1 LPA197/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTER PATENT APPEAL NO.197 OF 2010 IN WRIT PETITION NO.2805 OF 2010 Sou. Manisha S. Waskar ...Appellant v/s Shri Anil B. Dhavan and ors. ...Respondents Mr S.G. Aney, Sr Counsel i/b Mr Rahul Kulkarni for Appellant. Mr S.S. Patwardhan i/b Mr Chetan G. Patil for Respondent No.1. Mr A.I. Patel, AGP for Respondent No.5. CORAM : D.K. DESHMUKH AND N.D. DESHPANDE JJ. DATE : 6TH DECEMBER 2010. 2 LPA197/10 P.C. :- 1] By this appeal, the appellant challenges the order passed by the learned Single Judge dated 10th June 2010 in writ petition No.2805 of 2010. The relevant facts are that the appellant contested the election to Kolhapur Zilla Parishad from Panchgaon Constituency. The elections were held in 2007, she was declared as elected. The election petition was filed challenging her election in the District Court. The principal ground of challenge to the election of the appellant was that on the relevant date, she was not 21 years of age and therefore was not qualified to contest the election. The learned District Judge by order dated 5th March 2010 found in favour of the election petitioner and held that the appellant was not qualified to be a candidate at the Zilla Parishad election held in the year 2007, set aside her election and declared the election petitioner being the second candidate as elected. That order was challenged in this Court in writ petition No.2805 of 2010. The learned 3 LPA197/10 Single Judge by order dated 10th June 2010 partly allowed that petition. The learned Single Judge upheld the order by which the District Judge has set aside the election of the appellant. The leaned Single Judge also set aside the order of the learned District Judge by which he has declared the election petitioner to be elected. The appellant is challenging the order of the learned Single Judge where he confirms the finding of the learned District Judge that the appellant was not qualified to be a candidate for election of Kolhapur Zilla Parishad held in 2007. 2] The learned counsel appearing for appellant submits that one of the pieces of evidence produced by the appellant before the District Judge in the election petition was a decree passed by the civil Judge, J.D., Kolhapur dated 17th September 2009 whereby it was held that the correction made in the date of birth of the appellant in the record of Kolhapur Corporation from showing the date of birth of the appellant as 21st December 1986 is invalid, 4 LPA197/10 though considered by the District Judge, has not been considered by the learned Single Judge. According to the leaned counsel, omission from consideration of this material piece of evidence by the learned Single Judge vitiates the order passed by the learned Single Judge. The leaned counsel appearing for the election petitioner, on the other hand, submits that non-consideration of one piece of evidence by the learned Single Judge cannot vitiate his finding whereby he concurs with the learned District Judge that the petitioner was not qualified to be elected as member of the Zilla Parishad, Kolhapur. The learned counsel submits that there is ample evidence on record to show that the date of birth of the appellant is 21st December 1986. 3] We find from the record that the decree passed by the Civil Judge, Junior Division was in fact produced on record of the learned District Judge. The learned District Judge has considered that decree, the leaned District Judge has noted that it is an ex-parte decree passed against the 5 LPA197/10 Kolhapur Corporation cancelling the change in the date of birth of the appellant in the record of Kolhapur Corporation from 21st December 1983 to 21st December 1986. The learned District Judge has observed that there is ample evidence on record to show that the real date of birth of the appellant is 21st December 1986. Perusal of record shows that on record of the election petition, entry in the Primary School record in relation to the appellant was produced, that showed that the appellant was admitted in the Primary School on 19th June 1992 and her date of birth was recorded as 21st December 1986. We do not find any material on record to disbelieve this piece of evidence which is in consonance with the normal practice that a child gets admitted to Primary School when it is about five to six years of age. Had the date of birth of the appellant been 21st December 1983, then she would have been of nine years of age when she was admitted to Primary School which is unusual and if her date of birth as 21st December 1986 is taken to be correct, then she was admitted to Primary School 6 LPA197/10 when she was about five to six years of age. What is further to be seen is that admittedly the date of birth of appellant s elder brother is 14 th April 1983. If the appellant s date of birth is taken to be 21st December 1983 as claimed by her, then there is hardly eight months period intervening between the date of birth of the appellant s elder brother and her date of birth. In our opinion, therefore, omission from consideration by the learned Single Judge of the ex-parte decree passed by the Civil Judge, Junior Division will not vitiate the order passed by the leaned Single Judge. What is further to be seen is that even that decree is not entirely in favour of the appellant because though that decree declares that the correction in the date of birth made by the Kolhapur Corporation is cancelled, it rejects the appellant s prayer for a decree of declaration that her date of birth is 21st December 1983. Thus, taking overall view of the matter, in our opinion, non-consideration of the ex-parte decree by the learned Single Judge does not vitiate the concurrent findings recorded that the appellant 7 LPA197/10 was not qualified to be a candidate at the election of the Kolhapur Zilla Parishad held in 2007. The appeal therefore does not deserve to be admitted, it is rejected. 4] At the request of the learned appearing for appellant, the authority is directed not to hold bye-election which is bound to be held as a consequence of the order of the learned Single Judge for a period of 12 weeks from today though the authority shall be free to start the process during that period. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE N.D. DESHPANDE )