Saturday 16 March 2013

Births and Deaths Registers maintained by the statutory authority are admissible in evidence


To my mind, it is not necessary to refer to the judgments as
the Honourable Supreme Court has repeatedly held that the Births and
Deaths   Registers   maintained   by   the   statutory   authority   raise   a
presumption of correctness. Such entries  are admissible in evidence in
terms of Section 35 of the Indian Evidence Act, 1872. Mr.Kumbhakoni has
laid emphasis on the aspect that these entries may be relevant, but this
will   have   to   be   proved   and   his   reliance   on   the   judgment   of   the
Honourable Supreme Court particularly in the case of Birad Mal Singhvi
v/s Anand Purohit reported in AIR 1988 SC 1796 is of no assistance. The
Honourable Supreme Court says in clearest terms that these registers are
maintained   by   the   statutory   authorities   and   entries   therein   raise   a
presumption of correctness. The entries are admissible in evidence. In the
present  case,  once   they  were  read in   evidence   that itself  means  that
before they are so read and relied upon, due opportunity was given to the
parties  to  controvert  the  same.  In other words, when  such entries  are
relied upon by summoning public officials and when they depose about
the same, their version is not accepted straightaway, but opportunity is
given   to   the   Opponent   to   cross  examine   the   said   officials.   Once   this
procedure   is   adopted   and   complied   with,   then,   entries   which   raise
presumption   of   correctness   and   are   made   in   the   statutory   registers

become admissible in evidence. Mr.Kumbhakoni does not dispute that this
procedure has been complied with completely in this case. If that is so,
then,   the   learned   Judge   committed   no   error   in   taking   them   into
consideration and rendering the ultimate finding.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
         WRIT PETITION NO.10313 OF 2011

Arif Ibrahim Choudhari,Vs  Sau.Vahida Ayyaz Nayakwadi,

CORAM :  S.C.DHARMADHIKARI, J.

Pronounced on : 14th December, 2012.


In view of the order passed on 05.01.2012 directing that this
Writ Petition be disposed of finally at the stage of admission, Rule.
2 Mr.M.L.   Patil,   who   has   filed   appearance   on   behalf   of   the
contesting Respondent No.1, waives service.  The Respondent Nos.2 and 3
have been duly served.   No  relief is claimed against  them and equally
against the Respondent No.4. As far as the Respondent Nos.5 and 6 are
concerned, the Registry has reported that service is complete, but none
has appeared on their behalf. The contest is really between Petitioner and
Respondent No.1.
3 With the consent of parties, the Writ Petition is disposed of by
this judgment.
4 By   this   Writ   Petition   under   Articles   226   and   227   of   the
Constitution of India, the Petitioner is challenging the judgment and order
dated 21.10.2011 passed by the learned Joint Civil Judge, Senior Division,
Sangli in Election Petition No.7/2008.
5 By   the   said   judgment   and   order,   the   Election   Petition
preferred  by  the  original  Petitioner i.e. Respondent  No.1.  to  this Writ

Petition has been allowed and the election of the Petitioner before me,
who is original Respondent No.4, to the post of a Councillor, Sangli, Miraj
&   Kupwad   City   Municipal   Corporation   (for   short   “SMKC   Municipal
Corporation”)  is  declared  as  void  and  is  set   aside.     The   Petitioner  is
ordered   to   pay   Rs.25,000/­   by   way   of   compensation   to   the   Election
Petitioner/ Respondent No.1 before me,  for  raising  false  and vexatious
defence  and  this  direction is  to  be  abided  by  after  a  period  of  three
months from the date of the judgment of the Trial Court.
6 The Election Petition No.7/2008 was filed by the Respondent
No.1 to this Writ Petition against the Petitioner and five others alleging
that the Election Commission had declared the election programme and in
terms of  the election programme,  the election  to  the SMKC Municipal
Corporation was notified.  At such election, for one of the ward bearing
No.9  the  Respondent  No.1  and  equally  the  Petitioner  were  contesting
candidates.   Their nominations were on  record.   The Respondent No.1
contested as a candidate of the Indian National Congress.  The Petitioner
contested the election as a candidate of one “Maha Aaghadi”.  The other
two   candidates   were   Digambar   Raghunath   Jadhav   and   Raju   Maruti
Sarvade.     After   the   polling   was   held   and   results   were   declared,   the
Petitioner was declared as elected.
7 However, the allegation in the election petition filed by the
Respondent No.1 is that the Petitioner was ineligible and disqualified for
contesting the election.  He could not have contested the election because
he does not fulfill the requirement of minimum age.  In other words, the
criteria of minimum age of 21 years is not fulfilled by the Petitioner.  In
paragraph 3 of the Election Petition, it is alleged that the Petitioner was

born   on   16th  January,   1989.     Therefore,   on   the   date   on   which   the
nomination forms were filed, he had not completed 21 years of age.  In
paragraph 4 of  the Election Petition, what is  alleged is  that when  the
Petitioner does not fulfill the requirement or criteria of age, then, he was
not eligible and qualified to contest the election.  In these circumstances,
his election be declared as void and should be set aside.  It was alleged
that this election is wholly illegal.
8 The election  results were  declared  on  01.07.2008  and  the
Election Petition was filed on 10.07.2008.
9 On  the  notices/summons  being  served,  there were Written
Statements filed.   It is not necessary to refer to the Written Statements
containing denials and which have been filed on behalf of the Statutory
Authorities.    Suffice it  to  refer  to  the Written  Statement  (Exhibit­58),
which was filed by the present Petitioner.  He has justified his election by
urging that it is false to suggest that the Petitioner was not 21 years of age
on the date of  filing of nomination.   On the other hand,  the Petitioner
asserted that he was born on 12.12.1986.  He has denied each and every
allegation in the Election Petition and has prayed that the Election Petition
be dismissed.
10 From paragraph 7 of the Written Statement, it is evident that
the  Petitioner  has  set  out,  what  according  to  him,  are  true  facts  and
circumstances.     Firstly,   he   urges   that   the   allegations   in   the   Election
Petition are an afterthought. The Respondent No.1 did not object to the
nomination   form   filed   by   the   Petitioner,   although   she   had   every
opportunity to do so.  Therefore, it is now not permissible to urge that the

