High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD906 WRIT PETITION NO. 8336 OF 2024SAYYED ANWAR NISAR MUJAWARVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERSMr. Mukul Kulkarni h/f Mr. U. P. Giri, Advocate for the petitioner Mr. B. A. Shinde, AGP for the respondent/StateMr. Amol G. Vasmatkar, Advocate for respondent No.4Mr. R. N. Dhorde, Senior Advocate a/w Mr. P. S. Dighe i/b Mr. r. D. Kawade, Advocate for respondent No.5CORAM: R. M. JOSHI, J.DATE: 27th MARCH, 2025PER COURT :-1.This petition takes exception to the orders dated 01/08/2024passed by Additional Divisional Commissioner, Aurangabad in File No.2024/Grampanchayat/Appeal/CR-28, whereby the order passed by theCollector dated 27th June, 2024 of disqualifying the petitioner in the FileNo. 2023/GB/DESK-2 Grampanchayat Appeal-KAVI Petition No.372/2023was confirmed.2.The facts as they appear from the record can be narrated inbrief as under:-(i)The petitioner contested general elections of the GramPanchayat Shirsala which was conducted in December, 2022. InNovember, 2022 nomination form was submitted along with relevant906.wp8336.24.odt1 of 8
Legal Reasoning
documents. The nomination was accepted. He came to be elected as amember of Gram Panchayat and later on was also elected to the post ofSarpanch from the category of Other Backward Class (OBC). RespondentNo. 5 made complaint on 26/04/2023 to the District Collector, Beedunder Section 14 r/w 16 of the Maharashtra Village Panchayats Act (forshort ‘the Act’) claiming that petitioner has contested the election thoughhe had not completed age 21 years. Declaration therefore was soughtthat the petitioner is disqualified to be a member of Grampanchayat andconsequently to hold post as Sarpanch. In response to the said complaintpetitioner filed detailed say and relied upon the documentary evidence tosubstantiate his claim about his date of birth being 10/02/2001. Alongwith other documents he placed reliance on the birth certificates issuedby local Authority indicating the said date of birth. The Collector,however, did not accept the case of the petitioner and by passing orderdated 27/06/2024 disqualified the petitioner from the membership ofGram Panchayat so also from the post of Sarpanch. This order was takenexception before the Additional Divisional Commissioner by filing appeal.The Additional Divisional Commissioner refused to cause interference inthe impugned order. Hence this petition.3.Learned counsel for the petitioner submits that the petitionerhas placed on record the birth certificate which is the basic document on906.wp8336.24.odt2 of 8 the basis of which the date of birth of the petitioner could be determined.According to him when birth certificate is there, no other documentindicating contrary could be considered. To support his submission hehas placed reliance on the judgment of Division Bench of this Court inccase of Smt. Vasudha Gorakhnath Mandvilkar Versus The City andIndustrial Development Corporation of Maharashtra Ltd, 2008(5) ALLMR 358. He further drew attention of the Court to the complaint lodgedby the contesting respondent against the petitioner wherein according tohim there is no specific challenge to the birth certificate produced by thepetitioner at the time of filing nomination. It is his submission thatwithout their being specific challenge to the said birth certificate, it wasnot open for the Collector to enter in to the said issue and record anyfindings. In any case it is his submission that since there was no specificallegation to that effect, the petitioner has not been given an opportunityto meet with the said issue. Apart from this, by drawing attention of theCourt to the order impugned passed by the Collector it is his submissionthat the Collector has in fact accepted the fact that the both certificatesfiled on record belong to the petitioner. It is his submission that oncebirth certificates are accepted and they show year of birth of petitioner tobe 2001, it was not open for the Collector to take into consideration theother documents. According to him, Collector could not have beenallowed to say that the petitioner has failed to prove that he was given in906.wp8336.24.odt3 of 8 adoption. Thus, it is his submission that the disqualification as themember of the Gram Panchayat cannot be effected unless a specificfinding is recorded by the Collector about the age of the petitioner. Hehas also taken this Court through the various document such as theelection card, aadhar card etc., to indicate his birth of date being10/02/2001.4.Learned senior counsel for the contesting respondentsupported the impugned order. According to him there is specificallegation made in the complaint with regard to the petitioner havingfabricated the documents at the time of filing of the nomination. It isspecifically alleged that at the time of the filing of the nominationpetitioner had not completed age of 21 years. It is further argued that inresponse to the said allegation the petitioner has placed on record thebirth certificates and other documents. Thus it is his contention that itcannot be said that the petitioner was not given any opportunity inabsence of specific allegation in the complaint in this regard. He hasdrawn attention of the Court to the order passed by the Collector,wherein according