Suleman Abbas S/O Chiragali ... vs Pramod S/O Nandlal Yadav, The ...
2007 Latest Caselaw 622 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. As issue involved in this Letters Patent Appeal is found to be squarely covered by judgment of Hon'ble Apex Court, We have heard parties finally with their consent by making Rule returnable forthwith. We have accordingly heard Advocate P.B. Patil for the Appellant, Shri K.B. Ambilwade, Advocate for Respondent No. 1, Shri A.M. Quazi, Advocate for Respondent No. 2 and Smt. Wasnik, learned AGP for Respondent No. 3.

2. Challenge in this LPA is to the order dated 17/4/2007 passed by Learned Single Judge admitting Writ Petition No. 1216/2007 filed by Respondent No. 1 for final hearing and granting him interim relief whereby order passed by the Collector Nagpur on 28/2/2007 in Case No. 2 of 2007 disqualifying him in view of provisions of Section 16(1)(k) of Maharashtra Municipal Councils, Nagar Panchayats And Industrial Townships Act, 1965, (hereinafter referred to as Municipal Act) on the ground that he has more than two children has been stayed. Said provision reads as under:

16(1) No person shall be qualified to become a Councillor whether by election, or nomination, who, (k) has more than two children: Provided that, a person having more than two children on the date of commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats And Industrial Townships (Second 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 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 -- For the purposes of this clause:

(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.

It is not in dispute before us that period of one year from the date of commencement of above amendment has expired on 12/9/2001.

3. The following facts are relevant for deciding dispute before us. General election of Respondent No. 2 Municipal Council, Kamptee, were held on 7/1/2007 and present Appellant as also present Respondent No. 1 contested it from Ward No. 12. Appellant secured 516 votes and Respondent No. 1 who secured 540 votes was declared elected. Appellant thereafter filed application under Section 16(1)(k) of Municipal Act before Respondent No. 3 Collector for disqualifying Respondent No. 1 on the ground that said Respondent is having 3 issues/children. He pointed out that second child was born on 19/4/2001 while third or last child has been born on 26/4/2006. Nomination form supported by affidavit was filed by Respondent No. 1 on 11/12/2006 in which he did not disclose true position in this respect. Respondent No. 1 filed reply disclosing that third child was given in adoption in religious ceremony held on 2/10/2006 to one Sushil Yadao. It is further stated that this decision to give in adoption was taken in May 2006 itself and said adoption is in accordance with law. The child therefore ceased to be child of Respondent No. 1 and member of his family and hence at the time of scrutiny of nomination paper he was not having third issue. The Collector in his order dated 28/2/2007 noticed that Respondent No. 1 accepted birth of three children and out of them one is born after 12/9/2001 and hence is disqualified to become member of Municipal Council Kamptee. Parties have addressed arguments before us only on the basis of above facts and only debate before us is whether the alleged adoption dated 2/10/2006 can save the situation for Respondent No. 1. It must be stated that for said purpose fact of adoption has not been questioned before us by Appellant.

4. Position of three children with their respective dates of birth born to present Respondent No. 1 is as under:

  Sr. No. Name of Child               Date of Birth
1.      Snehal Pramod Yadao.        04/4/1999.
2.      Swasi Pramod Yadao.         19/4/2001.
3.      Sinchal Pramod Yadao.       26/4/2006. 
 

