejoinder to the counter filed by the first respondent stating that all the material facts and material particulars required to constitute the cause of action are meticulously pleaded in the election petition. If the first respondent wants to establish that the election petition does not constitute cause of action, he has to point out as to what are the material facts and particulars ought to have been pleaded, which render the election petition not maintainable. The first respondent has filed counter only with general and sweeping statements and the said statements have no value of pleadings by virtue of Order VII, Rules 3 and 4 of CPC. It is further submitted that the contention of the first respondent that he was given citizenship certificate, it is in force and therefore, he is citizen of India is equally untenable. The petitioner had set out in the election petition, the detailed facts regarding obtaining of the certificate by false and misleading statements which are not denied by the first respondent. When the election is challenged, the first respondent has to sustain his stand by disproving the established facts.

18. It is further submitted that the citizenship certificate was obtained in violation of the provisions of the Act and provisions of the Constitution, therefore, this court can decide upon the eligibility of the first respondent to contest the seat in the Assembly on the original cause of action with reference to the provisions of Constitution of India and Representation of People Act. The election therefore, can be challenged on the grounds available under the Representation of People Act and Constitution. The right of the petitioner to challenge the election is an independent right and it cannot be curtailed as contended by the first respondent.

19. Basing on the above pleadings, the following issues are settled:

1. Whether the first respondent was not a citizen of India on the date of election?.

2. Whether the Court can exercise jurisdiction in respect of the validity and inclusion of the name of the returned candidate in the electoral roll made under the Representation of People Act, 1951 in the election petition?.

3. Whether the Court can exercise the jurisdiction to examine the validity of the certificate of registration of citizenship of the returned candidate without impleading the authority concerned under the Citizenship Act only for the purpose of joining the issue relating to validity of certificate?.

4. Whether the petitioner did not plead the required material facts, particulars, ingredients and grounds constituting complete cause of action to seek the election of the returned candidate as void?.

5. Whether the inclusion of the first respondent in the voters list and declaring him as elected are null and void?.

6. Whether the election of the first respondent can be declared as illegal and void in terms of the pleadings of the election petitioner?.

7. To what relief?. ISSUE No.4:

20. The contention of the first respondent is that the petitioner failed to plead the required material facts and also particulars, ingredients constituting complete cause of action and therefore, the election petition is liable to be dismissed.

21. The material facts which have been pleaded by the petitioner have been narrated hereinabove. The election of the first respondent has been challenged in the election petition on the ground that he is not a citizen of India on the date of election as such he obtained the certificate of citizenship by playing fraud on the Central Government. It is pleaded by the petitioner that the first respondent shall not be qualified to be chosen to fill the seat in the Andhra Pradesh State Legislative Assembly as he obtained the citizenship of Germany in the year 1993 and obtained German Passport which is valid up to 2017. Thus, he ceased to be citizen of India by virtue of the provisions of Article 9 of the Constitution, the Citizenship certificate dated 03.02.2009 issued by the Central Government under Section 5(1)(f) of the Citizenship Act was obtained by him by suppression of facts and playing fraud on the Central Government, even though he did not satisfy the requirements for a person to obtain the certificate under Section 5(1)(f) of the Citizenship Act, the authorities concerned from the District Collector-cum-District Magistrate, Karimnagar to the issuing authority of the citizenship certificate without proper scrutiny of the particulars furnished by him issued a certificate of registration and therefore, the certificate is not valid. He specifically pleaded in the election petition that the first respondent went out of India on 01.03.2007 and came back to India on 28.02.2008 and made an application for registration on 31.03.2008, went back to Germany on 01.04.2008 and thus, he stayed in India only for 96 days between 22.01.2007 and 31.03.2008, Section 5(1)(f) of the Citizenship Act enables a person, who was earlier a Citizen of India to get himself registered as citizen of India, if he has been residing in India for one year before making an application for registration. But having resided only for 96 days between 22.01.2007 and 31.03.2008 the first respondent made an application for grant of citizenship certificate stating that he resided in India for one year preceding the application and thus, by making false statements and suppressing material facts, the first respondent played fraud on the authorities concerned and obtained the citizenship certificate. It is also pleaded that the returning officer without proper scrutiny of the nomination in spite of the objections raised by the petitioner, overruled the objection in a capricious manner and published the list of valid nominations.

