1 wp4029-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4029 OF 2010 Shankar Waman Shigwan .. Petitioner versus Kashinath Maruti Manjre & Ors .. Respondents Mr.Uday P. Warunjikar with Mr.Rahul More for the petitioner. Mr.Vivek Salunkhe for respondent No.1. Mr.R.M.Patne, A.G.P for respondent Nos.2 and 3. CORAM : S.C.DHARMADHIKARI, J. 28th JULY 2011. P.C.: . This matter was placed before me for considering the request of the petitioner to grant interim relief. At that stage, the parties were heard and with their consent, the petition is disposed off finally. 2 The writ petition is directed against the order of the Additional Commissioner, upholding and confirming that of the Collector, Raigad and disqualifying the petitioner. The disqualification is on the ground that the petitioner has more than two children. 2 wp4029-10.doc 3 The disqualification is alleged under section 14(1)(j-1) of the Bombay Village Panchayat Act, 1958. 4 The complaint that was made by the 1st respondent to the Collector seeking disqualification of the petitioner in exercise of the powers of the Collector under section 16 of the said Act, is on the basis that the elections to the group Gram Panchayat, Talegaon, Taluka Mangao, District Raigad were held on 21st December 2008. On 23rd December 2008, the results were declared and the petitioner was declared elected from Ward No.3. 5 However, the petitioner at the stage of filing of his nominations, suppressed from the Election Officer, the fact that he has more than two children. It was alleged that as on the cut-off date, viz., 13th September 2001, the petitioner had more than two children. He had two daughters, namely, Snehal and Sanika and a son called Swayam. The first daughter was born on 2nd November 2001, the second was born on 6th August 2003 and third son was born on 9th September 2005. The 1st respondent pointed out that the first daughter was born at Mumbai at Devnar, Govandi and, therefore, the Health Department of the Mumbai 3 wp4029-10.doc Municipal Corporation has issued the necessary certificate. As far as the other two children are concerned, it was alleged that the State of Maharashtra through its Health Department has appointed health workers. These health workers go to the respective villages and collect information with regard to the new born babies and children. This information collected is then inserted in a register. It is stated that village Repoli comes within the jurisdiction of the Primary Health Centre, Nizampur, Taluka Mangao, District Raigad. For this Health Centre, Smt.U.B.Kamble has been appointed as a health worker. She is in- charge of the sub centre of Palasgav Budruk. Village Repoli is within the control of the said sub centre. Therefore, this health worker has taken note of the birth of children in the family of the petitioner. Accordingly, when information was sought from the Primary Health Centre, they gave the necessary particulars and pointed out that the petitioner and his wife Shalini have three children. In these circumstances, by suppressing this fact the election was contested and, therefore, once the fact is discovered and is substantiated by the official record, then, the petitioner should be disqualified. 6 When a copy of this petition/ application was served on the 4 wp4029-10.doc petitioner, he filed a reply thereby contending that all allegations are false. He does not have more than two children. He points out that the first daughter Snehal @ Priyanka and son are born from the wedlock of the petitioner with wife Shalini. As far as daughter Sanika is concerned, she is not the child of the petitioner and his wife. Sanika is daughter of one Bhaskar Gurav and she was born on 6th September 2003 at Mumbai. That apart, by a Adoption Deed dated 24th November 2009, i.e after the elections were held and the results were declared, Sanika was given in adoption by her natural parents to the petitioner and his wife. Thus, Sanika is the adopted child. Reliance was placed on the Deed of Adoption and, therefore, it was submitted that the certificate given by the Nizampur Primary Health Centre is false and it has no evidentiary value. Therefore, this application be dismissed. 7 The petitioner also filed affidavits of his wife, one Renuka B. Gurav and Bhaskar Gurav claiming therein that they are natural parents of the said daughter Sanika. 8 The Collector before whom the application was placed, summoned the necessary records. He also allowed the health worker 5 wp4029-10.doc Smt.Kamble to be cross-examined by the petitioner. The statements of the said lady and the Gram Sevak were recorded. After scrutinising all this material and hearing parties, the Collector concluded that the three children are born from the wedlock of the petitioner with his wife Shalini. The name of his wife has been entered in the Integrated Child Development Scheme, Raigad Anganwadi, Repoli. He also pointed out that the Adoption Deed is a subsequent document and there is a discrepancy with regard to the date of birth of Sanika which has not been explained by the petitioner. Therefore, disbelieving the petitioner’s version, the Collector disqualified him by his order dated 5th March 2010. 