Bombay High Court
Arif Ibrahim Choudhari vs 6 Shri Raju Maruti Sarvade on 14 December, 2012
Bench: S.C. Dharmadhikari
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10313 OF 2011
Arif Ibrahim Choudhari,
Age Adult, Occupation : Social Service,
R/at Hadko Colony, Miraj,
District : Sangli. ..PETITIONER
(Orig. Opponent No.4)
-Versus-
1 Sau.Vahida Ayyaz Nayakwadi,
Age : 46 years, Occupation : Social Service &
Household,
R/at Hadko Colony, Miraj,
District : Sangli.
2 The State Election Commissioner,
New Administrative Building,
Opp.Mantralaya, Mumbai-32.
3 Chief Election Officer & Commissioner,
Sangli, Miraj and Kupwad City
Municipal Corporation Election, 2008.
4 Sangli, Miraj and Kupwad City
Municipal Corporation, Sangli.
5 Shri Digambar Raghunath Jadhav,
Age : 40 years, Occupation : Business,
R/at Sahyadrinagar, Nimjaga Mal,
Miraj, District : Sangli.
6 Shri Raju Maruti Sarvade,
Age : 48 years, Occupation : Business,
R/at Bharatnagar, Miraj,
District : Sangli. ..RESPONDENTS
.............
Mr.A.A.Kumbhakoni i/by Mr.A.M.Kulkarni, for the Petitioner.
::: Downloaded on - 09/06/2013 19:29:35 :::
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Mr.M.L.Patil, for the Respondent No.1.
Mr.G.H.Keluskar, for the Respondent No.4/ Corporation.
............
CORAM : S.C.DHARMADHIKARI, J.
Reserved on : 19th October, 2012.
Pronounced on : 14th December, 2012.
Judgment:
In view of the order passed on 05.01.2012 directing that this
Writ Petition be disposed of finally at the stage of admission, Rule.
Mr.M.L. Patil, who has filed appearance on behalf of the
contesting Respondent No.1, waives service. The Respondent Nos.2 and 3
have been duly served. No relief is claimed against them and equally
against the Respondent No.4. As far as the Respondent Nos.5 and 6 are
concerned, the Registry has reported that service is complete, but none
has appeared on their behalf. The contest is really between Petitioner and
Respondent No.1.
3 With the consent of parties, the Writ Petition is disposed of by
this judgment.
4 By this Writ Petition under Articles 226 and 227 of the
Constitution of India, the Petitioner is challenging the judgment and order
dated 21.10.2011 passed by the learned Joint Civil Judge, Senior Division,
Sangli in Election Petition No.7/2008.
5 By the said judgment and order, the Election Petition
preferred by the original Petitioner i.e. Respondent No.1. to this Writ
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Petition has been allowed and the election of the Petitioner before me,
who is original Respondent No.4, to the post of a Councillor, Sangli, Miraj
& Kupwad City Municipal Corporation (for short "SMKC Municipal
Corporation") is declared as void and is set aside. The Petitioner is
ordered to pay Rs.25,000/- by way of compensation to the Election
Petitioner/ Respondent No.1 before me, for raising false and vexatious
defence and this direction is to be abided by after a period of three
months from the date of the judgment of the Trial Court.
6 The Election Petition No.7/2008 was filed by the Respondent
No.1 to this Writ Petition against the Petitioner and five others alleging
that the Election Commission had declared the election programme and in
terms of the election programme, the election to the SMKC Municipal
Corporation was notified. At such election, for one of the ward bearing
No.9 the Respondent No.1 and equally the Petitioner were contesting
candidates. Their nominations were on record. The Respondent No.1
contested as a candidate of the Indian National Congress. The Petitioner
contested the election as a candidate of one "Maha Aaghadi". The other
two candidates were Digambar Raghunath Jadhav and Raju Maruti
Sarvade. After the polling was held and results were declared, the
Petitioner was declared as elected.
7 However, the allegation in the election petition filed by the
Respondent No.1 is that the Petitioner was ineligible and disqualified for
contesting the election. He could not have contested the election because
he does not fulfill the requirement of minimum age. In other words, the
criteria of minimum age of 21 years is not fulfilled by the Petitioner. In
paragraph 3 of the Election Petition, it is alleged that the Petitioner was
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born on 16th January, 1989. Therefore, on the date on which the
nomination forms were filed, he had not completed 21 years of age. In
paragraph 4 of the Election Petition, what is alleged is that when the
Petitioner does not fulfill the requirement or criteria of age, then, he was
not eligible and qualified to contest the election. In these circumstances,
his election be declared as void and should be set aside. It was alleged
that this election is wholly illegal.
8 The election results were declared on 01.07.2008 and the
Election Petition was filed on 10.07.2008.
On the notices/summons being served, there were Written
Statements filed. It is not necessary to refer to the Written Statements
containing denials and which have been filed on behalf of the Statutory
Authorities. Suffice it to refer to the Written Statement (Exhibit-58),
which was filed by the present Petitioner. He has justified his election by
urging that it is false to suggest that the Petitioner was not 21 years of age
on the date of filing of nomination. On the other hand, the Petitioner
asserted that he was born on 12.12.1986. He has denied each and every
allegation in the Election Petition and has prayed that the Election Petition
be dismissed.
