WPMS/2508/2017 of Bharat Bhusan Chugh Vs State Of Uttarakhand AND ANOTHER

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 2508 of 2017

Bharat Bhusan Chugh

..…Petitioner

Versus

State of Uttarakhand and another

.…Respondents

Advocate : Mr. Kurban Ali, Advocate for the petitioner

Mr. K.N. Joshi, Deputy Advocate General for the State of Uttarakhand. Mr. Manish Bisht, Advocate on behalf of Mr. Vipul Sharma, Advocate for respondent No. 2

Hon’ble Sharad Kumar Sharma, J.

very interesting question, which crops up before this Court, is emanating from challenge which has been given by the petitioner to the Notification dated 21[st] December 2002, as passed by the State Government, by said notification it was bringing about the amendment by issuing Gazette Notification, dated 21[st] September 2002, in the provisions of Uttaranchal/ Uttar Pradesh Nagar Nigam Adhiniyam 1969 was amended by the Amending Act of 19 of 2002.

2. By the said amendment, in particular, the amendment with which we are concerned is contained under Section 5 of the Amending Act No. 19 of 2002, Section 5 of the amending notification, in turn has amended Section 25 (1) of the Municipal Corporation Act, 1959 and by virtue of the impugned amendment, certain sub clauses were added after clause ¼V½.The challenge in the present petition is given to the restriction, which has been imposed on citizen to contest an election the bar which has been created by amendment is to the effect that in case if someone has more than three children, then he would be deprived of contesting the elections. The principal section 25 of the U.P. Municipal Corporation Act, 1959, reads as under:-

25. Disqualifications for [* * *]6 Corproator. –

(1) person shall notwithstanding that he is otherwise qualified, be disqualified for being chosen as and for being, 7 [* * *] Corporator, if he – disqualified for being chosen as and for being, 7 [* * *] Corporator, if he –

[(a) whether before or after the commencement of this Act has been convicted by court in India of any offence and sentenced to imprisonment for not less than two years, unless period of five years, or such less period as the State Government may allow in any particular case, has elapsed since his release];

(b) is undischarged insolvent;

(c) holds any place of profit in the gift or disposal of the Mahapalika;

[(d) is in the service of State Government or the Central Government or any local authority or any undertaking or body owned or controlled by the State Government or the Central Government or is District Government Counsel or an Additional or Assistant District Government Counsel or an Honorary Magistrate or an Honorary Munsif or an Honorary Assistant Collector;]

(e) has whether by himself or by any person in trust for him or for his benefit or to his account, any share or interest in contract for supply of foods to, or for the execution of any works or the performance of any services undertaken by the Corporation;

(f) is in arrears in excess of one year’s demand, of any tax payable to the Corporation, to which Section 504 applies or of any charges for water supplied by the Corporation;

(g) having held any office under the Government of India or the Government of any State he has been dismissed for corruption or disloyalty to the State, unless period of 10[six years] has elapsed since his dismissal;

(h) is debarred from practicing as legal practitioner by order of any competent authority;

(i) is disqualified under Section 80 or 83 of this Act from being member of Corporation;

(j) [* * *]11 is suffering from any of the infectious diseases to be specified by the State Government by order and has been declared by medical officer not below the rank of [Chief Medical Officer]12 to be incurable of such disease;

[(k) is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State; Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;]

Provided that in the case of sub-clause (f), the disqualification shall cease as soon as the arrears are paid :

Provided further that arrears of any tax or water charges due to the 14[Municipal Council] or any other local authority exercising jurisdiction within the area which has since been 15[notified] City shall for the purposes of clause (f) be deemed to be arrears of tax or water charges payable to the Corporation.”

3. Section 5 of the Amending Act No. 19 of 2002, is quoted here under:-

**5- /kkjk 25 ¼1½ dk la”kks/ku

ewy vf/kfu;e dh /kkjk 25¼1½ [k.M ¼V½ ds ckn fuEufyf[kr /kkjk c<k fn;s

tk;saxs%&

¼B½ mldh nks ls vf/kd thfor larku gSa ftuesa ls ,d dk tUe bl /kkjk ds izo`Rr gksus dh frfFk ds 300 fnol ds i”pkr gqvk gS] ;k ¼bZ½ efgyk ds fo:} fdlh vijk/k dk nks’k fl} Bgjk;k x;k gS ;k**

4. The case of the petitioner is that he was one of the aspirants to contest the election of the Nagar Nigam, which was notified by the State, but he was deprived to contest the same on account of the amendment, which was notified on 21[st] December 2002, and he contends that the said amendment is arbitrary, and it would not apply in his case as it involves very peculiar situation for the reason, which has been pleaded by the petitioner in paras 3 and 4 of the writ petition which has not being denied by the respondents, to the effect that in the 2[nd]pregnancy of his spouse, twins were born and birth of the twins was an act of God, which was beyond any human act, nor regulated by any medicinal measures, which was not within the control of the petitioner, as such, he would not be falling to be under exception clause or discrepancy clause as amended by Section 5 of the Act No. 19 of 2002 making amendment under Section 25 of the Act of 1959.

