(SOV^ OF ^' 3 WMT PETITION N0. -517- OF2003 PETITIONER ; T .^^t;..- ..^%^" y^'^^'"'\^ ^'^•"" &.<•" ^^%^Khi S/o. Shri ?vtosha ^^ ^nil>^wanshi,ag€!ddx)ut28years, ^ '^^^^ / Sarpandi oflGiam F^ndiayat Rata^a, ^<"^'"1 / V3lasKhand ^i,ESstt.-Climntm ^>",.'*' ^ (C.G.) . (1) StateofOih^tisgsdi Tlirm^i: ^ Secri:4ary Oepartas^it of ', p&K^sfy^ .Manb-ala^ QK.S. B.alding, ], / Rfg]xr ayll.-Raipt3r(Ca) ' J :.^ (2) Collectar ES^mteri Distt.- Eaiamteri i (3) ChiefExectitiveof&csQ'Jatyad i Rancte^: gd, Elstt.- Eaiffliriari (CG) (4) Sub-Qvisioxial Qffic^r, Sonpsd P&idiay^N^i, Hstt- Elianrtari PETITION U/A 226/227 OF'THE^NSITITUTION OF INDIA FOR fSSUANCE OF A. WRIT IN TMK NATURE OF MUNDAA4U8. P^MIIBIIIQN^CEOTIORARY ETC.OR ANY: OTHER DIRECTION OR IN TH^'MATTER. ($) /' ^;^ • lvl HI6H COURT OF JUMCATURE AT BILASPUR: CHHATTIS6ARH 11 WRTLPI CON N0.463 OF 2002 ftr' * Yashwant Kumor Sahu Versus State of Chhattisgarh and onother ALOMQ wrm W.P.Nos.:- 463/2002, 523/2002. 685/2002. 873/2002. 1327/2002. 1397/2002, 1522/2002, 1630/2002, 1665/2002, 1710/2002, 1745/2002, 1788/2002. 1846/200Z. 1870/2002. 1875/2002, 1897/2002. 1912/2002. 2014/2002, 2032/2002, 2042/2002, 2048/2002, 2086/2002, 2091/2002, 2115/2002, 2139/2002. 2154/2002. 2155/2002. 2171/2002. 2231/2002. 2234/2002, 2244/2002, 2289/2002, 2364/2002, 2402/2002, 2468/2002, 2471/2002. 2472/2002. 2641/2002. 2727/2002, 2761/2002. 2762/2002, 2782/2002, 57/2003, 145/2003, 157/2003, 187/2003, 193/2003, 296/2003, 317/2003, 318/2003, 321/2003, 355/2003, 377/2003, 399/2003, 466/2003, 467/Z003, 512/2003, 517/2003, 553/2003, 554/2003, 581/2003, 617/2003, 623/2003, 628/2003, 644/2003. 645/2003, 663/2003, 711/2003, 745/2003. 770/2003, 771/2003, 1045/2003, 1083/2003, 1169/2003, 1181/2003, 1237/2003, 1394/2003. 1398/2003. 1401/2003, 1405/2003. 1407/2003, 1675/2003, 1735/2003, 1895/2003, 1958/2003, 2015/2003, 2133/2003, 2231/2003, 2303/2003. 2750/2003, 1156/2002, 1362/2002, 1400/2002. 1486/2002, 1789/2002, 1888/2002, 2027/2002, 2232/2002, 2374/2002, 2830/2002, 30/2003. 155/2003, 196/2003, 302/2003. 319/2003, 379/2003. 446/2003, 523/2003, 677/2003, 862/2003, 870/2003,1097/2003, 1194/2003, 1672/2003, 1909/2003.1965/2003, 2776/2002,2315/2002. ORDER FOR CONSI&ER^HON Sd/- J L.C.Bhadoo (.a. Judge HON'BLE THE CHIEF JUSTCCE <4- ^t^^-^ f Sd/- Chief Justice ^/>^W^JUrv-l-^ cr^Y- POST FOR'Q&^^ _^5EPTEMBER. 2003 Sd/- L.C. Bhadoo Judge @ «f 1 ^ HIGH COURT OF JUDICATURE AT BILASPUR: CHH^TTIS^RH WRFT PETmON N0.463 OF 2002 PETmONB^; Yashwant Kumar Sahu, S/o Dhaneshwar Lal Sahu, Aged about 30 years, Sarpanch of villcge Panchoyat Palod, R/o village Palod. P.0. Tekari (Julum), Abhanpur, Raipur (C.6.) Versus ReSPONDEhfTS: 1. State of Chhattisgarh, Throi^h Secretary, Deptt. of Panchayat, Mantralaya, Shostri Chowk, Raipur (C.6.) 2. Sub &ivisionol Officer (Revenue) ond Prescribed Authority, Raipur (C.©.) ALON6 WFTH W.P.Nos.:- 463/2002, 523/2002, 685/2002. 873/2002. 1327/2002. 1397/2002, 1522/2002, 1630/2002, 1665/2002. 1710/2002, 1745/2002, 1788/2002, 1846/2002, 1870/2002, 1875/2002, 1897/2002, 1912/2002. 2014/2002, 2032/2002, 2042/2002, 2048/2002. 2086/2002, 2091/2002. 2115/2002. 2139/2002, 2154/2002. 2155/2002. 2171/2002, 2231/2002, 2234/2002, 2244/2002. 2289/2002, 2364/2002, 2402/2002, 2468/2002, 2471/2002, 2472/2002, 2641/2002. 2727/2002, 2761/2002, 2762/2002, Z782/2002, 57/2003,145/2003,157/2003,187/2003, 193/2003,296/2003. 317/2003, 318/2003. 321/2003, 355/2003, 377/2003, 399/2003, 466/2003, 467/2003, 512/2003, 517/2003. 553/2003, 554/2003, 581/2003, 617/2003, 623/2003, 628/2003, 644/2003, 645/2003^ w 2 663/2003, 711/2003, 745/2003. 770/2003, 771/2003. 1045/2003. 1083/2003, 1169/2003, 1181/2003, 1237/2003, 1394/2003, 1398/2003, 1401/2003, 1405/2003, 1407/2003, 1675/2003. 1735/2003, 1895/2003. 1958/2003, 2015/2003, 2133/2003, 2231/2003. 2303/2003, 2750/2003. 1156/2002, 1362/2002, 1400/2002, 1486/2002. 1789/2002. 1888/2002, 2027/2002, 2232/2002. 2374/2002, 2830/2002. 30/2003, 155/2003. 196/2003, 302/2003, 319/2003, 379/2003. 446/2003, 523/2003. 677/2003. 862/2003, 870/2003. 1097/2003, 1194/2003, 1672/2003, 1909/2003,1965/2003,2776/2002,2315/2002. ^ <* PETTTIONERS BY: Shri Prashant Jayaswal, A.K. Prasad, Souijay S. Agrawal, Arun Kochar, Anun Shukla. Sudhir Verma, Awadh Tripathi, Shailesh Ahuja, P.P. Sahu. Kajeev Shrivastava, Anand Kumar Tiwari, R.S. Patel. A.N. Bhakta, Smt. Renu Kochar, C.R. Sahu, H. S. Patel. Manoj Paranjape. Pouikaj Jayaswal, B.L. Dembra, Anup Majumdar. Y.C. Sharma, Vipin Punjabi. R.S. Shrivastava, Sunil Sahu, Alok Bakshi, Prashcuit Mishra, ftavindra Agrawat, Malay Kumar Bhaduri, &.K. Beriwal, Parag Kotecha. Gautam Khetrapal, Prafulla Bharat, R.P. (Sandharva, P. Diwakar. Ajay Ayachi, Kishore Bhaduri. B.C). 