10 From paragraph 7 of the Written Statement, it is evident that
the Petitioner has set out, what according to him, are true facts and
circumstances. Firstly, he urges that the allegations in the Election
Petition are an afterthought. The Respondent No.1 did not object to the
nomination form filed by the Petitioner, although she had every
opportunity to do so. Therefore, it is now not permissible to urge that the
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Petitioner was ineligible and disqualified.
11 In paragraph 7.3. of the Written Statement, what the
Petitioner has stated is that he was born on 12.12.1986. The Petitioner
has never mentioned any date much less 16.01.1989 as his date of birth.
It is not possible that the Petitioner will give any information because in
January, 1989 he was only two years of age. In fact, the correct position
is that the Petitioner has a brother, namely, Asif whose date of birth is
16.01.1989. There is, therefore, no question of the Petitioner giving his
date of birth as 16.01.1989. The Petitioner has taken a specific stand that
it is a mistake committed by the recording officer. It is because of the
similarity in the name that this confusion has occurred. The Petitioner is
not responsible for this error in the records of the Municipal Corporation.
The Petitioner relied upon the entry with regard to the date of birth in his
Driving Licence and asserted that it is 12.12.1986.
12 In paragraph 7.4 of the Written Statement, what the
Petitioner has stated is that he has only one surviving brother. That
brother's name is Zuber. However, prior to the birth of Zuber, the
Petitioner had two brothers, but they died very early and untimely. After
the Petitioner was born, there was another brother, namely, Asif. Even
Asif who was born later than the Petitioner is not now surviving.
However, on account of confusion in the names viz. Arif and Asif and
further because of illiteracy and poverty, the records in the Nagar Parishad
or in the Schools were not properly maintained. The entries therein were
not corrected because of the typical social background and set up. Later
on, when the Petitioner himself became aware of the mistake, he got
necessary corrections made such as in the Driving Licence. However, that
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document coupled with the endorsement and entry in the hospital
records, namely, Ashwini Prasad Hospital of Dr. Gosavi will show that the
Petitioner was born on 12.12.1986. A reference to the date of birth as
16.01.1989 made by the Respondent No.1/ Election Petitioner is based on
the entry in the Municipal records. However that is incorrect. If that entry
is carefully perused, it would be clear that it is false, though the
Petitioner's religion is Muslim, but against the name of his mother Smt.
Yasmin Choudhari in the Municipal records in the column of religion, the
entry is "Hindu". This itself would show that the Municipal record is
unreliable and incorrect. If there is an error therein, then, the Respondent
No.1 should not be permitted to rely on the same. In any event, entries
therein are falsified by the Petitioner as he has produced voluminous
other records. The Petitioner also relied upon the affidavits filed by his
family members. For all these reasons, he prayed that the Election Petition
be dismissed.
13 After the pleadings were complete, the learned Trial Judge
framed the necessary issues. I am concerned with the Issue No.1, which
reads as under :-
"Whether Petitioner proves that respondent No.1 was/is
disqualified to contest Municipal Corporation Election and to
be declared elected being not completed age of 21 years?"
14 After preliminary rounds concluded, the Election Petition was
taken up for trial. The documentary evidence is referred to in paragraph
41 of the judgment of the Trial Court. There is also extensive reference to
the oral evidence. Relying upon all this, what the learned Judge has held
is that the Petitioner's version that he was not disqualified on account of
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the age, is incorrect and false. His date of birth as reflecting from the
documents at Sr.No.1 to 6 produced by the Election Petitioner/
Respondent No.1 to this Writ Petition would show that he was not 21
years of age on the date of filing of the nomination papers. The finding
is, therefore, that crucial documents to determine the age would prove
beyond reasonable doubt that the Petitioner was born on 16.01.1989. It
is on this conclusion that the Issue No.1 was answered in the affirmative
and it was declared that the Petitioner had not completed 21 years of age
on the date of filing the nomination paper. The election was, therefore,
declared as illegal and void.
It is this judgment and together with imposition of costs
therein and equally the adverse remarks and findings against the
Petitioner and his conduct and equally the alleged dilatory tactics adopted
by him and his Advocate, are subject matter of challenge in this Writ
Petition.
16 Mr.Kumbhakoni, learned Counsel appearing on behalf of the
Petitioner, submits that the record would refer to the fact that the
Petitioner's mother was married on 10.10.1982. In 1983, her first child
was born. Unfortunately, he died in two days. The second child was born
in 1984, but died in one month. The third child is born in 1985 and his
name is Zuber. He is alive. The Petitioner was the fourth child and he was
born on 12.12.1986. The fifth child, namely, Asif was born on
16.01.1989, however, he died after two months of birth and prior to the
naming ceremony called 'Chhila'. In these circumstances, there is
confusion inasmuch as the Petitioner's name is Arif Ibrahim Choudhari
and his brother's name is Asif Ibrahim Choudhari. If the Petitioner was
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born on 12.12.1986, then, on the last date of filing of nominations i.e. the
relevant date, namely, 27.5.2008, the Petitioner was eligible. He had
completed 21 years of age.
