Hi6H OF AT CHNATTiSGARH N0. 3^T .Singfe Beneh APPLICANT .1 35 S/o. R/o. No. 3, (CG) /^J,- 4^' ^' ^. S^o. Das Sukhwani., 50 years, R/'o. No. 3, Colony^ District (CG)"-"""—P©tltioner S/o. Arvind Aglaw&, 35 R/o< P4- Tahsil (03) SJo. 33 P.S. and Durg (CG) 4] ^' S/o. C<P. 37 years, R/u. Bhal VVard, P.S. and Tahsii (CG) 5] Shykla, S/o. 40 years, R/o. 4, Para^ Durg (CG) 'c^y:.:.^^.-^'^. Virani S^o.. .Anyn Das 30 years^ R/o. Colony, D4- (CG) Shamia^:::S/8"':"Basant 35 R/o. No» 6, Colony, P-S. and (CG) and Officer (Revenue); Palika^ Nin/achan 2004 (Presi'dins Offlcer- M.L. DistrictDyrg (CG) CSVIL SECTiON 2o(2) OF MUNtCIPALJTIES ACT, <^^/ f s> ^ y-,^ /^' ^..^ ^ ^ '^^' Ar^ u HIGH COURT OF CHHATTI8GARH AT BILASPUR Civil Revision No. 33 of 2006 Maaoj Kumar Mangw^aai -Vs- Jamuna Das Sukhwaai & others OKDBR Postfor 05.09.2006 Sd/- Sunil Kumar Sinha Judge fi^ HIGH COURT OP CHHATTI8GAKH AT BILA8PUR Civil Revlslon No. 35 of 2006 Manoj Kuniar Mangwaai -Vs- Jamuna Das Sukhwani & ofhers AoDearance: Shri Manoj Paranjpe aad Shri Vaibhav Govardhan, counsel for fhe applicaat. Dr. ShaUesh Ahuja, counsel for respondent No. 1. None for ofher respondents fhough ser^ed. ORDBR (OS-09-2006) 8UNIL KUMAR SINHA. J. (1) The appUcant caUs m question fhe legaUty of fhe order dated 28.2.2006 passed by the Additional District Judge, Bemetara (CG) ia an Election Petition, registered as M.J.C. No. 3/2005, filed under Section 20 of the C.G. Murdcipallties Act^ 1961 (hereiaafter referred to as fhe Act 1961). (2) The brief facts are fhat fhe appUcaat and respondent Nos. 1 to 7 were fhe candidates, who contested fhe election of Councilor J&om Wanl No, 3 of Municipal Council, Bemetara, District- Durg (C.G.) which took place on 14.12.2004. The countuig was done on 19.12.2004. The results were declared on 26.12.2004 and in fhe said election, fhe applicant was declared to be tihe wiamng caadidate haviag secured highest nzunber of 172 votes. Respondent No, 1 securcd 170 votes and respondeat Nos. 2, 3, 4, 5, 6 & 7 securcd 80, 2, 12, 0, 1 & 61 votes respectively. The .\; election petition was filed raamly on the ground that the appUcaiit, begot a child after 26th Januaxy, 2001 which increases fhe number ofhis children to morc thaa two, and m fhis mamier, he was disquaUfied to fight election as an effect of provisions of Section 38 (1) (ee) offhe said Act, 1961. Itwas contended that he furaished a false affidavit ia fhis rcgaid beforc the conceraed authority aad due to this statutory disquaUfication, his electioifc should be declared invaMd. Respondent No.l also clauned that siace he had secured fhe next highest number ofvotes, he should be declared as elected ia place ofthe applicaiit Itwas spect&caUy pleaded vide Para-7 (c) of fhe petition fhat the 4th issue of fhe applicant namely Chirag bora on 31.1.2001 which disquali&es him for l^hting fhe election under fhe aforcsaid provisions. (3) The appUcant filed his rcply denyiag fhe contentions of rcspondent No. 1. It wasveiy specifically pleaded by him fhat fhe birtli ofhis child namely Chirag had taken place on 3.1.2001 i.e. prior to 26.1.2001, thereforc, the question ofhe beiag disqualified for fhe said election does not arise. The other respondents, namely respondent Nos. 2 to 7 hercia, remained ex-parte. (4) The court below aUowed fhe election petition actd set aside fhe election ofthe appUcaat holding that under section^8(l)(ee) offhe said Act 1961, fhe appUcant was disquali&ed to contest fhe election of Miinicipal CouncUor on the ground that the birth of his 4th chUd namely Chirag took place on 31.1.2001 ie., after 26.1.2001. (5) Leanied counsel for the AppUcaat argued that fhe fiadmg ia relation to date of buth of the 4th child of the appUcaat is ^- II iu perverse on the face of evidence on record and the court below erred ia law ia holdiag fhat fhe birth of fhe said child took place on 31.1.2001, whereas fhe said chHd was bom on 03. l.2001. (6) Per contra, leamed counsel for fhe respondent no. 1 argued fhat fhe finding in fhis regard are neither perverse nor contrary to fhe evidence on record and fhe saiae beiag a findiag of fact, caaiiot