Bombay High Court
Subhash Sajesingh Gavit vs The Returing Officer Zp Nandurbar And ... on 17 October, 2019
Author: Prasanna B. Varale
Bench: Prasanna B. Varale, Ravindra V. Ghuge, Rajendra G. Avachat
WP/6993/2008 & ANR
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6993 OF 2008
SUBHASH SAJESINGH GAVIT
VERSUS
THE RETURNING OFFICER ZP NANDURBAR AND ORS
WITH
WRIT PETITION NO.6994 OF 2008
SAVITA SUBHASH GAVIT
VERSUS
THE RETURNING OFFICER AND ORS
...
Advocate for Petitioners : Shri Sapkal V.D. h/f Shri Yenegure A.P.
Advocate for Respondent 1 : Shri Shelke S.T.
Advocate for Respondent 2 : Shri Bachate P.D.
Government Pleader for State : Shri Girase A.B. and
Advocate Shri Irpatgire A.N. (suo moto)
...
CORAM : PRASANNA B. VARALE,
RAVINDRA V. GHUGE & RAJENDRA G. AVACHAT, JJ.
Reserved on : August 6th, 2019 Pronounced on : October 17th, 2019 ...
ORDER ON REFERENCE : (Per Ravindra V. Ghuge, J.) :-
1. The learned Single Judge of this Court had passed an order on 28.2.2019, by which, a request was placed before the Honourable the Chief Justice of the Bombay High Court under Chapter I Rule 8 of the Bombay High Court Appellate Side Rules, 1960 for considering the formation of a Larger Bench. By the order of the Honourable the Chief Justice, this Bench has been constituted.
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WP/6993/2008 & ANR 2
2. The following three issues have been framed by the learned Single Judge, by way of a reference to this Court:-
(1) Whether, the disqualification clause, introduced in the Maharashtra Zilla Parishad and Panchayat Samities Act, Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and the Maharashtra Village Panchayats Act, and the proviso thereunder, would be applicable from 13.9.2000?
(2) Whether the clause of disqualification can be attracted, considering the number of birth of the children irrespective of whether any of the children have died or whether a child who has died and is not in existence on the date of the filing of the nomination papers, will have to be excluded from the number of children procreated by the candidate?
(3) Whether such demise of the child can be excluded by interpreting the word 'had' appearing in the proviso so as to be read as 'has' appearing in Section 16(1)(k)?
3. Considering that we are called upon to answer the said three issues, the following factors would be sufficient for our consideration:-
(a) Both the petitioners are husband and wife, inter se.
(b) The petitioner - Subhash was married to Asha (first wife), who gave birth to their three children namely; Ms. Nisha (born on 30.3.1984), Ms. Priyanka (born on 22.9.1985) and Master ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 3 Ankush (born on 20.10.1990).
(c) Asha died on 6.8.1994.
(d) The petitioner married Savita (presently the petitioner in
the second petition) in 1996 and she gave birth to three children, namely; Ms. Mohini (born on 30.12.1997), Master Tanmay (born on 1.8.2000) and Master Chetan (born on 17.7.2002).
(e) Master Chetan passed away on 5.11.2003 leaving Savita with two children.
(f) Both Subhash and Savita have contested the election for the Zilla Parishad, Nandurbar by filing their nomination papers on 14.11.2008.
(g) Their nomination papers were rejected on 17.11.2008 on the ground that the third child was born on 17.7.2002.
(h) The Election Appeals preferred by both the petitioners were rejected by the learned District Judge and hence, both of them, filed the two Writ Petitions.
4. Considering the conspectus of the matter, it would be appropriate to deal with the particular provisions simultaneously introduced by the amendment on 13.9.2000 in the Maharashtra Zilla Parishads and Panchayat Samities Act, the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act and the Maharashtra Village Panchayats Act (the Bombay Village Panchayats ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 4 Act, 1958).
5. The statement of objects behind introducing these three Acts is common and clearly indicates the intent of the Legislature to encourage small families. The statement of objects and reasons read as under:-
" The population growth in our country has reached alarming levels and arresting population growth has become the need of the hour. This enormous population growth is hampering the progress made by the country over the years practically in every field. The population growth in the State of Maharashtra is also rising rapidly putting the infrastructure such as housing, water supply, sewerage, roads, public transport, etc., under severe pressure. It has, therefore, become essential to immediately take every possible step to arrest this fast rate of growth of population in the state. As one of the effective measures towards achieving this objective, it is felt necessary to promote the small family norm in this state in consonance with national policy of small family. Government feels that the best way of setting an example for the public and also the best step towards achieving this objective of small family norm is through the local representatives of the people, that is, members of Village Panchayats and Councillors of Zilla Parishads. In pursuance of this policy Government considers it expedient to suitably amend the Bombay Village Panchayats Act, 1958 and the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, disqualifying prospectively a person having more than two children for being chosen as or for being a member of a Village Panchayat or a Zilla Parishad." (Emphasis supplied). ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 :::
WP/6993/2008 & ANR 5 ISSUE NO.1 "Whether, the disqualification clause, introduced in the Maharashtra Zilla Parishad and Panchayat Samities Act, Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and the Maharashtra Village Panchayats Act, and the proviso thereunder, would be applicable from 13.9.2000?"
6. The first issue raises a question as to what should be the date of commencement of the amendment to these three Acts, which were brought into effect by a publication in the Official Gazette on 13.9.2000. Several judgments referred to under the order of reference, indicate divergent views.
7. Section 16(1)(n) and 16(2)(e) pursuant to the amendment introduced on 13.9.2000, which is the date of the commencement of the Act, under the Zilla Parishad Act, read as under:-
"Section 16 - Disqualifications :
(1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor --
...................................
(n) if he has more than two children.
