Bombay High Court
Age : 50 Yrs. vs State Of Haryana & Ors. Reported In ... on 20 December, 2011
Bench: S.V. Gangapurwala
1 W.P. 9261.2011 - [ J ]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9261 OF 2011
Sow. Girika W/o Badamrao Pandit
Age : 50 Yrs., Occ. Household,
R/o : Sathenagar, Gevrai,
Tq. Gevrai, Dist. Beed. ..... PETITIONER
V E R S U S
1. The State of Maharashtra
Through Secretary
Urban Development
Department, Mantralaya,
Mumbai.
2. The Returning Officer
for the Election of
Municipal Council, Gevrai,
Tq. Gevrai, Dist. Beed.
3. Sow. Meena W/o Shantilal Pisal
Age : 30 Yrs., Occ. Household,
R/o : Sathenagar, Gevrai,
Tq. Gevrai, Dist. Beed.
4. Sopan S/o Dnyaneshwar Madke
Age : Major, Occ. Agriculture,
R/o : Ganeshnagar, Gevrai,
Dist. Beed.
5. Appasaheb S/o Vithal Kangude
Age : Major, Occ. Agriculture,
R/o : Santoshnagar, Gevrai,
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Dist. Beed.
6. The State Election Commissioner
(Maharashtra) Through
Collector, Beed. ..... RESPONDENTS
Mr. N.L.Jadhav, Advocate for the petitioner.
Mr. N.B.Patil, Asstt. Govt. Pleader for State.
Mr. S.T.Shelke,Advocate for Resp.nos. 2 & 6.
Mr. A.M.Gaikwad, Advocate for Resp. No. 3.
ig CORAM : S.V.GANGAPURWALA, J.
JUDGMENT RESERVED ON : 01/12/2011
JUDGMENT PRONOUNCED ON :20/12/2011
JUDGMENT :
1. The petitioner and respondent nos. 3 to 5 filled in
nominations for the election of Councillor of Gevrai Municipal Council
from Ward No. 2-B.
2. The objection was taken to the nomination of respondent no.
3 on the count that she is having five ( 5 ) children and one child born
after the cut off date, as such is disqualified. The Returning Officer
rejected the nomination of respondent no. 3. Respondent no. 3 filed
3 W.P. 9261.2011 - [ J ]
Appeal before the District Court. The District Judge allowed the Appeal of
respondent no. 3 and directed the Returning Officer to accept the
nomination paper of respondent no. 3. Aggrieved thereby, the present
Writ Petition is filed.
3. Mr. N.L.Jadhav, the learned counsel for the petitioner
submits that respondent no. 3 is wife of Shantilal Pisal. Shantilal Pisal has
four ( 4 ) issues from his first wife. After the death of the first wife,
Shantilal married with present respondent no. 3 and respondent no. 3
gave birth to a child on 03/08/2004. As such, it will have to be said that
the Respondent no. 3 had five ( 5 ) children. The learned counsel submits
that Section 16 ( 1 ) ( K ) of the Maharashtra Municipal Council and
Nagar Panchayat Act [ For short, ' said Act ' ] will have to be given wider
interpretation. Explanation to Section 16 ( 1 ) (K) of the said Act will
have to be read harmoniously. In explanation, the word " couple " is used
and though four ( 4 ) children are born to Shantilal Pisal from his first
wife, still as respondent no. 3 has married with Shanatilal Pisal and has
given birth to a child, it will have to be held that the said couple have
five ( 5 ) children and one child is born after the cut off date. The word
" family " would include all the children. As the word " couple " is used in
the explanation, that will be concerned with the word " family ". The
learned counsel submits that any other interpretation would be contrary to
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the aim and object of the Act. The learned counsel to substantiate his
contention, relies on the Judgment of the Apex Court in the case of Javed
and Ors. V/s State of Haryana & Ors. Reported in [ 2003 ] 8 SCC -
369.