be mterfered ia revisional junsdiction under Section 26 (2) of the Act which is almost sioular to fhat provided u/s 115 of the Code of Civfl Prcx^edure. Refemng to the provisions of section 26(2), he fiirfher argued that fhe grounds avaUable to flie applicaat in a revision filed agamst the decision on aa election petition are Umited to fhose particiilarly defined under the aforesaid section aad the revision on fhe question of fact would not be mamtamable. (7) I have heard learaied coiiasel for the parties at lengfh and have also gone fhrough fhe rccords ofthe election petition. (8) About fhe scope of revisional junsdiction, leamed counsel for the appUcaoit rclied on fhe judgment rendered ia the matter of MasM. Kacha ranfc. Nahan -V&- Tuffail MohtimmcA AIR 1991 SC 4SS. It has been held by that Apex Court in fhe said judgment that it is well setfled position m law that under S, 115 of the Code of Civil Procedure fhe High Court cannot reappreciate the evidence and caanot set aside the concurrent findiags of the Courts below by takiag a dtfiferent view of the evidence. The High Court is einpowered only to iaterfere with fhe findiags of fact if the findmgs are pewerse or there has been a non-appreciation or non-consideration of fhe material evidence on record by fhe \ Coiuts below. Simiply because aaofher view of fhe evidence inay be taken is no ground by fhe High Court to interfere in its revisional jiirisdictioa. He also referred to the decision rendered m fhe matter of Kalpcstaru Vidya Sajmasthe (R) and ancther - ys.- S.B. Guistfa <md (uurtAcr* f200SI 7 SCC 5^4 in which the Apex Coiirt agaia ruled out that fhe High Court ia its revisional jurisdiction under Section 115 canuot interferc with fhe findings offact rccorded by the courts below and reappreciate fhe evidence aad iaterferc with the JSiidiags unless it is found that the finduigs recorded by the lower coiut were pewerse or fhat fhere had been non-appUcation of mind. (9| There is no doubt ia fhe miad of this Court that fhe rcvisional junsdiction vested with this Court, particularly u/s 26(2) offhe said Act of 1961 is lixnited to fhe two grounds rcferred to ia this sub-section. These two grounds are fhat ftie decision is cbntrary to law aad fhat fhe Judge has exercised jurisdiction not vested ia him by law or has faUed to exercise junsdiction vested ia him by law. (10) The phraseology ^contraiy to laww means violating or not coafomiing to fhe provisions of law. In fhe context of second appeal u/s 100 C.P.C., fhe circumstances fhat a fhiding oflower appeltate Court is based mainly upon evidence which is expMcitiy referred to aad avowedty reproduced in ffae judgnient, but is not to be found aiiywhere ia. fhe record, vitiates the decision and rendei^ it ^contrary to law^ wifhia fhe iiieaaiag of section 100 CPC. fFlease see the AdvanceA Lesw Lexicon Im Shrl P, RanwnathaAtyctr. 3rd Editton 2005. Pa. 1034). ———'^-""\ '< (11) Therefore, it is clear that fhough the High Court caanot reapprcciate fhe evidence and cannot set aside fhe findiag of a fact rccorded by fhe court below by takiag a different view of fhe evidence, but it is always empowercd to iaterfere with fhe findmgs when they are perverse or when fhere appears to be a non- application of miad which ultmiately would render the judgnient of fhe court below "contraiy to tiie laww and would be revisable u/s 26(2)(a) ofthe said Act of 1961. (12) Now it has to be seen as to whefher the fiudiag iu relation to date of birth of fhe 4th issue of the appUcaat, as rccorded by fhe court below, is perverse or fhere had been a non-appUcation of inio.d ? To prove the factum of date of birth, non appUcant no.l exaaiiaed himselfas P.W.2 aad he also exaaiiaed two ofher witaesses namely Dr.Naresh Tiwari (P.W.l) aad Pt. Ramesh Chaad Sharma (P.W.3). The non-appUcant deposed about fhe date ofbirth ofthe 4th chUd ofthe applicant to be 31.1.2001. He also produced the gist of register of administration of PoUo Drops to fhe childre-n ia which, in fhe age. columii, fhe date of birtfa 6f fhe child naiaely Chirag, s/o Maaoj Maagwani has been mentioned as 31.1.2001 (Ex.D.l(c). The documents pertaiamg to obtainmg fhe certified copy ofthe said record were also produced. P.W,1 is fhe Doctor who had suppMed fhe copy offhe gist ofthe register. P.W.3 is fhe priestwho says fhat he has prepared Janma Kundcdi of fhe son of Manoj MangwanL He fiirther states fhat when any person visifs to his place for preparation of Jamna Kundali, he notes the date aad time of tihe birth of child or fhe person ofwhoan the KundaU is to be prepared ia Panchang and on ^ • \. fhe basis of fhe given date and time to him, he used to prepare fhe Kundali He has also produced the copy of relevant page no.33 ofthe Panchang ia which he had made fhe entry ond fhe date which comes as Magh Sudfu 6 Wednesday, night 9.25 and tihLe date recorded as per EngUsh Calendar is 31.1.2001, This was the evidence adduced by respondent no. 1 which was considered by fhe lower Court vide paras 7 to 10. (13) The applicaat exammed himself as D.W.2. He stated fhat the birth of his chUd took place on 03.1.2001. He had filed the copy of relevaat pages of Badi (fhe details about fhe btrfh of fhe pereons ia his fainify, recorded accordiag to the Hmdu ritis alongwith Tfuthi etc. showing Janmank of fhe child boni). The copy is proved on rccord as Ex,D.l(c). Along-wifh fhis, he also produced the birth certificate issued on 16,2.2005 by the Registrar of Birfhs aad deafhs. A copy of this documient is ffled as Ex.D.2(c). Apart fn>m fhis, a nurse namety Ku. Rekha Kavilash was also examia^ed as D.W. 1 who stated that she conducted the deliveiy of child of fhe applicaiit which took place on 3rd of Jan. 2001. The court below disbeUeved fhe Badi and fhe oral evidence of fhe witnesses of tihe applicaat on the ground fhat ffaiere were inaiiipulations io. the said Badi It coiaes ia para 11 of fhe judgment that at B to B place ia fhe Badi, whitener (Eraser fluid) was used. It appears fhat what was wntten origmally has been erased, The said Bculi aad fhe supportiag oral evidence of the applicant as weU as his other witnesses like nurse etc., have been disbeUeved because accordiag to fhe appUcacit^ the date of birth was 03.1.2001 and fhe Badi Ex.D.l shows fhat on said date the v Hiadi Month and day are faUiag as Magh, Sukla Paksh, Din Budhwar. But accordiag to fhe Hiadi Calendar aad Pandkang, 011 3.1.2001, the corresponding Hiadi Monfh and day faU as Paush Sudhi <8f Din Budhwar. There is also cuttiag m fhe writing where fhe date according to fhe EngUsh Caleadar is inentioned. If the com.plete contents of the Bcuii are read as it is ia reference to Hiadi Monfh aad Sudhi etc. except fhe date accorduig to fhe EngUsh calendar which is nientioned as 03.1.2001, by replaciag it as 31.1.2001, fhis Badiwovld be correct accordiag to fhe date aad timie. The court below took fhis view fhat the date in the Badi mentioned as 03,1.2001 is not corrcct aztd fhe Bcbdi which has been filed is ia fact, the BcuKofo. child who bom on 31.1.2001. In this context, fhe certificate issued by the Registrar, Btrtihis aiid Deafh was also not beUeved aad ultimately it was held fhat fhe birth ofthe 4th child ofthe appUcaat took place on 31.1*2001 ond fhe appUcant was disqualified to contest the elections under fhe provisions ofsection 38(l)(ee) offhe said Act1961. (14) About the birth certificate, learaed counsel for tibie applfcaat argued fhat the entiy of fhe date of birth in the register of births aad deaths recorded by an official ia fhe performance of his duties cannot be doubted. He referred to the decision of fhe Apex Court rendercd ia fhe matter of Santenu Mitra -vs- Steste of West Benffed, AIR 1999 S.C. 1S87. In this case, while dealing with a matter under JuvenUe Justice Act 1986, the Apex Court said fhat once the entry was recorded by the official ia performance of his duties, it caanot be doubted on fhe nierc ax^ument fhat it was not contemporaneous with fhe date of fhe suggested date of birfh of fhe appellaat. In fhis case, an enquiry u/s 8 ofthe said Act was conducted aad ia the said enquiry, fhe entries of fhe birfh and death register made between 14,8.1978 and 8.11.1978 about the birth ofthe juvenUe