Bombay High Court
Lahu Sadashiv Katbane vs Qureshi Latif Hamid Qureshi Hamid ... on 2 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2937 OF 2015
WITH
CA/900/2016 IN WP/2937/2015
Qureshi Latif Hamid s/o
Qureshi Hamid Hasan,
Age 45 years, Occ. Business
& Agri., R/o Bidkin,
Taluka Paithan,
District Aurangabad ... Petitioner
Versus
1. The Additional Divisional Commissioner,
Aurangabad Division, Aurangabad.
2. The Additional Collector,
Aurangabad.
3. Babasaheb s/o Bhausaheb Teke,
Age Major, Occ. Agri.,
R/o Bidkin, Taluka Paithan,
District Aurangabad.
4. The Grampanchayat, Bidkin,
Taluka Paithan,
District Aurangabad.
5. The State Election Commission,
Madam Kama Road, Fort,
Mumbai. ... Respondents
...
Advocate for Petitioner : Mr S S Thombre
AGP for Respondent Nos. 1 and 2 : Mr S. N. Kendre
Advocate for Respondent No. 3 : Mr. S. B. Solunke
Advocate fore Respondent No. 4 : Mr. S. R. Dheple
Advocate for Respondent No. 5 : Mr. S. T. Shelke
Advocate for applicant in CA 900/2016 : Mr. S. S. Shete
::: Uploaded on - 04/03/2016 ::: Downloaded on - 31/07/2016 07:33:20 :::
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CORAM : V.K. JADHAV, J.
...
DATE OF RESERVING THE JUDGMENT : 26.02.2016
DATE OF PRONOUNCING THE JUDGMENT: 02.03.2016.
...
JUDGMENT :-
1. Rule. Rule returnable forthwith. Heard finally with
consent of the parties, at admission stage.
2. Brief facts giving rise to the present petition are as
follows :-
a) General elections of the Grampanchayat, Bidkin
were held in the year 2012. Petitioner has contested in
the said elections and he came to be elected as a
Member of Grampanchayat, Bidkin. Respondent no.3
filed an application before respondent no.2-Additional
Collector, Aurangabad stating therein that the petitioner
is having a third child after the cut off date i.e.
12.09.2001. In support of his contention, respondent
no.3 has submitted a certificate issued by
Grampanchayat Bidkin. Pursuant to the notice issued,
petitioner appeared in the matter and submitted
documents in support of his claim. According to the
petitioner, the third child of the petitioner is born on
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23.5.2000 as per certificate issued by the Municipal
Council, Manmad. However, respondent no.2-Additional
Collector, by order dated 31.8.2013, allowed the
application filed by respondent no.3 herein, and held
that the petitioner incurred disqualification u/s 14 of
the Maharashtra Village Panchayats Act, 1958 (for short
"the Act of 1958") and thus, he shall be disabled from
continuing to be a Member and his office shall become
vacant.
b. Being aggrieved and dissatisfied with the order
dated 31.8.2013, petitioner preferred an appeal before
respondent no.1-Additional Divisional Commissioner,
Aurangabad. After hearing both the parties, as well as
considering the evidence available on record, learned
Additional Divisional Commissioner, by order dated
17.10.2013, quashed and set aside the order passed by
respondent no.2-Additional Collector dated 31.8.2013
and remanded the matter to respondent no.2 for
consideration afresh, with certain directions especially
on two points i.e. respondent no.2-Additional Collector
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shall verify the original birth record of the year 2001
maintained by Grampanchayat, Bidkin, Taluka Paithan,
District Aurangabad, with regard to the fact that the
Village Development Officer of the said Grampanchayat
has not signed any birth entries of the year 2001 except
the birth entry of the child of petitioner Qureshi Latif
Hamid, and secondly, the entry no. 292 was taken on
18.12.2001 on the information given by one Nahnekhan
Gulabkhan Pathan and in view of the provisions of
section 8 (a) to (f) of The Registration of Births and
Deaths Act, 1969, whether entry can be recorded on the
information being submitted by a third person. The
learned Additional Commissioner further directed that
the respondent no.2-Additional Collector to examine and
verify the original birth register of the year 2001.
