Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 978 (MP)

Lajja Bai v. State of M. P.

2007-09-10

A.K.GOHIL, SHEELA KHANNA

body2007
Judgement GOHIL, J. :- The appellant, who is the former Sarpanch of Gram Panchayat, Sillarpur, Karera, District Shivpuri, has filed this Writ Appeal under Section 2 of the M. P. Ucchha Nyalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 against the order passed by the learned single Judge in W. P. No. 2175/06. 2. The brief facts of the case are that the appellant is an elected Sarpanch. The election took place in the month of January, 2005. Thereafter, Up-Sarpanch Smt. Geeta Lodhi filed a complaint before the Collector that the appellant is having more than two children and the fifth child was borne on 17-3-2001 i.e. after 26-1-2001. On the basis of the aforesaid complaint, an enquiry was conducted by the Collector Shivpuri. The notice was given to the appellant. Reply of the notice was also taken on record and the evidence of witnesses was recorded. The Collector had also examined the Birth and Death Registration Register, which is being maintained by Gram Panchayat itself and after enquiry it was found that the birth of the fifth child of the appellant took place on 17-3-2001 i.e. after 26-1-2001, therefore, she has earned disqualification under Section 36(1)(m) of the M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and declared the appellant as disqualified to hold the office of Sarpanch and declared the office vacant. Against this order passed by the Collector on 14-11-2005, the petitioner filed appeal before the Commissioner, Gwalior Division Gwalior and the Commissioner by order dated 17-4-2006 dismissed the appeal of the appellant and affirmed the impugned order dt. 14-11-2005 passed by the Collector Shivpuri. Thereafter the appellant filed Writ Petition No. 2173/06. The learned single Judge by order dated 2-3-2007 found that the order of the Collector is legal and justified and dismissed the Writ Petition, against which the appellant has filed this appeal. 3. We have heard the learned counsel for the parties and perused the findings recorded by the Collector, Commissioner in appeal and by the Writ Court in Writ Petition. 4. Shri D. P. Singh, learned counsel for the appellant submitted that as per Section 36(1)- No person shall be eligible to be an office-bearer of Panchayat who- (m) has more than two living children one of whom is born on or after the 26th day of January, 2001. 4. Shri D. P. Singh, learned counsel for the appellant submitted that as per Section 36(1)- No person shall be eligible to be an office-bearer of Panchayat who- (m) has more than two living children one of whom is born on or after the 26th day of January, 2001. Therefore his submission was that two conditions are necessary to disqualify an office bearer of the Panchayat for holding the post : (1) that he must have more than two living children, and (2) out of whom one is born on or after the 26th day of January, 2001 and he vehemently argued and submitted that the fifth child of the appellant was born on 17-3-2000 and not on 17-3-2001 as the allegations have been made against him by the Intervenor, He also submitted that the findings recorded by the Courts below are perverse and contrary to the evidence on record and he submitted that there is no affirmative evidence on record that the fifth child of the appellant was born on 17-3-2001. On the contrary learned counsel for the appellant submitted that the child was born on 17-3-2000 and therefore, she is not disqualified under the aforesaid rules and the orders passed by the authorities are contrary to the provisions of law. Learned counsel for the appellant also submitted that the SDO Karera has issued a certificate on 23-2-2005 in favour of appellant in which the date of birth of his fifth child namely Deepak has been mentioned as 17-3-2000, which is a clear proof of the fact and Collector has wrongly discarded the aforesaid certificate. 5. Per contra Shri Vivek Khedkar, learned Government Advocate for respondent Nos. 1 to 3/State and Shri Arvind Dudawat, learned counsel for the intervenor vehemently submitted that the order passed by the Collector as well as Commissioner and Writ Court are perfectly legal and justified and no interference is called for in this Writ Appeal. 6. 5. Per contra Shri Vivek Khedkar, learned Government Advocate for respondent Nos. 1 to 3/State and Shri Arvind Dudawat, learned counsel for the intervenor vehemently submitted that the order passed by the Collector as well as Commissioner and Writ Court are perfectly legal and justified and no interference is called for in this Writ Appeal. 6. After hearing the learned counsel for the parties, first of all we have perused the certificate issued by SDO Karera on 23-2-2005 Annexure P/6, in which the date of birth of Deepak has been mentioned as 17-3-2000 but in the certificate it has also been mentioned that this certificate has been issued on the basis of application, affidavits and the certificates produced before him and on the basis of aforesaid documents SDO directed that the date of birth of Deepak, who is the fifth son of appellant be mentioned in the register as 17-3-2000. Since the SDO has not passed orders on any independent enquiry in the matter but the same has been passed on application, affidavit and certificate, therefore, the aforesaid order of SDO regarding date of birth cannot be held to be legal as he has not collected any evidence before issuing such a direction. On