HIGH COURT OF JUDI¢ATURE AT BILASPUR (96,) WRIT PETITION NO.2684 OF 2003 Dhansay Versus Sm‘re of Chhaffisgarh & ano‘l’her AND WRIT PETITION NO.2685 OF 2093 Firanfeen Bai Versus S'rwe of Chhaffisgarh & ana‘rher AND WRIT PETITION NO.2686 OF 2003 Pukmm Versus Sm‘re of Chha‘rfisgarh & ano‘l’her POST FOR ORDER ON 6’“ September, 2003 Sd/— L.C.BHADOO A ' Judge #7; Sepfember 2003 HIGH COURT OF JUDICATURE AT BILASPUR (CG) /13 Dhansay, 5/0 Mohif Ram Sahu, Aged abou‘r 42 y‘eors, Upsar-panch, 6mm Panchnya‘r Paraskol, Teh. Surangarh, Dist‘r. Raigarh (C.6.) Versus RESPONDENTS: 1) Sfa'te of Chhcm'isgarh Through: The Secretary, Panchayaf Deparmen‘r, D.K.5. Building, Rcipur, Disft. Raipur (C.6.) 2) The Collecfor, kaigarh, Dis‘n. Raigurh (C.G.) AND WRIT PETITION NO.2685 OF 2003 Fimnfeen Bai, W/o Pukmm, Aged abouT 35 years, Sarpnnch, 6mm Panchuyaf Paraskoi, Teh. Sarangarh, Disft. Raigarh (C.6.) Versus RESPONDENTS: 1) StaTe of Chhaffisgarh Through: The Secretary, Panchayaf Department D.K.S. Building, Rnipur, Dis'r‘r. Raipur (C.G.) 2) The Collecfor, Raigarh, Dis‘rf. Raigarh (C.G.) AND WRIT PETITION NO.2686 OF 2W3 PETITIONER: Pukram, S/o Naraynn Summi, Aged abouf 38 years, Punch, Gram Panchayn'r Paraskol, Teh. Sarangarh, Disff. Raigarh (6.6.) Mr. Sun“ Sinha, Additionai Advocan 6enera! wifh Mr. Sanjay K. Agrawai, Dy. Advacafe Eeneral and Mr. Ronbir Singh Marhos, Govt Advoca‘ra: Mr. Rqjeev 5hrivasfcva: Mr. Prasharrt Mishra: Mr. Manindra Shrivas‘l'ava; Mr. Yashwanf Tiwari & Mr. H.B. Agrawal, Advocates: Appw as Amicus Curiae For ‘rhe Swfe/respondenfs Bcfore: Hon'ble Shri LC. Ehqdoo, .T 9RDER (Passed on égé \Sep'tember, 2003) 1. These ‘rhree wri'r pai'rions namely, W.P.Nos.2684/2003, 2685/2003 and 2686/2003 are being disposed of by 'rhis common order beams: a common quesfion of law is involved in fhesz pe'm'ions. 2. By this wrii' pe'rifion (W.P.No.2684/2003) under Arficie 226/227 of fhe Consii‘rufion of India, the pe'l'i'rioner has quesfioned The action of respondent No.2 (The Collector, Roignrh) by which the Collecior has issued show cause no‘rice fo the pefi'l'ioner under Secfion 36 (3) of The Chha‘rtisgarh Panchaya'l' Raj Adhiniyam, 1993 (hereinafter referred ‘i'o as ‘fhe Adhiniyarn’). The Collec'l'or has sen? ihis notice fo the pe‘riiioner on the ground iha‘i the petitidner has three living children out of which one child is born after 26"“ January 2001 hy which he has incurred disqualification to continue to hold Office of the Panchayat. T Versus RESPONDENTS: 1) 51m: of Chha'rfisgarh Through: The Secremry, Panchnya‘r Deparfmeni', D.l(.5. Building, Raipur, DIS'H'. Ruipur (C.6.) 2) The ColIeC'ror, Raigarh, Disf‘r. Raignrh (5.6.) Presenf: - Mr. Awadh Tripafhi, Advocafe: For the petitioners @ 3. The pefi‘rioner’s case is fhaf he was duly elec‘red Punch of Ward No.1 of 6mm Panchaya'r, Paraskoi, from the genemi sea? and ‘rhereaffer, he was eleded as Upsarpanch of the some 6mm Pcnchnyaf. The pefifioner- was already having two children Le. om son and one duughfer, and one more daughfer nameiy, Kum. Kimn Boi was born as 'rhird child on 03.12.2002. The pefifioner was elected in fhe year 2000 and on fhe date of elecfion, he was nof disqualified under *he provisions of fhe Adhiniyam, bu‘l' lafer on by amending 'rhe Adhiniyam, clause (m) of Section 36 (1) was inserted in 1he Adhiniyam. Clause (m) restricts the number of childrenwhioh a person can have and if a third child is born after 26” January, 2001, then the office bearer of the Panchayai is disqualified to continue to hold the Office. According to the petitioner, after formation of the State of Chhattisgarh on 1“ November, 2000, the State of Chhattisgarh adapted the M.P. Panchaya't Raj Adhiniyam, 1993. But this provision of clause (m) of