9 The petitioner preferred an appeal being Appeal No.135 of 2010 to the State Government in terms of section 16(2) of the Act, which appeal was placed before the Additional Commissioner, Konkan Division. The Additional Commissioner heard both sides and by his order dated 27th April 2010 confirmed the order of the Collector. Thus, the petitioner’s appeal was dismissed. The Additional Commissioner has also referred to the relevant documents and the statements recorded and concluded that the petitioner’s stands disqualified for 6 wp4029-10.doc having more than two children. 10 These concurrent orders are challenged in this writ petition under Article 226 and 227 of the Constitution of India. 11 Mr.Warunjikar, learned counsel appearing for the petitioner submitted that both orders are vitiated by an error apparent on the face of the record and perversity. He submits that the Collector and the Commissioner have no power or authority to go behind the birth certificate which has been issued by the Mumbai Municipal Corporation. The original birth certificate was produced which shows that the daughter Sanika was born on 6th September 2003 and her parents were Bhaskar and his wife Renuka. Once this document was produced, then, the record of the Primary Health Centre, Nizampur, village Repoli cannot be relied upon as that has no evidentiary value. The birth certificate will take precedence over all other documents as it was produced in original. Further, the Adoption Deed will also fortify the conclusion that the child Sanika was not that of the petitioner from his wedlock with his wife. If the said daughter is given in adoption to the petitioner, then, in terms of the statutory provisions, the petitioner is not 7 wp4029-10.doc disqualified. Mr.Warunjikar places reliance upon section 35 of the Indian Evidence Act, 1872. He also relies upon the statement of Smt.Kamble, health worker and submits that she has been extensively cross- examined and her version stands falsified. For these reasons, he submits that this petition be allowed. 12 On the other hand, Mr.Salunkhe appearing on behalf of the 1st respondent supported the concurrent orders. He submits that the documents which were before the authorities are not annexed to this petition. The affidavit in reply is filed in this writ petition annexing therewith the documents including the deposition of the said health worker. The health worker has consistent with the documents pointed out that the daughter Sanika was born on 6th August 2003. That was a second pregnancy of the wife of the petitioner. The wife of the petitioner during her second pregnancy came to the Primary Health Centre for necessary medication and vaccination. Further, her pregnancy was monitored by the health workers and the doctors. They were, therefore, in a position to certify and have indeed certified that she delivered the second child at the said Primary Health Centre. In these circumstances and when the daughter was admitted to the primary school and even at 8 wp4029-10.doc that time the information given is that her father is the petitioner and her date of birth is 6th August 2003, then, all the more the Adoption Deed and the birth certificate produced during the course of proceedings before the authority is an afterthought and that too knowing fully well that the petitioner is disqualified. It is submitted that the conduct of the petitioner is such that this Court should not assist him in its discretionary, equitable and extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Hence, the petition be dismissed. 13 Having heard the learned counsel appearing for the parties and perusing with their assistance the petition, the annexures thereto, the affidavit filed on record together with the compilation of documents, I am of the opinion that the petition deserves to be dismissed. The petitioner had contested the election, which was held in December 2008. At that time, he did not disclose that he had more than two children. Thereafter, when the disqualification proceedings commenced, he produced two documents, viz., a birth certificate of the daughter Sanika who is the second child of the petitioner. It is claimed that she was born on 6th September 2003 at Mumbai. A perusal of that birth certificate would indicate that the same is issued on 11th February 2009. It is stated 9 wp4029-10.doc therein that the date of registration is 10th December 2003. It is stated that the place of birth is Mumbai. The date of birth is stated to be 6th September 2003. The address of the parents at the time of birth of child is Mohini Chawl, Near Church, Room No.1, Khairani Road, Ghatkopar, Mumbai 400 084. This gives the date of birth of female child on 6th September 2003. Reliance is then placed upon the Adoption Deed dated 24th September 2009. Apart from the fact that the Adoption Deed has been doubted on