1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.257 OF 2008 Nandu Tukaram Ambavne .. Petitioner Versus Baliram Sitaram Rongte & Ors. .. Respondents Mr.Harshad Bhadbhade i/b. S.S.Aradhye for petitioner Respondent No.1 Ms.P.S.Cardozo, A.G.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 8th February 2008 P.C. . This petition under Articles 226 and 227 2 of the Constitution of India challenges the order passed by the Commissioner, Nashik Division, Nashik on a complaint bearing No.49 of 2007. 2. One Baliram Sitaram Rongate, residing at Ghoti in Igatpuri Taluka, Dist.Nashik filed a complaint against the petitioner and alleged that the petitioner contested the elections to the Zilla parishad and Panchayat Samiti, Nandgaon Budruk Ward No.130 on the seat reserved for the scheduled tribe. There were nominations filed by the complainant and petitioner. The Tahsildar Igatpuri was Returning Officer. 3. The allegation is that the petitioner despite knowing fully well that son was born after the cut off date and to be precise on 7th June 2002, suppressed this fact and filed a false affidavit before the Returning Officer. He has misled the election machinery and that is how, he has contested the election and was declared 3 elected. The Commissioner was requested, therefore, to disqualify him and declare that a vacancy has arisen on account of the said disqualification. 4. The said complaint was placed before the Commissioner who was exercising powers under section 62 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act for short). By order under challenge, the Commissioner has held that the petitioner is the father of 6th child born on 7th June 2002 which is admittedly a date after the cut off date and hence, he was ineligible to contest the elections and, therefore, is now disqualified. In other words, the petitioner was ineligible for being chosen as and for being a Councillor of the concerned Panchayat Samiti. 5. Two contentions have been raised before me by Mr.Bhadbhade apearing for the petitioner. 4 His first submission was that section 62 of the Act deals with a vacancy. Sub-section 3 thereof provides for a declaration of vacancy in case of doubt being expressed. The Commissioner is an authority who could have taken cognisance of and with the assistance of section 58 of the said Act adjudicate upon the issue of disqualification of the petitioner. However, the said Commissioner could not have gone into issues and matters which arose before the declaration of the result during the electoral process as that is not the ambit and scope of the powers conferred upon him by section 62 of the Act. 6. His second submission is that assuming without admitting that the Commissioner had necessary jurisdiction, authority and power, yet, the Commissioner has in the facts and circumstances of the present case exceeded the same by directing an enquiry which admittedly, he could not have directed and/or conducted. In 5 other reasons, the Commissioner doubted the correctness of the entries made with regard to the birth and deaths in the said village. That issue arose before him in the context of the allegations made by the complainant and denied specifically by the petitioner. The Commissioner had before him the record including the communication from the Group Gram Panchayat. The Group G.P. having certified that 6th child was born on 12th July 2001, there was no reason for the Commissioner to disbelieve its record and go into the genuineness and correctness of the entries in the Register and documents maintained in that behalf. Further, the Commissioner himself did not undertake the said exercise but directed some other authority to hold an enquiry and report to him. Even that was impermissible. If the Commissioner had any doubt with regard to the entries in the Register, then the Commissioner could have resorted to the provisions of the Registration of Births and 6 Deaths Act, 1969 and directed that the Registrar exercising power under that enactment should conduct enquiry and submit a report. That is a provision specifically made in the said Act and the said Act would not have been, therefore, discarded or ignored by the Commissioner. The entire exercise, therefore, is without jurisdiction and the impugned order suffers from an error apparent on the face of record and should be quashed and set aside. 7. The Commissioner’s order is perverse inasmuch as without dealing with the documents which are placed before him by the petitioner or dealing with their contents, the same have been discarded by the Commissioner. On the other hand, he has solely placed reliance upon the report forwarded by the C.E.O. and the documents appended to the same. Thus, a wholly one sided enquiry was conducted and which has resulted in an order which is unsustainable in law. For this 7 reason also the impugned order be set aside. 