2014 Supreme(Bom) 277

High Court of Judicature at Bombay
R.M. SAVANT, J.
Shaikh Shaifque
Versus
Mohammed Ibrahim Moh. Yasin & Others
Writ Petition No. 183 of 2014
Decided On: 05-02-2014

Headnote:Maharashtra Provincial Municipal Corporation Act, 1949 - Section 10(1)(i) - Disqualification of Councillor of Corporation. - Disqualification of Councillor on ground that he had more than three children after cut-off date, just and proper. - In so far as the evidence of the Petitioner is concerned, he has deposed that his first three children have been born at his residence at Malegaon. In so far as the 4th child is concerned, according to the petitioner the said child was born at his wife’s parental home at Nandurbar and that his birth has been reported to the Taloda Municipal Council by Dr. Mansoori. It has further come in the evidence of the petitioner that he has not reported the birth of any of his children. In so far as the evidence of Dr. is concerned, it is required to be noted that it has come in his evidence that he had not reported the birth of the child to Taloda Municipal Council and therefore he has in terms contradicted the case of the petitioner. It is further required to be noted that though the said Dr. claimed that he had conducted 2000 to 4000 deliveries in his career, he has stated that he has not maintained any record. He has also admitted that he is not in position to answer and does not remember as to when he had issued Exhibit 123 which is a certificate allegedly issued by him in respect of the birth of the said child Shaikh Juned @ Shaikh Serjil. In so far as the evidence of the clerk of Taloda Municipal Council Shri Ashwin Pardeshi is concerned, through him it has come on record that the pages relating to the relevant entry being No. 314 in the Birth and Death Register of the Taloda Municipal Council are torn. In so far as the documentary evidence is concerned, it is required to be noted that the relevant parts of the Birth and Death Register wherein the entry of Shaikh Juned @ Shaikh Serjil are torn and therefore not available. The answer to the query raised by the respondent No. 1 with Taloda Municipal Council vide Exhibits 57 and 58 is that there is no entry made in the name of Shaikh Juned @ Shaikh Serjil in the Birth and Death Register given vide Exhibit 59. It is on the basis of the aforesaid evidence on record the trial Court held that the evidence led on behalf of the petitioner does not support the case of the petitioner in so far as the date of birth of the child Shaikh Juned @ Shaikh Serjil being 30.8.2001.

       The said circumstance is another circumstance which leads to a conclusion that the application for change of name from Shaikh Juned to Shaikh Serjil was made by the petitioner. The school leaving certificate issued by Swes Model Primary School therefore nullifies the attempts made by the petitioner to disown the application made for change of name to the Malegaon Municipal Corporation Exhibit 87 and the attempts made by the Petitioner to disown the affidavit dated 5.12.2011 which was filed in support of the said change. It is also required to be noted that in the bona fide certificate which is issued by the Modern High School in respect of the student Shaikh Serjil, the said certificate also carries the same date of birth i.e. 18.9.2001. The said material therefore casts a serious doubt as regards the genuineness and bona fide of the birth certificate Exhibit 63 produced by the petitioner of the Taloda Municipal Council. The trial Court was therefore right in coming to a conclusion that the case of the respondent No. 1 herein who is the election petitioner based on Exhibit 53 is more probable than the case of the petitioner which is based on Exhibit 63. In the light of the material which is referred to herein above, the contention of the counsel for the petitioner that the trial Court had erred in relying upon the birth certificate Exhibit 53 issued by the Malegaon Municipal Corporation cannot be countenanced.

       The trial Court on the basis of the material has reached a conclusion that the child Shaikh Juned @ Shaikh Serjil being born after the cut-off 12.9.2001. The petitioner on account of the said fact would stand disqualified under Section 10(1)(i) of the said Act. The Court’s view minor discrepancies in the evidence led on behalf of the respondent No. 1 herein would have no bearing on the conclusion reached by the trial Court. The trial Court can be said to have properly evalued and weighed the evidence and has arrived at the said conclusion.