Back
2019 Supreme(Bom) 180
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Subhash Sajesingh Gavit - Appellant
Versus
Returing Officer ZP Nandurbar and Others - Respondent
Writ Petition No. 6993, 6994 of 2008
Decided On : 28-02-2019
Sapkal V.D. Yenegure A.P., Adv., Shelke S.T., Adv., Bachate P.D., Adv.
Conflicting views on the interpretation of disqualification clauses and the need for resolution by a Larger Bench.
Headnote:
Disqualification - Maharashtra Zilla Parishad and Panchayat Samities Act - Section 16(1)(n), 16(2)(e), Village Panchayat Act - Section 14(1)(j1), Nagar Panchayats Act - Section 16(1)(k)
Fact of the Case:
The petitioners, a husband and wife, were disqualified from contesting elections for Zilla Parishad due to the number of children they had. The main issues were the date of commencement of the disqualification clause and the effect of the death of a child on the number of children procreated by a candidate.
Finding of the Court:
The court found conflicting views on the date of commencement of the disqualification clause and the effect of a child's death on the disqualification. It referred the issues to a Larger Bench for resolution.
Issues: 1. Date of commencement of the disqualification clause. 2. Effect of a child's death on the number of children for disqualification.
Ratio Decidendi: The court found conflicting views on the interpretation of the disqualification clauses and referred the issues to a Larger Bench for resolution.
Final Decision: The petitioners were permitted to contest future elections, subject to the outcome of the petitions and the law as may be laid down by a Larger Bench.
RAVINDRA V. GHUGE, J.
1. In both these petitions, the petitioners are husband and wife inter se and are aggrieved on account of their disqualification.
2. The petitioner/husband has submitted certain details as regards his personal life, birth of his children and the developments leading to the disqualification of the couple, which are as follows:-
(a) The petitioner Subhash was first married to Asha, who gave birth to three children, namely, Nisha (born on 30.3.1984), Priyanka (born on 22.9.1985) and Ankush (born on 20.10.1990).
(b) Asha died on 6.8.1994.
(c) Subhash married the second petitioner/Savita in 1996 and Savita gave birth to three children, namely, Mohini on 30.12.1997, Tanmay on 1.8.2000 and Chetan on 17.7.2002.
(d) Chetan passed away on 5.11.2003 leaving Savita with two children.
(e) Both Subhash and Savita have contested the elections for the Zilla Parishad, Nandurbar by filling in their nomination papers on 14.11.2008.
(f) Their nomination papers were rejected on 17.11.2008 on the ground that the third child was born on 17.7.2002.
(g) The appeal preferred by both the petitioners was rejected by the learned District Judge and hence, both filed these two petitions.
3. The submissions of the petitioners were considered by this Court on 27.11.2008 and placing reliance upon the provisions under the Haryana Panchayat Raj Act and the judgment delivered in Javed and others Vs. State of Haryana and others,2004 1 MhLJ 237, interim relief was refused to these petitioners on the ground that the word 'living' with reference to the children born, as found in the Haryana Panchayat Raj Act, was missing from the Maharashtra Zilla Parishad and Panchayat Samities Act, in so far as Section 16 is concerned.
4. Having heard the learned Advocates for the respective sides at length on 1.2.2019, 21.2.2019, 25.2.2019, 26.2.2019 and today, I find that two basic issues need to be dealt with in these two petitions. Firstly, as to what is the actual date of the commencement of the disqualification clause, introduced in the Maharashtra Zilla Parishad and Panchayat Samities Act, Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and Maharashtra Village Panchayats Act. Secondly, whether the clause of disqualification can be attracted, considering the number of birth of the children irrespective of the death of any of the children or whether a child who has died and is not in existence on the date of the filing of the nomination papers, will have to be excluded from the number of children procreated by the candidate.
5. The learned Advocates for the respective sides have prepared a list of the judgments being cited and the conclusions drawn in the said judgments as regards the date of the commencement of the Act introducing the disqualification clause and the effect of the death of a child on the number of children procreated by a contesting candidate.
6. Section 16(1)(n) and 16(2)(e) pursuant to the amendment introduced on 13.9.2000, which is the date of the commencement of the Act, under the Zilla Parishad Act, read as under:-
"Section 16 - Disqualifications :
(1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor --
...................................
(n) if he has more than two children.
....................................
(2) Notwithstanding anything contained in sub-section (1) --
....................................
(e) a person shall not be disqualified under clause (n) of sub-section (1) for being chosen as, or for being, a Councillor, if he is having more than two children on the date of commencement of the Bombay Village Panchayats and the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 1995 (hereinafter in this clause referred to as "the date of such commencement"), so long as the number of children he had on the date of such commencement dose not increase;
Provided that, a child or more than one child born in a single