8. When this matter was placed before me, in order to satisfy myself about the correctness of the findings and conclusions, I called for original records. Ms.Cardozo, learned A.G.P. has produced the same. 9. With the able assistance of Mr.Bhadbhade, I have perused the subject provisions. The Maharashtra Zilla Parishad and Panchayat Samiti Act is an Act which provides for the establishment in rural areas of Z.P. and P.S. and it assigns them local Government functions more particularly set out in the preamble to the Act. The Councillor means a member of the Z.P. constituted under the Act. The term Panchayat Samiti or Samiti means a Panchayat Samiti constituted for every block under section 57. The subject elections are to the panchayat samiti and, therefore, the provisions contained in 8 section 57 onwards would be the applicable provisions. Chapter III in the said Act deals with establishment of Panchayat Samities and their constitution. Section 58 makes a provision regarding electoral colleges, disqualifications, elections and election disputes. Thereunder, sub-section 1(E) reads thus:- "1(E):- The provisions of sections 14, 15, 15A, 16, 17 and 18 relating to the date of election, qualifications for being elected and disqualifications and the right to vote in the elections of Councillors of a Zilla Parishad shall apply in relation to the member of a Panchayat Samiti as they apply in relation to the Councillors of a Zilla Parishad with the modification that:- (a) in section 15, for the words "electoral division" the words "electoral 9 college", and for the word "District" the word "Block" shall be substituted; (b) In section 16, in clause (d) of subjection (1) for the figures "39" the figures "61" shall be substituted; (c) in section 17, for the words "electoral division" wherever they occur, the words "electoral college" and in sub-section (3) for the words "electoral division" the words "electoral colleges" shall be substituted; 10. Further, sub-section 2 of section 58 provides that certain provisions pertaining to Z.P. elections and election disputes apply mutatis mutandis in relation to the election of members of Panchayat Samiti. Section 60 deals with resignations whereas section 61 deals with removal. Section 62 of the Act reads thus:- 10 "62.(1) If any member of a panchayat samiti during the term of his office -- (a) becomes disqualified under section 68; or (b) is for a period of three consecutive months (excluding in the case of its Chairman and Dy.Chairman any period of leave duly sanctioned) without the permission of the Panchayat Samiti absent from meetings thereof or is absent from such meetings for a period of six consecutive months, the office of such member shall become vacant; (2) Deleted by Mah.21 of 1994 (3) If any question whether a vacancy has occurred in the office of member under this section is rated either by the Commissioner suo motu or on an application made to him by any person the Commissioner shall decide the question as far as possible within ninety days from the daete of receipt of such application and his decision thereon shall be final. Until the Commissioner decides the question the member shall not be disabled from continuing to be a member of the panchayat samiti." 11. Upon a bare perusal of the provisions, it would be apparent that a member of Panchayat 11 Samiti during the term of his office can be disqualified under section 58 and, if he becomes disqualified, then, his office shall become vacant.. If any question arises as to whether vacancy has arisen in the office of the member and the question is raised by the Commissioner, suo motu or on an application made by the complainant, the Commissioner shall decide the same from the date of receipt and his decision thereon shall be final. 12. In my view, in the larger public interest and the intent of the legislature in providing for a decision on the question of vacancy in section 62, it is not possible to accede to the submission of Mr.Bhadbhade that the Commissioner can make only limited enquiry. He cannot go into the matters anterior to the electoral process or polling. The words appearing in section 62(1)(a) are "becomes disqualified under section 58". If the said provision is read in the backdrop of 12 section 58 so also constitutional mandate, then, a person’s continuance as a member has to be an issue decided on the basis of the qualifications. Section 58(1)(e) is widely worded and matters regarding qualifications for being elected and disqualification fall within the purview of the same. That provision is referred to in its entirety in sub-section 8 of section 1 of section 58. In such circumstances and when the question of vacancy arising being raised on an application made by any person to the Commissioner and that application raising the issue of disqualification of a member, then, it is not possible to hold that the enquiry is a restricted one. The enquiry must encompass all matters pertaining to disqualification. In such circumstances, so also when the larger issue as to whether vacancy arises or not is to be decided, then, a restricted interpretation of the provision is likely to defeat the intent of the legislature and the object and purpose of inserting section 13 62 therein. Advisedly, sub-section 3 has been inserted by Maharashtra Act 35 of 1963. At the same time, sub-section 2 was deleted. The other part of section 62 was also amended. In such circumstances, to hold that Commissioner’s powers do not include deciding the matters prior to the elections and matters of nominations would not serve the purpose and object of the determination by the Commissioner. Ultimately, a high powered official has been chosen by the Legislature and he must be granted and assumed to have wider powers. The first contention, therefore, must fail. 13. Insofar as the second contention is concerned, the specific case before the Commissioner of the complainant was that the petitioner misled the authorities with regard to the birth of his sixth child in his family. The complainant alleges that the child was born on 7th June 2002 whereas the petitioner contended 14 that he was born on 12th July 