17 Mr.Kumbhakoni then submitted that the learned Judge fell in
patent error in allowing the Election Petition. The entire judgment is
vitiated by errors apparent on the face of the record. The same is also
vitiated by perversity. The learned Judge has relied on several documents
which were produced by the Respondent No.1. The documents included
the Birth Certificate furnished to Alphonso Convent School, Miraj. This
Birth Certificate was issued by the SMKC Municipal Corporation. There is
reliance placed on certain documents and the learned Judge then has
held in paragraph 42 of the impugned judgment that all these 14
documents depict that the birth date is 16.01.1989. Mr.Kumbhakoni
submits that reliance placed on Section 35 of the Indian Evidence Act,
1872 will not mean that the entries therein are proved. In other words,
even if what are produced are public documents, what the law postulates
and presumes is their existence. Even if they are public documents, their
contents have still to be proved. Merely because certified copies of public
documents are produced on record and read in evidence that does not
mean that their contents are true and correct. There is no presumption
about truth and correctness of the contents of even public documents is
the submission of Mr.Kumbhakoni. He, therefore, submits that the learned
Judge completely misread and misinterpreted the legal provisions and
arrived at an erroneous conclusion that once what are produced are
public documents, then, their contents are deemed to be proved on
production thereof. Therefore, no dispute can be raised with regard to
the contents of such documents. This error, according to Mr.Kumbhakoni,
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has vitiated the entire judgment.
18 Mr.Kumbhakoni then submits that the learned Judge's
observations in paragraph 46 of the impugned judgment are patently
erroneous and unsustainable. Mr.Kumbhakoni has taken me through some
of the documents in the compilation and particularly Exhibit 191.
Mr.Kumbhakoni submits that the chart produced will show that the name
of Arif as against entry made in 1986 is deleted. As against the year 1989,
the name of Arif has been inserted, but that is not correct because in the
column of religion it is shown that he is Hindu. Mr.Kumbhakoni then
invites my attention to the information that is provided by the Statutory
Corporation (SMKC Municipal Corporation) to the effect that the birth
and death information forms have been destroyed. Even if they are
destroyed, what is evident in this case is that two Doctors who have been
examined by the Petitioner deposed that the Petitioner's mother was
brought for delivery to the hospitals, namely, Dr.Gosavi's and
Dr.Chaugule's hospitals where she delivered children in the years 1986
and 1989. The Doctors' evidence has been completely ignored from
consideration. The evidence is that the child born in the year 1989 is with
birth defects. This child is not alive. Further, it is not as if the Petitioner
has cooked up a story as is unfortunately termed by the learned Judge.
The Petitioner's mother was unfortunate in life. She had repeated
miscarriages. Her children did not survive. When the two Doctors were
examined and nothing was elicited in their cross-examination so as to
disbelieve their version or credibility, then, the primary evidence has been
completely ignored. The Petitioner was born in the year 1986 and the
child born at this hospital in the year 1989 was not alive. Such defence
raised by the Petitioner can hardly be termed as frivolous. There was no
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reason to impose heavy costs. Equally, the deposition of the mother,
father and grand father has been ignored and left out of consideration. In
such circumstances, the judgment really is one sided and unnecessarily
casts aspersions on the Petitioner and his lawyer. The Petitioner was
represented by the very senior and respected Advocate in Sangli and
there was no occasion to pass strictures against him, but the learned
Judge did so and this is crossing all limits of decency and sobriety in
delivering judgments. In such circumstances the impugned judgment be
quashed and set aside.
Mr.M.L.Patil, learned counsel appearing on behalf of the
Respondent No.1, on the other hand, has supported the impugned
judgment. He submits that the petition is frivolous and deserves to be
dismissed. The Petitioner's conduct is such that he does not deserve any
sympathy. This Court's jurisdiction under Articles 226 and 227 of the
Constitution of India is extra ordinary, equitable and discretionary. The
Petitioner, who has not approached the Court of Law with clean hands,
should not, therefore, be assisted in such jurisdiction. Mr.Patil submits
that it has been pointed out by the Respondent No.1 that although the
witnesses examined by the Petitioner have stated that his younger brother
Asif died before naming ceremony called "Chhila" and that the Petitioner
Arif is the second child born to his parent, but bearing in mind the public
records and certified copies till the year 2008 depicting completely
contrary version, then, such oral testimonies have been rightly discarded
and entries in public records have been preferred and accepted. Such a
course adopted by the Court below is not at all erroneous or
impermissible in law.
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20 Mr.Patil has heavily relied upon the observations of the
learned Judge in paragraph 5 of the impugned judgment and submitted
that how on each count the Petitioner has come up with a false version. It
is on the eve of elections that the Petitioner makes an attempt to get his
birth date altered and changed. In February, 2008, he approaches the
Municipal Authorities and seeks a change in the birth date from
16.01.1989 to 12.12.1986. The election was notified in March, 2008.
Then there is admission in the cross-examination that the Petitioner had
two vehicles and two licences. Most importantly, there is inconsistency in
the important records like the Register of Births and Deaths, which was
there, but not corrected till 2007. Even in the school admission forms and
LIC policies, the Petitioner's date of birth is 16.01.1989. These have not
been explained. Lastly, not much can be made-of of the alleged error
which has crept in the column of religion. For all these reasons, Mr. Patil
submits that this is not a Court of further appeal so as to permit a re-
appreciation and re-appraisal of factual materials. For these reasons, it is
submitted that the Writ Petition be dismissed.
