Bombay High Court
Dalpat S/O Totaram Kshirsagar vs Additional Commissioner, ... on 21 December, 2016
Bench: Ravi K. Deshpande
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.5500 of 2014
Dalpat s/o Totaram Kshirsagar,
Aged 55 years,
Occupation - Agriculturist,
R/o Nimkhed,
Tq. Malkapur,
Dist. Buldhana. ... Petitioner
Versus
1. Additional Commissioner,
Amravati Division, Amravati.
2. The Collector, Buldhana.
3. Sau. Mangala w/o Vitthal Narkhede,
Aged 32 years,
Occupation - Grampanchayat Member,
R/o Nimkhed, Tq. Malkapur,
Dist. Buldhana. ... Respondents
Shri P.S. Kshirsagar, Advocate for Petitioner.
Shri Amit Chutake, Assistant Government Pleader for Respondent
Nos.1 and 2.
Shri P.A. Kadu, Advocate for Respondent No.3.
Coram : R.K. Deshpande, J.
Dated : 21st December, 2016
Oral Judgment :
1. The matter is heard finally by consent of the learned counsels
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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
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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, to urge that having more than two living children
attracts the disqualification.
4. In the decision of the Apex Court in Javed's case, 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--
* * *
(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."
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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, 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
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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
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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;
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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
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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, 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
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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 re-framing 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, 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
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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 child-Ku. 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.
JUDGE.
Lanjewar