2001. Thus, there is no dispute that sixth child was born in the family. The question only is when he was born. 14. When the matter was before the Commissioner and both sides relied upon certain entries, whereas the petitioner’s specific case was that Group G.P. has certified that the child was born on 12th July 2001 and dispute was raised with regard to the genuineness of those entries by the Group G.P. , the Commissioner thought it fit to call for a comprehensive report. The comprehensive report was called for and the authority chosen was the Chief Executive Officer. It is not as if the C.E.O. was directed to take any decision. The C.E.O. was called upon to submit a report. That report was also called for from the Health Officer of the Primary Health Centre is also clear from a perusal of the impugned order. The Commissioner is a high powered officer and he must be conferred with 15 such incidental and ancillary power soas to make the grant of wider power effective and complete. He has, therefore, not only called for a comprehensive report but himself perused all entries. He has perused the entries of the Group G.Ps. While, referring to the Group G.P. entries he has specifically observed that G.P. record for the relevant year does not show that sixth child was born on 12th July 2001. However, the petitioner applied to Tahsildar, Igatpuri for a birth certificate. That application was received on 23rd February 2007. On 23rd February itself, the certificate appears to have been issued and that is the date on which the petitioner filed his affidavit where the date appearing is of 23rd February 2007. That the Executive Magistrate Igatpuri has also on that date directed that the entry pertaining to the birth of the child of petitioner should be shown as 12th July 2001. Thus, the documents that have been relied upon by the petitioner while filing 16 his nomination are all issued on the same date. 15. However, the G.P. record has been perused and the Registrar who was in charge of the entries with regard to the birth and death has forwarded his opinion and report in writing that no entry with regard to the birth of child is made on 12th July 2001. Thus, the date 12th July 2001 is a date inserted in the records pursuant to the directions of Tahsildar and Executive Magistrate and the original register does not bear the said date i.e. 12th July 2001. He has also relied upon a certificate issued on 27th March 2007 by the Gramsevak. 16. On the other hand, the complainant approached the Health Officer of P.H.C. and the said authority has certified that the child was born on 7th June 2002. The C.E.O. report dated 27th August 2007 shows that the Taluka Health Officer, Panchayat Samiti, Igatpuri had conducted 17 an enquiry and submitted a report to the C.E.O. which shows that wife of petitioner delivered a child at Home. The delivery was conducted by one lady. The child was delivered on 7th June 2002 and it is the sixth child. There is such an entry in birth and death register of the Nandgaon Budruk Primary Health Centre. Thereafter, there is Register R-16 which is entitled Balak Seva Nond Vahi (Entry Registrar). There the name of the child and his date of birth is mentioned so also particulars of vaccination. The Health Officer in support of his report has relied upon the letter dated 21st March 2007. Thus, the integrated child development scheme conducting the vaccination programme so also R-16 entry and the birth and death register would show that the sixth child was born on 7th June 2002. In comparison to this, the petitioner has relied upon the Group Gram Panchayat certificate, resolution of the Gram Panchayat and the certificate of the Principal of Zilla Parishad 18 Primary School. These documents dated 28th September and 6th October 2007 have also been placed before the Commissioner and perused by him. The Commissioner has gone through the contents of all thoroughly and indepth. He has chosen to rely upon the documents placed before him by the health department/unit. It is in such circumstances and in the light of the issues raised before him that the Commissioner held that the contentions of the petitioner that the Gram Panchayat birth and death register entry should be taken as a conclusive proof and no reliance can be placed upon other documents, has been rejected. 17. This is a clear case where genuineness and authenticity so also correctness of the entries was specifically put in issue by both sides. In the peculiar facts of this case, the Commissioner, therefore, cannot be blamed for conducting an enquiry and calling for reports 19 from the concerned officers or those subordinate to him. 17. In the peculiar facts of this case, I am satisfied that the findings recorded cannot be said to be perverse. They are consistent with the documents and the contents of which are referred to hereinabove. This is not a Court of further appeal so as to permit re-appraisal and/or re-appreciation of this material. The impugned order cannot be termed as perverse. The view taken by the Commissioner is a view which is possible from the contents of the documents and other materials placed before him. It is in such circumstances that he attaches importance and great significance to the P.H.C. reports and disbelieves the Group G.P.entry which was recent one. The conclusion cannot be said to be vitiated by an error apparent nor can it be termed as perverse so as to call for interference in my writ jurisdiction. Petition is accordingly 20 dismissed. (S.C.Dharmadhikari, J)