21 Mr.Patil has also pointed out that what the Respondent No.1
has produced on record is the Birth and Death Register extract of the
child born on 12.12.1986, the Birth Certificate of the Petitioner, Voters
List of 2008, Voters List of 2007 and the School Leaving Certificate of the
Petitioner issued by the New Apostolic English School, Miraj. These
documents and their contents have been relied upon by the learned Judge
because despite lengthy cross-examination the Petitioner was not able to
disprove them. These entries were, therefore, reliable and trustworthy
and could have been made the basis for a finding of the Petitioner's age.
In such circumstances, even if the Trial Court has been little harsh on the
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Petitioner and his advocate, that was justified. However, with regard to
the remarks and observations of the learned Judge against the Petitioner's
Advocate, Mr.Patil on instructions states that he leaves the matter to the
Court on this aspect. Equally, the Respondent No.1 will not insist on
payment of costs, but there should be enough deterrent so that persons
like the Petitioner should not dare to interpolate and alter public records
and public documents. Such persons for political advantage and gains
have gone to the extent of falsifying public records and changing the
entries therein. Such criminal conduct needs to be visited with extreme
penalty. The Petitioner, therefore, should be prosecuted and this Court
must, therefore, direct all appropriate and competent authorities to take
cognizance and note of the Petitioner's conduct and initiate criminal
prosecution against him. For these reasons, he submits that the Writ
Petition be dismissed.
22 For properly appreciating the rival contentions it would be
important to note that one of the qualifications and eligibility criteria
prescribed by law for contesting the election is that such a person should
be an elector for a constituency. The word "elector" has been defined in
Section 2(e) of the Representation of the People Act, 1951 to mean a
person whose name is entered in the electoral roll of that constituency for
the time being in force and who is not disqualified under Section 16 of
the Representation of People Act, 1950.
23 As far as 1950 Act is concerned, it is apparent that a person
shall be disqualified for registration in an electoral roll if he incurs any of
the disqualifications. Such disqualifications are set out by Section 16 of
the Representation of the People Act, 1950. Every person who is not less
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than 18 years of age on the qualifying date and ordinarily residing in the
constituency shall be entitled to be registered in the Electoral Roll of that
constituency. However, for the purpose of being a candidate at the
election, this alone is not sufficient. There are qualifications which are
prescribed for membership of the Council of State and for membership of
the House of People and those are to be found in The Representation of
People Act, 1951. If one peruses these provisions, they provide for
qualifications and equally disqualifications. There are disqualifications on
several grounds, namely, conviction in criminal cases and for corrupt
practices and others. There are equally disqualifications for voting.
However, when it comes to filing of nominations for elections, what the
Law has prescribed is that the nominations which are filed for elections
have to be scrutinized and such scrutiny which is envisaged is in relation
to several aspects. The nomination paper is not liable to be rejected unless
the defect therein is of substantial character.
24 What one finds is that for being a candidate at the elections,
there has to be a criteria of age which has to be fulfilled and satisfied. In
the present case, since the elections are to the Municipal Corporations
and which Municipal Corporations are now part of the Constitutional
Scheme, namely, Part IX-A of the Constitution of India, one will have to
refer to the provisions therein.
25 As far as Municipalities are concerned, they are covered by
Part IX-A. Article 243-V of the Constitution of India appearing in part IX-A
reads as under:-
"243-V. Disqualifications for membership.--
(1) A person shall be disqualified for being chosen as, and
for being, a member of a Municipality--
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(a) if he is so disqualified by or under any law for the
time being in force for the purposes of elections to the
Legislature of the State concerned:
Provided that no person shall be disqualified on
the ground that he is less than twenty-five years of
age, if he has attained the age of twenty-one years;
(b) if he is so disqualified by or under any law made by
the Legislature of the State.
(2) If any question arises as to whether a member of a
Municipality has become subject to any of the
disqualifications mentioned in clause (1), the
question shall be referred for the decision of such
authority and in such manner as the Legislature of a
State may, by law, provide."
A bare perusal of this Article would reveal that a person shall
be disqualified for being chosen as and for being a member of
Municipality, if he is so disqualified by or under any law for the time being
in force for the purposes of elections to the State Legislature concerned
and by proviso below this, what has been provided is that no person shall
be disqualified on the ground that he is less than 25 years of age, if he has
attained the age of 21 years. Therefore, a person is qualified for being a
member of the Municipality, if he has attained the age of 21 years.
27 In this case, the argument and equally allegations throughout
is that the Petitioner was born on 16.01.1989. The crucial date and in
other words, of filing nominations for the subject elections to the SMKC
Municipal Corporation is 27.03.2008. The allegation then is that on this
date the Petitioner had not attained 21 years of age. He was below 21
years of age and therefore, disqualified.
28 An Election Petition was filed alleging that the Petitioner was
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disqualified for being elected. Thus, this is a case where sub-section (1)
of Section 16 of the Bombay Provincial Municipal Corporation Act, 1949
was invoked. The Petitioner's nomination form could not have been
therefore accepted, as he was not qualified to be elected as a Councillor.