....................................
(2) Notwithstanding anything contained in sub-section (1) --
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WP/6993/2008 & ANR
6
....................................
(e) a person shall not be disqualified under clause (n)
of sub-section (1) for being chosen as, or for being, a Councillor, if he is 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"), so long as the number of children he had on the date of such commencement does not increase;
Provided 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 disqualification mentioned in clause (n) of sub-section (1).
Explanation.-- For the purpose of clause (n) of sub- section (1) and clause (e) of this sub-section --
(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. ...................................."
Similar disqualification clause was introduced on the same date 13.9.2000 in the Village Panchayat Act, under Section 14(1)(j-1), which ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 7 reads as under:-
"14. No person shall be a member of a panchayat or 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."::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 :::
WP/6993/2008 & ANR 8 An identical disqualification clause was introduced in the Nagar Panchayats Act under Section 16(1)(k), which reads as under:-
"Section 16 - Disqualifications for becoming a Councillor .
(1) No person shall be qualified to become a Councillor whether by election, 1[* * *] 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 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.- For the purposes of this clause, -
::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 9 (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."
8. The learned Advocates appearing on behalf of all the parties submit that the date of commencement of the amendment introducing the disqualification clause is 13.9.2000. They are united in contending that the commencement date, which is referred to as the 'cut off date' in some of the reported judgments, in all the three Acts, would be 13.9.2000, subject to the proviso that if a person has more than two children on the date of the commencement of the Act (meaning the 'cut off date'), he would not incur a disqualification, if the said number of children does not grow, after the commencement date.
9. In the above backdrop, whether the first proviso below Section 16(2)(e), Section 14(1)(j-1) and Section 16(1)(k), under the three Acts, would result in postponing the date of the commencement of the amendment clause. The learned Advocates who have addressed us are united in submitting that the first proviso does not amount to postponing the commencement of the disqualification amendment, inasmuch as, it does not permit any person, otherwise not incurring the ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 10 disqualification on the date of the commencement of the Act, to further procreate a child. They submit that the proviso is not aimed at postponing the introduction of the disqualification clause by one year.
10. Shri Sapkal submits by way of an illustration, that if a person has, say five children on the date of the commencement of the Act and is aware that though he has more than two children he would not incur a disqualification only if he does not increase the number of his children, would be disqualified if the sixth child is born anytime thereafter and even within the period of one year. He further submits that biologically, a woman would take about nine months and nine days to deliver a child. If a lady candidate or a male candidate procreates resulting in the birth of a child within a period of about nine months and two weeks or a lesser period after the commencement date, it would be obvious that the mother had conceived at the time of the commencement date and the couple cannot be blamed for such conceivment as they were not aware that they would incur a disqualification if the number of children grow after the date of the commencement. It is further canvassed that if a lady has already conceived at the stroke of the commencement of the Act and either of the couple desires to make a future in the political sphere in a democratic set up, such a couple cannot be compelled to terminate the pregnancy / abort the pregnancy merely to avoid a disqualification. ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 :::
WP/6993/2008 & ANR 11
11. We find from the specific language used in the disqualification provision introduced in the three Acts that the Legislature has neither thought of the above situation, nor has the Legislature considered it in the statement of objects and reasons or even by the explanation that we find under the three Acts. The explanation deals with a couple having only one child at the time of the commencement of the Act.
12. We find that the intent and object of the Legislature was to restrict the birth of children so as to control the growth of population. It is, therefore, specifically provided that a person would be disqualified for being chosen or for being elected or for continuing as an elected member if the number of his children, grows after the date of such commencement. Apparently, the intention of the Legislature is that in no circumstances, the number of children should grow after the date of the commencement of the disqualification Act.
13. It is an act of nature that a human being takes about nine months and nine days to deliver a full term child. The disqualification Act is evidently made applicable prospectively. In Clause (e) of the Zilla Parishad Act, an exception is carved out to protect a candidate from disqualification even if he has more than two children, provided the number of children had on the date of such commencement, would not increase. Under Sub-section (j-1) of the Village Panchayat Act, the second proviso is introduced to carve out an exception to save a ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 12 candidate from such disqualification, which is identical to Clause (e) in the Zilla Parishad Act. The proviso to Section 16 of the Municipal Councils Act is identical to the second proviso to Sub-section (j-1) of the Village Panchayats Act.
14. It is, therefore, necessary to consider as to how would a proviso operate in relation to a provision of law. In S.Sundaram Pillai and others Vs. V.R. Pattabiraman and others [(1985) 1 SCC 591], it was held by the Honourable Apex Court in paragraph No.43 as under:-
"43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:
1) qualifying or excepting certain provisions from the main enactment;
2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 13
4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision."
15. The learned Single Judge of this Court (i.e. myself) had an occasion to deal with a similar situation in the matter of Gautam Rama Latke Vs. The State of Maharashtra and others, [2019 (1) All M.R. 318], decided on 26.2.2018. It has been observed in paragraph Nos.14 to 19 as under:-
"14. The statement of objects with regard to the amendment brought into effect by the Act of XLIV of 2000 on 13/09/2000, has been placed before me. It requires no debate that this amendment was introduced in the Bombay Village Panchayats Act and the Maharashtra Zilla Parishads and Panchayat Samitis Act respectively, by the said Act of 2000. The intent and object was to discourage unnecessary growth in population and to popularize methods of family planning so as to control the growth in population. As has been said by the late Justice V.R. Krishna Iyer in one of his landmark judgments Jolly George Varghese and another v. The Bank of Cochin that 'to be poor, in this land of Daridra Narayana', excessive growth of population would be a heavy burden on this nation.