the contrary we have perused the order passed by the Collector. Collector has recorded the statement of one Smt. Urmila Tripathi, who has stated that she was a Health Worker and she was responsible for providing pulse polio drops to the children of the village and she has stated that in the year 2000 she has not provided the drop of pulse polio to any lady namely Lajja Bai in the village. Gopal, who is working on the post of Panchayatkarmi, has deposed that he has mentioned the date of birth of fifth child of the appellant as 17-3-2001 but that entry was made in the register on the instructions of Smt. Shashi Sen, who is Anganwadi Worker. Smt. Shashi Sen was also examined and she has stated that she had visited the house of the Lajja Bai and had found that fifth child was born on 17-3-2001 and she has also verified this fact from other villagers and thereafter had recorded the entry. Smt. Shashi Sen was also examined and she has stated that she had visited the house of the Lajja Bai and had found that fifth child was born on 17-3-2001 and she has also verified this fact from other villagers and thereafter had recorded the entry. Apart from this evidence, the Collector Shivpuri has also examined the Birth and Death Registration Register, which is being maintained by the Gram Panchayat and it was found that in that the register in the year 2000 there was no entry in the month of March and also there was no entry about the birth of Deepak S/o Lajja Bai. Only one entry was found in the month of March 2000 at Sl. No. 159 and that entry was pertaining to both of a boy named Sur Adiwasi and it was mentioned that he was born on 30-3-2000. The Collector further found that in the register of year 2000 there was no entry pertaining to birth of a child on 17-3-2000. Moreso, in the year 2001 one entry at S. No. 238 was found on 17-3-2001, in which it was mentioned that one child of Keshav - Lajya was born. After seeing original register, it was also found by the Collector that there was some interpolation in this entry and the year 2001' was rubbed and it was made as 2000' and therefore on the basis of the scrutiny of the aforesaid entry of the register, Collector recorded a finding that the date of birth of fifth child of the appellant has been mentioned as 17-3-2001 at S. No. 238 and there was some interpolation therein. It was argued by the opposite parties that because that interpolation was in favour of the appellant to show that fifth child was born on 17-3-2000, therefore it should be presumed that the aforesaid interpolation was made by the appellant or at the instance of the appellant because she was interested in change of that entry as the same was for the benefit of the appellant. 7. We have carefully considered the order passed by the Collector and we are fully satisfied that the Collector made independent inquiry in the matter. 7. We have carefully considered the order passed by the Collector and we are fully satisfied that the Collector made independent inquiry in the matter. The Collector has recorded the statement of all the relevant witnesses, those who were responsible for making entry in the Birth and Death Registration Register and on the basis of the scrutiny of the aforesaid register, the Collector found that the fifth child of the appellant was born on 17-3-2001 and therefore the appellant has earned disqualification as laid down under Section 36(1)(m) of the Act of 1993. Looking to the elaborate enquiry by Collector in the matter and the findings recorded by Collector, we are of the view that the findings recorded by the Collector are perfectly legal and it appears that the Collector has not committed any illegality in recording the aforesaid finding. We have found that thereafter the Commissioner and learned single Judge in the Writ Petition has also not committed any illegality in attaining the aforesaid finding and affirming that the fifth child of the appellant was born on 17-3-2001 and not on 17-3-2000 prior to 26th January, 2001. 8. Shri D. P. Singh lastly submitted that by amendment vide M. P. Panchayat Raj Avam Gram Swaraj (Sanshodhan) Adhiniyam, 2006, the aforesaid provision has been deleted and now there is no bar against the office bearers of Panchayat regarding more than two children and the aforesaid provision has been withdrawn by the State w.e.f. 1 -9-2006. Therefore, the benefit of that amendment should go to the appellant. 9. In fact when the election took place in January 2005, that clause was in operation and was in force and on that day the appellant was not qualified to be elected as a Sarpanch of the respective Gram Panchayat. The effect of this amendment is not retrospective in nature and prior to coming into force the aforesaid amendment, the order of disqualification was passed by Collector on 14-11-2005. Therefore, looking to the nature of this amendment, which is prospective in nature, we do not find that the appellant is entitled to get any benefit of the same. 10. In view of the aforesaid discussion, scrutiny and examination of the record, we do not find any scope warranting any interference in the order passed by learned single Judge in the Writ Petition. 10. In view of the aforesaid discussion, scrutiny and examination of the record, we do not find any scope warranting any interference in the order passed by learned single Judge in the Writ Petition. Therefore, this Writ Appeal being devoid of merit and substance is hereby dismissed. Parties to bear their own costs. Appeal dismissed.