(1) WP. 7117.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7117 OF 2009 Bhimsingh S/o Kishansingh Chavan/ Chauhan, Age : 38 years, Occu.: Agriculture, R/o. Village Laglood, Tq. Bhokar, Dist. Nanded .. PETITIONER VERSUS 1. Additional Divisional Commissioner, Aurangabad, Division Aurangabad 2. Additional Collector, Nanded Tq. and Dist. Nanded (Copy of Respondent no.1 and 2 to be served on Government Pleader's Office at Aurangabad) 3. Ganesh S/o Amrutrao Kadam, Age : Major, Occu.: Agriculture, R/o. Village Laglood, Tq. Bhokar, Dist. Nanded .. RESPONDENTS Mr. M.V. Ghatge, Advocate h/f. Mr. B.N. Gadegaonkar, Advocate for the Petitioner Mr. N.H. Borade, AGP for the respondent-State Mr. S.B. Ghatol Patil, Advocate for the respondent no.3 ... CORAM : V.R. KINGAONKAR, J. DATED : 28TH JULY, 2010 ORAL JUDGMENT:- 1. By this Petition, the petitioner is challenging the judgment and order rendered by (2) WP. 7117.2009 learned Divisional Commissioner in appellate jurisdiction in Appeal/CR-79/2006 arising out of judgment and order rendered by Additional Collector in the proceedings under section 16(2) of the Bombay Village Panchayats Act, 1958. 2. The petitioner was elected as Member of the Village Panchayat, Laglood (Tq. Bhokar) from ward no.3 which was a reserved constituency. There is no dispute about the fact that the petitioner is from OBC category. There is also no dispute about the fact that he has three children, first two children were allegedly born on 11.6.1992 and 4.11.1995. The dispute relates to birth date of his third child. The respondent no.3-Ganesh objected the continuation of the petitioner as elected Member of the Village Panchayat on the ground that the third child was born on 4.4.2002 as would be evident from the entries in the birth register which is maintained under a scheme called ",dkfRed cky fodkl ;kstuk". The respondent no.3 Ganesh alleged that the petitioner was disqualified in view of the amended provision of section 14(j-1) (3) WP. 7117.2009 of the Bombay Village Panchayats Act and as such he shall be disqualified from continuing to officiate as Member of the Village Panchayat. The learned Additional Collector, Nanded held that the petitioner was dis-qualified due to the birth of the third child after the cut off date i.e. 12.9.2001. The learned Divisional Commissioner confirmed the finding of the Collector while dismissing the appeal. 3. Heard learned counsel for the parties and learned AGP. 4. The short question involved in the Petition is as to whether, in fact, appropriate enquiry was made by the Collector or the learned Additional Divisional Commissioner in respect of the record pertaining to the birth of the third child of the petitioner. It appears that the respondent no.3 Ganesh placed on record extract of the register which was maintained by the Anganwadi Sevika. The Government resolution dated 12.12.2001 purports to show that the Anganwadi Sevika is not notified to (4) WP. 7117.2009 registrar of births. It is the duty of Gramsevak to record relevant entry in the birth register. The relevant Government resolution purports to show that Anganwadi Sevika is required to act only as "Notifier" in respect of the births which would occur in the area of the village. She has been assigned such work under the C.D.S. project. The extract which was sought to be relied on by the respondent no.3 Ganesh, does not show name of the Anganwadi Sevika and that the register ought to have been verified by the authority in order to find out whether the entry was recorded as per authentic information furnished by the Anganwadi Sevika. The entry at serial no.309 in the register (Ex. R-2) should have been properly verified by calling the concerned Anganwadi Sevika and the original record. It is true that enquiry is of summary nature but it has to be appropriately carried out by the concerned authority. The petitioner produced copy of the birth certificate issued under Rule 8 by the Gramsevak (Ex."A" to the Petition) in the proceedings of appeal before the learned Additional Divisional (5) WP. 7117.2009 Commissioner. It is important to notice that the learned Additional Divisional Commissioner has not decided anything about authenticity of the said certificate. The learned Additional Divisional Commissioner declined to read the said certificate in evidence for the reason that the petitioner had no proof that late fees was deposited when the entry was taken in the relevant record after period of about 4-1/2 years. 5. The learned counsel for the petitioner would submit that the petitioner was not called upon to show about the payment of late fees though it was immediately paid. He has placed on record copy of the receipt in respect of payment of Rs.5/- made on 27.1.2006. The impugned judgment does not show that any explanation was called from the petitioner about non-payment of the late fees. 6. All said and done, the appeal being continuation of the original proceedings, the learned Additional Divisional Commissioner could have (6) WP. 7117.2009 verified the record and should have decided the controversy as regards birth date of the third child born to the petitioner. The learned Additional Collector did not properly appreciate the fact that the Anganwadi Sevika is only a notifier and, therefore, such information was acceptable only on proper verification. It does not mean that the relevant entries in the birth register are worthless. The only requirement was therefore to call for the original register and verify the authenticity of such entry by recording statement of the concerned Anganwadi Sevika. No such summary enquiry was conducted by the learned Collector. In view of such deficiencies noticed, it is appropriate and necessary to remit the matter to the learned Additional Divisional Commissioner, Aurangabad, for holding summary enquiry and to decide the disputed questions of fact in respect of the birth date of the third child of the petitioner. The learned Additional Divisional Commissioner may verify the record and also may examine whether the petitioner has manipulated certain entries in the record or that the (7) WP. 7117.2009 birth date notified by the Anganwadi Sevika is genuine and correct. After such summary enquiry, finding shall be rendered by the learned Commissioner on the issue regarding the birth date of the third child born to the petitioner. It may be mentioned that now the term of the Village Panchayat is likely to be over and fresh elections are likely to be declared within a short span of one month. The learned Additional Divisional Commissioner shall, therefore, make serious endeavour to complete the enquiry within a period of two months. The Petition is partly allowed and the matter is accordingly remitted to the learned Additional Divisional Commissioner with direction to complete the summary enquiry, as far as possible, within a period of two months and in any case within not more than four months. The findings recorded by the Additional Divisional Commissioner on the date of birth may be considered for further disqualification of the petitioner, if it is rendered adverse to him, in the next ensuing election/s. If at all such finding is not rendered prior to declaration of results of next (8) WP. 7117.2009 election and the petitioner files his candidature then the respondent no.3 will be at liberty to raise same kind of objection by placing reliance on any evidence of authentic nature as may be permissible. In case the petitioner is elected in the next election and the objection of the respondent no.3 Ganesh is upheld by the Returning Officer or the competent authority, the final outcome of such enquiry by the Additional Divisional Commissioner will govern the question of disqualification and that such election of the petitioner will be subject to such finding of the Additional Divisional Commissioner. The Petition is accordingly disposed of. Rule made absolute in the above terms. 7. Parties may act on a copy of this judgment, duly authenticated by the Court Sheristedar. Sd/- [V.R. KINGAONKAR, J.] arp