JUDGMENT : R.M. Chhaya, J. 1. Both the petitions relate to the same issue and hence, both the petitions are heard together and hence are dealt with by this common judgment and order. 2. As such, in SCA No. 19730/16, the petitioner has challenged the order dated 05.10.2016 passed by the Additional Commissioner and SCA No. 20307/16 is filed against the order dated 28.11.2016, which was passed by the Development Commissioner in appeal under section 32(2) of the Gujarat Panchayat Act, 1993 (hereinafter after referred to as "the Act") confirming the order dated 05.10.2016. The facts narrated in this order are based upon the facts as narrated and as arising in SCA No. 20307/16 and even learned counsel for the parties have relied upon the facts as stated in SCA No. 20307/16. 3. Heard Mr. Dipak Sanchela, learned advocate for the petitioner, Ms. Manisha L. Shah, learned Government Pleader for respondents No. 1 and 2, Mr. H.S. Munshaw, learned advocate for respondent No. 3 and Mr. Shalin N. Mehta, learned senior advocate with Ms. Samata V. Patel for respondent No. 4. 4. The following noteworthy facts that arise in these two petitions are narrated as under:- 4.1 That the general election of the Ahmedabad District Panchayat was held on 29.11.2015 and the petitioner contested from Ghangad-09 electorate division of Ahmedabad District Panchayat and was declared elected on 02.12.2015. As narrated in the petition, the District Panchayat consists of 34 elected members. After the election was held, the respondent No. 4 herein filed an application dated 25.01.2016 before the Additional Development Commissioner alleging that the petitioner has three children and the third child having born after 03.08.2006, the petitioner has incurred disqualification as provided under section 30(1)(m) of the Act. It is alleged by the petitioner that in order to decrease the strength of the members belonging to the party of the petitioner, the application dated 25.01.2016 has been filed by respondent No. 4 herein. The record indicates that based upon the application dated 25.01.2016 filed by respondent No. 4, the Additional Development Commissioner issued a show-cause notice dated 10.03.2016 asking the petitioner to show cause as to why the petitioner should not be disqualified as the petitioner has incurred disqualification under section 30(1)(m) of the Act. The record indicates that based upon the application dated 25.01.2016 filed by respondent No. 4, the Additional Development Commissioner issued a show-cause notice dated 10.03.2016 asking the petitioner to show cause as to why the petitioner should not be disqualified as the petitioner has incurred disqualification under section 30(1)(m) of the Act. The petitioner has further contended that first hearing was kept on 06.04.2016 and thereafter, it was adjourned to 27.04.2016 and as the petitioner sought time, the matter was adjourned to 04.05.2016. It appears from the record that the petitioner preferred a writ petition before this Court being SCA No. 6677/16 and inter-alia prayed for the following reliefs:- "(A) Your Lordships may be pleased to admit and allow this petition. (B) Your Lordships may be pleased to issue writ of mandamus or writ of certiorari for quashing and setting aside the impugned notices dated 10.03.2016 issued by the respondent No. 2 and the proceedings of Application No. 18 of 2016 under Section 32 read with Section 30(m) pending before the respondent No. 2 and be pleased to issue writ of prohibition or writ of mandamus restraining the respondents from initiating the proceeding and proceeding further with the proceeding of Section 32 against the petitioner on the ground of alleged disqualification of the petitioner under Section 30(m) of the Gujarat Panchayat Act. (D) During the pendency and till final disposal of this petition by way of interim relief, Your Lordships may be pleased stay the further proceedings of Application No. 18 of 2016 pending before the Ld. Additional Development Commissioner-respondent No. 2 and all or any further proceeding initiated by respondent No. 2 under section 32 read with Section 30(m) of the Gujarat Panchayat Act against the petitioner." 4.2 It is matter of record that this Court (Coram: A.J. Desai, J.) was pleased to issue notice returnable on 09.06.2016, but no interim relief was granted. Being aggrieved by the said order, the petitioner preferred LPA No. 388/16, wherein the Division Bench of this Court (Coram: R. Subhash Reddy, C.J. & Vipul M. Pancholi, J.) granted status quo vide order dated 03.05.2016 and issued notice making it returnable on 09.06.2016. Being aggrieved by the said order, the petitioner preferred LPA No. 388/16, wherein the Division Bench of this Court (Coram: R. Subhash Reddy, C.J. & Vipul M. Pancholi, J.) granted status quo vide order dated 03.05.2016 and issued notice making it returnable on 09.06.2016. It is matter of record that LPA No. 388/16 came to be disposed of by the Division Bench of this Court (Coram : M.R. Shah & A.S. Supehia, JJ.) vide order dated 24.08.2016 and the Hon'ble Division Bench passed the following order:- "1.0. Present Letters Patent Appeal is preferred by the original petitioner challenging the impugned order passed by the learned Single Judge dated 22.04.2016 passed in Special Civil Application No. 6677 of 2016, by which, while issuing the notice in the main petition the learned Single Judge has made it clear that no interim relief is granted. 2.0. It is not in dispute that after the aforesaid order dated 22.04.2016 was passed, in the present Letters Patent Appeal the Division Bench of this Court has granted ad-interim relief directing the respondent to maintain status quo, which has been continued till date. Under the circumstances and when the main petition is at large before the learned Single Judge and it is reported that affidavit in reply is already filed on behalf of the contesting respondent, we dispose of the present Letters Patent Appeal, however further entering into merits and/or expressing anything on merits by directing by directing to continue the ad-interim relief granted earlier and request the learned Single Judge to decide and dispose of main Special Civil Application No. 6677 of 2016 on or before 15.09.2016. Shri Champaneri, learned advocate for the original petitioner has stated at the bar that if there is a necessity to file affidavit in rejoinder, the same shall be filed within a period of one week from today. He has also assured the Court that petitioner shall cooperate in early disposal of the main Special Civil Application and within the stipulated time as stated above and there shall not be any unnecessary adjournment sought on the part of the original petitioner. 3.0. Shri V.C. Patel, learned advocate for the contesting private respondent has stated at the bar that if the aforesaid order is passed, he has no objection. 