wp5880-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5880 OF 2010 Narayan Raghunath Deore ..Petitioner versus Gram Panchayat Dahiwad through, Gram Sevak & Ors ..Respondents Mr.P.B.Shah with Mr.M.N.Sandhyanshiv Jaymala J. Ostwal & Rupali G. Lad for the petitioner. Mr.Hiten S. Venegaonkar for respondent Nos.2 to 4. Mr.S.N.Bhosle, A.G.P for respondent No.5. CORAM : S.C.DHARMADHIKARI, J. DATE : 13th July 2011. P.C.: 1] On 22nd June 2011, I had passed an order directing that the original record should be produced and inspection of the same can be taken by both, the learned Advocate for petitioner and that of respondent Nos. 2 and 3. 2] The challenge in this petition under Article 227 of the wp5880-10.doc 2 Constitution of India is to the order of the Additional Commissioner, Nashik Division allowing the appeal which was preferred by respondent Nos. 2 to 4 to challenge the order of the Collector dated 13th April 2010. 3] The proceedings are under section 16 of the Bombay Village Panchayat Act, 1958 (Act for short). 4] The petitioner had filed a complaint before the Collector pointing out that he is a permanent resident of Mouje Dahiwad taluka Devale, Dist. Nashik. While Gram Sevak was impleaded as Opponent No.1 to this application, it was stated that opponent Nos. 2 to 4 to this application have been elected members of Gram panchayat Davad from ward Nos. 1 and 4. 5] It was his specific case that opponent Nos. 2 and 3 viz., Samadhan Thakare and Baitabai Pawar have incurred disqualification under section 14(1)(j-i) of the Act as each one of them have more than two children. The petitioner has set wp5880-10.doc 3 out details of the issues of both respondent Nos. 2 and 3. According to him, the second and third child of Samadhan Thakre and Pintu are born after cut off date. As far as respondent No.3 is concerned, it has been pointed out that she has three children after September 2001. 6] It is not necessary to go into the allegations that are made against Devchand Pawar because that was not pertaining to having more than two children. Even otherwise, upon perusal of the orders passed by the Collector and Commissioner, I am satisfied that the finding that the said Devchand has not incurred any disqualification as alleged and does not require any interference because it is based on the factual position emerging from the record. There is no error apparent on the face of record or perversity disclosed as far as this finding is concerned. It is only to examine the complaint against respondent Nos. 2 and 3. Having made this specific complaint against both who are elected members in the elections that has been held to the said gram panchayat that wp5880-10.doc 4 notice were issued to them by the Collector. In response thereto, their reply was that the allegations made against them are out of frustration and political enmity. They have not incurred any disqualification. They have pointed out that each one of them do not have more than two children. The petitioners have produced the extracts of birth register but even they do not indicate that the respondent Nos. 2 and 3 gave birth to more than two children and, therefore, incurred disqualification. Thus, the proceedings are initiated merely to harass them. 6] Upon the matter being listed before the Additional Collector at Malegaon, it appears that prior to delivering the order dated 13th April 2010, he called for the records from the primary health centre (PHC). The Health Officer of the PHC has in response to that requisition from the Collector intimated that the records which have been maintained in the requisite form viz., Balak Seva Nond Vashi (R-16) and Kutumb Kalyan Nond Vahi (R-14) have been personally scrutinised and verified wp5880-10.doc 5 by him. He has also forwarded photocopies of the extrats duly attested but importantly he has stated in his communication to the Collector that these records indicate that both petitioner Nos. 2 and 3 gave birth or are parents of third child after the cut off date. In such circumstances, the Collector relying upon these documents and rejecting the argument that the Gram Sevak of Gram Panchayat has certified that there is no entry of their birth in the panchayat record, held that the respondent Nos. 2 and 3 are disqualified for having more than two children. In such circumstances and by passing strictures against the Gram Sevak, he delivered the order dated 13th April 2010, disqualifying the respondent Nos. 2 and 3. 7] Aggrieved by that order both respondent Nos. 2 and 3 so also the other disqualified member Devcand preferred an appeal to the Commissioner of concerned division. The Additional Commissioner on perusal of the records, made the observations which are at internal page 4 and running page 28. These observations are to the effect that the Balak Seva Nond wp5880-10.doc 6 Vahi which has been produced, shows that the entry Rahul Thakur therein has been inserted after making certain cancellation and there is collusion with the Medical Officer of the PHC. As far as respondent No.3 is concerned, the documents produced also have certain entries which cannot be relied upon. It was observed that the primary documents are not being produced whereas what has been produced for proving the case against these two members is a secondary evidence. Once the primary evidence is not produced, the Collector could not have concluded that these members are disqualified for having more than two children. It is this conclusion of the Additional Commissioner which challenged in this petition. 