c. Accordingly, the Additional Collector, Aurangabad,
has directed the Tahsildar to submit a report. The
Tahsildar has submitted a report stating therein that
the information of date of birth is required to be given by
the head of the Family, close relative or senior most
male or female relative of the family of the concerned
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person. The Tahsildar has also further stated in the
report that on verification of birth and death register,
there are only four signatures of the Gramsevak on four
certificates and at the entry serial no.292, there is
overwriting with sketch pen. The Tahsildar has
specifically submitted in the report that information of
the petitioner's child was given by one Nanhekhan
Pathan, who is not relative or having concern with the
family of petitioner. However, without considering the
above mentioned facts and circumstances of the case,
respondent no.2, by order dated 16.1.2014, again held
that the third child of the petitioner is born after the cut
off date and accordingly, disqualified the petitioner from
continuing to be a Member of the Village Panchayat.
3. Being aggrieved and dissatisfied with the said
order, the petitioner preferred an appeal before
respondent no.1-Additional Commissioner. Learned
Additional Commissioner, Aurangabad by order dated
3.2.2015, dismissed the appeal and accordingly,
confirmed the order passed by Additional Collector
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dated 16.1.2014. Hence, this writ petition.
4. Learned counsel for the petitioner submits that
the learned Additional Collector, Aurangabad in the
impugned order dated 16.1.2014, has accepted that so
far as birth entries recorded in the register of
Grampanchayat Bidkin, Taluka Paithan, there is
signature below four entries only, which includes the
birth entry of the child of petitioner. Learned Additional
Collector has further observed that, on making inquiry,
it was revealed that said entry bears the signature of
one B. T. Salve, the then Village Development Officer.
Said B.T. Salve, in his statement, has explained that the
register does not bear his signature and he has not
signed the birth entry. Learned counsel has pointed out
that the Additional Collector has not accepted said birth
extract showing the date of birth of the petitioner's child
as 17.12.2001. Learned counsel submits that, learned
Additional Collector has further discarded the said entry
for the reason that the person namely Nanhekhan
Pathan, who is not a member of the family of the
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petitioner, informed about the said date of birth of the
child of petitioner and in view of the provisions of
Section 8 of the Registration of Births and Deaths Act,
1969 the entry about birth date cannot be accepted.
Learned counsel further submits that, so far as birth
certificate produced by the petitioner, issued by Shri
Mangal Clinic, Manmad and the entry taken on its basis
in the Nagar Parishad, Manmad, are not considered by
the learned Additional Collector, erroneously. Learned
counsel submits that, Additional Collector has not
accepted said entries as recorded belatedly. Learned
counsel submits that said certificate issued by the
Hospital at Manmad and further, the entry taken in the
record of Nagar Parishad, Manmad on its basis, got a
presumptive value and the same cannot be discarded.
Learned counsel submits that, for the first time, learned
Additional Collector has introduced and accepted the
bonafide certificate issued by the St. John High School,
Paithan Road, Aurangabad, wherein, date of birth of
petitioner's child was mentioned as 18.12.2002. Learned
counsel submits that after remand, this certificate was
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introduced for the first time without giving an
opportunity to the petitioner to tender his explanation
about the same. Learned counsel submits that
Additional Collector has unnecessarily given importance
to the fact that, said child is the sixth child of the
petitioner. Learned counsel submits that, the order
passed by the Additional Collector and confirmed by the
Additional Commissioner is thus, liable to be quashed
and set aside.
5. Learned AGP appearing for respondents no. 1 and
2 submits that the learned Additional Collector has
rightly held that the petitioner incurred disqualification
in terms of the provisions of Section 14 of the Act of
1958 and thus, is disabled from continuing to be a
Member. Learned AGP thus submits that, the third
child of the petitioner, which is in fact a sixth child born
after the cut off date and therefore, the authorities have
rightly decided the dispute against the petitioner.
