Writ Petition No.5500 of 2014. of 2014

21st December, 2016.

Petitioner Counsel: Shri P.S. KSHIRSAGAR
Respondent Counsel: Shri AMIT CHUTAKE, Shri P.A. KADU

Cases Cited:
Javed and others Vs. State of Haryana and others, 2003(4) ALL MR 707 (S.C.)=(2003) 8 SCC 369 [Para 3,4,5,6,7]
Dnyaneshwar Patiram @ Ratiraj Shirbhiye Vs. Divisional Commissioner, Nagpur and others, 2012(4) ALL MR 100=2012(3) Mh.L.J. 253 [Para 8]

JUDGMENT

JUDGMENT :- The matter is heard finally by consent of the learned counsels appearing for the parties.

2. The challenge in this petition is to the order dated 15-5-2014 passed by the Commissioner, Amravati Division, Amravati, setting aside the order passed by the Additional Collector, Buldana, on 18-7-2013 disqualifying the respondent No.3 from the post of Member, Village Panchayat, Nimkhed, under Section 14(1)(j-1)of the Maharashtra Village Panchayats Act, 1958. The Additional Collector holds that after the cut-off date, i.e. 12-9-2001, three female children, viz. Ashwini, Komal and Dipali, were born to the respondent No.3; Ku. Dipali, who was born on 29-10-2008, expired on 9-11-2011, but there was increase in the number of children after the cut-off date, and hence the respondent No.3 was disqualified. The Commissioner has reversed this order, holding that on the date of election, i.e. 20-12-2012, the respondent No.3 had only two living children.

3. Undisputedly, Ku. Dipali, a third female child born on 29-10-2008 to the respondent No.3 after the cut-off date, expired on 9-11-2011. It is thereafter the respondent No.3 contested the election of a Member, Gram Panchayat Nimkhed and was declared elected on 20-10-2012. On the date of submission of nomination paper, the respondent No.3 had only two living children. In this background, reliance is placed upon the decision of the Apex Court in the case of Javed and others v. State of Haryana and others, reported in (2003) 8 SCC 369 : [2003(4) ALL MR 707 (S.C.)], to urge that having more than two living children attracts the disqualification.

4. In the decision of the Apex Court in Javed's case, [2003(4) ALL MR 707 (S.C.)] cited supra, the constitutional validity of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 was questioned. The provision of Section 175(1)(q) along with the proviso under the said Act considered by the Apex Court being relevant, is reproduced below :

"175. (1) No person shall be a Sarpanch, Up-Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who-

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(q) has more than two living children:

Provided that a person having more than two children on or up to the expiry of one year of the commencement of this Act, shall not be deemed to be qualified."

In para 62 of the said decision, it is held that the disqualification under the aforesaid provision is attracted no sooner a third child is born and is living after two living children. It is, therefore, urged that the provision of Section 14(1)(j-1) of the Maharashtra Village Panchayats Act has also to be read as the requirement of having more than two living children, and if a third child born after the cut-off date has died before submission of nomination paper, then the provision would not be attracted, as it would not be a case of more than two children.

5. While considering the constitutional validity of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994, the Apex Court has held in paragraph 8 of its decision in Javed's case, [2003(4) ALL MR 707 (S.C.)] cited supra, as under :

"Is the classification arbitrary?

8. It is well settled that Article 14 forbids class legislation; it does not forbid reasonable classification for the purpose of legislation. To satisfy the constitutional test of permissibility, two conditions must be satisfied, namely: (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that such differentia has a rational relation to the object sought to be achieved by the statute in question. The basis for classification may rest on conditions which may be geographical or according to objects or occupation or the like. (See Constitution Bench decision in Budhan Choudhry v. State of Bihar (AIR 1955 SC 191 : (1955) 1 SCR 1045 : 1955 Cri LJ 371). The classification is well defined and well perceptible. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness. The number of children viz. two is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny."

