- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6484/2009 Bhaurao s/o Patilba Auti, age 69 yrs., occu.agri., r/o Akalapur Tq.Sangamner Dist.Ahmednagar. ...Petitioner.. Versus 1] Arun s/o Tulshiram Wagh, age 43 yrs., occu.agri., r/o Yelkhop, Akalapur Tq.Sangamner Dist.Ahmednagar. 2] The Additional Collector, Ahmednagar. Dist.Ahmednagar. 3] The Additional Divisional Commissioner, Nashik Region, Nashik. 4] The State of Maharashtra, through its Secretary, Rural Development Department, Mantralaya, Mumbai. ...Respondents... ..... Shri A.N. Nagargoje, Advocate for petitioner. - 2 - Shri S.K. Shinde , Advocate for respondent no.1 Shri S.V. Kurundkar, AGP for respondent nos.2 to 4. ..... CORAM: V. R. KINGAONKAR, J. DATE: 12.07.2010 ORAL JUDGMENT: 1] Challenge in this petition is to judgment and order rendered by Additional Divisional Commissioner, Nashik Division, in Village Panchayat Appeal No. 75/2009. The appeal was allowed by the learned Additional Divisional Commissioner. The disqualification of the respondent no.1 to continue as Sarpanch of the village panchayat was thereby held as improper and the judgment and order rendered by the Additional Collector, declaring the respondent no.1 as disqualified u/s 14(J-1) of the Bombay Village Panchayat Act, 1958, came to be set aside. 2] There is no dispute about the fact that the respondent no.1 was elected as Sarpanch in the village panchayat elections held in 2005. Since 2005, he was continuously officiating as Sarpanch. The petitioner filed complaint application dated 19.5.2009 alleging that the respondent no.1 was disqualified to continue as Sarpanch for the reason that third child was born to him on 28.11.2006 at Swami Vivekanand Hospital, Narayangaon. The petitioner alleged that the respondent no. - 3 - 1 was having a daughter born on 5.9.2000 and another daughter born on 4.4.2002. He further alleged that the third male child was born to the wife of the respondent no.1 on 28.11.2006 in a private hospital and as such he was disqualified to continue in the office of Sarpanch. The learned Additional Collector held that the respondent no.1 was disqualified due to birth of third child after the stipulated date i.e. 13.9.2001. Hence, the respondent no.1 was directed to demit the office after declaring him as a disqualified person. The respondent no.1 challenged the judgment and order of the learned Additional Collector by filing Village Panchayat Appeal No.75/2009, which came to be allowed vide the order impugned herein. 3] Heard learned counsel for the parties and learned A.G.P. 4] The entire controversy relates to proof regarding birth of the third male child, who allegedly was born in the private hospital. It is pertinent to notice that the respondent no.1 had filed certificate dated 24.6.2009 on record to show that there was no entry in the register of the private hospital namely Swami Vivekanand Hospital, Narayangaon, regarding birth of male child to Smt.Vaishali Arun Wagh on 28.11.2006. This certificate is issued by Dr.S.G. Gosavi. The petitioner examined the very same medical practitioner i.e. S.G. Gosavi in support of his case that the third child was born to the wife of the respondent no.1. In spite of such certificate issued by the same medical practitioner, the version of Dr.S.G. Gosavi was relied upon by the Additional Collector and it was observed that the entries in the register - 4 - corroborated the case of the petitioner. The birth of male child was not registered in the relevant record of the village panchayat at Akalapur. It appears that Dr.S.G. Gosavi corroborated the entry, which indicates that Smt.Sunita Arun Wagh delivered a male child on 28.11.2006. It appears that Dr.S.G. Gosavi did not clarify as to why the certificate dated 24.6.2009 was issued. It is pertinent to notice that the learned Additional Collector heavily relied on the record of the private hospital i.e. Om Swami Vivekanand Hospital, Narayangaon. The entries in the relevant record show that initially name of Smt.Vaishali was shown in column no.5 and subsequently it was scored out. Thereafter, the name was shown as Smt.Sunita Arun Wagh. The complaint application does not show that the petitioner asserted the fact that Smt.Sunita and Smt.Vaishali are the same person and that name of wife of the respondent no.1 is some times indicated as Smt.Sunita, whereas some times it is indicated as Smt.Vaishali. Needless to say that this disputed fact is not clearly explained during the course of inquiry before the Additional Collector. The counsel for the petitioner would submit that the respondent no.1 clearly admitted that his wife’s name is Smt.Sunita and, therefore, there is no ambiguity in this context. 5] I find it difficult to countenance the argument. First, the complaint application was filed at a belated stage, approximately after three years of the alleged birth of the third child and four years after the elections. More over, the private document is not free from doubt in view of the certificate dated 24.6.2009 and absence of any entry in the village panchayat record. It is important to notice - 5 - that the very same medical practitioner had issued certificate dated 9.3.2009, which shows that Smt.Vaishali Arun Wagh had delivered a male child on 28.11.2006 at 3-50 p.m. He even certified that it was her third child. How come that the medical practitioner gathered this information about the birth of third child, is rendered in obscurity. IT is not the contention of the petitioner or the medical practitioner that there was record available about the first two children with the same hospital and on that basis, such certification was made. Considering the nature of dispute and probability of the document being unreliable, the learned Additional Divisional Commissioner declined to give credibility to the evidence tendered by the medical practitioner and the certificate issued by him. The view taken by the learned Additional Divisional Commissioner can not be regarded as perverse. His observations are based on material and relevant record. Under these circumstances, the extraordinary jurisdiction under Article 227 of the Constitution need not be exercised in favour of the petitioner. The counsel for the respondent no.1 seeks to rely on Gangadhar Gonduram Tadme V/s Trimbak Govindrao Akingire & others ( 2005 (1) Mh.L.J., 94). Division Bench of this Court held that where the birth certificate was not issued in compliance of mandatory requirements u/s22(1) of the Births, Deaths and Marriage Registration Act, 1886, then there can not be any presumptive value attached to the entries in the register of births. It is not necessary to discuss the facts of the given case. Suffice it to say that the complaint application was filed at a belated stage, the record produced by the petitioner was not free from doubt and that the findings of the learned Additional - 6 - Divisional Commissioner can not be regarded as arbitrary or perverse. In the result, petition is dismissed. Civil Application No.9437/2010 filed by the petitioner is dismissed. (V. R. Kingaonkar, J.) ndk/c1271043