1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 48 OF 2010 IN WRIT PETITION NO. 6639 OF 2008 Bhagwan Tukaram Patole, Age : 38 Years, Occu. : Agril & Sarpanch, R/o Asaradoha, Tq. Dharur, Dist. Beed. .. .. APPELLANT (Orig. Respt. 3) Versus 1. Ravikiran S/o Abasaheb Deshmukh, Age : 31 Years, Occu. : Agril., R/o Asaradoha, Tq. Dharur, Dist. Beed. 2. Dattatraya S/o Mahadeo Kachgunde, Age : 30 Years, Occu. : Labour, R/o Asardoha, Tq. Dharur, Dist. Beed. 3. The Additional Collector, Ambajogai, Dist. Beed. 4. The Additional Commissioner, Aurangabad Division, Aurangabad. 2 5. Municipal Council, Ambajogai, Dist. Beed. Through its Chief Officer. 6. Dr. Nandkishor Laxmanrao Somvanshi, Age : 47 Years, Occu. : Medical Practitioner, R/o Dhanwantri Multi Speciality Hospital, Prashant Nagar, in front of Yogeshwari Primary School, Ambejogai, Dist. Beed. .. .. RESPONDENTS (Respt. No. 1 & 2 orig. petitioners & Respt. No. 3 to 6 orig. Respts. Shri A. M. Karad, Advocate for the Petitioner. Shri R. N. Dhorde, Advocate h/f Shri P. S. Dighe, Advocate for the Respondent No. 1. CORAM : A. P. DESHPANDE, AND N. D. DESHPANDE, JJ. DATE : 18TH FEBRUARY, 2010. JUDGMENT [Per N. D. DESHPANDE, J. ] : 1. The present Letters Patent Appeal is directed against the judgment and order dated 21.01.2010 passed by learned Single Judge of this Court in Writ Petition No. 6639 of 2008, allowing the writ petition of present respondents No. 1 and 2, thereby the 3 appellant was declared as disqualified candidate in the election of Gram Panchayat of village Asaradoha, Tq. Dharur, Dist. Beed and further made unseated as sarpanch. Feeling aggrieved thereby, the appellant has preferred this letters patent appeal. 2. Heard both the sides at length, at the stage of admission. 3. The only issue involved in this appeal is about validity of nomination paper of the appellant filled in for contesting Gram Panchayat election, consequent upon his disqualification to continue as sarpanch of village panchayat as elected candidate, being father of third child after the cut off date i. e. 13.09.2001 under Section 14(1)(j-1) of the Bombay Village Panchayat Act and the Maharashtra Zilla Parishads and Panchayat Samities (Amendment) Act 1995. 4. The contesting respondents No. 1 and 2 at the threshold, made a complaint to the Returning Officer objecting to the nomination paper of the appellant who was contesting election from ward No. 1 and 2 of village Asaradoha with a request to reject the same pointing out that appellant is father of three children namely Bhagirathi born on 26.03.1998, Abhijeet born on 4 07.02.2000 and Vaishnavi born on 25.09.2002. However, the said application was turned down by the Returning Officer on 24.09.2007. The appellant contested the election and was declared as elected member and became sarpanch of village Asaradoha. The contest between the parties did not stop here. A dispute was filed by the respondent before the Collector under Section 35 of the Bombay Village Panchayat Act, which came to be allowed. Aggrieved thereby the appellant filed an appeal before the Commissioner which was allowed. 4. In the meantime a Regular Civil Suit No. 86/2008 was filed by the appellant for declaration and injunction in the Court of Civil Judge Senior Division, Ambejogai, against the Chief Officer, Municipal Council, Ambejogai for correction of entry in the birth register of third child namely Vaishnavi Bhagwan Patole and sought interim injunction. The learned Additional Divisional Commissioner, Aurangabad mainly relied on "status quo order" passed by the Civil Court on his application for injunction in a pending suit, and allowed his appeal by an order dated 13.08.2008 in proceeding No. DB/DESK - 2/ZPVP/Appeal /CR/165/2008 holding that he was not disqualified. The aforesaid order dated 13.08.2008 was set aside 5 in Writ Petition No. 6639/2008 when challenged by the respondents No. 1 and 2. 5. Perused the impugned judgment and order passed in Writ Petition No. 6639/2008, touching to the relevant provisions of law referred above. It is undisputed that girl child namely Vaishanvi @ Nalini was born to the appellant when he filled the nomination form. Her date of birth is the only dispute and decisive for his disqualification, if she was born after the cut off date i. e. 13.09.2001. 6. We have also examined the relevant documentary evidence and material produced on record. There is birth certificate of third child Vaishanvi showing date of birth as 25.09.2002 in Dhanvantari Hospital, Ambejogai, which is disputed by the appellant as true and correct date of birth. According to him, she was born on 10.08.2001 as per his affidavit and application made recently on 25.02.2007 for correction of entry in the birth register. Except his sole affidavit, there is no documentary proof to show that she was born on 10.08.2001. The birth certificate has presumptive value in law and the appellant has failed to produce contra evidence to rebut the said presumption required 6 for necessary correction as desired or suggested by him. The entry about the date of birth shown in the register find support from other sources and there is elaborate discussion found in the impugned judgment. The appellant was sleeping for considerable period of five years and awoke at the time of the election seeking for desired correction. Therefore, adverse inference needs to be drawn against the appellant. The impugned judgment is based on evidence and material on record supported with sound reasoning after appreciating the evidence before it. Hence it calls for no interference. Thus the Letters Patent Appeal being devoid of substance, stand dismissed summarily. [ N. D. DESHPANDE, J.] [A. P. DESHPANDE, J.] 07. At this state, the learned counsel for the appellant, seeks continuance of stay granted by the learned Single Judge to the impugned order. As we are of the clear view that the L.P.A. is devoid of any substance and merit and as we are not entertaining the L.P.A., there is no question of continuing stay. Hence, the prayer is rejected. [ N. D. DESHPANDE, J.] [A. P. DESHPANDE, J.] bsb/Feb.2010