4. Relying on the aforesaid Judgment, the learned counsel
contends that even in Mohmaddans, four ( 4 ) marriages are permissible
and even if the husband has one ( 1 ) child from each marriage, still that
is not permissible in view of the said Judgment. According to the learned
counsel, the District Judge has committed an error in directing the
Returning Officer to accept the nomination paper of respondent no. 3.
5. Mr. A.M.Gaikwad, the learned counsel for respondent no. 3
supports the order and submits that the petitioner has only one child and
the children born to her husband from his first wife, can not be construed
as children of the petitioner.
6. Before adverting to the arguments canvassed by the learned
counsel for the respective parties, it would be appropriate to refer to the
relevant provision, as under :
" 16 Disqualifications for becoming Councillor - (1) No
person shall be qualified to become a Councillor whether by
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election, 2 [ *** ] or nomination, who, --
( a-1) to (ii-j) : xxxxxxxxxxxxxxxxxxxx
(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 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 purposes of 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 sub-sequent delivery shall be deemed to be
one entity;
(ii) " Child " does not include an adopted " child or
children ".
(1) is a member of the State Legislature or of
Parliament :
Provided that nothing in this clause shall affect
the membership of a sitting councillor till the expiry of his
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current term of office as such Councillor;
Provided further that any action, taken by
such councillor during the period from the 7th October,
2001 till the 20th October, 2001, being the date of
publication of the Maharashtra Municipal Corporation and
Municipal Councils ( Amendment )Ordinance, 2001, shall
be deemed to have been validly taken and shall not be
challenged in any court of law only on the ground that
during the said period he had incurred disqualification
under this clause.
(1 A ) A person who at any time during the term of
his office is disqualified under ( Section 55 B or ) the
Maharashtra Local Authority Members Disqualification Act,
1986( Mah. XX of 1987 ) for being a Councillor shall cease
to hold office as such councillor).
7. Section 16 ( 1 ) (k) of the said Act deals with the
circumstances when a person is disqualified to become a councillor. A
person having more than two ( 2 ) children born after the cut off date,
shall be disqualified from contesting the election.
8. In the present case, it is not disputed that respondent no. 3
has only one child born on 03/08/2004 from the wedlock with Shantilal
Pisal. Shantilal Pisal has four ( 4 ) issues from his earlier wife, who is
dead. Section 16 of the said Act uses the term ' no person '. In our case,
the word ' person ' would be referable to respondent no. 3. The word
7 W.P. 9261.2011 - [ J ]
' person ' is referable to an individual. Respondent no. 3 has only one
( 1 ) child. Four ( 4 ) children born to Shantilal Pisal from his first wife,
would be the step children of respondent no. 3. The word ' children '
would not include ' step children '. The Legislature in its visdom has not
included the term ' step children '. We can not import any term which is
not incorporated in the provision. That would tantamount to legislating.
Even if we consider the explanation, then the couple has only one ( 1 )
child born from the wedlock. The four ( 4 ) issues to Shantilal Pisal from
his first wife, can not said to be the children of the couple constituting of
Shantilal Pisal and respondent no. 3. When one interprets the provision
dealing with disqualification, the same will have to be strictly interpreted.
9. The golden rule of interpretation is that the provision should
be interpreted literally. It is only if the provision leads to multi farious
interpretation, then one will have to go to the aims and objects of the
legislation. In a case where the meaning of the provision is unambiguous
and does not admit of any other interpretation, then literal interpretation
is the rule.
10. In a Judgment of Javed and others [ supra ], the Apex Court
was dealing with a case where the person concerned was having more
than two ( 2 ) children born from different wives. In that context, the
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Apex Court held that even if the children are born from other woman, the
same would not be safe-guarded. Here, in the present case, if Shantilal
Pisal would have been the candidate, then it would have been a different
case. Respondent no. 3 has only one ( 1 ) child and as such it can not be
said that the said couple has two ( 2 ) or more children.
11. In light of the above, the Writ Petition being sans merit, is
dismissed. No costs.
[ S.V. GANGAPURWALA,J. ]
KNP/W.P. 9261.2011 - [ J ]
