Bombay High Court
Sou. Anita Ramdas Magar vs Sou. Bhagyalaxmi Prakash Mahanta ... on 24 May, 2021
Bench: C.V. Bhadang
1/13 1-wp-7445-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7445 OF 2019
Sou. Anita Ramdas Magar
Age 34 years, Occ. Housework,
R/o. Plot No.140, Sangmeshwar
Nagar, Akkalkot Road, Solapur. ...Petitioner
Vs.
1. Sou. Bhagyalaxmi Prakash Mahanta
Age 32, Occ. Housework,
R/o. 349, Jodbhavi Peth, Solapur.
2. Sou. Sunita Gangadhar Bansode
Age 37 years, Occ. Housework,
Kekade Nagar, Vidi Gharkul,
Mulegaon Road, Solapur.
3. Sou. Saraswati Basawraj Patil
Age 40 years, Occ. Housework,
R/o. Rajiv Nagar, Akkalkot Road,
Solapur.
4. Solapur Municipal Corporation
Solapur.
5. Election Returning Officer No.4,
Solapur Municipal Corporation,
Solapur.
6. State Election Commissioner (Deleted)
Maharashtra State. ...Respondents
----
Mr. Vishwasrao Deokar, Advocate for the Petitioner.
Mr. Ajit V. Alange, Advocate for Respondent No.1.
Mr. Vishwanath Patil a/w. Kewal Ahya, Advocate for Respondent
Nos.4 and 5.
----
Mamta Kale
::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:12:50 :::
2/13 1-wp-7445-19.odt
CORAM : C.V. BHADANG, J.
DATE : 24th MAY, 2021
(Through Video Conferencing)
JUDGMENT:
. Rule. Rule made returnable forthwith. The learned
counsel for the Respondents waive service. Heard finally by
consent of the parties.
2. The challenge in this petition is to the Judgment
and Order dated 4 August 2018 passed by the learned Civil
Judge, Senior Division at Solapur in Election Petition
No.63/2017. By the impugned judgment, the election petition
filed by the first respondent has been allowed and election of
the petitioner, as a Councilor of the Solapur Municipal
Corporation, has been set aside.
3. The brief facts are that the general election of the
Solapur Municipal Corporation were held in the year 2017. The
petitioner and the respondent Nos.1 to 3 were the contesting
candidates from Ward No.11(C). It appears that there was no
objection to the nomination of any of these candidates. The
result of the election was declared on 23 February 2017 in
which the petitioner was declared elected having secured the
highest number of votes i.e. 4955 votes. The first respondent
had secured second highest votes i.e. 3422 votes.
Mamta Kale
3/13 1-wp-7445-19.odt
4. The first respondent filed election petition challenging the
election of the petitioner interalia on the ground that the
petitioner had three children namely Ganesh Ramdas Magar
(Date of Birth - 10 May 2001) Sonali Ramdas Magar (Date of
Birth - 20 April 2003) and Poonam Ramdas Magar (Date of
Birth - 29 August 2004). It was contended that Sonali and
Poonam having born after 1 September 2001, the petitioner was
disqualified from contesting the election under Section 10(1)(i)
of the Maharashtra Municipal Corporations Act, 1949 ('the Act'
for short). It was contended that the petitioner had furnished
information which was false to her knowledge to the Returning
Officer at the time of filing nomination. The petitioner has also
challenged the election on the basis of the alleged bogus voting
in the name of a dead person, through Electronic Voting
Machine (EVM). The said ground has not been accepted by the
Trial Court. Thus, presently, we are only concerned with the
ground of the petitioner having more than two children who are
born after 1 September 2001. The first respondent has also
sought declaration of she being elected from the said ward.