Petitioner was ineligible and disqualified.
11 In   paragraph   7.3.   of   the   Written   Statement,   what   the
Petitioner has stated is that he was born on 12.12.1986.  The Petitioner
has never mentioned any date much less 16.01.1989 as his date of birth.
It is not possible that the Petitioner will give any information because in
January, 1989 he was only two years of age.  In fact, the correct position
is  that  the Petitioner has a brother, namely, Asif whose date of birth is
16.01.1989.  There is, therefore, no question of the Petitioner giving his
date of birth as 16.01.1989.  The Petitioner has taken a specific stand that
it is a mistake committed by the recording officer.    It is because of the
similarity in the name that this confusion has occurred.  The Petitioner is
not responsible for this error in the records of the Municipal Corporation.
The Petitioner relied upon the entry with regard to the date of birth in his
Driving Licence and asserted that it is 12.12.1986.
12 In   paragraph   7.4   of   the   Written   Statement,   what   the
Petitioner  has  stated is  that  he  has  only  one  surviving  brother.    That
brother's   name   is   Zuber.   However,   prior   to   the   birth   of   Zuber,   the
Petitioner had two brothers, but they died very early and untimely.  After
the Petitioner was born, there was another brother, namely, Asif.   Even
Asif   who   was   born   later   than   the   Petitioner   is   not   now   surviving.
However, on account of confusion in  the names viz. Arif and Asif and
further because of illiteracy and poverty, the records in the Nagar Parishad
or in the Schools were not properly maintained. The entries therein were
not corrected because of the typical social background and set up.  Later
on, when  the  Petitioner  himself  became  aware  of  the mistake,  he  got
necessary corrections made such as in the Driving Licence.  However, that

document   coupled   with   the   endorsement   and   entry   in   the   hospital
records, namely, Ashwini Prasad Hospital of Dr. Gosavi will show that the
Petitioner was born on 12.12.1986.   A reference to the date of birth as
16.01.1989 made by the Respondent No.1/ Election Petitioner is based on
the entry in the Municipal records. However that is incorrect. If that entry
is   carefully   perused,   it   would   be   clear   that   it   is   false,   though   the
Petitioner's religion is Muslim, but against the name of his mother Smt.
Yasmin Choudhari in the Municipal records in the column of religion, the
entry is  “Hindu”.   This itself would  show  that  the Municipal  record is
unreliable and incorrect.  If there is an error therein, then, the Respondent
No.1 should not be permitted to rely on the same.  In any event, entries
therein  are  falsified  by  the  Petitioner  as  he  has  produced  voluminous
other records.  The Petitioner also relied upon the affidavits filed by his
family members. For all these reasons, he prayed that the Election Petition
be dismissed. 
13 After  the pleadings were complete,  the learned Trial Judge
framed the necessary issues.  I am concerned with the Issue No.1, which
reads as under :­
“Whether   Petitioner   proves   that   respondent   No.1   was/is
disqualified to contest Municipal Corporation Election and to
be declared elected being not completed age of 21 years?”
14 After preliminary rounds concluded, the Election Petition was
taken up for trial. The documentary evidence is referred to in paragraph
41 of the judgment of the Trial Court.  There is also extensive reference to
the oral evidence. Relying upon all this, what the learned Judge has held
is that the Petitioner's version that he was not disqualified on account of

the age, is incorrect and  false. His date of birth as  reflecting  from  the
documents   at   Sr.No.1   to   6   produced   by   the   Election   Petitioner/
Respondent No.1  to  this Writ Petition would show  that he was not 21
years of age on the date of filing of the nomination papers.  The finding
is, therefore, that crucial documents to determine the age would prove
beyond reasonable doubt that the Petitioner was born on 16.01.1989.  It
is on this conclusion that the Issue No.1 was answered in the affirmative
and it was declared that the Petitioner had not completed 21 years of age
on the date of filing the nomination paper.  The election was, therefore,
declared as illegal and void.
15 It  is   this   judgment   and   together   with   imposition   of   costs
therein   and   equally   the   adverse   remarks   and   findings   against   the
Petitioner and his conduct and equally the alleged dilatory tactics adopted
by him  and his Advocate,  are  subject matter of  challenge in  this Writ
Petition.  
16 Mr.Kumbhakoni, learned Counsel appearing on behalf of the
Petitioner,   submits   that   the   record   would   refer   to   the   fact   that   the
Petitioner's mother was married on 10.10.1982.  In 1983, her first child
was born. Unfortunately, he died in two days.  The second child was born
in 1984, but died in one month.  The third child is born in 1985 and his
name is Zuber.  He is alive. The Petitioner was the fourth child and he was
born   on   12.12.1986.     The   fifth   child,   namely,   Asif   was   born   on
16.01.1989, however, he died after two months of birth and prior to the
naming   ceremony   called   'Chhila'.     In   these   circumstances,   there   is
confusion inasmuch as  the Petitioner's name is Arif  Ibrahim Choudhari
and his brother's name is Asif Ibrahim Choudhari.   If the Petitioner was

