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Gujarat High Court · body

2020 DIGILAW 94 (GUJ)

Pramodbhai Arvindbhai Patel v. State of Gujarat

2020-01-17

A.G.URAIZEE

body2020
JUDGMENT : A.G. URAIZEE, J. 1. Rule. Ms. Asmita Patel, learned AGP waives service of Rule on behalf of the respondent No. 1 State, Mr. H.S. Munshaw, learned advocate waives service of Rule on behalf of the respondent Nos. 2 to 4. Though served, none appears on behalf of respondent No. 5. 2. Heard learned advocate for the petitioner, Ms. Asmita Patel, learned AGP for respondent No. 1-State, Mr. H.S. Munshaw, learned advocate for the respondent Nos. 2 to 4. With the consent of the learned advocates for the parties, the matter is taken up for final disposal as the issue lies in narrow compass. 3. The marriage of the petitioner came to solemnized with Raksikaben in 2006. Out of the said wedlock, the petitioner's wife Raksikaben gave birth to first child on 28.09.2008 namely Pritkumar. Thereafter, the petitioner's wife gave birth to second child namely Zilkumar on 18.06.2011, but he passed on 23.10.2016. Thereafter, the petitioner's wife had given birth to daughter namely Zeakumari on 18.06.2017. Thus, the petitioner has two children alive i.e. one son and one daughter. The petitioner submitted Nomination Form for contesting election of Sarpanch of Tralsa Gram Panchayat, for which the form was filled-in on 22.03.2017. Said Nomination Form was submitted on 23.03.2017 to the Election Officer and Deputy Mamlatdar, wherein the petitioner had made declaration about existing children on date of submission of nomination form. Even after the declaration of the petitioner as Sarpanch, the petitioner was having only two children namely Pritkumar, who was born on 28.09.2008 and the daughter Zeakumari was born on 18.06.2017. The respondent No. 5 made application to respondent No. 4 on 27.07.2017 for removal of the petitioner as a Sarpanch in view of the provisions under Section 30(1)(m) read with Section 32(2) of the Gujarat Panchyats Act regarding disqualification would get attracted if a Member/Sarpanch is having more than two children on the date of submission of Nomination Form or become father of more than two children after getting elected as Member and/or Sarpanch of the Panchayat. The respondent No. 3 sent a communication dated 26.07.2017 requesting the Taluka Development Officer to undertake necessary procedure. The respondent No. 3 sent a communication dated 26.07.2017 requesting the Taluka Development Officer to undertake necessary procedure. The respondent No. 4 without preparation of detailed report about the aspect of as to whether the petitioner was having three children alive on the date of submission of the Nomination form or on the date of declaration of the petitioner being elected as Sarpanch, straightway passed the order dated 13.10.2017 disqualifying the petitioner as Sarpanch. The said order is confirmed by the respondent No. 3 vide order dated 19.09.2018. Hence, present petition is filed by the petitioner. 4. Learned advocate for the petitioner submits that after the marriage of the petitioner in 2006, first child namely Pritkumar was born on 28.09.2008. Thereafter, second child named Zealkumar was born on 18.06.2011, however, on account of snake bite, he passed away on 23.10.2016. According to the submission of learned advocate for the petitioner, the wife of the petitioner gave birth to daughter namely Zeakumari on 18.06.2017. He submits that the petitioner had filled up the form for the post of Sarpanch on 22.03.2017 when only one child namely Pritkumar was alive as second child named Zealkumar had passed on 23.10.2016. He submits that the daughter who is considered to be third child was born on 18.06.12017 after the form was filled in and therefore, it cannot be said that at the time of filling up the form for contesting the election, the petitioner was having three living children. He, therefore, submits that the order dated 13.10.2017 passed by the respondent No. 4 and order dated 19.09.2018 passed by respondent No. 4, wherein the order of respondent No. 4 is confirmed, may be set aside. 5. Mr. Munshaw, learned advocate for the respondent Nos. 2, 3 and 4 has opposed this petition. Relying upon the decision in the case of Bharatbhai Dhanjibhai Modi vs. The Collector and Others, 2008 (1) GLH 772 , he submitted that subsequent birth of female child on 18.06.2017 after elected as Sarpanch would amount to third child and has rendered the petitioner disqualified from holding the post of Sarpanch. He, therefore, submits that the petition may be dismissed. 6. Section 30(1)(m) of the Gujarat Panchayat Act, 1993 reads as under: “Section 30: Disqualification of (1) no person shall be member of continue as such who:- (a)........... (b)........... (c)........... (d)........... (e)........... (f)........... (g)........... (h)........... (i)........... (j)........... (k)........... (l)........... He, therefore, submits that the petition may be dismissed. 6. Section 30(1)(m) of the Gujarat Panchayat Act, 1993 reads as under: “Section 30: Disqualification of (1) no person shall be member of continue as such who:- (a)........... (b)........... (c)........... (d)........... (e)........... (f)........... (g)........... (h)........... (i)........... (j)........... (k)........... (l)........... (m) who has more than two children.” 7. From the bear reading of the aforesaid provisions of the Act, it makes manifestly clear that a member of Panchayat incurs disqualification, if he has more two children. It is an admitted fact that after the marriage of petitioner in 2006, first child was born in 2008 and thereafter, second child was born on 18.06.2011, who unfortunately, passed away in 2016 on account of snake bite. It is thus, admitted fact that when the petitioner become a member of Panchayat, he had only one living child and on 18.06.2017, a girl child was born. Hence, in fact, the petitioner has only two living children. Therefore, considering the provisions of Section 30(1)(m), it cannot be said that the petitioner has more than two children. 8. The Division Bench of this Court in the case of Bharatbhai Dhanjibhai Modi (Supra), was called upon to consider the constitutional validity of Clause (h) of Section 11(1) of Gujarat Municipalities Act, 1963, which is par materia with Section 30(1)(m) of the Gujarat Panchayat Act. In the said case, the petitioner has challenged the show cause notice as third child was born on 16.10.2006 and thus, the petitioner had incurred disqualification. It is thus, eminently clear that the in the said case, the petitioner had three living children which had rendered him disqualified to hold the post as Municipal Councilor, whereas in the present, it is an undisputed fact that the though the female child born on 18.06.2017 was third child, but the second child born on 18.06.2011 had expired on 23.10.2016 and thereafter, the petitioner has only two living children. In view thereof, I am of the considered opinion that it cannot be said that the petitioner has three children rendered him disqualified to hold the office of Sarpanch. Authorities below have not considered the provisions of Section 30(1)(m) of the Gujarat Panchayat Act in proper perspective and therefore, the order dated 13.10.2017 passed by the respondent No. 4 and also the order dated 19.09.2018 passed by respondent No. 3 may not be sustained and quashed and set aside. Authorities below have not considered the provisions of Section 30(1)(m) of the Gujarat Panchayat Act in proper perspective and therefore, the order dated 13.10.2017 passed by the respondent No. 4 and also the order dated 19.09.2018 passed by respondent No. 3 may not be sustained and quashed and set aside. 9. For the foregoing reasons, the petition succeeds and is hereby allowed. Rule is made absolute. Civil Application No. 1 of 2020: 10. In view of the order passed in main petition, the Civil Application does not survive and same is hereby disposed of. 11. Ms. Shruti Pathak, learned advocate seeks permission to file her Vakalatnama on behalf of the respondent No. 6. This permitted to file her Vakalatnama for respondent No. 6. Registry is directed to accept her Vakalatnama. Direct service today permitted.