Bombay High Court
Dnyaneshwar Patiram @ Ratiraj ... vs The Divisional Commissioner on 13 January, 2012
Author: R.K. Deshpande
Bench: R.K. Deshpande
1
wp5933.06.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.5933 of 2006
Dnyaneshwar Patiram @ Ratiraj Shirbhiye,
Aged 40 years,
Occupation - Agriculturist,
R/o Wadala Paiku,
Tahsil Chimur,
District Chandrapur. ... Petitioner
Versus
1. The Divisional Commissioner,
Nagpur,
Old Secretariat Building,
Civil Lines, Nagpur.
2. Additional Collector,
Chandrapur.
3. Gopichand s/o Uddhav Sakharam Urkude,
Aged 70 years,
Occupation - Agriculturist,
R/o Gram panchayat Wadala (Paiku),
Tahsil Chimur,
District Chandrapur. ... Respondents
Shri Rohit Deo, Advocate, with Shri Uday Gosavi, Advocate, for Petitioner.
Shri J.B. Jaiswal, AGP for Respondent Nos.1 and 2.
Shri A.P. Thakre, Advocate for Respondent No.3.
CORAM : R.K. Deshpande, J.
DATED : 13th January, 2012 Oral Judgment :
1. The petitioner was declared elected as Member and Sarpanch ::: Downloaded on - 09/06/2013 18:04:57 ::: 2 wp5933.06.odt of Gram Panchayat Wadala on 28-8-2005. An objection was lodged by respondent No.3 Gopichand before the Collector, Chandrapur under Section 16(2) of the said Act that the petitioner has incurred disqualification under Section 14(1)(j-1) of the Bombay Village Panchayats Act, 1958 (for short, "the said Act"), as the fourth child was born to him by name Harshal Dnyaneshwar Shirbhiye on 16-2-2002, i.e. after the cut-off date of 12-9-2001, and hence he be removed as Member and Sarpanch of Gram Panchayat Wadala.
2.
The Additional Collector, Chandrapur rejected the said objection by his order dated 28-2-2006 holding that the fourth child Harshal born to the petitioner on 16-2-2002 expired on 21-2-2002 and hence there was no increase in the number of children after 12-9-2001 in terms of the first proviso to Section 14(1)(j-1) of the said Act.
3. In appeal filed under Section 16(2) of the said Act by respondent No.3, the Divisional Commissioner, Nagpur Division, Nagpur reversed the decision of the Additional Collector by his order dated 8-11-2006 holding that there was increase in the number of children after 12-9-2001 and hence the petitioner was not protected by the first proviso to Section 14(1)(j-1) of the said Act. Hence, the petitioner has approached this Court challenging the decision of the Divisional Commissioner.
4. The factual aspects of the present case needs to be stated.
The first child was born to the petitioner, viz. Ku. Sneha, on ::: Downloaded on - 09/06/2013 18:04:57 ::: 3 wp5933.06.odt 11-2-1997, and the second child, viz. Ku. Kalyani, was born on 1-11-1999.
The third child, viz. Master Yash, was born on 23-6-2001, i.e. after the date of publication of the Amendment Act in the Official Gazette on 13-9-2000, but before the date of commencement, which is the cut-off date, i.e. 12-9-2001. The disqualification of the petitioner under Section 14(1)(j-1) of the said Act for being elected and continued as a member of the Panchayat is about the fourth child born to the petitioner on 16-2-2002, which was after the date of the commencement, i.e. 12-9-2001.
5. The main contention of Shri Rohit Deo for the petitioner is that at the most it was a case where the alleged disqualification was subsisting on the date of nomination of the petitioner for election and in terms of Section 13 of the said Act, the petitioner was not qualified to be chosen as a candidate for election. According to him, it was a case of wrongful acceptance of nomination paper, which can be agitated only by way of election petition under Section 15 of the said Act and the jurisdiction of the Collector or the Commissioner under Section 16(2) of the said Act was clearly ousted. He has placed heavy reliance upon the judgment of this Court in Shri Shrikrishna Wasudeo Dhage v. Shivcharan s/o Trimbakrao Kalne & Ors., reported in 2010(2) ALL MR 554. He further submits that Section 15A of the said Act dealing with the bar to interference by Court in electoral matters clearly states that no election to any Panchayat shall be called in question except in accordance with the provisions of Section 15; and no Court other than the Judge referred to in that Section shall entertain any dispute in respect of such election.