born on 12.12.1986, then, on the last date of filing of nominations i.e. the
relevant   date,   namely,   27.5.2008,   the   Petitioner   was   eligible.   He   had
completed 21 years of age. 
17 Mr.Kumbhakoni then submitted that the learned Judge fell in
patent error in  allowing  the Election Petition.   The entire judgment is
vitiated by errors apparent on the face of the record.  The same is also
vitiated by perversity.  The learned Judge has relied on several documents
which were produced by the Respondent No.1. The documents included
the Birth Certificate furnished to Alphonso Convent School, Miraj.  This
Birth Certificate was issued by the SMKC Municipal Corporation.  There is
reliance placed on certain documents  and  the learned Judge  then  has
held   in   paragraph   42   of   the   impugned   judgment   that   all   these   14
documents  depict   that  the   birth   date  is  16.01.1989.    Mr.Kumbhakoni
submits that reliance placed on Section 35 of the  Indian Evidence Act,
1872 will not mean that the entries therein are proved.  In other words,
even if what are produced are public documents, what the law postulates
and presumes is their existence.  Even if they are public documents, their
contents have still to be proved.  Merely because certified copies of public
documents are produced on record and read in evidence that does not
mean that their contents are true and correct.  There is no presumption
about truth and correctness of the contents of even public documents is
the submission of Mr.Kumbhakoni. He, therefore, submits that the learned
Judge  completely misread  and misinterpreted  the legal  provisions  and
arrived   at  an   erroneous  conclusion   that  once   what  are   produced  are
public  documents,   then,   their   contents   are   deemed   to   be   proved   on
production thereof.   Therefore, no dispute can be raised with regard to
the contents of such documents. This error, according to Mr.Kumbhakoni,

has vitiated the entire judgment.
18 Mr.Kumbhakoni   then   submits   that   the   learned   Judge's
observations in  paragraph  46  of  the impugned judgment  are  patently
erroneous and unsustainable. Mr.Kumbhakoni has taken me through some
of   the   documents   in   the   compilation   and   particularly   Exhibit   191.
Mr.Kumbhakoni submits that the chart produced will show that the name
of Arif as against entry made in 1986 is deleted. As against the year 1989,
the name of Arif has been inserted, but that is not correct because in the
column of religion it is shown that he is Hindu.   Mr.Kumbhakoni then
invites my attention to the information that is provided by the Statutory
Corporation (SMKC Municipal Corporation)  to  the effect  that  the birth
and  death information   forms  have  been  destroyed.    Even  if   they  are
destroyed, what is evident in this case is that two Doctors who have been
examined   by   the   Petitioner   deposed   that   the   Petitioner's   mother   was
brought   for   delivery   to   the   hospitals,   namely,   Dr.Gosavi's   and
Dr.Chaugule's hospitals where she delivered children in  the years 1986
and  1989.    The   Doctors'  evidence   has  been   completely ignored  from
consideration. The evidence is that the child born in the year 1989 is with
birth defects. This child is not alive. Further, it is not as if the Petitioner
has cooked up a story as is unfortunately termed by the learned Judge.
The   Petitioner's   mother   was   unfortunate   in   life.   She   had   repeated
miscarriages.  Her children did not survive.  When the two Doctors were
examined and nothing was elicited in  their cross­examination so as  to
disbelieve their version or credibility, then, the primary evidence has been
completely ignored. The Petitioner was born in  the year 1986 and  the
child born at this hospital in the year 1989 was not alive.  Such defence
raised by the Petitioner can hardly be termed as frivolous.  There was no

reason  to impose  heavy  costs.    Equally,  the  deposition  of  the mother,
father and grand father has been ignored and left out of consideration. In
such circumstances, the judgment really is one sided and unnecessarily
casts  aspersions  on  the  Petitioner  and  his lawyer.   The  Petitioner was
represented  by  the very  senior  and  respected  Advocate in  Sangli  and
there  was  no  occasion  to  pass  strictures against  him,  but  the learned
Judge did so  and  this is crossing  all limits of decency  and  sobriety in
delivering judgments. In such circumstances the impugned judgment be
quashed and set aside.  
19 Mr.M.L.Patil,   learned   counsel   appearing   on   behalf   of   the
Respondent   No.1,   on   the   other   hand,   has   supported   the   impugned
judgment.   He submits that the petition is frivolous and deserves to be
dismissed.  The Petitioner's conduct is such that he does not deserve any
sympathy.   This Court's jurisdiction under Articles 226 and 227 of  the
Constitution of India is extra ordinary, equitable and discretionary.  The
Petitioner, who has not approached the Court of Law with clean hands,
should not,  therefore, be  assisted in  such jurisdiction. Mr.Patil  submits
that it has been pointed out by the Respondent No.1 that although the
witnesses examined by the Petitioner have stated that his younger brother
Asif died before naming ceremony called “Chhila” and that the Petitioner
Arif is the second child born to his parent, but bearing in mind the public
records   and   certified   copies   till   the   year   2008   depicting   completely
contrary version, then, such oral testimonies have been rightly discarded
and entries in public records have been preferred and accepted. Such a
course   adopted   by   the   Court   below   is   not   at   all   erroneous   or
impermissible in law.

