: 1 : wp-4099-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4099 OF 2011 Sangita Shivaji Gurule ..Petitioner Vs. State of Maharashtra & Ors. ..Respondents Mr. Hiten S. Venegavkar for the Petitioner Mr. Sachin Kadam for Respondent No.5 Mr. R.M.Patne AGP for Respondent Nos.1 to 3 CORAM: S.C.DHARMADHIKARI, J. DATE: AUGUST 8, 2011. P.C.: 1 By this Writ Petition under Article 227 of the Constitution of India, the Petitioner prays that the order passed by the Additional Collector dated 15-2-2011 in dispute application No.53 of 2010 as confirmed in Grampanchayat Appeal No.25 of 2011, by the Upper Divisional Commissioner, Nashik Division on 25-5-2011, be set aside. 2 The Petitioner has been elected as a member of the Grampanchayat for Village Khopadi. The election was held in the year 2010 and the Petitioner’s tenure is of five years. The Petitioner along with 9 others were declared elected. It is alleged that Respondent No.5 is a political rival of the Petitioner and on account of rivalry he made an application raising dispute that the Petitioner stands disqualified because she suppressed the fact of having more than two children at the time of the elections. Therefore, she should be disqualified. : 2 : wp-4099-11.sxw 3 It was stated in the application that the nomination were filed on 11-6-2010. On the date of filing of nomination the Petitioner had more than two children. Her first son was born on 17-81997, her second son was born on 3-8-1999 and her third child is a daughter and she was born on 22-12-2001. Therefore, this fact was suppressed and the Petitioner’s nomination papers could not have been accepted. Respondent No.5 relied upon the certificate of the head mistress of the Zilla Parishad primary school, Khopadi Budruk, Taluka Sinnar, District Nashik, in support of her contention. She also relied upon certain information which she obtained under the Right to Information Act, 2005. This application was filed on 29-10-2010. 4 In reply to these allegations, the Petitioner contended that she has not suppressed any information pertaining to her family. She pointed out that the application is not bonafide. While it is true that she has more than two children and it is equally true that the name of the third child is Roshni, but she was not born after the cut off date but prior thereto. In other words, she was born on 22-4-2001. In these circumstances, the petitioner was not disqualified. The Petitioner relied upon the certificate given by the Grampanchayat evidencing the date of birth as 22-4-2001. 5 The Additional Collector and the Commissioner both were of the opinion that the third child was born on 22-12-2001 and not on 22-4-2001, as contended by the Petitioner. The authorities relied upon the Register : 3 : wp-4099-11.sxw R-15 which is known as Mata Seva Nond Vahi, in other words, this is a register which is maintained at the village level so as to give health services to the pregnant mothers. The relevant entry in the said register is that the Petitioner came for availing of such service. She was given the service and treatment. This was her third pregnancy. The expected date of pregnancy was sometime in December 2001- January 2002. She has been given tetanus and other doses periodically and finally she delivered a girl child on 22-12-2001. 6 The 2nd register is pertaining to Integrated Child Development Scheme (Rural Project) Sinnar. There also the details of the birth and death of children, are maintained. In that register at Sr. No.92 it is stated that the third child was born on 22-12-2001 and her name is Roshni. Her mother is the Petitioner. 7 Further, the authorities concluded that the certificate issued by the then Gramsevak cannot be believed because upon being summoned, he attended the hearing and made a statement that he had not granted any certificate nor made any endorsement recording the date of birth of third child as 22-4-2001. Therefore, believing the contents of the above mentioned Registers and the school records, that it was held that the Petitioner stands disqualified for having more than two children. It is this finding and conclusion which is challenged in this Writ Petition. 8 It is argued by Mr. Venegavkar appearing for the Petitioner that there : 4 : wp-4099-11.sxw is no dispute that the Petitioner has more than two children. There is also no dispute that the third child is a female child. However, the third child was born on 22-4-2001. In these circumstances, Section 14(J-1) of the Bombay Village Panchayat Act 1958, will not be applicable. According to the Learned Counsel, the birth certificate must take precedence over all other documents. The birth certificate, copy of which is at page 50 of the Petition paper book shows that the Petitioner became a mother of the third child on 22-4-2001. The register entry is of 26-4-2001. The certificate is issued on 15-6-2001. Mr. Venegavkar complains that this certificate cannot be brushed aside and some other material cannot be relied upon by the authorities, particularly because the statement of the earlier Gramsevak and the present Gramsevak were recorded after the matter was closed for Judgment by the Collector. In these circumstances, this is a fit case where the impugned order be set aside. The petitioner is ready and willing to appear before the authorities for fresh inquiry. 