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In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE V.R. KINGAONKAR
Ravikiran s/o Abasaheb Deshmukh & Another
Versus
The Additional Commissioner, Aurangabad& Others
Writ Petition No. 6639 Of 2008
Decided on : 21-01-2010
The matter does not stop here. The medical practitioner who is joined subsequently as respondent No. 5 in this petition, categorically refuted the averment of the respondent No. 3 about issuance of such letter. He has filed affidavit stating that the letter dated 20.2.2007 is a forged document. He denied his signature on the said letter. The respondent No. 3 has placed on record certain copies of other letters issued by "Dhanwantari Multi Speciality Hospital" in order to show that signatures of the respondent No. 5 were changed from time to time. The letter dated 20.2.2007 appears to have been issued on letter-head of "Accident, Fracture and Trauma Care Centre, Ambajogai". The other letters, copies of which are placed on record by the respondent No. 3, are issued on letter-head of Dhanwantari Multi Speciality Hospital. It is not necessary to examine whether the version of the respondent No. 5 is untrue and in fact, he had issued the letter dated 20.2.2007. For, it would be subject-matter of criminal investigation which Court propose to direct. Suffice it to say that the respondent No. 5 did not subscribe to the stand taken by the respondent No. 3 in the context of mistake which was allegedly caused due to erroneous report submitted regarding birth date of the third child born to wife of the respondent No. 3.
The order rendered by the Appellate Authority is not founded on good material and the reasons ascribed are not convincing. The Appellate Authority should not have interfered with the order of the Additional Collector when it was based on the material gathered during course of the enquiry. Under these circum-stances, the impugned order is liable to be set aside.
In the result, the petition is allowed. The impugned order is set aside. The Additional Collector, Ambajogai, is directed to lodge report with the concerned Police Station for taking cognizance of the forgery of documents, namely, the medical certificates or letters purportedly issued by the respondent No. 5. If it is found by the police authorities that the respondent No. 5 himself has prepared such letter dated 20.2.2007, then offence shall be registered against him for committing perjury and a report shall be submitted to this Court for taking cognizance of the offence of the perjury. The Additional Collector to submit compliance report within period of four weeks after receipt of the writ of this Court. If, however, it is found that the letter issued by the respondent No. 5 is fabricated, then necessary criminal action may be taken against the forger/culprit. No costs.
ORAL JUDGEMENT:
1. The petitioners challenge order rendered by Additional Divisional Commissioner, Aurangabad in proceedings of appeal filed by respondent No. 3 against his disqualification to continue as Sarpanch of village panchayat, Asardoh (District Beed.). The Additional Divisional Commissioner allowed his appeal and held that he was not disqualified. The petitioners are aggrieved due to such decision because since beginning, an objection was raised by the petitioner No. 2 about eligibility of the respondent No. 3 – Bhagwan as a candidate on the ground that his nomination paper was invalid due to the fact that he was having third child after the cutoff date i.e. 13092001.
2. Indisputably, elections of the Village Panchayat, Asardoh were due in the month of September, 2007 and the election programme was declared by the competent authority. On 24th September, 2007, the petitioner No. 2 had filed objection application before the Returning Officer. He alleged that the respondent No. 3 was ineligible to file his nomination form because there were three children born to him and the third child was born after the cutoff date i.e. 13th September, 2001. He asserted that as per the Government Resolution and the policy, the respondent No. 3 could not be permitted to contest the village panchayat election due to the reason that third child i.e. daughter, by name Vaishnavi, was born to him on 25th September, 2002 out of wedlock with his wife by name Rajashri. The objection was overruled by the Returning Officer. The elections were held. The respondent No. 3 Bhagwan was elected from ward No. 1. He was lateron elected as Sarpanch of Asardoh Village Panchayat. The petitioners filed Dispute No. 6 of 2007, challenging the eligibility of the respondent No. 3 to continue in the office of Sarpanch on the ground that he was disqualified under section 14 (1) (j) (i) of the Bombay Village Panchayat Act, 1958 (for short, “the BVP Act”). The learned Additional Collector heard concerned parties, including the respondent No. 3 and came to the conclusion that the latter was disqualified as Member of the Village Panchayat. It was held that the third child was born on 25th September, 2002 and, therefore, the nomination of the respondent No. 3 could not have been accepted by the Returning Officer, nor he was entitled to continue in the office. Feeling aggrieved, the respondent No. 3 preferred an appeal bearing No. CR/165/08. By the impugned order, the learned Additional Divisional Commissioner allowed the appeal holding that the third child was born prior to the cutoff date and, therefore, the respondent No. 3 – Bhagwan did not incur disqualification under the law. Hence, the petition.
3. Heard learned counsel for the parties.
4. Before I proceed to consider the rival submissions, it may be stated that the enquiry contemplated under provisions of Section 14 read with section 16 of the BVP Act is not likewise that of adverserial trial. It is only a summary enquiry. The enquiry contemplated under the relevant provisions is of inquisitorial nature. The Collector is required to observe the principles of natural justice. However, the enquiry cannot be likewise that of a trial of civil suit or criminal case. The nature of such enquiry is clarified in “Suvarna Prakash Patil v. Anil Hindurao Powar and others” 2004 (1) Mh.L.J. 1062. A Single Bench of this Court held :
“The action or enquiry contemplated in the proceedings under section 14 (h) read with section 16 is surely not an adverserial proceedings but, sui generis, and more in the nature of summary and inquisitorial proceedings.....”
5. It will be explicit, therefore, that the nature of disqualification incurred is the only fact to be stated in the complaint application and the complainant is not required to give details or adduce evidence in support of the averments. Even so, the petitioner No. 2 had submitted copies of the record maintained by Anganwadi Sevika in the survey register carried o
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