Learned AGP submits that the impugned order calls for
no interference. There is no substance in the writ
petition and the writ petition is liable to be dismissed.
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6. Learned counsel appearing for respondent no.3
submits that, the learned Additional Collector has
rightly held that the petitioner has incurred
disqualification as provided u/s 14 of the Act of 1958.
Learned counsel submits that there is clear evidence on
record that the last child of petitioner is born after the
cut off date. Learned counsel submits that, the writ
petition is devoid of any merits and thus liable to be
dismissed.
7. I have also heard Mr. Shelke, learned counsel for
respondent No.5.
8. It appears that, the learned Additional
Commissioner, by order dated 17.10.2013, quashed and
set aside the order passed by Additional Collector dated
31.8.2013 and remanded the matter with certain
directions. In view of those directions, the learned
Additional Collector has caused inquiry into the matter
and in terms of the said inquiry and the record
available, discarded the entry taken in the record of
Grampanchayat, Bidkin, Taluka Paithan, District
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Aurangabad. However, it appears from the impugned
judgment and order passed by the Additional Collector
dated 16.1.2014 that, for the first time after remand, a
new evidence in the form of bonafide certificate issued
by the St. John High School, Paithan Road, Aurangabad
in respect of date of birth of the son of petitioner by
name 'Sarafraj' was introduced. It appears as has been
rightly pointed out by the learned counsel for petitioner
that opportunity was not given to the petitioner to
tender his explanation about said bonafide certificate
allegedly issued by the St. John High School, Paithan
Road, Aurangabad. Learned Additional Commissioner
has also not considered the same while confirming the
order passed by learned Additional Collector dated
16.1.2104. It is thus clear that, there is gross violation
of principles of natural justice. The petitioner was not
given opportunity to explain the said certificate and
relying on the same, the authorities held that the
petitioner incurred disqualification in view of the
provisions of Section 14 of the Act of 1958, as the third
child of the petitioner is born after the cut of date.
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9. In view of this, the matter is required to be
remanded to that extent. The petitioner shall be given
an opportunity to explain the said bonafide certificate
allegedly issued by the St. John High School, Paithan
Road, Aurangabad wherein, the date of birth of
petitioner's son by name 'Sarfaraj Latif Qureshi' is
recorded as 18.12.2002. Hence, following order.
ig O R D E R
I. Writ Petition is hereby allowed.
II. The order dated 16.1.2014 passed by the
Additional Collector, Aurangabad and
confirmed by the Additional Commissioner,
Aurangabad Division Aurangabad by order
dated 3.2.2015, is hereby quashed and set
aside.
III. The matter is remanded to the learned
Additional Collector, Aurangabad with the
following directions.
i] The case No.2013/Sapra/GrapA/Sec 14(1)
(J-1) village Bidkin Tq. Paithan/PrKra-49
be restored to its original number.
ii] The Additional Collector shall give an
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opportunity to the petitioner to tender his
explanation to the documents i.e. bonafide
certificate issued by the Head Master, St.
John High School, Paithan Road,
Aurangabad wherein, the place and date of
birth of the petitioner's child by name
Sarfaraj Latif Qureshi is mentioned as
Bidkin, date 18.12.2002, (Born at Bidkin)
and after extending an opportunity of
being heard to the petitioner and the
concerned persons, shall decide the
dispute afresh within one month from the
date of appearance of the parties before
the Additional Collector, Aurangabad.
IV. The parties shall appear before the Additional
Collector on 14.3.2016 and no separate notices
are required to be issued to the parties.
V. Rule is made absolute in the above terms. Writ
Petition is disposed of. In the circumstances
there shall be no order as to costs.
VI. In view of disposal of writ petition, nothing
survives in Civil Application No. 900 of 2016
and the same is also disposed of.
( V.K. JADHAV, J. )
aaa/- ...