3.0. Shri V.C. Patel, learned advocate for the contesting private respondent has stated at the bar that if the aforesaid order is passed, he has no objection. However, has requested to make suitable observations that this Court has not expressed anything on merits in favour of either of the parties including whether against the show cause notice, petition be entertained or not. 4.0. In view of the above, present Letters Patent Appeal is disposed of by directing to continue the earlier ad-interim relief of status quo till 26.09.2016. However, the same shall be without prejudice to the rights and contentions of the respective parties in the main petition and the learned Single Judge to decide and dispose of the main Special Civil Application without in any way being influenced by the present order of continuing of ad-interim order. All the contentions which may be available to the respective parties including the contention on behalf of the original applicant that against the show cause notice petition is not required to be entertained, are kept open, which may be considered by the learned Single Judge in accordance with law and on merits. The learned Single Judge is requested to decide and dispose of the main petition preferably on or before 15.09.2016. Parties to complete the pleading within the period of 10 days from today. Present Appeal stands disposed of accordingly. In view of disposal of Letters Patent Appeal, Civil Application stands disposed of accordingly." Thereafter, the SCA No. 6677/16 was also disposed of by this Court (Coram: Rajesh H. Shukla, J.) on 08.09.2016, wherein the following order was passed:- "After arguing the matter for some time, learned advocate Shri. Vikram Thakor does not press this petition at this stage without prejudice to the rights and contentions. The present application stands disposed of, as not pressed. Notice is discharged." 4.3 The record shows that the show-cause notice was fixed for hearing on 26.09.2016 and ultimately, on 04.10.2016. It is the case of the petitioner that the petitioner sought time. However, the same was declined and by an order dated 05.10.2016, the Additional Commissioner came to the conclusion that the petitioner has incurred disqualification as contemplated under section 30(1)(m) of the Act. It is the case of the petitioner that the petitioner sought time. However, the same was declined and by an order dated 05.10.2016, the Additional Commissioner came to the conclusion that the petitioner has incurred disqualification as contemplated under section 30(1)(m) of the Act. The record shows that the said order dated 05.10.2016 was challenged before this Court by way of SCA No. 17287/16, which came to be disposed of vide order dated 13.10.2016 on the ground of availability of alternative remedy directing the appellate authority to expeditiously hear the said appeal preferably on or before 21.10.2016. It appears from the record that thereafter, the petitioner preferred appeal before the appellate authority on 15.10.2016 and the hearing took place before the Development Commissioner on 19.10.2016. It is the say of the petitioner that as the appeal was not decided within the time limit prescribed by this Court, the petitioner made an application on 25.10.2016 requesting to pass appropriate order. However instead of passing an order, under political pressure, the Development Commissioner ordered on 28.10.2016 directed the Additional Development Commissioner to give report about the certificate produced by the petitioner and issued a further notice to the petitioner as provided under section 85(1) of the Act. The record shows that being aggrieved by the said order, the petitioner preferred SCA No. 19730/16, wherein this Court passed the following order on 24.11.2016:- "Notice returnable on 15.12.2016. D.S. permitted. Meanwhile the vacancy may not be filled in." 4.4 The record shows that the husband of the petitioner also filed a application being Misc. Application No. 11/16 before the learned Civil Judge, Bavla under Regulation 12(A) of the Gujarat Secondary Regulations, 1972 for correction of birth date of his third son Tushar. Ultimately, the appeal came to be rejected vide order dated 28.11.2016 by the Development Commissioner and the said order is also impugned in the present petition. Along with the petition, the petitioner has also annexed and relied upon the report of the District Development Officer, Ahmedabad dated 12.09.2016 as well as the report of even date of Taluka Development Officer, Bavla. Along with the petition, the following documents are annexed by the petitioner - "(a) The photocopy of the duplicate birth certificate issued by the authority of Dholka Nagarpalika of Tusharkumar, copy of which was taken on 10.05.2016. Along with the petition, the following documents are annexed by the petitioner - "(a) The photocopy of the duplicate birth certificate issued by the authority of Dholka Nagarpalika of Tusharkumar, copy of which was taken on 10.05.2016. (b) Photocopy of School Leaving Certificate of Tusharkumar issued by Shivam Vidhyalay, Bagodara, Taluka Bavla, District Ahmedabad. (c) The birth certificate issued by the Principal of School. (d) Photocopy of the School Leaving Certificate of Rakeshkumar issued by Shivam Vidhyalay. (e) The photocopy of the certificate issued by the hospital at Dholka dated 02.08.2016. (f) The photocopy of the affidavit which was filed by the petitioner on 07.11.2015 filed along with the nomination form for contesting the district panchayat election from Ghangad-09 electorate division of Ahmedabad District Panchayat. (g) The photocopy of the Misc. Application No. 11/16 filed by the husband of the present petitioner under Regulation 12(A) of Gujarat Secondary Regulations for correction of birth date in the Leaving Certificate of son Tusharkumar dated 06.02.2016. (h) Photocopy of the birth certificate issued by Bhamsara Gram Panchayat of second child of the petitioner. (i) Photocopy of the birth certificate issued by Bhamsara Gram Panchayat of Tusharkumar, third son of the petitioner. (j) Another photocopy of the birth certificate dated 20.05.2004 issued by Talati-cum-mantri of Bhamsara Gram Panchayat of third child Tusharkumar. (k) Photocopy of the extracts of birth and death maintained by Bhamsara Gram Panchayat exhibiting entry of birth of third son Tusharkumar." 5. In response to notice issued by this Court, the respondent No. 4 has filed an affidavit-in-reply. The respondent No. 4 has also relied upon the documents which in fact are relied upon by the petitioner and has contended that the third child of the petitioner Tusharkumar as per the petitioner has four different dates of birth and two different place of birth more particularly as per the chart at paragraph 11 of the said affidavit. It is also contended that the petitioner has made contradictory statements at all levels right from the filing of the affidavit for nomination paper, before Additional Development Commissioner, before Civil Court in Misc. Application No. 11/16 and different version before the Development Commissioner. It is also contended that the petitioner has made contradictory statements at all levels right from the filing of the affidavit for nomination paper, before Additional Development Commissioner, before Civil Court in Misc. Application No. 11/16 and different version before the Development Commissioner. It is also contended that as provided under section 106 of the Evidence Act, 1872, the burden to prove the correct date of birth of the third child is upon the petitioner and therefore, both the authorities have rightly come to the conclusion that the petitioner has failed to prove the correct date of birth of child Tusharkumar and has failed to discharge the burden. It is also contended that the date which was given before Additional Commissioner was different and what was given before Development Commissioner was different. The District Development Officer has also filed an affidavit-in-reply and has brought on record the relevant documents from the record of the District Panchayat. The State Government has also filed an affidavit and has contended that the petitioner has given different birth dates of his third child and the petitioner has contended different birth dates and two different places of birth. It is contended by the State Government that the petitioner and her husband have made false statements and have tried to hide the real and actual birth date of the third child and it is contended that the impugned orders are legal and proper and the petitioner has incurred disqualification as provided under section 30(1) (m) of the Act. It deserves to be noted that the petitioner has not filed any rejoinder. 