5. The petitioner resisted the election petition. It was
denied that the petitioner has three children as alleged. It was
contended that Poonam who was born on 29 August 2004 was
the daughter of Dattatray Magar and Sunita Magar and not the
petitioner. It was contended that a similar objection was raised
in the year 2012 by one Hanif Patel challenging the election of
Ramdar Magar who is husband of the petitioner, who was then
elected as a Councilor from ward No.19(B). It was pointed out
Mamta Kale
4/13 1-wp-7445-19.odt
that the Returning Officer by an order dated 1 February 2012
had refused to uphold the objection to the nomination of
Ramdas Magar which finding had attained finality. It was thus
contended that similar ground cannot be raised based on
Section 10(1)(i) of the said Act.
6. It was contended that it was purely out of
inadvertence that in the intimation issued from the hospital on
the birth of Poonam, the name of her parents was shown as
Anita Magar and Ramdas Magar where in fact Poonam was
daughter born to Dattatray Magar and Sunita Magar. It is
submitted that the necessary correction was carried out in the
Birth Certificate No.0047/791 on 7 January 2012, as per order
passed by the Registrar, under the Registration of Birth and
Deaths Act, 1969 (Act of 1969).
7. On the basis of the rival pleadings, the Trial Court
framed in all five issues.
8. The first respondent (the petitioner before the
Trial Court) examined herself as P.W.1 alongwith Dr.
Shashikant Savale (P.W.2), Nagraj Hiremath (P.W.3) and
Mahadev Sherkhane (P.W.4).
9. The petitioner (the respondent No.1 before the
Trial Court) examined herself as D.W.1 alongwith Dattatray
Magar (D.W.2), Durgadevi Siddam (D.W.3) and Sanjay
Mamta Kale
5/13 1-wp-7445-19.odt
Deshmukh (D.W.4). Both the parties produced certain
documents.
10. The learned Trial Court answered the issue Nos.1 &
3 in the affirmative and the issue Nos.2 and 4 in the negative.
The learned Trial Court by the impugned judgment and order
has set aside the election of the petitioner. However, the relief
of declaration of the first respondent being elected was refused.
11. I have heard Mr. Vishwasrao Deokar, learned
counsel for the Petitioner and Mr. Ajit Alange, learned counsel
for the first respondent. I have also heard Mr. Vishwanath Patil,
learned counsel for the respondent Nos.4 and 5. Perused
record.
12. The petitioner has also sent written notes of
arguments which are taken on record. I have gone through the
same.
13. It is submitted by Mr. Deokar, the learned counsel
for the petitioner that a similar objection having been negatived
by the Returning Officer in the year 2012 in respect of the
election of the husband of the petitioner, it was not open for the
first respondent to raise it again nor it could have been upheld
by the Trial Court. It is submitted that in para 38, the Trial
Court has noted that it has no jurisdiction in the matter. It is
submitted that para 29 of the judgment would show that the
Court has not considered the documents which are referred in
Mamta Kale
6/13 1-wp-7445-19.odt
para 12 of the judgment which according to the learned counsel
was not permissible. It is submitted that there is a valid
correction carried out by the Registrar under the Act of 1969 in
respect of the birth certificate of Poonam on the basis of which a
similar objection was rejected in the year 2012. It is pointed
out that the said correction was made in the year 2009-2010 i.e.
much prior to the present election of the year 2017 and
therefore, it cannot be accepted that the said correction was
made intentionally to suit the purpose of the petitioner. It is
pointed out that there was no objection raised at the time of the
scrutiny of the nominations. It is pointed out that even
otherwise the next elections are scheduled after about six
months and no case for interference is made out. It is
alternatively submitted that the petition may be remitted back,
as the Trial Court has not considered the documents referred to
in para 12 of the judgment.
14. The learned counsel for the first respondent has
supported the impugned order. It is pointed out that in the
intimation issued by the concerned hospital, the names of the
parents of Poonam were shown as Anita Magar and Ramdas
Magar and not Dattatray Magar and Sunita Magar. It is
submitted that the certificate was corrected only in the year
2012. The learned counsel has taken exception, to the manner
in which the correction was ordered and carried out. It is
submitted that there is clear evidence that it was the petitioner
who was admitted for delivery, in the concerned hospital, in
August 2004 and there is no evidence to show that Sunita
Mamta Kale
7/13 1-wp-7445-19.odt
Magar was at any time admitted. The learned counsel
submitted that the Registrar has not followed Section 15 of the
Act of 1969 and the correction so carried out was merely on the
basis of affidavits filed by the parties. It is submitted that the
objection taken in the year 2012 was by one Hanif Patel and the
Returning Officer has refused to uphold the objection only on
the basis of correction carried out in the birth certificate, which
itself is illegal.
