wp2398-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2398 OF 2011 Lalbihari B. Yadav .. Petitioner versus Pekhu Naresh Yadav & Ors .. Respondents Mr.L.M.Acharya with Mr.Ranveer Shekhawat for the petitioner. Mr.K.K.Malpathak for respondent No.1. Mr.S.M.Kamble for respondent No.2. CORAM : S.C.DHARMADHIKARI, J. 22nd JUNE 2011. P.C.: . The petitioner has impugned the judgment and order dated 25th February 2011 of the Civil Judge, Senior Division, Kalyan in Election Petition No.3 of 2007. 2 The petitioner was elected as a Municipal Corporator of the Ulhasnagar Municipal Corporation in the general elections held. He was elected from Ward No.41. The 1st respondent is the defeated candidate. 3 It is the case of the petitioner that the 1st respondent filed Election Petition bearing No.3 of 2007 challenging the wp2398-11.doc 2 election of the petitioner on the ground that he has suppressed a vital fact at the time of his nomination, namely, that he has more than two children. He submits that the petition was filed on the basis that there is cut-off date prescribed by law and the son who is the third son, namely, Sunil was allegedly born after that date. Therefore, the petitioner had incurred the disqualification and he should be declared to be disqualified as per the prayers of the Election Petition. 4 Mr.Acharya appearing in support of this petition, firstly, argued that the reliance placed by the trial Court on the three documents is misplaced. The trial Court has failed to appreciate that the three documents which were relied upon in support of the allegations in the Election Petition show the name of the third son Sunil in the Ekatmik Balvikas Hazeri (Integrated Child Development Programme Register of Attendance and Food Supply). The second one is the copy of the statement made by the Assistant Development Officer, Development Division, Ratanpura, Mau in the State of Uttar Pradesh and thirdly, alleged extract of the Family Register. In the submission of Mr.Acharya, wp2398-11.doc 3 none of these documents can be construed as public documents. Even otherwise, their contents are not proved. On the other hand, the petitioner examined his brother and stated that said Sunil is his son and not that of the petitioner. To support that statement, the extract from the register maintained by the Primary Health Centre was produced which shows that the wife of the petitioner underwent a family planning operation on 17th July 2001. In such circumstances, she could not have begotten a child on 1st January 2002. Further, the ration card was also produced which shows that the petitioner resides at Shashtri Nagar, Rambadan Chawl, Ulhasnagar 3 and he has been residing in the said structure alongwith his wife and two children, namely, his daughter Kiran and son Santosh. Mr.Acharya submits that these are equally public documents, but their contents are discarded only by observing that they seem to have been issued after the Election Petition was filed. Mr.Acharya submits that the trial Judge has, therefore, committed error apparent in not relying upon these documents and discarding them merely because they bear a subsequent date and that too after filing of the Election Petition. However, their contents cannot be disbelieved on this spacious wp2398-11.doc 4 plea. 5 It is not possible to accept these contentions of Mr.Acharya for more than one reason. When the Election Petition was filed, the 1st respondent came with the specific case that the third son Sunil is child of the petitioner and his wife. That child was born on 1st January 2002 in the State of Uttar Pradesh. He produced documents during the course of his deposition. Further, he also examined a witness to prove the contents of the said documents. That apart, when the Election Petition was served, in the written statement the stand that has now been taken was never taken and a plea that the said Sunil is not the son of the petitioner was never raised. It is only during the course of the trial that the petitioner obtained some documents from the school in Ulhasnagar and produced purportedly the ration card. He also examined his brother. The trial Court has taken an over all view of the matter. While disbelieving the petitioner, the trial Court has relied on the version of his brother. The petitioner’s brother in his examination-in-chief which was filed by way of affidavit stated that Master Sunil is his son and he was born on 15th August 2002. The wp2398-11.doc 5 birth was at home in Ulhasnagar. The birth certificate was sought to be produced. Further, the ration card was also sought to be produced by the said brother Babulal together with L.I.C policy. However, it is not without a coincidence that in para 7 he states that Master Sunil is his son and the original petitioner who is respondent No.1 in this writ petition has manipulated records from the office of Gram Panchayat or District Panchayat, Mau, Uttar Pradesh. The date of birth shown in the said certificate is 1st January 2002 which is false. The said certificate is procured for opposing the election and it is false. In para 8 he says that he is father and legal guardian of Master Sunil. At the same time, he refers to some Ekatmik Balvikas Hazeri, Uttar Pradesh. The election petitioner has never referred to any such extract. He had referred to an extract of the register maintained in the State of Uttar Pradesh. He has relied on the enquiry report of the Development Officer. Further, he had relied on certificate issued by the Zilla Parishad RajAdhikari, District Mau. 6 In the cross-examination of the brother of the petitioner he states that the petitioner is his brother. However, he is residing wp2398-11.doc 6 separately from his brother for last 15 to 20 years. He further states that after he came to know about filing of the Election Petition, he states that the said Master Sunil is his son and he is born in 2002. He relies on his own ration card but then immediately states in answer to another question that he has no evidence to show that in January 2011 the name of Master Sunil is entered in the ration card. He says that he has obtained the birth certificate of the son Sunil after the Election Petition was filed. He further states that it is true that he made applications for issuance of the documents which he relies on after the Election Petition. He admits that from 2003 to 2007, there was no life insurance policy of Master Sunil. 7 Therefore, I am of the opinion that the trial Court was in no error in discarding such a version of the petitioner. At the very first opportunity available, namely, at the stage of filing of the written statement, such a stand was not taken and this speaks volume of the petitioner’s conduct. He has gone ahead and raised a plea that the son Sunil was not his child during the course of trial and purported to state that the child is of his brother. wp2398-11.doc 7 However, the brother’s evidence seen as a whole, is not capable of being relied upon. In such circumstances, the finding of fact recorded by the trial Court cannot be said to be perverse or vitiated by any error apparent on the face of record. The Trial Judge has not committed any error by allowing the election petition and passing an order declaring that the petitioner is disqualified on account of the birth of the third son Sunil after the cut off date. In the light of this, there is no reason to interfere. The petition is dismissed but without any order as to costs. 8 At this stage, it is prayed that the ad-interim order be continued for a reasonable time so as to enable the petitioner to challenge the order in the appeal. This request is opposed by Mr.Malpathak appearing on behalf of respondent No.1, original election petitioner. Finding that the version of the petitioner before the trial Court was totally false and that he has been rightly disbelieved, I see no reason in extending the ad-interim order. Prayer in that behalf is refused. (S.C.DHARMADHIKARI, J)