Section 36 of the Adhiniyam came into force on 26“ January, 2001, whereas the M.P. Panchayat Raj Adhiniyam, 1993, which was in force as on 01.113000, was adapted vide notification dated 28*“ October, 2002 and clause (m) of sub-section (1) of Section 36 came into force on 26.01.2001 as per sub-section (2) of Section 1 of the Madhya Pradesh Panchayat Raj (Sanshodhan) Adhiniyam, 2000. Therefore, this clause was not in force on the date when the Adhiniyam was adapted by the State of Chhattisgarh. Unless this clause is adapted by the State of Chhattisgarh, this provision cannot be pressed into service to disqualify the petitioner from the post of Upsarpanch of Panchayat. Therefore, show cause notice dated 08.08.2003 of the Collector, Raigarh, be quashed as the basis of the notice is amended provision clause (m) of sub-section (1) of Section 36 of the Adhiniyam which is not applicable. l a 4. Mr. Sunil Sinha, the Additional Advocate General had taken notice on behalf of the State/respondents. The learned counsel for the petitioner and the learned Additional Advocate General were heard or/ admission. As this quesfion has been raised for The firsf time before 'rhis Cour-1', Therefare some of 1he Advocufes also offered fo assist me Cour-f and accordingly, Mr. Rajeev Shrivasmva, Mr. Prashon'l’ Mishra, Mr. Manindm 5h rivas‘mva, Mr. Yoshwam' Tiwuri & Mr. H.B. Agrowal also addressed fhe Cour-i in order To arrive a‘r a jus‘l’ decision of The case. 5. Mr. Rqjeev Shrivastava. Mr. Awadh Tripafhi, Mr. Prashwrr Mid'lra, Mr. Yashwonf Tiwari é Mr. H.B. Agrawol, Advocafes submitted that clause (m) of sub—section 1 of Section 36 of the Adhiniyam was inserted by way of amendment in the Adhiniyam which received the assent of the Governor of the State of M.P. on 9’“ May, 2000 and published in the extra-ordinary ga7rtte on 23“ May, 2000. However, sub-section (2) of Section 1 of the amended Act provides that it diall come into force on the 26*“ day of January 2001. Adhiniyam, 1993 was adapted by the State of Chhattisgarh under section 79 of the Madhya Pradesh Reorganization Act, 2000, and at that time this newly inserted provision was not in force and the Adaptation of Laws Order, 2002, says that “the Laws as amended from time to time, specified in the Schedule to this order which were in force in the State of Madhya Pradesh immediately before the formation of the State of y Chhattisgarh, are hereby extended to and shall be in force in the State of Chhattisgarh". Therefore, only those provisions of the Adhiniyam were adapfed which were in force on the day of the 1“ November, 2000 and this amended provision was not in force. Therefore, this amended clause (m) was not adapted by this order and after 26*“ January, 2001, this clause hassnot been adapted by the State of Chhattisgarh, as such, it cannot be pressed into service by the State in order to disqualify the office bearers of the Panchayats on account of having three living children, one of them is born after 26*” January, 2001. 4 6. In this connection, Mr. Rajeev Shrivastava relied upon the cases of The ‘ Chief Commissioner. Union Territory. Chandigarh vs. Siolkot Silk Sfons, Chandigarh reporfed in AIR 1979 SC 435: M/s. Punjab Tin Supply 60.. Chandigarh en. em, vs. Central Gunman? & ofhcrs reporfed in AIR 1984 SC 87; The Sfa‘l'c cf Orissa vs. Chandrasekhar Singh Bhoi, eta, repon‘ed in Am 1970 5C 398; and K. Manickchand & others vs. Elias Salah Mohamd San & ofhar's reporfed in AIR 1969 SC 751. He furfher argued fhal Madhya Pmdesh General Clauses Act 1957, defines The word “commencement" as used with reference fo a Madhya Pradesh Act, means The day on which The enacimenf comes in‘ro force. Seclion 3 of the Madhya Pradesh General Clauses Act, 