::: Downloaded on - 09/06/2013 18:04:57 ::: 4wp5933.06.odt He, therefore, submits that the order of the Commissioner passed in the appeal, impugned in the present case case, is without jurisdiction.
6. The further contention of Shri Rohit Deo for the petitioner is that the fourth child born to the petitioner on 16-2-2002, and expired on 21-2-2002. The reliance is placed upon the judgment of the Apex Court in Javed and others v. State of Haryana and others, reported in (2003) 8 SCC 369. In para 62 of the said judgment, it has been held that the disqualification is attracted no sooner a third child is born and is living after two living children. He submits that the provision of disqualification would be attracted only if a child is living and it does not apply to a case where the child is born and died. He, therefore, submits that the Additional Collector was right in holding that there was no increase in the number of children after 12-9-2001 and the case of the petitioner was governed by the first proviso to Section 14(1)(j-1) of the said Act. It is the further submission of Shri Rohit Deo that the case of the petitioner is also governed by the second proviso to Section 14(1)(j-1) of the said Act, as the fourth child was born on 16-2-2002, i.e. within a period of one year from the date of commencement of the said Act, i.e. 12-9-2001, and hence the petitioner was protected by the second proviso and the Divisional Commissioner has failed to consider the said aspect of the matter.
7. Shri Jaiswal, the learned AGP, submits that this was not a case of wrongful acceptance of nomination paper, but was of disqualification under Section 14 of the said Act, and it is the Collector, who has ::: Downloaded on - 09/06/2013 18:04:57 ::: 5 wp5933.06.odt jurisdiction to deal with such cases of disqualification as original Authority and the Commissioner empowered to deal with the appeals. Hence, according to him, no fault can be found with the powers exercised by the Collector and the Commissioner. He further submits that the case of the petitioner was neither covered by the first proviso to Section 14(1)(j-1) nor by the second proviso. According to him, there was an increase in the number of children of the petitioner after the cut-off date of 12-9-2001 and the protection under the second proviso was available only for a period of one year from the date of commencement of the Maharashtra Act No.34 of 2000. According to him, the elections in the present case were held on 28-8-2005, i.e. much after the proviso was introduced, and hence the petitioner was not protected by the second proviso also.
8. In the judgment of the Full Bench of this Court in Dattatraya Narhar Pitale v. Vibhakar Dinkar Gokhale and another, reported in 1975 Mh.L.J. 701, the applicant secured highest number of votes and was declared elected. The validity of the election of the applicant was challenged by the non-applicant by way of an election petition under Section 21(1) of the Maharashtra Municipalities Act, 1965 on the ground that he was disqualified under Section 16(1)(i) of the said Act. The learned Extra Assistant Judge set aside the election holding that the applicant was disqualified under Section 16(1)(i) of the said Act. The applicant, therefore, preferred a revision before this Court. The question involved was whether it is permissible to challenge the validity of an election by filing an election petition on the ground that the applicant is ::: Downloaded on - 09/06/2013 18:04:57 ::: 6 wp5933.06.odt disqualified, as contemplated by Section 16 of the said Act. The matter was referred to the Full Bench, before it the argument was advanced that in the matter of disqualification the only permissible remedy is the one provided in Section 44 of the said Act and the order passed under the said provision attains the finality and, therefore, the jurisdiction of the Civil Court as well as the Election Tribunal was taken away.
9. The Full Bench in Dattatraya Pitale's case has held in para 12 that if a candidate is disqualified under the Act or any other law, then it is always open to an elector or a voter to challenge the validity of an election of the returned candidate on the ground of such disqualification.
