JUDGMENT 1. Rule. Shri Munshaw, learned Advocate waives service of notice of Rule on behalf of the respondent Nos. 1 and 2. With the consent of the parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 1.5.2009 passed by the respondent No. 1 District Development Officer, Patan (Annexrue A to the petition) by which the respondent No. 1 has allowed the said appeal preferred by the respondent No. 3 herein by quashing and setting aside the order passed by the Taluka Development Officer, Harij dated 3.3.2009 by which respondent No.3 was disqualified under Section 30 (1)(m) of the Gujarat Panchayat Act. 3. Respondent No. 3 was elected member of the Sodhav-Paloli Group Gram Panchayat elected in general election held in April 2007. That he was elected as a member of the Panchayat from ward No. 5. It is the case on behalf of the petitioner that after he was elected as member of group gram panchayat, the respondent No. 3 became the father of the fourth child and, therefore, the respondent No. 3 incurred disqualification under Section 30(1)(m)of the Gujarat Panchayat Act and, therefore, petitioner submitted an application to the respondent No.2 Taluka Development Officer, Harij pointing out the violation of Section 30(1)(m) of the Gujarat Panchayat Act, by respondent No. 3. A show cause notice was issued upon the respondent No. 3 and the petitioner was called upon to show cause why he should not be disqualified as a member of the panchayat as he has become the father of the fourth child after he was elected as a member of the panchayat. That a birth certificate of the Fourth child was also produced. That respondent No.2 Taluka Development Officer, Harij by an order dated 3.3.2009 passed an order disqualifying the respondent No.3 as a member of the Gram Panchayat for breach of Section 30(1)(m) of the Act. Being aggrieved and dissatisfied with the order passed by the Taluka Development Officer, Harij dated 3.3.2009, respondent No. 3 preferred appeal before the respondent No.1 District Development Officer, Patan. That subsequently the respondent No. 4 was joined as party appellant in the said appeal. It was contended on behalf of the respondent Nos. Being aggrieved and dissatisfied with the order passed by the Taluka Development Officer, Harij dated 3.3.2009, respondent No. 3 preferred appeal before the respondent No.1 District Development Officer, Patan. That subsequently the respondent No. 4 was joined as party appellant in the said appeal. It was contended on behalf of the respondent Nos. 3 and 4 that though the respondent No. 3 became the father of the fourth child on 5.8.2008, however within few days child expired, therefore, at that time when the show cause notice was issued petitioner was not the father of the fourth child and / therefore, number of children is not increased and therefore, he cannot be disqualified. The District Development Officer, Patan accepted the same and allowed appeal preferred by the respondent Nos. 3 and 4 by impugned order and quashed and set aside the order passed by the Taluka Development Officer dated 3.3.2009, by which the respondent No.3 has disqualified. Being aggrieved and dissatisfied with the impugned order passed by the District Development Officer, Patan, petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. It is reported that respondent No. 3 has refused to accept the notice of this Court. 4. Shri Joshi, learned Advocate for the petitioner has vehemently submitted that the impugned order passed by the District Development Officer, Patan quashing and setting aside the order passed by the Taluka Development Officer, Harij is absolutely illegal and contrary to the provisions of statue and on misinterpretation of the provisions. It is submitted that the District Development Officer, Patan has materially erred in holding that respondent No. 3 has not incurred disqualified as though the respondent No. 3 became the father of the fourth child, within few day that fourth child is died, therefore, at the time when the show cause notice was issued he was not the father of the fourth child and number of children is not increased. It is submitted that the respondent No. 1 ought to have appreciated that if on 4.8.2005 a person has more than two children and after he is elected as a member of the Panchayat, when number of children has increased he is automatically disqualified to be continued as member of the panchayat. It is submitted that the respondent No. 1 ought to have appreciated that if on 4.8.2005 a person has more than two children and after he is elected as a member of the Panchayat, when number of children has increased he is automatically disqualified to be continued as member of the panchayat. It is submitted that it cannot be said that on the date of show cause notice whether the child beyond two is alive or not. It is submitted that the death of the fourth child should not have been considered in favour of respondent No. 3. Therefore, it is submitted that respondent No.1 has materially erred in quashing and setting aside the order passed by the Taluka Development Officer, Harij which was on true interpretation of Section 30(1)(m) of the Act. Shri Joshi, learned Advocate for the petitioner has relied upon the decision of the Division Bench of this Court in the case reported in 2008(1) GLH 772 by submitting that while interpreting the similar provision in Gujarat Municipalities Act, this Court has observed that councilor who has more than two living children after the period of one year from the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005 shall be disabled from continuing to be a councilor and his office shall become vacant. It is submitted that in the present case, admittedly the respondent No.3 was the father of three children at the time when he was elected and thereafter he has become the father of the fourth child on 5..8.2008 and, therefore, the moment number of children has increased, he has rendered disqualification. By making above submissions and relying upon the decision of the Division Bench of this Court, it is requested to allow the present Special Civil Application. 