1957, lays down 111a? “where any Madhya Pradesh Ac? is nof expressed f0 come info operation on a particular day, then, it shall come into force if it is an Act of the Legislature, on the day on which the assent thereto of the Governor, or the President, as the case may‘ require, is first published in the Official Gazette". Since specific date has hem mentioned for sub-section (2) of Section 1 of the amended Adhiniyam that this provision will come into force from 26*" day of January, 2001, on the day of the adaptation it was not in force and the adaptation order says that only those acts are adapted which are in force on the day of the formation of the State, as such, this provision is not attracted in the case of the petitioner. . On the other hand, the learned Additional Advocate General argued that Section 79 of the M.P. Reorganization Act, 2000, lays down that any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law. In this connection, he placed reliance on Section 2 (f) of the M.P. Reorganization Act, 2000 and also on Articles 13, 366 (10) and 372 of the Constitution of India ' and argued that the laws which were in existence on the day when the State of Chhattisgarh came into existence were adapted by Adaptation I e Order dated 28m October, 2002, whether the same were in force or ‘ not it makes no difference. In other words, all the existing laws were i adapted. As such clause (m) of sub-section (1) of Section 36 of fhe Adhiniyam was in exisfenoe on 9*” May, 2000, when The Governor of Madhya Pradesh gave his assent Since fhis law was in existence on 1" November 2000, the same was adapted and ‘rhe Collector has righ‘lly pressed info service the above provision. The learned Addil'ional Advocale General relied upon 'rhe oases of Fazru & mfher vs. Sfa‘l'e of Haryana & ofhers reporfed in AIR 1998 Punjab & Haryana 133 and Sam Ram di ofhers vs. lnhh singh & another repor‘red in AIR 1965 5C 314. . Mr. Manindra Shrivaslava, Advoca'le, supported the submissions made by Mr. Sunil Sinha, Additional Advocate General. Mr. Yashwant Tiwari: Mr. H.B. Agrawal: and Mr. Prashant Mishra, Advocates, supported the arguments advanced by Mr. Rajeev Shrivastava, Advocate. In order to appreciate the arguments advanced by respective counsel, it will be beneficial to reproduce all the reievant provisions concerning this matter. (i) Sections 2 (f) d1 79 of the M.P. Reorganization Act, 2000, reads thus, Section 2 (f): "law” inchdes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other Instrumenfhaw‘ng, inimediafeér before fhe qapoinfed do}, the force of law in the who/e or in any part of the existing Stat ofMaahya Pradesh. Section 79: Power to adapt laws --- For the purpose of facilitating the ¢plication in relation to the State of Madhya Praded1 or Chhattisgarh of any low made before the appointed day, the qopropriate aovernntent may, before the ewiration of two years from that day by order make wch adqotatlons and modifications of the kw whether by my of repeal or amendment as may be‘ necessary or emed/ent, and thereLpon every std: kw dial/i @ have effecf wbjecf fa fire adw fafians and madificafians so made unfi/ a/fered, repealed or amendedby a campefenf legis/afure or afher campeienf aufharify. (ii) Secfions 1 & 2 of fhe Madhyu Pradesh Panchayaf Raj (Sanshodhan) Adhiniyum, 2000, reads 'rhus, 1. Short fir/e ---- (I) This Acf may be ca/Ied ifie Madhya Prade¢ Panchayaf Raj (Sandmd/Ian) Adhiniyam, 2000. (2) If aha/l come info force on file 26M day of January, 2001. 