Ninama Iteshbhai Bachubhai vs State Of Gujarat & 2 on 28 November, 2014

[Cites 5, Cited by 0]

Gujarat High Court

Ninama Iteshbhai Bachubhai vs State Of Gujarat & 2 on 28 November, 2014

1. By preferring this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 10.10.2013, passed by respondent No.1 (State of Gujarat) in Case No.15 of 2013, whereby the Revision Application filed by the petitioner against the order dated 15.04.2013, passed by the District Development Officer (respondent No.2) has been rejected.

2. The brief factual background of the petition is as follows: 2.1 The petitioner contested the election for the post of Sarpanch of Amba Village Panchayat, held on 29.12.2011. The petitioner was successful and was elected as Sarpanch. While filling up his Nomination Form, the petitioner submitted an affidavit, wherein he has stated that he has four children, namely, Monicaben, Komalben, Vaibhavbhai and Suhaniben. According to the petitioner, all four children were born before 04.08.2005, when the amendment in the Gujarat Panchayats Act, 1993 ("the Act" for short) by insertion of Section 30(1)(m) came into effect. It is the case of the petitioner that the first proviso to Page 2 of 24 C/SCA/16564/2013 JUDGMENT Section 30(1)(m) of the Act provides that a person having more than two children on the date of coming into force of the amendment shall not be disqualified under Clause (m) of Section 31(1), so long as the number of children he had on the date of commencement does not increase. According to the petitioner, all four of his children were born before 04.08.2005 and there has been no increase in the number of children thereafter. A complaint was made by one Narendrakumar Lalsinghbhai Hathila, an ExSarpanch of Village Amba, to the effect that the petitioner has four children, and the fourth child, a daughter named Mohiniben Iteshbhai, was born on 14.08.2008, that is after the coming into the force of Section 30(1) (m) of the Act. Therefore, the petitioner is liable to be disqualified as a member and Sarpanch of the Gram Panchayat. The complainant addressed the complaint to the District Development Officer, who forwarded it to the Taluka Development Officer (respondent No.3), being the Competent Authority. Respondent No.3, vide an order dated 27.08.2012, held that the petitioner stood disqualified as Sarpanch under Section 30(1)(m) of the Act. Against the above order passed by respondent Page 3 of 24 C/SCA/16564/2013 JUDGMENT No.3, the petitioner preferred an appeal before respondent No.2. Vide an order dated 15.04.2013, respondent No.2 rejected the appeal of the petitioner. Aggrieved thereby, the petitioner approached the State Government by filing a Revision Application, which came to be dismissed by the impugned order dated 10.10.2013. In the above background, the petitioner has approached this Court.

3. Mr.M.A. Kharadi, learned advocate for the petitioner, has made elaborate submissions, the gist of which is as below:

3.1 That the first proviso to Section 30(1)(m) provides that no disqualification would be incurred by a person having more than two children on the date of the commencement of the Amending Act, which came into force on 04.08.2005, as long as the number of children such person had on the date of such commencement does not increase. The petitioner is covered by the said proviso as he already had four children before 04.08.2005, when the amendment came into force. The last, and youngest child, of the petitioner, namely, Page 4 of 24 C/SCA/16564/2013 JUDGMENT Suhaniben was born on 27.07.2005, which is before

04.08.2005. As the number of children of the petitioner have not increased after 04.08.2005, the respondents could not have disqualified him from the post of Sarpanch.

3.2 That while filling in his Nomination Form before contesting the election in the year 2011, the petitioner has disclosed that he had four children. Similarly, the petitioner had made the same disclosure by way of a Panchkyas in the year 2006, when he had earlier contested the election for the post of Sarpanch, though unsuccessfully. The petitioner has revealed the correct facts before the authorities, who have not taken into consideration the aspect that no children were born to him after 04.08.2005. 3.3 That insofar as the orders passed by respondents Nos.2 and 3 are concerned, both the said authorities have ignored the evidence produced by the petitioner regarding the dates of birth of his children. The said authorities have solely relied upon the declaration of the petitioner that he has four children, without taking into consideration the aspect that none of his Page 5 of 24 C/SCA/16564/2013 JUDGMENT four children was born after 04.08.2005. The declaration of the petitioner has been misconstrued and misinterpreted by the authorities without considering the first proviso to Section 30(1)(m) of the Act.