20 Mr.Patil   has   heavily   relied   upon   the   observations   of   the
learned Judge in paragraph 5 of the impugned judgment and submitted
that how on each count the Petitioner has come up with a false version.  It
is on the eve of elections that the Petitioner makes an attempt to get his
birth  date  altered  and  changed.  In  February,  2008,  he  approaches  the
Municipal   Authorities   and   seeks   a   change   in   the   birth   date   from
16.01.1989  to  12.12.1986.  The  election was  notified in March,  2008.
Then there is admission in the cross­examination that the Petitioner had
two vehicles and two licences.  Most importantly, there is inconsistency in
the important records like the Register of Births and Deaths, which was
there, but not corrected till 2007.  Even in the school admission forms and
LIC policies, the Petitioner's date of birth is 16.01.1989.  These have not
been explained.  Lastly, not much  can  be made­of  of  the  alleged error
which has crept in the column of religion.  For all these reasons, Mr. Patil
submits that this is not a Court of  further appeal so as to permit a re­
appreciation and re­appraisal of factual materials.  For these reasons, it is
submitted that the Writ Petition be dismissed.
21 Mr.Patil has also pointed out that what the Respondent No.1
has produced on  record is  the Birth and Death Register extract of  the
child born on 12.12.1986, the Birth Certificate of  the Petitioner, Voters
List of 2008, Voters List of 2007 and the School Leaving Certificate of the
Petitioner   issued   by   the   New   Apostolic   English   School,   Miraj.   These
documents and their contents have been relied upon by the learned Judge
because despite lengthy cross­examination the Petitioner was not able to
disprove  them.   These entries were,  therefore, reliable and  trustworthy
and could have been made the basis for a finding of the Petitioner's age.
In such circumstances, even if the Trial Court has been little harsh on the
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Petitioner and his advocate, that was justified. However, with regard to
the remarks and observations of the learned Judge against the Petitioner's
Advocate, Mr.Patil on instructions states that he leaves the matter to the
Court  on  this  aspect.  Equally,  the Respondent  No.1  will  not insist  on
payment of costs, but there should be enough deterrent so that persons
like the Petitioner should not dare to interpolate and alter public records
and  public  documents. Such  persons  for political  advantage  and  gains
have  gone  to  the extent  of  falsifying  public  records  and  changing  the
entries therein. Such criminal conduct needs to be visited with extreme
penalty. The Petitioner,  therefore, should be prosecuted and  this Court
must, therefore, direct all appropriate and competent authorities to take
cognizance   and   note   of   the   Petitioner's   conduct   and   initiate   criminal
prosecution  against  him.    For  these  reasons,  he  submits  that  the Writ
Petition be dismissed.
22 For properly appreciating  the  rival contentions it would be
important  to  note  that  one  of  the  qualifications  and eligibility  criteria
prescribed by law for contesting the election is that such a person should
be an elector for a constituency. The word “elector” has been defined in
Section 2(e) of  the Representation of  the People Act, 1951  to mean a
person whose name is entered in the electoral roll of that constituency for
the time being in force and who is not disqualified under Section 16 of
the Representation of People Act, 1950.
23 As far as 1950 Act is concerned, it is apparent that a person
shall be disqualified for registration in an electoral roll if he incurs any of
the disqualifications. Such disqualifications are set out by Section 16 of
the Representation of the People Act, 1950.  Every person who is not less

than 18 years of age on the qualifying date and ordinarily residing in the
constituency shall be entitled to be registered in the Electoral Roll of that
constituency.   However,   for   the   purpose   of   being   a   candidate   at   the
election,  this alone is not sufficient. There are qualifications which are
prescribed for membership of the Council of State and for membership of
the House of People and those are to be found in The Representation of
People   Act,   1951.   If   one   peruses   these   provisions,   they   provide   for
qualifications and equally disqualifications.  There are disqualifications on
several  grounds,  namely,  conviction  in   criminal  cases  and  for  corrupt
practices   and   others.     There   are   equally   disqualifications   for  voting.
However, when it comes to filing of nominations for elections, what the
Law has prescribed is that the nominations which are filed for elections
have to be scrutinized and such scrutiny which is envisaged is in relation
to several aspects. The nomination paper is not liable to be rejected unless
the defect therein is of substantial character.
24 What one finds is that for being a candidate at the elections,
there has to be a criteria of age which has to be fulfilled and satisfied.  In
the present case, since  the elections are  to  the Municipal Corporations
and which Municipal Corporations  are  now  part  of  the Constitutional
Scheme, namely, Part IX­A of the Constitution of India, one will have to
refer to the provisions therein.  
25 As far as Municipalities are concerned, they are covered by
Part IX­A.  Article 243­V of the Constitution of India appearing in part IX­A
reads as under:­
“243­V. Disqualifications for membership.—
(1)  A person shall be disqualified for being chosen as, and
for being, a member of a Municipality—

(a)  if he is so disqualified by or under any law for the
time being in force for the purposes of elections to the
Legislature of the State concerned:
Provided that no person shall be disqualified on
the ground that he is less than  twenty­five years of
age, if he has attained the age of twenty­one years;
(b)  if he is so disqualified by or under any law made by
the Legislature of the State.
(2)  If any question arises as to whether a member of a
Municipality   has   become   subject   to   any   of   the
disqualifications   mentioned   in   clause   (1),   the
question   shall   be  referred  for   the  decision  of  such
authority and in such manner as the Legislature of a
State may, by law, provide.”
26 A bare perusal of this Article would reveal that a person shall
be   disqualified   for   being   chosen   as   and   for   being   a   member   of
Municipality, if he is so disqualified by or under any law for the time being
in force for the purposes of elections to the State Legislature concerned
and by proviso below this, what has been provided is that no person shall
be disqualified on the ground that he is less than 25 years of age, if he has
attained the age of 21 years.  Therefore, a person is qualified for being a
member of the Municipality, if he has attained the age of 21 years.
27 In this case, the argument and equally allegations throughout
is that  the Petitioner was born on 16.01.1989. The crucial date and in
other words, of filing nominations for the subject elections to the SMKC
Municipal Corporation is 27.03.2008.  The allegation then is that on this
date the Petitioner had not attained 21 years of age.  He was below 21
years of age and therefore, disqualified.
28 An Election Petition was filed alleging that the Petitioner was