2. Amendmanf of sccfion 36 -——- In sub—sedion (I) of Secffon 36 of fbe Mad/yya Pma’esh Pandrayaf Ra} Adblhlya, 1993 WoJ of 1994), offer c/ause (I), Me foi/awing c/aux dia/Ibe irlgrfed, namely:- "(rn) has more fhan fwo liwhg dn‘ldren one of whom is born an or offer fhe 26’” ahy ofJanuary, 2001. " (iii) The adapfa‘l'ion order dated 28*“ Oc‘i'ober, 2002, reads Thus, 1. (I) 777:3 order may be cal/ed five Adapfarion of Laws Order, 2002. (2) If a‘m/l come info force in fhe who/e 5mm of Chhaffisgarh on 1" day ofNovember, 2000. 2. 7he Laws as amenoed 00m fime fo f7‘me, mcified in fhe Schedu/e fo fhrls oroer whidl were in force in fbe 5fof'e of Madhya Pradesh immediafe/y before ffre formafion of fhe Sfafe of (hhaff/Zsgarh, are hereby exfended fo and sha/I be at force in fhe 5fafe of €hhaffiW, unfIY repea/ed or amended Subjecf' fo fhe modificafion fhaf In fhe laws for fhe words "Madhya Pradedf’ wherever fhey f ‘ occur fhe word “Chhaffllsyarh ”shall bewbsfifufed. @ . (iv) Arficle 13 (3) (a): Article 13 (3) (b): Ar?icle 366 (10) and Arficle 372 (1) & Explana'rion—I of fhe Consmufion af India reads Thus, Arficle 13 (3) (a):- "law” inc/nabs any Ordinance, order, bye-law, rule, regu/afian, nofificurian, cusfom 0r usage having in #13 ferrifary aflndia fhe force of laW: Article 13 (3) (b):- "laws in farce“ includes law: passed or made by a Lay's/am or afher campeienf aufhariW in ihe ferrimry of India before fire cammencemenf of #112; (ansfifufion and nof previous/y repealed, nafwifhsfandiry rhar any such low or any par? thereof may nor be rhea In aperarian eifher of all or In particular areas. ArTicle 366 (10):- “exisfiry law" mum my 10W, Wimce. order. bye~law. rule or regu/oflan passed or made before flue commencemenf of fill: Cmsrirufion by any Legis/amre‘ aufnoriiy or person haying power fo make each a law, Ordinance, order, bye-law, rule or regulafian. Arficle 372 (1):- Nomifhsfanding #Ie repeal by fnis Consf/‘fufian of fhe enacfmenfs referred fa in Arfic/e 395 buf wbjecf fo ine orlrer provisions of fnis Consiifurion. al/ flle laws In farce in fhe ferrifory of India immediaien/ before f/Ie commencemenf of ifu’s Consfimfion $a/I confinue in force fherein unfi/ a/fered or repealed or ’\, amended by a compefenf Legis/afure or oiner campefenf aufhoriiy. Explanation-71% 77m expression "law in fame” in fhis arricle shall Include a law passed or made by a Legis/afure or orher compefenr aufharify in fire ferr/rory of Ind/o before fhe commencemenf of rhis Consfiiufion and nor previousé/ repealed, natwifhsiandzhg fhaf if orparfs of if may nor be fhen in operafion eifher of I/ l / all or in parficular areas. 9. Now, if we look into the above provisions of law, clause (m) of sub- section (1) was inserfed in Section 36 of fhe Adhiniyam and fhe same received fhe assent of fhe Governor on 09.05.2003 and ‘rhereaffer, if was published in the official gazefre on 23“ May, 2000. Therefore, .this amended provision was inserted and came into existence on 9*“ May, 2000 as per- Secfion 3 of The M.P. 6enerai Clauses Act, 1957. Sub-section 2 of ‘rhis inserted provision says fha‘l if shall come info force on 'l’he 26’” day of January, 2001, whereas Secfion 2 (f) of The M.P. Reorganizafion Act, 2000, says, “law” includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Madhya Pradesh. Section 79 of the M.P. Reorganization Act, 2000, which provides for adaptation of the existing laws of the State of M.P. by the newly created State of Chhattisgarh, lays down that for the purpose of facilitating the application in relation to the State of Madhya Pradesh 'or Chhattisgarh of any law made before file appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law. Therefore, in view of this provision the law in question was already made and it became law on 9m May, 2000 when the Governor of Madhya Pradesh gavehis assent. Therefore, by the adaptation order dated 28’“ October, 2002, all the existing laws were adapted and the