The provision of disqualification based on having more than two living children have been held to be not ultra vires: Jharkhand High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5318 Rajesh Kumar Verma son of Late Ram Kumar Verma aged about 38 years resident of Ved Narayan Lane Kachahri Road P.O G.P.O P.S Kotwali Town and District Ranchi. …. Petitioner 1.The State of Jharkhand through the Chief Secretary having office at Project Building Dhurwa P.O. & P.S. Dhurwa Town and District 2.The Principal Secretary Urban Development and Housing Department Government of Jharkhand having office at Project Building Dhurwa P.O. & P.S. Dhurwa Town and District Ranchi. …. Respondents HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE THE CHIEF JUSTICE CORAM: For the Petitioner For the Respondents Oral Judgment: Order No.12 Dated: 15th March 2021 Mr. Manoj Tandon Advocate Mr. Piyush Chitresh A.C to A.G. 1. With consent of the parties hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2. The instant writ petition is under Article 226 of the Constitution of India praying for the following reliefs: “(i) To declare Rule 3.14 of Jharkhand Municipal Elected Representative Discipline and Appeal) Rules 2017 ultra vires the Constitution of India and thereby to quash and set same as notified by Notification No.01 Policy Decision 10 2016 U.D.H 5421 Ranchi dated 22.8.2017 and Notification No. 01 Policy Decision 10 2016 U.D.H 6669 Ranchi dated 30.10.2017issued under the pen and signature of respondent no.2. ii) To also declare section 18(n) of Jharkhand Municipal Act 2011 ultra vires the Constitution of iii) During the pendency of this writ petition the operation implementation and execution of provisions enshrined in Section 18 (n) of the Jharkhand Municipal Act 2011 and both Notifications dated 22.8.2017 and 30.10.2017 to the extent of Rule 3.14 may kindly be stayed.” 3. Mr. Manoj Tandon learned counsel for the writ petitioner has submitted that the provision as contained in Rule 3.14 of Jharkhand Municipal Elected RepresentativeRules 2017 ultra vires the Constitution of India as has been notified vide notification dated 22.08.2017 which provides the provision of disqualification of councilors if he has more than two living children provided that a person having more than two children on or up to the expiry of one year of the commencement of the Act shall not be deemed to be disqualified. According to the learned counsel for the petitioner in view of such provision the petitioner will not be able to contest the municipal election of the Councilors of the Municipal Corporation and as such he will be deprived from contesting the election on the pretext of a law which ultra vires the Constitution of India. According to the learned counsel the provision as contained under Section 18(1)of the Jharkhand Municipal Act 2011 is in the teeth of Section 590 of the Jharkhand Municipal Act 2011 and further based upon unreasonable classification and therefore the same is fit to be held ultra vires. 4. Mr. Piyush Chitresh learned A.C to learned Advocate General has submitted that the issue has already been decided by the Hon’ble Apex Court rendered in the case of Javed and Others vs. State of Haryana and Others reported in 8 SCC 369 wherein the provision of disqualification on the basis of having more than two living children have been held to be not ultra vires therefore submission has been made that the instant writ petition is fit to be dismissed on the basis of the ratio laid down by the Hon’ble Apex Court in the case of Javed and Others vs. State of Haryana and Otherspertains to disqualification from holding the office of Sarpanch Up Sarpanch and Panch if the person having more than two living children. The Hon’ble Apex Court while dealing with the issue has been pleased to hold that such provision of debarment is not ultra vires. 7. We therefore are of the view that the instant writ petition deserves to be dismissed on the basis of the judgment of the Hon’ble Apex Court rendered in the case of Javed and Others vs. State of Haryana and 8. Accordingly the instant writ petition is dismissed. Dr. Ravi Ranjan C.J.) Sujit Narayan Prasad J.) Others (supra). Saket 

Summary: The clause of disqualification based on possessing more than two living children has been ruled unconstitutional when it pertains to disqualification from holding 4the office of Sarpanch, Up-Sarpanch and Panch. if the person having more than two living children. The judgement was passed by the High Court of Jharkhand in the case of Rajesh Kumar Verma vs The State of Jharkhand &amp; Anr. [W.P.(C) No. 539 of 2018] by Single Bench consisting of Hon’ble Justice Sujit Narayan Prasad. The case has been filed seeking To declare Rule 3.14 of Jharkhand Municipal Elected Representative Rules, 2017 ultra vires the Constitution of India and thereby to quash and set aside the same, and to also declare section 18 (1) (n) of Jharkhand Municipal Act, 2011 ultra vires the Constitution of India. During the pendency of this writ petition, the operation, implementation and execution of the provisions enshrined in Section 18 (1) (n) of the Jharkhand Municipal Act, 20 May kindly be stayed. Learned counsel for the writ petitioner has submitted that the provision as contained in Rule 3.14 of Jharkhand Municipal Elected Representative Rules, 2017 ultra vires the Constitution of India which provides the provision of disqualification of councillors if he has more than two living children, provided that a person having more than two children on or up to the expiry of one year of the commencement of the Act, shall not be deemed to be disqualified. The petitioner will not be able to contest the municipal election of the Councilors of the Municipal Corporation and as such, he will be deprived of contesting the election on the pretext of a law that ultra vires the Constitution of India. Learned counsel for the respondent has submitted that the issue has already been decided by the Hon’ble Apex Court rendered in the case of Javed and Others vs. State of Haryana and Others, “wherein the provision of disqualification based on having more than two living children have been held to be not ultra vires, therefore, submission has been made that the instant writ petition is fit to be dismissed based on the ratio laid down by the above-stated case.”