disqualified for being elected.  Thus, this is a case where sub­section (1)
of Section 16 of the Bombay Provincial Municipal Corporation Act, 1949
was   invoked.   The   Petitioner's   nomination   form   could   not   have   been
therefore accepted, as he was not qualified to be elected as a Councillor.
29 It  has  been  consistently  held  by  the  Honourable  Supreme
Court  that  there may be certain defects in electoral process. However,
when  the validity of  an election is challenged on  the  ground  that  the
returned candidate was disqualified being under age, then, the inquiry is
whether he was eligible to contest as a candidate for the said election. He
may be enrolled as a voter. His enrollment as a voter and his registration
as a voter/ elector apart, if an inquiry is sought with regard to his age and
on the basis that he was not qualified to be a candidate, then, such an
inquiry is distinct and is not prevented by law. In other words, an inquiry
that a person was not qualified to be a candidate on the ground that he is
not   of   21   years   of   age,   is   permitted.   That   is   permitted   because   any
election even to the Municipality is liable to be set aside on the ground of
non compliance with the provisions of the Constitution of India. In this
case, non compliance is with Article 243­V(1) of the Constitution of India.
There are catena of decisions right from the first one noted, namely, AIR
1954 SC 520  (Durga Shankar Mehta v/s Raghuraj Singh and others) in
which it  has  been  held  that  this inquiry is  permissible in  an  Election
Petition. One may  usefully  refer  to  the  decision in  the  case  of  Sushil
Kumar v/s Rakesh Kumar  reported in AIR 2004 SC 230  (see paragraphs
23 to 26 at page 236)
30 It   is   precisely   such   an   inquiry   which   was   sought   by   the
Respondent No.1 and to my mind, the learned Judge has in a lengthy and
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really uncalled for exercise, overruled preliminary objections and points of
waiver   and   estoppel   raised   on   behalf   of   the   Petitioner.   There   is   no
argument canvassed before me that the Respondent No.1 was estopped
from   filing   an   Election   Petition   under   Section   16(1)   of   the   Bombay
Provincial   Municipal   Corporation   Act,   1949   and   raising   an   issue   of
Petitioner's age even if that was raised, but rejected or was not raised at
all at the stage of scrutiny of nomination papers. There being no estoppel
against   Law   and   the   Law   permitting   such   an   inquiry   even   after   a
candidate   has   been   declared   duly   elected,   then,   on   elementary   and
fundamental   principles   all   technical   objections   should   have   been
overruled. The learned Judge was, therefore, not required to be strong
and critical in his comments when the Petitioner's Lawyer raised technical
pleas  as noted  by  him. A  Judge need  not  be  disturbed every  time  by
dilatory tactics. There are litigants and litigants and equally Lawyers and
lawyers. Some Lawyers are able to detach themselves completely from the
cause  and  are  not  over  sensitive even if  their  arguments  are  rejected
outright. There are some Lawyers, who despite experience and passage of
time, continue to conduct matters as if they are freshers just out of a Law
College. For them, winning a matter is vital. Therefore, a Presiding Officer
or a Judge is often confronted with various types of Advocates and while
dealing   with   them,   one   need   not   be   hypersensitive,   even   if   there   is
unnecessary   provocation.   There   are   some   tactics   which   need   to   be
condemned and put down straightaway. However,  there is method and
manner of doing  this and with grace, sobriety and reserve, a Presiding
Officer can ride over a tricky situation in the court. The skill lies in not
getting   carried   away,   but   being   impartial,   fair   and   yet   firm   and
uncompromising. So much is enough for the learned Judge's approach in
this case and I am sure that if he has long career ahead of him, he will

learn from this experience.
31 As   far   as   oral   and   documentary   evidence   in   this   case   is
concerned, a brief reference thereto is necessary. There are voluminous
compilations which have been  filed, but what has been produced as a
proof of age are the earliest documents such as application for admission
to  a  school. When  the  Petitioner was  to  be  admitted in  Standard­I in
Alphonsa Convent School, Miraj, in the Application Form for Admission
which was addressed to the Headmaster the date of birth of the Petitioner
is mentioned as 16.01.1989 in figures as also in words. This form is filled
in on 07.06.1995 and received by the Headmaster of that school on that
very date.
32 The   Corporation   issued   the   birth  certificate  in   the   format
prescribed by the Registration of Births and Deaths Act, 1969, that also
mentions   the   date   of   birth   as   16.01.1989   and   is   referable   to   the
Registration   No.206   in   the   Register   which   has   been   maintained   in
ordinary and regular course of business.
33 Further, it is written in this certificate in the remarks column
that the entries therein have been made on the basis of the application
dated 02.07.1992 which application was made by none other than parent
of  the  Petitioner. A  certified  true  copy  of  the  application made  to  the
Alphonsa   Convent   School,   Miraj   and   equally   a   certified   copy   of   the
Certificate issued by the Corporation is exhibited and these documents are
at Exhibits 121 and 122 and the entry in the General Register maintained
by the School also shows the date of birth of the Petitioner as against his
name Choudhari Arif Ibrahim as 16.01.1989. 

34 Exhibit­124 is an application form which has been made to
the Alphonsa  School  on  06.06.2002  for  admission  of  the  Petitioner in
VIIIth standard and Exhibit­125 is a true copy of the Leaving Certificate
issued   by   that   very   school   which   also   bears   the   date   of   birth   as
16.01.1989.  In none of  these documents, one  finds any discrepancy or
error in the date of birth either in figures or words.
35 Exhibit­126 is an extract from the Admission Register of the
very school and equally therein the same details with regard to the date of
birth have been mentioned. When the Petitioner passed his Xth standard
from   New   Apostolic   English   School,  Miraj,   even   that   school   issued   a
Leaving Certificate (Secondary) (Exhibit­130) in which the same date of
birth is mentioned, namely, 16.01.1989.
36 Prior   thereto,   Exhibit­127   is   a   Leaving   Certificate   from
Alphonsa School, Kupwad Road, Miraj and pertinently the Petitioner left
that school on 06.06.2005. He was in standard IX since June, 2004. There
also the date of birth is mentioned as 16.01.1989.
37 Exhibit­132   is   the   document   of   the   Polytechnic   College,
Sangli wherein as well the date of birth is mentioned as 16.01.1989. In
Exhibit­133 which is the proposal for Life Insurance Policy, the father of
Petitioner has entered the date of birth as 16.01.1989 and signed below
the information provided.
38 Exhibit­138 is also a document emanating from the record of
the Life Insurance Corporation (LIC), there on the relevant date, namely,