It has been held that the words "continues to be so disqualified" under Section 44 of the said Act shall not cover a case where a candidate might have incurred disqualification at the time when he files nomination paper, it might have continued when scrutiny took place, but such disqualification may not exist when polling took place and result is declared. The argument that the implied limitation should be read in the language of Section 21 in view of Section 44 of the said Act, was rejected by this Court. Para 17 of the said judgment dealing with this aspect of the matter being relevant, is reproduced below :
"17. It was, however, strenuously contended by Mr. Deshpande that under section 21 the order passed by the District Judge after inquiry is made conclusive. So also under section 44 the order passed by the State Government has been made final. The argument was that the authorities ::: Downloaded on - 09/06/2013 18:04:57 ::: 7 wp5933.06.odt trying the election petition under section 21 and the authorities dealing with disqualification under section 44 are entirely different and as they have power to act upon the same field, they may come to inconsistent judgment and controversy will arise which decision will prevail over the other. Therefore, implied limitation should be read in the language of section 21. When a ground of disqualification is taken in an election petition to challenge the validity of an election of a returned candidate, the inquiry is pertaining to the disqualification existing from the date of the nomination upto the date of announcement of the result and not thereafter because any disqualification which has arisen, for the first time, after declaration of the result cannot be a ground for challenging the validity of an election under section 21. Primarily the election tribunal constituted under section 21 is an authority which is empowered to go into this question after exercising judicial powers of a civil Court. The jurisdiction under Section 21 is not conferred upon the District Judge as a persona designata but that jurisdiction is conferred upon the District Court and that is why the decision given under section 21 is subject to revision by the High Court as it is a decision of a subordinate Court. Ordinarily one will expect that when in a petition under section 21 the validity of an election of a returned candidate is challenged on the ground, inter alia, of disqualification, the authority clothed with the power under section 44 will normally not proceed ::: Downloaded on - 09/06/2013 18:04:57 ::: 8 wp5933.06.odt with the enquiry until the matter is finally decided by the Court. If, however, notwithstanding the proceedings under section 21, either the Collector or the State Government proceeds to go into the question of disqualification, then, undoubtedly the decision of a judicial forum conferred with the power of a Court must always prevail."
It has been held that when a ground of disqualification is taken in an election petition to challenge the validity of an election, the enquiry is pertaining to the disqualification existing from the date of nomination up to the date of result and not thereafter. It is further apparent that even if the proceedings under Section 44 of the said Act are taken up simultaneous to the proceedings of the election petition, then, undoubtedly, the decision of a judicial forum conferred with the power of a Court must always prevail. In para 20, it has been observed that the provisions of Sections 44 and 21 operate in different fields, though to a certain extent there is a possibility of overlapping.
10. In the judgment of the Division Bench of this Court in Vinod Pandurang Bharsakade v. Returning Officer, Akot and another, reported in 2003(4) Mh.L.J. 359, it has been held that the improper rejection or acceptance of a nomination paper for the election of member of Gram Panchayat can be made the subject-matter of challenge in an election petition under Section 15 of the Bombay Village Panchayats Act, 1958. In paras 50 and 51 of the said judgment, this Court considered another judgment of the Division Bench of this Court in Bhosale Deepak ::: Downloaded on - 09/06/2013 18:04:57 ::: 9 wp5933.06.odt Manikrao and ors. v. State of Maharashtra and ors., reported in 1998(2) ALL MR 546, wherein it was held that the legality or propriety of the election can be challenged only by filing an election petition. The Court observed that Section 15 of the said Act confers very wide powers upon the Trial Judge to decide the validity of an election, without specifying any grounds. Qualification or disqualification of an elected candidate, improper rejection or acceptance of a nomination paper, improper counting or commission of corrupt practice, etc. are some of the grounds for invalidating an election. This Court was concerned with the question of interference in the process of election in exercise of its jurisdiction under Article 226 of the Constitution of India.
