1. Disqualification of an elected Sarpanch for having more than two children under Section 25(1)(v) of the Orissa Gram Panchayats Act, 1965. (Para 2 , 4 )
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2018 Supreme(SC) 1618
SUPREME COURT OF INDIA
Ranjan Gogoi, CJI., Sanjay Kishan Kaul, K.M. Joseph, JJ.
Minasingh Majhi - Appellant
Versus
Collector, Nuapada - Respondent
Civil Appeal Nos. 6525 of 2010
Decided On : 24-10-2018
Advocates Appeared:
Puneet Jain, Abhinav Gupta, Harsh Jain, Ms. Pratibha Jain, Advocates., for the Appellants; Sibo Sankar Mishra, Radha Shyam Jena, Advocates., for the Respondents
Puneet Jain, Abhinav Gupta, Harsh Jain, Ms. Pratibha Jain, Advocates., for the Appellants; Sibo Sankar Mishra, Radha Shyam Jena, Advocates., for the Respondents
Important Points
The legislative intent of Section 25(1)(v) of the Orissa Gram Panchayats Act, 1965 is to restrict the number of children a prospective elected member of the Gram Panchayat should have, emphasizing the number of children born to the person rather than whether children born to such a person can be excluded from the family under different statutes.
Subject
Administrative Law - Local Government Law
Act Referred
Headnote
Disqualification - Sarpanch - Interpretation of Section 25(1)(v) of the Orissa Gram Panchayats Act, 1965
Fact of the Case:
The appellant, an elected Sarpanch, was disqualified for having a third child after becoming a Sarpanch, which was deemed to attract disqualification under Section 25(1)(v) read with sub-Section (2) of the Orissa Gram Panchayats Act, 1965.
Finding of the Court:
The court found that the legislative intent of Section 25(1)(v) was to restrict the number of children a prospective elected member of the Gram Panchayat should have, emphasizing the number of children born to the person rather than whether children born to such a person can be excluded from the family under different statutes.
Issues: Interpretation of Section 25(1)(v) of the Orissa Gram Panchayats Act, 1965 and the applicability of the provisions of the Hindu Adoptions and Maintenance Act, 1956 to the case of the appellant.
Ratio Decidendi: The court held that the legislative intent of Section 25(1)(v) was to restrict the number of children a prospective elected member of the Gram Panchayat should have, and the provisions of the Hindu Adoptions and Maintenance Act, 1956 did not apply to the case of the appellant.
Final Decision: The appeal was dismissed, and no costs were awarded.
Legal Category Hierarchy
Table of Contents
2. Whether a child given in adoption under the Hindu Adoptions and Maintenance Act, 1956, is excluded from the count of children for disqualification purposes. (Para 4 )
3. The legislative intent emphasizes the number of children born to the member rather than their legal family status under other statutes. (Para 6 , 7 )
4. Disqualification for exceeding the child limit is based on the number of children begotten, irrespective of subsequent adoption or legal exclusion from the family. (Para 6 )
5. Appeal dismissed and the disqualification of the elected Sarpanch upheld. (Para 8 , 9 )
6. Does the adoption of a child exclude that child from the count for disqualification under the Orissa Gram Panchayats Act, 1965?
No. The legislative intent is to restrict the number of children a prospective elected member has given birth to, regardless of whether the child is excluded from the family under other statutes such as the Hindu Adoptions and Maintenance Act, 1956. (Para 6 )
7. Does the Hindu Adoptions and Maintenance Act, 1956, apply to members of Scheduled Tribes?
No, Section 2(2) of the Hindu Adoptions and Maintenance Act, 1956, specifically makes the provisions of the Act inapplicable to members of the Scheduled Tribes. (Para 7 )
ORDER
1. We have heard the learned counsels for the parties and perused the relevant material.
2. The challenge in the present appeal is to an order of the High Court of Orissa by which the appellant an elected Sarpanch has been disqualified on the ground that after he had become a Sarpanch, he had begotten a third child which attracts disqualification under Section 25(1) (v) read with sub-Section (2) of the Orissa Gram Panchayats Act, 1965 (for short, 'the Orissa Act').
3. The provisions contained in Section 25(1) (v) and (2) are set out hereunder for a clear understanding of the issues arising in the case.
"Disqualification for membership of Grama Panchavat . - (1) A person shall be disqualified for being elected or nominated as, a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he-
(a) to (u) xxx xxx xxx
(v) has more than two children :
Provided that the disqualification under Clause (v) shall not apply to any person who has more than two children on the date of commencement of the Orissa Grama Panchayats (Amendment) Act, 1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year.
(2) A Sarpanch or any other member of a Grama Panchayat shall be disqualified to continue and shall cease to be a member if he-
(a) Incurs any of the disqualifications specified in Clauses (a) to (j) [Clauses (m) to (p) and Clauses (t) to (v)] of Sub-section (1) ; or
(b) Has failed to attend three consecutive ordinary meetings held during a period of four months commencing with effect from the date of the last meeting which he has failed to attend; or
(c) Being a legal practitioner appears or acts as such against the Grama Sasan; or
(d) Being a member of a Co-operative Society has failed to pay any arrears of any kind accrued due by him to such society within six months after a notice in this behalf has been served upon him by the society."
4. The facts need not detain the Court. The appellant had two children born to him on 06.09.1995 and 12.10.1998 respectively. He had filed his nomination and was elected in February, 2002. A third child was born to the appellant on 03.08.2002. The first child was given in adoption way back on 10.09.1999. The contention, therefore, is that the first child having been given in adoption, by virtue of provisions of Section 12 of the Hindu Adoptions and Maintenance Act, 1956, (for short, 'the 1956 Act'), the said child ceased to be a member of the appellant's family and had become a member of the family of the adoptive parents. It is accordingly contended that though the appellant was the biological father of three children in reality he is the father of two and therefore there is no infringement of the provisions of the Orissa Act so as to attract any disqualification.
5. We are unable to agree with the contentions advanced by the learned counsel for the appellant.
6. Reading the provisions of Section 25(1) (v) and (2) of the Orissa Act, we are left with no doubt that the legislative intent is to restrict the number of children that a prospective elected member of the Gram Panchayat should have. The legislative emphasis is on the number of children that a prospective elected member has given birth to and not whether under provisions of different statutes in force, including the Hindu Adoptions and Maintenance Act, 1956, children born to such a person can be excluded from the family of the prospective elected member.
7. We may also take note of the contention advanced by the learned counsel for the appellant in the light of the provisions contained in Section 2(2) of the 1956 Act, which makes the provisions of the said Act inapplicable to the Members of the Scheduled Tribes to which category the appellant belongs. There has been no challenge to the provisions of Section 2(2) of the 1956 Act before the High Court or even before this Court. We will, therefore, proceed on the basis that the prov