to him the Collector has recorded finding about falsedocument being prepared for the purpose of contesting the GramPanchayat election. It is his submission by referring to the variousdocuments placed on record including the record of the school so also906.wp8336.24.odt4 of 8 applications made by the present petitioner himself before the CasteValidity Committee indicating his age to be 21 years on 15/09/2022.With regard to the corrections made in the school register it is hiscontention that the Headmaster had no authority to effect suchcorrection and it ought to have been done by the Education Officer. It isfurther argued that the the birth register entry No. 302 indicates that theson was born to Shaikh Julfu which was subsequently corrected to beSayed Julfekhar. It is his submission that Shaik and Sayed belong todifferent caste and as such the said correction which has been carriedout that too in the year 2022 is of no consequence. Finally it is submittedthat the the burden on the petitioner to substantiate that his age was 21years at the time of filing of the nomination and since he has failed tosubstantiate the same, the finding of the fact recorded by the authoritiesbelow need not be interfered with for want of perversity.5.Record indicates that,the contesting respondent file specificapplication before the Collector taking exception to the age of petitioner.There is specific allegation that as on the date of filing of the nomination,the petitioner had not completed 21 years of age. In the said complaintreference is made to the various other documents including the schoolrecord indicating date of birth of the petitioner to be 10/02/2002. It is inthis backdrop the petitioner who has placed before the authorities two906.wp8336.24.odt5 of 8 different birth certificates. Though in both certificates date of birth ofchild is indicated as 10/02/2001, the name of the father of the petitioneris shown as Sayed Julfekhar, whereas the birth register indicates that thebirth register entry No. 312 indicates that the father of the said child wasShaikh Julfu. There is no disputes made by petitioner to the submissionsof learned counsel for contesting respondent that both surnames belongto different castes. 6.It is a case of the petitioner that he was given in to adoptionimmediately on his birth to the adoptive parents. If it is so, there was noquestion for he is biological father making any application in the year2022 for correcting the name in the birth register. Apart from this thedocument placed on record by the petitioner himself about the birthcertificate issued by the Hospital indicates that the child was born toShamim Shaikh Julfu and not Sayed. It is pertinent to note that thepetitioner himself had made application showing his date of birth to be10/02/2002 while applying for caste certificate. Not only this thecertificate of nationality also indicates his date of birth to be the same.The aadhar card originally issued to the petitioner also shows his year ofbirth as 2002. The aadhar card now placed on record indicates his dateof birth of 2001, however this document has been obtained just beforethe election. All the documents on the basis of which the petitioner906.wp8336.24.odt6 of 8 claims his birth to be 10/02/2001 are procured just before election. Thusthis Court does not find any reservations to accept the contentions oflearned counsel for respondent that these documents are produced bypetitioner to suit his convenience to contest election. 7.It is pertinent to note that all these documents are dulyconsidered by the Collector and a categorical finding are recorded in theimpugned order by holding that the petitioner has deliberately preparedfalse documents with regard to the date of birth and contested the GramPanchayat election. Consequently finding is recorded that he had notcompleted age of 21 years as on the date of filing nomination. Thefindings of fact as recorded by the Collector are in consonance with thematerial evidence on record and hence the same cannot be termed asperverse.8.Dealing with the judgment cited supra, there cannot not beany dispute with regard to the proposition that the birth certificate shallbe given preference for determination of the date of birth over any otherdocument provided that the birth certificate is free from doubt. In thiscase there is serious doubt in respect of the genuineness of the birthcertificate. It is also material to take note of the fact that the offence hasbeen registered against the concerned for preparation of the record.Having regard to the afore stated fact this Court finds no reason or906.wp8336.24.odt7 of 8 justification to cause interference in the impugned order. Hence, petitionis dismissed.9.At this stage, learned counsel for the petitioner to seeksextension of the order dated 08/08/2024 for a period of eight weeks inorder to enable the petitioner to take exception to this order before theHon’ble Supreme Court. Learned senior counsel for the contestingrespondent opposes the request.10.Since, there is a relief in favour of the petitioner from08/08/2024, this Court finds no justification not to extend the said orderfor a reasonable period.11.In the facts of the case, the order stands extended for aperiod of six weeks from today. (R. M. JOSHI, J.)ssp906.wp8336.24.odt8 of 8