8] I have heard Mr.Shah for petitioner and Mr.Venegaonkar for respondent Nos. 2 to 4. As far as respondent No.4 is concerned, I have already held that writ petition deserves to be dismissed as against him. Mr.Shah submitted that a perusal of the original record would show that wp5880-10.doc 7 the Additional Commissioner's findings and conclusions are contrary thereto. There is clear perversity because, according to Mr.Shah, there is no question of any primary or secondary evidence in such matters. The question was whether respondent Nos. 2 and 3 have more than two children. When the petitioner relied upon entries in the Balak Seva Nond Vahi and the Kutumb Kalyan Register which are both maintained in the ordinary regular course of the service rendered by the public servants and those who are in charge or the PHC, then, there was no reason to discard the same. Further, the Commissioner does not say that entries cannot be believed but he discards them on account of alleged interpolation and corrections therein. If that was the case, then, it was for respondent Nos. 2 and 3 to establish and prove the allegations of collusion and malafides. They had not produced any material to support the same. If that be so and when there is proof of the respondent Nos. 2 and 3 having more than two children after cut off date, then, they were clearly disqualified and the Collector was in no error in relying upon the entries. wp5880-10.doc 8 For all these reasons, he submits that petition deserves to succeed. 9] On the other hand Mr.Venegaonkar appearing for contesting respondent Nos. 2 and 3 would submit that the Commissioner has recorded a finding of fact that the entry of birth from the birth and death register maintained by the gram panchayat has to be produced and that has evidentiary value. As far as other evidence is concerned, according to him, that is secondary in character. If what has been produced is secondary evidence and the law mandating production of primary evidence in the form of extract from the birth and death registers of the concerned village, then, all this cannot be relied upon to reverse the findings of the Collector. Mr.Venegaonkar submits that the interpolations are apparent to even naked eye. If that be so, then, no elected member should be disqualified on the basis of such doubtful record. For all these reasons, he submits that the petition be dismissed. wp5880-10.doc 9 10] With the assistance of the learned Advocate appearing for parties, I have perused the petition, annexures thereto and also the original record. Both sides have indicated to me that they have inspected the original record and on that basis they have made their submissions. It is not necessary to refer to the affidavit filed in this petition by the BDO because all that he states is that the findings of Commissioner derive support from the same. 11] The original record having been produced, it is apparent that when the application was made to the Collector seeking disqualification of both the respondent Nos. 2 and 3 so also respondent No.4. That application was received in the office of the Collector. That application was supported by a letter of PHC addressed to Vasant Shravan who is member of Gram Panchayat, Dahiwad. That is a letter duly signed by the Health Officer, PHC Dahiwad. He has given information that one Mrs.M.R.Borse who has certified entries in the Register R-14 to R-17 has on scrutiny certified that Samadhan Thakare wp5880-10.doc 10 has three children. The photocopies of Form Nos. 1 to 7 were enclosed along with this letter dated 11th February 2010. One Baitabai Pawar, respondent No.3 has four children and even the entries in relation thereto in the requisite form have been certified. Further, there is a letter which has been addressed by the same lady viz., Mrs.Borse addressed to the Medical Officer, Primary Health Centre, stating therein that she has on the basis of scrutiny and verification of the Register and entries therein certified that that the children are born to Samadhan Thakare and Baitabai i.e. Respondent Nos. 2 and 3 respectively. It is in such circumstances, that the Additional Collector disbelieved the Gram Sevak and has in addition to relying upon this, also, called for the entries which have been made in the School Register in relation to the children of respondent No.3. The extract from General Register in the form of the Z.P. Primary School, Dahiwad, which is certified by the Head Mistress as Ms.Anita K. Pawar is daughter of Baitabai and she is born on 17th April 1994. Then, as far as Jijau Pawar is concerned, it is stated that she is born on 19th January 1996 wp5880-10.doc 11 and she is studying in IX th standard in Laxmibai Devre Vidyalaya. These are the certificates duly signed by the Head Mistress. As far as Sachin K. Pawar and Amol are concerned, they have been enrolled in the same primary school of Z.P., and the Head Mistress stated that birth dates of both are 21st December 2001 and 3rd March 2003 respectively. To my mind, the Commissioner was in clear error in holding that unless the primary evidence was produced in the case, the concerned respondents cannot be held to be disqualified. It is not his finding that the documents produced have no evidentiary value or cannot be termed as evidence but the finding is based on the doubt that has been raised by respondent Nos. 2 and 3 with regard to the genuineness of the entries. It was stated that these entries are as a result of some interpolation and corrections in the register and they are made because of the collusion of the petitioner and the authorities viz., Medical Officer of the PHC. Thus, it is not the finding of the Commissioner that the documents produced do not have any evidentiary value at all. If it was the case of respondent Nos. 2 wp5880-10.doc 12 and 3 that the entries are either forged or not genuine, then, it was for them to demonstrate and prove this fact. Pertinently, it must be noted that such a doubt is not cast as far as the certificates which have been issued by the Head Mistress of the Primary School of the Z.P. With regard to the same, there is absolutely no reference leave alone any finding and conclusion in the order of the Commissioner. Therefore, if doubt is cast on some selective documents in records, then, the Commissioner ought to have been vigilent and if therefore, had felt, the authority and power to seek verification and clarification, he ought to have done the same. Merely by recording submissions and contentions of respondent Nos. 2 and 3 but without any conclusive and definite finding thereon, it cannot be held that the documents