on 19.11.1972 was disbeUeved. The Apex court while sayiag about tiie impugned order of fhe said case observed tihat the entry should not be disbeUeved because it cannot be forgotten that tfae occiirrcnce took place nxuch later, say about 10 years, of fhe date of entry and it cc^ild not have been expected on the date when fhe entiy was made fhat fhe appeUaiit would claua benefit fhereof on fhe commission of the same. The Apex Court also observed that fhis entry was not alone but added fhercto was the LIC PoUcy aiid the Matriculation certificate likewise nientioiung the date of birth of fhe appeUant beiag 19.11.1972. In the present case, the entiy about fhe date ofbirth was niade under sub-sectiou (3) ofsection 13 of Registration ofBirths aad Deafhs Act 1969. The contents of fhe certificate would show fhot this entry of date of birth as 03.1.2001 was made on 16.5.2005, fhat icieans almost after 4 years and 5 xaonfhs of the said date fhat too wifh the assistance of fhe conceraed Magistrate as fhe birth mipugned could not be registered withia one year of its occurrence, It is iaiportaat to xnention this fact here fhat fhis election petition was filed on 25.1.2005 aad fhe appUcaat has caused his appearaace on 03.3.2005 and when he rcceived kaowledge about the grounds raised ia the election petition, fhen only, fhis entry was made which was much after filmg of fhe petition. In fhe present situation, fhe benefit of fhe said judgment rendered by the Apex Court iii the prevafctlag facts aad circuxnstances of fhat case, in which fhe entry fhough was made at a belated stage but was long earlier to fhe date of occurrence, cannot be given to titie appUcant and the present case is distmguishable on fhis poiat (15) Leamed counsel next relied on a decision reported ia ASR 19S8 S.C. 143 - Sidhewmitr Gemffltlu -^s- Stdte of West Bengal In fhe said case, while dealiag wifh a crimmal matter regardmg conviction u/s 376 ofI.P.C., fhe Apex Court said fhat the only conclusive piece ofevidence ofgirFs age may be the birth certificate. There is no doubt fhat the birth certificate inay be fhe conclusive proofofage, but fhe dispute raised ia fhis case is fhat whefher fhe certificate which appears to be purposely made by makiag a disputed entry regardiag date of btrth at a very belated stage at fhe instaace of the Magistrate iinder special provisions for delayed registration for defenduig a case should have been reUed on or not ? Ifthe cerdficate, ia fhe facts and circumstaiices of this case, appears to be begotten and which is also contradictory to the Badi aad Janmank filed by the appUcaat hunself, was not relied by the court on fhe face of fhose two docunients, fhen tihie view takeu by the Court disbeUevmg fhe certificate appears to be correct and fhe benefit of observatlons made by the Apex Court m fhe said matter, which was made for a cases where the entry is made in tihe normal course, cannot be given to fhe appUcaat. (16) It is oit accepted principle fhat aa entry ia the Register of Births is not conclusive evidence offhe disputed date ofbirth. So also is an entory made pui^suaiit to fhe direction of the Magistrate, under section ^13(3) of Registration of Births and deaths Act, 10 '^ 1969. The poUcy of law embodied ia section 13 is to avoid raanipiilation ia the entries relatuig to fhie date of births aad deafhs. This section is just a constraiat on fhe Registrar. It is not a provision whereby an aggrieved party could get aa adjudication on his disputed date of birth. The oxder of fhe Magistorate biads onfy the Registrar and not others. fPleeise see AXR 1976 Kametlxtkfu 231 IH. Subba R€W -7s.- Tfee Life Insuremce Conwratton ofJndte cind <m®ther^. (17) In fhe case on haad when the dispute arose rcgardiEig date ofbirth, the appUcant took fhe assistaace ofthe Magistrate u/s 13(3) of the Registration of Births and Deaths Act, 1969 and pursuaat to the directions of fhe Magistrate, tfae entry was made which clearly appears to be done for fhe purpose of creatmg an evidence during fhe pendency of fhe dispute aad fhe court below has ri^hfly disbelieved the entory. (18) Learaed counsel for fhe appUcaat also referred to fhe judgments of fhe Apex Court ia AER 1981 SC 361 (Barpal Sinah emd another -Vs.' Stdte of Himcichal Pradesh) aiid AXR 1982 SC 10S7 {Unwsh ChaMdra -Vs.