(1) WP. 2589.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2589 OF 2010 1. Bhaskar Sahebrao Surayawanshi Age : 40 yeas, Occu.: Agri., R/o. Gaur Pimpri, Tq. Kannad, Dist. Aurangabad 2. Bhavansingh Magansingh Surayawanshi Age : 28 years, Occu.: Agri., R/o. Gaur Pimpri, Tq. Kannad, Dist. Aurangabad 3. Gokul Ramu Surayawanshi Age : 48 years, Occu.: Agri., R/o. Gaur Pimpri, Tq. Kannad, Dist. Aurangabad 4. Gokul Ramu Surayawanshi Age : 48 years, Occu.: Agri., R/o Gaur Pimpri, Tq. Kannad, Dist. Aurangabad 5. Ramchandra Maharu Surayawanshi Age : 30 years, Occu.: Agri., R/o. Gaur Pimpri, Tq. Kannad, Dist. Aurangabad .. PETITIONERS VERSUS 1. The State of Maharashtra Through Secretary Rural Development, Mantralaya, Mumbai-32 2. The Divisional Commissioner, Aurangabad Division, Aurangabad 3. The Additional Collector, Aurangabad District, Aurangabad (2) WP. 2589.2010 4. The Block Development Officer, Panchayat Samiti, Kannad, Dist. Aurnagabad 5. The Village Development Officer, Grampanchayat, Gaur Pimpri, Tq. Kannad, Dist. Aurangabad (Copy of respondent no.1 to 5 served to the Govt. Pleader High Court of Bombay Bench at Aurangabad) 6. Vijay Chattarsingh Surayawanshi Age : 36 years, Occu.: Agri., R/o Gaur Pimpri, Tq. Kannad, Dist. Aurangabad .. RESPONDENTS Mr. A.T. Patel, Advocate for the Petitioners Mr. S.V. Kurundkar, Addl. G.P. for the respondent-State Mr. V.P. Latange, Advocate for the respondent no.6 ... CORAM : V.R. KINGAONKAR, J. DATED : 20TH JULY, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally. 2. By this Petition, the petitioner challenges the judgment and order rendered by the learned Additional Divisional Commissioner, Aurangabad in appeal (CR) no. 109 of 2009 whereby and whereunder the judgment rendered by Additional Collector, (3) WP. 2589.2010 Aurangabad in proceedings for declaration of respondent no.6 as disqualified Sarpanch came to be reversed. The petitioner is original complainant who had filed complaint application alleging that the respondent no.6 was disqualified to continue as Sarpanch of village Gaur Pimpri due to the fact that third female child was born to him after stipulated date i.e. 12.9.2001. The petitioner alleged that the respondent no.6 incurred disqualification under section 14(j-1) of the Bombay Village Panchayat Act, 1958 (for short, "B.V.P. Act"). The Additional Collector came to the conclusion that third daughter was born to the wife of respondent no.6 on 7.11.2001 and therefore he was disqualified to continue in the Office as Sarpanch. The appellate authority, however, reversed finding of the learned Additional Collector for the reason that the record pertaining to birth of the third child was of doubtful nature and there was controversy regarding the date of birth of the third child. The appellate authority held that the respondent no.6 was entitled to get benefit of such doubt. (4) WP. 2589.2010 3. Heard learned counsel for the parties and learned Additional Government Pleader. With the assistance of the learned Additional Government Pleader, I have perused the original record pertaining to enquiry held by learned Additional Collector in the proceedings initiated by the petitioner. 4. Section 14(j-1) of the Bombay Village Panchayats Act, 1958 reads as follows: "Sec. 14. (1) No person shall be a member of a panchayat continue as such, who- (a) ... (b) ... ... (j-1) has more than two children: Provided that, a person having more than two children on the date of commencement of the Bombay Village Panchayats and the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 1995 (hereinafter in this clause referred to as “the date of such (5) WP. 2589.2010 commencement”), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase: Provided further that, a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause; or ... ” Perusal of section 14(j-1) of the B.V.P. Act will make it manifestly clear that if third child is born after 12.9.2001 then disqualification would be incurred by the Member to continue as member or Sarpanch of the Village Panchayat. Such disqualification is founded on public policy, namely, need to propagate importance of family planning by those who want to work in the public life. The reason is that common people are likely to emulate those who are in power. The members of the village Panchayat are expected, therefore, to set a particular standard for themselves if they desire to represent the elected body of the Village Panchayat. (6) WP. 2589.2010 A member of the Village Panchayat cannot have dozens of children and yet propagate the public policy of family planning which is the agenda required to be followed by the Village Panchayat. For, in such a case other villagers are not likely to seriously take such advice of the Sarpanch about the Government policy. In other words, contradictory behaviour of member of the Village Panchayat is likely to cause failure of the Government policy. 