Wednesday, 3 August 2016

Whether public document will prevail over private document?

 The Division  Bench of this Court in the
case   of  Vasudha   Gorakhnath   Mandvilkar  (supra)   in
paragraph­14 held :
"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 
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).
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
WRIT PETITION NO.365 OF 2012
Subhash s/o Somla Pawar,

       VERSUS             
 The State of Maharashtra.

CORAM :     S.S. SHINDE, J.
                
  PRONOUNCED ON : 04-­02-­2013




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.
3. The   brief   facts   of   the   case   are   as
under:­
. It   is   the   case   of   the   petitioner   that,
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. 
 Respondent   No.   4   herein,   filed
application under section 14(1)(J­1) 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
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.
3. The Additional Collector, Osmanabad heard
the dispute and held that, since the petitioner is
convicted and the 4th child of the petitioner is
born   after   12th   September,   2001,   he   is
disqualified   as   a   member   and   Sarpanch   of
Grampanchayat. 4 wp365.12
4. At the outset, learned Counsel appearing
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
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 Exhibit­C
at   Page   26   of   the   compilation   of   the   writ
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
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   Page­31   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
11th September, 2001.  Therefore, relying upon the
copies of the aforesaid documents, the Counsel for
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
documents.   It   is   further   submitted   that,   the
document   submitted   by   respondent   No.   4   is   a
private   document   and   therefore,   the   public
documents   would   prevail   over   the   private 
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   of  Vasudha   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.
5. On   the   other   hand,   learned   Counsel
appearing   for   respondent   No.   4   placed   reliance
upon   the   reasons   recorded   by   the   Additional
Collector,   Osmanabad   and   also   the   Additional
Divisional   Commissioner,   Aurangabad   and   submitted
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
to   Information   Act,   the   respondent   No.   4   sought
information   from   the   Medical   Officer,   Primary 
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.
. Learned  Counsel  appearing  for  respondent
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.
6. I have given careful consideration to the
rival submissions.  At the outset, it is necessary
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 
and   order   of   the   Sessions   Court,   Osmanabad   is
under   challenge   before   this   Court   in   Criminal
Appeal No. 80 of 2012. 
. The   provisions   of   Section   14(1)   of   the
Bombay Village Panchayats Act, 1958 reads thus :
"14.   Disqualifications:   (1)   No   person
shall be a member of a Panchayat continue
as such, who­
(a) has, whether before or after the
commencement of this Act, been convicted
(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
the   State   Government   may   allow   in   any
particular   case,   has   elapsed   since   his
conviction, or
(ii) of any other offence and has
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 "
. The provisions of Section 14(j­1) of the
Bombay Village Panchayats Act, 1958 reads thus :
"(j­1) 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   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"
7. Upon careful perusal of the provisions of
sub section (1) of Section 14 of the said Act, it
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.
8. Learned   Counsel   for   the   petitioner   is
right   in   contending   that,   whenever   there   is
variance   between   an   unproved   private   document   or
its   copy   and   a   certified   extract   of   a   public
record,   later   must   prevail   as   it   has   more 
probative   value,   carrying   the   presumption   under
section 79 of the Evidence Act.
. In   the   facts   of   the   present   case,   the
documents   submitted   by   the   petitioner   are   public
documents.     The   said   aspect   has   not   been
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
by   the   petitioner   to   the   concerned   authorities.
Both the authorities have taken note of the fact
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
child   namely   Akshay   is   shown   as   11th   September,
2001, however, observed that, the earlier date in
the   said   certificate   in   the   record   was   20th
November, 2011, however, the same is corrected as 
11th   September,   2001.     Since   the   petitioner   has
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
of   the   Grampanchayat   and   therefore,   such
correction   is   made   in   the   certificate.   However,
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
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
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 
petitioner namely Akshay deserves to be set aside,
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.
9. The Division  Bench of this Court in the
case   of  Vasudha   Gorakhnath   Mandvilkar  (supra)   in
paragraph­14 held :
"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 
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).
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
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
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
bearing     No.2011/GB/Desk­1/GPN/KA­1/CR   15   decided 
on   8th   July,   2011   by   the   Additional   Collector,
Osmanabad   is   restored   to   its   original   file   for
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
mention that, while deciding the aforesaid issue,
the   Additional   Collector,   Osmanabad   shall   follow
the   ratio   laid   down   in   the   judgment   of   the
Division   Bench   of   this   Court   in   the   case   of
Vasudha Gorakhnath Mandvilkar  (supra) and proceed
to   decide   the   issue   involved.     The   Additional
Collector,   Osmanabad   shall   afford   reasonable
opportunity   of   hearing   to   the   parties   before 
taking decision afresh.
11. The   writ   petition   is   partly   allowed.
Rule   is  made   absolute   on   above   terms.     The   writ
petition stands disposed of.
                                     sd/­
                                 [S.S. SHINDE, J.]
      
sut/Feb13                        
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