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2003 DIGILAW 184 (CHH)

YASHWANT KUMAR SAHU v. STATE OF C. G.

2003-09-02

K.H.N.KURANGA, L.C.BHADOO

body2003
ORDER 1. In this batch of writ petitions the petitioners have challenged the constitutional validity of the provision of clause (m) of sub-section 1 of Section 36 of Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short the Adhiniyam). The relevant provisions are extracted hereunder: "Section 36 - Disqualification for being office bearer of Panchayat : 36(1) No person shall be eligible to be an office bearer of Panchayat who * * *: (m) : has more than two living children one of whom is born on or after the 26th day of January, 2001. (2) If any person having been elected (* bearer of Panchayat :- (a) subsequently becomes subject to any of the disqualification mentioned in sub-section (1) and such disqualification is not removable or being removable is not removed (or becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under section 122). * * * * * * * He shall, subject to the provisions of sub-section (3), cease to be such office bearer and his office shall become vacant. (3) In every case the authority competent to decide whether a vacancy has occurred under sub-section (2) shall be Collector in respect of Gram Panchayat and Janpad Panchayat and Commissioner in respect of Jila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer : Provided that no order shall be passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard. (4) Any person aggrieved by the decision of the Collector or Commissioner, as the case may be, under sub-section (3), may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be final." 2. (4) Any person aggrieved by the decision of the Collector or Commissioner, as the case may be, under sub-section (3), may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be final." 2. The Act No. 14 of 2000 was enacted with various objects based on the past experience and in view of the shortcomings noticed in the implementation of proceeding laws and also to bring the legislation in conformity with Part IX of the Constitution of India relating to 'the Panchayats' added by the seventy third amendment and the objective behind was to disqualify persons for election of Panchayats having more than two children on or after 26th day of January, 2001, the date of commencement of the Act to popularize family welfare/family planning prograrnn1e. By insertion of clause (m) of sub-section 1 of section 36 of the Adhiniyam a provision has been made to disqualify a person having more than two children from holding the office of the office bearer of the Panchayat even though the Act got assent of the Governor on 9-5-2000 and published in the M.P. Gazette (extraordinary) dated 23rd May 2000. But the enforcement of the disqualification was postponement upto 26th January 2001. A person having more than two children before 26th January 2001 was not disqualified. This postponement upto 26th January 2001 was with a view to take care of any conception on or around the commencement of the Act. If a woman has conceived before the commencement of the Act then anyone of such couples would not be disqualified. Though not disqualified on the date of election if any person holding any of the said offices incurs a disqualification by giving birth to a child on or after 26th January 2001 becomes subject to disqualification and is disabled from continuing to hold the office. The disability is incurred by the birth of the child which resulted in increasing the number of living children including the additional child born on or after 26th January 2001. 3. We have heard learned counsel for the parties. 4. Learned counsel for the parties very fairly and frankly admitted that the points raised in these writ petitions are squarely covered by the decision of the Apex Court Javed and Others Vs. 3. We have heard learned counsel for the parties. 4. Learned counsel for the parties very fairly and frankly admitted that the points raised in these writ petitions are squarely covered by the decision of the Apex Court Javed and Others Vs. State of Haryana and Others, in which vires of similar provision of section 175(1)(q) of Haryan", Panchayati Raj Act, 1994 was challenged. In the said case the Apex Court has held the provision of section 175(1)(q) to be intra vires. Provision of constitutionally downtrodden. The concept of sustainable development which' emerges as a fundamental duty from the several clauses of Article 51-A too dictates the expansion of population being kept within reasonable bounds. It is, therefore, futile to urge that the impugned legislation disqualifying persons with more than two children violates right to life and liberty guaranteed under Article 21 in any of the meanings howsoever expanded the meanings may be. 9. Moreover, all the points raised in these writ petitions have been dealt with by the Hon'ble Apex Court in the above matters, therefore, there is no need to deal with all these points again as the learned counsel for the parties have also agreed to it. Only one point was raised by Shri Awadh Tripathi and Shri Prashant Mishra advocates that when the office bearers of the Panchayat were elected at that time this provision of disqualification was not in existence, therefore, after their valid election, by amending the Panchayat Act, such provision can not be inserted which disqualify them from holding the office of office bearer of Panchayat being violative of the Constitution. But we are not convinced with the argument advanced by the advocates for the reason that the legislature has already taken care of the grievance raised by the learned advocates. This provision has not been made effective retrospectively or from the date when it was enacted/inserted or on receiving the assent of the Governor i.e. 9-5-2000 and enforcement of this provision was postponed till 26th January 2001. In order to take care of a woman if she conceived before 9-5-2000 i.e. when the Act came into existence, then anyone of such couple would not be disqualified. In order to take care of a woman if she conceived before 9-5-2000 i.e. when the Act came into existence, then anyone of such couple would not be disqualified. Though not disqualified on the date of election if any person holding any of the said offices incurs a disqualification by giving birth to a child on or after 26th January 2001, the commencement of the Act, he becomes subject to disqualification and disabled from continuing to hold the office. 10. Therefore challenge to constitutional validity of section 36(1)(m) of the Adhiniyam fails and provision of section 36(1)(m) are held intra vires of the Constitution. Some of these writ petitions are directly filed under Article 226 of the Constitution of India against the show cause notice issued to the petitioners under sub-section 3 of section 36 and challenged the vires of the above rules and some of the writ petitions have been filed after the decision rendered by the Collector under sub-section 3 of section 36. 11. After this decision the Collector shall now proceed from the stage where their proceedings were stopped due to the stay granted by this Court and the petitioners will be entitled to appear before the authorities, represent their cases and file reply to the show cause notices issued to them. The matters in which the petitioners have directly come to this Court under Articles 226 of the Constitution of India challenging the decision of the, Collector without filing appeal under Section 36(4) will be at liberty to file an appeal under sub-section 4 of section 36 before the appropriate authority on the factual grounds only and not on the validity of this provision. They will be entitled to benefit of the limitation for the time spent by them in litigating before this Court in these writ proceedings. The writ petitions are accordingly dismissed as the provisions of section 36(1) of the Adhiniyam are held to be intra vires. Writ Petition Dismissed.