17.04.2006 the age of Petitioner was mentioned as 17 years and the date
of birth is 16.01.1989.
39 Much has been made of Exhibit­191 which is an extract of the
Register   of   Births   and   Deaths   maintained   by   the   SMKC   Municipal
Corporation wherein at Sr.No.5064  the  registration date is 26.12.1986,
birth date is 12.12.1986 and entry in the sex column is male. Place of
birth   is   Ashwin   Prasad   Hospital,   Miraj.   The   name   of   father   of   the
Petitioner appears and against the entry name of child the word “Arif” has
been inserted subsequently as is apparent from the endorsement thereon.
40 In this behalf, reliance is placed by the Municipal Corporation
on Section 14 of the Registration of Births and Deaths Act, 1969. Sections
13  to  15  of  the  Registration  of  Births  and Deaths  Act,  1969  read  as
under:­ 
“13.  Delayed registration of births and deaths:­
(1) Any birth or death of which information is given to
the Registrar after  the expiry of  the period  specified
therefor, but within thirty days of its occurrence, shall
be registered on payment of such late fee as may be
prescribed.
(2) Any birth or death of which  delayed information is
given to the Registrar after thirty days but within one
year of its occurrence shall be registered only with the
written permission of the prescribed authority and on
payment of the prescribed fee and  the production of
an affidavit made before a notary public or any other
officer   authorised   in   this   behalf   by   the   State
Government.
(3) Any   birth   or   death   which   has   not   been   registered
within one year of its occurrence, shall be registered
only on an order made by a Magistrate of  the first
class  or  a  Presidency Magistrate  after   verifying  the
correctness of the birth or death and on payment of
the prescribed fee.

(4) The   provisions   of   this   section   shall   be   without
prejudice to any action that may be taken against a
person for failure on his part to register any birth or
death within the time specified therefor and any such
birth or death may be registered during the pendency
of any such action.
14. Registration of name of child:­ Where the birth of any
child has been registered without a name, the parent
or guardian of such child shall within the prescribed
period  give information  regarding  the  name  of  the
child to the Registrar either orally or in writing and
thereupon the Registrar shall enter such name in the
register and initial and date the entry.
15. Correction or cancellation of entry in the register of
births and deaths:­ If it is proved to the satisfaction of
the Registrar that any entry of a birth or death in any
register  kept  by  him  under  this Act is  erroneous in
form   or   substance,   or   has   been   fraudulently   or
improperly made, he may, subject to such rules as may
be made by the State Government with respect to the
conditions on which and the circumstances in which
such entries may be corrected or cancelled, correct the
error   or   cancel   the   entry   by   suitable   entry   in   the
margin, without any alteration of the original entry,
and shall sign the marginal entry and add thereto the
date of the correction or cancellation.”
41 A perusal of these provisions would indicate that they enable
registration of births and deaths belatedly. However, giving information is
the duty of  the  persons  specified in Section 8. They  have  to  give  this
information according  to  the best of  their knowledge  and belief either
orally or in writing within the time prescribed. If they fail to do so, then,
additional period of 30 days is provided by Section 13(1). Further delayed
information   can   be   given,   but   that   should   be   within   one   year   of
occurrence. But, if it is given within one year of occurrence, such birth or

death   shall   be   registered   only   with   the   written   permission   of   the
prescribed   authority   and   on   payment   of   the   prescribed   fee   and   the
production of an affidavit made before a notary public or any other officer
authorised in  this behalf by  the State Government. Any birth or death
which has not been registered within one year of its occurrence, shall be
registered only on an order made by a Magistrate of the First Class or
Presidency Magistrate on payment of the prescribed fee. There is penalty
provided which is without prejudice to power to take any action which
may be taken against a person on failure on his part to register any birth
or death within the time prescribed there for. 
42 In the instant case, what one finds is that the endorsement,
which is  relied upon, has been  subsequently cancelled. The  reason  for
cancellation   is   assigned   and   that   is   found   in   Exhibit­191   itself.   The
endorsement as “Arif” has been cancelled by taking recourse to Section 15
of   the   Registration   of   Births   and   Deaths   Act,   1969.   That   power   is
conferred by Section 15 and which is not disputed. If, therefore, the entry
has been cancelled, then, no reliance could have been placed thereon by
the Petitioner.
43 What has been then relied upon and very vehemently before
me is the deposition of Dr.Prabha Dattatray Gosavi. She states that she has
been deposing on behalf of the Ashwini Prasad Hospital. She states that
she   and   her   husband   late   Dr.Gosavi   have   been   managing   and
administrating  this   hospital   from   1964.   It  is   stated   that  they   provide
maternity and related services. After her husband, she and her daughter­
in­law are providing the said services. She states that the procedure for
admitting a patient in the hospital is as enumerated in paragraph 3 of her