15. It cannot be ignored that worldwide and especially in several Asian countries and countries from Europe, America and Scandinavia, steps are taken for encouraging family planning and birth control along with the use of contraceptives for controlling the growth of population. The term "family planning" ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 :::
WP/6993/2008 & ANR 14 is more than often used as a synonym for birth control. Family planning is as important from the point of view of the mothers' health, as well as, keeping in view the financial and economic condition of a particular family. The uncontrolled growth of population is one of the most important reason, which creates economic problems in India. Unemployment, poverty, illiteracy and growing cost of living are intricately connected with the unnecessary growth in population. It is seen all around and in all walks of life that cities, temples, markets, educational institutions, railway stations, bus stands etc., are overcrowded. The Government of India has also formed a Family Planning Commission to control the increasing growth of population. Laws are introduced to curb child marriages which are said to be one of the main causes for such a growth.
16. India has a total area of 3287263 Sq.Kms out of which only 2973193 Sq.Kms constitutes land. China has a total area of 9596960 Sq. Kms out of which 9326410 Sq. Kms is the land area. It is projected that if effective steps are not taken for population control, India would cross the 1.5 billion mark by 2030. The population growth of India is 1.2% as in 2012-2013 and in China it is 0.5%. The population density of India is 367 persons per Sq.Km. as against 142 persons per Sq.Km in China. India is 2.58 times more dense than China. It is estimated as in July 2017 that the population of India is 1281935911 and China is 1379302771. As such, the necessity for population control, therefore, requires no debate.
17. Needless to state, the amendment to these two Acts in the State of Maharashtra was apparently introduced to ensure that importance of family planning is brought to the notice of every ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 15 individual and the citizens are educated to have lesser children considering population explosion. Since the arena of politics appears to be very attractive to a large chunk of the population, the legislature, in its wisdom, thought it fit to restrict the political aspirations of those candidates who have more children, as a measure of ensuring population control and to popularize family planning from the doorstep of the peoples' representative. With this object, the disqualification was introduced under the 1958 Act and the 1961 Act. The fact situation in this case will therefore have to be visualized from the object of the State to control the growth of population.
18. It is the strenuous contention of the petitioner that though a candidate who has more than 2 children would be disqualified, the strength of the number of children is to be viewed under the proviso to Section 16(1)(n). The proviso reproduced above is pressed into service to contend that the petitioner would not incur a disqualification for having more than 2 children u/s. 16(1)(n) as the first two children have been born in a single delivery in the year from the commencement of the amendment on 13/09/2000 till the cut off date 12/09/2001. Mr. Dixit strenuously contends that the two children born in one delivery would thus be covered by the proviso and would be treated as a single child. Mr. Dhorde has submitted that the proviso does not speak about twins being born so as to be treated as one child, as the phraseology of the proviso would only indicate that the birth of twins would not attract any disqualification for the petitioner under clause (n).
19. There is no dispute that on the date of the introduction of clause (n) u/s. 16(1) and clause (e) u/s. 16(2), which is ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 16 13/09/2000, the petitioner did not have a single child as the first delivery of his wife is said to have occurred on 01/11/2000. In my view, naturally, the delivery of twins on 01/11/2000 as is stated by the petitioner, in itself would not incur the disqualification under clause (n) of Section 16(1). In my view, keeping the intent and object of the introduction of the amendment in focus and the language used in the proviso, it would indicate that the birth of more than 1 child either as twins or triplets or quadruplets in a single delivery within a period of 1 year from the date of the commencement of Section 16(1)(n) and section 16(2)(e), would not be considered as a disqualification under 16(1)(n). Even if the petitioner had 1 child prior to the date of commencement, the birth of twins or triplets in a single delivery in the period of 1 year would not have attracted the disqualification under clause (n)."
16. In view of the above, it would be our endeavour to ensure that the mandate prescribed in the disqualification clause that a person (having more than two children) would not be disqualified if the number of his children does not grow after the introduction of the commencement of the Act, is scrupulously followed since any dilution of the intent and object of introducing the disqualification clause, would frustrate a laudable object of the State Government. Any dilution should not result in granting permission to any person having two or more children on the date of the commencement of the Act, to further procreate within one year as if that one year is granted as a buffer period or a liberty to have more children. We, therefore, have to ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 17 interpret the provision and the first proviso in such a logical way that on the one hand, the mandate prescribed would be followed with full force and on the other hand, apply the second proviso to protect a candidate from disqualification if the couple is helpless in not being able to avoid yet another delivery.
17. We are, therefore, considering the illustration putforth by Shri Sapkal as under:-
A person has five children on the date of the commencement and his wife or such a female candidate has already conceived. Whether it would be fair to expect such a person to resort to termination of pregnancy merely to avoid incurring a disqualification. Though we are of the firm view that the population in this country needs to be strictly and seriously controlled in view of the population explosion that has already occurred and this country is reeling under it's effects, we find it unusual, improper and unfair to expect a candidate to resort to termination of pregnancy when abortion, except in cases of medical termination of pregnancy, is prohibited in this country.
18. The first proviso to the Village Panchayat Act and the Municipal Council Act, which are identical, will have to be interpreted harmoniously with the main provision mandating that the number of children in cases of more than two children, shall not increase from the date of the commencement of the disqualification law. We, therefore, ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 18 find that the second proviso, actually, is to take care of such a candidate or his wife, who has already conceived even after having two or more children, on the date of the commencement of the disqualification provision. We are impelled to draw this conclusion since the conjoint reading of the Section and the proviso indicates to us that it does not postpone the commencement as a general rule applicable to all. The observations, in some of the cited judgments delivered by learned Single Judges that the second proviso postpones the commencement of the Act from 13.9.2000 by one year upto 12.9.2001, does not advance the intent and object underlying the introduction of the disqualification clause.