produced have not evidentiary value. The Commissioner was carried away by the fact that primary evidence, according to him, is not produced. In such matters, it is not that this Court or the Supreme Court has held that the documents which are extracts from the Registers that are obtained at the PHC have no evidentiary wp5880-10.doc 13 value. In the absence of any other proof, if such documents are produced and they do evidence the fact that is sought to be proved then, before dicarding them, reliable and cogent so also satisfactory reasons have to be assigned. Ultimately, this is a case of disqualification of elected member. However, when a scrutiny thereof is provided at the hands of independent and impartial adjudicators, then, the least that is expected from them is hat they decide the matter in a proper and impartial manner. It was for the Commissioner, therefore, to have rendered a tentative conclusion with regard to genuineness of the entries. Commissioner's order merely records the objections that are raised by the respondent No.2 and the allegations made against the PHC by him. However, he has not rendered any finding which could be said to be his own objective conclusion about the genuineness of the documents or the entries therein. Without disclosing the rival version but only stating the objections, the Commissioner proceeds to hold that the evidence produced is secondary in character. He observes that the documentary evidence is not a proof of birth wp5880-10.doc 14 and for that authentic proof in the form of extract from birth and death register should have been produced. He discards, the Balak Seva Nond Vahi and Kutumb Kalyan Nond Vahi because they are not records which would be maintained for the purpose of recording birth and death of a person. He states that this is evidence and these documents are produced from the custody of public servant but still if the same has to be relied upon, the statement of the concerned officials should be recorded and they ought to be made available for cross examination by the affected parties. However, nowhere in the order he holds that any application was made by the respondent Nos.2 and 3 requesting the Collector or the Commissioner to summon such officer, including Health Officer of PHC for cross examination. That is the perspective of the Commissioner, but, which is not at all borne out from any material on record. Therefore, to make a sweeping and general remark that in all such matters even if the documents are produced from the custody of a public servant and officers, before the same can be exhibited and relied upon, these wp5880-10.doc 15 officers should be examined by wintesses cannot be accepted in the peculiar facts of this case and without anything more on record. One fails to understand that if by this logic he disbelieves the contents of the documents of respondent Nos.2 and 3 are concerned, but , in so far as the entries which have been made in the school records of the other candidate/member. Viz., Bitabai, he gives no reason, save and except, relying upon some judgment of this Court without giving any details thereof, which according to him, holds that unless the birth and death register and extracts thereof is produced, the proof of death or birth is not available. Therefore, according to the perspective of this Commissioner it is only when the birth and death register maintained in the said village or extract thereof is produced, the birth or death is not proved cannot be accepted. This can at the most be said to be his personal view and opinion which do not find any support. Even in matters where the birth or death is held to be either proved or disproved, the Supreme Court has held that in mosts part of India where people are illiterate, parents take the children to wp5880-10.doc 16 the primary school and give information with regard to their birth. Based on this information entries are made in the school register. These entries have a probative value. These entries are made in documents and records which have definite evidentiary value. Every school is obliged to maintain a register of its students and make entries therein with regard to their date of birth, place of birth, details of parents etc., which are termed as public records. Therefore, it is not clear as to on what basis the entries in the present case have been discarded by the Commissioner. If such is the manner in which the officers at the level of Commissioner are going to approach the matters which are before them, then, in a given case a doubt will be cast about their impartiality and independence. They ought to avoid such doubts being raised and allegations in that behalf. Therefore, to my mind the impugned order passed by the Additional Commissioner, Nasik reversing that of the Collector is vitiated by an error apparent on the face of record. It can safely be termed as perverse because it ignores and brushes aside the documents which are on the own showing of wp5880-10.doc 17 the Commissioner having evidentiary value. If there probative and evidentiary value is settled in terms of law, then, why the same have been discarded has not been clarified by him at all. The reasons assigned are also not cogent and satisfactory. Thus, the conclusion is based on conjectures and surmises on the part of Commissioner. Such an order cannot be sustained. It therefore deserves to be set aside. Accordingly, the same is set aside. The petition succeeds. The order passed by the Additional Commissioner, Nasik in Gram Panchayat Appeal No.27 of 2010 dated 23rd June 2010 is quashed and set aside and that of the Additional Collector, Malegaon dated 13th April 2010 is maintained. However, in these circumstances there will be no order as to costs. 12] Needless to clarify that only the respondent Nos.2 and 3 to this petition would stand disqualified, but, the Commissioner's conclusion in so far as respondent No.4 is maintained and, therefore, restoration of the order of the Collector does not mean that even this respondent stands wp5880-10.doc 18 disqualified. (S.C.DHARMADHIKARI, J)