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2020 DIGILAW 348 (UTT)

Mohd. Yunus v. State of Uttarakhand

2020-09-21

R.C.KHULBE, RAVI V.MALIMATH

body2020
JUDGMENT : Ravi V. Malimath, Actg. C.J. 1. The petitioner seeks for the following reliefs:- "i. Issue a writ order or direction in the nature of certiorari quashing the provisions of Sections 90(1)(r) and Section 53(1)(r) of the Uttarakhand Panchayati Raj Act, 2016, as amended/inserted for Amendment Act of 2019, as irregular, arbitrary and unconstitutional, or in the alternate: ii. Issue a writ, order or direction in the nature of mandamus to declare the provisions of Sections 90(1)(r) and 53(1)(r) of the Uttarakhand Panchayati Raj Act, 2016, as being applicable only to cases, where persons having two children or more, have a third child or more after 25.07.2019 and the said provision to be not applicable for disqualifying those, who already have three or more children before 25.07.2019". 2. Learned counsel for the petitioner submits that the impugned provisions of Sections 90(1)(r) and 53(1)(r) of the Uttarakhand Panchayati Raj Act, 2016, as amended in terms of the Amendment Act of 2019, are pari materia with Section 8(1)(r), Section 8(8)(1)(d) and Section 10-C of the Uttarakhand Panchayat Raj (Amendment) Act, 2019, as notified on 25.07.2019. 3. Even the State Government having filed the counter-affidavit, do not dispute the said position. 4. The Hon'ble Division Bench of this Court which heard the challenge to the provisions of Section 8(1)(r), Section 8(8)(1)(d) and Section 10-C of the Uttarakhand Panchayati Raj (Amendment) Act, 2019, in its judgment dated 19.09.2019 passed in Writ Petition (M/S) No. 2280 of 2019 and connected matters, held as follows:- "X. CAN SECTION 8(1)(R) BE READ DOWN TO SAVE IT FROM UNCONSTITUTIONALITY? 88. It is submitted, on behalf of the petitioners, that applying the said provision, i.e. Section 8(1)(r), prospectively, and stipulating that it shall apply only to persons who give birth to a third child or more after the 2019 Act was brought into force on 25.07.2019, would save the provision from unconstitutionality. 89. It is well settled that, with a view to save a provision from being declared unconstitutional, it may be read down. The creases may be ironed out (Entertainment Network (India) Ltd. vs. Super Cassette Industries Ltd. reported in (2008)13 SCC 30 ) to ensure that it does not fall foul of Part III of the Constitution, and, only if it cannot, to then strike down legislation (plenary or subordinate) as ultra-vires Part III of the Constitution of India. The creases may be ironed out (Entertainment Network (India) Ltd. vs. Super Cassette Industries Ltd. reported in (2008)13 SCC 30 ) to ensure that it does not fall foul of Part III of the Constitution, and, only if it cannot, to then strike down legislation (plenary or subordinate) as ultra-vires Part III of the Constitution of India. If the law is arbitrary, discriminatory and violates the fundamental rights guaranteed to the citizens of the country, then the law can either be struck down or can be read down to bring it in consonance with the Constitution of India. (Independent Thought reported in (2017)10 SCC 800 ). 90. As the Court must start with the presumption that the impugned provision is intra vires, the said provision should be read down only to save it from being declared ultra vires, if the Court finds, in a given case, that the presumption stands rebutted. (J.K. Industries Limited & another v. Union of India & others reported in (2007)13 SCC 673 ; Hindustan Zinc Limited v. Rajasthan Electricity Regulatory Commission reported in (2015)12 SCC 611 ). A provision of an Act is read down to sustain its constitutionality (Pannalal Bansilal Patil and others v. State of U.P. & others reported in (1996)2 SCC 498 ; Delhi Transport Corporation v. D.T.C. Mazdoor Congress reported in (1991) Supp. (1) SCC 600), and by separating and excluding that part of the provision which is invalid, or by interpreting the word in such a fashion as to make it constitutionally valid. (B.R. Enterprises v. State of U.P. & others reported in (1999)9 SCC 700 ). The question of reading down a provision arises if it is found that the provision is ultra vires as they stand. (Electronics Corporation of India Ltd. v. Secretary, Revenue Department, Govt. of Andhra Pradesh and Ors. reported in (1999)4 SCC 458 ). In order to save a statute or a part thereof, from being struck down, it can be suitably read down. But such reading down is not permissible where it is negatived by the express language of the statute. (C.B. Gautam v. Union of India & others reported in (1993)1 SCC 78 ). 91. An attempt should be made to make the provision of the Act workable and, if it is possible, to read down the provision. But such reading down is not permissible where it is negatived by the express language of the statute. (C.B. Gautam v. Union of India & others reported in (1993)1 SCC 78 ). 91. An attempt should be made to make the provision of the Act workable and, if it is possible, to read down the provision. (Balram Kumar Wat v. Union of India & others reported in AIR 2003 SCC 3268; ANZ Grindlays Bank Ltd. and Ors. v. Directorate of Enforcement and Ors. reported in (2004)6 SCC 531 ). If a provision can be saved by reading it down, it should be done, unless the plain words are so clear as to be in defiance of the Constitution. This interpretation springs out of the concern of Courts to salvage a legislation. Yet, in spite of this, if the impugned legislation cannot be saved the Courts shall not hesitate to strike it down. (B.R. Enterprises v. State of U.P. & others reported in (1999)9 SCC 700 ). 92. In order to sustain Section 8(1)(r), an appropriate reading down of the said provision to save it from the vice of unreasonableness and arbitrariness should be resorted to. If it is not so read down, then Section 8(1)(r) would obviously fail on the touchstone of reasonableness, and would become void and inoperative. (Hyderabad Karnataka Education Society v. Registrar of Societies and Others reported in (2000)1 SCC 566 ). Section 8(1)(r) can be read down by giving it prospective application, meaning thereby that the disqualification under the said provision can be held to apply only to those who give birth to a third child or more after 25.07.2019 when Section 8(1)(r), inserted by the 2019 Amendment to the 2016 Act, came into force. The said provision can, thereby, be saved from being declared unconstitutional. It is only by so reading down Section 8(1)(r), and applying it prospectively from the date the 2019 amendment Act came into force on 25.07.2015, can the said provision be saved from unconstitutionality. 93. We, therefore, read down Section 8(1)(r) and declare that the disqualification from contesting elections to Panchayati Raj Institution, in terms of the said provision, would apply only to cases where persons, having two children or more, have a third child or more after 25.07.2019. The said provision shall not be understood as disqualifying those who already have three or more children before 25.07.2019". 5. The said provision shall not be understood as disqualifying those who already have three or more children before 25.07.2019". 5. In the light of the aforesaid judgment, there is no contest to the same. Under these circumstances, the provisions of Section 90(1)(r) and Section 53(1)(r) of the 2016 Act, as amended by the Amendment Act, 219, is held to be valid but shall be read down as a disqualification from contesting elections to Panchayati Raj Institutions, only to those who gave birth to a third child or more after the Amendment Act, 2019 came into force namely w.e.f. 25.07.2019. 6. Petition stands disposed of accordingly.