22. In para'L' the petitioner stated that Dr. Chennamaneni Ramesh (the first respondent herein) did not reside in India for continuous period of one year prior to the application for citizenship as required under Section5(1)(f) of the Citizenship Act. He also pleaded all the material particulars basing on which he sought to prove the material facts which have already been narrated hereinabove.

23. As per Section 83 and 100(1)(a) of the Representation of People Act, 1951, the election petition shall contain a concise statement on which the petitioner relies. It is held in HARI SHANKER JAIN v SONIA GANDHI1 by the Supreme Court that: ".the material facts required to be stated are those facts which can be considered as material supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in CPC. ".

24. In PONNALA LAKSHMAIAH v KOMMURI PRATAP REDDY AND OTHERS2 the Supreme Court was of the view that". ".to decide the question as to material facts constituting cause of action have been pleaded or not, full and comprehensive view of pleading is to be taken for determination as to existence of cause of action, averments in petition cannot be read out of context or in isolation. A defect in verification of election petition or affidavit accompanying election petition is curable, hence, the same is not sufficient to justify dismissal of election petition at threshold, if otherwise cause of action is disclosed in the election petition.".

25. In the instant case, the petitioner in support of his contention that the first respondent is not a citizen of India on the date of election and that he obtained the citizenship certificate by making false statements and suppression of material facts pleaded, the required material facts which constitute cause of action. The first respondent in a routine manner contended in his counter that the petitioner did not plead the material facts and also the particulars. As rightly pointed out by the learned counsel appearing for the petitioner the first respondent did not state in his counter as to what are the material facts required to be pleaded in the present case by the petitioner and how the petition is liable to be rejected in the absence of pleading those material facts. Therefore, I see no substance in the contention raised by the first respondent that the petition is liable to be rejected for not pleading material facts by the petitioner. Issue No.4 is answered against the first respondent and in favour of the petitioner. ISSUE NOS.2 and 3:

26. In Election Application No.366 of 2011 which was filed by the first respondent to reject the election petition on the ground that necessary material facts, particulars and ingredients constituting the cause of action have not been pleaded and that the High Court has no jurisdiction to go into the validity of the citizenship certificate issued by the Central Government, this Court following the ratio in HARI SHANKER JAIN v SONIA GANDHI3 dismissed the said petition, holding that: ".the High Court has jurisdiction while trying an election petition to adjudicate the issue as to whether the returned candidate is a citizen of India and the certificate possessed by him allegedly issued under Section 5(1)(f) of the Citizenship Act is valid or not.".

27. However, since these are the two issues in the election petition, I would like to once again mention the ratio in HARISHANKARJAIN Vs. Sonia Gandhi (first cited), which is as follows: ".The designated Election Judge while hearing an election petition can exercise the jurisdiction vesting in the High Court, accepting such limits on its power as can be spelled out expressly or by necessary implication from the provisions of the Representation of People Act, 1951 to examine the validity of any law or rule or order. There is nothing in the Representation of People Act, 1951 which takes away jurisdiction of the High Court to adjudicate upon the validity of any law which comes up for its consideration to decide the election petition.". The election petitioner is laying challenge to the correctness of the grant of citizenship to the respondent and his entitlement to be registered as a citizen of India under Section 5(1)(c) of the Act. Such a question is not immune, by the scheme of the Citizenship Act, 1955, from being adjudicated upon by an appropriate forum other than the Central Government. Thus, looking at the scheme of the Citizenship Act, as also judicial opinion which has prevailed ever since the enactment of the Citizenship Act, 1955, it must be concluded that in spite of a certificate of registration under Section 5(1)(c) of the Citizenship Act, 1955 having been granted to a person and in spite of his having been enrolled in the voters list, a question whether he is a citizen of India and hence qualified for, or disqualified from contesting an election can be raised before and tried by the High Court hearing an election petition, provided the challenge is based on factual matrix given in the petition and not merely bald or vague allegations. A presumption of validity and regularity attaches to such certificate. Under Section 114 Illustration (e) of the Evidence Act, 1872 the court may presume that official acts have been regularly performed. The presumption exists though it is rebuttable and not conclusive. A Judge of the High Court can, therefore, while hearing an election petition, adjudicate upon the validity of any statutory provision subject to two limitations: (i) that it must be necessary to go into that question for the purpose of trying an election petition on any one or more of the grounds enumerated in Section 100 and for the purpose of granting any one or more of the reliefs under Sections 98 and 99 of the Act, and (ii) a specific case for going into the validity or vires of any law is made out on the pleadings raised in the election petition.".