6uru, Ku. Bhagirathi Sen, Shailendra Dubey; Advocates. RESPONDENTS BY: Shri Sunil Sinha. Additional Advocate ^eneral; Shri Sanjoy K. Agrawal. beputy Advocate General and Ranbir Singh Marhas (5ovt. Advocate, Dr. N.K. Shukla, Senior Advocate with Shri Shaitendra Shukla. Shri Umakant Singh Chandel. Alok Bakshi, INTERVENERS BY: Shri P.K.C. Tiwari, P.P. Sahu. Pankaj Agrawal, R.S. Patel, Malay Kumar Bhaduri. V.G. Tamaskar. H.B. Agrawal; Advocates B cafiuBuEauaB— ^L 3 w ^s^-^^ DlyjsiorLBench*: - Hon'bl®Shri K.H.N. Kuronaa. C.J. and Hon'ble Shrj L.C. Bhadoo. J. OR bER (Passed on/l^_September, 2003) The followina order of the Court was passed bv Justice LC.Bhadoff. - In this batch of writ petitions the petitioners have challenged the constitutional validity of the provision of clause (m) of sub section 1 of ^ Section 36 of Chhattisgarh Panchoyat Raj Avam Gram Swaraj Adhiniyam. 1993 (for short the Adhiniyam). The relevant provisions are extracted hereunder: "Section 36: bisqualification for being office bearer of Panchcxyat:- 36(1) No person shall be eligible to be an office bearer of Pcnchayat who xxx xxx xxx xxx: (m): has more than two living children one of whom is born on or after the 26th day of January 2001. ^ (2) : If ciny person having been elected (xxx xxx ) as an office bearer of Panchayat:- (a) subsequently becomes subject to any of the disqualification mentioned in sub section (1) and such disquatification is not removable or being removable is not removed ( or becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under section 122). XXX XXX XXX XXX XXX He shail, subject to the provisions of sub section (3), cease to be such office bearer and his office shall become vacant. ^ -4, (3) : In every case the authority competent to decide whether a vacouicy has occurred under sub section (2 ) shall be Coltector in respect of <3ram Panchayat and Jcuipad Panchayat and Commissioner in respect of Jila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner. as the case may be, decides that the vaccuicy has occurred, the person shat! not cecxse to be on office bearer:- Provided that no order shall be passed under this sub section against any office bearer without giving him a reasonable opportunity of being heard. (4) : any person aggrieved by the decision of the Collector or Commissioner, as the case may be, under sub section (3), may, within a pen'od of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose orders in such appeal shall be final." 2. The Act No. 14 of 2000 was enacted with various objects based on the past experience and in view of the shortcomings noticed in the implementation of proceeding laws and also to bring the legislation in conformity with Part IX of the Constitution of India relating to 'the Panchcxyats' added by the seventy third amendment and the objective behind was to disqualify persons for election of Panchoyts having more than two children on or after 26 day of January 2001, the date of commencement of the Act to popularize family welfare / family pldnning programme. By insertion of clause (m) of sub section 1 of section 36 of the Adhiniyam a provision has been made to disqualify a person having more than two children from holding the office of the office bearer of the Panchayat even though '-i3; ^. the Act got assent of the Sovernor on 9.5.2000 and published in the AA ,P. Gazette (extraordinar/) dated 23rd AAoy 2000. But the enforcement of the disqualification was postponed up to 26 January 2001. A person having more than two children before 26 January 2001 was not disqualified. This ppstponement up to 26thJanuary 2001 was with a view to take care of any conception on or around the commencement of the Act. If a woman has conceived before the commencement of the Act then any one of such couples wouid not be disqualified. Though not disqualified on the date of election if any person holding any of the said offices incurs a disqualification by giving birth to a child on or after 26 January 2001 becomes subject to disqualification and is disabted from continuing to hold the office. The di^abilit/ is incurred by the birth of the child which resulted in increasing the number of living children including the additional child born on or after 26th January 2001. 3. We have heard learned counsel for the parties. 