Hanumant Sahebrao Patil vs The Additional Commissioner ...
2016 Latest Caselaw 7043 Bom

                                                          WP No. 11926/2016
                                           1




                                                                           
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                           WRIT PETITION NO. 11926 OF 2016

              Hanumant Sahebrao Patil,
              Age 37 years, Occu. Agri.,
              R/o. Sakat, Tq. Jamkhed,




                                                  
              Dist. Ahmednagar.                    ....Petitioner.

                      Versus




                                         
     1.       The Additional Commissioner,
              Nashik, Division Nashik.

     2.
                             
              The Additional Collector,
              Ahmednagar.
                            
     3.       Gramsevak, Gram Panchayat,
              Sakat, Tq. Jamkhed,
              Dist. Ahmednagar.

     4.       Alka Pandharinath Kolhe,
      

              R/o. Kolhewadi, Post Sakat,
              Tq. Jamkhed, Dist. Ahmednagar.      ....Respondents.
   



                                         ...
                     Advocate for Petitioner : More Abhijit S.
                  AGP for Respondent Nos. 1 and 2 : S.K. Tambe
                     Advocate for Respondent 4 : V.S. Undre





                                         ...

                                        CORAM : T.V. NALAWADE, J.
                                        DATED : 7th November, 2016.
     JUDGMENT :

1) Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

2) The proceeding is filed to challenge the decision

given by the learned Additional Commissioner, Nashik in Gram

Panchayat Appeal No. 80/2016. The appeal was filed by present

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respondent - Smt. Alka Pandharinath Kolhe to challenge the

decision given by the learned Collector in Dispute Application

No. 6/2016. The Collector had disqualified the respondent

member of Village Panchayat as third child was born to her after

her election to Village Panchayat.

3) Before the Collector, the complainant placed reliance

on the record like declaration made by respondent member

when the nomination form was filed for election to Village

Panchayat. This declaration dated 17.7.2015 shows that she had

declared that she had two issues. However, she had disclosed

the name of only one issue as Pallavi Pandharinath Kolhe and

she had not filled the place which was meant for giving name of

second issue. Thus, on 17.7.2015, admittedly she was having

two issues. Before Additional Collector three birth certificates

were produced by the petitioner's side. The first birth certificate

shows that one female child was born to Alka Pandharinath Kolhe

and Pandharinath Waman Kolhe. This record is not disputed by

respondent member. The second birth certificate issued by

Nagar Panchayat Karyalaya Shirur, District Beed shows that one

daughter by name Sonali was born to couple Sou. Swati Pandhari

Kolhe and Pandhari Waman Kolhe, resident of Kolhewadi. This

certificate is disputed by the respondent member. Even if this

WP No. 11926/2016

certificate is ignored from consideration, that will not make any

difference as in declaration dated 17.7.2015 respondent

member had declared that on that day she was having two

issues. The third birth certificate shows that one male child was

born on 7.10.2015 to Alka Pandharinath Kolhe and Pandharinath

Waman Kolhe. This entry was made on the basis of information

given by the hospital of Dr. Chandrakant More from Jamkhed.

This certificate is also disputed by the present respondent

member.

4) The Collector had believed the aforesaid record and

had made the order against the respondent member. The

Commissioner has placed reliance on some observations made

by the Division Bench of this Court in the case reported as 2005

(1) ALL MR 749 [Gangadhar s/o. Gonduram Tadme Vs.