19. In our view, after deeply pondering over similar proviso in the two Acts and which is inbuilt in Section 16(2)(e) of the Zilla Parishads Act, the first proviso mandatorily prohibits increase in the number of children. The second proviso read with the 5th explanation under the Maharashtra Village Panchayats Act was meant only for such a single delivery in which, a child or more than one child is born within one year from the date of such commencement so as to save a candidate from disqualification, if the further delivery was preordained, meaning already conceived.
20. Procreation by a couple having only one child on the date of the commencement of the Act is taken care of by the first explanation below ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 19 Section 16(1)(n) and 16(2)(e) under the Zilla Parishads Act, below Section 16(1)(k) of the Municipal Councils Act and in explanation 5 below Section 14(1)(j-1) of the Village Panchayats Act.
21. Explanation 5 for the purpose of Clause (j-1) under the Village Panchayat Act, protects a couple, having only one child on the date of such commencement, from multiple number of children being born out of a single subsequent delivery. They shall be deemed to be one entity. A similar explanation is found under the Panchayat Samities Act as well as under the Municipal Councils Act. It is, therefore, obvious that the said explanation to the main provision of disqualification on the ground of more than two children is aimed at protecting a couple from disqualification if twins or triplets or more are born in a single delivery any time from the date of commencement of the Act. This explanation is not connected with the first proviso under the Village Panchayat Act or the other two acts.
22. In Javed (supra), the Honourable Apex Court dealt with the argument that a citizen cannot be deprived of a right to contest elections and the birth of children thereby increasing the number after the commencement of the Act would amount to arbitrariness and discrimination. Upon considering the aim and object of introducing the disqualification clause, the Honourable Apex Court held in paragraph Nos.22, 25, 31, 32, 33, and 40 as under:-
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WP/6993/2008 & ANR 20 "22. Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a Statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right -- a right originating in Constitution and given shape by statute. But even so it cannot be equated with a fundamental right. There is nothing wrong in the same Statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office. ........
25. In our view, disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest. .......
31. The torrential increase in the population of the country is one of the major hindrances in the pace of India's socio-economic progress. Everyday, about 50,000 persons are added to the already large base of its population. The Karunakaran Population Committee (1992-93) had proposed certain disincentives for those who do not follow the norms of the Development Model adopted by National Public Policy so as to bring down the fertility rate. It is a matter of regret that though the Constitution of India is committed to social and economic justice for all, yet India has entered the new millennium with the largest number of ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 21 illiterates in the world and the largest number of people below the poverty line. The laudable goals spelt out in the Directive Principles of State Policy in the Constitution of India can best be achieved if the population explosion is checked effectively.
therefore, the population control assumes a central importance for providing social and economic justice to the people of India (Usha Tandon, Reader, Faculty of Law, Delhi University, - Research Paper on Population Stabilisation, Delhi Law Review, Vol. XXIII 2001, pp. 125-131).
32. In the words of Bertand Russell, "Population explosion is more dangerous than Hydrogen Bomb." This explosive population over-growth is not confined to a particular country but it is a global phenomenon. India being the largest secular democracy has the population problem going side by side and directly impacting on its per capita income, and resulting in shortfall of food grains in spite of the green revolution, and has hampered improvement on the educational front and has caused swelling of unemployment numbers, creating a new class of pavement and slum-dwellers and leading to congestion in urban areas due to the migration of rural poor. (Paper by B.K. Raina in Population Policy and the Law, 1992, edited by B.P. Singh Sehgal, page 52).
33. In the beginning of this century, the world population crossed six billions, of which India alone accounts for one billion (17 per cent) in a land area of 2.5 per cent of the world area. The global annual increase of population is 80 millions. Out of this, India's growth share is over 18 millions (23 per cent), equivalent to the total population of Australia, which has two and a half times the land space of India. In other words, India is ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 22 growing at the alarming rate of one Australia every year and will be the most densely populous country in the world, out beating China, which ranks first, with a land area thrice this country's. China can withstand the growth for a few years more, but not India, with a constricted land space. Here, the per capita crop land is the lowest in the world, which is also shrinking fast. If this falls below the minimum sustained level, people can no longer feed themselves and shall become dependent on imported food, provided there are nations with exportable surpluses. Perhaps, this may lead to famine and abnormal conditions in some parts of the country. (Source - Population Challenge, Arcot Easwaran, The Hindu, dated 8.8.2003). It is emphasized that as the population grows rapidly there is a corresponding decrease in per capita water and food. Women in many places trek long distances in search of water which distances would increase every next year on account of excessive ground water withdrawals catering to the need of the increasing population, resulting in lowering the levels of water tables. ........
40. The menace of growing population was judicially noticed and constitutional validity of legislative means to check the population was upheld in Air India v. Nergesh Meerza and Ors. (1981) IILLJ 314 SC . The Court found no fault with the rule which would terminate the services of Air Hostesses on the third pregnancy with two existing children, and held the rule both salutary and reasonable for two reasons:
"In the first place, the provision preventing a third pregnancy with two existing children would be in the larger interest of the health of the Air Hostess concerned as also for the good upbringing of the children. Secondly, ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 23 when the entire world is faced with the problem of population explosion it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over-population which, if not controlled, may lead to serious social and economic problems throughout the world." (Emphasis supplied)
23. We are, therefore, of the view that the interest of the nation is to be given highest priority. The right to contest an election is neither a fundamental right nor a common law right. When a citizen becomes aware of the introduction of the disqualification clause, having two or more children on the date of commencement, would not incur him any disqualification, only if the number of children do not increase beyond that number after the date of the commencement. The law clearly mandates that once the disqualification clause is introduced, a person having more than two children would not be disqualified only if he ensures that the number of his children do not increase after the date of commencement. Knowing that the disqualification law has been introduced is sufficient to apprise any citizen that he cannot allow the number of his children to grow after the commencement date since he already has more than two children.
