THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + Writ Petition Nos.23854 & 24267 of 2008 COMMON JUDGMENT % 31-12-2008 Between: Smt. Balaga Savithramma …Petitioner And Nalla Satyanarayana and others …Respondents ! Counsel for Petitioner : Smt M. Bhaskara Lakshmi ^ Counsel for Respondents : Sri Balaji for Respondents 2 and 3, Sri Taddi Nageswara Rao, for R-1 < Gist: > Head Note: ? CITATIONS: 1) 1999 (4) SCC 526 2) 2003 (8) SCC 369 3) 233 U.S. 604 (1914) THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition Nos.23854 & 24267 of 2008 COMMON JUDGMENT: These two writ petitions are filed against the common order dated 03-10-2008, passed in O.P.Nos.689 of 2007 and 217 of 2008. For the sake of convenience, the parties are referred to, as arrayed in W.P.No.23854 of 2008. Elections to the Gram Panchayat of Kannampet, Vizianagaram District were held on 29-07-2006. The petitioner and the wife of 1st respondent, by name, Bharathi, filed nominations for the office of Sarpanch. Bharathi raised an objection for the nomination of the petitioner, alleging that the latter incurred disqualification under Section 19(3) of the A.P. Panchayat Raj Act, 1994, (for short ‘the Act’). It was pleaded that the petitioner had three living children, out of whom, two were born after 31-05-1995. The objection was overruled by the Returning Officer, and the nomination of the petitioner was accepted. The petitioner secured majority of votes and she was declared elected. The 1st respondent, who is a voter in the Gram Panchayat, submitted a representation on 31-08-2006 to the Secretary of the Gram Panchayat, stating that the petitioner incurred disqualification under Section 19(3) of the Act, and requested him to take necessary steps. He also filed Election O.P.No.689 of 2007 before the Court of District Judge-cum-Authority under Section 22 of the Act, with a prayer to disqualify the petitioner. On receiving communication from the concerned authorities, on the basis of the complaint made by the 1st respondent, the petitioner also filed an application under Section 22 of the Act, with a prayer to declare that she did not incur any disqualification. The same was taken up as E.O.P.No.217 of 2008 by the District Court. The trial Court clubbed both the O.Ps and through a common judgment dated 03-10-2008, held that the petitioner incurred disqualification under Section 19(3) of the Act, and is not entitled to continue as Sarpanch. Petitioner filed W.P.No.23854 of 2008 against the said judgment. The trial Court has also recorded a finding to the effect that respondents 2 and 3 herein failed to discharge their statutory obligations and on that basis, it directed that they shall be prosecuted under Section 166 of I.P.C. W.P.No.24267 of 2008 is filed by respondents 2 and 3. Smt M.Bhaskara Lakshmi, learned counsel for the petitioner contends that though the petitioner had three living children as on the date of filing of nomination, she did not incur disqualification under Section 19(3) of the Act, in view of the fact that before 31-05-1995, the petitioner had only one son, whereas in the subsequent issue, she got twins. She contends that Section 19(3) of the Act, which is in the form of disincentive, cannot be construed in such a way, as to lead to absurd, or anomalous situations. It is also her case that the Government itself granted exemption in favour of the petitioner, in exercise of power under third proviso to Section 19(3) of the Act, and the Tribunal did not take the same into account, in spite of efforts made by the petitioner. Sri Balaji, learned counsel for respondents 2 and 3, who figured as petitioners in W.P.No.24267 of 2008, submits that soon after receiving the complaint, respondents 2 and 3 have undertaken consultations and initiated steps, and that there was no lapse on their part. He further submits that the direction issued by the trial Court for prosecution of respondents 2 and 3 is without any basis. Sri Taddi Nageswara Rao, learned counsel for the 1st respondent, submits that the admitted facts are sufficient to disqualify the petitioner under Section 19(3) of the Act. He contends that even if any extraordinary situations are present, they cannot scuttle the operation of a statutory provision. Learned counsel also submits that the trial Court has undertaken extensive discussion and recorded a clear finding not only as to the disqualification of the petitioner but also about the laxity on the part of respondents 2 and 3. He places reliance upon the judgments of the Supreme Court in K.Venkatachalam v. A.Swamickan[1] and Javed v. State of Haryana[2]. The undisputed facts are that the petitioner and the wife of the 1st respondent contested for the office of Sarpanch of Kannampet, Vizianagaram District in the elections held on 29-07-2006. It is also not in dispute that the petitioner had three living children, as on the date of filing of the nomination. Section 19 (3) of the Act attaches disqualification to any person, either for contesting an election, or continuing in an elected post, if he or she had more than two children. Proviso to sub-section (3) relieves rigor of the provision to certain extent. According to this, the birth of a child within one year from the date of commencement of the Act shall not lead to disqualification even if the number of children of an individual exceeds two. Admittedly, the petitioner is not entitled for the benefit under this proviso, because she gave birth to twins i.e. 2nd and 3rd children after expiry of one year from the commencement of the Act. If these undisputed facts, in relation to the petitioner, are correlated to sub-section (3) of the Act, the inevitable conclusion is that