1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 8315/2009 Ramesh Chand Meena Vs Kumari Anuradha & ors 16.12.2010 HON'BLE MR JUSTICE MN BHANDARI Mr Sanjay Sharma - for petitioner Mr RK Mathur – for respondent No.1 Mr Achintya Kaushik for Mr RB Mathur – for resp No 2 to 4 BY THE COURT: The matter pertains to grant of licence for running of liquor shop. Respondent No.1- Kumari Anuradha was awarded licence for running liquor shop, by placing her at No.1 and so far as petitioner is concerned, he stood at No.2 therein. On grant of licence to respondent No.1, an objection was raised regarding her eligibility. It was stated that she did not attain age of 18 years thus licence should be cancelled. The District Excise Officer, Alwar accordingly cancelled the licence issued in favour of respondent No.1 and granted it to petitioner. The order was then challenged by the respondent No.1 by way of filing an appeal. The appeal was accepted by the Excise Commissioner, Rajasthan, Udaipur vide 2 order dated 25.5.2009. Revision filed by the petitioner-Ramesh Chand Meena was dismissed by the Rajasthan Tax Board, Ajmer vide order dated 7.7.2009 upholding the order passed by the appellate authority i.e. Excise Commissioner. Grievance of the petitioner is that date of birth of respondent No.1, as recorded in the certificate issued by the Board of Secondary Education, Rajasthan, Ajmer, is 31.5.1991, but ignoring the aforesaid, her date of birth has been taken as 31.5.1990 showing that she attained the age of 18 years. The reasons assigned for discarding the certificate issued by the Board of Secondary Education, Ajmer is without any basis and, at the same time, the certificate dated 25.5.2009 at Annexure-3 issued by the Registrar, Birth & Death Registration, Village – Dudawal,Tehsil – Roopwas, District – Bharatpur has been taken as authentic. The said certificate was issued at the instance of respondent No.1 in the year 2009. While passing the revisional order, authorities have even ignored that there were manipulation in the birth register thus certificate so issued by the Registrar should not have been given weightage over the certificate issued by the Board of Secondary Education, Rajasthan. Accordingly, prayer is to set aside the order passed by the Tax Board, Ajmer at Annexure-7 so as the order of Commissioner, Excise Department. 3 Learned counsel for the respondents, on the other hand, submit that a well considered order has been passed by the authorities taking note of the fact that school certificate issued by the Board of Secondary Education could not be said to have been issued with authenticity. Accordingly, certificate issued by the Registrar based on an entry in the birth certificate has to be given weightage. Hon'ble Tax Board even considered the judgments cited before it by the parties and thereupon relying on the judgments applicable to the case, impugned order has been passed. The prayer is to dismiss the writ petition. I have considered rival submissions made by learned counsel for parties and perused the record. The short controversy in the present matter is that if there exists two birth certificates, whether the certificate issued by the Board of Secondary Education can be ignored on the ground assigned by the Commissioner as well as by the Tax Board. Perusal of the order shows that it has relied on the certificate issued by the Registrar, who was none else but an official of the Gram Panchayat, Rudawal. Aforesaid certificate was issued on 4.3.2009 whereas Board of Secondary Education, Ajmer issued mark sheet at Annexure-1 showing date of birth of respondent No.1 as 31.5.1991. The Tax Board failed to rely on the judgments 4 of the Hon'ble Supreme Court in the case of State of Punjab vs Mohinder Singh (AIR 2005 SC 1868) and judgment of this court in the case of Mohd. Idrish vs State of Rajasthan (2007 (2) RLW 913). Therein, it was held that if there exist dispute regarding date of birth, school certificate should be given weightage. Learned Tax Board, however, referred another judgment in the case of Biradmal Singhvi Vs Anand Purohit (AIR 1988 SC 1796) and judgment of this court in the case of Smt Tara Devi Vs Smt Sudesh Choudhary (1998(1) WLC 176) and Richhpal @ Malia vs State of Rajasthan (2003 WLC (Raj) 388. Referring to section 35 of the Evidence Act it was held that in absence of material to show that how the date of birth was recorded in the school certificate, it cannot be taken as authentic. After recording aforesaid finding learned Tax Board came to the conclusion that merely issuance of certificate by the Board of Secondary Education, the date of birth cannot be said to be authentic. The finding so recorded is quite surprising more so when respondent No.1 has not come with the case that date of birth so recorded in the school or by the Board of Secondary Education was not authentic as it was given by a stranger. Without considering the averments and even the evidence, learned Tax Board has casually ignored the certificate issued by the Board of 5 Secondary Education. Though it has noticed that school certificate can be ignored only if there is a material that it was not given by an authentic person, however, without there being any material and argument from respondent side, a casual approach has been taken by the Tax Board in discarding birth certificate of the Board of Secondary Education. This is more so when birth register was found to have manipulation. The way matter has been dealt with shows casual approach of the Commissioner, Excise so as the Tax Board. It is necessary to indicate that the certificate issued by the Board of Secondary Education is by a statutory body and there exist rules for change in the date of birth with limitation provided for making an application to that effect. However, ignoring all these facts, certificate of birth created at the instance of respondent No.1, thereby making the date of birth as 31.5.1990, has been given weightage ignoring the certificate issued by the Board of Secondary Education. The reasons assigned in the order cannot be accepted. Accordingly, writ petition is allowed. Impugned order dated 7.7.2009 at Annexure-7 and the order passed by the Commissioner are set aside. Since petitioner is continuing with the licence of the liquor shop, decision in this case would not entail 6 him to continue for the period for which licence is existing and if there is provision of extension of period then for extended period, if granted. (MN Bhandari) J. bnsharma