skc 1 WP-9996-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9996 OF 2011 Suresh Pundlik Shirude ..Petitioner versus State of Maharashtra & Ors. ..Respondents Dr. Biren Saraf with Ms. Rajlaxmi Mohandas, Ms. Pooja Kshirsagar and Mr. Subhash Jadhav i/b. ALMT Legal for Petitioner. Mr. Nitin Deshpande - Assistant Government Pleader for Respondent No.1 Ms. Kanchan Pumnani, Mr. Anand Salgaonkar i/b. Mr. S. B. Shetye for Intervener. CORAM : S. A. BOBDE AND SMT. V. K. TAHILRAMANI, JJ. DATE : NOVEMBER 28, 2011 P.C. : The petitioner has challenged the vires of sub section (i) of section 10 of The Bombay Provincial Municipal Corporations Act, 1949, which disqualifies a person from being a councillor if he : “(i) has more than two children: Provided that, a persons having more than two children on the date of commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (Second Amendment) Act, 1995 (hereinafter in this clause referred to as “the date of such commencement”), skc 2 WP-9996-11 shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase : Provided further that, a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause.” 2. The contention of the petitioner is that the petitioner and his wife have had a third child because their second child aged 18 is 100% visually challenged since his birth. They therefore decided that they would have a third child to assist the second child in any kind of physical activity. As a result nine years after the birth of the visually challenged child their third child was born. 3. According to the petitioner the above provision which disqualifies persons having more than two children on the date of the commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (Second Amendment) Act, 1995 is ultra vires Article 14 of the Constitution of India on the ground that it suffers from under classification. Learned counsel for the petitioner submitted that the section suffers from under classification in that it treats the case of dissimilar couples similarly. According to the submission a skc 3 WP-9996-11 particular couple, like the petitioner, may find it imperative to have a third child because the second child is challenged in some way; the condition of such a couple is quite different from a normal couple who do not need to have a third child. Therefore the provision suffers from the vice of treating unequals equally. 4. It is not possible to agree with the submission on behalf of the petitioner that sub section (i) suffers from under classification. On the contrary if the provision would have carved out an exception because a couple had one or two challenged children it may have suffered from the vice of treating equals unequally, having regard to the purpose and object of the legislation namely to curb population. We find that the vires of a similar provision has been considered by the Supreme Court of India in the case of Javed & Ors. vs. State of Haryana & Ors. [(2003) 8 SCC 369]. In that case the Supreme Court observed as follows while rejecting the similar contention: “Hypothetical examples were tried to be floated across the Bar by submitting that there may be cases where triplets are born or twins are born on the second pregnancy and consequently both of the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Such are not normal cases and the validity of the law cannot be tested by applying it to skc 4 WP-9996-11 abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant.” 5. In the result there is no merit in the petition. It is hereby rejected. (S. A. BOBDE, J.) (SMT. V. K. TAHILRAMANI, J.)