15. It is submitted that in any event, the first
respondent cannot be estopped from raising said ground which
has been established on record. It is submitted that the Trial
Court is not bound by the decision of the Returning Officer in
the year 2012, pertaining to the nomination of the husband of
the petitioner.
16. I have carefully considered the rival circumstances
and the submissions made.
17. It is also not in dispute that the petitioner has a son
Ganesh born on 10 May 2001 and a daughter Sonali born on 20
April 2003. There is also no dispute that Poonam was born on
29 August 2004. The only question is whether Poonam is
daughter of the petitioner and Ramdas Magar or she is daughter
born to Sunita Magar and her husband Dattatray Magar.
Incidentally, Dattatray happens to be the brother of Ramdas.
Mamta Kale
8/13 1-wp-7445-19.odt
18. It is also a matter of record that in the year 2012
when the husband of the petitioner had contested the election
from Ward No.19(B), an objection was raised to the nomination
by Hanif Patel on a similar ground that Ramdas had a third
child namely daughter Poonam who was born on 29 August
2004 i.e. after the cut off date 1 September 2001. It is further a
matter of record that the Returning Officer by an order dated 1
February 2012 had refused to uphold the objection. A perusal
of the said order would show that it is based on the letter dated
19 January 2010 from the incharge Medical Officer of
Chatrapati Shivaji Maharaj Hospital, Solapur and the order
dated 7 January 2012 passed by the Registrar under Section 12
and 17 of the Act of 1969 and Maharashtra Registration of Birth
and Death Rules, 2000. Thus, it appears that initially in the
intimation issued by the said hospital in the year 2004 upon
birth of Poonam, the name of her parents was shown as Anita
i.e. the petitioner and her husband Ramdas and not as Sunita
and Dattatray Magar. The said correction was carried out on
the basis of the affidavits filed by the parties somewhere in the
year 2010/2012 i.e. shortly before the election of the year 2012
which was contested by the husband of the petitioner. Section
15 of the Act of 1969 provides for correction of the 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 is
erroneous in form or substance, or has been fraudulently or
improperly made. The correction can be carried out subject to
the rules that may be made by the State Government. It
appears that the correction in the present case was made only
Mamta Kale
9/13 1-wp-7445-19.odt
on the basis of the affidavits filed by the parties. That apart, the
said order of the Returning Officer is in respect of a different
election of the year 2012 in which the husband of the petitioner
was a contestant. The learned counsel for the first respondent
is right that the petitioner was neither a contestant nor a party
to the said order of the Returning Officer and thus she cannot
be estopped from raising the said contention which in my
considered view is otherwise established on record.
19. It has come on record that Poonam was a student
of the Corporation Marathi School for Girls till 7 th standard and
thereafter was studying in SVS High School and in both these
schools the name of the parents of Poonam was shown as Anita
and Ramdas Magar. The two children of petitioner namely
Ganesh and Sonali were also taking education in the SVS High
School. It is necessary to note that the petitioner or her
husband did not make any attempt to get the record corrected
till the year 2010/ 2011. It has come in the evidence of the
petitioner that the necessary formalities for admission of the
children including Poonam were completed by her husband.
She has stated that her husband Ramdas is educated upto 10 th
standard. It has further come in her evidence that the family of
Dattatray has a separate ration card and the ration card of
Dattatray and Sunita was having the names of Nagnath and
Navnath who are the sons of Dattatray and Sunita. She also
stated that her husband had undergone medical examination to
show the paternity of Poonam and she is ready to produce the
said report. However, the said report was never produced, on
Mamta Kale
10/13 1-wp-7445-19.odt
account of which, the Trial Court has drawn adverse
interference against the petitioner.
