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Chirag Chitranjanbhai … vs State Of Gujarat on 16 October, 2019

C/SCA/15076/2019 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 15076 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?

CHIRAG CHITRANJANBHAI BHRAHMBHATT
Versus
STATE OF GUJARAT

Appearance:

MR.SUBHASH G BAROT(2619) for the Petitioner(s) No. 1
MR HARDIK SONI, ASSISTANT GOVERNMENT PLEADER(99) for the
Respondent(s) No. 1 and 3

CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 16/10/2019
CAV JUDGMENT

1. By way of this petition, which is filed under
SectionArticle 226 of the Constitution of India, the
petitioner has prayed for the following reliefs:

“(A) Be pleased to allow present petition;

(B) Be pleased to issue writ of mandamus, writ
in the nature of mandamus and be pleased to
quash and set aside impugned order dated

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30.07.2019 passed by Respondent No.2 herein
passed in appeal filed by the petitioner against
decision dated 6.03.2019 of learned Collector,
Kheda in application filed by the petitioner for
declaring Respondent No.4 as disqualified member
of the municipalities and further be pleased to
quash and set aside the order dated 6.03.2019 of
learned Collector, Kheda in application filed by
the petitioner for declaring Respondent No.4 as
disqualified council/member of Nadiad
Municipalities.

(C) Be pleased to issue writ of Quo Warranto or
writ, in thenature of Quo warronto and be
pleased to declare Respondent No.4 herein
disqualified for continuing on the post of
councilor and president of Nadiad Municipality
and further be pleased to pass appropriate
orders for removing Respondent from the post of
Councilor and president of Nadiad Municipality.

(D) Pending admission, hearing and final
disposal of the present petition be pleased to
restrain Respondent No.4 herein from discharging
her duties as president of Nadiad Municipality;

(E) Be pleased to expedite hearing of present
petition as the tenure of the present council is
likely to be over in the year 2020;

(F) Be pleased to grant such other and further
relief/s which may be fit in the facts and
circumstances of the case.”

2. The factual matrix of the present case is as
under:

2.1 It is stated in the petition that the last
election of Nadiad Municipality was held in the year
2015. In the said election, respondent No.4 was only

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candidate, who has submitted her nomination form from
Ward No.11. She was declared as elected uncontested
Member of Ward No.11. It is alleged that at the time
of filing her nomination form for the post of Member
of Nadiad Municipality, one affidavit was filed by
her. It is stated that respondent No.4 accepted that
she is the mother of three children, amongst whom,
one has expired on 28.12.2012. As per the said
affidavit, respondent No.4 was having two children as
on 04.08.2005. It is further stated that as per the
said affidavit, Dhruvesh Sanjaybhai Patel was born on
04.12.1994 and Chaula Sanjaybhai Patel was born on
20.11.1996. Thereafter, her elder son Dhruvesh
Sanjaybhai Patel died on 28.12.2012. After his death,
on 30.05.2014, respondent No.4 became mother of
another child i.e. Kalp Sanjaybhai Patel. It is also
stated in the affidavit that on the date of the
filing of the nomination, she was mother of two
children and, therefore, she is eligible for
contesting election.

2.2 It is stated that when the petitioner came to
know about the said aspect, he preferred application
requesting respondent No.3 to declare respondent No.4
as disqualified as per the provisions contained in
Section 11(1)(h) of the Gujarat Municipalities Act,
1963 (“the Act” for short). The said application came
to be rejected by the respondent Collector vide order
dated 06.03.2019. The petitioner, therefore, filed a
petition being Special Civil Application No.5837 of
2019 before this Court. However, the said petition

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was withdrawn with a view to file an appeal before
respondent No.2. The petitioner, thereafter, filed
an appeal before respondent No.2 under Section 38(4)
of the Act. Respondent No.2 rejected the said appeal
vide order dated 30.07.2019 and, therefore, the
present petition is filed.

3. Heard Mr.Subhash G. Barot, learned advocate for
the petitioner and Mr.Hardik Soni, learned Assistant
Government Pleader for respondent Nos.1 and 3.

4. Mr.Subhash G. Barot, learned advocate for the
petitioner, at the outset, referred the provisions
contained in Section 11(1)(h) of the Act and
submitted that respondent No.4 was having three
children after the Amendment dated 04.08.2005 came
into force and, therefore, respondent No.4 was
disqualified. In spite of that, the respondent
authorities have not properly considered the said
important aspect and, therefore, the impugned orders
be quashed and set aside.

4.1 Mr. Barot, learned advocate for the petitioner,
has placed reliance upon the order dated 17.03.2015
rendered by this Court in the case of Vanaji
Ranchhodji Karkata (Rabari) Vs. District Development
Officer and others, passed in Special Civil
Application No.4587 of 2015. He has also placed
reliance upon the order dated 07.04.2016 passed in
Special Civil Application No.4625 of 2016 in the case
of Maheshkumar Ramsinh Parmar Vs. State of Gujarat

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and others. Copy of the said order is placed on
record at Page­53 of the compilation. He has also
placed reliance upon a decision rendered by the
Honourable Supreme Court in Civil Appeal No.6525 of
2010 in the case of Minasingh Majhi Vs. The
Collector, Nuapada and Anr etc. After relying upon
the aforesaid decisions, it is contended that when
respondent No.4 has given birth to the third child
after the SectionAmendment Act of 2005, provisions contained
in Section 11(1)(h) would be applicable.