6. Shri Munshaw, learned Advocate appearing on behalf of the respondent No. 1 has tried to support the order passed by the respondent No. 1 District Development Officer, Patan by submitting that on interpretation of Section 30(1)(m) of the Act when it was found that at the time of show cause notice the fourth child was not alive and, therefore, the respondent No. 3 cannot be disqualified to hold the post as a member, which in the facts and circumstances of the case is not required to be interfered with. 7. Heard the learned Advocates for the respective parties at length. 7. Heard the learned Advocates for the respective parties at length. It is not in dispute that respondent No. 3 came to be elected as member of the Panchayat in general election held in April, 2007. As per Section 30(1)(m) of the Panchayat Act no person shall be a member of a Panchayat or continue as such who has more than two children; provided that a person having more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005 (Gujarat 17 of 2005) shall not be disqualified under said clause so long as the number of children he had on the date of such commencement does not increase. Section 30(1)(m) of the Gujarat Panchayat Act, which has come into effect w.e.f. 4.8.2005 reads as under: “Section 30: Disqualification of (1) : no person shall be a member of a panchayat or continue as such who - (m) : has more than tow children; provided that a person having more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005 (Gujarat 17 of 2005) 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; Provide 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 under this clause.” On true interpretation of Section 30(1)(m) of the Act, it can be said that no person shall be member of a Panchayat or continue as such who has more than two children. In a case a person was having more than two children on the date of commencement of the Amended Act i.e. 4.8.2005 in that case he shall not be disqualified under Section 30 (1)(m) of the Act so long as number of children he had on the date of such commencement does not increase. Therefore, after the commencement of the amended act in a case where a member who was having more than two children as on 4.8.2005 and the number of children has increased to more than two the said member renders disqualification. At this stage, further proviso to Section 30(1)(m) also deserve consideration. Therefore, after the commencement of the amended act in a case where a member who was having more than two children as on 4.8.2005 and the number of children has increased to more than two the said member renders disqualification. At this stage, further proviso to Section 30(1)(m) also deserve consideration. It provides that in case the number of children has increased on the birth of child within the period of one year from the date of commencement of the amended Act i.e. 4.8.2005 then also there shall not be any disqualification under Section 30(1)(m) of the Act. In other words, if the number of children increase beyond more than two after the period of one year from 4.8.2005 such a member renders disqualification under Section 30(1)(m) of the Act. It is irrelevant that whether after such increase due to the death of third or fourth child as the case may be number of children has decreased. That it would be adding something which would not be there in the statue. On true interpretation of Section 30(1)(m) the moment number of children increases after a period of one year from 4.8.2005 and the number of children is more than two such a member incurs disqualification. The fact that the fourth child has died that circumstances should not go in favour of that person who has otherwise already incurred the disqualification on number of children being increased and become father of more than two children after the period of one year from 4.8.2005. In the present case, respondent No. 2 was elected as a member of the panchayat in the election held on April 2007 and he has become the father of the fourth child on 5.8.2008. As such it appears that even at the time when the respondent No.3 was elected as a member of the panchayat he was in fact father of third child, therefore, as such in fact he was disqualified to be the member of the panchayat. Be that it may the fact remains that after he became the member of the panchayat, the number of children has increased by the birth of fourth child on 5.8.2008 and the moment number of children has increased respondent No. 3 has incurred disqualification. Be that it may the fact remains that after he became the member of the panchayat, the number of children has increased by the birth of fourth child on 5.8.2008 and the moment number of children has increased respondent No. 3 has incurred disqualification. The contrary finding /view by the respondent No.1 to the effect that as after the birth of fourth child on 5.8.2008, on 8.8.2008 the fourth child has expired and, therefore, there is no increase in the number of children and, therefore, the respondent No.3 has not incurred disqualification under Section 30(1)(m), cannot be accepted and/ or cannot be sustained. As stated above, the moment there is increase in the number of children by the birth of third or fourth child as the case may be, that member incurs disqualification. Subsequent, decrease of number of children on the death of that third or fourth child born after the relevant date will not entitle such a member to continue as a member of the Panchayat. The finding and the observations of the respondent No.1 is on misinterpretation of Section 30(1)(m) and the object and purpose of the said provisions. Under the circumstances, the impugned order passed by the District Development Officer cannot be sustained. 8. For the reasons stated above, the petition succeeds. The impugned order dated 1.5.2009 passed by the respondent No. 1 District Development Officer, Patan (Annexrue A to the petition) is hereby quashed and set aside and the order passed by the respondent No. 2 Taluka Development Officer, Harij disqualifying the respondent No. 3 as member of the group gram panchayat Sodhav-Paloli under Section 30(1)(m) of the Gujarat Gram Panchayat Act is hereby restored and it is held and declared that respondent No. 3 has incurred disqualification as a member of the Group Gram Panchayat Sodhav-Paloli under Section 30(1)(m) of the Gujarat Gram Panchayat Act and on his disqualification his post has become vacant. Rule is made absolute to the aforesaid extent. No Costs. Direct service is permitted.