she had incurred disqualification. However, the peculiar situation is that before the commencement of the Act, the petitioner had only one child, and she gave birth to twins, on 31-05-1995. Therefore, it needs to be seen, as to whether the petitioner had incurred disqualification. Here itself, it needs to be mentioned that during the pendency of the O.P., filed against the petitioner, the Government passed an order in G.O.Rt.No.1151, dated 30-7-2007, in exercise of power under third proviso to Section 19(3) and exempted the petitioner from disqualification. With this development, necessity to deal with the disqualification of the petitioner may not survive. However, since an extraordinary situation, which was not contemplated by the Legislature, has arisen, it is felt that the issue be addressed. The constitution and administration of Gram Panchayats in the State of Andhra Pradesh used to be governed by the provisions of the A.P. Gram Panchayat Act, 1964. Section 19 of that Act also provided for disqualifications of various categories. The Parliament amended the Constitution of India and added Part-IX, with the objective of strengthening the Panchayat Raj system in the country. Articles 243 and 243-O were added providing for the broad frame-work of the Panchayat Raj system. Further details are required to be supplemented through the legislations of the concerned States. Section 243-F made a provision for stipulation of disqualifications. It was in this context, that the A.P. State Legislature has enacted the A.P. Panchayat Raj Act, 1994. In addition to repeating some of the disqualifications provided for under the 1964 Act, the 1994 Act added a disqualification to persons, who have more than two children. Section 19(3) reads as under: “Sec.19(3): A person having more than two children shall be disqualified for election or for continuing as member: Provided that the birth within one year from the date of commencement of the Andhra Pradesh Panchayat Raj Act, 1994 hereinafter in this section referred to as the date of such commencement, of an additional child shall not be taken into consideration for the purposes of this section: Provided further that a person having more than two children (excluding the child if any born within one year from the date of such commencement) shall not be disqualified under this section for so long as the number of children he had on the date of such commencement does not increase: Provided also that the Government; may direct that the disqualification in this section shall not apply in respect of a person for reasons to be recorded in writing”. Our country recorded phenomenal growth in the population, particularly after independence. This naturally resulted in pressure on the resources, which are available in limited scale. The State and Central Governments have evolved various schemes to curb the growth of population. Family planning operations did contribute for the control of population growth. In addition to that, psychological pressure was exerted on the citizens, by providing incentives and disincentives. Employees who have undergone family planning operations were extended the benefit of additional increments in pay scales in the Government service, and in certain public sector undertakings. The disincentives are in the form of attaching disqualifications to those, who have children beyond a stipulated number. Sub-section (3) of Section 19 falls into this category. The basis for legislations in this area is mentioned by Wolfgang Friedmannm, in his Treatise, ‘Law in a Changing Society’, as under: “…Looking further into the future, one can predict a steadily increasing involvement of public authority with family matters, reaching not only into the economic but into the more intimate personal domains. As we have seen in the discussion of recent legislative developments with regard to birth control and abortion, the alarming and accelerating rate of increase in the world population, with its attendant dangers to living standards, urban decay and the ecology of the earth, reveals a growing, national and international concern of government with family planning. The pressures are likely to become so intense that increasingly severe financial penalties for families above a certain size, and even compulsory sterilization, cannot be ruled out in the decades to come…” (See W. Friedmann’s ‘Law in a Changing Society’ Second Edition page 288) The same Jurist has pointed out the attitude of citizens, towards laws of this nature. He observed, “Contrary to many dire predictions, millions of modern families, to whom contraceptives are known and easily accessible, have preferred the joys and responsibilities of parenthood to the greater material comfort and freedom of movement of childlessness.” The task of legislating a provision in matters of this nature is by no means easy. One can hardly predict a uniform pattern, as to the number of children, that can be begotten by a married couple. It is difficult to imagine that the number of children for a couple would be the same, as the number of deliveries, or issues. While in some cases, the children, who are born, may not survive, it is not uncommon that the number of children, in a given issue, may be more than one. Instances, though rare, are not lacking, where, not only twins, but also triplets, and quadruplets were born out of the same issue. As between stipulation of issues, on the one hand, and the number of children, on the other hand; the Legislature has chosen the latter, in effect, to control the growth of population. A close look at the proviso indicates that, if a married couple had one child, as on the date of coming into force