3.4 That respondent No.1State Government, which is the Revisional Authority, has also not taken into consideration the averments made by the petitioner in the Revision Application and a similar misinterpretation of the relevant provisions of law, on the facts of the case, has occurred while passing the impugned order. Though the averments of the petitioner have been recorded in the impugned order passed by respondent No.1, however, the conclusion does not reflect that the main ground of challenge of the petitioner, that none of his children were born after 04.08.2005, and the petitioner is covered by the first proviso to Section 30(1)(m) of the Act, has been considered. No findings have been recorded on all these aspects, whereas all the submissions of the complainant have been accepted in toto. Page 6 of 24

C/SCA/16564/2013 JUDGMENT 3.5 That in the impugned order passed by respondent No.1, the said respondent instead of relying upon the record maintained by the Registrar of Births and Deaths of the Gram Panchayat, that is, the Talaticum Mantri has relied upon a survey under the Integrated Children Development Scheme (ICDS), wherein the name of one Mohiniben has been entered as being the child of the petitioner, and the date of birth has been mentioned as 14.08.2008. The petitioner specifically denies that he has any child by the name of Mohiniben, who was born on 14.08.2008. This aspect finds support from the second table contained in the order passed by the Revisional Authority, where only three children of the petitioner's have been reflected. There is no mention of the fourth child Suhaniben, who was born on 27.07.2005. This shows that the respondents have not relied upon the relevant record of the competent authority but are relying upon material from the ICDS, to which no authenticity regarding the date of birth can be attached.

3.6 That a specific plea was raised by the petitioner before the respondentAuthorities that his fourth Page 7 of 24 C/SCA/16564/2013 JUDGMENT child, Suhaniben, was born on 27.07.2005. The petitioner has also produced a Birth Certificate regarding Suhaniben which is attached at AnnexureIII (running page 74 of the petition). The easiest way for the authority to verify whether Suhaniben, the fourth child of the petitioner, was born on 27.07.2005, or not, was to call for the Register of Births and Deaths maintained by the TalaticumMantri. Instead of this, the respondentauthorities have chosen to rely upon the affidavit deposed by the then Incharge Talati cumMantri on 25.04.2014, after the filing of the petition.

3.7 In support of his case that the fourth child of the petitioner was born before the coming into the force of the Amending Act, the petitioner has produced the relevant notarised copy of the Register of Births and Deaths, issued by the Talati, in which it is recorded at serial No.106, that a daughter named, Suhaniben was born to the petitioner on 27.07.2005. This entry has not been denied by the respondent. 3.8 That instead of relying upon the Register of Births and Deaths maintained by the Amba Gram Page 8 of 24 C/SCA/16564/2013 JUDGMENT Panchayat, the respondents seek to rely upon the Register of Births and Deaths maintained by the Dahod Municipality and a Birth Certificate issued by the Competent Authority of the said Municipality, in respect of one Mohiniben, who is stated to have been born on 14.08.2008, though it is the specific case of the petitioner that Mohiniben is not the daughter of the petitioner. In the said Birth Certificate, the names of the petitioner and his wife have not been reflected but the parents of Mohiniben are stated to be Dineshbhai and Binduben. However, the correct names of the petitioner and his wife are Iteshbhai and Bijuben.

3.9 That the then Incharge TalaticumMantri has deposed on an affidavit dated 25.04.2014, to the effect that the signature on the Birth Certificate of Suhaniben, produced by the petitioner, is not his and that the relevant record, that is, the Register of Births and Deaths of Amba Gram Panchayat is not available. The respondentauthorities ought to take action against the said Talati for not maintaining the record as per the Statute.

Page 9 of 24

         C/SCA/16564/2013                          JUDGMENT



3.10          That   the   petitioner   has   produced   certain

documents at pages 97 to 102 of the petition, in order to show that the signature on the Birth Certificate of Suhaniben is that of the Talati, though it is sought to be denied.

3.11 On the basis of the above submissions, it is prayed on behalf of the petitioner that the impugned orders be quashed and set aside and the petition allowed.

