PARBATSINH BHUPATSINH SODHA v. STATE OF GUJARAT

[C] Till pending the petition and till the final adjudication of the petition your lordship may be pleased to stay the order passed by the Additional Development Commissioner, Gandhinagar in VK/APL/L.1/KHEDA/2022 dated 04.07.2022 has disqualified the petitioner from 22-Marida Kheda Jilla Panchayat seat as per section 32(2) of the Gujarat Panchayat Act, 1993 as he has more than 2 children as per section 30(m) of the Gujarat Panchayat Act";

2 By way of the impugned order dated 4.7.2022 passed by the respondent No.2 - Additional Development Commissioner, State of Gujarat, the petitioner was disqualified from the post of Member of 22-Marida Kheda Jilla Panchayat seat in view of provisions of Section 32(2) of the Gujarat Panchayat Act, 1993 (for short, `the Act, 1993') as the respondent No.2 was convinced that the petitioner was disqualified as per Section 30(t) of the Act, 1993.

3 Heard Mr.Darshit Brahmbhatt, learned advocate for the petitioner, Mr.Suresh Bhatt, learned

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advocate for respondent No.3 and Ms.Tanushree Shrimal, learned Assistant Government Pleader for the State respondents.

4 Mr.Brahmbhatt, learned advocate for the petitioner, submitted that the petitioner was elected as a member of the 22-Marida Kheda Jilla Panchayat in the election which was held in the year 2018. On 11.3.2019, one Kiransinh Dalpatsinh Sodha gave an application to respondent No.3 stating that the petitioner has four children, and therefore, he is required to be disqualified as per Section 30(1)(m) of the Act, 1993. Pursuant to the aforesaid application, the respondent No.2 gave show cause notice to the petitioner under Section 32(2) of the Act, 1993 on 4.10.2019 and sought explanation from the petitioner that as to why the petitioner should not be disqualified as per Section 30(1)(m) of the Act, 1993 as the petitioner has more than two children after 4.8.2006.

4.1 The respondent No.2 ordered an inquiry to

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be conducted by the respondent No.3 - District Development Officer, Kheda in view of the aforesaid application and the inquiry report was submitted by the respondent No.2 on 1.1.2020. As per the inquiry report, the petitioner's third child viz. Vanrajsinh @Urvis Parbatsinh Sodha (hereinafter referred to as `the third child') was born on 24.3.2007.

4.2 According to learned advocate for the petitioner, in fact the third child of the petitioner was born on 28.12.2005, whereas Section 30(1)(m) of the Act, 1993 provides that, no person shall be a member of panchayat or continue, as such, who has more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, he 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. According to Mr.Brahmbhatt, learned advocate for the petitioner, the aforesaid amendment came into force from 3.8.2006, and therefore, if a person has thee children prior to 3.8.2006, in that case, question

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of any disqualification would not arise. Learned advocate for the petitioner further submitted that the petitioner's wife delivered third child on 28.12.2005, and therefore, the inquiry conducted by the respondent No.3 was not just and proper and the necessary details as to how date of birth of the third child was unearthed by the respondent No.3 were not provided, and therefore, the details relied upon by the respondent No.3 were without any basis and hence the same may be discarded and the details provided by the petitioner are required to be considered while deciding the question about the disqualification of the petitioner.

4.3 Learned advocate for the petitioner submits that though the inquiry officer has relied upon the birth Register of Nadiad Municipality, the vital information as to the case details or who submitted the application for registration of birth of the petitioner to Kheda Municipality, were not provided to the petitioner. Learned advocate for the petitioner further pointed out that in the reply

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filed by the respondents they have admitted the fact that they did not have any case number nor the respondent authorities have the name of the person, who made application for registration of birth of third child of the petitioner, Vanrajsinh Sodha in the year 2007.

4.4 Learned advocate for the petitioner therefore submitted that the aforesaid details which have been relied upon by the respondent No.3 while conducting the inquiry, which was relied upon by the respondent No.2 while disqualifying the petitioner, are without any basis, and therefore, the impugned order is illegal and required to be quashed and set aside.