5. Even otherwise also, if clause ¼B½ is read in precision, it provides that after the enforcement of the amending Act, amending Section 25 (1) of the Nagar Nigam Adhiniyam, 1959, the restriction, which is imposed in contesting the election is only in an event where there happens to be third child born after gap of about 300 days of the birth of the earlier 2[nd] child.

6. The argument of the learned counsel for the petitioner is that the right of the petitioner to contest the election is statutory right and it could not have been denied under the amended provisions of Section 25,

in the given set of circumstances which prevailed in the case of petitioner, and thus he has prayed for the following relief in the writ petition:

“(I) Issue writ order or direction in the nature of certiorari to quash the impugned Govt. Notification dated 21-12-2002 so far as relates to the petitioner case. (Annexure no. 3). certiorari to quash the impugned Govt. Notification dated 21-12-2002 so far as relates to the petitioner case. (Annexure no. 3).

(II) Issue writ order or direction in the nature of Mandamus commanding and directing to declared Section 13(D) (e) (Uttarakhand Amendment) of the Uttar Pradesh Municipalities Act, 1916 as arbitrary, illegal, discriminatory and ultra virus to 12 Schedule to Article 243W of the Constitution of India (so far as it relates to the petitioner case). Mandamus commanding and directing to declared Section 13(D) (e) (Uttarakhand Amendment) of the Uttar Pradesh Municipalities Act, 1916 as arbitrary, illegal, discriminatory and ultra virus to 12 Schedule to Article 243W of the Constitution of India (so far as it relates to the petitioner case).

(III) Issue writ, order or direction in the nature of mandamus commanding the respondent not to disqualify the petitioner having more than two living children from contesting the election of the member/Chairman of ensuing municipal election in the State of Uttarakhand. mandamus commanding the respondent not to disqualify the petitioner having more than two living children from contesting the election of the member/Chairman of ensuing municipal election in the State of Uttarakhand.

(IV) Issue any other or direction which this Hon’ble Court may deem fit and proper in the prevailing circumstances of the case. may deem fit and proper in the prevailing circumstances of the case.

(V) Award the cost.”

7. As far as challenge given to the Notification amending Section 25 of the Nagar Nigam Act of 1959 by the Act No. 19 of 2002, it has already been upheld by the judgement of the Hon’ble Apex Court, in particular the judgement rendered and reported in 2003 (5) Supreme 371,Javed and Ors. V. State of Haryana & Ors., wherein challenge was given to the provisions of Section 25(1), which was an identical amendment made under the Nagar Nigam Adhiniyam, as applicable in the said State of Haryana.

8. The learned counsel for the petitioner has drawn the attention of this Court to the reasoning given in para 64 of the said judgement which is quoted hereunder:

“64. Hypothetical examples were tried to be floated across the bar by submitting that there may be cases where triplets 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 abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make summer; single instance or indicator of something is not necessarily significant.”

9. It contemplates that for the purposes of challenging particular provisions of the Act, there are certain limitations, under which it could be challenged before the Court, it could only be questioned when amendment it is in contravention to the fundamental rights or is ultra virus in view of the existing law or is violative of any constitution provision, hence in para 64, though the Punjab and Haryana High Court had drawn an exception, wherein it has been held out that in hypothetical circumstances, where person is blessed with twins or triplets in the second pregnancy, the bar of Section 25, ought not to be rationally attracted to deprive him right to contest the election, but simultaneously, it is held that such peculiar and hypothetical circumstances will not lead to render the amending law made under Section 25, as to be ultra virus, because the validity of the law, it has been held out that it cannot be tested on the principles by applying in any other situation apart from the situation at hand, where in the second pregnancy, the person is blessed with twins child.