of the Act, there is no prohibition against them, for going for the second issue, in the limited context of disqualification under Section 19(3) of the Act. If a single child is born out of it, they do not incur disqualification. On the other hand, if twins are born, the disqualification gets attached to both the parents. It is very much in the control of a married couple, whether or not to go for another issue. However, there is absolutely no human control on the number of children that may be born out of a pregnancy. Law aims at governing the former and not the latter. The Legislature cannot be expected to take care of every possible situation. Human conduct and activity is so complicated, that it is incapable of being regulated or defined through a set of norms, covering all possible situations. Exceptions do always exist. Much would depend upon the manner in which the exceptions are to be dealt with. In this context, equitable construction, which, of course, is not frequently resorted to; becomes relevant. The purport of this was explained by Crawford by making reference to the observations of Lord Coke. It reads, “…By virtue of this doctrine, the letter of the law might be disregarded and its provisions extended to cases which were within the same mischief which the law undertook to remedy, even though they were not expressly included, or cases might be excepted from the statute, although covered by its terms, where they were not fairly included, on considerations of justice and reason. As is apparent from this definition, and according to Lord Coke, equitable construction may generally be divided into two kinds—expansive and contractive. By virtue of the former, a case not within the terms of the statute but within its purpose, was included in the statute. Through application of the latter, a case was excepted from the operation of the statute, even though it was covered by the express terms, by considering the case outside the purpose of the statute…” Equally important is the note of caution, sounded by the Jurist, against, having indiscriminate recourse to equitable construction. He said, “[T]here is a danger that the court may mould the law to its own notion of justice and propriety or disregard its positive mandates, on considerations of hardship or inconvenience. Obviously, there may be some difficulty in ascertaining the standard of justice and propriety back of the legislative act. And occasionally the legislature may intend to enact a law which as intended operates equitably or harshly. It is not necessarily easy to distinguish such instances from those where the legislative intention, even though not expressed, actually is intended to promote justice. Perhaps the courts should take a middle ground. If the statute violates standards of justice and propriety concerning which men agree generally, such a construction should not prevail. Similarly, if the construction is absurd, ridiculous, or viciously unjust, it should not be accepted. In those cases, where the effect is not necessarily contrary to our common concepts of right and reason, it may be desirable that something else indicate that the asserted construction does not represent the legislative intent in addition to the undesirable result, before the court departs from the literal meaning of the language of the legislature”. (See Crawford’s Interpretation of Laws pages 296, 299 & 300, 1989 reprint) The disqualification that is attached to an individual on account of his or her having more than two children, cannot be compared to the one, which arises out of the conviction in a criminal case, as provided for under sub-section (1) of Section 19. “Sec.19. Disqualification of candidates:- (1) A person who has been convicted by a Criminal Court,-- (a) for an offence under the Protection of Civil Rights Act, 1955; or (b) for an offence involving moral delinquency; shall be disqualified for election as a Member for a period of five years from the date of conviction or where he is sentenced to imprisonment while undergoing sentence and after a period of five years from the date of expiration thereof”. It may be noted that while the disqualification under Section 19(1) of the Act is against an individual, for a specified period, the one, under Section 19(3) would operate against the couple, for rest of their lives. Therefore, a cautious and careful approach is warranted, in this regard. An act, which is crime, as defined under the relevant provisions of law is generally treated alike in every legal system, though the quantum and nature of punishment may vary. Same is not the case with the measures taken to contain growth of population. Basically begetting certain number of children is not a crime. Further, in countries like India, and China, steps are taken to curb the growth of population through various mechanisms. In contrast, in countries like Japan and Germany, which are recording negative growth of population, several incentives are provided, to encourage the couple to begat more and more children. Not only service benefits, but also valuable gifts are extended to those, who beget children, exceeding two or three. In our country also, the situation may not remain the same, for long. Thus, the disqualification provided for under Section 19(3) cannot be viewed in the same manner as the one, under Section 19(1). One of the recognized methods of interpretation of statutes is to construe a provision in such a way, as to meet an unforeseen eventuality. In such a case, the Courts would neither re-enact the provision, nor water it down. It is known as beneficial interpretation, and it would only supplement the actual purport of the provision. Maxwell, has