Partly allowed

Subhash Somla Pawar v. the State of Maharashtra and Ors.

Bombay HC4 Feb 2013WP/365/2012

Case brief

AI extract

What is this about?

In this writ petition challenging disqualification as Sarpanch due to conviction and excess children, the Single Judge held that disqualification based on conviction stands confirmed pending appeal. However, disqualification based on the fourth child's birth date was quashed as authorities failed to verify original records before rejecting corrected public documents, with the matter remanded for f

What did the court decide?

The impugned judgment and order disqualifying the petitioner on the ground of having a fourth child born after the cut-off date is quashed and remanded for fresh consideration. Disqualification on gro

Subhash Somla Pawar Vs the State of… — Pension and Retirement Benefits | Bombay HC (2013)

¶1

1 wp365.12

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

WRIT PETITION NO.365 OF 2012

¶4

Subhash s/o Somla Pawar,
Age: 40 years, Occ: Sarpanch,
Grampanchayat Diggi,
R/o. Diggi, Tal. Omerga,
District Osmanabad. ...PETITIONER

¶5

 VERSUS

¶6

1. The State of Maharashtra.

¶7

2. The Additional Divisional Commissioner, Aurangabad.

¶8

3. The Additional Collector, Osmanabad, Dist. Osmanabad.

¶9

4. Satish Baburao Kalshetti, Age: Major, Occ: Member,, Grampanchayat, Diggi, R/o. Diggi, Tq. Omerga,

¶10

District Osmanabad. ...RESPONDENTS

¶11

...

¶12

Mr. Jivan J. Patil, Advocate for petitioner.
Mr. K.J. Ghute Patil, A.G.P. for Resp.Nos. 1 to 3.
Mr. G.V. Mohekar, Advocate for respondent No. 4.

¶13

...

¶14

CORAM : S.S. SHINDE, J.

¶15

RESERVED ON : 31-01-2013 PRONOUNCED ON : 04-02-2013

¶16

JUDGMENT :

¶17

¶18

Rule. Rule made returnable forthwith.

¶19

2 wp365.12

¶20

Heard finally with the consent of the parties.

¶21

2.This writ petition takes exception to the
judgment and order dated 8th July, 2011 passed by
the Additional Collector, Osmanabad declaring the
petitioner disqualified being Member and Sarpanch
of Grampanchayat Diggi, Talula Omerga District
Osmanabad and also the judgment and order dated
28th December, 2011 passed by the Additional
Divisional Commissioner, Aurangabad confirming the
judgment and order passed by the Additional
Collector, Osmanabad.

¶22

under:-

¶23

.It is the case of the petitioner that,

¶24

the petitioner and respondent No. 4 herein,
contested the election of Grampanchayat Diggi,
Taluka Omerga, District Osmanabad and got elected
as Grampanchayat Member. The petitioner got
elected as Sarpanch of the said Grampanchayat.

¶25

3 wp365.12

¶26

.RespondentNo.4herein,filed

¶27

application under section 14(1)(J-1) of the Bombay
Village Panchayats Act, 1958 (For short, "said
Act") for declaring the petitioner as disqualified
to hold the post of the Member of the
Grampanchayat as he is convicted by the Sessions
Court, Osmanabad in Sessions Case NO. 28 of 2009

¶28

for the offence punishable under Sections 332,
324,323, 337, 427 read with section 34 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for a term of three years and to pay
fine. Respondent No. 4 raised another ground
that, the petitioner's 4th child is born after the
cut off date i.e. 12th September, 2001.

¶29

3.The Additional Collector, Osmanabad heard

¶30

the dispute and held that, since the petitioner is

¶31

convicted and the 4th child of the petitioner is

¶32

born after 12th September, 2001, he is
disqualified as a member and Sarpanch of
Grampanchayat.