10. The learned counsel for the petitioner had further made reference in paras 6 and 7 of judgement as reported in 100 (2005) CLT 351, Rajkishore Dalai v. Kalandi Pradhan and another, wherein the Division Bench of Orissa High Court also while dealing almost with an identical circumstances, where the validity of Section 25(1)(v) which has been sought to be amended under the Act was put to challenge before it. In para 6 of the said judgement, the Court has endorsed the view which has been taken by the Punjab and Haryana High Court to the effect

that validity of provisions of law and its validity cannot be taken into consideration, where there exists certain hypothetical circumstances which is distinct to the normal circumstances, though an exception can be carved out in situation where there is deprivation made due to the amendment, for an act, which was beyond the control of an individual, who is being deprived of an account of the enforcement of the said amending Act.

11. Even, this Court is also of the view that logically, the amendment which has been made under Section 25(1)(v), whereby, it imposes restriction in contesting the election would only be attracted where there is third children born with gap of 300 days, as contemplated therein. Meaning thereby, that on rational interpretation of the same would exclude, wherein, when under the second pregnancy, there are twins or triplets are born. In such peculiar circumstances, wherein when under the second pregnancy, there is twins or triplets which are born, the person cannot be deprived of his right to participate in the election under the Nagar Nigam Adhiniyam, 1959. That is why the Division Bench of Orissa High Court in its para 7 has held that in such an eventuality or contingency, which is existing in the present case too, the person cannot be held to be disqualified to contest the election or to hold post in case if as consequence of the second pregnancy there are twins or triplets are born. Paras 6 and 7 of the said judgement are quoted hereunder:-“6. The contents of Section 25(1)(v) of the Act and the underlying purpose of providing such disqualification propound loud and clear that person having more than two living children cannot hold the panchayat office. Now the subtle question is whether the words "two children" can be read as two pregnancy and whether twin or triplet born on the second pregnancy can be taken as one child for the purpose of deciding the disqualification provided under Section 25(1)(v) of the Act. In this context some of the case laws of this Court and the Apex Court have come to our notice. In the case of Pravakar Pradhan v. Bhaktabandhu Sahoo and Ors., 1998 (II) OLR 690 the opposite party filed

election petition challenging the election on ground that the petitioner was disqualified to be candidate or, the ground of having more than two children. Petitioner had one child in the first pregnancy, but his wife gave birth to twin on the second pregnancy. Since the petitioner had three children living the Trial Court allowed the election petition and declared the election of the petitioner null and void. The petitioner came up in appeal and prayed for stay of operation of the judgment of the Trial Court. The Appellate Court rejected that prayer. The petitioner then came to this Court. Learned Single Judge inseisin of the matter held that the petitioner having three living children prima facie case of disqualification was there and accordingly refused to grant stay of operation of the judgment of the Trial Court. The issue as to whether the birth of twin children on the second pregnancy would be counted as one child for the purpose of Section 25(1)(v) of the Act was not discussed in the said case. In the case of Jived and Ors. v. State of Haryana and Ors. (supra) the vires of Section 175(1)(q) of Haryana Panchayati Raj Act (which is similar to Section 25(1)(v) of the O.G.P. Act) had been challenged. Amongst several contentions one of the contentions from the side of the petitioner was that there may be cases where twin or triplet are born on the second pregnancy and consequently both the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Their Lordships observed that such are not normal cases and the validity of the law cannot be decided by applying it to abnormal situations as exceptions do not make the rule nor render the rule irrelevant. Such observation of the Apex Court very subtly points out that though the disqualification provided is intra vires and is meant for furtherance of socio-economic cause, there may be genuine, exceptions which can be taken into consideration. The intention of providing the disqualification contained in Section 25(1)(v) of the Act is to prompt the citizens to follow the family welfare/family planning norms and to save the nation from population explosion. The other underlying purpose is that persons holding Panchayat and Local Board offices should act as role models for the society inspiring the people to follow their conduct in the matter of family welfare and family planning. The disqualification provision is thus meant for persons not adhering to the family welfare norms or flouting the family planning programme. In other words, if person deliberately begets more than two children and flouts the family planning norms and thereby offends socio-economic programme, he is to be disqualified under Section 25(1)(v) of the Act. Birth of twin or triplet on the second pregnancy is not normal feature, but freak of divinity. Such birth of twin or triplet not beingan intentional act of the person concerned, the person cannot be accused of violating the family welfare/family planning norms or offending the cause of social justice. Disqualifying such person who had no intention of procuring more than two children and who had no control over the number of children born during second pregnancy could not have been the intention of the law makers when they enacted Section 25(1)(v) of the Act as disqualifying such person would be against equity and fair legal norms.