5. Now, the crucial question to be determined in the present case is whether the learned Additional Divisional Commissioner could have interferred with the findings of the learned Additional Collector in the exercise of the appellate jurisdiction. The learned Additional Commissioner came to the conclusion that two different birth certificates in respect of the third female child of the respondent no.6 were issued for more than one occasion and therefore he thought it necessary to give "benefit of doubt" to him. One cannot be oblivious of the fact that the learned Additional Divisional Commissioner (7) WP. 2589.2010 was not required to give finding on any criminal charge as such. In criminal cases, it could be said that the accused may be entitled to get benefit of reasonable doubt. 6. In the present case, the controversy involved called for finding on questions of fact and that had to be rendered on strength of preponderance of probabilities. The learned Additional Divisional Commissioner completely missed the range of the burden of proof required to be satisfied in such a case. It is well settled that the enquiry required to be conducted in such a matter is of summary nature, and, therefore, the material is to be scanned by following logical approach. The appellate authority was not expected to examine the material with obsession of suspension. 7. Coming to the findings of facts, it emerges from the record that the birth of the third female child is said to have taken place at the parents' house of the wife of the respondent no.6. There is (8) WP. 2589.2010 no dispute about the fact that her maternal home is at village Satgaon (Mhasala) in Buldhana district. The respondent no.6 is inhabitant of village Gaur Pimpri and is Sarpanch of that Village Panchayat. What appears from the record is that neither of the child was born at village Gaur Pimpri or Pishor. The petitioner produced copy of birth certificate issued by the Gramsevak at village Satgaon (Mhasala) in order to prove that the third female child was born on 16.12.2000. Certificate issued in format no.9 purports to show that such entry was recorded on 31.12.2000 at serial no. 31. It has come on record that serial no.31 of the record pertains to the entry about birth of one Aniket. Needless to say the authenticity of such certificate issued by the Gramsevak is seriously impeached. That apart, testimony of the Gramsevak was recorded by the Additional Collector during the course of enquiry. The testimony of the Gramsevak by name Dashrath Khillare indicated that the birth date of the said third female child was not 16.12.2000 as claimed by the respondent no.6 but it was 16.11.2000 and there (9) WP. 2589.2010 were interpolations at the place of entries shown at serial no.31, 32, 33 and 34. He categorically stated that entry at serial no. 31 was introduced in the middle of above three entries i.e. between serial nos.32,33 and 34. It is but natural that manipulation had to be done and as such the entry at serial no.31 was introduced in the midst of the other three entries. The statement of the Gramsevak further reveals that he did not sign the birth certificate. Needless to say, the credibility of the birth record produced by the respondent no.6 is washed away. 8. It appears from the record that the third female child was born to the wife of the respondent no.6 in a private hospital at Buldhana. The relevant record shows that the third female child was born to wife of the respondent no.6 in Bharad hospital, Buldhana on 7.11.2001 and the birth was registered on 8.11.2001. The hospital authority had no business to manage false entries in the record of the private hospital. The respondent no.6 did not adduce any (10) WP. 2589.2010 evidence to show that the entries in the hospital record are fabricated. It is important to notice that the birth certificate issued by the Municipal Council, Buldhana appears to be more authentic and probable as compared to the certificate issued by the Gramsevak of Village Satgaon (Mhasla). The Municipal certificate reveals that name of the wife of the respondent no.6 is recorded alongwith her address of village Gaur Pimpri Tq. Kannad. As against this, the address shown in the certificate issued by the Gramsevak is of village Pishor. It is difficult to say that the respondent no.6 and his wife were residing at village Pishor at the relevant time. In the wake of such circumstances, the Municipal birth certificate could not have been discarded by the appellate authority. There was no substantial reason to interfere with the findings recorded by the learned Additional Collector and the view taken by the appellate authority is improper as well as perverse inasmuch as the unnecessary exercise of granting “benefit of doubt” to the respondent no.6 was undertaken while evaluating the evidence. It (11) WP. 2589.2010 need not be reiterated that proof beyond reasonable doubt was not expected in such an enquiry. 9. Considering the foregoing reasons, it will have to be said that the impugned judgment and order are unsustainable. Hence, the Petition is allowed. The impugned judgment and order is set aside and that of the learned Additional Collector is restored in its place. Rule made absolute accordingly. No costs. Sd/- [V.R. KINGAONKAR, J.] arp