*1* wp.3040.11.934.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3040 OF 2011 Bhausaheb Sampat Kangane. ..Petitioner -Versus- State of Maharashtra and others. ..Respondents .......... Mr.P.L.Bhujbal, for the Petitioner. Mr.K.K.Jadhav with Mr.J.K.Jadhav, for the Respondent Nos.4 and 5. Ms.Aparna D. Vhatkar, AGP, for the Respondent Nos.1 and 2. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 27th July, 2011. P.C.: 1 Heard both sides. Perused the order passed by the Collector and the Commissioner disqualifying the Petitioner under Section 14(1) (j-1) of the Bombay Village Panchayats Act, 1958. The Petitioner was a member of the Gram Panchayat, Gondegaon, Taluka : Niphad, District : Nashik. He has been held to be disqualified as he has more than two children. The argument is that the case falls under the second proviso below clause (j-3) of sub-section (1) of section 14 of the Bombay Village Panchayats Act, 1958 and therefore, the Petitioner cannot be said to be disqualified. Section 14(1)(j-1) and the proviso thereto read thus:- “14(1) No person shall be a member of a Panchayat continue as such, who:- (j-1) has more than two children. (j-2) ..... (j-3) ..... Provided that, a person having more than two children on the date of commencement of the Bombay Village *2* wp.3040.11.934.sxw Panchayats and the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 1995 (hereinafter in this clause referred to as “the date of such commencement”), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase: Provided further that, a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause.” 2 A bare perusal of the same would indicate that a person having more than two children on the date of commencement of the Bombay Village Panchayats and Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 1995 shall not be disqualified under this section so long as the number of children he had on the date of such commencement does not increase further. The second proviso states that a child or more than one child born from a single delivery within the period of one year from the date of commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause. Clause (j-1) was inserted by the Maharashtra Act No.44/2000 w.e.f. 13.09.2000. Therefore, in terms of the second proviso, if a child is born within a period of one year from the date of commencement i.e. 13.09.2000, a member cannot be disqualified. 3 The controversy was not with regard to the birth of more than two children. It is only with regard to the third child as to whether, the same was born after the cut-off date or prior to the cut-off date namely 13.09.2000. In that regard, what has been stated is that the first child was born on 14.12.1997, the second child was born on 29.09.2000 and the third child was born on 21.09.2001. All three are female children. *3* wp.3040.11.934.sxw That is how the Collector’s order proceeds. In fact reading of the Collector’s order creates a confusion as to whether, the controversy is about number of children. According to him, there are in all four children whereas the allegation is that the third child was born after the cut-off date. The Gram Panchayat, Gondegaon has issued a certificate stating that the third child was not born. This certificate is dated 09.06.2010 and it states that the third child was not born after September, 2001. Therefore, this document cannot be of any assistance. All certificates that are stated to be issued after the controversy arose, are not of much assistance. Reliance is placed on the birth certificates dated 15.10.2010 issued by the Block Development Officer showing that the first child was a son who was born on 14.12.1997. The second child was a female, that was born on 24.09.1999 and the third child was also a female, born on 29.09.2000. In these circumstances, according to the Petitioner’s counsel, there is no question of any disqualification. He also placed reliance on the extract of register which, according to him, is maintained by the Gram Panchayat, Gondegaon. 4 In my view, the controversy has been considered in proper perspective by the Commissioner. He rightly proceeded on the basis that there is no controversy that the second child was born, that was even acceptable to the Petitioner. However, as far as the third child is concerned, the birth certificate shows the date of birth is 21.09.2001. The Gram Sevak was summoned by the Additional Collector and his statement has been recorded. He has stated that the certificate showing the birth of third child on 21.09.2001 is true and correct. The Block Development Officer, according to the Commissioner, has no authority to issue any birth certificate. The birth is not recorded in the Panchayat Samiti. However, this Block Development Officer was not called even by the Petitioner nor *4* wp.3040.11.934.sxw his statement has been recorded. Therefore, what the Commissioner has done is to verify from the original record. The Commissioner was of the opinion that the third child was born on 21.09.2001. Once the certificates issued by the Block Development Officer have been disbelieved, there was no controversy with regard thereto. As far as the third child is concerned, even though the certificate is issued by the Gram Sevak, Gondegaon, that signature, according to the Commissioner, differs from other birth certificates which have been signed by him. That is finding of fact recorded and therefore, the date inserted in the third certificate by the Gram Sevak, namely, 21.09.2000 has been disbelieved by the Commissioner. From reading of the order of the Commissioner, the conclusion drawn by him that with an intention to avoid disqualification, there has been manipulation in the record with connivance and concurrence of the authorities, is probable and possible in the given circumstances of the case. Once the Gram Sevak has been examined and the Collector has recorded his statement, so also, verified the contents of the statements from the original record, then, the conclusion drawn by both authorities that the third child was born after 13.09.2000 and therefore, the Petitioner is disqualified, requires no interference in writ jurisdiction. The concurrent finding of fact is based on material produced and is in consonance therewith and the findings cannot be termed as perverse and vitiated by an error apparent on the face of record. In the result, the Writ Petition fails and it is dismissed. No costs. (S.C. Dharmadhikari, J)