the basis that if the petitioner has already a female child, he could not have adopted another female child, it is pertinent to note that in this Adoption Deed, it is stated that the said Bhaskar and Renuka had three daughters. The name of the daughter Sanika has been added by ink and that portion is signed. When the Adoption Deed mentions the date of 24th September 2009, it is stated that the said Sanika is five years and four months old. Pertinently, to this Adoption Deed, neither is the birth certificate annexed although it is issued on 11th February 2009, nor is any reference made therein to the date of birth and the place of birth of Sanika. It is very clear that the address of Bhaskar and Renuka in the Adoption Deed is mentioned as Devnar Smashan Bhumi Karmachari Niwas, Room No.3, Govandi, Mumbai 400 043. There is nothing on record to indicate that when the 10 wp4029-10.doc child was born on 6th September 2003 and the date of registration of the birth is 10th December 2003, how could the address of both parents be different, what is the reason therefor and when the controversy was whether Sanika was born on 6th August 2003, why the date 6th September 2003 is mentioned in this birth certificate. In these circumstances, if the Collector and the Additional Commissioner find that this document raises enough doubt and suspicion, then, they cannot be faulted for disbelieving the contents and disregarding the petitioner’s emphasis thereon. 14 As against this, the 1st respondent has invited attention of the authorities to the fact that the petitioner and his wife delivered a second child on 6th August 2003. While challenging the Adoption Deed and terming it as having been obtained only to avoid disqualification, what the respondent No.1 relied upon was, the letter/communication of the Health Officer, Primary Health Centre, Nizampur, Taluka Mangao, District Raigad. That application was made by the 1st respondent seeking information and the Health Officer certified under his signature and seal by his communication of 15th January 2009, that the petitioner is residing at Repoli. The particulars of the children and their birth are 11 wp4029-10.doc noted and maintained by the Health Officer, Smt.U.B.Kamble. The register R-15 and R-16 has been referred to. In this connection, the Health Officer says that Mauje Repoli comes under the sub-centre, Palasgao Budruk. The registration in this village has been done by Smt.Kamble. The Health Officer then forwarded the extract from the said registers which showed that the first child was born on 13th November 2001 and the second child Sanika was born on 6th August 2003. Not just this certificate, but, even the certificate from the Anganwadi Kendra, Repoli bearing No.37 is that, the said Sanika was admitted to Anganwadi Centre in 2006-2007 and she continued there till 2008-2009. She got the benefit of the Integrated Child Development Scheme. In the Anganwadi Register, the date of birth is mentioned as 6th August 2003. The daughter Sanika is not at Anganwadi Centre after June 2009. 15 Similarly, the said health worker on the request of the Medical Officer of the Primary Health Centre has forwarded the extracts of the register. These extracts show that at serial No.5, the name of Sanika has been entered and her date of birth is shown as 6th August 2003. To my mind, Mr.Salunkhe is right in contending that the Health Officers and 12 wp4029-10.doc health workers had no animosity and they would not fabricate the record only to disqualify the petitioner because at that time, there was no question of the petitioner contesting any election. This is a record for years 2006-2007 and even prior thereto. It has also been pointed out by Mr.Salunkhe and in my opinion, rightly, that statement of Smt.Kamble even after cross-examination and rather lengthy and extensive by the petitioner, deserves to be accepted. She has at more places than one stated that she knows the family. She states that the petitioner’s wife Shalini came for the Mother-Child Assistance Scheme at the Primary Health Centre. The said Smt.Kamble is serving as a health worker from 1988. She stated that for the mother the services were rendered and the register shows at Sr.No.18, the name of the petitioner’s wife Shailini. She had come for her second delivery and the date of registration is 3rd February 2003. The register shows what treatment was given and how the mother was assisted. The tablets that were prescribed are also mentioned. The date of delivery is mentioned as 6th August 2003. It is very clear that date of delivery is 6th August 2003 and the delivery is at Mumbai. It may be that in the Mataseva Nondani Register, the name of the petitioner’s wife is registered and is appearing, but, against that the number of delivery is written as third. However, this lady has very clearly 13 wp4029-10.doc stated that she knows that the first daughter Priyanka was born on 13th November 2001. She also gives the serial number of the second daughter Sanika and her date of birth is 6th August 2003. The said Sanika is given the 1st, 2nd and 3rd triple dose, so also booster dose at Primary Health Centre. Even in respect of the third child, there is an entry mentioned in the register. 