11. In the judgment of the Apex Court in State of Himachal Pradesh & Ors. v. Surinder Singh Banolta, reported in AIR 2007 SC 903, the Apex Court was considering a case where the Deputy Commissioner took the cognizance of the complaint against the respondent, and by a reasoned order dated 4-6-2002 declared the respondent disqualified for being chosen as a member of the Zilla Parishad and consequently his election was set aside. The Division Bench of Himachal Pradesh High Court opined, upon interpretation of Section 175 of the Himachal Pradesh Panchayati Raj Act, 1994 providing for disqualification as one of the grounds upon which an election petition could be filed, that the order dated 4-6-2002 passed by the Deputy Commissioner was not sustainable in law. The matter was taken up before the Apex Court. The Apex Court has held that the view taken by the Division Bench of the High Court was the correct view and the appeal was dismissed.
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12. In the matter before the Apex Court in Surinder Singh Banolta's case, cited supra, Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 provided for filing of an election petition on one or more grounds specified in sub-section (1) of Section 175 thereof.
Clause (a) of sub-section (1) of Section 175 laid down a ground for setting aside of an election if on the date of the election the elected person was not qualified or disqualified to be elected under the Act. Section 122 of the said Act contemplated both the situations, viz. where a person shall be disqualified for being chosen as also for being an office-bearer of Panchayat inter alia if he has encroached upon any land belonging to any authority mentioned therein. On facts, in that case, the respondent was declared to be an encroacher and such order was confirmed by the Financial Commissioner of the Shimla Division by his order dated 6-8-1998. The respondent was declared elected on 5-1-2001. In para 17 of the said judgment, the Apex Court has held as under :
"17. Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position."::: Downloaded on - 09/06/2013 18:04:57 ::: 11
wp5933.06.odt In para 21, the Apex Court has held that the Division Bench of the High Court was correct in its view. However, it further observed that the matter might have been different if the respondent was declared to be an encroacher after the election process was over and, thus, becoming disqualified to continue to be an office-bearer of Panchayat or Zilla Parishad.
13. Thus, the ratio of the judgment of the Apex Court in Surinder Singh Banolta's case holding that the matter could have been agitated in an election petition, is applicable only in cases where there is already an order passed by the Competent Authority declaring a person to be an encroacher prior to the date on which he has been declared elected and such order has attained finality. In the present case, though the petitioner incurred a disqualification under Section 14(1)(j-1) of the said Act prior to the date of his election, there was no adjudication subsisting holding that he was disqualified. No such order was produced while accepting the nomination paper of the petitioner for the election. The petitioner in this case contested the election and was declared successful. The petitioner was declared disqualified after the election process was over and the disqualification is for his continuance as a member of Panchayat. Hence, the judgment of the Apex Court in Surinder Singh Banolta's case cannot be applied to hold that the proceedings for disqualification could not have been taken up, particularly when the Apex Court itself has observed that the matter might have been different if the respondent therein was declared to be an encroacher after the election process was over and, thus, becoming ::: Downloaded on - 09/06/2013 18:04:57 ::: 12 wp5933.06.odt disqualified to continue to be an office-bearer of Panchayat or Zilla Parishad.
14. As has been held by the Full Bench of this Court in Dattatraya Pitale's case, enquiry in election petition pertains to the disqualification existing from the date of nomination up to the date of result and not thereafter. Section 14(1)(j-1) of the said Act states that no person shall be a member of a Panchayat continue as such, who has more than two children. Thus, it is a question of disqualification of the petitioner to continue as a member of Panchayat after he was elected, which is involved in the present case, and not the question of election of the petitioner as a member of Panchayat. It also cannot, therefore, be a matter of wrongful or improper acceptance of nomination paper, as has been held by this Court in Vinod Bharsakade's case, cited supra. Bar under Section 15A of the said Act applies only in respect of challenge to an election and not to the continuation of disqualification after the elections are held. At any rate, if the jurisdiction is overlapping, and there is no order passed by the Court of a Judge under Section 15 in an election petition, the order under Section 16(2) of the said Act passed by the Competent Authority shall become final, as has been held by the Full Bench in Dattatraya Pitale's case.
