1. Heard Mr.Mehta, learned advocate for the petitioner.
2. In present petition, the petitioner has prayed, inter alia, that:-
Issue writ of certiorari or writ in the nature of certiorari and or any other appropriate writ, order or direction for quashing and setting aside the order dated 02.03.2015 passed by the District Development Officer, Banaskantha.
3. The petitioner feels aggrieved by order dated 02.03.2015, whereby the petitioner is declared disqualified, after having been elected to the post of Sarpanch.
4. The said order dated 02.03.2015 is passed in light of the provision under Sections 30(1)(m) read with 32(2) of the Gujarat Panchayat Act, 1993.
5. Learned advocate for the petitioner vehemently submitted that the impugned order is unjust, improper and arbitrary. Learned advocate for the petitioner submitted that at the time when the election was notified and at the time when the petitioner got elected to the post of Sarpanch, the petitioner did not have more than two children. He submitted that second child of the petitioner was borne in October-2007 and died in December 2009 i.e. long time before the election came to be notified and that therefore, the decision of the authority of invoking provisions under Section 30(1)(m) read with 32(2) of the Act and holding that the petitioner is disqualified in view of the provisions contained under Section 30(1)(m) is incorrect and arbitrary. Learned advocate for the petitioner submitted that since on the date of notification of election and on the date when the results were declared, the petitioner had only two children, the said provision could not have been invoked and the order passed by the competent authority is against the provisions under which the order is purportedly passed.
6. So as to appreciate the contention raised by the petitioner, it is necessary to take into account certain relevant events and the dates.
7. It is not in dispute, rather it is admitted by the petitioner, that the first child i.e Mr.Harshad was born on 28.02.2006. Thereafter, his wife gave birth to their second child i.e. Samdaben on 20.10.2007 and then his wife gave birth to a daughter Rekha on 25.09.2009. However, about three months thereafter their daughter Samdaben died on 19.12.2009 and that at the time of election he had only two children.
8. The leanred Counsel submitted that the election of Gram Panchayat, Virampur was notified somewhere in October / November,2012 and the election was held in December-2012 and the petitioner got elected to the post of Sarpanch of Virampur Gram Panchayat on 29.12.2012.
9. In this background, the petitioner claims that neither on the date of notification for election nor on the date of election and nor on the date when the results were declared and the petitioner got elected to the post of Sarpanch, the petitioner had more than two children.
10. The TDO did not accept the said submission and passed order dated 23.03.2014 and declared that the petitioner is disqualified for the post of Sarpanch.
11. The petitioner felt aggrieved by the said order and carried the said order in appeal, which came to be decided against the petitioner vide order dated 02.03.2015 passed by the District Development Officer.
12. The petitioner is aggrieved by the said order. Hence, present petition.
13. The grievance raised by the petitioner and the contention against the impugned order are unsustainable and they overlook the provision under Section 30(1)(m) read with 32(2) of the Gujarat Panchayat Act,1993 and they also overlook the object and scope of said provision. 14. In this context, it would be relevant to take into account the decision in the case of Naynaben Babubhai Hathila vs. State of Gujarat, reported in 2015(1) G.L.R. 464 In the said decision, it is observed that:-r
8. When the clause (m) is read alongwith the provisos and the explanation, it also emerges that according to the said provision the moment a child is born after the date of commencement of the Amendment Act in excess of two children (or in excess of number of children a person had the date of commencement of the Amendment Act), the said provision will be immediately attracted and the person will simultaneously and automatically incur the disqualification.
9. In view of the facts of this case and in light of Section 30(1)(m), the learned counsel for the petitioner submitted that on the relevant date i.e. in 2010 when the election was notified and when the petitioner entered her nomination to contest the election and even when she was elected in October 2010, she had only two children and that therefore, the provision under clause (m) of Section 30(1) will not be attracted and the disqualification will not get attached.
10. At first blush, particularly in light of the expression has used in the said clause (m) of section 30(1) of the Act, the submission may sound attractive, however, on reading of the provision in light of its object, it becomes clear that the provision does not admit such interpretation.
11. In view of the object of the provision and also in light of clear language of the said clause (m), there is no scope for such construction of said clause (m) of Section 30(1) of the Act and the said submission is not sustainable and cannot be accepted.
11.1 When the said provision is introduced with the object to prevent a person having more than two children to be a Member of Panchayat or the Councilor of Municipality or Municipal Corporation and for implementation of National Population Policy, the said provision has to be read in consonance with the said object and in a manner which would advance the legislative intention.