16 Therefore, she may have been questioned, as has been urged by Mr.Warunjikar, as to why against her name at Mataseva Nondani Register, there is a whitener mark. There are specific questions put to the said health worker and her statement, should be read as a whole. If the said statement is read in its entirety, it is clear that it corroborates the entries in the relevant Registers. There is no reason, therefore, to discard the entires in the health registers. In rural areas, at the Primary Health Centre, the pregnant mothers and even the new born babies are assisted and as a part of the Central Government Schemes, so also health measures initiated by the State Government, necessary treatment is given to them. This treatment is under a Scheme which is both beneficial and for their welfare and Integrated Development of the Child. If somebody takes advantage of the Schemes of the Central and 14 wp4029-10.doc State Government which are manned by the officials who can be termed as government servants, then, their version of the relevant time cannot be discarded, merely because subsequently the petitioner finds it inconvenient. There was no reason for the health worker to give the birth details of the year 2003 only to disqualify the petitioner. That she has deposed at the instance of the 1st respondent, is not even a suggestion given to her. She has very fairly stated that the information about health is given on the basis of the statements of the parents. However, just because the third child was given some treatment at Mumbai or that the place of birth of the second child is at Mumbai, does not necessarily mean that the second child Sanika is not that of the petitioner and his wife Shalini. The place of birth is not relevant in this case. What is relevant and material, is the date of birth and the details about the parents and their residence. The petitioner and his wife have been through out residing at village Repoli. They never shifted from the village. They have no explanation for the fact as to why the child is given medical treatment at this Rural Health Centre, she is admitted at the village Anganwadi and why petitioners’ name appears as a father. They have contested the elections from the said village. If the election was contested from an area which comes within the control of the 15 wp4029-10.doc Palasgaon Budruk Primary Health Centre, then, the record maintained at the said Centre and the statements of the Officers manning the said Centre have been rightly preferred in comparison to the Adoption Deed. Thus, apart from the legal status of the said adoption, additionally, the version that it is an afterthought and to avoid the consequence of the legal provisions, is worthy of acceptance and has been rightly believed and accepted. 17 If the materials are perused carefully, the concurrent findings are in consonance therewith. In these circumstances, I do not find that this is a fit case for interference in writ jurisdiction. As has been rightly observed by a learned single Judge of this Court in the case of Deochand Shankar Bhajankar Vs. Divisional Commissioner, Nagpur and others reported in 2008 (1) Maharashtra Law Journal 567, that the craving and greed for political power and authority has increased to such an extent that persons like petitioner are doubting the paternity of their child. They have gone to the extent of disowning their children for the sake of power. This is not a matter, which only the social workers should be worried, but, all concerned should take this as a wake up call. It has considerably shaken the social fabric and totally vitiated the 16 wp4029-10.doc atmosphere in the rural areas where now precedence is given to seat and office of power, over the interest of the family. The family name and interests are completely sacrificed and in the process, in the matters like these, the future of the child is put at stake. The instances such as these, can be curbed by not just disqualifying the people like petitioner but penalising them as well. This is a fit case where criminal law should be set in motion against all those who have indulged in falsehood and deceit. It is alleged that the said Bhaskar being brother in law of the petitioner, he and his wife have gone to the extent of preparing a false birth certificate and a bogus Adoption Deed. The matter is best left at that and it is for the 1st respondent and all those concerned to initiate appropriate proceedings so that people like the petitioner do not get a further opportunity to represent the people and the constituency. As a result of their acts, the constituency as a whole suffers as a vacancy arises and an avoidable exercise of re-election has to be initiated. In the result, Rule is discharged. The petition is dismissed, but, without any orders as to costs. (S.C.DHARMADHIKARI, J)