29 It has been consistently held by the Honourable Supreme
Court that there may be certain defects in electoral process. However,
when the validity of an election is challenged on the ground that the
returned candidate was disqualified being under age, then, the inquiry is
whether he was eligible to contest as a candidate for the said election. He
may be enrolled as a voter. His enrollment as a voter and his registration
as a voter/ elector apart, if an inquiry is sought with regard to his age and
on the basis that he was not qualified to be a candidate, then, such an
inquiry is distinct and is not prevented by law. In other words, an inquiry
that a person was not qualified to be a candidate on the ground that he is
not of 21 years of age, is permitted. That is permitted because any
election even to the Municipality is liable to be set aside on the ground of
non compliance with the provisions of the Constitution of India. In this
case, non compliance is with Article 243-V(1) of the Constitution of India.
There are catena of decisions right from the first one noted, namely, AIR
1954 SC 520 (Durga Shankar Mehta v/s Raghuraj Singh and others) in
which it has been held that this inquiry is permissible in an Election
Petition. One may usefully refer to the decision in the case of Sushil
Kumar v/s Rakesh Kumar reported in AIR 2004 SC 230 (see paragraphs
23 to 26 at page 236)
30 It is precisely such an inquiry which was sought by the
Respondent No.1 and to my mind, the learned Judge has in a lengthy and
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really uncalled for exercise, overruled preliminary objections and points of
waiver and estoppel raised on behalf of the Petitioner. There is no
argument canvassed before me that the Respondent No.1 was estopped
from filing an Election Petition under Section 16(1) of the Bombay
Provincial Municipal Corporation Act, 1949 and raising an issue of
Petitioner's age even if that was raised, but rejected or was not raised at
all at the stage of scrutiny of nomination papers. There being no estoppel
against Law and the Law permitting such an inquiry even after a
candidate has been declared duly elected, then, on elementary and
fundamental principles all technical objections should have been
overruled. The learned Judge was, therefore, not required to be strong
and critical in his comments when the Petitioner's Lawyer raised technical
pleas as noted by him. A Judge need not be disturbed every time by
dilatory tactics. There are litigants and litigants and equally Lawyers and
lawyers. Some Lawyers are able to detach themselves completely from the
cause and are not over sensitive even if their arguments are rejected
outright. There are some Lawyers, who despite experience and passage of
time, continue to conduct matters as if they are freshers just out of a Law
College. For them, winning a matter is vital. Therefore, a Presiding Officer
or a Judge is often confronted with various types of Advocates and while
dealing with them, one need not be hypersensitive, even if there is
unnecessary provocation. There are some tactics which need to be
condemned and put down straightaway. However, there is method and
manner of doing this and with grace, sobriety and reserve, a Presiding
Officer can ride over a tricky situation in the court. The skill lies in not
getting carried away, but being impartial, fair and yet firm and
uncompromising. So much is enough for the learned Judge's approach in
this case and I am sure that if he has long career ahead of him, he will
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learn from this experience.
31 As far as oral and documentary evidence in this case is
concerned, a brief reference thereto is necessary. There are voluminous
compilations which have been filed, but what has been produced as a
proof of age are the earliest documents such as application for admission
to a school. When the Petitioner was to be admitted in Standard-I in
Alphonsa Convent School, Miraj, in the Application Form for Admission
which was addressed to the Headmaster the date of birth of the Petitioner
is mentioned as 16.01.1989 in figures as also in words. This form is filled
in on 07.06.1995 and received by the Headmaster of that school on that
very date.
32 The Corporation issued the birth certificate in the format
prescribed by the Registration of Births and Deaths Act, 1969, that also
mentions the date of birth as 16.01.1989 and is referable to the
Registration No.206 in the Register which has been maintained in
ordinary and regular course of business.
33 Further, it is written in this certificate in the remarks column
that the entries therein have been made on the basis of the application
dated 02.07.1992 which application was made by none other than parent
of the Petitioner. A certified true copy of the application made to the
Alphonsa Convent School, Miraj and equally a certified copy of the
Certificate issued by the Corporation is exhibited and these documents are
at Exhibits 121 and 122 and the entry in the General Register maintained
by the School also shows the date of birth of the Petitioner as against his
name Choudhari Arif Ibrahim as 16.01.1989.
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34 Exhibit-124 is an application form which has been made to
the Alphonsa School on 06.06.2002 for admission of the Petitioner in
VIIIth standard and Exhibit-125 is a true copy of the Leaving Certificate
issued by that very school which also bears the date of birth as
16.01.1989. In none of these documents, one finds any discrepancy or
error in the date of birth either in figures or words.
35 Exhibit-126 is an extract from the Admission Register of the
very school and equally therein the same details with regard to the date of
birth have been mentioned. When the Petitioner passed his Xth standard
from New Apostolic English School, Miraj, even that school issued a
Leaving Certificate (Secondary) (Exhibit-130) in which the same date of
birth is mentioned, namely, 16.01.1989.
36 Prior thereto, Exhibit-127 is a Leaving Certificate from
Alphonsa School, Kupwad Road, Miraj and pertinently the Petitioner left
that school on 06.06.2005. He was in standard IX since June, 2004. There
also the date of birth is mentioned as 16.01.1989.
37 Exhibit-132 is the document of the Polytechnic College,
Sangli wherein as well the date of birth is mentioned as 16.01.1989. In
Exhibit-133 which is the proposal for Life Insurance Policy, the father of
Petitioner has entered the date of birth as 16.01.1989 and signed below
the information provided.