6. Mr. Dipak Sanchela, learned counsel appearing for the petitioner has taken this Court through the contentions raised in SCA No. 20307/16 in particular and the documents which are annexed with the memo of the petition and has contended as under: 6.1 It was contended that the petitioner had three children and daughter Hetal is born on 20.05.1999. Her second child Rakesh is born on 01.04.2004 and third child Tusharkumar is born on 02.08.2006. 6.2 It was contended that the District Development Officer as well as Taluka Development Officer in their report have seen ground reality and have given report and stated that there is no child after cut-off date. Her second child Rakesh is born on 01.04.2004 and third child Tusharkumar is born on 02.08.2006. 6.2 It was contended that the District Development Officer as well as Taluka Development Officer in their report have seen ground reality and have given report and stated that there is no child after cut-off date. 6.3 That even looking to the reply filed by the Government, the Government has not stated that the third child of the petitioner is born after cut-off date. That there is no finding of fact that the third child was born after the cut-off date, i.e. 04.08.2006. It was contended that the third child was born on 02.08.2006. 6.4 It was contended that while filing the miscellaneous application before the learned Civil Court, there was a typographical error in mentioning the date. Instead of 02.08.2006, it was wrongly typed as 22.08.2006 and the case before the learned Civil Court is already withdrawn. It was reiterated that even as per the report of District Development Officer, no child can be born within 21 or 22 days and looking to the report, no date is found after the cut-off date. It was also contended that if both the dates, i.e. 02.06.2006 and 22.04.2004 are taken into consideration, on both counts, the third child was born before the cut-off date and therefore, no disqualification as provided under section 30(1)(m) of the Act is attracted. It was contended that none of the record shows that third child was born after the cut-off date and that the petitioner has thus discharged the burden by production of documents. 6.5 Mr. Sanchela, learned counsel for the petitioner has also taken this Court especially through the report of District Development Officer and Taluka Development Officer dated 12.09.2016 as well as the certificates issued by Bhamsara Gram Panchayat as well as Dholka Nagarpalika and it was contended that the correct date of birth of the third child of the petitioner Tusharkumar is 02.08.2006, which is two days before the cut-off date. On the aforesaid ground, it was contended by Mr. Sanchela that the impugned orders are bad and illegal and the same deserves to be quashed and set aside as prayed for and hence the matter requires consideration. 7. On the aforesaid ground, it was contended by Mr. Sanchela that the impugned orders are bad and illegal and the same deserves to be quashed and set aside as prayed for and hence the matter requires consideration. 7. Learned Government Pleader has opposed the petition and has contended as under:- 7.1 That the petitioner has not been able to discharge the burden of proving the date of birth of third child Tusharkumar. 7.2 It was contended by the learned Government Pleader that four different dates are given and the certificates which are made basis of the petition and which were produced before the authorities below also do not indicate the correct picture. 7.3 The learned Government Pleader contended that before the election officer, the affidavit came to be filed by the petitioner on 07.11.2015 where it is categorically stated that the petitioner has three children and all three children are born before 04.08.2005. The learned Government Pleader further contended that the documents on record clearly spell out that different dates and different stand as regards the date of birth is taken by the petitioner and the statement which was made before the Additional Development Commissioner and the Development Commissioner as well as before the Civil Court are not only different but the statements made by the petitioner are false. 7.4 The learned Government Pleader relying upon the documents which are on record contended that both the authorities have rightly come to the conclusion that the petitioner has incurred disqualification as provided under section 30(1)(m) of the Act. 7.5 Explaining the procedure which has been followed by the authorities, the learned Government Pleader contended that the Development Commissioner has rightly come to the conclusion that the Development Commissioner is not the competent authority to decide the correct date of birth of the third child of the petitioner and the competent civil court has the jurisdiction to decide the said issue. 7.6 Ms. Shah, learned Government Pleader contended that before the Additional Development Commissioner, the petitioner has specifically mentioned that the date of birth of third child is 22.04.2004 which is based upon the certificate issued by Bhamsara Gram Panchayat. 7.6 Ms. Shah, learned Government Pleader contended that before the Additional Development Commissioner, the petitioner has specifically mentioned that the date of birth of third child is 22.04.2004 which is based upon the certificate issued by Bhamsara Gram Panchayat. It was further contended that in appeal before the Development Commissioner, a totally new and contradictory stand was taken by the petitioner wherein it is stated by the petitioner that the correct date of birth of third child is 02.08.2006 which is based upon the birth certificate issued by Dholka Nagarpalika. The learned Government Pleader contended that the petitioner herself being the mother of the third child is not in a position to show and is not showing the correct birth date only for the reasons best known to her. 7.7 Relying upon the copy of the birth certificates placed on record by the petitioner Ms. Shah contended that it is apparent from the birth certificate issued by Bhamsara Gram Panchayat that even the serial number is changed. In the birth certificate which was issued, the serial number was 36 and in the new certificate, which was issued in the year 2015, the serial number is shown as 3, which creates doubt as regards manipulation of the birth certificate as well as the Birth Register maintained by the Bhamsara Gram Panchayat. 7.8 The learned Government Pleader further contended that at the time of filing of nomination paper the petitioner has filed an affidavit as per the election rules wherein it is categorically stated on 07.11.2015 that her three children were born before 04.08.2005. However, in the certificate issued by Bhamsara Gram Panchayat on 16.05.2015, it is stated that the petitioner does not have a child after 2005. 7.9 Ms. Shah contended that contrary statements have been made before the authorities and the petitioner has thus failed to discharge the burden to prove the actual date of birth. 7.10 Ms. Shah further contended that as per the record of the Bhamsara Gram Panchayat, birth date is 22.04.2004 and birth place is Bhamsara, Taluka Bavla, whereas as per the School Leaving Certificate and affidavit of the petitioner's husband, the birth date of third child is 02.08.2006 and the place of birth is Bavla at Santokba Hospital and therefore, the authorities have rightly come to the conclusion that the petitioner herself is unable to justify the correct birth date. 7.11 Ms. 7.11 Ms. Shah further contended that the petitioner appears to have manipulated the birth place and birth date of the third child in order to escape from disqualification and the petitioner has made unjustifiable statements only to escape disqualification as provided under section 30(1)(m) of the Act. It was therefore contended that the petitions deserve to be dismissed. 