15. Coming to the judgment of this Court in Shri Shrikrishna Dhage's case, cited supra, the facts were that the petitioner Shri Shrikrishna Dhage submitted his nomination form on 15-11-2008 and the allegation against him was that he filed a false affidavit and declared on oath that he is not having third issue after 12-9-2001, i.e. after the ::: Downloaded on - 09/06/2013 18:04:57 ::: 13 wp5933.06.odt commencement of the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 1995. The allegation was also that along with his nomination paper, the petitioner filed a false birth certificate issued by respondent No.3 (Registrar of Births and Death of Akola Municipal Corporation). Thus, on the basis of false certificate and declaration on affidavit, the petitioner got himself nominated and elected. This is clear from para 14 of the said judgment. The Additional Commissioner accepted the objection and declared him disqualified. The Appellate Authority found that the fourth child of the petitioner was born on 23-11-2002, i.e. after the cut-off date and hence he had incurred the disqualification under Section 16(1)(n) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. This Court has held that the remedy was by way of election petition under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and recourse to the remedy of disqualification under Section 16(1)(n) was not permissible. The order of disqualification was set aside.
16. The aforesaid view taken by this Court in Shri Shrikrishna Dhage's case is based upon the construction of the expression "submitted a false claim or a false caste certificate" introduced by way of Maharashtra Act No.34 of 2000. This is also clear from para 15 of the said judgment, which is reproduced below :
"15. The contention of respondent no.1 Shivcharan therefore, itself shows that he pointed out incorrect or false declaration on affidavit and use of false certificate by ::: Downloaded on - 09/06/2013 18:04:57 ::: 14 wp5933.06.odt petitioner while filing his nomination paper. The disqualification was therefore in existence since prior to election. Section 27 of the Zilla Parishad Act, permits an Election Petition to be filed before the District Judge by any candidate at such election or by any person qualified to vote at such election within 15 days, after the date of declaration of result of election. Section 58[1-A] permits respondent no.1 to look into the aspect of disqualification of petitioner in the light of provisions of Section 16.
ig Section 62[3] permits Commissioner to look into such issue of disqualification suo moto or on an application made to him by any person. In this background provisions of Sub-section [5] of section 27 show that the District Judge trying election petition can declare a person who has submitted false claim or false certificate as disqualified for the purpose of that election.
The words "or submitted a false claim or a false caste certificate" have been inserted by Maharashtra Amendment Act No.34 of 2000. These words were not in the statute book when the Division Bench of this Court decided the case of Manik Mallappa Karale Vs Kisan Nagurao Patil and others (supra). It is therefore, obvious that if petitioner has submitted a false affidavit or false declaration with false certificate to show his entitlement to contest election, he could have been declared as disqualified under section 27[5][a] in Election Petition by the District Judge, and his election could have been set aside."::: Downloaded on - 09/06/2013 18:04:57 ::: 15
wp5933.06.odt Reading of the aforesaid para makes it clear that but for the amendment by the Maharashtra Act No.34 of 2000, such challenge by way of an election petition was not permissible.
17. By the Maharashtra Act No.34 of 2000, the same or identical amendment was also introduced in Section 15 of the Bombay Village Panchayats Act, 1958. However, subsequently, the said expression has been deleted by the Bombay Village Panchayats (Amendment) Act, 2006 (37 of 2006) dated 21-12-2006. As a result, the ground of submission of a false claim or a false caste certificate, which was subsisting in the Statute book on the date when the Collector passed an order on 28-2-2006 in the present case, stood deleted with effect from 21-12-2006. The judgment in Shri Shrikrishna Dhage's case, cited supra, does not deal with the situation where the expression "submitted a false claim or a false caste certificate" was not subsisting in Section 15 of the Bombay Village Panchayats Act, 1958 or it was subsequently deleted.