38 Exhibit-138 is also a document emanating from the record of
the Life Insurance Corporation (LIC), there on the relevant date, namely,
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17.04.2006 the age of Petitioner was mentioned as 17 years and the date
of birth is 16.01.1989.
39 Much has been made of Exhibit-191 which is an extract of the
Register of Births and Deaths maintained by the SMKC Municipal
Corporation wherein at Sr.No.5064 the registration date is 26.12.1986,
birth date is 12.12.1986 and entry in the sex column is male. Place of
birth is Ashwin Prasad Hospital, Miraj. The name of father of the
Petitioner appears and against the entry name of child the word "Arif" has
been inserted subsequently as is apparent from the endorsement thereon.
In this behalf, reliance is placed by the Municipal Corporation
on Section 14 of the Registration of Births and Deaths Act, 1969. Sections
13 to 15 of the Registration of Births and Deaths Act, 1969 read as
under:-
"13. Delayed registration of births and deaths:-
(1) Any birth or death of which information is given to
the Registrar after the expiry of the period specified
therefor, but within thirty days of its occurrence, shall
be registered on payment of such late fee as may be
prescribed.
(2) Any birth or death of which delayed information is
given to the Registrar after thirty days but within one
year of its occurrence shall be registered only with the
written permission of the prescribed authority and on
payment of the prescribed fee and the production of
an affidavit made before a notary public or any other
officer authorised in this behalf by the State
Government.
(3) Any birth or death which has not been registered
within one year of its occurrence, shall be registered
only on an order made by a Magistrate of the first
class or a Presidency Magistrate after verifying the
correctness of the birth or death and on payment of
the prescribed fee.
*20* wp.10313.11.sxw
(4) The provisions of this section shall be without
prejudice to any action that may be taken against a
person for failure on his part to register any birth or
death within the time specified therefor and any such
birth or death may be registered during the pendency
of any such action.
14. Registration of name of child:- Where the birth of any
child has been registered without a name, the parent
or guardian of such child shall within the prescribed
period give information regarding the name of the
child to the Registrar either orally or in writing and
thereupon the Registrar shall enter such name in the
register and initial and date the entry.
15.
Correction or cancellation of entry in the register of
births and deaths:- If it is proved to the satisfaction of
the Registrar that any entry of a birth or death in any
register kept by him under this Act is erroneous in
form or substance, or has been fraudulently or
improperly made, he may, subject to such rules as may
be made by the State Government with respect to the
conditions on which and the circumstances in which
such entries may be corrected or cancelled, correct the
error or cancel the entry by suitable entry in the
margin, without any alteration of the original entry,
and shall sign the marginal entry and add thereto the
date of the correction or cancellation."
41 A perusal of these provisions would indicate that they enable
registration of births and deaths belatedly. However, giving information is
the duty of the persons specified in Section 8. They have to give this
information according to the best of their knowledge and belief either
orally or in writing within the time prescribed. If they fail to do so, then,
additional period of 30 days is provided by Section 13(1). Further delayed
information can be given, but that should be within one year of
occurrence. But, if it is given within one year of occurrence, such birth or
*21* wp.10313.11.sxw
death shall be registered only with the written permission of the
prescribed authority and on payment of the prescribed fee and the
production of an affidavit made before a notary public or any other officer
authorised in this behalf by the State Government. Any birth or death
which has not been registered within one year of its occurrence, shall be
registered only on an order made by a Magistrate of the First Class or
Presidency Magistrate on payment of the prescribed fee. There is penalty
provided which is without prejudice to power to take any action which
may be taken against a person on failure on his part to register any birth
or death within the time prescribed there for.
In the instant case, what one finds is that the endorsement,
which is relied upon, has been subsequently cancelled. The reason for
cancellation is assigned and that is found in Exhibit-191 itself. The
endorsement as "Arif" has been cancelled by taking recourse to Section 15
of the Registration of Births and Deaths Act, 1969. That power is
conferred by Section 15 and which is not disputed. If, therefore, the entry
has been cancelled, then, no reliance could have been placed thereon by
the Petitioner.
43 What has been then relied upon and very vehemently before
me is the deposition of Dr.Prabha Dattatray Gosavi. She states that she has
been deposing on behalf of the Ashwini Prasad Hospital. She states that
she and her husband late Dr.Gosavi have been managing and
administrating this hospital from 1964. It is stated that they provide
maternity and related services. After her husband, she and her daughter-
in-law are providing the said services. She states that the procedure for
admitting a patient in the hospital is as enumerated in paragraph 3 of her
*22* wp.10313.11.sxw
examination-in-chief. She has produced the delivery book. She has stated,
with reference to the original register, that Smt.Yasmin Ibrahim Choudhari
and Ibrahim Choudhari are the persons in relation to whom the Entry
No.203 has been made. She has stated as to what was the nature of the
delivery and how the entries in the column have been made. She states
that as far as the subject entry is concerned, it is true that a child was
delivered at the hospital and even if her deposition is read and taken as it
is, all that it would demonstrate is that the Petitioner's mother had been
admitted to the said hospital for delivery on more than one occasion and
her number of deliveries are also as stated therein.