8. Mr. Shalin N. Mehta, learned senior advocate, appearing for respondent No. 4 has categorically taken this Court through the relevant dates which are already observed and enumerated above. Mr. Mehta, learned senior advocate appearing for respondent No. 4 has raised the following contentions:- 8.1 That the petitioner has given different versions before different authorities. "(a) The first version is that the date of birth of the third child is 22.04.2004. In the affidavit filed before the election officer on 07.11.2015, the petitioner has stated that all three children are born before 04.08.2005 and such crystal clear statement has been made by the petitioner. (b) Before the Additional Development Commissioner, it is stated by the petitioner that the date of birth of the third child Tusharkumar is 22.04.2004. (c) The second version which is given by the petitioner is that the third child Tusharkumar is born on 02.08.2006 at Dholka at Santokba Hospital. The said version was given for the first time before the Development Commissioner and then before the Civil Court." 8.2 It was further contended by Mr. Mehta, learned Senior Advocate appearing for respondent No. 4 that section 30(1)(m) of the Act itself provides for disqualification for person who has more than two children. Mr. Mehta also contended that the said provision clearly provides that if a person has more than two children he stands disqualified from being a member of the panchayat or to even continue as such. 8.3 It was also further contended by the learned counsel for respondent No. 4 that section 30(1) (m) of the Act has two proviso. It was contended that thus section 30(1)(m) would be attracted because there are more than two children and there are only two ways to save a person from disqualification which are provided under proviso 1 and proviso 2 to section 30(1) (m) of the Act and burden is on the petitioner to prove her case under the proviso. 8.4 It was contended by Mr. 8.4 It was contended by Mr. Mehta, learned advocate for the petitioner that if the version before the Development Commissioner is taken into consideration, according to the petitioner, the third son Tushar was born on 02.08.2006 whereas before the Additional Development Commissioner, it was contended by the petitioner that the third son Tusharkumar was born on 22.04.2004. However, on oath, it is mentioned that the date of birth is 02.08.2006 and therefore, on both the theories, the proviso 1 would not apply. It was further contended by Mr. Mehta that proviso 2 would apply only in case if it is conclusively proved that the third child is born on 02.08.2006. It was contended that the Development Commissioner has rightly come to the conclusion that there are too many dates and contradictory pleadings and therefore, the conclusion arrived at by the authority is legal and proper and does not require any interference by this Court under Article 226 of the Constitution and also jurisdiction under Article 227 of the Constitution. 8.5 It was contended by Mr. Mehta that for the first time before the Development Commissioner, the petitioner took the stand that the date of birth of the third child is 02.08.2006. Mr. Mehta further contended that the Development Commissioner as well as the Additional Development Commissioner though may not have the trapping of the Court but has to decide the dispute of fact and burden is on the petitioner. 8.6 It was contended that the petitioner has not been able to prove the correct date of birth and even to show that why proviso 2 is attracted and therefore, it was contended that Development Commissioner has rightly observed that the petitioner has not been able to prove the correct date of birth and the petitioner is required to approach the civil court. It was therefore contended that neither of the proviso is attracted in the instant case and therefore, disqualification as provided under section 30(1)(m) of the Act is automatic. It was further contended that the instant case is a case wherein doctrine of judicial estoppel is applicable. 8.7 Mr. Mehta further contended that the petitioner cannot have two different versions before two different adjudicating authorities. It was further contended that the instant case is a case wherein doctrine of judicial estoppel is applicable. 8.7 Mr. Mehta further contended that the petitioner cannot have two different versions before two different adjudicating authorities. It was contended that indisputably, before the Additional Development Commissioner, the case of the petitioner was that the date of birth of the third child Tusharkumar is 22.04.2004 and in appeal there is complete volte face that the date of birth is 02.08.2006. It was further contended by Mr. Mehta, learned counsel appearing for respondent No. 4 that the persons vouching are parents and therefore, if the petitioner has taken two different stands before two different forums, doctrine of judicial estoppel would apply, which would disentitle the petitioner from any relief as the petitioner does not tell the truth. It was contended that either story has to be false and the petitioner should be prevented to tell this Court that the date of birth of Tusharkumar is 02.08.2006. 8.8 It was also contended that the conduct of the petitioner as such disentitles the petitioner for any relief by this Court in exercise of extraordinary jurisdiction under Article 226 as in such jurisdiction, the conduct of the party is more important. Mr. Mehta, contended that the petitioner has come to the Court with soiled hands and for unfair gameship and therefore, this Court can deny the relief. 8.9 Mr. Mehta further relying upon the stand taken by the petitioner before the Additional Development Commissioner, contended that the Additional Development Commissioner was asked to further believe that the date of birth of the third child Tushar as 22.04.2004, thereafter realising the importance of such facts, the petitioner twisted the facts and gave a distorted version before the Development Commissioner for the first time and the entire factual contention raised by the petitioner did not appear to show that the petitioner has come with clean hands. 8.10 It was contended that under the scheme of the Act, no one can deny that the member of a District Panchayat is a very important representative of the people. It was contended that the Constitution of India recognizes three tier local self Government and power flowing out of the representative of the people. 8.10 It was contended that under the scheme of the Act, no one can deny that the member of a District Panchayat is a very important representative of the people. It was contended that the Constitution of India recognizes three tier local self Government and power flowing out of the representative of the people. It was contended that it is not required to have a law which provides that the representative has to be honest and fair and such representative cannot be a liar otherwise, the same would make mockery of democracy. 