this to say about beneficial construction. “[W]here the usual meaning of the words falls short of the object of the legislature, a more extended meaning may be attributed to them, if they are fairly susceptible of it. Previous editions of this work have referred to this relaxation of strictly literal principles of interpretation as beneficial construction: and the modern cases provide many instances of the judges’ reluctance to stand upon the letter of a statute. They will not, of course, supply omissions, but where they are faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully, and a narrow meaning which carries it out less fully or not at all, they will often choose the former. Beneficial construction is a tendency, rather than a rule.” (See Maxwell on The Interpretation of Statutes –Twelfth Edition Page 92) Further, the words in a statute cannot be understood simply from the grammatical point of view. Words are used as a vehicle to convey certain meaning by an individual or an agency. Many a time, the effort would not be successful, and the language would not be able to convey the entire idea. Oliver Wendell Holmes, in one of his judgments, Gompers v. United States[3], observed, “…But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth…” At another place, the learned Judge said, “…A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and the time in which it is used…” If the matter is examined from the angle projected above, Section 19(3) of the Act has to be understood in such a way, that it saves the disqualification, where a couple had only one child before the commencement of the Act, and has given birth to twins or triplets, in the next issue. There is no valid reason as to why such an approach be not adopted in the instant case. It is to be noted that the disqualification, if attached, would remain for the rest of life. In fact, it is more vigorous than the one, incurred for committing an offence. Strong and unequivocal basis must exist for the same. In the ultimate analysis, what has accrued to the petitioner as a divine boon cannot be transformed into a temporal bane. This Court is of the view that the petitioner cannot be said to have incurred disqualification, independent of the exemption granted in her favour. The judgment of the Supreme Court in Javed’s case (2 supra) is not of any help to the 1st respondent. Provisions similar to Section 19(3) of the Act were upheld. The petitioner does not challenge the legality of that provision. The Supreme Court refused to set aside the provision on hypothetical examples, such as a person having twins or triplets. Setting aside provision is one thing and interpretation thereof, is another. The latter proceeds on the assumption that the provision is legal and valid. The trial Court found fault with the Chief Executive Officer and the District Panchayat Officer, respondents 2 and 3. It took the view that there was collusion between the petitioner, on the one hand, and respondents 2 and 3, on the other hand. The only basis on which it has drawn this inference is that, the matter is kept pending for long. It was pointed out that the 2nd respondent ought to have placed the matter before the 3rd respondent, immediately, on receiving the representation from the 1st respondent, and the latter, in turn, ought to have filed a petition before the District Court. The conclusion of the trial Court is reflected in para 21(g) of the judgment. “Para 21(g): If these types of persons are tolerated, everybody will follow the same foot-steps and finally illegal elections will be declared and continued without remedy. As the respondents 2 and 3 failed to refer the complaint to the District Court within two months, as contemplated under the Act, in the interests of justice and for the betterment of the society, these persons have to be prosecuted for the public sake”. After forming such an opinion, the Court proceeded to direct prosecution of respondents 2 and 3. This Court is of the view that the trial Court ought to have examined the scheme under Section 22 of the Act, in detail, before forming an opinion, as to conduct of respondents 2 and 3, and maintained restraint in directing the prosecution of these two officers. From a perusal of Section 22, it becomes clear that the approach to the District Court is not restricted to the District Panchayat Officer alone. That is only one of several contingencies. The section itself directs that in case a complaint as to disqualification of a member is received, and the concerned member denies it, access can be had to the District Court for adjudication by, a) the member, who is alleged to have incurred disqualification; or, b) any other party, obviously referring to the complainant and the executive authority. Further the Executive Authority can approach the Court only on a direction by the Gram Panchayat or a Commissioner. When so many contingencies are involved, there was absolutely no basis to find fault with the respondents 2 and 3, much less to direct their prosecution. For the foregoing reasons, the writ petitions are allowed, holding that where an individual does not incur disqualification, under Section 19(3) of the Act, if he or she gives birth to a single child, after the Act came into force, the mere fact that twins or triplets are born out of such an issue does bring about disqualification, under the said provision. The order dated 03-10-2008 passed in O.P.Nos.689 of 2007 and 217 of 2008, is set aside. There shall be no order as to costs. _______________________ Dt. 31-12-2008. L. NARASIMHA REDDY, J. Note: Mark L.R. copies. (B/O) KO* [1] 1999 (4) SCC 526 [2] 2003 (8) SCC 369 [3] 233 U.S. 604 (1914)