4. Mr.H.S. Munshaw, learned advocate for respondents Nos.2 and 3 (District Development Officer and Taluka Development Officer) has forcefully opposed the submissions advanced on behalf of the petitioner and had submitted that:

4.1 The then Incharge TalaticumMantri of Amba Village Gram Panchayat has deposed an affidavit dated 25.04.2014, that the Register of Births and Deaths is not available and the signature on the Birth Certificate of Suhaniben, produced by the petitioner, at AnnexureIII (running page 74 of the petition) is Page 10 of 24 C/SCA/16564/2013 JUDGMENT not his. It, therefore, is clear that the said signature has been forged at the behest of the petitioner, who is the only interested party. 4.2 Since the then TalaticumMantri has deposed on an affidavit that the Register of Births and Deaths is not available, the petitioner is required to be put to strict proof as to how he has obtained a notarised copy of the extract of the very same Register, which has been produced at AnnexureI, running page 72 of the petition.

4.3 That a Register is maintained under the ICDS, wherein the names and details of the family of the petitioner have been mentioned. From the said extract of the Register, as recorded in the impugned order passed by respondent No.1, it is very clear that the fourth child of the petitioner is Mohiniben, who was born on 14.08.2008, which date is after the amendment in Section 30(1)(m) came into force.

4.4 That on the date of the survey, the said Mohiniben was three to four months old, which is also Page 11 of 24 C/SCA/16564/2013 JUDGMENT recorded in the said Register. The Register of Births and Deaths maintained by the Dahod Nagarpalika also mentions, at Item No.13, that a child named Mohiniben was born to the petitioner on 14.08.2008, at a private clinic named Santokbai Hospital, Dahod. The name of the petitioner is mentioned as the father of the said child.

4.5 That the declaration made by the petitioner at the time of the filing his Nomination Form on 10.12.2011, does not mention the names and details of his children or their dates of birth. It is only mentioned that the petitioner has four children. 4.6 That there is a tampering with the record of the Dahod Municipality, as the name of the petitioner, which is Iteshbhai, has been overwritten to read as Dineshbhai. This can only be done at the behest of the petitioner, who is the only interested party. In the Birth Certificate of Mohiniben as well, the name of Dineshbhai has been recorded due to tampering, at the behest of the petitioner.

Page 12 of 24

C/SCA/16564/2013 JUDGMENT 4.7 That the most vital document that shows the conduct of the petitioner is the affidavit deposed by the then TalaticumMantri of Amba Gram Panchayat, wherein the notice issued by the RegistrarcumNazir of the Court of the learned Judicial Magistrate, First Class, Jhalod, has been reproduced. From the said notice, it is evident that the case of the petitioner before the learned Magistrate was that the birth of his fourth child, Suhaniben, who was born on 27.07.2005, has not been recorded in the Register of Births and Deaths maintained by the Amba Gram Panchayat, therefore, an application has been filed for the said purpose.

4.8 On one hand, it is the case of the petitioner before this Court that the birth of his fourth child, Suhaniben, took place on 27.07.2005 which is evidenced by the extract of the Birth Register produced by him, whereas on the other hand, the petitioner has himself stated before the Court of learned Judicial Magistrate in January or February, 2012, that the birth of Suhaniben has not been registered in the Birth Register. The petitioner, therefore, is required to be Page 13 of 24 C/SCA/16564/2013 JUDGMENT put to strict proof from where he has procured the extract of the Birth Register of Amba Gram Panchayat which, as stated by the then Incharge Talaticum Mantri, is not traceable and who has provided it to him.

4.9 On the above grounds, it is submitted by the learned advocate for respondents Nos.2 and 3, that there is sufficient material on record to indicate that the fourth child of the petitioner, namely, Mohiniben was born on 14.08.2008, which date is after the coming into the force of provisions of Section 30(1)(m) of the Act on 04.08.2005, therefore, the petitioner has rightly been disqualified from holding the office of Sarpanch.

5. Mr.Udit D. Mehta, learned Assistant Government Pleader for respondent No.1 has supported the order passed by the respondent No.1 and has submitted that the said order is just and proper, on the basis of the facts and circumstances of the case and the material on record. He has prayed that the petition be dismissed.

Page 14 of 24

C/SCA/16564/2013 JUDGMENT

6. This Court has heard learned counsel for the respective parties and perused, material on record, the contents of the impugned order and other documents on record.