24. Considering the law laid down in Air India (supra), 38 years ago, a person interested in growing the number of his children, deserves to ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 24 be kept away from elections, is the clear and strict view of the Honourable Supreme Court. Today, our country can ill afford unnecessary growth of population.
25. In this backdrop the second proviso to clause (j-1) can only be interpreted to protect such a person who had already conceived on the date of commencement and it was beyond his / her control to avoid a delivery. We are, therefore, terming such conceivment on the date of the commencement of the Act as being a preordained pregnancy.
26. In view of the above, it would not be open to any citizen to plan the birth of a child after the commencement date, knowing fully well that such person would be protected from disqualification only if the number of children already had would not increase. Any argument that a candidate having more than two children on the date of commencement can still plan a child and give birth to such a child within a period of one year under the second proviso to clause (j-1), will have to be negated as it would defeat the intent and object of introducing the disqualification clause.
27. The above provisions, therefore, leave no room for doubt that there has been no postponement of the date of commencement of the disqualification provision introduced on 13.9.2000, which is commonly termed as the cut off date. The period of one year set out under the ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 25 proviso in the three Acts is only to take care of a preordained pregnancy and is not aimed at permitting any couple to plan and increase the number of children (beyond two) as on the date of the commencement of the Act. The second proviso, therefore, would cover only a preordained pregnancy. For easy understanding, we would record that if a couple has two or more children on the date of the commencement of the Act, the period of one year mentioned in the second proviso would not render any such couple eligible or to plan an additional child or increase the number of children knowing well that the mandate is that the number of children, from two or more than two, on the date of the commencement, shall not be increased by a planned conceivment. A delivery within one year, knowing that the couple cannot plan an additional child after the cut off date on the mistaken belief that one more year is granted for increasing the number of children, cannot be permitted unless the conceivment has already occurred.
28. It is for biological reason that a conceivment of a child on the date of the introduction of the amendment would take a mother atleast nine months and nine days to deliver a full term child. Since this period of nine months and nine days would be a bit uncertain, that the Legislature may have thought it appropriate to allocate the period of one year. We interpret this provision to mean that it would not be a license to a couple, who already have two or more children, to plan an addition to their number of children any further on the basis of such ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 26 proviso.
29. We, therefore, conclude on the basis of the interpretation of the main provision and the first and the second proviso thereunder, that the Legislation never intended to introduce a provision, and with the aid of a proviso thereunder, to postpone the implementation of such a provision, by inference or by a presumption. The postponement of the applicability of a specific provision can only be done by a specific provision worded unambiguously and in no uncertain terms. The Legislature had thought it fit to introduce the disqualification clause and did not intend to postpone its implementation. We draw strength in arriving at this conclusion in the light of the view taken by the Honourable Apex Court in the case of Javed and others Vs. State of Haryana and others [(2003) 8 SCC 369].
30. We, therefore, answer Issue No.1 accordingly and further hold that the period of one year set out in the proviso was intended to cover 'pre-ordained' pregnancy.
ISSUE NOS.2 & 3
"(2) Whether the clause of disqualification can be attracted, considering the number of birth of the children irrespective of whether any of the children have died or whether a child who has died and is not in existence on the date of the filing of the nomination papers, will have to be excluded from the number of children procreated by the candidate?
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WP/6993/2008 & ANR 27 (3) Whether such demise of the child can be excluded by interpreting the word 'had' appearing in the proviso so as to be read as 'has' appearing in Section 16(1)(k)?"
31. Issue Nos.2 and 3 are intricately connected and hence are considered together.
32. The Honourable Apex Court in the case of Javed (supra), was dealing with Section 175(1)(q) and Section 177(1) of the Haryana Panchayati Raj Act, 1994, wherein the disqualification clause has specifically used the words 'persons having more than two living children'. It was held that Article 14 of the Constitution of India may forbid class legislation, but would not forbid reasonable classification for the purpose of disqualification. 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 person or things that are grouped together from those left out of the group and (ii) that such differentia has a rationale in relation to the object sought to be achieved by the statute in question - [Budhan Choudhary Vs. State of Bihar - AIR 1955 SC 191].
33. The Honourable Apex Court, therefore, concluded that the classification made by the impugned provision is well defined and well perceptible. 'Persons having more than two living children' are clearly ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 28 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 class from the other. One of the objects sought to be achieved by the legislation is popularizing the family welfare / planning programme and the disqualification is enacted to achieve the objective of creating a dis- incentive.
34. The learned Advocates for the respondents and the learned Government Pleader Shri Girase, contend that as the legislature in Maharashtra, which introduced the disqualification clause, after sixteen years of the State of Haryana introducing the same, would indicate that the State of Maharashtra specifically desired to exclude the word 'living' with reference to the number of children had by a candidate.
35. Per contra, Shri Sapkal, learned Advocate submits that there are cases when a woman continuously delivers 'still born' children or is unable to deliver a live child and for example, has suffered three deliveries resulting in still born children prior to the date of the commencement. He, therefore, poses a question that, if such a woman delivers a child after the date of the commencement, would her total number of deliveries be counted resulting in her disqualification by concluding that she had four children or whether she could be termed as having only one child? He therefore, submits that the concept of ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 29 population control and small family is connected with restricting the number of children to two and not restricting the number of deliveries in case of such unfortunate mothers. A family with two or less children is the object. The Family Planning Programme never propagates restricting the number of attempts to have a child. It does not suggest that if a wife has had two deliveries and has delivered either still born babies or the child is born and dies within hours or days, such a family should resort to family planning and should remain childless.
