Decided on September 02,2003

Yashwant Kumar Sahu Appellant
State Of C G Respondents

Referred Judgements :-



L.C.BHADOO,J. - (1.)IN this batch of writ petitions the petitioners have challenged the constitutional validity of the provision of clause (m) of sub-section 1 of Section 36 of Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short the Adhiniyam). The relevant provisions are extracted hereunder:
"Section 36-Disqualification for being office bearer of Panchayat :- 36(1) No person shall be eligible to be an office bearer of Panchayat who * * * : (m) : has more than two living children one of whom is born on or after the 26th day of January, 2001. (2) If any person having been elected (* * *) as an office bearer of Panchayat :- (a) subsequently becomes subject to any of the disqualification mentioned in sub-section (1) and such disqualification is not removable or being removable is not removed (or becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under section 122). ***** He shall, subject to the provisions of sub-section (3), cease to be such office bearer and his office shall become vacant. (3) In every case the authority competent to decide whether a vacancy has occurred under sub-section (2) shall be Collector in respect of Gram Panchayat and Janpad Panchayat and Commissioner in respect of Jila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer :- Provided that no order shall be passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard. {4) Any person aggrieved by the decision of the Collector or Commissioner, as the case may be, under sub-section (3), may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be final."

(2.)THE Act No. 14 of 2000 was enacted with various objects based on the past experience and in view of the shortcomings noticed in the implementation of proceeding laws and also to bring the legislation in conformity with Part IX of the Constitution of India relating to 'the Panchayats' added by the seventy third amendment and the objective behind was to disqualify persons for election of Panchayats having more than two children on or after 26th day of January, 2001, the date of commencement of the Act to popularize family welfare/family planning programme. By insertion of clause (m) of sub-section 1 of section 36 of the Adhiniyam a provision has been made to disqualify a person having more than two children from holding the office of the office bearer of the Panchayat even though the Act got assent of the Governor on 9-5-2000 and published in the M.P. Gazette (extraordinary) dated 23rd May 2000. But the enforcement of the disqualification was postponement upto 26th January 2001. A person having more than two children before 26th January 2001 was not disqualified. This postponement upto 26th January 2001 was with a view to take care of any conception on or around the commencement of the Act. If a woman has conceived before the commencement of the Act then any one of such couples would not be disqualified. Though not disqualified on the date of election if any person holding any of the said offices incurs a disqualification by giving birth to a child on or after 26th January 2001 becomes subject to disqualification and is disabled from continuing to hold the office. The disability is incurred by the birth of the child which resulted in increasing the number of living children including the additional child born on or after 26th January 2001.
We have heard learned counsel for the parties.

(3.)'. Learned counsel for the parties very fairly and frankly admitted that the points raised in these writ petitions are squarely covered by the decision of the Apex Court Javed and Others Vs. State of Haryana and Others1, in which vires of similar provision of section 175(1)(q) of Haryana Panchayati Raj Act, 1994 was challenged. In the said case the Apex Court has held the provision of section 175(1)(q) to be intra vires. Provision of
1. 2003 AIR SCW 3892 section 175(1)(q) is reproduced as hereunder : "No person shall be a Sarpanch or Panch of Gram Panchayat or a member of Panchayat Samiti or Zila Parishad or continue as such who - (q) has more than two living children. Provided that a person having more than two children on or upto the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified." Therefore, if we come are the provision of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994 and Clause (m) of Sub-section 1 of Section 36 of Chhattisgarh Panchayat Raj (Sansodhan) Adhiniyam, 2000, the provision of section 175(1 )(q) is similar to the provision of clause (m) of Sub-section 1 of Section 36.

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