7. For all these aforesaid reasons, we are of the considered view that if person has twin children on the first pregnancy, birth of any child or children on second pregnancy would disqualify him; but if person has one child from the first pregnancy and gets twin or triplet on second pregnancy, he cannot be disqualified under Section 25(1)(v) of the Act.”

12. Learned Standing Counsel was posed with the question that whether the factum of the twins being born to the petitioner which is fact as pleaded by him in para 4 of the writ petition, whether the said fact has been denied by them in the counter affidavit. Para 4 of the writ petition reads as under:

“4. That the petitioner having three children the first kid was born on 11.3.2007 and there after the second time pregnancy born twins on 27.11.2008 and in this way the petitioner having father of three children, the copies of the birth certificate of the children are annexed as annexure no. 2 to the writ petition.”

13. The learned Standing Counsel submits that the factum of the birth of twins, as pleaded by the petitioner in para 4 of the writ petition has not been denied in its specific terms in the counter affidavit, as reference may be had to para 24 of the counter affidavit, which reads as under:-

“24. That in reply to the contents of paras 4, 5 and 6 of the writ petition, it is stated that every person who fulfils the criteria of the candidature in accordance with law is free to contest the election. The petitioner has himself admitted in the paras under reply that he does not fulfils the criteria for contesting the elections. It is wrong to state that the provisions of Notification does not the affect the rights of

the petitioner being the abnormal case for being blessed with twins as result of second pregnancy. It is stated that after the petitioner having been blessed with twins as result of second pregnancy the petitioner now has more than two living children, tantamounting to his disqualification as per the amendments act. Annexure-3 to the writ petition is matter of record. Detailed reply in regard to the same has already been given in preceding paragraphs of this counter affidavit, contents whereof are reiterated.”

14. He further submits that as far as the validity of Section 25(1)(v) which was rendering disqualification to person from being elected as Sarpanch under the Gram Panchayat Act of 1965, as applicable in the State of Orissa. The Hon’ble Apex Court has upheld the validity of the said provisions contained under Section 25(1)(v) vide its judgement rendered in Civil Appeal No. 6525 of 2010, Minasingh Majhi v. The Collector, NUAPADA and Another etc. on 24[th] October 2018. The Hon’ble Apex Court in its reasons which has been assigned has in its para 6 has expressed the intention as to what necessitated the incorporation of the amendment under Section 25(1)(v) of the Act, it was to restrict the population explosion of the country and that is why the restriction was imposed to the perspective candidates who are the aspirants for contesting the election and bar was rightly created by the amendment made under Section 25(1)(v) of the Act. For the purposes of brevity, paras 6 and 7 of the judgement rendered by the Hon’ble Apex Court is quoted hereunder:“6. Reading the provisions of Section 25(1)(v) and (2) of the Orissa Act, we are left with no doubt that the legislative intent is to restrict the number of children that prospective elected member of the Gram Panchayat should have. Thelegislative emphasis is on the number of children that prospective elected member has given birth to and not whether under provisions of different statutes in force, including the Hindu Adoptions and Maintenance Act, 1956, children born to such person can be excluded from the family of the prospective elected member.

7. We may also take note of the contention advanced by the learned counsel for the appellant in the light of the provisions contained in Section 2(2) of the 1956 Act, which

makes the provisions of the said Act inapplicable to the Members of the Scheduled Tribes to which category the appellant belongs. There has been no challenge to the provisions of Section 2(2) of the 1956 Act before the High Court or even before this Court. We will, therefore, proceed on the basis that the provisions of 1956 Act do not apply to the case of the appellant in which event the contention advanced that the adopted child, under the Act, had ceased to be member of the appellant’s family having become member of the Family of the adoptive parents, will have no legs to stand.”

15. Reverting back to the instant case though most of the factual aspects have already been determined but in the light of the observations made by the Punjab and Haryana High Court in its paras 6 and 7 of the judgement and particularly, the situation, which is prevailing herein, the first relief, as claimed by the petitioner questioning the validity of the amendment made under Section 25, since it has already been upheld by the Hon’ble Apex Court in the judgement referred above, as well as, by the judgement of the Orissa High Court and by the Punjab and Haryana High Court, this Court too upholds the amendment made therein, because it intends to meet logical public object of restricting the population explosion by depriving person of his rights to contesting the election which does not suffer from any violation of the provisions contained under the Constitution of India. But simultaneously it be said that in the given set of circumstances, as far as the petitioner is concerned, since he was blessed with the twins in the second pregnancy, he cannot be deprived of contesting the election on the basis of invocation of Section 25(1)(v) of the Act.