11.2 When the provision is read in light of the object with which the amendment came to be introduced, it becomes clear that the moment a child in excess of two children (or in excess of children on the cut-off date) is born, after the commencement of the amendment act, the provision would be immediately attracted and thereby the disqualification will automatically get attached to the said person.
12. It is also pertinent that the only relevant date so far as this clause (m) of Section 30(1) is concerned is the date of commencement of the amendment Act i.e. 4.8.2005. Any other date e.g. the date when election is notified or the date on which nomination is filed or the date fixed for voting etc. is neither contemplated nor relevant.
13. The provision merely provides that any person who has more than two children shall not be a member of councilor in Panchayat or Municipality or Municipal Corporation. The section does not contain other qualification and does not provide that any person who has more than two children on the date when election is notified or on the date when nomination is filed etc. Therefore, such qualification cannot be read into the provision. That would be adding words to the provision otherwise, the legislature would have appropriately qualified the provision. Plain reading of the said provision indicates that the only requirement for the provision being applicable, is birth of a child (after the commencement of the Amendment Act) in excess of two children (or in excess of the number of children on the date of the commencement of the Amendment Act).
14. Further, the said Section 30(1)(m) does not provide for or contemplate that for applicability of the said provision and for attracting the disqualification a child born (after the commencement of the Amendment Act, i.e. after 4.8.2005) should be alive at the time of election. According to the provision, the moment any child is born after the date of commencement of the Amendment Act in excess of existing two children (on the date of commencement of the Amendment Act) or in excess of the number of children the person had on the cutoff date, then, immediately the provision will be applicable and the disqualification will be automatically and immediately attracted. This aspect becomes all the more clear when the statement of objects and reasons of the Amendment Act of 2005 is taken into account.
14.1 In this context, it is pertinent that the said provision is introduced and brought in effect as a step towards implementation of National Population Policy. One of the objects of the said amendment and introduction of said clause (m) of section 30(1) of the Act is to stabilize the rapid growth of population. Another object is to prevent a person having more than two children from becoming member of local authority. For the said reason and object, the legislature considered it appropriate and necessary to make provision which would prevent a person having more than two children to be a member of the panchayat or councilor of municipality or of a municipal corporation. With the said laudable object, the clause (m) in section 30(1) came to be introduced and has been brought in force w.e.f. 4.8.2005.
14.2 The said clause (m) thus, also aims at igniting awareness, consciousness and sense of responsibility, amongst the person holding such post or desiring to get elected to such posts, to not beget more than two children and not have more than two children. Instead they should lead a life which would set an example by restricting the number of children and thereby the number of family members and contribute in implementation of the national policy.
15. True it is that untimely death of a child is very unfortunate occurrence but, it nonetheless is a fortuitous circumstance or event. However, a fortuitous circumstance cannot affect, and cannot be taken into account in, construction of a provision and/or in determining applicability of a provision.
15.1 As mentioned earlier, if, after the amendment Act came in force a child is born in excess of two children (or in excess of the number of children the person had at the time of commencement of the Amendment Act) then the moment the child in excess of two children is born the provision and prohibition will be immediately attracted and the disqualification will immediately and automatically get attached. Fortuitous circumstance cannot influence or affect the object and effect of the provision and intention of Legislation cannot be understood or determined by taking into account such fortuitous circumstance.
16. When the petitioner's submission or explanation are examined keeping in focus the object of the amendment [i.e. clause (m) of Section 30(1)] it comes out that the contentions are not sustainable and cannot be entertained.
17. Having regard to the said decision and upon examining facts of present case, it becomes clear that the orders passed by the respondent nos.1 and 2 do not suffer from any infirmity. The respondent no.1 has not committed any error in rejecting the petitioners appeal and confirming the order of first authority by holding and declaring that the petitioner is disqualified for the post of Sarpanch in view of provision under Section 30(1) read with 32(2) of the Gujarat Panchayat Act, 1992. According to the said provision when the provision is read in light of the object with which the amendment came to be introduced, it becomes clear that the moment a child in excess of two children (or in excess of children on the cut-off date) is born, after the commencement of the amendment act, the provision would be immediately attracted and thereby the disqualification will automatically get attached to the said person. As mentioned earlier, if, after the amendment Act came in force a child is born in excess of two children (or in excess of the number of children the person had at the time of commencement of the Amendment Act) then the moment the child in excess of two children is born the provision and prohibition will be immediately attracted and the disqualification will immediately and automatically get attached. Fortuitous circumstance cannot influence or affect the object and effect of the provision and intention of Legislation cannot be understood or determined by taking into account such fortuitous circumstance. Thus, the impugned orders cannot be faulted.
In this view of the matter, present petition stands rejected.