Respondent No. 1 claims that this third child by name Ku. Sinchal has been given in adoption on Dassera day to Sunil Yadao & his wife Smt. Rajani. It was therefore contended before the Collector that he does not have three children on the date of submitting nomination paper. As already pointed out above, the nomination paper has been filed on 11th December 2006 and date of written adoption deed is 2/10/2006. In adoption deed it is mentioned that daughter born on 26/4/2006 is taken in adoption and has been named as Ku. Bhumi. It is apparent that before 12/9/2001 two children are already born to Respondent No. 1 and third child has been born to him about four and half years after said cut-off date. Arrangement of various clauses of Section 16(1)(k) above clearly shows that focus therein is upon giving birth to third child after 12/9/2001. Explanation (ii) only permits child or children to be adopted. Said explanation cannot be interpreted to mean that person like Respondent No. 1 giving birth to third child after said date can avoid application of Section 16(1)(k) & protect himself by giving such child in adoption. Such an interpretation will defeat the very purpose of legislature of controlling population growth behind effecting such an amendment in the statute. Said explanation permits adoption of a child/children who are already born and therefore form part of existing population, by subject on whom disqualification otherwise operates. Exemption provided is with obvious intention of encouraging welfare & well-being of such child being taken in adoption. Reliance upon Sections 11 and 12 of Hindu Adoption & Maintenance Act by learned Advocate Ambilwade is therefore misconceived for this debate. The object of checking population growth is apparent from statement of objects and reasons accompanying L.A. Bill No. XXVII of 1995. Said statement in short points out problems arising out of exploding population and it is mentioned that amendment proposed is one of the effective possible measures to promote small family norm in accordance with National Policy of small family. It is expressed that local representatives of people are best suited to achieve this object. Paragraphs 35 to 38 of judgment of Hon'ble Apex Court reported at Javed v. State of Haryana can be conveniently referred to in this respect. Even the issue of giving such third child in adoption has been considered therein. In later judgment i.e. State of Punjab v. Shiv Ram the Hon'ble Apex Court quotes this 2003 case with approval as under:

31. In Javed and Ors. v. State of Haryana and Ors. , popularly known as 'Two-Child Norm' case, this Court had an occasion to deal with the problem of increasing population, the danger which it poses for the progress of the nation and equitable distribution of its resources and upheld the validity of the Haryana legislation imposing a disqualification on persons having more than two children from contesting for an elective office.

5. In said 2003 case Javed v. State of Haryana (supra), three Hon'ble Judges of Apex Court considered challenge on the basis of Article 14 of the Constitution of India to provisions of Section 175(1)(q) of Haryana Panchayati Raj Act (11 of 1994), which disqualified person with more than 2 children from becoming Sarpanch or Panch and held it to be not violative of Article 14 & classification made thereby is found to be based on intelligible differentia having nexus with object of popularising family planning. Said Section reads:

175. (1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zilla Parishad or continue as such who xxx xxx xxx xxx xxx xxx (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 disqualified;

In this judgment persons having more than two living children are held to be clearly distinguishable from persons having not more than two living children. The disqualification enacted by the provision was to achieve the objective by creating a disincentive. The classification has been held not to suffer from any arbitrariness. Hon'ble Apex Court further held that the number of children, viz., two is based on legislative wisdom & it could have been more or less. The number is declared to be a matter of policy decision which is not open to judicial scrutiny. Section 175(1)(q) disqualifying person with more than 2 children is found not violating any fundamental right or unreasonable as right to contest an election is neither a fundamental right nor a common law right but a right conferred by a Statute and obviously subject to qualifications and disqualifications enacted by legislation. For present LPA following findings about giving such a child in adoption in paragraph 62 are important:

62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out.

6. It is apparent that these observations clinch the issue insofar as debate before us is concerned. It is clear that Respondent No. 1 is not qualified to continue as Councillor of Respondent No. 2 Municipal Council. While filling in his nomination paper, he has not disclosed birth of this third child or its giving in adoption. His affidavit filed along with nomination paper on 11/12/2006 mentions only fact that he has two living children on that date and one out of them is born after 13/9/2000. In its paragraph 3 he has acknowledged on oath that he was aware that if any child is born to him after 12/9/2001 and number of children to him becomes more than two, he will stand disqualified. All this material on record clearly shows that Respondent No. 1 did not disclose true and correct position while filing nomination paper with either malafide intention or guilty conscious. In view of this factual and legal position, We find that he cannot be allowed to continue as Councillor during pendency of petition. We, therefore, find that Learned Single Judge has erred in extending him interim protection while admitting his Writ Petition. Said interim protection has been extended without assigning any reasons and runs contrary to express mandate of Section 16(1)(k) of Municipal Act. Hence, only portion "Interim relief in terms of prayer Clause (ii)." of said order dated 17/4/2007 impugned before us is hereby quashed and set aside. Rest of the order is maintained as it is.

7. Letters Patent Appeal is thus partially allowed by vacating interim stay granted to present Respondent No. 1 i.e. Petitioner in Writ Petition No. 1216/2007. Impugned order dated 17/4/2007 passed therein by Learned Single Judge stands modified only to that extent. Rule made absolute accordingly with costs payable by Respondent No. 1 to Appellant and also to Respondent No. 2 and 3.