> '^ AF^ PETITIONER HIGH COURT OF CHHATTISGARH : BILASPUR WRff PETmON fC) NQ. 3027 QF 2008 Laxman Prasad Jangde, S/o Shri Dufcaiu Das, agsd about 28 years, Wo Pendri Tafab, Post Manoharpur, Tasii Lormi, Distt. Bi'aspur (CG). RESPONDENTS 2. 3. Versus State of CG, ttrough the Secretary, Department ^f Panchayat & Rural Deveiopment, Manfralay, D.K.S. Bhawan, Raipur (CG). The Director Panchayat, Mantralay, D.K.S. Bhawan, Raipur (CG). The Chief Executive Ofifeer, Janpad Panchayat, LOFRI!, Distt. Bilaspur (CG). 4. Rupesh KumarYaday,S/o Umeda, Caste Yadav, age: Not krKiwn to app!icaRt, R/o Gram Panchayat Ptendri Taiab, Tahsii Lormi, Distt. Bilaspur (CG). (Writ petition under Article 226 of the Constitution of Sndia) Singje Bench : Hon'ble Shri Satish K.Agnihofri, J. present: Shri N. Naha Roy, counsel for the petitioner. Shri Shashank Thakur, Panel Lawyer for the State/ respondents No.1 & 2. Shri Arun Sao, counsel for the respondent No.3. Shri Vinay Pandey, counsel for the respondent No.4. ORALORDER (Passed on this 22nd day of September, 2008$ With the consent pf learned counsei appearing for the parties, the oetition Is heard finaSiv. 2) Challenge in this petjtion is to the prder dated 4-6-2008 (Annexure-P/1) passed bythe Director, Panchayat, Chtettisgarh, Rai{Hir, in Appeal Case N0.150/A-89XS7-08, whereby the appeai fiied by the respondent No.4, herein, was allowed, setting aside the order ciated 13-5-2008 (Annexure-P/2) passed bytheAdditionat Collector, Bilaspur.in Panchayat Case No.75/A-89 (3)/2007-2008. 3) Theinci]sputab!efacte,innutshe!l,asprqjeetedbyttiepetittonet;,|are that the respondent No.4 was elected as Sarpanch of Gram Panchayat Pendri Taiab, Tahsil Lormi, Dtetrict Bilaspur. The petitioner made a complaint and fited an application under Section 36 of the Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (fbr short "fhe Act, ^993'), stating that the respondent No.4 is having three chiidran and the third chiid was born on 13-4-2007. Thus, the respondent No.4 is disqualiffed to hoid the office of Sarpanch under the provisions of Section 36 (1) (m) of the Act, 1993. The Additional Collector after hearing the parties held that the third child of respondent No.4 was born after the 29* day of January, 2001 i.e. on 13-4-2007 and, as such, the rsspondent No.4 became disquaiifiedand deserves to be removecr'under the provisions of the Act, 1993. Aceordingly, the post of Sarpanch of Gram Panchayat Pendri Talab, Tahsil Lormi, DistrictBitaspur, was declarecf as vacant by order dated 14-5-2008 (Annexure-P/2). 4) Being aggrieved, the respondent No.4 preferred an appeat befere the Director, Panchayat, Chhattisgarh, Raipur. By order dated 4-6-2U)8 (Annexure-P/1)the Director, Panchayat, held thatsince the disqualificadon as contained !'n Section 36 (1) (m) of the Act, 1993 was omitted t?y the Chhattisgarh Panchayat\Raj (Amendment) Act, 2008 (for short 'W?e Amendment Act, 2008") with effectfrom 23-5-2008, ftedisqualiflcab'onof rsspondent No.4 has been removed and he became entitled for holcfing frse post of Sarpanch of Gram Panchayat Pendri Talab, Tahsil Lormi, Dtstrict Bitaspur. Accordingfy, ttie order dated 14-5-2008 passed by the Additional Coilector was set asideand the appeat flled tfy the respondent No;4 was altowed. Thus, this petition. 5) Shri Roy, learned counsel appearing for the petitloner, wouid submit that the Amendment Act, 2008 came into existence with effect from 23-5-2008 without having retrospective effect. Thus, the disqualification of respondent No.4 as on the date of election and as hsld by the Addittonat Coliector by order dated 14-5-2008 cannot be set aside. 