(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2014 OF 2011 Sheshrao s/o. Pandurang Bhavar, Age : 37 years, Occupation : Agriculture, R/o. Adhodi, Taluka : Shevgaon, District : Ahmednagar. .. Petitioner. versus 1. The State of Maharashtra, Through its Secretary, Rural Development Department, Maharashtra State, Mantralaya, Mumbai. 2. The Additional Commissioner, Nashik Division, Nashik. 3. The Additional Collector, Ahmednagar, District : Ahmednagar. 4. The Gram Panchayat, Adhodi, Taluka : Shevgaon, District : Ahmednagar, through its Gram Sevak. 5. Shivaji s/o. Asman Potbhare, Age : 38 years, Occupation : Agriculture & Sarpanch of Gram Panchayat, R/o. Adhodi, Taluka : Shevgaon, District : Ahmednagar. .. Respondents. (2) ....................... Mr. R.T. Nagargoje, Advocate, for the petitioner. Mr. D.R. Korde, Assistant Government Pleader, for respondent nos.1 to 3. Mr. H.D. Deshmukh, Advocate, for respondent no.5 / caveator. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 31ST MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. R.T. Nagargoje, for the petitioner; learned AGP Mr. D.R. Korde, for respondent nos.1 to 3, and Adv. Mr. H.D. Deshmukh, for respondent no.5 / caveator. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. As no order adverse to the interest of respondent no.4 is being passed, service of notice upon Rule, upon respondent no.4 is dispensed with. (3) 4. The petitioner has challenged the order dated 14-2-2011, passed by respondent no.2 / Additional Commissioner, Nashik Division, Nashik, in Grampanchayat Appeal No. 117/2010, thereby allowing appeal filed by respondent no.5. By the impugned order, Additional Commissioner has set aside the order dated 21-12-2010 passed by Additional Collector, Ahmednagar, in Grampanchayat Dispute Application No. 20/2010. The petitioner has also prayed for restoration of order dated 21-12-2010 passed by the Additional Collector, whereby application filed by the petitioner was allowed and membership of respondent no.5 of Grampanchayat Adhodi (Taluka : Shevgaon, District : Ahmednagar) came to be cancelled. 5. According to Adv. Mr. R.T. Nagargoje, for the petitioner, only because of existence of 4 persons by name, Shivaji, in the village, present respondent no.5 is given benefit of doubt and inference that he has no 4 children or no children exceeding 2 has been drawn. He invites attention to various documents placed on record by the petitioner including school records and photographs of children to urge that respondent no.5 Shivaji has 4 children and 2 out of them are born after 12-9-2001 i.e. prescribed date. (4) 6. Learned AGP Mr. D.R. Korde, for respondent nos.1 to 3, and Adv. Mr. H.D. Deshmukh, for respondent no.5, are supporting the impugned order. They contend that authentic records available with Government have not been produced and Adv. Mr. H.D. Deshmukh argues that entries in ration card are fabricated and bogus. He also argues that no importance can be attached to bona fide certificates issued by the school authorities or to photographs in this respect. He points out that before Collector, there was specific statement that respondent no.5 has only 2 daughters both born prior to 12-9-2001. 7. Records before this court prima facie show that Shivaji has 4 children. Whether said Shivaji is present respondent no.5 or then some other person / persons is the dispute involved. The name of mother of children has not been brought on record. The bona fide certificates produced are issued by the schools and there only name of father has been mentioned, name of mother nowhere appears. Even the photostat copy of register maintained by Primary Health Centre, Bodhegaon, produced before this court, does not indicate name of mother. The provisions of Registration of Births & Deaths Act, 1969, contemplate registration of each birth and those entries have got presumptive value. Those entries are not produced and the name of mother is also not brought on record. (5) 8. In the entries in register with fair price shop keeper, name of mother of respondent no.5, respondent no.5, his wife Jijabai and 4 children are mentioned. Contention of the present petitioner is those entries are taken because of written application made by father of present respondent no.5, namely, Asmanrao. The said register mentions name of Asmanrao Shripatrao Potbhare as card holder. What is relevant record in this respect with the office of District Supply Officer is not clear as no such record was produced before the Additional Collector. The petitioner has produced photographs of children and is stating on oath that those children are of respondent no.5. 9. In view of this material on record, I find that a case for further inquiry into the matter is made out. The authorities are duty bound to see that provisions of any enactment laying down disqualification are given full effect, if necessary facts are established. They have to use their good offices in order to see whether facts are established or not. They have also to call for relevant record to find out correctness or otherwise of the rival contentions. Here, Additional Collector or then Additional Commissioner could have called for relevant records as entries in death and birth register in Primary Health Centre or other place where the deliveries took place and also about the children (6) born to other three persons with name Shivaji and then could have recorded appropriate finding. This has not been done. I, therefore, find that there is refusal and failure to exercise jurisdiction. 10. In this situation, as I find that the petitioner needs to be given an opportunity to substantiate his contention, the order of the Additional Commissioner and order of the Additional Collector will have to be set aside and the matter will have to be remanded to the Additional Collector for fresh decision. 11. In the result, the petition is partly allowed. (i) The impugned order dated 14-2-2011, passed by respondent no.2 / Additional Commissioner, Nashik Division, Nashik, in Grampanchayat Appeal No. 117/2010, is quashed and set aside. So also, the order dated 21-12-2010 passed by Additional Collector, Ahmednagar, in Grampanchayat Dispute Application No. 20/2010, is quashed and set aside. Proceedings in Grampanchayat Dispute Application No. 20/2010 are restored back to the file of respondent no.3 / Additional Collector for fresh decision in accordance with law and in the light of the observations contained in this judgment. (7) (ii) Parties are directed to appear before the Additional Collector on 20th April 2011. The Additional Collector shall thereafter proceed to hear respective parties and give them opportunity to produce necessary evidence. After the evidence is adduced, respondent no.3 shall hear oral arguments and then pass appropriate orders. (iii) Final decision in this respect shall be taken by the Additional Collector as early as possible and in any case, by 31st July 2011. (iv) Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp2014