examination­in­chief. She has produced the delivery book. She has stated,
with reference to the original register, that Smt.Yasmin Ibrahim Choudhari
and  Ibrahim Choudhari are  the persons in relation  to whom  the Entry
No.203 has been made. She has stated as to what was the nature of the
delivery and how the entries in the column have been made. She states
that as far as the subject entry is concerned, it is true that a child was
delivered at the hospital and even if her deposition is read and taken as it
is, all that it would demonstrate is that the Petitioner's mother had been
admitted to the said hospital for delivery on more than one occasion and
her number of deliveries are also as stated therein. 
44 However,   the   learned   Judge   has   rightly   held   that   the
contention is that the Petitioner's father had in all five children, out of five
only two are alive and three died very young. The birth of children and
survival of Arif may have been proved by two doctors who have produced
their  registers  of  birth  as  recorded  by  them,  but  such  deposition  and
entries will not be of any assistance to the present Petitioner. Even if the
birth  of  children in  the  said  hospital is  proved,  by itself  this will  not
advance the case of the Petitioner any further. Rest of the evidence cannot
be said to be reliable and trustworthy. The learned Judge has assigned
reasons as to why he is disbelieving the documents such as Deaths and
Births Register extracts of child born on 12.12.1986, Birth Certificate of
the Petitioner, voters list, etc.. The learned Judge, in paragraph 55 of the
order under challenge, has held that Exhibits­224 and 225 stated that the
birth date of the Petitioner therein is 12.12.1986, but these documents are
created just prior to the elections. The inquiry report of the Health Officer
of  the SMKC Municipal Corporation dated 17.07.2008 Exhibit­206 and
the statement of employee of the Corporation, namely, R.S.Yadav, states

that   insertion   of   birth   date   of   Arif   as   12.12.1986   was   nothing   but
falsification of public records with the help of employee R.S.Yadav. The
said R.S.Yadav was not examined  as  a witness,  but  the inquiry  report
cannot  be ignored.  The learned  Judge,  therefore,  rightly  held  that  an
attempt was made even to tamper with public records. The learned Judge
has assigned cogent and satisfactory reasons for rejecting the argument
that   the   inquiry   report   has   been   relied   upon   without   examining   the
persons making  the  statements in  the inquiry. Once  the inquiry  report
prepared by Dr.Hankare is accepted on record by giving full opportunity
to the Petitioner to cross examine Dr.Hankare, then, there is absolutely no
prejudice. This inquiry reveals that the name of Arif was inserted in the
Deaths and Births Register by R.S.Yadav at the instance of the Petitioner's
father who happens  to be a Councillor of the said Corporation  for two
terms. They have corrected the mistake and deleted that entry and that
has  been  already  referred  to  by me  hereinabove.  Therefore,  once  this
entry is deleted, then, relying on the same the Petitioner could not have
alleged that the date of birth was 12.12.1986.
45 The learned Judge has given cogent reasons  for discarding
Exhibits­224 and 225. Once the date of birth is not 12.12.1986 and such
entry made in  public  records was  based  on  this  document,  then,  that
document itself is unavailable  after  the entry is  deleted in  accordance
with law. The learned Judge, thereafter, has rightly faulted the Petitioner
and his father for indulging in falsification of records and I do not feel
that these observations and comments are too harsh or inconsistent with
the material placed before the learned Judge.
46 The learned Judge has relied upon the date of birth from the

School   first   attended   by   the   Petitioner   Exhibit­136­A   and   the   Birth
Certificate  given by  the Corporation Exhibit­192  and  the Matriculation
Certificate Exhibit­125. All these documents stated the date of birth of the
Petitioner as 16.01.1989. How these entries and documents wherein same
are made are reliable and  trustworthy has been  then explained by  the
learned Judge in paragraphs 60 to 64.
47 Once   I   agree   with   the   appraisal   and   appreciation   of   the
evidence on record and which cannot be said to be vitiated in law, then, I
need not refer to each and every document and reproduce each and every
observation with regard thereto as if this is an Appellate Court.
48 The   argument   of   the   Petitioner's   counsel   based   on   the
judgments of the Honourable Supreme Court then needs to be referred to.
Mr.Kumbhakoni submitted that the Honourable Supreme Court has held
that in actual life it often happens that persons give false age of the boy at
the time of his admission to a school so that later in life he would have an
advantage when  seeking  public  service  for  which  a minimum  age  for
eligibility is often prescribed. This fact cannot be ignored while assessing
the value of the entry. The argument is that entries in public documents
by themselves are not conclusive and final. The existence of documents
may be held  to be proved, but entries  therein have still  to be proved,
according to Mr.Kumbhakoni. In this case, they are not so proved, is his
complaint.
49 I  do   not  find   any  substance  in   this   complaint   because   in
relation to the birth entries and entries in the primary school certificate
have  been  proved.  The learned  Judge  has  explained  as  to  how  these

entries can be held to be proved because the Matriculation Certificate was
never denied by the Petitioner. The Matriculation Certificate as produced
may be a copy, but its contents are not disputed. The original is in the
custody of the Petitioner. If what is produced is not genuine document,
then, the Petitioner could have produced the original. This Matriculation
Certificate was produced by the LIC Officer (PW­4) who was examined by
the original Election Petitioner to prove the Insurance Policy depicting the
Petitioner's birth date  to be 16.01.1989. This copy of  the Matriculation
Certificate was supplied by the Petitioner himself to the LIC at the time of
taking  an  Insurance  Policy. The witness  produced  alongwith  Insurance
Policy the Matriculation Certificate to establish that the date of birth put
in their office was 16.01.1989. Thus, he has produced a document from
the records of public sector corporation and in  these circumstances his
statement that a copy of the Matriculation Certificate is produced by the
Petitioner himself while taking Insurance Policy, can be held to be enough
to   prove   the   contents   of   the   Matriculation   Certificate.   Once   the
Matriculation Certificate was issued by  the Competent Board certifying
the   Petitioner   clearing   the   Matriculation   Examination   in   the   given
academic  session,  then,  all  the more  a  hyper  technical  stand  that  the
contents of the said certificate are not proved, cannot be accepted.
50 The  School  Leaving Certificate  (Exhibit­125) issued  by  the
School   which   the   Petitioner   first   attended,   has   been   proved   by
examination of the clerk of the said school. The school admission register
extract (Exhibit­126) was also proved. The witness testified about truth of
the contents of these documents. He has also deposed with regard to the
School Admission form which is signed by the Petitioner's father. All these
documents   have   been   stating   the   date   of   birth   as   16.01.1989.   The