7. During the course of hearing, and after a thorough scrutiny of the record, this Court finds that both the petitioner and respondents Nos.2 and 3 have produced on record certain documents that were not produced before respondents Nos.2 and 3 or, for that matter, before respondent No.1, as well. For the above reason, this Court would be reluctant to form any opinion on the basis of documents not produced before the respondentauthorities. However, after perusing the said documents, certain glaring anomalies and discrepancies have surfaced which, in the view of this Court, touch upon the merits of the case and are of vital importance to the issue involved in the petition, namely, whether the disqualification of the petitioner as Sarpanch under Section 30(1)(m) of the Act is justified on the ground that the fourth child of the petitioner, namely, Mohiniben, was born on 14.08.2008 (after coming into force of the above Page 15 of 24 C/SCA/16564/2013 JUDGMENT provisions of law), or, whether the petitioner would not incur such disqualification as his fourth child Suhaniben was born on 27.07.2005, that is, before the coming into the force of the above provisions of law.

8. There is also the disputed question of fact whether the fourth child of the petitioner is Mohiniben, born on 14.08.2008 or Suhaniben, born on 27.07.2005, which cannot be decided in a petition under Article 226 of the Constitution of India.

9. It would, therefore, be of utmost importance to refer to the documents produced by both the sides before this Court, which may not have been produced before the respondentauthorities. This exercise cannot be done by this Court, as it is not a fact finding authority and cannot delve into disputed questions of fact. The anomalies and discrepancies noticed by this Court, on the basis of the material produced on the record of this petition, are as follows:

(a) It is the case of the petitioner that he already had four children before the coming into force of the Page 16 of 24 C/SCA/16564/2013 JUDGMENT provisions of Section 30(1)(m) on 04.08.2005, and his fourth and youngest child, Suhaniben, was born on 27.07.2005. In support of this submission, the petitioner has produced the Birth Certificate of Suhaniben at AnnexureIII (running page 74 of the petition), under the signature of the Talaticum Mantri, Amba Gram Panchayat. The petitioner has also produced an extract of the Register of Births and Deaths maintained by the Amba Gram Panchayat, pertaining to the year 2005, wherein the birth of fourth child of the petitioner, namely, Suhaniben is recorded at Serial No.106 and her date of birth is recorded as 27.07.2005.

(b) In contradiction to the above, the then Incharge TalaticumMantri has deposed an affidavit on 25.04.2014, that the signature on the Birth Certificate of Suhaniben produced by the petitioner is not his and that the Register of Births and Deaths maintained in Amba Gram Panchayat is not traceable. If the deposition of Shri Virsinh Somabhai Hihor, the then TalaticumMantri is true, then how has the petitioner come into the possession of a notarised Page 17 of 24 C/SCA/16564/2013 JUDGMENT copy of the extract of the Births and Deaths Register maintained by the TalaticumMantri of the Amba Gram Panchayat? The question also arises, who was the TalaticumMantri, who had given this record to the petitioner?

(c) It is the specific case of the petitioner that his fourth and last child, Suhaniben, was born on 27.07.2005, whereas the affidavit deposed by the then TalaticumMantri of Amba Gram Panchayat, reproducing a notice dated 17.02.2012, issued by the Registrar cumNazir of the Court of Judicial Magistrate, First Class, Jhalod, indicates that the petitioner has filed an application before that Court, taking a stand that the birth of his daughter Suhaniben, stated to have been born on 27.07.2005, has inadvertently not been recorded in the relevant record. The application has been made seeking orders/ directions from the learned Judicial Magistrate for recording the same. Before this Court, the stand of the petitioner is that the factum of the birth of his daughter Suhaniben, born on 27.5.2005, has been recorded in the Register of Births and Deaths, and an extract of that Register has been produced before this Court. If that is so, why would Page 18 of 24 C/SCA/16564/2013 JUDGMENT the petitioner make an application to the learned Judicial Magistrate, stating that the date of birth of his daughter, Suhaniben, has not been recorded? Once again, the issue regarding the notarised extract of the Register of Births and Deaths maintained by the TalaticumMantri of the Amba Gram Panchayat, annexed with the petition, comes to the fore. If the birth of the fourth child of the petitioner, named Suhaniben, has not been recorded in the relevant record, then how has the petitioner produced the relevant extract of the said Register issued to him by the Talaticum Mantri before this Court?

(d) The affidavit dated 25.04.2014 deposed by Shri Virsinh Somabhai Hihor, the then Incharge Talaticum Mantri of the Amba Gram Panchayat, was not produced before the Competent Authorities, as it has been deposed after the filing of the petition.