Trimbak s/o. Govindrao Akingire & Ors.]. This Court has

carefully gone through the facts of this reported case. Some

observations are made by this Court in relation to provisions of

Births, Deaths and Marriages Registration Act 1886 and

particularly, with regard to the procedure given in section 22 of

the Act. In that case, it was held that it was necessary to sign

the information, application by the informer giving information to

the authority and the signature was to be put in the presence of

WP No. 11926/2016

the authority itself. There was no such record and so, the Court

held that such record was not made under the provisions of the

Act and such record cannot have presumptive value. The learned

counsel for the petitioner drew the attention of this Court to the

provisions of new Act like Registration of Births and Deaths Act,

1969 which has taken the place of aforesaid old Act and present

provisions are of different nature. He took this Court to provision

of section 8 of the new Act showing that when there is birth in

hospital, it is the duty of the hospital to give intimation to the

registering authority of the birth. The learned counsel submitted

that in accordance with this provision, the intimation was given

by the hospital and entry was made in the birth register. He

submitted that as the certificate produced before the Collector

was certified copy of the original register and it was certified

copy of public record, it has presumptive value and inference

was available to the Collector under section 114 of the Evidence

Act. He placed reliance on the observations made in some cases

reported as 2010 ALL SCR 421 [CIDCO Vs. Vasudha

Gorakhnath Mandevlekar] and 2008 (5) Mh.L.J. 147 of

Division Bench of this Court [Vasudha Gorakhnath

Mandevlekar Vs. City and Industrial Development

Corporation of Maharashtra Ltd.]. In the first case, the Apex

Court has discussed the evidentiary value of certified copy of

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public record and the provision of section 35 of the Evidence Act

were referred. It is laid down that such record has presumptive

value and it raises presumption of correctness and they are

admissible in evidence under section 35 of the Evidence Act. In

other case, the Division Bench of this Court has also held that

when there is discrepancy in other record and date of birth

record prepared by the registering authority under the

Registration of Births and Deaths Act, 1969, the record prepared

by registering authority shall prevail. There cannot be dispute

over this proposition.

5) In view of the aforesaid position of law, it was

necessary for respondent member to lead evidence in rebuttal to

rebut the presumptions available in view of the aforesaid

circumstances and particularly the birth certificate dated

7.10.2015. This circumstance was sufficient to presume that on

7.10.2015 one male child was born to respondent member. This

circumstance was not rebutted at all. It was only contended that

no such child was born. Only denial cannot rebut the

presumption, when there is certified copy of public record.

6) The aforesaid circumstances are not at all considered

by the learned Additional Commissioner and only due to some

observations made by the Division Bench of this Court in the

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case of Gangadhar cited supra, Additional Commissioner has

set aside the order of learned Additional Collector and the

matter is remanded back.

7) The learned counsel for respondent member

submitted that on 13.12.2016 there will be election to the post

of Sarpanch and the decision of this Court or any order made by

this Court may prevent the respondent member from voting in

election to the post of Sarpanch. He submitted that if the matter

is remanded, both sides will have opportunity to produce the

material and the learned Additional Collector can again decide

the matter afresh. He submitted that it is not desirable to

interfere in the order of remand made by the learned Additional

Commissioner. He placed reliance on the cases reported as

2015 (5) ALL MR 500 [Ankitabai Sahebrao Nikalje Vs.

Additional Collector, Ambajogai], 2009 (2) ALL MR 880

[Kumudini Balasaheb Salkar Vs. Additional Commissioner,

Amravati & Ors.] and 2011 (6) Bom.C.R. 427 [Gajanan

Hariba Susar Vs. Additional Commissioner & Ors.]. The

facts of each and every case are always different. In the present

matter, there is the record of certified copies of birth and death

register. This record has presumptive value. The circumstance

that present petitioner avoided to mention the name of second

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child in the declaration itself shows that there was different

intentions. She had two daughters on the date of filing

declaration and now son is born. It is unfortunate that these

days politicians are ready to do anything. The Courts are

expected to be very strict. When it is the policy of the State that

the person, who wants to enter in the politics, should not cross

the limits of having particular number of children, they should

abide by that rule. They cannot have both the things at the

same time. This Court holds that the learned Additional

Commissioner has committed error in setting aside the order of

learned Additional Collector, who was the proper authority and

who had sufficient opportunity also to make the assessment of

the things. The subjective satisfaction of Collector is involved in

such matter.

8) In the result, the petition is allowed. The order made

by the learned Additional Commissioner is hereby set aside. The

order made by the learned Additional Collector is restored.

Authenticated copy is allowed to both the sides.

[ T.V. NALAWADE, J. ] ssc/