28. In view of the aforesaid judgment, this Court since the validity of very citizenship claimed by the first respondent is in question in the election petition, can examine the validity of the certificate of registration of Citizenship of the returned candidate and merely because the name of the returned candidate was included in the electoral roll, it is not open for the first respondent to contend that this question cannot be examined in the election petition. Insofar as impleading the authorities concerned under the Citizenship Act, since this Court can decide the validity of the certificate without impleading the authorities under the Citizenship Act, is not bound to implead the issuing authority to decide the validity of the citizenship certificate issued to the first respondent. The reason being without the presence of the authority concerned this Court can completely and effectively adjudicate upon the said issue and absolutely there is no necessity to implead the authority concerned under the Citizenship Act in the election petition. The issues 2 and 3 are answered against the first respondent and in favour of the petitioner. ISSUES1 5 & 6:

29. The fact asserted by the petitioner that the first respondent had voluntarily obtained the citizenship of Germany in the year 1993 and also obtained a German Passport which is valid up to 02.04.2017 is not disputed by the first respondent. The first respondent made an application to the Central Government to register him as a citizen of India under Section 5(1)(f) of the Citizenship Act, 1955. Under the provisions the first respondent, who was earlier citizen of India, if he had been residing in India for one year immediately before making the application for registration can be registered as citizen of India.

30. The contention of the petitioner is that the first respondent by misrepresentation and making false statements got him registered as a citizen of India by the Central Government. His specific contention is that between 22.01.2007 and 31.03.2008 the first respondent stayed in India only for 96 days. The citizenship certificate issued to him basing on which he got himself enrolled in the electoral roll is void, it was obtained by playing fraud on the authorities concerned, he is, therefore, not a citizen of India on the date of election and his election is liable to be set aside.

31. In support of his contention he filed certain documents which are referred to herein below to prove that he had not resided in India for one year immediately before making an application for registration as a citizen of India and that he made false and misleading statements before the authorities concerned. In response thereto, the first respondent made only general denial of all facts and did not state specifically as to where he actually resided during the relevant period. To examine the validity of the contention raised by the petitioner in the election petition it is necessary to understand the burden of proof of the material facts pleaded by the petitioner.

32. The object of election law is the purity of the election process and the initial burden to prove would never be constant. When once the petitioner proves the facts asserted by him to the satisfaction of the Court, the burden shifts on to the respondent no.1, returned candidate to prove the facts which are within his special knowledge.

33. In SUSHIL KUMAR v RAKESH KUMAR4 the Supreme Court held that: ".the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute. In relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. The Supreme Court went on to hold that the Court acts on the basis of the statement made by a party to the lis. Whether such defence has been accepted or not is not of much importance but whether a false statement to the knowledge of the party has been made or not is. In any view of the matter, the Court must draw an adverse inference in this behalf against the respondent. The Supreme Court pointed out that a person should not be permitted to take advantage of his own wrong. He should either stand by his statement made before a Court of law or should explain the same sufficiently. In the absence of any satisfactory explanation, the Court will presume that the statement before a Court is correct and binding on the party on whose behalf the same has been made. According to the Supreme Court an admission if clearly an unequivocally made is the best evidence against the party making it and though not conclusive shifts the onus to the maker.".

34. IN THIRU JOHN v THE RETURNING OFFICER AND OTHERS5 1977 SC1724= 1977(3) SCC540 the Supreme Court held as follows: ".The onus of proving an allegation challenging the election of a returned candidate to the Rajya Sabha on the ground that on the date of scrutiny of nominations the returned candidate was less than 30 years no doubt lies on the petitioner. But when the petitioner has produced a number of documents containing clear and solemn admissions made by the returned candidate long prior to the election in question about his age, these admissions are entitled to great weight and shifts the burden on to the returned candidate to show them to be incorrect.".

35. From the aforesaid judgments it has to be understood that the burden of proof is initially and almost totally on the petitioner, who alleges corrupt practice in the election. However, it does not mean that the returned candidate can keep silent and that the petitioner alone has to establish each and every fact beyond doubt. The elected candidate is duty bound to disclose the material facts within his knowledge and he is not altogether absolved of his responsibility to assist the Court by producing the best evidence within his exclusive knowledge. If the Court comes to the conclusion that the elected candidate is not disclosing the true facts within his knowledge despite the satisfactory evidence adduced by the petitioner in proof of the allegations levelled in the election petition, the Court would be justified in drawing adverse inference against the elected candidate to the effect that had the elected candidate adduced the best evidence available with him it would have been against the statement of the elected candidate as to his stay in India made in the counter affidavit and favourable to the petitioner.