5 Mr.Suresh Bhatt, learned advocate for respondent No.3 opposed the petition and submitted that the authority made all possible attempts to unearth the correct facts. He further submitted that though it is the case of the petitioner that third child of the petitioner was born on 28.12.2005, even

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as per the school record the date of birth of third child was 24.3.2007. It is only in the year 2018 that on 17.1.2018 an affidavit was sworn by the petitioner for change of date of birth of his third child. He further submitted that along with the petition though the petitioner has produced the birth certificate of his third child indicating that his date of birth is 28.12.2005, however, the said birth certificate is issued by Talati-cum-Mantri, Paladi Gram Panchayat and the date of registration of the same is 30.12.2005, which would show that at the time when the third child was admitted to the school the aforesaid birth certificate was very much available with the petitioner as well as at the time when the affidavit for change of date of birth was made before the school authorities even at that time also the aforesaid certificate was very much available with the petitioner. However, the petitioner did not produce it before the school authorities and instead preferred an affidavit stating that third son of the petitioner was born on 28.12.2005 and not 24.3.2007. He further submitted that after filing the aforesaid

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affidavit for correcting the birth date of the third child of the petitioner, the petitioner contested the election after one month and filed an affidavit about third child before the election authorities, which would indicate that in fact just to avoid any possibility of disqualification, the petitioner filed the aforesaid affidavit and got the date of birth of the third child of the petitioner changed and thereby manipulated the date of birth of his third child from 24.3.2007 to 28.12.2005, as the provisions of the Act, 1993 provides that if third child of a person intending to contest election is born before 3.8.2006 in that case the person intending to contest election will not be disqualified even if he has more than two children.

5.1 Learned advocate Mr.Bhatt submitted that the aforesaid conduct of the petitioner clearly shows that the aforesaid affidavit was filed by the petitioner for correction of date of birth of third child is only with a view to avoid disqualification, and therefore, the aforesaid affidavit cannot be

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believed and the inquiry conducted by the respondent No.3 was just and legal and the same has been rightly believed by the respondent No.2, and therefore, no interference is called for by this Court in the impugned order passed by the respondent No.2 disqualifying the petitioner.

6 Ms.Tanushree Shrimal, learned Assistant Government Pleader, also vehemently opposed the petition and drew attention of this Court to the affidavit filed by the respondent No.2. From the said affidavit in reply, she pointed out that initially when the complaint was filed against the petitioner, it was filed on a theory that the petitioner was having four children. However, during the course of inquiry, it was found that the petitioner does not have fourth child, but in respect of third child, there are two different birth certificates, one bearing date of birth as 28.12.2005 and the other as 24.3.2007. However, considering the inquiry conducted by the respondent No.3, the authority believed the inquiry report and based on that considered the date

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of birth of third child as 24.3.2007, and therefore, the impugned order of disqualification was passed. The conduct of the petitioner would indicate that the petitioner sat idle till 2018 though the child was allegedly born in the year 2005, which shows that it is only at the time when the petitioner decided to contest the election just with a view to avoid any disqualification a bogus birth certificate having date prior to cut off date of August, 2005 was procured by the petitioner and on the basis of that the petitioner is trying to avoid disqualification. Since it is the say of the petitioner that the third child of the petitioner was born on 28.12.2005, burden to prove that fact is on the petitioner and except for producing birth certificate, the petitioner has not produced anything on record, and therefore, the inquiry conducted by the respondent No.3 and the impugned order passed by the respondent No.2 based upon the inquiry report of respondent No.3 disqualifying the petitioner, are absolutely just, legal and proper, and therefore, the petition is required to be dismissed.