However, the learned Judge has rightly held that the
contention is that the Petitioner's father had in all five children, out of five
only two are alive and three died very young. The birth of children and
survival of Arif may have been proved by two doctors who have produced
their registers of birth as recorded by them, but such deposition and
entries will not be of any assistance to the present Petitioner. Even if the
birth of children in the said hospital is proved, by itself this will not
advance the case of the Petitioner any further. Rest of the evidence cannot
be said to be reliable and trustworthy. The learned Judge has assigned
reasons as to why he is disbelieving the documents such as Deaths and
Births Register extracts of child born on 12.12.1986, Birth Certificate of
the Petitioner, voters list, etc.. The learned Judge, in paragraph 55 of the
order under challenge, has held that Exhibits-224 and 225 stated that the
birth date of the Petitioner therein is 12.12.1986, but these documents are
created just prior to the elections. The inquiry report of the Health Officer
of the SMKC Municipal Corporation dated 17.07.2008 Exhibit-206 and
the statement of employee of the Corporation, namely, R.S.Yadav, states
*23* wp.10313.11.sxw
that insertion of birth date of Arif as 12.12.1986 was nothing but
falsification of public records with the help of employee R.S.Yadav. The
said R.S.Yadav was not examined as a witness, but the inquiry report
cannot be ignored. The learned Judge, therefore, rightly held that an
attempt was made even to tamper with public records. The learned Judge
has assigned cogent and satisfactory reasons for rejecting the argument
that the inquiry report has been relied upon without examining the
persons making the statements in the inquiry. Once the inquiry report
prepared by Dr.Hankare is accepted on record by giving full opportunity
to the Petitioner to cross examine Dr.Hankare, then, there is absolutely no
prejudice. This inquiry reveals that the name of Arif was inserted in the
Deaths and Births Register by R.S.Yadav at the instance of the Petitioner's
father who happens to be a Councillor of the said Corporation for two
terms. They have corrected the mistake and deleted that entry and that
has been already referred to by me hereinabove. Therefore, once this
entry is deleted, then, relying on the same the Petitioner could not have
alleged that the date of birth was 12.12.1986.
45 The learned Judge has given cogent reasons for discarding
Exhibits-224 and 225. Once the date of birth is not 12.12.1986 and such
entry made in public records was based on this document, then, that
document itself is unavailable after the entry is deleted in accordance
with law. The learned Judge, thereafter, has rightly faulted the Petitioner
and his father for indulging in falsification of records and I do not feel
that these observations and comments are too harsh or inconsistent with
the material placed before the learned Judge.
46 The learned Judge has relied upon the date of birth from the
*24* wp.10313.11.sxw
School first attended by the Petitioner Exhibit-136-A and the Birth
Certificate given by the Corporation Exhibit-192 and the Matriculation
Certificate Exhibit-125. All these documents stated the date of birth of the
Petitioner as 16.01.1989. How these entries and documents wherein same
are made are reliable and trustworthy has been then explained by the
learned Judge in paragraphs 60 to 64.
47 Once I agree with the appraisal and appreciation of the
evidence on record and which cannot be said to be vitiated in law, then, I
need not refer to each and every document and reproduce each and every
observation with regard thereto as if this is an Appellate Court.
48 The argument of the Petitioner's counsel based on the
judgments of the Honourable Supreme Court then needs to be referred to.
Mr.Kumbhakoni submitted that the Honourable Supreme Court has held
that in actual life it often happens that persons give false age of the boy at
the time of his admission to a school so that later in life he would have an
advantage when seeking public service for which a minimum age for
eligibility is often prescribed. This fact cannot be ignored while assessing
the value of the entry. The argument is that entries in public documents
by themselves are not conclusive and final. The existence of documents
may be held to be proved, but entries therein have still to be proved,
according to Mr.Kumbhakoni. In this case, they are not so proved, is his
complaint.
49 I do not find any substance in this complaint because in
relation to the birth entries and entries in the primary school certificate
have been proved. The learned Judge has explained as to how these
*25* wp.10313.11.sxw
entries can be held to be proved because the Matriculation Certificate was
never denied by the Petitioner. The Matriculation Certificate as produced
may be a copy, but its contents are not disputed. The original is in the
custody of the Petitioner. If what is produced is not genuine document,
then, the Petitioner could have produced the original. This Matriculation
Certificate was produced by the LIC Officer (PW-4) who was examined by
the original Election Petitioner to prove the Insurance Policy depicting the
Petitioner's birth date to be 16.01.1989. This copy of the Matriculation
Certificate was supplied by the Petitioner himself to the LIC at the time of
taking an Insurance Policy. The witness produced alongwith Insurance
Policy the Matriculation Certificate to establish that the date of birth put
in their office was 16.01.1989. Thus, he has produced a document from
the records of public sector corporation and in these circumstances his
statement that a copy of the Matriculation Certificate is produced by the
Petitioner himself while taking Insurance Policy, can be held to be enough
to prove the contents of the Matriculation Certificate. Once the
Matriculation Certificate was issued by the Competent Board certifying
the Petitioner clearing the Matriculation Examination in the given
academic session, then, all the more a hyper technical stand that the
contents of the said certificate are not proved, cannot be accepted.