8.11 Mr. Mehta contended that right from the affidavit being filed by the petitioner before the election officer and before both the authorities, the petitioner has taken different version and even as per the documents which are relied upon by the petitioner, one has to be false which proves that the petitioner has lied on oath. 8.12 Mr. Mehta, further contended that on the facts of the case and the conduct and different versions given by the petitioner and even as per the provisions of the Act, the cut-off date is not 03.08.2006 but the cut-off date would remain 04.08.2005. It was contended that in order to see that this Court believes that the third child Tusharkumar is born within the period which is prescribed in the provision, the petitioner will have to give the correct date of birth of the third child, which is completely missing on record. 8.13 It was contended that it is impossible to prove real date of birth of the third child unless the Civil Court decides it and the petitioner has failed to discharge the burden by giving incorrect date of birth of third child and hence, the petitioner is not entitled to any relief under Article 226 of the Constitution. 8.14 It was contended that even as per the principles governing the judicial review and the jurisdiction of this Court under Article 226 and 227 of the Constitution and in view of the conflicting documentary evidence, it cannot be said that the view taken by the authorities below is unreasonable. 8.15 It was contended that four different dates are given and on basis of that, it cannot be said that burden to prove is discharged by the petitioner. It was also contended that the version of the petitioner is even biologically impossible. 8.15 It was contended that four different dates are given and on basis of that, it cannot be said that burden to prove is discharged by the petitioner. It was also contended that the version of the petitioner is even biologically impossible. Referring to the various dates which are given by the petitioner before the different forums and at different stages, it was contended by Mr. Mehta, learned counsel appearing for respondent No. 4 that if it is believed that the date of birth of the second child of the petitioner is 01.04.2004, having taken birth at Bhamsara, which is based upon the birth certificate, it is biologically impossible to believe that the third child Tusharkumar is born on 22.04.2004. It was contended that the petitioner, as mother and the husband of the petitioner as father, know the real date of birth which is concealed by the petitioner, which disentitles her to any relief by this Court under Article 226 and/or 227 of the Constitution and therefore, the petitions are misconceived and the same deserves to be dismissed. 9. Mr. Dipak Sanchela, in rejoinder, has reiterated that the petitioner relies upon the report of the Taluka Development Officer as well as District Development Officer. 10. The learned Government Pleader has also shown the original register of birth and death maintained by Gram Panchayat as well as Dholka Nagarpalika. This Court also though it fit to call for the earlier two writ petitions filed by the petitioner being SCA No. 6677/16 and SCA No. 17287/16 to verify the facts. 11. No other or further submissions are made by the learned counsel appearing for the parties. 12. Before reverting to the contentions raised by the learned counsel appearing for the parties, it would be appropriate to refer to the provisions of section 30(1)(m) of the Act, which provides as under - "30. 11. No other or further submissions are made by the learned counsel appearing for the parties. 12. Before reverting to the contentions raised by the learned counsel appearing for the parties, it would be appropriate to refer to the provisions of section 30(1)(m) of the Act, which provides as under - "30. Disqualification of:- (1) No person shall be a member of a panchayat or continue as such who:- (m) 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 (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 under this clause." 13. It is an admitted position that the said section came into force from 04.08.2005. At the outset, it deserves to be noted that similar provisions have also been introduced by the legislature of the State of Gujarat under Gujarat Municipalities Act by clause (h) of section 11(1) of the Act and in BPMC Act by clause (j) of section 10(1). Thus, under section 30(1)(m) of the Act, the person who has more than two children shall stand disqualified from being a member of the Panchayat. Proviso to the said provision also provides that a person having more than two children on the date of commencement of the Amendment Act of 2005, shall not be disqualified under this clause so long as the number of children does not increase. 14. The first proviso to section 30(1)(m) of the Act takes care of such a situation wherein a person has more than two children on the date of commencement of the Act, i.e., on 04.08.2005 and there is no increase thereafter. Whereas, the second proviso takes care of the situation wherein one child is born on single delivery within one year from the date of the commencement, i.e. 03.08.2006. Whereas, the second proviso takes care of the situation wherein one child is born on single delivery within one year from the date of the commencement, i.e. 03.08.2006. Thus, by proviso, if there is no increase after the commencement, then such person would not stand disqualified if such person has more than two children before 04.08.2005. Whereas in the second proviso, it is provided that if a child or more than one child is born in a single delivery within a period of one year, such person would not stand disqualified. 15. In the case on hand, admittedly, the petitioner who has been elected as member of the Ahmedabad District Panchayat from Ghangad-09 electorate division has more than two children, i.e. three children. As the record indicates, by an affidavit dated 07.11.2015 filed by the petitioner at the time of filling in the form for contesting the election, in para 1 thereof it has been specifically declared on oath by the petitioner that on the date of commencement of the amendment, i.e., on 04.08.2005, the petitioner was having three children. In the said paragraph itself it has been also declared by the petitioner on oath that within a period of one year, from the date of commencement of the Act, i.e. till 03.06.2006, there is no increase in the number of children. It goes without saying that relying upon the said affidavit, the petitioner contested the election. 16. It further appears from the record that the proceedings under the provisions of the Act came to be initiated by the Additional Commissioner by a notice dated 10.03.2016, whereby the petitioner was asked to show cause as to why the seat in question occupied by the petitioner be not declared as vacant as provided under section 32(2) in view of the disqualification incurred by the petitioner as provided under section 30(1)(m) of the Act. It appears from the record that private respondent No. 4 herein filed a written application on 25.01.2016 complaining that the petitioner has incurred disqualification under section 30(1)(m) of the Act and it further appears from the record that the learned Additional Development Commissioner called for the reports and on basis of it, the notice dated 10.03.2016 came to be issued. It appears from the record that hearing of the notice was kept by the Additional Development Commissioner on 06.04.2016 and then was adjourned to 27.04.2016. It appears from the record that hearing of the notice was kept by the Additional Development Commissioner on 06.04.2016 and then was adjourned to 27.04.2016. The record indicates that on the said date, the matter was adjourned at the request of the learned advocate appearing for the petitioner and ultimately, the proceedings of the said show-cause notice came to be adjourned on 04.05.2016. The record indicates that on 03.05.2016, the petitioner preferred a writ petition before this Court being SCA No. 6677/16 challenging the show-cause