36. In our view, family planning laws are never pregnancy or delivery centric and are children centric. No family planning programme can be found to canvass that the families should restrict the number of deliveries to two, even if the child dies. The issue is as regards restricting the number of children. There is no law in this country, in general, as like the law of 'One family one child' introduced in the early Seventies in China. In our country, restrictions on the number of children are being introduced in certain areas. To have a deep rooted impact, especially on ill-literates and semi-literates from the rural areas, disqualification provisions are being introduced so as to discourage political aspirants from increasing the number of children and lead by example.
37. The controversy has arisen on account of the word 'living' used in the Haryana Panchayati Raj Act and the said word having not been ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 30 adopted in the three Acts in Maharashtra. The Honourable Apex Court considered the object sought to be achieved by the implementation of the family planning programme as enumerated under Section 21 of the Haryana Act and held it to be consistent with the National Population Policy. The Honourable Apex Court interpreted the perception of postponement of the commencement of the Act of disqualification for one year by concluding that this postponement would mean that it is aimed at taking care of any conception on/or around the commencement of the Act as the normal period of gestation is of nine months. If a woman has conceived at the commencement of the Act, then, any one or such couple would not be disqualified. However, there was no issue raised before the Honourable Apex Court in the case of Javed (supra) as regards the interpretation to be given to the words 'two living children', since there was no dispute on the said issue.
38. With regard to considering hypothetical examples in the case of Javed (supra), the Honourable Apex Court concluded that provisions under any enactment cannot be challenged on the basis of hypothetical or abnormal situations. The interpretation or constitutionality of any provision cannot be adjudged on such basis. It was then concluded that exceptions do not make a Rule or render a Rule irrelevant. One swallow does not make a summer and a single instance or indicator of something is not necessarily significant.
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WP/6993/2008 & ANR 31
39. The debate before us has arisen on account of the State of Maharashtra having used the words 'has two or more children'. Since one has to read the language as is set out in a provision and one cannot read more than what meets the eye, the word 'has' is required to be interpreted. All the learned Advocates appearing for the respondents, including the learned Government Pleader, are united in submitting that the word 'has' should be read as 'had'. Under Section 16(1)(n), a person would incur disqualification if he has more than two children. The explanation (i) to Section 16(1)(n) and 16(2)(e) begins with, 'where a couple has only one child'. Under Section 14(1)(j-1), a person would incur a disqualification if he has more than two children. The first proviso thereunder speaks of 'a person having more than two children'. The fifth explanation added below Clause (j-1)(i), also states 'where a couple has only one child on or after the date of such commencement'. Under Section 16(1)(k), the same words 'has more than two children' have been used. The proviso speaks of a 'person having more than two children on the date of commencement of the Act.' Explanation 5(i), 'where a couple has only one child on or after the date of such commencement', would indicate that the Legislature has consistently used the words 'has' and 'having'.
40. In our view, the word 'living' would have the same meaning as 'has' or 'having'. As per Wren and Martin's Grammar, the word 'has' and word 'having' are used in the present and present continuous tense. The ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 32 word 'had' is used with reference to a particular date or a particular past event. It is specifically mentioned in these three Acts that a person would not be qualified or would incur a disqualification if he has more than two children on the date of the commencement of the Act. The Rule of Beneficial Construction would require the reading of such provisions in such a way that it would render a broader meaning. If the number of deliveries or still born children are to be considered, the word 'has' will have to be read as 'had' and the words 'a person having more than two children' will have to be read as 'a person who was having more than two children'. The present tense and present continuous tense found in these provisions will have to be converted into a past tense if the submissions of the respondents are to be accepted. We do not find that these provisions in the three enactments were aimed at counting the number of deliveries by ignoring the death of a child or still born babies.
41. The learned Government Pleader has relied upon the following judgments:-
(i) Naynaben Babubhai Hathila Vs. State of Gujarat and others-
[(2015) 56 (1) GLR 464],
(ii) Mulchandbhai Jerthabhai Parmar Vs. District Development Officer and others - [(2010) 51 (1) GLR 686],
(iii) A. Yadagiri - The Chief Election Commissioner and others -
[2013 SCC OnLine AP 156],
(iv) Nalinakhya Bysack Vs. Shyam Sunder Haldar and others - ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 :::
WP/6993/2008 & ANR 33 [AIR 1953 SC 148], and
(v) P.K.Unni Vs. Nirmala Industries and others - [AIR 1990 SC 933 = 1990 SCR (1) 483].
42. In Naynaben (supra), the learned Single Judge was considering a declaration filed by a candidate along with his nomination paper stating that she has two children, though she had given birth to a third child, which died after three days and was not alive on the date of filing the nomination papers. The learned Single Judge concluded in paragraph Nos. 6, 7.5, 7.6, 8, 11 to 15.1 as under:-
"6. In order to appreciate the submission and so as to examine said provision, it is relevant and necessary to also take into account the object of the amendment which introduced and brought in force the said provision. The statement of objects and reasons of the said Amendment Act of 2005 reads thus:
"The growth of the population in India is alarming. In order to stabilize the rapid growth of population, it is considered necessary to amend the local authorities laws so as to prevent a person having more than two children to be a member of Panchayat, or the Councillor of Municipality or of a Municipal Corporation. This is an important step towards the implementation of national population policy. Since, the proposed legislation has prospective effect, a provision has been made to the effect that a person having more than two children prior to the commencement of the proposed amendment would be saved from incurring such disqualification.::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 :::
WP/6993/2008 & ANR 34 This Bill seeks to amend the Bombay Provincial Municipal Corporations Act, 1949, the Gujarat Municipalities Act, 1963 and the Gujarat Panchayats Act, 1993, to achieve the aforesaid object."
