1 (WP 8535 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8535 OF 2010 Shaikh Ashpak Mohamed Issak ...Petitioner Vs. The Additional Collector, Nashik and Ors. ...Respondents ----- Mr.M.S. Karnik for Petitioner Mr. A.I. Patel -AGP for Respondent No.1 ----- CORAM: V.M. KANADE J. DATED: 1ST FEBRUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner and the learned counsel for the Respondents. 2. The Petitioner is aggrieved by the order passed by the Additional Collector dated 5.8.2010 who was pleased to pass an order of disqualification against the Petitioner under section 14 (j)(1) of the Bombay Village Panchayat Act, 1958. This order was confirmed by the Divisional Commissioner, Nashik Division, Nashik in appeal. After the Petitioner was elected, an objection was filed alleging that the Petitioner was disqualified on 2 (WP 8535 of 2010) account of the Petitioner having more than two children in view of section 14(1) (k) (i). 3. The learned counsel appearing on behalf of the Petitioner has invited my attention to the orders passed by both the Authorities below. He submitted that though there is a clear evidence to show that his first children were born to him from his first wife, so far as, third child is concerned, the Collector has held that the third children was born to his second wife. He was submitted that the Collector in the course of inquiry of disqualification was not entitled to go in to the question of legality or otherwise of the second marriage. It was submitted that once it was established that the third child was not born to his legally wedded wife, the provisions of section 14(1) (k) (i) would not be attracted. 4. It is not possible to accept the submissions made by the learned counsel for the Petitioner. By virtue of the said section, a person having more than two children, is disqualified from contesting election as a member of Gram Panchayat. Similar view has been taken by the Apex Court by its judgment in the case of 3 (WP 8535 of 2010) Javed Vs. State of Haryana [2003 (8) SCC 269]. Since the validity of the said provisions was upheld by the Supreme Court, the question of this Court interfering with the concurrent finding recording by the Lower Courts below does not arise. The Apex Court in the case of - Surya Dev Rai, Appellant vs. Ram Chander Rai & Ors, Respondents [(2003) 6 Supreme Court Cases 675] has laid down the guidelines as to the circumstances under which High Courts should exercise the writ jurisdiction under Art. 227 of the Constitution of India, as under- “12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. ... 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- 4 (WP 8535 of 2010) (1) ... ... (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and 5 (WP 8535 of 2010) circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.” 5. In the present case, two authorities have held that the Petitioner was a father of the third child and this Court, therefore, while exercising its writ jurisdiction 6 (WP 8535 of 2010) under Article 227 is not expected to substitute the view taken by the Additional Collector and the Commissioner and to substitute its own view as if it is exercising its appellate jurisdiction. 6. Under these circumstances, it is not possible to interfere with the order passed by the Authorities below. Writ petition is dismissed and disposed of. (V.M. KANADE J.) .