notice. It deserves to be noted that in the said petition, the petitioner had made the following statement at Ground (E):- "It is submitted that the proceedings initiated in pursuance of the application dated 25.01.2016 submitted by the respondent No. 4, in the said application itself it is mentioned that as per the birth certificate issued by the competent authority the birth of Tushar third child of the petitioner is 22.04.2004, while as per the school leaving certificate is 02.08.2006. From contents of the said application dated 25.01.2016 and the documents produced along with the said application, it very clear that even from the contents of the application and from the contents of the documents produced along with the application no ground for initiating the proceedings under Section 32 exists and even no case of the disqualification under section 30(m) is made out. Therefore the contents of the application and the documents produced along with the application do not make any ground for initiating the proceedings under Section 32. There is no reason for the respondent No. 2 to issue the impugned show cause notice except either political pressure or the undue favoritism." In the said SCA No. 6677/16, this Court (Coram: A.J. Desai, J.) issued notice vide order dated 22.04.2016. The said order was taken further before the Division Bench by way of filing LPA No. 388/16. The Hon'ble Division Bench, by an order dated 03.05.2016, was placed to issue notice making it returnable on 09.06.2016 and directed the respondents to maintain status quo as existed on the said date. Ultimately, by an order dated 24.08.2016, the said LPA came to be disposed of with following observations:- "4.0. In view of the above, present Letters Patent Appeal is disposed of by directing to continue the earlier ad-interim relief of status quo till 26.09.2016. Ultimately, by an order dated 24.08.2016, the said LPA came to be disposed of with following observations:- "4.0. In view of the above, present Letters Patent Appeal is disposed of by directing to continue the earlier ad-interim relief of status quo till 26.09.2016. However, the same shall be without prejudice to the rights and contentions of the respective parties in the main petition and the learned Single Judge to decide and dispose of the main Special Civil Application without in any way being influenced by the present order of continuing of ad-interim order. All the contentions which may be available to the respective parties including the contention on behalf of the original applicant that against the show cause notice petition is not required to be entertained, are kept open, which may be considered by the learned Single Judge in accordance with law and on merits. The learned Single Judge is requested to decide and dispose of the main petition preferably on or before 15.09.2016. Parties to complete the pleading within the period of 10 days from today. Present Appeal stands disposed of accordingly." 17. The record further indicates that ultimately, the said writ petition was disposed of as not pressed by an order dated 08.09.2016 passed by this Court (Coram: Rajesh H. Shukla, J.) wherein the following order was passed:- "After arguing the matter for some time, learned advocate Shri. Vikram Thakor does not press this petition at this stage without prejudice to the rights and contentions. The present application stands disposed of, as not pressed. Notice is discharged." 18. The notice came to be heard by the Additional Development Commissioner which culminated into an order dated 05.10.2016. The record indicates that the said order came to be challenged before this Court by way of SCA No. 17287/16, which was not pressed and came to be disposed of by an order dated 13.10.2016, which reads as under- "The present petition is filed by the petitioner under Art.14, 19 and 226 of the Constitution of India as well as under the provisions of Gujarat Panchayts Act, 1993 with the Rules framed thereunder for the prayers as prayed for in the petition. 2. Heard learned counsel Shri PS Champaneri for the petitioner, Ms. Manisha Lavkumar Shah appearing with learned Assistant Government Pleader Shri VR Jani for respondents Nos. 1-2 and learned advocate Ms. Samata Patel for respondent No. 4. 3. 2. Heard learned counsel Shri PS Champaneri for the petitioner, Ms. Manisha Lavkumar Shah appearing with learned Assistant Government Pleader Shri VR Jani for respondents Nos. 1-2 and learned advocate Ms. Samata Patel for respondent No. 4. 3. During the course of hearing, learned advocate Ms. Patel for respondent No. 4 has submitted that alternate remedy is provided by way of appeal. Therefore, learned counsel Shri Champaneri does not press this petition with a view to avail the alternate remedy without prejudice to the rights and contentions. 4. The present petition accordingly stands disposed of keeping all issues open and without prejudice to the rights and contentions of all parties. Learned counsel Shri Champaneri has requested that if the appeal is preferred, the same may be directed to be expedited and disposed of as early as possible. 5. In the circumstances, if the appeal is preferred by the petitioner before the State authorities, the same may be considered expeditiously, preferably on or before 21st October, 2016. It goes without saying that the appellate authority shall consider the appeal on its own merits in accordance with law. 6. The present petition accordingly stands disposed of as not pressed. D.S. permitted today." It deserves to be noted that even in the said petition, at ground 4(b), the following statement is made before this Court:- "In the present case, the appellant (sic) petitioner gave birth to third child at Dholka Municipal Hospital on 2nd August 2006 at 5.10 PM, which is evident from the Certificate issued by the Hospital bearing Certificate No. 460 dated 2nd August 2006 whereas..... " 19. It appears from the record that the petitioner filed an appeal before the Development Commissioner as provided under section 32(3) of the Act. In the memo of the appeal, the petitioner raised a contention that the third child Tusharkumar is born on 02.06.2006. It appears that the learned appellate authority considered the report submitted by the Taluka Development Officer as well as District Development Officer and rejected the appeal by the impugned order dated 28.11.2016. 20. In the memo of the appeal, the petitioner raised a contention that the third child Tusharkumar is born on 02.06.2006. It appears that the learned appellate authority considered the report submitted by the Taluka Development Officer as well as District Development Officer and rejected the appeal by the impugned order dated 28.11.2016. 20. At this stage, it deserves to be noted that while the appellate proceedings were pending before the appellate authority, the petitioner's husband preferred an application as provided under Regulation 12A of the Gujarat Secondary Regulation Act before the learned Civil Judge, SD & Judicial Magistrate, First Class, which came to be registered as Miscellaneous Application No. 11/16 and inter-alia prayed that the correct date of birth of his son Tusharkumar is 22.04.2004. It deserves to be noted that in the said application, in para 5, it is categorically mentioned by the petitioner's husband Shri Ashwinbhai that the birth of his third child, i.e. petitioner's third child Tusharkumar is at village Bhamsara and the birth is registered in the death and birth register of Bhamsara Gram Panchayat. It appears from bare reading of the said application which is forming part of the record of this petition at Annexure-L that it was the case of the petitioner before the learned Magistrate that the date of birth mentioned in the School Leaving Certificate of Shivam Vidhyalay where his son Tusharkumar studied, is wrongly registered as 22.08.2006. Such application was filed on 06.02.2016. As the record indicates, the said application came to be ultimately withdrawn by the petitioner's husband on 20.12.2016. 