7.5. Thus, if on the date of the commencement of the said Amendment Act, a person having more than two children is a member of Panchayat or the Councillor of the Municipality or Municipal Corporation he shall not be disqualified under said clause (m) for continuing as member of the Panchayat or Councillor of municipality or Municipal Corporation. Besides this, such person shall not be disqualified to contest election of the Panchayat or Municipality or Municipal Corporation, so long as the number of children he had on the date of commencement of the Amendment Act does not increase after the cut-off date. 7.6. However, if in the interregnum i.e. after the date of commencement of the Amendment Act and till the date of election or till the date the person gets selected as Member of the Panchayat or as Councillor of the Municipality or Municipal Corporation or if during the continuation of his membership, the number of children increases beyond the total number of children such person had on the date of commencement of the Amendment Act, then, such person would be disqualified from continuing as member of Panchayat or Councillor of Municipality or Municipal Corporation and from contesting election/s after such increase in the number of children.
8. When the clause (m) is read along with the provisos and the explanation, it also emerges that according to the said ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 35 provision the moment a child is born - after the date of commencement of the Amendment Act - in excess of two children (or in excess of number of children, a person had on the date of commencement of the Amendment Act), the said provision will be immediately attracted and the person will simultaneously and automatically incur the disqualification.
11. In view of the object of the provision and also in light of clear language of the said clause (m), there is no scope for such construction of said clause (m) of Sec. 30(1) of the Act and the said submission is not sustainable and cannot be accepted. 11.1. When the said provision is introduced with the object to "prevent a person having more than two children to be a Member of Panchayat or the Councillor of Municipality or Municipal Corporation" and for implementation of "National Population Policy", the said provision has to be read in consonance with the said object and in a manner which would advance the legislative intention.
11.2. When the provision is read in light of the object with which the amendment came to be introduced, it becomes clear that the moment a child in excess of two children (or in excess of existing children on the cut-off date) is born, after the commencement of the amendment act, the provision would be immediately attracted, and thereby, the disqualification will automatically get attached to the said person.
12. It is also pertinent that the only relevant date - so far as this clause (m) of Sec. 30(1) is concerned - is the date of commencement of the amendment Act i.e. 4-8-2005. Any other ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 36 date e.g. the date when election is notified or the date on which nomination is filed or the date fixed for voting etc. is neither contemplated nor relevant.
13. The provision merely provides that any person who has more than two children shall not be a Member or Councillor in Panchayat or Municipality or Municipal Corporation. The Section does not contain other qualification and does not provide that any person who has more than two children "on the date when election is notified" or "on the date when nomination is filed" etc. Therefore, such qualification cannot be read into the provision. That would be adding words to the provision otherwise, the legislature would have appropriately qualified the provision. Plain reading of the said provision indicates that the only requirement for the provision being applicable, is "birth of a child" (after the commencement of the Amendment Act) in excess of two children (or in excess of the number of children on the date of the commencement of the Amendment Act).
14. Further, the said Sec. 30(1)(m) does not provide for or contemplate that for applicability of the said provision and for attracting the disqualification a child born (after the commencement of the Amendment Act, i.e. after 4-8-2005) should be alive at the time of election. According to the provision, the moment any child is born - after the date of commencement of the Amendment Act - in excess of existing two children (on the date of commencement of the Amendment Act) or in excess of the number of children the person had on the cut- off date, then, immediately the provision will be applicable and the disqualification will be automatically and immediately attracted. This aspect becomes all the more clear when the ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 37 Statement of Objects and Reasons of the Amendment Act of 2005 is taken into account. .............
15. True, it is that untimely death of a child is very unfortunate occurrence, but it nonetheless is a fortuitous circumstance or event. However, a fortuitous circumstance cannot affect, and cannot be taken into account in, construction of a provision and/or in determining applicability of a provision. 15.1. As mentioned earlier, if, after the amendment Act came in force a child is born in excess of two children (or in excess of the number of children the person had at the time of commencement of the Amendment Act) then the moment the child in excess of two children is born the provision and prohibition will be immediately attracted and the disqualification will immediately and automatically get attached. Fortuitous circumstance cannot influence or affect the object and effect of the provision and intention of legislation cannot be understood or determined by taking into account such fortuitous circumstance." (Emphasis supplied).
43. In Mulchandbhai (supra), the learned Single Judge of the Gujarat High Court noted that the fourth child was born on 5.8.2008 after the commencement date and died on 8.8.2008. He concluded that though the death of the fourth child would render the couple parents with only three children, an increase in the number of children after the commencement date would incur a disqualification and subsequent decrease of the number of children by the death of any one of them bringing down the number would not bring the litigant out of such ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 38 disqualification.
44. In the case of A. Yadagiri (supra), the learned Single Judge of the Andhra Pradesh High Court concluded that once a child is born after the commencement date increasing the number beyond two, the death of a child bringing down the number to two would not absolve such a litigant from incurring disqualification.
45. In the matter of T.K.Unni (supra), the Honourable Apex Court concluded that the Court cannot add words to a statute or read words into it which are not there, especially when the literal meaning produces an intelligible result. 'No case can be found to authorise any Court to alter a word so as to produce a casus omissus' : Per Lord Halsbury, Mersy Docs Vs. Henderson [(1888) 13 APP.Cas.595, 602].
"We cannot aid the legislature's defective phrasing of an Act, we cannot add, and mend, and by construction, make up deficiencies, which are left there." : [Crawford Vs. Spooner (1846) 6 Moor pc.1,8,9]. Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can of course, adopt a construction which will carry out the obvious intention of the Legislature. In doing so, "a Judge must not alter the material of which the Act is wovel, but he can and should iron out the creases" [.. Per Denning, L.J., as he then was, Cliford Court Estates Vs. Asher, All ER (1949) 2, 155 and 164].