The Apex Court has held that one of the objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a disincentive. The classification does not suffer from any arbitrariness. The number of children, viz. two, is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny. In paragraph 60 of the said decision, it is held that the right to contest an election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. In para 61 of the said decision, it is held that if anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in Panchayat in the State of Haryana. It is further held that there is nothing illegal about it and certainly no unconstitutionality attaches to it.

6. In order to consider the aforesaid argument, the provision of Section 14(1)(j-1) of the Maharashtra Village Panchayats Act is required to be seen, and hence it is reproduced below :

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

(j-1) has more than two children;

Provided that, a person having more than two children on the date of commencement of the Bombay Village Panchayats, and the Maharashtra Zilla Parishads, and Panchayat Samitis (Amendment) Act, 1995 (hereinafter in 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 the 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.

Explanation 5 - For the purpose of clause (j-1) :

(i) where a couple has only one child on or after the date of such commencement, any number of children born out of a single subsequent delivery shall be deemed to be one entity;

(ii) "child" does not include an adopted child or children."

Perusal of the aforesaid provision shows that there is conspicuous absence of the word 'living' in clause (j-1)of Section 14(1) of the said Act, as is found under Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994, considered by the Apex Court in Javed's case, [2003(4) ALL MR 707 (S.C.)] cited supra. As per the rules of interpretation, the intention of the Legislature is to be gathered primarily from the language employed and the attention is to be paid to what has been said and what has not been said. The provision has to be read as it is and neither the words can be added in nor can be substracted from the language employed by the Legislature, unless it is absolutely necessary to do so. It is, therefore, not possible to read a word 'living' in Section 14(1)(j-1) of the Maharashtra Village Panchayats Act.

7. The object of introducing clause (j-1) under Section 14(1) of the Maharashtra Village Panchayats Act is of creating a disincentive, as has been highlighted by the Apex Court in respect of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994 in paragraph 8 of its decision in Javed's case, cited supra. What is prohibited by Section 14(1)(j-1) of the Maharashtra Village Panchayats Act is the increase in the number of children after the cut-off date, which is apparent from the language used in the First Proviso below Section 14(1)(j-1) of the said Act. The number of children and should they be living, are the matters of legislative wisdom, and altering it in any manner would amount to tinkering with the legislation or reframing it. The conspicuous absence of the word 'living' in Section 14(1)(j-1) of the said Act is an indication of deviation in the policy of having more than two living children, incorporated under Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994 and the same is not open to judicial scrutiny. Hence, the fact that a third child born after the cut-off date and expired prior to the submission to nomination paper cannot be an escape route from the disqualification.

8. The respondent No.3 is not claiming the benefit of either First or Second Proviso below Section 14(1)(j-1) of the Maharashtra Village Panchayats Act. In the decision of this Court in the case of Dnyaneshwar Patiram @ Ratiraj Shirbhiye v. Divisional Commissioner, Nagpur and others, reported in 2012(3) Mh.L.J. 253 : [2012(4) ALL MR 100], it has been held that the operation of the Second Proviso below Section 14(1)(j-1) of the said Act is restricted to a period of one year from the date of commencement of the said Act and it protects the cases where the elections are also held within a period of one year from the date of commencement of the said Act. The Second Proviso neither provides protection in cases where a third child is born after a lapse of one year, nor does protect the cases where the elections are held after a lapse of one year from the date of commencement of the Act. The life of the Second Proviso has come to an end on 12-9-2002.

9. It is thus apparent that in the present case, the increase in the number of children after the cut-off date, i.e. 12-9-2001, has been established, and in the absence of the word 'living' in Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, the death of the third childKu. Dipali on 9-11-2011 would be of no consequence.

10. In the result, the petition is allowed. The order passed by the Commissioner, Amravati Division, Amravati, on 15-5-2014, is hereby quashed and set aside, and the order passed by the Additional Collector, Buldana, on 18-7-2013, is restored.

11. Rule is made absolute in above terms. No order as to costs.

Petition allowed.