Writ Petition No.1078 of 2015

3rd March, 2015.

Petitioner Counsel: Shri U.J. DESHPANDE
Respondent Counsel: Ms. P.D. RANE, Shri Y.B. SONONE

Cases Cited:
Dnyaneshwar Patiram @ Ratiraj Shirbhiye Vs. Divisional Commissioner, Nagpur and Ors., 2012(4) ALL MR 100=2012 (3) Mh.L.J. 253 [Para 5]

JUDGMENT

JUDGMENT :- Rule made returnable forthwith.

Heard the matter finally by consent of the learned counsels appearing for the parties.

2. The respondent no.3 was disqualified under Section 14(1)(j-1) of the Maharashtra Village Panchayat Act on the ground that she had more than two children on the date of elections, which were held in the year 2013. This is set aside by the Additional Commissioner by the impugned order dated 06.02.2015. Hence, this writ petition.

3. The provision of Section 14 (1)(j-1) of the said Act being relevant, is reproduced below.

"14. Disqualifications - (1) No person shall be a member of a Panchayat continue as such, who

(a) ...............

..............

(j1) has more than two children

Provided that, a person having more than two children on the date of commencement of the Maharashtra Village Panchayats and the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 1995 (hereinafterin this clause referred to as "the date of such commencement") 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;

Provided further that, a child or more than one child born in a single delivery within a period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause;

If a person has more than two children on the date of coming into force the aforesaid provision on 12.09.2001, then he becomes disqualified to become a member of a Panchayat. A sitting member of a Panchayat having more than two children on the date of coming into force of the provision becomes disqualified if there is any increase in children after 12.09.2001.

4. It is not in dispute that the first child was born on 19.06.2004, the second child was born on 10.01.2007 and the third child was born on 30.09.2008. The respondent no.3 has given birth to all three children after the cutoff date of 12.09.2001 and she contested the election in the year 2013. The submission is that the first child born on 19.06.2004 expired on 01.12.2007 and hence the respondent no. 3 had two children living on the date of elections.

5. The controversy is covered by the decision of this Court in the case of Dnyaneshwar Patiram @ Ratiraj Shirbhiye vrs. Divisional Commissioner, Nagpur and others, reported in 2012 (3) Mh.L.J. 253 : [2012(4) ALL MR 100]. Para 22 of the said decision being relevant is reproduced below.

"22. Now coming to the contention of Shri Rohit Deo for the petitioner, that the first proviso covers the cases of child born and died, perusal of the said proviso nowhere makes out any such distinction between a child born and living on one hand a child born and died on the other hand. If the construction that the first proviso covers the cases of child born and died is accepted, then it would amount to creating another additional proviso to main provision or a proviso to the first proviso. Not only that, but such construction would also defeat the very object and purpose of main provision i.e. creating a disincentive, for the reason that the petitioner had more than two children on the date of commencement of the said Act and the fourth child was an increase. It will have, therefore, to be held that the first proviso does not protect the cases where there is increase in the number of children specified in the main provision, after the cutoff date 12.09.2001. Hence, no fault can be found with the view taken by the Commissioner".

6. In view of the aforesaid law laid down by this Court, the fact as to whether one child out of three children expired on 01.12.2007 i.e. before the date of contesting the elections would be of no relevance. The fact that there was increase in the number of children after the cutoff date i.e. 12.09.2001 is the relevant factor. Undisputedly, the respondent no.3 was not a sitting member of Panchayat on 12.09.2001 and there was increase in the number of children after the cutoff date. In view of this, respondent no.3 cannot be saved from the disqualification.

7. In the result, the writ petition is allowed. The order passed by the Additional Commissioner, Amravati Division, Amravati, on 06.02.2015 remanding the matter back to the Additional Collector, Washim is quashed and set aside and the order of the Additional Collector, Washim, dated 02.07.2014 is restored. No order as to cost.

Petition allowed.