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WP/6993/2008 & ANR 39
46. We find that though there are similar views taken by the learned Single Judges of the Gujarat and Andhra Pradesh High Court, the fact remains that no occasion arose before these Courts to interpret the use of the word 'has' and 'having'. It is for the first time that the issue has been referred to us, as to whether the word 'has' should be read as it is with all it's grammatical connotations or should be interpreted to mean 'had', so as to convert the present and present continuous tense into a past tense.
47. In the Haryana Panchayati Raj Act, the legislature used the word 'living' in Section 175(1)(q) as 'has more than two living children', which would indicate that the word 'living' has been specifically used and that has cleared all doubts, if any. In the three enactments before us, the word 'living' has not been used. In any case, 'has more than two children' would necessarily mean living children. Similarly, the words, 'a person having more than two children' found in the proviso below Clause (q) is similar to the proviso used in the three enactments before us. In Clause (e) of the Zilla Parishads Act, the words are that, ' a person shall not be disqualified under clause (n) of sub-section (1) for being chosen as or for being a councilor, if he is having more than two children on the date of the commencement of the Act.' This word 'having' cannot be read as 'was having' as is canvassed by the respondents and the learned Government Pleader. Since the meaning ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 40 of the words 'has more than two children' means on the date of reference, the person was having more than two children, in our view, would mean two children alive on the date of reference, which could be the date of filing the nomination form or the date of election or during the elected tenure of a person.
48. As is observed in Javed (supra), an abstract example may not make a Rule. It is canvassed before us that there may be a case that a person had five children and the fifth child was born after the commencement date rendering the father ineligible. After 25 years, if any child passes away and the number of children would be decreased, the disqualification incurred for 25 years, would not stand removed. We find that such an illustration could be an abstract illustration. There could be many such illustrations and a particular provision might suffer the test of applicability in such backdrop. Abstract illustrations cannot be kept in focus while drafting such enactments and such abstract examples could be in plenty, to be dealt with on the basis of the facts and circumstances of each case.
49. In Jitendrakumar Indise (supra), the learned Single Judge of this Court dealt with the death of a child after the birth of the third child after the commencement date. It was noted that though the birth of the third child on 26.8.2003 would incur a disqualification, the death of one child on 21.11.2004, who was born on 28.7.1999, would render the ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 41 candidate with only two children on the date of the filing of his nomination. He would be deemed to have only two living children on the date he filed his nomination form. He would, therefore, not incur a disqualification as he has only two children when he filed his form.
50. The learned Single Judge, therefore, observed in paragraph Nos.4 and 5 in Jitendrakumar (supra) as under:-
"4. The first respondent therefore, did not have more than two living children on the date on which he filled his nomination form. In such circumstances, to hold that he was disqualified because he had three children prior to the Amendment Act, coming into force and the cut off date prescribed therein would mean that the number of children have to be taken into account mechanically and whether they survive, or not. This is not intended because what the legislature provides is disqualification for having more than two children. The disqualification is for being elected and for being the Councilor / Corporator. In the instant case, we are however, concerned with a disqualification 'for being elected'. The words 'for being elected' have some definite significance and that means, the time when the elections have been declared and the relevant stages are notified. If on the date of filing of the nomination, there are not more than two living children, which is the fact in this case, then, the disqualification is not incurred. The requirement is not having more than two living children.
5. In such circumstances, it is difficult to accept the contention of the learned counsel for the petitioner very strongly ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 42 raised before me that respondent No.1 was disqualified as he had three children on the date on which the Amendment Act was notified and atleast provisos thereto came to be introduced for clarification. To my mind, if on the date the election was notified the children were surviving or upon elections and when results declared, they were not three in number, the contention of respondent no.1 had some substance and one could have possibly taken cognizance of these submissions. However, in the peculiar facts, when one child was not surviving and therefore, the children of respondent no.1 were less than three, then, disqualification was not incurred. When such is the factual position and it is admitted, it is unnecessary to find out whether the Commissioner committed any error in referring the matter to either the General Body or to the Court. To my mind, once the admitted facts are noted, only one conclusion is possible and that is that the complaint made by the petitioner has no substance. As a result of the in-disputed facts, the petition fails and it is dismissed. No costs. "
51. The judgment of the learned Single Judge in Jitendrakumar (supra) was carried in a Letters Patent Appeal No.18 of 2014 before the learned Appeal Bench, which sustained the judgment of the learned Single Judge with the following observations:-
" ..... In the present case, admittedly, when the nomination form was filed, the first respondent had only two living children. Therefore, on that date, the disqualification under Clause (i) of Sub-section (1) of Section 10 of the said Act was not attracted. That is precisely the view taken by the learned Single Judge in ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 08:24:50 ::: WP/6993/2008 & ANR 43 the impugned order. We, accordingly, concur with the said decision. The Letters Patel Appeal is, therefore, dismissed. "
52. In our view, a provision should be interpreted in a way, which could be given an appropriate meaning and without creating an exclusion or disqualification by inference or implication. So also, a sentence conveying 'present' and 'present continuous' tense cannot be converted into a past tense. As such, the words 'has' and 'having' lend a 'present' and 'present continuous' meaning and cannot be interpreted to include even a dead child or a still born child. If a dead child is to be included, the words, 'has__children' will have to be read as 'had__ children'
53. We, therefore, hold that the demise of a child can be excluded while computing the number of living children in these three Acts and the number of children that a candidate has on the date of the filing of the nomination paper, would be reckoned. We answer issue Nos.2 and 3 accordingly.
PRASANNA B. VARALE, J.
RAVINDRA V. GHUGE, J.
RAJENDRA G. AVACHAT, J.
...
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