Honble ARORA, J.–Petitioner Smt. Saroj Chotiya, by this writ petition, has challenged (i) the validity of Section 26(xiv) and its proviso (e) of the Rajasthan Municipalities Act, which provide general disqualification for the person to be elected as a Member, who has more than two children; and (ii) the legality and correctness of the order dated 13-1-97 (Annexure 4) by which the petitioner was put under suspension.

(2). Petitioner Smt. Saroj Chotiya, on 28-9-95, was declared elected as a Member of the Municipal Board, Ratangarh from Ward No. 12. On 9-12-95 she gave

birth to the third child. On 30-11- 96, a notice under Section 63 of the Rajasthan Municipalities Act (for short, `the Act) was issued to the petitioner by the Deputy Secretary, Local-Self Government, by which she was asked to explain why she should not be removed from the post of the Member of the Board as she has incurred the disqualification under Section 26 of the Act by giving birth to the third child. She filed reply to this notice. After considering the petitioners reply, the petitioner was put under suspension and the matter was referred for a judicial enquiry.

(3). The petitioner challenges this Order Annexure 4 as well as the validity of Section 26(xiv) and proviso (e) of the Act on the ground that the State Government has no power to suspend the petitioner before conducting any enquiry and the suspension of the petitioner is malafide. The validity of Section 26(xiv) and proviso (e) has been challenged on the ground that this Section is violative of Articles 14 and 21 of the Constitution of India (i) being discriminatory; (ii) the amended provision is contrary to the mandate given by the Constitution; (iii) the Section is against the basic human dignity and the basic institution of marriage and human behaviour; (iv) there is no co-relation of these provisions with the object sought to be achieved; and (v) the right of equality to hold the Office has been taken away.

(4). The learned Additional Advocate General and the learned counsel for the respondent Municipal Board, on the other hand, have submitted that the amended provisions do not offend any of the provisions of the Constitution of India and they are neither discriminatory nor violative of any of the provisions of the Constitution and the right to be elected is a right created under the statute with certain limitations provided under the Act and the writ petition filed by the petitioner, therefore, deserves to be dismissed.

(5). Before examining the arguments raised by the learned counsel for the parties, it is necessary to set-out the circumstances and the social back-ground, in which these provisions were enacted.

(6). Growing population is one of the major problems which India is facing today. It assumes more importance because it has hampered the National Progress. Limited natural resources cannot meet the ever-growing number in larger proportion. It was Malthus, who, first of all, made the human race conscious about the population programme. India, amongst the developing nations, was the first to recognise the perils of unchecked population- growth and, also, the first to start the population control programme. This was the motivating factor before the Legisla- ture for enacting these provisions.

(7). Section 26(xiv) and proviso (e) of the Act were enacted by the State Legislature in order to have an effective check on the tendency of the growing population and to give a fillip to the Family National Programme. A disqualification was, therefore, introduce with certain exceptions for being elected as a Member or Chairman of the Institution of Local Self Government in the urban areas, i.e., the Municipalities. Section 26(xiv) and proviso (e), after amendment, read as :-

``Sec. 26. A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as a member of the Board :- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx x xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx x

(xiv) who has more

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