36. The petitioner who was examined as PW-1 stated in his chief examination affidavit that in the application filed by him in Form III-B made a statement as required under Clause 6(b) of the application that he resided in India throughout the period of 12 months immediately preceding the date of application to bring his case under Section 5 (i)(f) of the Citizenship Act for obtaining a citizenship certificate but he has not filed the entries in passport in proof of the said statement. The specific version of the petitioner is that the first respondent furnished before the authorities only the photo and address portion of the passport but not the entire passport. Ex.P-6 is the true extract of the application for registration certificate in Form III-B filed by the 1st respondent. Ex.P-7 is the copy of the true extract of the passport containing photo and address which was obtained by the petitioner under the Right to Information Act. Ex.P-8 is the true copy of Form-A issued under the Registration of Foreigners Rule, 1939. Ex.P-9 is the copy of residential permit dated 29.03.2008 issued by the Foreigners Registration Officer/Superintendent of Police, Karimnagar.

37. It is stated by the petitioner in his chief examination affidavit that the first respondent has to surrender the residential permit at the time of his departure to a foreign State. On the back of the said permit, there is endorsement of the Superintendent of Police, Karimnagar dated 31.03.2008 stating that Dr.Chennamaneni Ramesh (first respondent) foreigner of German National is intending to departure to Germany on 01.04.2008 through Rajiv Gandhi International Airport, Hyderabad. The said endorsement is marked as Ex.P-10. There is another endorsement of the same officer dated 30.01.2009 stating that the first respondent came to India on 19.01.2009 and reported his arrival in his office on 30.01.2009. The said endorsement is marked as Ex.P-11. According to the petitioner, the aforesaid enclosures were made to show that as on the date of his application on 31.03.2008 he completed one year stay in India. The version of the petitioner is that the first respondent has not reported his arrival in India immediately after 22.01.2007. He has not obtained Form A under the Registration of Foreigners Rules or the residential permit. PW-1 further stated in the affidavit that the first respondent came to India on 28.02.2008 and started the game from 26.03.2008 on which date he applied for residential permit to the Superintendent of Police, Karimnagar. Ex.P-12 is the copy of the letter addressed by the first respondent to the Superintendent of Police for issuing residential permit. According to the petitioner, in the said application, the first respondent did not mention the date of his arrival in India and the Superintendent of Police in his report dated 29.03.2008 sent to the Additional Director General of Police, Intelligence, Hyderabad stated that the first respondent, a German national who arrived Karimnagar District on 22.01.2007 reported his arrival on 26.03.2008. The said report is filed as Ex.P-13.

38. The contention of the petitioner is that all the above said documents were obtained by the first respondent by making false statements. Having secured the above documents on 29.03.2008, he filed an application for certificate of registration on 31.03.2008. The petitioner's version is that the application itself is defective inasmuch as the copy of the entire passport is not enclosed to the application. He pointed out in his chief-examination affidavit that the entries in the passport are the best and only piece of evidence to establish his movements into and out of India. But, without submitting the entire passport before the District Collector, the first respondent has secured the documents and the authorities concerned without any proper scrutiny as to the correctness of the particulars furnished by the first respondent in the application in a casual manner forwarded the application to the State Government on 15.04.2008 with a covering letter and it is marked as Ex.P-14. He further stated that the State Government in turn forwarded the application to the Government of India, Home Affairs which ultimately issued the certificate of registration No.34 dated 03.02.2009 under Rule 10(1) of the Citizenship Rules. Copy of the certificate is marked as Ex.P-15. The grievance of the petitioner is that the authorities at all the three levels of scrutiny have not taken care to verify the claim of the first respondent with reference to the entries in the passport or the immigration records.

39. The petitioner specifically stated in his chief-examination affidavit that the first respondent suppressed the fact that he went out of India on 01.03.2007 and came back to India on 26.11.2007, again gone out of India on 20.12.2007, came to India on 28.02.2008, made the application for registration on 31.03.2008 and went back to Germany on 01.04.2008. Thus, according to the petitioner, between 22.01.2007 and 31.03.2008, the first respondent stayed only 96 days in India. He submitted that the above dates are based on the report of the Superintendent of Police, Karimnagar dated 28.01.2009 and the copy of the report is filed as Ex.P-16.

