Writ petition 101/2007 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 101/2007 Sau. Sangita w/o Bhimasing Padvi, Age : 27 years, Occu. Household, R/o Surwani, Tq. Aakrani, Dist. Nandurbar. ....Petitioner. Versus 1 State of Maharashtra, through its Principal Secretary, Rural Department Development, Mantralaya, Mumbai-32. 2 The Additional Commissioner, Nashik Division, Nashik. 3 The Collector, Nandurbar, Dist. Nandurbar. 4 The Additional Collector, Nandurbar, Dist. Nandurbar. 5 Smt. Gulibai Keharyai Padvi, Age : 45 years, Occu. Household, R/o Surwani, Tal. Aakrani, Dist. Nandurbar. 6 State Election Commission, New Administrative Building, Opp. Mantralaya, Madam Cama Road, Mumbai – 400 032. ...Respondents. Mr. P.R. Patil, Advocate for petitioner. Mr. S.B. Pulkundwar, A.G.P. for respondents No.1 to 4. Mr. S.P. Brahme, Advocate for respondent No.5. Mr. R.B. Dhawale h/f Mr. U.S. Malte, advocate for respondent No.6. WITH CIVIL APPLICATION NO. 2426/2007 Sunnibai Keharya Padvi Vs. Sangitabai w/o Bhimsing Padvi & Others Writ petition 101/2007 2 WITH WRIT PETITION NO. 102/2007 Sou. Bablibai w/o Sardar Pawra, Age : 48 years, Occu. Household, R/o Kharwad, Tal. Aakrani, Dist. Nandurbar. ...Petitioner. Versus 1 State of Maharashtra, through its Principal Secretary, Rural Department Development, Mantralaya, Mumbai-32. 2 The Additional Commissioner, Nashik Division, Nashik. 3 The Collector, Nandurbar, District – Nandurbar. 4 The Additional Collector, Nandurbar Dist. Nandurbar. 5 Sardar s/o Khajya Pawra, Age : 43 years, Occu. Agriculture, R/o Kharwad, Tal. Aakrani, Dist. Nandurbar. 6 State Election Commission, New Administrative Building, Opp. Mantrtalaya, Madam Cama Road, Mumbai – 400 032. ...Respondents. Mr. P.R. Patil, Advocate for petitioner. Mr. S.B. Pulkundwar, A.G.P. for respondents No.1 to 4. Mr. S.P. Brahme, Advocate for respondent No.5. Mr. R.B. Dhawale h/f Mr. U.S. Malte, advocate for respondent No.6. WITH CIVIL APPLICATION NO. 2441/2007 Sardar s/o Khajya Pawra Vs. Bablibai w/o Sardar Pawra & others Writ petition 101/2007 3 CORAM : A.V. NIRGUDE, J. Date : 01st April, 2011. ORAL COMMON JUDGMENT: 1. Both these petitions can be disposed of by this common judgment. Both the petitioners are residents of their villages in district Nandurbar. They are voters for the village panchayat election. They contested elections in May, 2006 and got elected as members of the village panchayats of their respective villages. Both the petitioners even succeeded in getting elected as Sarpanch of the village panchayat. In July, 2006 or so, the respondent No. 5, the defeated candidate in both the cases filed an application before the Collector of Nandurbar under section 14 of the Bombay village panchayat Act, 1958 (In short, the Act) and sought declaration that the petitioners stood disqualified because they had more than two children. Relevant portion of Section 14 of the Act reads as under. 14. Disqualifications:- (1) No person shall be a member of a panchayat continue as such, who (j-1) has more than two children; Provided that, a person having more than two children on the date of commencement of the Bombay Village Panchayats, and the Maharashtra Zilla Parishads, and Panchayat Samitis (Amendment) Act, 1995 (hereinafter in this clause referred to as “the date of such commencement”), 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 In both the cases, respondent No.5 the defeated candidates did not file election petitions against the petitioners. Writ petition 101/2007 4 3 In writ petition No. 101/2007 the petitioner married one Bhimsing Sunya Padavi in July, 2002 who had two daughters from his previous wife. The petitioner gave birth to two sons in 2003 and 2005. Thus between the petitioner and her husband Bhimsing they have four children. 4 In writ petition No. 102/2007, the petitioner married one Sardar but could not beget a child, for quite some time. So, her husband got married second time. The petitioner’s co-wife succeeded in begetting three children. Thus, the petitioner, her husband Sardar and the co-wife together have three children. In these facts, the adversaries as said above, moved the application under section 14 of the Act to the Collector and the Collector held that both the petitioners had incurred disqualification under section 14 [j-1]. The petitioners challenged this order dated 30/12/2006 passed by the Commissioner, before the Collector but even there, they failed. Immediately thereafter, these writ petitions were filed and this Court not only admitted the petitions but even granted interim relief to the petitioners. The petitioners thus continued their status as members of the village panchayats. Upon hearing the submissions of the learned counsel appearing for the parties, following two points arose for my consideration. (i) Whether the application under section 14 of the Act, in such situation shall be maintainable ? (ii) Whether a person’s step children can be counted for the purpose of disqualification, contemplated under section 14 (j-1) ? 