6) The Amendment Act, 2008 omitted the provisions of Section 36 (1) (m)of the Act, 1993, not with retrospeetive effect and the same woufd be applicable prospecUvely. So far as the dlspute with regard to birth ofthird child after 26th day of January, 2001 i.e. on 13-4-2007 is concerned, there was n5 dispute and the same is an admitted fact. . 7) Per contra, Shri Pandey, learnedt?ounsel appearfng for respondent No.4, woutd suhmit that the disquatification as prescribed under the provisions of Section 36 (1) (m) of the Act, 1993 was omitted by the Amendment Act, 2008, whieh came into foree with effect from 23-5-2008 !•]'• 8 w '''a^S.^*''-* and, as such, the disqualification ofrespondent No.4 stood removed. Thwe is no disqualiflcation as on date; therefore, therespondent isto.4 is entit|ed to hold the {>ost of Sarpanch of Gram Panchayat Pendri Talab, Tahsii Lormi, District Bitaspur. 8) Having heard learned counset appearing for the respectiveparties, perused the pleading& and the documents appendedthereto, it is evident thatthe petitioner was ciisquallfled on the day when he was elected as Sarpanch, beeauseSection 36 (1) (m)ofthe AcA, 1993ctearly prevides that "no person shall be etigibie io be an office-feearer pf Panchayaf who has morettian hwoSvlng chiklnen oneof whom is bom on orafterffTe 2^dayof January, 2001" Clause (m) of sub-Section (1) ofSection36oftheAct, 1993 was inserted by M.P. Act 14 of 2000, w.e.f. 26-1-2001. 9) This Courtwhile deckiingthe similar issue invoh'ed in the matter of Mahendra Budek vs. State of Chhattisgarh &i Others (W.P.C227) No.3106 of 2008), relyingon variQus ciecisions of Mon'ble Supreme Courtin the matters of Keshavan Madhava Menon vs. The State of Bombay , Jayantilat Amrathial vs. The Union of tndia^ The Stete of Jammu and Kashmir vs. Shri Tnloki Nath Khosa and others3, Sovind Das and others vs.The Income Tax Officer and anothei", Chairman, Railway Board and others vs. C.R. Rahgadhamaiah and others , Shyam Sunder and others vs. Ram Kumar and another^, S.L. Srinivasa Jiite Twine Mills (P) Ltd. Vs. Union of India and another & Sangam Spinners vs. Regiona! Provident Fund Comniiss'bner 1 , observed as under: .. ; ' . ^ ! . • ; :^ ".....thesubsequent event taiang piace or change in !aw dyring the pendeney of appea! cannot be • iooked into at the appeiiatestage, even ifthe law ; has eeased to be a good law by amendment .untess contrary intention is shCTim, the applicability of the previsions vrouid bs prospective. in th&facts of ttte case, npsuch i| intentton has been expressed in ttie Amendcnent Act,2008. Thus, the disqi.iaiificatiori eamed earlier cannot be cured or validated byths sutisequent | amendment i.e. Amendment Act, 2008. 1AIR(38)1951SC128 2 (1972) 4 SCC 174 3(1974)1SCC19 4(1976)1SCeW6 5 (199^ 6 SCC 623 8@001)8SCC24 7 (200^ 2 SCC 740 8 (2008) 1 SCC 391 ^ 4 VS3SS Gowri 10) !n the matter of Mahendra Budek (supra), review petition was fiied by the respondent No.4 therein being Review PetiUon No.42 of 2008 (Radheshyam Das vs. State of Chhattisgarh & Others), which was dismissed by this Court by order dated 15-9-2008. 11) !n view of the foregoing, the petition is allowed. The order dated 4-6-2CU8 (Annexure-P/1) passed by the Director, Panchayat, Chhattisgarh, Raipur, is hereby quashedand the order dated 14-5-2008 (Annexure-P/2) passed by the Additional Cotlector, Bilaspur.-is restored. No order asto COStS. _ vs,_« SdA1 Satish K. Agnihotri Judge