Petitioner's only argument in relation to this was that the witness has no
first hand knowledge as he was not a person who accepted the admission
form and that was rightly rejected.
51 With regard to the third document Exhibit­192 which is the
Birth   Certificate   given   by   the   Corporation,   witness   Dr.Hankare   was
examined.   He   is   the   Birth   and   Death   Registration   authority.   He   has
deposed on oath with regard to the date of birth and has also stated that
the documents produced are extracts of the register maintained with the
office of Registration of Births and Deaths. In the course of performance
of official and public duty, such register is maintained and the witness has
deposed with regard to the entry at Sr.No.206, the name of Arif and place
of birth Dr.Chaugule Hospital is mentioned  therein. With regard  to the
name of Arif I have already held that as to how this entry was made and
later on deleted. There is no reason to disbelieve the same as this is part
of the official duty and function. 
52 Equally,   Dr.Chaugule   who   was   examined   spoke   about   the
birth of child on 16.01.1989 in his hospital and this fact correspond to the
entry in the Birth and Death Register. This entry in the Birth and Death
Register coupled with Exhibit­192 and deletion of the earlier entry Arif
against   Sr.No.5064,   is   enough   to   conclude   that   the   date   of   birth   is
16.01.1989. The original Birth Register was also summoned in the Court
and it showed the date of birth as 16.01.1989. To my mind, therefore, the
learned Judge committed no error in  relying on  these documents. The
Petitioner   may   have   produced   something   to   the   contrary,   but
overwhelming   documentary   evidence   on   record   commencing   from
Exhibits­121 to 127, 130, 132, 133, 136 to 138 and 192 with regard to

the date of birth of  the Petitioner could not have been discarded. The
documents   produced   by   the   Petitioner   have   been   discarded   and   by
assigning cogent and satisfactory reasons as observed above. Therefore,
all   judgments   relied   upon   before   the   Trial   Court   cannot   be   of   any
assistance and equally what has been contended before me based on the
same by Mr.Kumbhakoni will not advance the case of the Petitioner any
further.
53 To my mind, it is not necessary to refer to the judgments as
the Honourable Supreme Court has repeatedly held that the Births and
Deaths   Registers   maintained   by   the   statutory   authority   raise   a
presumption of correctness. Such entries  are admissible in evidence in
terms of Section 35 of the Indian Evidence Act, 1872. Mr.Kumbhakoni has
laid emphasis on the aspect that these entries may be relevant, but this
will   have   to   be   proved   and   his   reliance   on   the   judgment   of   the
Honourable Supreme Court particularly in the case of Birad Mal Singhvi
v/s Anand Purohit reported in AIR 1988 SC 1796 is of no assistance. The
Honourable Supreme Court says in clearest terms that these registers are
maintained   by   the   statutory   authorities   and   entries   therein   raise   a
presumption of correctness. The entries are admissible in evidence. In the
present  case,  once   they  were  read in   evidence   that itself  means  that
before they are so read and relied upon, due opportunity was given to the
parties  to  controvert  the  same.  In other words, when  such entries  are
relied upon by summoning public officials and when they depose about
the same, their version is not accepted straightaway, but opportunity is
given   to   the   Opponent   to   cross  examine   the   said   officials.   Once   this
procedure   is   adopted   and   complied   with,   then,   entries   which   raise
presumption   of   correctness   and   are   made   in   the   statutory   registers

become admissible in evidence. Mr.Kumbhakoni does not dispute that this
procedure has been complied with completely in this case. If that is so,
then,   the   learned   Judge   committed   no   error   in   taking   them   into
consideration and rendering the ultimate finding.
54 As a result of the above discussion and once I find that the
contentions raised before me are really in the realm of reappreciation and
reappraisal of the evidence, then, this Writ Petition cannot be entertained.
It must, accordingly, fail. Rule is, therefore, discharged, but without any
order as to costs.
55 However, having regard to what has been observed by me in
the  foregoing  paragraphs,  the  remarks  and  observations made  against
Mr.M.B.Kulkarni, Advocate who appeared for the present Petitioner before
the Trial Court are expunged from the judgment of the Trial Court. The
request made by Mr.Patil that this Court should direct the prosecution for
falsifying   public   records   and   presenting   false   evidence,   need   not   be
considered in further details. It is urged that the learned Judge has found
as a matter of fact that the Petitioner and his father tampered with public
records  and  relied on  the  same during  the course of evidence. This is
nothing but giving false evidence which is an offence. To my mind, in the
peculiar facts and circumstances, it is not necessary to direct filing of any
criminal   prosecution  by  the   Court.  It  would  be   open   for  the   original
Election Petitioner/ Respondent No.1 to this Writ Petition to make such
complaints and launch such prosecution as is permissible in law. Equally,
such other proceedings as are permissible in law can also be instituted. All
contentions in relation thereto are kept open.

56 At   this   stage,   Mr.Kulkarni,   learned   counsel   appearing   on
behalf of  the Petitioner, prays  for continuation of  the  ad­interim order
passed by this Court. This request is opposed by Mr.Patil, learned counsel
appearing on behalf of the Respondent No.1/ original Election Petitioner.
Mr.Patil submits that the term of the Petitioner in office will be over soon.
Once the concurrent findings of facts are recorded that the Petitioner is
disqualified because at the relevant time he had not attained the age of 21
years,  the  request  as made  by Mr.Kulkarni  cannot  be  granted. Hence,
refused.
     (S.C. Dharmadhikari, J)



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