- State of RaSetsthetni, m rcgard to admissibiUty ofthe entdes ia fhe PubUc docuiaents u/s 35 of fhe Evidence Act There is no dispiite about the legal prepositions laid down in above judgments. In case on hand tihie dispute relates to corrcctaess of fhe entiy in fhe certificate aad genuineness offhe same to said efifect, which fhe Court below has dealt wifh as above aad has disbetleved fhe entry. (19) Lastiy, leanied counsel for respondent No.l claimed tliat when fhe applicartt was declared disquaUfied aud this respondent '] 11 had secured second highest nuraber of votes, he should have been declared elected by fhe Court below aiid such a declaration should be given ia fhis petition. The records of fhe case would show that for such a relief, M.(C.)P. No.742/2006 has also been filed by rcspondeat No. 1 during fhe pendency ofthis petition. (20) In tlie opiadon of this Court, such a declaratlon carmot be raade ia fhis case in view of fhe two decisions of the Apex Court rcndered in the matters of Vishwemath9.Reddsi -Vs- Konafwa Kudrewoa Nadaouda. AER 1969 SC 604 and GddafeA Tashwetntrfto Kemkeirrew -Vs.' ^*V* aUeis Balasctheb Vikhe Patil and others^ (1994f 1 SCC 682. The Apex Court observed m fhe matter of Vishwemjathoys^ Kanappa (Supre^ as follows:- <eWe are a'gaiEL uuable to see aay logic ia the assuniption that votes cast in favour of a person who is regarded by fhe Returuig Ofi5cer as validly noniinated, but who is ia truth disquaUfied, could stiU be treated as valid votes, for fhe purpose of determiniag whetfaer a fresh election shoiild be held. When fhere are only two contesting caadidates, aad^ one of fhem is under a statutory disqualiGcation, votes cast in favour of fhe disquali&ed caadidate niay be rcgarded as thrown away, irrespective ofwhether fhe voters who voted for him werc aware of the disquaJification. This is not to say fhat where fherc are more fhaa two caadidates in the field for a siagle seat, aad one aloae is disqiiaUfied, on proofofdisquatification aU the votes cast in. his favour will be discarded aad fhe cao^didate securing fhe next highest nuinber of votes wiU be declared elected. In such a case, question of notice to the voters niay assunie 1 12 significance, for the voters may not, ifaware offhe disquaUfication have voted for disquaUfied caadidate." (21) The aforesaid observations were Q%QSSI quoted by fhe Apex Court, with eniphasis suppUed, ia fhe miatter of Gcutefch Tetshwcmtrew Kankesrrew (Supreif. The Apex Court clearly laid down that where fhere are only two contesting caadidates and one of tiiem is disqualified, in such situation, the votes cast ia favour of the disquali&ed candidate may be rcgarded as fhrown away, irrcspective of whether fhe voters who voted for him. were aware of fhe disquaUfication. The Supreine Court observed fhat where there are more fhan two caiididates ia fhe field for a siagle seat and one alone is disquallfied, then question of notice to fhe voters inay assuiae signifiicance, for fhe voters may not, ifawair of the disqualification have voted for the disquali&ed candidate. The Supreme Court clearly observed fhat where there are raore fhan two caiididates aad one of £hemwas disqualified, fhen m siich a case fhe election can be set aside, but a declaration caanot be granted ia favour of the person who received next highest votes. (22) In this case, admittedly, fhere were niore fhaa two contestmg caadidates azid fhe reniainiag caadidates have also poUed reasonable number ofvotes as referred to ia Para-2 ofthis order, and in the said situation, fhe Court below has rightly not declared respondent No.l as awinniag caadidate. There is no force ia fhe point raised by learaed counsel for respondent No. 1 aad same is turaied down. 13 Rao/v (23) For fhe foregoiag reasons, fhis rcvision as well as M.(C.)P. No. 742/2006 bofh stand dismissed. There shall be no order as to costs. Sd/- ; SunilKumar Sinha Judge