40. He further stated in the chief-examination affidavit that a news item published in Andhra Jyothi Telugu Daily Newspaper, dated 26.12.2007 stating that the first respondent met Sri Vayalar Ravi, Indian Minister for External Affairs two days ago in a conference in Berlin and brought to his notice the problems that are faced by immigrant Indians in Gulf Countries. He filed the paper publication containing the photographs of the first respondent and it is marked as Ex.P-17.

41. It is further submitted by the petitioner that by showing the citizenship certificate, the first respondent got himself enrolled as voter in the electoral roll of Vemulawada Assembly Constituency by making an application for inclusion of his name. It is also pointed out by the petitioner that the Electoral Registration Officer is the Revenue Divisional Officer, Sircilla. But, the Tahsildar, Vemulawada signed as Electoral Registration Officer and the seal of Electoral Registration Officer was not affixed in the relevant column. The proposed inclusion was also not published on the notice board calling for objections and the name of the first respondent was improperly included in the voters list of Vemulawada at Serial No.1416 of polling station No.160 in utter disregard of the procedure prescribed in the Registration of Electors Rules, 1960. The portion of the voters list of Vemulawada Assembly Constituency showing the name of the first respondent is filed as Ex.P-19.

42. Nextly, it is submitted by the petitioner that the scrutiny of the nominations were scheduled on 10.07.2009, he filed objection petition on 10.07.2010 at 10.30 A.M. before the returning officer stating that the first respondent did not reside in India for a continuous period of one year prior to his application for citizenship as required under Section 5(1)(f) of the Citizenship Act and therefore, the citizenship certificate dated 03.022009 and his inclusion in the electoral roll are illegal and void. The copy of the objection petition is marked as Ex.P-20. According to the petitioner, the returning officer having received the objection petition, overruled the objection in a capricious manner without properly scrutinising the nomination of the first respondent.

43. The petitioner examined the Superintendent of Police, Karimnagar as PW-2. PW-2 perused the letter dated 21.08.2009 addressed by the Superintendent of Police, Karimnagar to the Collector which is Ex.P-16 and stated that the letter is addressed by their office to the Collector, Karimnagar. He stated in the cross-examination that he was not the Superintendent of Police, Karimnagar when the letter was addressed and it is mentioned in the letter that the letter is addressed by N.Shivshanker Reddy, the then Superintendent of Police, Karimnagar to the Collector. However, PW-2 affirmed the correctness of the contents of Ex.P-16 letter.

44. The petitioner examined the reporter of Andhra Jyothi Daily Newspaper as PW-3. PW-3 stated in his evidence that Ex.P-17 news item was reported by him and that he can identify the first respondent in the photo of the news item. He affirmed the correctness of the contents of the news item and stated that the persons concerned with the first respondent asked him to publish the news item and basing on the information conveyed by them, he published the news item.

45. On the other hand, the first respondent who is examined as RW-1 stated in his chief-examination affidavit that he went to Germany for some time for academic purpose, returned to India his birth place, he resided in India for one year immediately before making application for registration as citizen of India under Section 5(1)(f) of Citizenship Act, the Government of India after due enquiry registered him as Indian citizen and issued certificate of registration No.34 in exercise of statutory powers under Citizenship Act. He stated that he is citizen of India and the said certificate of registration is in force even till today and also on the date of his election.

46. He further stated that the election petitioner filed revision petition under Section 15 of the Citizenship Act, 1955 before Government of India challenging the certificate of registration, the Government of India has been trying the issue for deciding the validity of the certificate of the registration. According to him, the said certificate of registration is a statutory grant issued by the Statutory Authority i.e. the Government of India and it has presumptive value under Section 114(e) of the Evidence Act, 1872, until it is cancelled or set aside by the prescribed competent authority under Citizenship Act, 1955. His version is that he is holding citizenship certificate on the date of his election within the meaning of Article 173 and 191 of Constitution of India and also in terms of the provisions of Representation of the People Act, 1951.

47. RW-1 admitted in the cross-examination that he only stated in the affidavit that he resided in India of one year after returning to India before making application for registration of Citizenship, but he did not mention the dates during which he resided in India for a period of one year after returning to India. He admitted that the passport will bear the dates of his entry into India and departure from India, but he did not file the passport into the Court. He also admitted that with his application submitted for registration as Citizen of India, he enclosed the copy of his passport, but as required by the authorities, he only furnished the photo and address portion of the passport. He also admitted that in Ex.P-17 photograph published with the news item in Andhra Jyothi Daily Newspaper, he was along with Mr.Vayalar Ravi, the then External affairs Minister of India.