21. The aforesaid discussion therefore clearly shows that the petitioner has made different statements as regards the birth of her third child Tusharkumar and has given different date of birth and even two different places of birth. The birth certificate which is relied upon by the petitioner which is issued by Dholka Nagarpalika on 10.05.2016 at registration No. 1729 shows that the third child Tusharkumar was born on 02.08.2006. In the School Leaving Certificate issued to Tusharkumar the third son, by Shivam Vidhyalay shows that the date of birth is 02.08.2006. However, it is mentioned in the said certificate that Tusharkumar is born at Bhamsara, Taluka Bavla, District Ahmedabad. In the School Leaving Certificate issued to Tusharkumar the third son, by Shivam Vidhyalay shows that the date of birth is 02.08.2006. However, it is mentioned in the said certificate that Tusharkumar is born at Bhamsara, Taluka Bavla, District Ahmedabad. Similarly, the birth certificate issued by the school where the daughter of the petitioner Hetalben has studied shows that the date of birth of Hetalben, first child of the petitioner, is 20.05.1999. Similarly, the School Leaving Certificate of Rakeshkumar, son of the petitioner indicates that the date of birth of Rakeshkumar is 01.04.2004 and he is born at Bhamsara Taluka, Bavla, District Ahmedabad. The petitioner has also produced on record the birth certificate issued by Bhamsara Gram Panchayat of Yogeshbhai at registration No. 7 wherein the date of birth of Yogeshbhai is 15.02.2004. The petitioner has also relied upon and annexed the birth certificate of Tusharkumar issued by Talati-cum-Mantri, Bhamsara, which shows that the date of birth of Tusharkumar is 22.04.2004, the birth place is Bhamsara and the registration number is 3. There is another certificate of Tusharkumar issued by Bhamsara Gram Panchayat on 29.05.2004 wherein the date of birth of Tusharkumar is mentioned as 22.04.2004 and registration number is 36 and the place of birth is Bhamsara. Thus, it is an admitted position that the petitioner has shown and relied upon different date of birth and place of birth of his son Tusharkumar before all the authorities and even before this Court in the previous proceedings. The picture which emerges as far as three children of the petitioner are concerned, is as under:- "(1) Hetalben Ashwinbhai Rathod, born on 20.05.1999. (2) Rakesh Ashwinbhai Rathod, born on 01.04.2004. (3) Tusharkumar, born on 22.04.2004, place of birth is Bhamsara and 02.08.2006, place of birth is Dholka and as per School Leaving Certificate issued on 28.12.2015 by Shivam Vidhyalay, the place of birth is mentioned as Bhamsara." 22. It deserves to be noted that if the date of birth of third child Tusharkumar is taken as per the birth certificate issued by Bhamsara Gram Panchayat, the situation which emerges is that it is the case of the petitioner that the third child Tusharkumar was born on 22.04.2004 at Bhamsara within a period of 21 days from the birth of her second child Rakeshkumar on 01.04.2004, which is impossible on all counts. 23. 23. Thus, taking into consideration the contentions which are raised by Mr. Sanchela, learned counsel appearing for the petitioner, it deserves to be noted that the report of the District Development Officer and the Taluka Development Officer does not take the case of the petitioner forward. The petitioner has relied upon one set of evidence wherein it is contended by the petitioner before the authorities that the third child Tusharkumar was born on 22.04.2004 at Bhamsara. Taking into consideration the evidence on record the birth of the second child Rakeshkumar is on 01.04.2004, if that is taken into consideration, it is impossible to believe on any count including biologically and medically that the date of birth of third child Tusharkumar is 22.04.2004. 24. The contention raised by Mr. Sanchela that even if both the dates are taken into consideration, there is no breach of the provisions of section 30(1)(m) of the Act and more so proviso, it cannot be said that the petitioner has been able to discharge the burden. In order to see that the case falls under either of the proviso, the petitioner has to discharge the burden of proof and therefore, it is rightly contended by learned counsels appearing for the respondents that such burden is not discharged. 25. It cannot be gainsaid that a child is born on two different dates at two different places and the petitioner cannot take shelter of two dates and say that it falls outside the purview of the provisions of section 30(1)(m) of the Act and cannot be permitted to say that by operation of either of the proviso, the disqualification is not incurred and that either of the dates are before the cut-off date. In opinion of this Court and considering the facts of this case, the petitioner has not only taken different dates as date of birth of the child Tusharkumar, but has not been able to discharge the burden. In order to attract either of the proviso, the petitioner has to definitely show the date of birth of the third child. The stand taken in this petition to the effect that the date of birth of the third child is 02.08.2006 is contrary to the affidavit dated 07.11.2015, which was filed before the election officer. In order to attract either of the proviso, the petitioner has to definitely show the date of birth of the third child. The stand taken in this petition to the effect that the date of birth of the third child is 02.08.2006 is contrary to the affidavit dated 07.11.2015, which was filed before the election officer. The petitioner has made a wrong statement in this petition and even before the Development Commissioner in appeal and even in the previous petitions filed before this Court. As observed hereinabove, at first instance, even before the show-cause notice came to be issued, it was a definite case of the petitioner that the correct date of birth of third child Tusharkumar is 22.04.2004 and not 02.08.2006, which is registered wrongly in the School Leaving Certificate. Having taken such a definite stand at the first instance, as an afterthought, the petitioner has changed the version and has contended that the correct date of birth of her third child now is 02.08.2006. 26. It deserves to be noted that on coming to know that respondent No. 4 has filed a written application, the petitioner filed a representation/application on 09.03.2016 before the Secretary, Panchayat Department, Development Commissioner as well as District Development Officer, Ahmedabad. It deserves to be noted that in paras 3 and 4 of the said application, the petitioner has categorically asserted that the date of birth of her third son Tushar is 22.04.2004 and that he is born at Bhamsara. At the same breath, in para 4, it is specifically contended by the petitioner that the date of birth of third child Tushar is not 02.08.2006, but is 22.04.2004 which is before commencement of the Amendment Act of 2005, i.e., before 04.08.2005. It is further contended in para 3 that the date mentioned in School Leaving Certificate as 02.08.2006 is not correct and the correct date of birth is 22.04.2004 which is based upon the birth certificate issued by the competent authority. In para 4, it is further asserted by the petitioner that the date of birth of her third child Tushar is 22.04.2004 and it is further asserted that even if it is assumed that the date 02.08.2006 as mentioned in School Leaving Certificate is correct, the same is also within a period of one year from the date of commencement of the Amendment Act. 27. 