9 On the other hand, it is contended on behalf of the contesting Respondent No.5, that the Petitioner has throughout made a false statement. She has with a view to contest election suppressed the fact that the third child was born to her after the cut off date. She has also suppressed the fact that the third child was born on 22-12-2001. She has colluded with the authorities and particularly Gramsevak in preparing false record. Now, the Collector has taken a serious note of this and has : 5 : wp-4099-11.sxw directed that criminal proceeding be initiated against the Petitioner and the Gramsevak. However, the record indicates that the entries in the Mata Seva Nond Vahi and Integrated Child Development Scheme register have been supported by the certificate given by Head Mistress of the primary school. The Primary school has maintained a register in which, there is an entry made on 3-7-2007 that the child Roshni was brought for admission and her date of birth is 22-12-2001. All the details about the children and the parents which have been filled in by the school are duly counter signed by the Petitioner. Similarly, the certificate that has been issued by the Grampanchayat on 28-5-2007 on the basis of the register of birth and death records that, on 31-12-2001 the third child, namely female was born. The entry No.17 pertains to third child and her date of birth is 22-12-2001. 10 For all these reasons the finding of fact need not be disturbed in writ jurisdiction when they cannot be said to be perverse. 11 With the assistance of the Learned Counsel appearing for the parties, I have perused the Petition and all annexures thereto. Since there was a doubt about the date of birth, I have summoned the original record. 12 Mr. Patne, the Learned AGP appearing for Respondent Nos.1 to 3 has produced the original record. The Mata Seva Nond Vahi has been perused by me. There is no substance in the complaint of Shri Venegavkar that there are any over writing or corrections therein. If at all, there is any correction, it is in the serial number. The details of the Mata Seva Nond : 6 : wp-4099-11.sxw Vahi shows that the mother i.e. the Petitioner came to the center on 20-8-2001. She had completed 19 weeks of the pregnancy. She was aged 24 years and this is her third pregnancy. While it is true that it is erroneously mentioned that expected date of pregnancy is 4-4-2001. This is obviously erroneous because at the same time there is another date 11-1-2002. If the expected date of delivery is January 2002, then this date of 4-4-2001 was obviously erroneous. The Petitioner was given necessary treatment and she delivered the third child at her Residence on 22-12-2001. All these entries are duly certified. Further, the Integrated Child Development Scheme register also shows the date of birth as 22-12-2001. Thus, the stand of the authorities who are in charge implementing such schemes is that the third child was born after the cut of date i.e. 22-12-2001. These endorsements finds support in the information provided by the parents to the primary school. Even the primary school register bearing No.217 of 2007 states that on 3-7-2007, it was certified that the third child was brought to school for admission and her date of birth was given as 22-12-2001. This certificate bears the signature of the petitioner. Equally, the Grampanchayat has certified on the basis of the entries in the birth and death register that at Sr.No.17 there is an entry dated 31-12-2001 stating that the Petitioner and Mr. Shivaji Tukaram Gurule are the parents of the third child born on 22-12-2001. This is the certificate given by the Grampanchayat on 28-5-2007. : 7 : wp-4099-11.sxw 13 Therefore, even if one has to assume that the Gramsevaks were summoned by the Collector after the matter was closed by him for orders, yet, the Collector was justified in verifying the fact from these officials. It was merely to satisfy that the Gramsevak have made two entries and one of which is false, that these officials were summoned. When their statements were recorded and they have stated that these entries are not made by then Gramsevak, then, merely because such statements are recorded subsequently, would not be cause any prejudice to the Petitioner. In these circumstances, it is not possible to accede to the request of Mr. Venegavkar for remanding the matter. The certificate, copy which is at page 50 of paper book was not found to be reliable and genuine and for good reasons both the Collector as well as the Commissioner has relied upon the earlier certificate and the entries in the relevant registers, which have been maintained in the ordinary and usual course of duties by public officials. They are in charge of welfare schemes so that the rural health is looked after properly. Rural health Schemes that are implemented by the Government with the aid and assistance of such officials, so also the records maintained by them, definitely have evidentiary value and that is not disputed. It is only to show that the birth certificate will have precedence that all the records had to be summoned. However, the birth certificate relied upon and copy of which is at page 50 of the paper book, having not been proved as the concerned Gramsevak disowned making : 8 : wp-4099-11.sxw any such entries, then findings of fact do not require any interference in writ jurisdiction. The Collector was justified in directing the criminal prosecution against the public officials. Both the directions are issued with a view to curb an increasing tendency of people like the Petitioner to falsify the records so as to retain power. The craving for power has increased to such an extent that persons like the petitioner disown their family and children. It is unfortunate that when the child is disowned in such a manner for petty power politics that the parents forget that their girl child’s future becomes bleak and uncertain. It will be difficult for her to survive in today’s world if her paternity is doubted and that too by her own parents. Thus, she is a innocent victim in their power game. By directing criminal prosecution so also punishing the guilty officials, this tendency can be controlled. 14 In these circumstances, by directing that these actions be initiated expeditiously, this Petition is dismissed with costs quantified at Rs.5000/-. (S.C.DHARMADHIKARI, J.)