The said judgment is, therefore, of no help to the petitioner.
18. Apart from above, there is a distinction between "submission of a false claim" and "incurring of a disqualification". It is one thing to say that a candidate has "submitted a false claim" and it is another thing to say that a candidate is "disqualified to vote or to be elected". Both the things cannot be mixed with each other. For example, where there is already an order of disqualification passed under any of the clauses of Section 14(1) of the said Act by the Competent Authority, which was in ::: Downloaded on - 09/06/2013 18:04:57 ::: 16 wp5933.06.odt existence at the time of acceptance of nomination paper, but such order was not brought to the notice of the Returning Officer/Election Officer while accepting the nomination paper, then certainly it would be a case of a submission of a false claim by a candidate and the Court of a Judge under Section 15 of the said Act may have a jurisdiction to deal with such a case to hold that it was a false claim. However, this would not be the case where any candidate had incurred any disqualification prior to holding of an election and such disqualification continues even after the elections are held. In such an eventuality, it will be the case of continuation of disqualification and merely because election of such candidate is not challenged, that will not take away the jurisdiction of the Collector or the Commissioner under Section 16(2) to pass an order of disqualification of such a candidate. As pointed out earlier, the present case is of continuation of disqualification and hence the Court of a Judge under Section 15 has no jurisdiction to pass an order of disqualification under Section 14(1)(j-1) of the said Act.
19. Assuming that the amendment by the Maharashtra Act No.34 of 2000 conferred a power upon the Court under Section 15 to grant such declaration about disqualification in an election petition, the question is whether there was infusion of power with the Collector to pass an order of disqualification in view of the subsequent amendment deleting the expression "submitted a false claim or a false caste certificate" with effect from 21-12-2006. If prior to introduction of amendment by the Maharashtra Act No.34 of 2000, it was the Collector or the Commissioner under Section 16(2) of the said Act, who was competent to pass an order ::: Downloaded on - 09/06/2013 18:04:57 ::: 17 wp5933.06.odt of disqualification, then certainly the subsequent deletion of the expression "submitted a false claim or a false caste certificate" with effect from 21-12-2006, shall infuse the power with the Collector to pass an order of disqualification. The contention of Shri Rohit Deo for the petitioner is that the amendment dated 21-12-2006 shall not operate retrospectively to save the order of the Collector and ultimately that of the Commissioner. The contention cannot be accepted. It is not the question of retrospectivity of the amendment, which is involved. The amendment deleting the expression "submission of a false claim"
operates prospectively infusing the power in the Collector with effect from 21-12-2006 and shall save the order passed by the Collector, which was initially without jurisdiction. The defect of jurisdiction stands cured by way of an amendment. No doubt, the order of the Collector was in favour of the petitioner, but in appeal, the Commissioner has reversed the order of the Collector and the petitioner has been disqualified. Hence, it would ultimately save the order of the Commissioner from a challenge that it is without jurisdiction. The order of the Commissioner cannot, therefore, be interfered with on the ground that he had no jurisdiction.
20. In the judgment of the Apex Court in Javed's case, relied upon by Shri Rohit Deo, the learned counsel for the petitioner, the constitutional validity of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 was under challenge. Section 175(1)(q) along with the proviso was as under :
"175.(1) No person shall be a Sarpanch, Up-Sarpanch ::: Downloaded on - 09/06/2013 18:04:57 ::: 18 wp5933.06.odt or a panch of a Gram Panchayat or a member of a Panchayat Samiti or Zilla 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 disqualified.
* *ig *"
The provision of Section 14(1)(j-1) of the said Act is identical to the provision of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994.
Hence, the same is also 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 ::: Downloaded on - 09/06/2013 18:04:57 ::: 19 wp5933.06.odt 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."