5 Question No.1:- In this case before the election, the Writ petition 101/2007 5 petitioners had incurred the so called disqualification of having more than two children. In such situation, their adversary had an opportunity of challenging the election by filing election petition. Admittedly, such step was not taken. The question therefore is, whether the adversary could still challenge the election of the petitioners making an application under section 14 of the Act and seeking declaration of this disqualification. The answer to this lies in the judgment of Supreme Court in the case of State of Himachal Pradesh and others Vs. Surinder Singh Banolta reported in (2006 (12) SCALE) page 571. The facts of the reported case were quite similar. Prior to the election of the respondent, he was found guilty of committing encroachment of Government property. Despite of incurring such disqualification, he contested the election and even got elected. His adversary did not file election dispute but made an application before Dy. Commissioner Shimala district, alleging that the respondent having been declared as encroacher, stood disqualified to hold the elected post and thus should not be allowed to continue as elected member. The Dy. Commissioner allowed the application and declared the respondent disqualified. The Division Bench of Himachal Pradesh High Court opined that such order was not sustainable in law because the election of the respondent could have been and ought to have been challenged on the ground of the said disqualification in a election petition alone. The Supreme Court upheld the judgment of the High Court. Supreme Court observed as under. “Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be Writ petition 101/2007 6 raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position. If a candidate or a voter had the knowledge that the elected candidate was disqualified in terms of Section 122 of the Act, he may file an application. The order of eviction may come to the notice of some other person after the election process is over. A situation, thus, may arise where two different proceeding may lie before two different authorities at the instance of two different persons. Two parallel proceedings, it is well settled, can not be allowed to continue at the same time. A construction of a statute which may lead to such a situation, therefore, must be avoided. It will also led to an absurdity if two different Tribunals are allowed to come to contradictory decisions. .............The matter might have been different if Respondent No.1 was declared to be an encroacher after the election process was over and, thus, becoming disqualified to continue to be an office bearer of Panchayat or Zilla Parishad.” Applying the ratio of this judgment to the facts of this case, it can be said that even in these cases, had the petitioners incurred disqualification after getting elected, their adversaries had ample opportunity to approach the Collector under section 14 of the Act. But as said above, disqualification, according to the adversaries of the petitioners, was incurred some time prior to the election. 6 Question No.2:- On plain reading of section 14 (j-1), it becomes clear that the provision must be applied strictly to the person who is sought to be disqualified. In other words, such person himself or herself, must have more than two children to incur disqualification. What happens to such person’s spouses, has no application in the situation. So, a man may not incur disqualification even if he has married a widow / divorcee, who has more than two children from her earlier marriage/s. Same thing can be said about a woman who Writ petition 101/2007 7 marries a divorcee or a widower who had begotten more than two children from his previous marriage/s. The case in writ petition no. 102/2007 is little wayward. The petitioner’s husband apparently in violation of the provision of Hindu Marriage Act, committed bigamy and produced more than two children. The petitioner can not be penalized for her husband’s indiscretion and having more than two children from his second wife. Since these children were not born to the petitioner herself, she would not incur disqualification. Clause (j-1) to section 14 of the Act was added quite recently in the year 2000 by amending the Act. The above mentioned proviso were added for providing reliefs to certain persons who would fall within the ambit of the proviso. This clause is a penal provisions, prohibiting disqualified persons from contesting election to their village panchayat. Such provision is required to be construed strictly. The Supreme Court in the case of Tolaram Relumal and another Vs. The State of Bombay reported in AIR 1954 S.C. 496, on this subject observed - “The provisions of S. 18(1) of Bombay Act 57 of 1947 are penal in nature and it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon, a penal provisions, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature.” 7 In my view, the above mentioned provision of Clause (j-1) is abundantly clear and would not permit more than one interpretation. As said above, the provision applies strictly to the person who is sought to be disqualified. This provision thus apply to such a person Writ petition 101/2007 8 individually and would not take into account the position of his or her spouse/s. The petition thus would succeed. Rule is made absolute in both the petitions. ORDER a) The petitions are allowed. b) The impugned Judgments and orders dated 30/12/2006 passed by respondent No.2 Additional Commissioner, Nasik against the petitioners in Gram panchayat Appeal No. 75/2006 & Gram panchayat appeal No. 77/2006 stand set aside. c) The impugned Judgments and orders dated 17/10/2006 passed by respondent No.4 Additional Collector, Nandurbar in dispute No. 20/2006 and dispute No. 16/2006 stand set aside. d) In view of this, Civil applications No. 2426/2007 and 2441/2007 stand disposed of. [A.V. NIRGUDE, J.] ts k/2011/April1/wp101.07/ok