Adhiniyam was also adapted in view of the provisions of Section 79 of the M.P. Reorganization Act, 2000. It is true that words “in force in the state" have been used in the adaptation order, but as per the enabling Section 79 under which this adaptation order was passed provides that all the law made before the appointed day (01.11.2000) Le. on the day of the reorganization of the State of Chhattisgarh was within the competence'to adapt all laws which were made by the State of M.P., in other words which were already in existence as on 01.11.2000 irrespective of the fact whether they were in force on that day or not. ‘c- _\ ,x’t / / / / / q,wummm... r n .z @ 10 Therefore, fhe 51mg also adapfed fhis newly inserfed provision in 1he Adhiniyam dong wifh the Adhiniyam. The newly inserfed clause (m) of sub-Semen 1 of Secfion 36 was already inser'red in fhe Adhiniyam on 9*“ May, 2000 and by fhe adapfafion order, fhe whole Adhiniyam was udapfed. Therefore, from fhe‘da‘re of adapfqfion Le. 1* November, 2000, fhe newly inserfed provision was also deemed To have been adop fed. 10.In fhis connecfion, if we look at clauses (o) & (b) of sub-Article 3 of Ar'ricle 13 of The Consfifufion of India, clause (a) provides fhaf “law" includes any Ordinance, order, bye-law, rule, regula‘rion, no‘lifica'l’ion and clause (b) specifically lays down fhaf ‘l'aws in farce” Inc/noes laws passed or made by a Legislafwe or ciner campefenf aufhoriiy in, f/Ie ferrifary of Ind/a oefore Me commencemenf of ibis Consfifufion. Clau5e (b) fur‘lher clarifies 111a? noM/ffrsfand/hg f/mf any sud: /aw or parf fbereofmay ”of be #ien in operafion el'fher of ol/ or in parficw/ar areas. Similarly, Arficle 366 (10) defines “exis'r/hg /aw"meons any kw, Ordinance, order, bye-law, ruk or regu/afion paswd or made before rile commencemenf of #n's Consfih/fion byanytegls/aime. Article 372 (1) lays down iha'l’ all 'lhe laws in force in ‘rhe territory of India immedia'rely before fhe commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competenf Legislature. Explanation-I clarifies that the expression ‘Vau/ _ in force” in #n's article din/l include a law passed or made by a Leg/sbfure or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, nofw/Msfandlhg fiyaf ff or parts of if may nor be fflen in operation either aid/or inparficu/ar areas. Therefore, on the reading l l of the above provisions and with the help of the above Articles of the means and includes all the existing laws or laws made whether in fact Constitution of India, there can be no two opinions that “law in force" l l l they were in operation or not as the intention behind the adaptatiory/ rV/W l, ‘17 ll order was To adap‘l' all fher exisfing law made. There is no difference be'rween fhe expressions “existing law" and “law in force ll . 11. I am fortified in my opinion by fhe judgmenf in 1he case of Fazru & anofher (supra) The Punjab & Haryona High Cour'l' passed the order relying upon the decision of Hon'ble the Supreme Court passed in the oase of Sent Ram & others (sipm) in which the Supreme Court held that “the definition of the term “law" must be read with the first clause. If the definition of the phrase “laws in force" had not been given, it is quite clear that definition of the word “law" would have been read with the first clause. The question is whether by defining the composite phrase “laws in force" the intention is to exclude the first definition. The definition of the phrase “laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statue book, were included in the phrase “law in force“. But the second definition does not in any way restrict the ambit of the word “law” in the first clause as extended by the definition of that word. It mereiy seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression all laws In force Firstly to hold otherwise would restrict the operation of the / first clause in such wise that none of the things mentioned @ y i i A newts. 