48. Challenge to the election of the first respondent as the Member of the Vemulawada Legislative Assembly Constituency is on the ground that he is not a citizen of India on the date of filing his nomination and on the date of election. The first respondent is claiming citizenship of India under Section 5(1)(f) of the Citizenship Act, 1955, which enables a person earlier citizen of independent India to acquire citizenship by making an application for registration, if he has been residing in India for one year immediately before making the said application. The specific contention of the petitioner is that the first respondent having arrived in India on 22.01.2007 went out of India on 01.03.2007, came back to India on 26.11.2007, gone out of India on 20.12.2007, again came back to India on 28.02.2008, made the application for registration on 31.03.2008 and went back to Germany on 01.04.2008. Thus, he asserted that between 22.01.2007 to 31.03.2008 the first respondent stayed only for 96 days in India and therefore, he does not satisfy the requirement under Section 5(1)(f) of the Citizenship Act to obtain a citizenship certificate. He adduced evidence stating that knowing fully well that he had not resided in India for continuous period of one year preceding the application made by him, made false and misleading statements before the authorities concerned obtained some endorsements which have been referred herein above and obtained citizenship certificate by playing fraud on the authorities. Under law it is not enough for the first respondent to deny the allegations generally, but he has to deny each and every allegation specifically and must state the true facts within his knowledge as to where in fact, he stayed during the dates specifically mentioned by the petitioner. The first respondent only made general and evasive denial, in his counter affidavit and also in the evidence to the effect that he had resided in India for a continuous period of one year before making an application for obtaining citizenship certificate as required under Section 5(1)(f) of the Citizenship Act. But, he did not furnish the details of his stay with reference to the specific allegations levelled against him by the petitioner. He has made categorical admission in his evidence that his passport will contain the dates of his entry into India and departure from India. He also admitted that with his application for registration as a citizen of India, he enclosed a copy of the passport containing only the photo and address portion of the passport. He did not file the passport into the Court. His admission as to his photograph with Vayalar Ravi in Ex.P.17, news item published in Andhra Jyothi newspaper also reveals that he was in Berlin two days before 26.12.2007. To the specific pleas raised by the petitioner as to the stay of the first respondent, he made only an evasive denial but has not made a specific denial and failed to explain the details of his stay in India as well as in Germany. Under law, if the facts asserted by the petitioner in the pleadings have not been denied specifically, they shall be taken as admissions.

49. The passport would be the best piece of evidence with reference to the first respondent's entry into India and departure from India. The first respondent did not file the passport into the Court. Moreover, he admits that for the purpose of obtaining the certificate of registration as a citizen of India, he only furnished his photo and address portion of the passport. Obviously, therefore, the first respondent withheld the best evidence available with him. As such, an adverse inference against the first respondent can be drawn to the effect that had he filed passport into the Court it would have revealed his stay in India only for 96 days, as a whole before making his application for obtaining citizenship under Section 5(1)(f) of the Citizenship Act, but not for one year as required under the said provision. Therefore, it has to be held that the first respondent was not a citizen of India on the date of election and inclusion of his name in the electoral roll is illegal.

50. The argument advanced on his behalf that on the date of election he was holding citizenship certificate which is not cancelled even today and therefore, qualified under Article 173 of the Constitution of India for contesting the election and he is not disqualified under Article 191 of the Constitution of India is without any substance. This Court while deciding the election petition can examine the question of validity of the grant of citizenship certificate to him and his entitlement to be registered as a citizen of India under Section 5(1)(f) of the Citizenship Act. In this case, the petitioner could be able to rebut the validity of the citizenship certificate and therefore, the citizenship certificate possessed by the first respondent is not conclusive of the fact that he is the citizen of India on the date of impugned election. Thus, issues 1, 5 and 6 are answered in favour of the petitioner and against the first respondent.

51. ISSUE No.7: For what all stated hereinabove, it is held that the first respondent is not the citizen of India on the date of election to the No.28- Vemulawada Assembly Constituency, Karimnagar District in Andhra Pradesh. His inclusion in the electoral roll is illegal, his election to the aforesaid constituency is declared as illegal and void. The election petition is therefore, allowed. There shall be no order as to costs. ________________ R.KANTHA RAO,J Date:14.08.2013


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