20. A perusal of the evidence of Dattatray (D.W.2)
would show that he has admitted application (Exh.66) which
was made for admission of Poonam in SVS High Scool.
Dattatray admitted that application (Exh.66) bears his
signature. However, significantly even in the application
(Exh.66) the name of Poonam was mentioned as Poonam
Ramdas Magar. He further admitted that till the year 2016 i.e.
till Poonam attained 12 years of age, the name of her parents in
the record was mentioned as Anita Magar and Ramdas Magar.
He stated that he has not undergone any medical examination
to show that he is not the biological father of Poonam. He has
stated that the correction in the school record of SVS High
School was made in the year 2018. He also admitted that till
the year 2012 in his ration card the names of the children were
only shown as Nagnath and Navnath and it was only after 2012
when the name of Poonam was included in the ration card.
21. The witness Durgadevi Siddham (D.W.3) was
working as a Shikshan Sevika in the Corporation School and has
stated about an application (Exh.85) which was made for
correction of the school record in respect of Poonam. She has
also stated that guardian of Poonam was shown as Anita i.e. the
mother of Poonam.
Mamta Kale
11/13 1-wp-7445-19.odt
22. Sanjay Deshmukh (D.W.4) was working as a Clerk
with the Chatrapati Shivaji Maharaj Hospital. It has come in
the evidence of Sanjay Deshmukh that the intimation (Exh.55)
which was sent by the hospital was on the basis of the
information given by Sunita Magar and Exh.55 bears the
signature of Sunita Magar. It can thus be seen that even the
said intimation was issued on the basis of the information given
by Sunita Magar, in which the names of parents were shown as
Anita and Ramdas Magar.
23. Dr. Shashikant Savale (P.W.2) has produced the
copy of extract of registered entry No.519 (Exh.52) which
shows that Anita Ramdas Magar had given birth to a girl child
at 9.20 p.m. and accordingly a birth intimation No.040403 was
issued. In the said intimation, the names of the parents were
shown as Ramdas and Anita Magar. There is no evidence that
Sunita Magar was at any time admitted in the said hospital in
August 2004 for delivery.
24. Considering the over all circumstances, the Trial
Court is right in refusing to accept the contention that Poonam
was the daughter of Sunita and Dattatray Magar. There is
sufficient evidence on record to show that she was the daughter
born to the petitioner and her husband.
25. Although, in para 29 of the impugned judgment,
the Trial Court has observed that the documents described in
para 12 are not discussed in view of the availability of the oral
Mamta Kale
12/13 1-wp-7445-19.odt
evidence on record, in fact, the Trial Court has considered the
effect of the said documents and the subsequent correction.
What the Trial Court has essentially observed is that as the
controversy was limited, it was not necessary to discuss all the
documents in details.
26. Even so far as observations in para 38 is concerned,
they are pertaining to relief of declaration sought by the first
respondent that she stands elected. Thus, there is nothing in
para 38 by which the Trial Court has observed that it has no
jurisdiction to entertain the petition. What is essentially
observed in para 37 is in the context of decision of this Court in
the case of Geeta Kisan Gore Vs. State of Maharashtra & Ors. 1
which was the decision rendered in the context of Section 9 and
33 of the Mumbai Municipal Corporation Act which has rightly
been held to be not applicable in this case.
27. In the result, the Petition is dismissed. Rule is
discharged with no order as to costs.
28. At this stage, Mr. Deokar, the learned counsel for
the petitioner sought extension of the interim relief by four
weeks which is opposed by the learned counsel for the first
respondent as well as the learned counsel for the respondent
Nos.4 and 5. Considering the fact that interim relief was
operating from 2 November 2018, the same shall continue for a
12003(4) Mh.L.J. 287
Mamta Kale
13/13 1-wp-7445-19.odt
period of four weeks from today. No further extension shall be
granted.
C.V. BHADANG, J.
Mamta Kale