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7 Heard learned advocates for the parties and perused the record of the case. It is an admitted position that the petitioner is having three children and the vital question to determine here is that whether the impugned order of disqualification is just, proper and legal or not and what was the date of birth of the third child of petitioner. As per the inquiry conducted by the respondent No.3, the third child of the petitioner was born in the hospital of one Dr.Ranjanben Parasar viz. Ranjan Maternity Home on 24.3.2007 and the birth of the child was registered on 5.4.2007 with Registration No.1512 and that registration was done on the basis of the details provided by the maternity home of Dr.Ranjanben Parasar. As far as the case of the petitioner is concerned, third child of the petitioner was born on 28.12.2005 and the registration took place on 30.12.2005. However, apart from the aforesaid birth certificate, the petitioner has placed on record one panchkyas dated 24.9.2019 and affidavits of the known persons of the petitioner

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viz. [1] Dilipbhai Pratapbhai Sodha Parmar affirmed on 30.9.2019, [2] Mohanbhai Ratabhai Sodha Parmar affirmed on 27.9.2019, [3] Mulrajsinh Jashwantsinh Parmar affirmed on 30.9.2019, [4] Parbatbhai Gokalbhai Sodha Parmar affirmed on 27.9.2019, and [5] Pushpaben, wife of the petitioner affirmed on 30.9.2019, stating that the date of birth of third child of the petitioner is 28.12.2005. Except the aforesaid documentary evidence, no solid documentary evidence has been produced by the petitioner along with the petition.

7.1 The aforesaid documentary evidence would indicate that all those affidavits have been affirmed only in the month of September, 2019. Even the panchkyas also was done in the year 2019 i.e. after the complaint was filed by Kiransinh Dalpatsinh Sodha on 11.3.2019, which would indicate that the aforesaid affidavits and panchkyas were relied upon by the petitioner only after the complaint was filed against the petitioner and not before that. This also shows that it was not the intention of the petitioner to

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rectify any alleged error in recording of birth date of third child of the petitioner, but to avoid disqualification only. Further, if the conduct of the petitioner is seen, for the first time though it is the case of the petitioner that third child of the petitioner was born on 28.12.2005 and application for making necessary correction in the birth record of the school from 24.3.2007 to 28.12.2005 was made only on 17.1.2018. Even at that time also, the aforesaid application was not accompanied by the correct birth certificate of 2005, but was accompanied by an affidavit only. If the specific case of the petitioner is that the third child of the petitioner was born on 28.12.2005 and the aforesaid birth was recorded on 30.12.2005 and birth certificate was issued by the Birth Registering authority, in that case, at least such application for making necessary correction in the date of birth of the petitioner could have been supported with the birth certificate and not by the affidavit.

7.2 At this stage, learned advocate for the

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petitioner Mr.Brahmbhatt, upon instructions, submitted that at the time when the application for making necessary correction in the birth record in the school was made, the same was accompanied by birth certificate. However, the record shows contrary and there is nothing on record to show that application was supported by the birth certificate of

2005.

7.3 The aforesaid facts coupled with the fact that immediately after about a month, the petitioner contested the election and won, which would make the conduct of the petitioner questionable, and therefore, once the authority by way of an independent inquiry has clearly established beyond any doubt that third child of the petitioner was born on 24.3.2007 along with the details about the maternity home where the birth took place as well as the registration number of the birth certificate, unless any contrary and sound evidence is produced, the inquiry conducted by the authority cannot be discarded.

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7.4 In the instant case, all the documentary evidence relied upon by the petitioner to support the version of the petitioner that the third child of the petitioner was born on 28.12.2005 and not 24.3.2007 are the documents of 2019 i.e. almost after 14 years after the alleged birth of the third child of the petitioner, and therefore, the decision taken by the authority based upon the inquiry report submitted by the respondent No.3, which is an independent authority, does not have any interest in respect of any controversy, and cannot be said to be erroneous.

8 In view of the above discussion and on examination of the impugned order, this Court is of the opinion that the impugned order dated 4.7.2022 disqualifying the petitioner has rightly been passed by the respondent No.2 based upon the material available with the authority, which is based upon inquiry report of the respondent No.3, and therefore, the same is not required to be interfered. In absence of any merit, this petition is required to be

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dismissed and the same is dismissed. Notice discharged. However, there shall be no order as to costs.

(NIRZAR S. DESAI,J)

P. SUBRAHMANYAM

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