( 1 ) wp2583.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2583 OF 2011 WITH CIVIL APPLICATION ST. NO. 19531 OF 2011 Hanumant s/o. Bharjerao Korde .. Petitioner Age. 40 years, Occ. Agri., R/o. Grampanchayat Gadhe Jalgaon, Tq. & Dist. Aurangabad. Versus 1. Additional Commissioner, .. Respondents Aurangabad Division, Aurangabad. 2. Additional Collector, Aurangabad. 3. Shankar s/o. Eknathrao Thombre, Age. 33 years, Occ. Agri., R/o. Grampanchayat Gadhe Jalgaon, Tq. & Dist. Aurangabad. 4. The Village Panchayat, Gadhe Jalgaon, Tq. & Dist.Aurangabad, through its Village Development Officer. Mr. M.K. Deshpande, Advocate for the petitioner. Mrs. R.K. Ladda, A.G.P. for respondent Nos. 1 & 2. Mr. A.S. Barlota, Advocate for respondent No.3. Mr. K.F. Shingare, Advocate for respondent No.4. CORAM : A.V. NIRGUDE, J. DATED : 04.08.2011 ( 2 ) wp2583.11 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith and with consent of learned Counsels appearing for the parties the petition is heard finally at the stage of admission. 2. This writ petition is filed under Articles 226 and 227 of the Constitution of India, in the matter of Section 14 (j-1) and Section 16 of the Bombay Village Panchayat Act, 1958, challenging the judgment and order dated 19th March, 2011, passed by the Additional Commissioner, Aurangabad Division, Aurangabad, in File No. 83 of 1910. 3. Brief facts leading to this litigation in short can be narrated as under :- 4. In August, 2010 General Elections of Village Panchayat, Gadhe Jalgaon was declared and the petitioner and respondent No.3 were elected as members. In September, 2010, the petitioner was elected as Sarpanch. Soon thereafter respondent No.3 filed an application before respondent No.2- Additional Collector, Aurrangabad, alleging that the petitioner had incurred disqualification, because his wife has given birth to third child on 2nd December, 2002, which was beyond cut-off date of 12th September, 2001. In the proceedings, the petitioner came up with a case that the third child was born was 4th June, 2001 i.e. few month prior ( 3 ) wp2583.11 to the cut-off date. It is his case that his wife Alka delivered third child at village Khalapur, Tal. Ghansawangi, Dist. Jalna. Village Gadhe Jalgaon is in Taluka and District Aurangabad. 5. So, the question of fact before the authority below was what was date of birth of third child of the petitioner. Learned Additional Commissioner accepted the case of respondent No.3 that the petitioner’s wife Alka gave birth to third child on 2nd December, 2002, at village Gadhe Jalgaon. The basis of this information is mainly a report in writing made by a Nurse attending birth of the child, on the very day to the Registrar of Births, who in this case was Gramsevak of Village Panchayat, Gadhe Jalgaon. The second piece of evidence is Birth Certificate issued by Gramsevak of village Gadhe Jalgaon. Both these documents suggest that the petitioner’s wife Alka gave birth to third child on 2nd December, 2002 at village Gadhe Jalgaon. 6. On the other hand, the petitioner placed reliance on a register in which the entries of birth were taken at village Khalapuri, Tal. Ghansawangi, Dist. Jalna. This is a register maintained by Anganwadisevika of that village. This is the only contemporaneous document supporting the petitioner’s case. Learned Additional Commissioner accepting the evidence coming from village Gadhe Jalgaon and declared the petitioner disqualified. The question is - whether there is any illegality in appreciating the evidence before the ( 4 ) wp2583.11 authority? The answer is in NEGATIVE. 7. Section 8 and 10 of the Registration of Birth’s and Deaths Act, 1969, read as under :- “8. Persons required to register births and deaths.-(1) It shall be the duty of the persons specified below to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of section 16, -- (a) in respect of births and deaths in a house, whether residential or non- residential, not being any place referred to in clause (b) to (e), the head of the house or, in case more than one household live in the house, the head of the household, the head being the person, who is so recognized by the house or the household, and if he is not present in the house at any time during the period within which the birth or death has to be reported, the nearest relative of the head present in the house, and in the absence of any such person, the oldest adult male person present therein during the said period; (b) in respect of births and deaths in a hospital, health centre, maternity or nursing home or other like institution, the medical officer in charge or any person authorised by him in this behalf ; (c) in respect of births and deaths in a jail, the jailer in charge; (d) in respect of births and deaths in a choultry, chattram, hostel, dharmasala, boarding-house, lodging- house, tavern, barrack, toddy shop or place of public resort, the person