¶33

4 wp365.12

¶34

4. At the outset, learned Counsel appearing

¶35

for the petitioner submits that, as long as the
judgment and order of the Sessions Court
convicting the petitioner is not set aside, the
petitioner cannot agitate the ground that, he is
wrongly disqualified on the ground that, he is
sentenced to suffer rigorous imprisonment for

¶36

three years and fine for the offences which are
mentioned herein above. However, he submits that,
the second ground on which the petitioner is held
to be disqualified as a member and Sarpanch is
that, 4th child of the petitioner is born after
the cut off date i.e. 12th September, 2001.
Learned Counsel submitted that, Health Department,
Government of Maharashtra has issued birth
certificate copy of which is placed at Exhibit-C
at Page 26 of the compilation of the writ

¶37

petition, clearly shows that, date of birth as
11th September, 2001 of the 4th child of the
petitioner namely Akshay Subhash Pawar. Learned
Counsel invited my attention to Page 29 of the

¶38

5 wp365.12

¶39

compilation of writ petition and submitted that,
the Health Department, Government of Maharashtra,
has maintained birth register in which date of
birth of the 4th child of the petitioner namely
Akshay is shown 11th September, 2001. Learned
Counsel further invited my attention to the
certificate issued by the Primary Health Centre,
Mulaj which is placed at Page-31 of the
compilation of the petition and submitted that,
the said certificate also shows the date of birth
of said Akshay, 4th child of the petitioner as

¶40

11th September, 2001. Therefore, relying upon the
copies of the aforesaid documents, the Counsel for

¶41

the petitioner would contend that, the documents
which were produced by the petitioner on record
in support of his case that, 4th child namely
Akshay is born before the cut off date i.e. 11th
September, 2001, are the copies of public

¶42

documents. It is further submitted that, the

¶43

document submitted by respondent No. 4 is a

¶44

private document and therefore, the public
documents would prevail over the private

¶45

6 wp365.12

¶46

documents. Learned Counsel in support of his
aforesaid contention, pressed into service the
reported judgment of the Division Bench of this
Court in the case ofVasudha Gorakhanath
Mandvilkar vs. City and Industrial Development
Corporation of Maharashtra Limited [2008(5)
Mh.L.J. 147] and in particular paragraph Nos. 14
to 17 of the said judgment. Therefore, the Counsel
for the petitioner submits that, this petition
deserves to be allowed.

¶47

appearing for respondent No. 4 placed reliance

¶48

upon the reasons recorded by the Additional
Collector, Osmanabad and also the Additional
Divisional Commissioner, Aurangabad and submitted

¶49

that, there are concurrent findings recorded by
the authorities below and therefore, this Court
may not interfere in the impugned judgment and
order. Learned Counsel submitted that, under Right

¶50

to Information Act, the respondent No. 4 sought

¶51

information from the Medical Officer, Primary

¶52

7 wp365.12

¶53

Health Centre, Mulaj and received the document at
Page 27 of the compilation of the writ petition
which would clearly show that, 4th child of the
petitioner namely Akshay is born on 20th December,
2002. Therefore, learned Counsel appearing for
respondent No. 4 submits that, the judgment and
order impugned in this petition deserves to be
confirmed by rejecting this petition.

¶54

.Learned Counsel appearing for respondent

¶55

No. 4 invited my attention to the affidavit in
reply filed on behalf of respondent Nos. 2 and 3
and submitted that, the petition may be rejected.

¶56

6.I have given careful consideration to the
rival submissions. At the outset, it is necessary

¶57

to make mention of the fact that, it is undisputed
position that, the Sessions Court, Osmanabad has
convicted the petitioner for the offence
punishable under sections 332, 324, 427 read with
section 34 of the Indian Penal Code and sentenced
for a term of three years with fine and judgment

¶58

8 wp365.12

¶59

and order of the Sessions Court, Osmanabad is
under challenge before this Court in Criminal
Appeal No. 80 of 2012.