12 in * fir-sf definition would be affected by fhe fundamenfai rights. Secondly, it is fo be een Thu? fhe second clae speaks of “laws" made y the Stole and cufom or usage is not made by the State." 12.Apart from that if we go behind the objetive of inserting the provisn, clause (m) o sub-section (1) of Section 36 of the Ahiniyam, it was to encoura the movement of family planni and why sub- secon (2) o Secon 1 was inserte the idea behind was that in order to der nd postpone the application of enforcement of this law with a view to take care f any conception on or around the commencement of the Act, the normal period of gestation being nine months. If a woman has conceived at the commencement of the Act then any one of sich coules would not disqualified. Though not disqualified on the date of election if an pers holding any of the said offices incurs a disualification by giving birth to a child one year after the cmmencement of the Act he becomes subject to disqualification and is disable from contining to hold the ofice. The disability is incurred by the birth of a chid which results in increasing the nuber of livig cildren, including the additional child born one year after the commencement o he Acti Therefore, in fact, this inerted provisions came ito force from t date of the provisions received e assent of the Governor i.e. 9*” May, 2000, but this was deferred up to 26'“ January, 2001, to take care of those persons, if any conception on or around the commencement of the Act takes place. If a woman has conceived at the commencement of the Act then any one such couple would not be disqualified. In other words, this was deferred for a certain period, but in fact the inserted provision came into force on the date the Act received the assent of the Governor. 13. Therefore, in view of the above discussion, I do not find force in the arguments of Mr. Awadh Tripathi, Mr. Rajeev Shrivastava, Mr. Pradmnt - Mishra, Mr. Vashwant Tiwari and Mr. H.B. Agarwal. As far as the he s us b s c io f d ge ng ti f ti d, fe a o p be y on q o u f l m n h f t s n he th 13 judgmenf ci'red by Mr. Rajeev Shrivasfava, in The case of The Chizf Commissiomr, Union Tcrri‘l'ory, Chandigarh (saprajis concerned, if is of no help ‘ro The pefi'rioner in fhe present case, because in Tha'l' case, The Cour? held 'l'ha'r before par'fifion The State of Punjab issued a nofifica‘iion giving ‘i’hree months' nofioe under Sec‘iion 6 of the Sales Tax Acf wi'i'h fhe infen'iion To amend iTem 30 of Schedule-B To exclude pure silken fabrics from The lisT of Tax free goods. Meanwhile, The Union TerriTory of Chhandigarh came inTo exisTenoe before The expiry of Three monThs menTioned in The noTifioaTion could noT impose Tax on pure silken fabrics by availing of The said noTificaTion under SecTion 88 of The ReorganizaTion AcT because The said noTificaTion was noT considered To be a 'law in force' as conTemplaTed by SecTion 88 unTil and unless on The expiry of The period of Three monThs a second noTificaTion was issued amending The Schedule. The noTificaTion issued by The STaTe of Punjab was only for Three monThs and on The expiry of ThaT period, The second noTificaTion was noT issued. The Cour‘i' held ThaT The noTificaTion was noT issued ThaT is why iT is noT in ’force. Therefore, The ph rose “in force" was used in differenT conTexT. 14. As far as The decision in The case of M/s. Punjab Tin Supply co., Chandigarh eTc. eTc., (5mm) is concerned, while dealing wiTh The power To exempT cerTain buildings or