27. As observed hereinabove, the Court had also an occasion to look at the original birth and death register maintained by both the authorities, Bhamsara Gram Panchayat as well as Dholka Nagarpalika. Not only that while issuing the birth certificate, the serial number is changed, but the register is found by this Court in such a state that it would compel this Court to doubt its authenticity. As the Court is not called upon to decide such an issue, no further elucidation in opinion of this Court should be made in this order. Reference be made to the judgment of the Apex Court in the case of Javed and Others vs. State of Haryana, 2003 (8) SCC 369 wherein the Hon'ble Apex Court considered the constitutional validity of section 175(1)(q) of Panchayats and Jilla Parisahads, Haryana Panchayati Raj Act, 1994 as well as section 177(1) (a) (b) of the said Act. The provisions of section 30(1)(m) of the Act has been introduced by the legislature to carry out the purpose of the Act as well as the mandate of the Constitution under Article 243G as held by the Apex Court in the case of Javed and Others (supra), wherein the Hon'ble Supreme Court has observed thus:- "61. If anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it. 63. It was also submitted that the impugned disqualification would hit the women worst, inasmuch as in the Indian society they have no independence and they almost helplessly bear a third child if their husbands want them to do so. This contention need not detain us any longer. A male who compels his wife to bear a third child would disqualify not only his wife but himself as well. We do not think that with the awareness which is arising in Indian women folk, they are so helpless as to be compelled to bear a third child even though they do not wish to do so. A male who compels his wife to bear a third child would disqualify not only his wife but himself as well. We do not think that with the awareness which is arising in Indian women folk, they are so helpless as to be compelled to bear a third child even though they do not wish to do so. At the end, suffice it to say that if the legislature chooses to carve out an exception in favour of females it is free to do so but merely because women are not excepted from the operation of the disqualification it does not render it unconstitutional. 64. Hypothetical examples were tried to be floated across the bar by submitting that there may be cases where triplets are born or twins are born on the second pregnancy and consequently both of the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Such are not normal cases and the validity of the law cannot be tested by applying it to abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant." 28. The parents of a child would know the exact date of birth of the child. However, in the case on hand, it is found that either the statement made on oath in the affidavit before the Election Commissioner is wrong or the stand taken now before the authority and even before this Court is false and incorrect. In such set of circumstances, the petitioner cannot be permitted to take different stands and adopt the policy of approbate and reprobate. 29. It is a matter of fact that the husband of the petitioner also filed an application under Regulation 12(A) of the Act wherein the statement is made that the correct date of birth is 02.08.2006, which was pending when the impugned order was passed by the Development Commissioner and for the reasons known to the petitioner's husband, the same has been withdrawn. From the sequence of the facts, it appears that when the form of election was filled in, the stand taken by the petitioner was that the provisions of section 30(1)(m) are not attracted as all the three children are born before 04.08.2005 and that there is no increase thereafter. From the sequence of the facts, it appears that when the form of election was filled in, the stand taken by the petitioner was that the provisions of section 30(1)(m) are not attracted as all the three children are born before 04.08.2005 and that there is no increase thereafter. When the application was filed by respondent No. 4 before the authority, the stand taken was that the correct date of birth of the third child is 22.04.2004 and that he is born at Bhamsara and the reliance was placed on birth certificate issued by the competent authority of Bhamsara Gram Panchayat, in order to see that the case of the petitioner is covered by first proviso of section 30(1)(m) of the Act. As noted hereinabove, even according to the petitioner, and the record, the date of birth of her second child Rakeshkumar is 01.04.2004 as it was found that 22.04.2004 would be an impossibility, this Court has reason to believe that the petitioner changed the stand and relied upon the School Leaving Certificate wherein the date of birth mentioned is 02.08.2006 and has raised an argument that the case of the petitioner falls within second proviso to section 30(1)(m) of the Act and therefore, no disqualification is attracted. Such conduct of the petitioner would disentitle the petitioner to any relief in exercise of powers under Article 226 of the Constitution as rightly contended by Mr. Shalin N. Mehta, learned Senior Advocate appearing for respondent No. 4 and it deserves to be noted that while changing the stand, the petitioner the petitioner has not only changed the date of birth, but even the place of birth. 30. It also deserves to be noted that in the copy of the birth certificate of Tusharkumar issued by the Talati-cum-Mantri, Bhamsara Gram Panchayat on 29.05.2004, the date is mentioned as 22.04.2004 and the registration number is shown as 36. Whereas, on perusal of the original register, it is found that the date of birth of Tusharkumar at Bhamsara is 22.04.2004 and the registration number is 3, though the date of registration is same as 20.05.2004. In the light of the above facts, it is rightly contended by the respondents that the petitioner has not come to this Court with clean hands. Every person much less a person in public domain like petitioner is supposed to and expected to follow law and tell the truth. In the light of the above facts, it is rightly contended by the respondents that the petitioner has not come to this Court with clean hands. Every person much less a person in public domain like petitioner is supposed to and expected to follow law and tell the truth. 31. In such set of circumstances, the petitioner has to discharge the burden that no disqualification is attracted as provided under section 30(1)(m) of the Act and in opinion of this Court, the petitioner has failed to do so. The authority was left with no option but to hold that it is the Civil Court which is to decide the correct date of birth. On perusal of the record of this case as well as the orders impugned, this Court finds that there is no error much less any error apparent on the face of the record of the case, which requires interference by this Court in its extraordinary jurisdiction under Article 226 and/or Article 227 of the Constitution. Considering the contentions raised and records of these petitions as well as the orders impugned, no interference is called for and the petitions are liable to be dismissed and are hereby rejected in limine. Notice is discharged in both the matters. Ad interim relief stands vacated. 32. In view of the order passed in the main matter, the Civil Application also stands dismissed. No costs. Application Dismissed.

Savitaben Ashwinbhai Rathod v. Development Commissioner