in charge thereof ; (e) in respect of any new-born child or dead body found deserted in a public place, the headman or other corresponding officer of the village in the case of a village and the officer in charge of the local police station elsewhere: Provided that any person who finds such child or dead body, or in whose charge such child or dead body may be placed, shall notify such fact to the headman or officer aforesaid ; ( 5 ) wp2583.11 (f) in any other place, such person as may be prescribed. (2) Notwithstanding anything contained in sub-section (1), the State Government, having regard to the conditions obtaining in a registration division, may by order require that for such period as may be specified in the order, any person specified by the State Government by designation in this behalf, shall give or cause to be given information regarding births and deaths in a house referred to in clause (a) of sub-section (1) instead of the persons specified in that clause. ” “10. Duty of certain persons to notify or death births and deaths and to certify cause of death.- (1) It shall be the duty of --- (i) the midwife or any other medical or heath attendant at a birth or death, (ii) the keeper or the owner of a place set apart for the disposal of dead bodies or any person required by a local authority to be present at such place, or (iii) any other person whom the State Government may specify in this behalf by his designation, to notify every birth or death or both at which he or she attended or was present, or was present, or which occurred in such areas as may be prescribed, to the Registrar within such time and in such manner as may be prescribed. (2) In any area, the State Government, having regard to the facilities available therein in this behalf, may require that a certificate as to the cause of death shall be obtained by the Registrar from such person and in such form as may be prescribed. (3) Where the State Government has required under sub-section (2) that a certificate as to the cause of death shall be obtained, in the event of the death of any person who, during his last illness, was attended by a medical practitioner, the medical practitioner shall, after the death of that person, forthwith, issue without charging any fee, to the person required under this Act to give information concerning the death, a certificate in the prescribed form stating to the best of his knowledge and belief the cause of death ; and the certificate shall be received and delivered by such person to the Registrar at the time of giving information concerning the death as required by this Act.” ( 6 ) wp2583.11 8. As per Section 10 of the Act, it is duty of midwife or any other medical attendant at a birth to give information regarding birth to the Registrar of Births and Deaths. In this certain Nurse of village Gadhe Jalgaon had apparently given this information in writing in the prescribed form to Gramsevak and copy of this form is annexed to the petition at page No.91. Although name of the Nurse is not mentioned in the prescribed form but her signature appears very clearly on it. Besides the form is further filled up by the Gramsevak/Registrar promptly on the same day and he apparently and duly signed it. The authenticity of this document cannot be doubted. The learned advocate appearing for the petitioner tried to suggest that the information given in this form cannot be said to be authentic and lawful because it was not given by the "head of the family". He said that as per Section 8 quoted above if the birth takes place at home, the head of the household should give such information to the Registrar of Births. No doubt, this has not been done here in this case, but I think equally responsible and statutorily liable person has given the relevant information to the Registrar. 9. The learned advocate for the petitioner also pointed out that in similar situation the petitioner’s wife Alka also faced an enquiry of disqualification on the very same cause of action. At that time she was sought to be disqualified as member of Village Panchayat because she had given birth to third child on 2nd December, 2002. He said ( 7 ) wp2583.11 that at that time she was held not disqualified and so in this case too the petitioner should also be not disqualified. I am afraid, the finding recorded in earlier enquiry cannot be used as res-judicata in this case because a fresh enquiry was conducted and whereas the petitioner is a different person than his wife. In view of this I find no substance in the petition. The petition stands dismissed. Rule discharged. 10. In view of disposal of the writ petition, the pending Civil Application does not survive and stands disposed of. 11. At the request of Mr. M.K. Deshpande, learned Counsel appearing for the petitioner, earlier protection shall continue for further four weeks from today. [A.V. NIRGUDE, J.] snk/2011/AUG11/wp2583.11ok