4. Learned counsel for the parties very fairly and frankly admitted that the points raised in these writ petitions are squarely covered by the decision of the Apex Court- reported in 2003 Alk SCW 3892 Javed and Others Vs. State of Haryana and Others. in which vires of similar provision of section 175 (1) (q) of Haryana Panchayati Raj Act 1994 was challenged. In the said case the Apex Court has held the provision of section 175 (1) (q) to be intra vires. Provision of section 175 (1) (q) is reproduced as hereunder: "No person shall be a Sarpanch or Panch of Gram Pcxnchayat or a member of Panchayat Samiti or Zila Panshad or continue as such who - XXX XXXX XXXX XXXX (q) : has more than two living children. provided that a person having more thcxn two children on or upto the expir/ of one year of the commencement of this Act, shall not be deemed to be disqualified." Therefore, if we compare the provision of Section 175 (1) (q) of the Haryana Panchayati Raj Act,1994 and Clause (m) of Sub Section 1 of Section 36 of Chhattisgarh Panchayat Raj ( Sansodhan ) Adhiniyam 2000, the provision of section 175(1) (q) is similar to the provision of clause (m) of Sub section 1 of Section 36. ^ 5. In the present case, office bearer of the Panchayat who has more than two living children one of whom \s born on or after 26th January 2001 has been deciared disqualified and by adding third child the office bearer incurs disqualification. Similarly, Section 175 (1) (q) of Haryana Panchayati ftaj Act 1994 also made a provision regarding disqualification for having more than two living children from holding the offices specified in the Panchayat. 6. As far as the question raised in these writ petitions that this provision suffers from vice of arbitrariness is concerned, there is no substance in the argument because the classificatjon made has nexus with the s~ 7 object of popularizing family planning. The classification is well defined and welt perceptible. Persons having more than two living children are clearly distinguishable from persons having not more thcxn two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. One of the objects sought to be achieved by the legislation is popularizing the family welfare/family planning programme. The disqualification enacted by the provision seeks to achieve the objective by creating a\ disincentive, Therefore. the classification does not suffer from any arbitrariness. w^^ 7. One of the objects of the enactment is to popularize Family Welfare/ Family Pbnning Programme. 'TTiis is consistent with the National Population Policy. Clause (b) of Article 243 6 provides that Oram Pouichayats may be entrusted the powers to implement the schemes for economic development and social justice including Family Welfare and Women and Child ^ Development. Section 21 enumerates the functions and duties of Gram Panchayat. One of the duties is implementation of family welfare programme. The family welfare would include family planning as well. Therefore, the legislature has made a provision for making a person having more than two tiving children ineligible to hotd the post of office bearer of Pcuichayat. Such a provision would serve the purpose of the Act as mandated by the Constitution. The disqualification contained in the above Section seeks to cchieve socio-economic welfare and health care of the masses and \s cohsistent with the national population policy. Therefore, it is notviolative of the Article 14 of the Constitution nor it is discnminatory because similar^A ^^ 8 wr t«»7 provision \s not found to have been enacted for disqualifying aspirants or holders of elective or public offices in other institutions of local self- ^overnonce and also not in the State Lcgislatures and Parliament. As has been held by the Hon'ble Apex Court in the above referred judgment, under the Constitutional scheme there is a well defined legislative powers contained in Part-XI of the Constitution. The Parliament and every'State Legislature has power to make laws with respect to any of the maners.which fall within its field of legislation under Article 246 read with Seventh Schedule of the Constitution. A legislation by one of the States cannot be held to be discriminatory or suffering from the vice of hostile discrimination as against its citizens simply because the Parliament or the Legislatures of other States have not chosen to enact similar laws. Such schemes are implemented in a phased manner and it is not necessary that such policy must be implemented in one-go as the implementation