¶60

.The provisions of Section 14(1) of the
Bombay Village Panchayats Act, 1958 reads thus :

¶61

"14. Disqualifications: (1) No person
shall be a member of a Panchayat continue
as such, who-

¶62

(a)has, whether before or after the
commencement of this Act, been convicted

¶63

(i)of an offence under the
Untouchability (Offences) Act, 1955,
(XXII of 195), or under the Bombay
Prohibition Act, 1949 (Bom.XXV of 1949)
or any law corresponding thereto in force
in any part of the State, unless a period
of five years, or such lesser period as

¶64

the State Government may allow in any
particular case, has elapsed since his
conviction, or

¶65

(ii)of any other offence and has

¶66

9 wp365.12

¶67

been sentenced to imprisonment for not
less than six months, unless a period of
five yers, or such lesser period as the
State Government may allow in any
particular case, has elapsed since his
release; or "

¶68

.The provisions of Section 14(j-1) of the
Bombay Village Panchayats Act, 1958 reads thus :

¶69

"(j-1)has more than two children,

¶70

Provided that, a person having more
than two children on the date of
commencement of the Bombay Village
Panchayats, and the Maharashtra Zilla
Parishads,andPanchayatSamitis
(Amendment) Act, 1995 (hereinafter in
this clause referred to as "the date of
such 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:

¶71

Provided further that, a child or
more than one child born in a single
delivery within the period of one year

¶72

10 wp365.12

¶73

from the date of such commencement shall
not be taken into consideration for the
purpose of disqualification mentioned in
this clause; or"

¶74

7.Upon careful perusal of the provisions of
sub section (1) of Section 14 of the said Act, it

¶75

is abundantly clear that, no person shall be a
member of a Panchayat continue as such, if he has
been sentenced to imprisonment for not less than
six months for the offence other than offence
under the Untouchability (Offences) Act, 1955 or
under the Bombay Prohibition Act, 1949.
Therefore, as rightly contended by the Counsel for
the petitioner, on the said ground, he has no case
as long as his conviction by by the Sessions Court
is reversed in appeal.

¶76

8.Learned Counsel for the petitioner is
right in contending that, whenever there is

¶77

variance between an unproved private document or
its copy and a certified extract of a public
record, later must prevail as it has more

¶78

11 wp365.12

¶79

probative value, carrying the presumption under
section 79 of the Evidence Act.

¶80

.In the facts of the present case, the

¶81

documents submitted by the petitioner are public
documents. The said aspect has not been

¶82

considered either by the Additional Collector,
Osmanabad or Additional Divisional Commissioner,
Aurangabad. Both the authorities have held that,
in the documents produced by the petitioner date
of 4th child is corrected on an application filed

¶83

by the petitioner to the concerned authorities.
Both the authorities have taken note of the fact

¶84

that, the petitioner herein, did submit the
certificate issued by the Health Officer and also
by the Education Officer (Primary), Zilla
Parishad, Osmanabad dated 17th January, 2010 in
which corrected date of birth of the petitioner's

¶85

child namely Akshay is shown as 11th September,
2001, however, observed that, the earlier date in

¶86

the said certificate in the record was 20th

¶87

November, 2011, however, the same is corrected as

¶88

12 wp365.12

¶89

11th September, 2001. Since the petitioner has

¶90

submitted copies of the corrected date of birth
and therefore, such certificates in which the date
is corrected are not acceptable. It is further
observed that, the petitioner realized that, he is
likely to be disqualified as a member or Sarpanch

¶91

of the Grampanchayat and therefore, such
correction is made in the certificate. However,

¶92

the authorities have not inquired or summoned the
record either from the Health Officer or from the
Education Officer (Primary), Zilla Parishad,
Osmanabad so as to ascertain whether the
subsequent correction in those certificates is as
per original record or not. Merely because there

¶93

is a correction, the said document cannot be
discarded unless the authority records finding
that, subsequent correction is contrary to the
original record maintained by the concerned office

¶94

or manipulated. Therefore, in my opinion, the
findings recorded by the Additional Collector and
also the Additional Divisional Commissioner,
Aurangabad in respect of birth of 4th child of the

¶95

13 wp365.12

¶96

petitioner namely Akshay deserves to be set aside,

¶97

and matter requires to be remitted back to the
Additional Collector, Osmanabad for fresh
consideration and adjudication on the point,
whether the petitioner can be held disqualified as
a member or Sarpanch of the Grampanchayat on the
ground that, 4th child of the petitioner namely
Akshay is born after cut off death i.e. 12th
September, 2001.