50 The School Leaving Certificate (Exhibit-125) issued by the
School which the Petitioner first attended, has been proved by
examination of the clerk of the said school. The school admission register
extract (Exhibit-126) was also proved. The witness testified about truth of
the contents of these documents. He has also deposed with regard to the
School Admission form which is signed by the Petitioner's father. All these
documents have been stating the date of birth as 16.01.1989. The
*26* wp.10313.11.sxw
Petitioner's only argument in relation to this was that the witness has no
first hand knowledge as he was not a person who accepted the admission
form and that was rightly rejected.
51 With regard to the third document Exhibit-192 which is the
Birth Certificate given by the Corporation, witness Dr.Hankare was
examined. He is the Birth and Death Registration authority. He has
deposed on oath with regard to the date of birth and has also stated that
the documents produced are extracts of the register maintained with the
office of Registration of Births and Deaths. In the course of performance
of official and public duty, such register is maintained and the witness has
deposed with regard to the entry at Sr.No.206, the name of Arif and place
of birth Dr.Chaugule Hospital is mentioned therein. With regard to the
name of Arif I have already held that as to how this entry was made and
later on deleted. There is no reason to disbelieve the same as this is part
of the official duty and function.
52 Equally, Dr.Chaugule who was examined spoke about the
birth of child on 16.01.1989 in his hospital and this fact correspond to the
entry in the Birth and Death Register. This entry in the Birth and Death
Register coupled with Exhibit-192 and deletion of the earlier entry Arif
against Sr.No.5064, is enough to conclude that the date of birth is
16.01.1989. The original Birth Register was also summoned in the Court
and it showed the date of birth as 16.01.1989. To my mind, therefore, the
learned Judge committed no error in relying on these documents. The
Petitioner may have produced something to the contrary, but
overwhelming documentary evidence on record commencing from
Exhibits-121 to 127, 130, 132, 133, 136 to 138 and 192 with regard to
*27* wp.10313.11.sxw
the date of birth of the Petitioner could not have been discarded. The
documents produced by the Petitioner have been discarded and by
assigning cogent and satisfactory reasons as observed above. Therefore,
all judgments relied upon before the Trial Court cannot be of any
assistance and equally what has been contended before me based on the
same by Mr.Kumbhakoni will not advance the case of the Petitioner any
further.
53 To my mind, it is not necessary to refer to the judgments as
the Honourable Supreme Court has repeatedly held that the Births and
Deaths Registers maintained by the statutory authority raise a
presumption of correctness. Such entries are admissible in evidence in
terms of Section 35 of the Indian Evidence Act, 1872. Mr.Kumbhakoni has
laid emphasis on the aspect that these entries may be relevant, but this
will have to be proved and his reliance on the judgment of the
Honourable Supreme Court particularly in the case of Birad Mal Singhvi
v/s Anand Purohit reported in AIR 1988 SC 1796 is of no assistance. The
Honourable Supreme Court says in clearest terms that these registers are
maintained by the statutory authorities and entries therein raise a
presumption of correctness. The entries are admissible in evidence. In the
present case, once they were read in evidence that itself means that
before they are so read and relied upon, due opportunity was given to the
parties to controvert the same. In other words, when such entries are
relied upon by summoning public officials and when they depose about
the same, their version is not accepted straightaway, but opportunity is
given to the Opponent to cross examine the said officials. Once this
procedure is adopted and complied with, then, entries which raise
presumption of correctness and are made in the statutory registers
*28* wp.10313.11.sxw
become admissible in evidence. Mr.Kumbhakoni does not dispute that this
procedure has been complied with completely in this case. If that is so,
then, the learned Judge committed no error in taking them into
consideration and rendering the ultimate finding.
54 As a result of the above discussion and once I find that the
contentions raised before me are really in the realm of reappreciation and
reappraisal of the evidence, then, this Writ Petition cannot be entertained.
It must, accordingly, fail. Rule is, therefore, discharged, but without any
order as to costs.
However, having regard to what has been observed by me in
the foregoing paragraphs, the remarks and observations made against
Mr.M.B.Kulkarni, Advocate who appeared for the present Petitioner before
the Trial Court are expunged from the judgment of the Trial Court. The
request made by Mr.Patil that this Court should direct the prosecution for
falsifying public records and presenting false evidence, need not be
considered in further details. It is urged that the learned Judge has found
as a matter of fact that the Petitioner and his father tampered with public
records and relied on the same during the course of evidence. This is
nothing but giving false evidence which is an offence. To my mind, in the
peculiar facts and circumstances, it is not necessary to direct filing of any
criminal prosecution by the Court. It would be open for the original
Election Petitioner/ Respondent No.1 to this Writ Petition to make such
complaints and launch such prosecution as is permissible in law. Equally,
such other proceedings as are permissible in law can also be instituted. All
contentions in relation thereto are kept open.
*29* wp.10313.11.sxw
56 At this stage, Mr.Kulkarni, learned counsel appearing on
behalf of the Petitioner, prays for continuation of the ad-interim order
passed by this Court. This request is opposed by Mr.Patil, learned counsel
appearing on behalf of the Respondent No.1/ original Election Petitioner.
Mr.Patil submits that the term of the Petitioner in office will be over soon.
Once the concurrent findings of facts are recorded that the Petitioner is
disqualified because at the relevant time he had not attained the age of 21
years, the request as made by Mr.Kulkarni cannot be granted. Hence,
refused.
ig (S.C. Dharmadhikari, J)