16. Even if we consider the controversy arising of the bar being created by the amendment made under Section 25 of Nagar Nigam Adhiniyam of 1959, by issuance of Notification dated 21.12.2002 impugned in the petition, the argument of the respondent’s counsel is that the amendment made by the Uttarakhand Amendment in U.P. Municipalities Act 1916, as sought to be made by amending Section

13(D)(e) is almost based on the same principle as has been covered by the judgement of Punjab and Haryana and Orissa High Courts. The amendment carried by the impugned notification dated 21.12.2002, this Court is of the view it aims at to achieve laudable object to create deterrent as against the public menace of population explosion, which now days biggest concern for the country. Hence Court is of the view that rather the amendment carries achieves wider public object.

17. The argument of the learned counsel for the State from the view point that the amendment impugned rather it is consonance to the constitutional mandate as the amendment impugnedsince in accordance with provisions contained under which Schedule Seven has been incorporated, it had in its specific terms in list II by Entry 5 and 6 to be read with Entry 20A of the concurrent list i.e. List III, otherwise also confers enough power on the State legislature for insertion of the amendment carried by the notification of 21.12.2002, it was well within the legislative competence of the State Government as per list II and list III of the Seventh Schedule of the Constitution of India, hence its cannot be held to be ultra virus to the any provisions of the Act of 1959 or the Constitution of India.

18. The competence of State to legislate on the issue can also be considered from the view point and intention of Article 243W which deals with limits of the power of Municipalities.

“243W.Powers, authority and responsibilities of Municipalities, etc Subject to the provisions of this Constitution, the Legislature of State may, by law, endow (a)the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to (i)the preparation of plans for economic development and social justice;

(ii)the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;

(b)the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule”

Entry 5 and 6 of list II, Schedule 7 of the Constitution of India reads as under:-

“5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.

6. Public health and sanitation; hospitals and dispensaries.”

Entry 20A of list III Schedule 7 of the Constitution of India reads as under:-

“[20A. Population control and family planning.]”

19. Thus the nature of amendment sought by impugned notification is one of the measures which will fall to achieve the objective of Entry 20A of concurrent list, hence is not ultra virus to the Constitution of India.

20. This Court is of the view that the disqualification amended by Notification dated 21.12.2002 is in consonance to the provisions contained under Article 243-Q(1) and 243 V of the Constitution of India which are quoted hereunder:-

“243Q. Constitution of Municipalities

(1)There shall be constituted in every State,

(a)a Nagar Panchayat (by whatever name called) for transitional area, that is to say, an area in transition from rural area to an urban area

(b)a Municipal Council for smaller urban area; and

(c)a Municipal Corporation for larger urban area, in accordance with the provisions of this Part: Provided that Municipality under this clause may not be constituted in

such urban area or part thereof as the Governor may, having regard to the size of tile area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township

243V. Disqualifications for membership

(1)A person shall be disqualified for being chosen as, and for being member of Municipality

(a)if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age, of twenty one years; (b)if he is so disqualified by or under any law made by the Legislature of the State

(2)If any question arises as to whether member of Municipality has become subject to any of the disqualifications mentioned in clause ( 1 ), the question shall be referred for the decision of such authority and in such manner as the Legislature of State may, by law, provide”

21. This Court is also of the view that on reading of the amending provisions, as stipulated by notification impugned in the writ petition, it cannot be doubt that purpose and the legislative intent by the proposed amendment as carried it was to restrict the population growth as protected to be an objective as per Entry 20A of List III of the 7[th]Schedule of the Constitution of India. The major emphasis is on the number of children which prospective contestant to the election should have.

22. The observation as asserted above also settled by the intention expressed in para 8 to 11 of the judgement reported in 2003 (5) Supreme 371, Javed and others v. State of Haryana and others, which has dealt with the issue from the view point of Article 14 of the Constitution of India.

23. In that view of the matter, while upholding the validity of the provisions contained under Section 25(1) clause ¼B½, it is also

simultaneously held that as far as the petitioner is concerned, he would be governed by the principles laid down by the Punjab and Haryana High Court and he cannot be disqualified for the purposes of contesting the election on the premise of the implications of the impugned amendment made under Section 25(i)(v), said amendment, which has been incorporated by the impugned amendment dated 21[st] December 2002, consequently the writ petition is disposed of subject to the aforesaid observations.

Mahinder/

(Sharad Kumar Sharma, J.) 23.05.2019