wp8203-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8203 OF 2010 Baburao Deorao Gangurde ..Petitioner versus Gramsevak, Gram Panchayat, Otur & Ors ..Respondents Mr.P.N.Joshi for the petitioner. Mr.Pradeep S. Gole for respondent No.1. Mr.D.K.Raje i/by Mr.B.K.Raje for respondent No.2. Mrs.M.S.Bane, A.G.P for respondent Nos.3 to 5. CORAM : S.C.DHARMADHIKARI, J. 12th July 2011. P.C.: . The petitioner had filed a complaint before the Collector, Malegaon District, Nasik, alleging that the respondent No.2 to this petition be disqualified from continuing as a member of the respondent No.1-Gram Panchayat as a third child was born and she is mother thereof. This third child was born after 12th September 2001. In such circumstances, by virtue of Section 14(1)(j-1) of the Bombay Village Panchayat wp8203-10.doc 2 Act, 1958, she is disqualified. It is submitted that the respondent No.2 contested the election of the said Panchayat from a seat reserved for scheduled tribe woman. The elections were held in the year 2010 and total 9 members were elected. It was pointed out that the 2nd respondent has a daughter by name Sonali whose date of birth is 29th February 1999. She has a second daughter called Maya who is born on 18th January 2000 and third daughter Bharati was born on 12th December 2001. The complaint alleged that by virtue of the birth of the third child, which fact was suppressed at the time of the elections, the 2nd respondent has incurred this disqualification. What was produced to show the birth of the third child after the cut off date, is the extract from the pulse polio beneficiaries list and a certificate given by the Medical Officer pointing out that the third child was born on 12th December 2001. Further, reliance was placed on a certificate issued by the Gram Sevak on 23rd October 2010 evidencing the birth of the third child. wp8203-10.doc 3 2 The argument before the Collector was that the Gram Sevak has produced the record, namely, the birth and death register which shows that in the year 2001 and, particularly, in the month of December 2001, the third child was born. As far as the 2nd respondent was concerned, she pointed out that she is illiterate and belongs to the “Adivasi” community. The birth dates are entered by the teachers in the school on the basis of the date of the admission in the school. She stated that it is inconceivable that the second child was born on 7th November 2001 whereas, third child was born on 12th December 2001. It is impossible that a child was conceived and born within a short span of one month and five days. Therefore, the version of the petitioner-complainant is improper and cannot be accepted. 3 The Collector by his order dated 21st June 2010 held that the version of the petitioner is that the second child was born on 18th January 2000 and the third child was born on 12th December 2001. But the 2nd respondent while contesting this position argued that she gave birth to twins on 18th July 2001. wp8203-10.doc 4 Therefore, the version of the 2nd respondent being that she is mother of twins, it was for her to prove that she gave birth to the two daughters and she produced no proof in support thereof nor did she disprove the contents of the documents relied upon by the petitioner-complainant. Holding thus, the Collector held that the 2nd respondent is disqualified. 4 The matter was carried in appeal to the Commissioner who reversed the order of the Collector by holding that the material that is produced on record would show that between the birth of the second and third child, there is hardly a gap of one month and five days. If that is an impossibility, then, the version of the petitioner cannot be accepted. On the other hand, the Garbhavati Mata-Balak Saurakshan Card, of which a true copy was produced, shows that the 2nd respondent has availed of the health services and she has been given the vaccination and has undergone the examination. There, the record indicates that the probable date of birth is 15th July 2000, whereas, the delivery is on 18th July wp8203-10.doc 5 2000. There is an extract from the register which shows that on 18th July 2000 the 2nd respondent gave birth to twins. In such circumstances, the Collector erred in accepting the complaint. Therefore, the Commissioner has reversed his order and dismissed the petitioner’s complaint. This is the reason why the petitioner has approached this Court in writ jurisdiction. 5 Mr.Joshi appearing for the petitioner submitted that there is absolutely no discussion as to why the extract from the Pulse Polio list cannot be accepted which shows that the second child and the third child are born on 18th January 2000 and 12th December 2001, respectively. Further, the certificate given by the Medical Officer also should have been accepted. However, why it is discarded has not been stated at all. He submits that in the light of this and when there was no proof of twins having been born as asserted, then, the 2nd respondent was clearly disqualified. 6 It is not possible to accept this contention of Mr.Joshi. wp8203-10.doc 6 The Commissioner has adverted to the case of both sides. The Gram Sevak of the Gram Panchayat, in a stand taken in writing, which is some what perplexing, states that the first child Sonali was born on 21st February 1999. However, the Gram Panchayat, Otur in its birth and death register has not maintained any record of the birth of the first child as well. Yet, he asserts that the second child was born in the family on 7th November 2001. However, birth register of 2001 also does not reflect the birth of the child Maya. In such circumstances, how he certifies that the third child was born on 12th December 2001 is not clear to me at all. That he does so on the basis of some certificate which is issued by him under his signature but bearing a date of 20th September 2010. This is much after the order of the Collector. 7 Secondly, the certificate of the Medical Officer also does not show that the contents thereof tally with the version of the Gram Sevak. Similarly, the version of the Gram Sevak and entries in the Pulse Polio Register also do not tally with each wp8203-10.doc 7 other. In such circumstances, the 2nd respondent’s version that she gave birth to twins on 18th July 2000 appears to be more acceptable. She has relied upon the Garbhavati Mata-Balak Saurakshan Card and the xerox copy thereof duly certified was produced. She has also produced the information which is maintained in the birth register and that shows that the date of delivery is 18th July 2000 and two daughters were born on the same date. In such circumstances, the Commissioner was in no error in holding that it is inconceivable and improbable that within a span of one month and five days, the 2nd respondent gave birth to two daughters. In such circumstances, while rejecting the claim which was made by this petitioner and finding that the version of the 2nd respondent is supported by documents, that the Collector’s order has been reversed by him. That is consistent with the version of the parties and particularly when the petitioner also did not seriously contend that the twins were not born. One of the assertions of the petitioner also was that, assuming that twins were born, there was no proof of their birth on 18th July 2000. That having been wp8203-10.doc 8 negatived by production of authentic record and the documents produced by the petitioner, prima facie, having no evidentiary value, the Commissioner was in no error in reversing the order of the Collector. I do not find any reason to interfere with such findings of fact rendered, as they are in complaint alleging disqualification of the elected member. There was enough doubt raised with regard to the version of the petitioner itself and, therefore, the rejection of the complaint of the petitioner does not require any interference in the writ jurisdiction. Writ petition is devoid of any merits and the same is disposed off. (S.C.DHARMADHIKARI, J)