¶98

9.The Division Bench of this Court in the

¶99

case of Vasudha Gorakhnath Mandvilkar (supra) in
paragraph-14 held :

¶100

"14.Consequently whenever there is a
variance between an unproved private
document or its copy and a certified
extract of a public record, the later
must prevail as it has more probative
value, carrying the presumption as it
does under section 79 of the Evidence
Act. This presumption would continue to
hold until it is rebutted. It can be
rebutted only by production of the

¶101

14 wp365.12

¶102

original public record from which the
extract is made out and certified to be
tried by the relevant authority. Only if
it is so rebutted, such certified copy
issued by a public authority would stand
nullified." (emphasis added).

¶103

10.Therefore, in the light of discussion
herein above, the findings recorded by the
Additional Collector, Osmanabad and also by the
Additional Divisional Commissioner, Aurangabad

¶104

that, the petitioner is disqualified to continue
as member and Sarpanch of the Grampanchayat since
he is convicted for three years for the offence
punishable under Sections 323, 324, 337, 427 read
with section 34 of the Indian Penal Code, stands

¶105

confirmed. However, the findings recorded by the
Additional Collector that, the petitioner is
disqualified as a member and Sarpanch of the
Grampanchayat since his 4th child namely Akshay is
born after cut off date i.e. 12th September,
2001, stands quashed and set aside. The dispute

¶106

bearing No.2011/GB/Desk-1/GPN/KA-1/CR 15 decided

¶107

15 wp365.12

¶108

on 8th July, 2011 by the Additional Collector,
Osmanabad is restored to its original file for

¶109

fresh adjudication of issue in respect of birth of
4th child of the petitioner i.e. whether it is
before or after cut off date. The Additional
Collector, Osmanabad shall decide afresh in
respect of whether the 4th child of the petitioner
namely Akshay is born after the cut off date or
before the cut off date in the light of discussion
herein above and after ascertaining the
genuineness of the certificates produced by the
parties on record and also after summoning the
original record maintained by the issuing
authorities of the said certificates. Needless to

¶110

mention that, while deciding the aforesaid issue,
the Additional Collector, Osmanabad shall follow

¶111

the ratio laid down in the judgment of the
Division Bench of this Court in the case of

¶112

Vasudha Gorakhnath Mandvilkar (supra) and proceed
to decide the issue involved. The Additional

¶113

Collector, Osmanabad shall afford reasonable
opportunity of hearing to the parties before

¶114

16 wp365.12 taking decision afresh.

¶115

11.The writ petition is partly allowed.

¶116

Rule is made absolute on above terms. The writ
petition stands disposed of.

¶117

 sd/-
 [S.S. SHINDE, J.]

¶118

sut/Feb13

Subhash Somla Pawar v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Subhash Somla Pawar v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Anna Deoji Kurkute Vs Madhusudan Dattatray Kulkarni

Pradeep Keshavrao Vyas Vs Prakash Haridas Tekale and Ors.

Prakash Bhikchand Agrawal Vs Manju Ram Airen and Ors.

Dhrupadabai Santuka Dubukwad and Anr. Vs Gangabai Santuka Dubukwad and Ors.

Ganesh Klchandrakant Choure Vs the State of Maharashtra and Ors.

Vinayakrao Kisanrao Shinde, Died Thr. L.Rs. Bhagirathibai and Ors. Vs Ashok Vithalrao Shinde and Ors.