(e) Similarly, the Birth Certificate of Suhaniben, who is stated to be the fourth and last child of the petitioner, which has been produced before this Court at AnnexureIII does not appear to have been produced before the respondentauthorities. Page 19 of 24

C/SCA/16564/2013 JUDGMENT

(f) All these issues raise highly disputed questions of fact which cannot be decided by this Court but which need be looked into by respondent No.1 in order to decide the issue regarding disqualification of the petitioner.

10. The above anomalies and discrepancies were put to the learned counsel for the respective parties, who had no satisfactory explanation for them. However, the petitioner has filed an affidavit, affirmed on 27.11.2014, in which he has stated that the extract of the Birth Register, produced at page 72 of the petition and the Birth Certificate pertaining to Suhaniben at page 74 of the petition, were issued by Shri Virsinh Somabhai Hihor, the deponent of the affidavit annexed with the surrejoinder of respondent No.3, at page 82 of the petition.

11. From the above material on record and the anomalies noticed by this Court while hearing the present petition, it is clear that a proper inquiry is required to be made in the matter in order to get the correct factual picture.

Page 20 of 24

C/SCA/16564/2013 JUDGMENT

12. For this reason, this Court is of the view that the matter is required to be remanded to respondent No.1State Government, in order to minutely look into the above discrepancies and anomalies, so that an appropriate order, after conducting the necessary verification/inquiry and hearing the parties, can be passed.

13. This Court makes it clear that it does not intend to decide the petition on the merits, in view of the above discussion.

14. Hence, the following order is passed:

(1) The impugned order dated 10.10.2013, passed by respondent No.1, is quashed and set aside. The matter is remanded to respondent No.1 for fresh hearing in light of the discrepancies/ anomalies that have surfaced and in view of the material produced before this Court.

(2) Respondent No.1 shall inquire into the aspect whether the Register of Births and Deaths maintained by the TalaticumMantri of Amba Gram Panchayat is available, or not. If not traceable, who has provided Page 21 of 24 C/SCA/16564/2013 JUDGMENT the petitioner with a notarised extract of the said Register, under the signature of the Talaticum Mantri, that has been produced before this Court at AnnexureI (page 72 of the petition), in which the birth of Suhaniben is recorded at serial No.106 and the date of birth is 27.07.2005.

(3) Respondent No.1 shall also inquire as to who was the TalaticumMantri when such entry was made in the Register of Births and Deaths at Amba Gram Panchayat and whether it was the same TalaticumMantri who has deposed that the said Register is missing. (4) Respondent No.1 shall take into consideration the affidavit of the petitioner wherein the petitioner has stated that the said extract was supplied by Shri Virsinh Somabhai Hihor, the then TalaticumMantri in the month of July, 2013, but who now has deposed that the Register is missing.

(5) Respondent No.1 is further required to inquire into the aspect of the Birth Certificate of Suhaniben produced by the petitioner and the stand of the then Page 22 of 24 C/SCA/16564/2013 JUDGMENT Incharge TalaticumMantri, who states that the signature thereupon is not his.

(6) Respondent No.1 may also take into consideration the aspect that the petitioner has filed an application before the learned Judicial Magistrate, First Class, Jhalod, stating that he has inadvertently not got the birth of Suhaniben recorded in the Register of Births and Deaths and an application has been made to obtain necessary orders, to that effect;

whereas the petitioner has himself produced an extract of the Register of Births and Deaths maintained by Amba Gram Panchayat wherein the birth of Suhaniben is recorded at Serial No.106.

(6) After making the necessary inquiries and granting the petitioner and other parties a reasonable and adequate opportunity of hearing, along with all necessary documents, respondent No.1 shall pass a fresh order, in accordance with law, taking into consideration all the facts and circumstances of the case.

Needless to say, if respondent No.1 finds that any wrongdoing has been committed by any Government Official or any individual, appropriate action in Page 23 of 24 C/SCA/16564/2013 JUDGMENT accordance with law in this regard, shall be taken.

The entire exercise be completed as expeditiously as possible, but not later than 31.05.2015.

14. The petition is partlyallowed to the above extent. Rule is made absolute, accordingly.

It is clarified that while passing the order, this Court has not entered into the merits of the case.

Sd/ (SMT. ABHILASHA KUMARI, J.) piyush Page 24 of 24

Unlock Advanced Research with PRISMAI

Gujarat High Court