Bombay High Court
Jahangir Khan Ashraf Khan Kasai vs The State Of Maharashtra And ... on 4 August, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8986 OF 2015
Jahangir Khan s/o Ashraf Khan Kasai (Qureshi) PETITIONER
Age - 52 years, Occ - Business,
R/o Sakali, Taluka - Yawal,
District - Jalgaon
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Secretary,
Revenue Department,
Mantralaya, Mumbai
2. District Collector, Jalgaon
3. Additional Collector, Jalgaon
4. Sayyad Tayab Sayyad Taher
Age - 44 years, Occ - Agriculture
R/o Sakali, Taluka - Yawal,
District - Jalgaon
.......
Mr. Satyajeet S. Dixit, Advocate for the petitioner
Mr. A. P. Basarkar, AGP for respondent-State
Mr. A. N. Kakade, Advocate for respondent No.4.
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 4th AUGUST, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties finally with consent.
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2. The petitioner is aggrieved by concurring order passed by
appellate authority - Commissioner dated 17 th August, 2015
whereunder Gram Panchayat Appeal No. 29 of 2014 filed by the
petitioner challenging order passed by the Collector, Jalgaon
dated 26th September, 2014 disqualifying him in Gram Panchayat
Dispute No. 36 of 2014, stands dismissed.
3. The petitioner is an elected member of gram panchayat,
Sakali, for the period 2013-2018. A complaint came to be lodged
by respondent No. 4 claiming disqualification of the petitioner on
the ground of having more than two children under section 14
(1) (j-1) of the Maharashtra Village Panchayats Act, 1958, the
last one having born after the cut off date i.e. 29 th September,
2001. The complaint had been lodged based upon birth
certificate dated 26th December, 2012 issued under the signature
of Block Development Officer, which bears name of the child as
Mohammad Faizan Khan and father's name is Jahangir Khan
Ashraf Khan.
4. The matter was contested. The petitioner had been earlier
on disqualified under orders of the Collector. In appeal
therefrom, the matter stood remanded to the Collector. In this
subsequent round, the Collector ruled against the petitioner and
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as such, an appeal was filed, in which order referred to above,
disqualifying the petitioner as member of Gram Panchayat had
been passed.
5. The appellate authority, Commissioner appears to have
considered that certificate issued in the year 2004 showing the
child - Mohd. Faizan Khan having born on 22 nd November, 2003
was shown to have begotten to one Daulat Khan, however, the
Commissioner refused the same to be taken into account, the
same having not been pressed into service in the earlier round of
litigation. Whereas in the next breath, the commissioner has
refused to consider entry in regard to the child's name showing
his father's name as Daulat Khan Ashraf Khan, in ration card
considering that creation of the same has been brought about
during litigation and as such, not be reliable.
6. During the course of hearing it appears that there are
about four certificates issued in respect of said child, under
signature of Block Development Officer on different dates viz.,
26th December, 2012, 10th September, 2012, 18th March, 2013,
27th January, 2014 showing different names of fathers, in one as
Daulat Khan, in two as Ashraf Khan and in one relied upon on
behalf of the complainant as Jahangir Khan. The Commissioner
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although has recorded discrepancies appearing in the certificates
issued from time to time, has further considered that the claims
made by the petitioner in respect of birth of the child and his
father, appears to be ambiguous and vague.
7. It further transpires during the course of hearing that
authenticity of the certificates is also put in suspicion for which it
has been stated that an inquiry had been conducted in respect of
the person who had been in charge of maintaining of record of
births and deaths. It further transpires that there is some school
record which is contended to be dithering. Additionally, learned
advocate for the petitioner contends that the Block Development
Officer would not be a proper authority to issue certificates
under the provisions of the Registration of Births and Deaths Act,
1969.
8. In the face of such situation, it appears that the authorities
will have to probe the matter little further and deeper in order to
arrive at correct factual position, for, there are no reasons
coming forth in the impugned orders as to why one certificate
gets precedence over the other and about legality of certificates.
Over and above this, the collector's order deals with the aspects
of births and deaths record cursorily without referring to factual
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position.
9. In view of aforesaid, the situation emerges that it would be
appropriate that proper fact finding in respect of child's birth as
well as his parentage takes place. For said purpose, the matter
stands relegated once again to the collector for appropriate
enquiry, giving opportunity to the parties and to take each piece
of evidence as may be adduced / pressed into service and decide
on the matter as early as possible, preferably within a period of
three months from the date of receipt of writ of this order.
10. This, however, would not detain the authorities from taking
into account, if they require further and / or additional evidence
and / or if so desired to be submitted by the parties.
11. In the result, writ petition succeeds. Impugned orders
dated 26th September, 2014 passed by Collector, Jalgaon and
dated 17th August, 2015 passed by Commissioner, Nashik stand
set aside. Matter stands relegated to Collector for decision
afresh. Rule is made absolute in aforesaid terms.
[SUNIL P. DESHMUKH, J.]
drp/wp8986-15