in a phased manner is welcome for its receives gradual willing, acceptcince and invites lesser resistance, 8. As has been further held by the Hon'ble Apex Court that right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute, There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his coundidature for an elective office and also to provide for disqualificationsWhich would disable a person from contesting for, or holding, an elective statutory office. The Fundamental Rights are not to be read in isolation, They have to be read aiong with the Chapter on birective Principles of State Policy and the•/ '3-7: 9. ^%s^. Fundamental buties enshrined in Article 51-A. Under Article 38 the State shall strive to promote the welfare of the people and developing a social order empowered at distributive justice- social, economic and political. Article 47 provides that State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular the constitutionally downtrodden. The concept of sustainable development which emerges as a fundamental dut/ from the several clauses of Article 51-A too dictates the expansion of population being kept within reasonable bounds. It is, therefore, futile to urge that the impugned legislation disqualifying persons with more thdn two children violates right to life and liberty guaranteed under Article 21 in any of the meanings howsoever expanded the meanings moy be. -^ J, 9. Moreover, all -Hie points raised in these writ petitions have been dealt with by the Hon'ble Apex Court in the above matters, therefore, there is no need to deal with all these points again as the learned counsel for the parties have also agreed to it. Only one point was raised by Shri Awadh Tripathi dnd Shri Prashant Mishra advocates that when the office bearers of the Panchoyat were etected at that time this provision of disqualification was not in existence, therefore, after their valid election, by amending the Panchayat Act, such provision can not be inserted which disqualify them from holding the office of office bearer of Panchoyat being violative of the Constitution. But we are not convinced with the argument advanced by the advocates for the reason that the legislature has already taken care of the grievauice raised by the learned advocates. This provision has not been made^ ^ ^^ 10 ia^ ^ effective retrospectively or from the date when it was enacted/inserted or on receiying the assent of the ^ovemor i.e. 9.5.2000 and enforcement of this provision was postponed till 26th January 2001. In order to take care of a womoui if she conceived before 9-5-2000 i.e. when the Act came into existence, then cinyone of such couple would not be disqualified. Though not disqualified on the date of election if any person holding fluiy of the said offices incurs a disqualification by giving birth to a child on or after 26th JoOTuary 2001, the commencementof the Act, he becomes subject to disqualification and disabled from continuing to hold the office. 10. Therefore, challenge to constitutional validit/ of section 36 (1) (m) of the Adhiniyam fails and provision of section 36(1) ^))and^^Tare held intra vires of the Constitution. Some of these writ petitions are directly filed under Article 226 of the Constitution of India against the show cause notice issued to the petitioners under sub section 3 bf section 36 and challenged the vires of the above rules and some of the writ petitions have been filed after the decision rendered by the Collector under sub section 3 of section 36. 11. After this decision the Collector shall now proceed from the stage where their proceedings were stopped due to the stay granted by this Court and the petitioners will be entitled to appear before the authorities, represent their cases and file reply to the show cause notices issued to them. The ma^ers in which the petitioners have directly come to this Court under Articles 226 of the Constitution of India challenging the decision of the Subbu* 11 Collector without filing appeal under Section 36 (4) will be at liberty to file an appeal under sub section 4 of section 36 before the appropriate authorit/ on the factual grounds only and not on the validit/ of this provision. They will be entitled to benefit of the limitation for the time spent by them in litigating before this Court in these writ proceedings. The writ petitions are accordingly dismissed as the provisions of section 36 (1) jj% cwd^S) of the Adhiniyam are held to be intra vires. Sd/- ChiefJustice 7 Sd/- L.C. Bhadoo Judge ^ ,<