Except some difference in the first proviso to Section 14(1)(j-1), the basic provision is the same. Hence, the object of main provision of Section 14(1)(j-1)of the said Act would be the same as that of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994, in the judgment of the Apex Court. One of the objects sought to be achieved by introduction of the said provision, is of popularizing the family welfare/family planning programme and the disqualification enacted seeks to achieve the objective by creating a disincentive, as has been observed by the Apex Court in the said judgment. While upholding the constitutional validity, it has been held that the classification does not suffer from any arbitrariness. The number of children, viz. two, is based on legislative wisdom and it could have been more or less. It has further been held that the number is a matter of policy decision, which is not open to judicial scrutiny. The amendment introduced was held to be consistent with the National Population Policy and it seeks to achieve a laudable purpose -- socio-economic welfare and health care of the masses.
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21. The principles of construction of provisos, which are in the nature of exceptions to the main provision, are required to be stated.
The normal function of such provisos is to except something out of the main provision or to qualify something enacted in the main provision, which but for the provisos would be within the purview of the main provision. The operation of such provisos cannot be extended to all kinds of cases covered by the main provision, otherwise it shall have the effect of nullifying the main provision. Similarly, such provisos cannot be read to exclude something from the main provision, which but for such reading would be within the purview of the main provision, otherwise it would mean to create another proviso or proviso to proviso. Such provisos, which are in the nature of exception, are, therefore, required to be construed strictly, restricting its scope and impact only to a situation covered by such provisos.
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 and 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 ::: Downloaded on - 09/06/2013 18:04:57 ::: 21 wp5933.06.odt 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 cut-off date 12-9-2001. Hence, no fault can be found with the view taken by the Commissioner.
23. Now coming to the another submission of Shri Rohit Deo for the petitioner that the case of the petitioner is governed by the proviso to Section 14(1)(j-1) of the said Act, as the fourth child was born on 16-2-2002, i.e. within a period of one year from the date of commencement of the said Act, i.e. 12-9-2011, para 4 of the judgment of the Apex Court in Javed's case, cited supra, is relevant, and part of the portion thereof is reproduced below :
"4. Placed in plain words, the provision disqualifies a person having more than two living children from holding the specified offices in Panchayats. The enforcement of disqualification is postponed for a period of one year from the date of the commencement of the Act. A person having more than two children up to the expiry of one year of the commencement of the Act is not disqualified. This postponement for one year takes care of any conception on or around the commencement of the Act, the normal period of gestation being nine months. If a woman has conceived at the commencement of the Act then any one of such couples would not be disqualified. Though not disqualified on the ::: Downloaded on - 09/06/2013 18:04:57 ::: 22 wp5933.06.odt date of election, if any person holding any of the said offices incurs a disqualification by giving birth to a child one year after the commencement of the Act he becomes subject to disqualification and is disabled from continuing to hold the office. The disability is incurred by the birth of a child which results in increasing the number of living children, including the additional child born one year after the commencement of the Act, to a figure more than two. ..."
The object of introducing second proviso to Section 14(1)(j-1) of the said Act is to postpone the enforcement disqualification to take care of cases where conception has already taken place on or around the date of commencement of the said Act, the normal period of gestation being nine months. The object is also to provide notice of introducing such disqualification. The operation of second proviso is thus restricted to a period of one year from the date of commencement of the said Act. It protects the cases where elections are also held within a period of one year from the date of commencement of the said Act. The proviso neither provides protection in cases where a third child is born after a lapse of one year from the date of commencement of the said Act, nor does protect the cases where elections are held after a lapse of one year from the date of commencement of the said Act. The life of second proviso came to an end on 12-9-2002. In the present case, the date of commencement is 12-9-2001, whereas the period of one year expired on 12-9-2002. The elections have been held on 28-8-2005. The case of the petitioner would, therefore, not be protected or governed by the second ::: Downloaded on - 09/06/2013 18:04:57 ::: 23 wp5933.06.odt proviso and hence the contention is rejected.
24. In view of above, there is no merit in the contentions raised.
The petition is dismissed. Rule is discharged. No order as to costs.
Judge.
Pdl.
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