5. On the other hand, Mr.Hardik Soni, learned
Assistant Government Pleader, has supported the
reasoning recorded by the respondent authorities and
contended that the third child was born after the
death of the first child and, therefore, it cannot be
said that respondent No.4 was having more than two
living children on a particular date. It is,
therefore, urged that no error is committed by the
respondent authorities while not entertaining the
request of the petitioner. He, therefore, urged that
this petition be dismissed.

6. For considering the issue involved in the
present petition, provisions contained in Section
11(1)(h) of the Act is required to be considered.
Section 11(1)(h) of the Act provides as under:

Section 11 : General disqualifications for
becoming a councillor. Vacation of seat.
Decision of State Government in case of disputes
(1) No person may be a councillor­

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xxx xxx xxx

(h) who has more than two children:
Provided that a person having more than two
children on the date of commencement of the
Gujarat Local Authorities Laws (Amendment) Act,
2005 (Guj. 17 of 2005) (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 under this clause.
Explanation.­For the purpose of this clause,­

(i) where a couple has only one child on or
after the date of such commencement, any
number of children born out of single
subsequent delivery shall be deemed to be
one entity;

(ii) ‘child’ does not include an adopted
child or children.”

7. From the aforesaid provision, it is clear that
the said provision is introduced with an object to
prevent a person having more than two children to be
a Member of the Panchayat or the Councilor of
Municipality or the Municipal Corporation and for
implementation of National Population Policy. When
the aforesaid provision is read in light of the
object with which the amendment came to be
introduced, it becomes clear that the moment a child
in excess of two children (or in excess of children
on the cut­off date) is born, after the commencement

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of the Amendment Act, the provision would immediately
be attracted and, thereby, the disqualification will
automatically get attached to the said person. The
provision merely provides that any person, who has
more than two children, shall not be a member of the
Panchayat or councilor in the Municipality etc.

8. Thus, from the aforesaid provision, it can be
said that the Legislature has used the phrase “having
more than two children”. Thus, it is required to be
considered in the present case that whether
respondent No.4 was having more than two children at
any point of time after the SectionAmendment Act of 2005, or
not.

9. Thus, once again the facts of the present case
are required to be examined minutely. First child of
respondent No.4, namely, Dhruvansh Sanjaybhai Patel
was born on 04.12.1994. Second child, namely, Chaula
Sanjaybhai Patel was born on 20.11.1996. Elder son of
respondent No.4 i.e. first child, namely, Dhruvansh
Sanjaybhai Patel died on 28.12.2012.

10. After the death of the first child i.e. the
elder son, another child namely, Kalp Sanjaybhai
Patel, was born on 30.05.2014. Thus, from the facts
of the present case, it is revealed that at no point
of time, respondent No.4 had three living children
and it was only after the unfortunate death of elder
son aged about eighteen years of respondent No.4, she
was blessed with second living child in the year

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2014. Thus, at no point of time, there were three
living children of respondent No.4.

11. In the case of Vanaji Ranchhodji Karkata
(Rabari) Vs. District Development Officer and others
(supra), the facts of the said case were that the
first child of the concerned petitioner was born on
28.02.2006. Thereafter, second child was born on
20.10.2007 and, thereafter, on 25.09.2009, the wife
of the concerned petitioner gave birth of the third
child. However, after a period of three months,
second child died on 19.12.2009 and at the time of
election, the petitioner was having only two
children. This Court has considered another decision
rendered in the case of Naynaben Babubhai Hathila
Vs. State of Gujarat reported in 2015(1) GLR 464 and,
thereafter, held that after the SectionAmendment Act came
into force, if the child is born in excess of two
children, then the moment the child in excess of two
children is born, the provision and prohibition will
be immediately attracted and the disqualification
will immediately and automatically get attached.

Thus, in the facts and circumstances of the
present case, the aforesaid decision would not be
helpful to the petitioner. On the contrary, the same
would be helpful to the private respondent.

12. In the case of Maheshkumar Ramsinh Parmar Vs.
State of Gujarat and others (supra), the concerned
petitioner was the father of three children. First

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child was born on 30.05.2001. Second was born on
12.01.2004 and the third child was born on
14.05.2005. Thereafter, the fourth child was born to
the wife of the concerned petitioner on 14.03.2007
and the said fourth child did not survive and passed
away on 19.03.2007. Thus, in the facts of the said
case, the Division Bench of this Court has held that
third child was born after coming into force of the
Act and after the grace period as per the proviso and
thus, the concerned petitioner suffered
disqualification. However, in the facts of the
present case, this decision would not be applicable.

13. In the case of Minasingh Majhi Vs. The
Collector, Nuapada and Anr etc. (supra), the
Honourable Supreme Court was considering the fact
whether the concerned appellant had two children born
to him on 06.09.1995 and 12.10.1998 respectively.
Thereafter, the third child was born to the said
appellant on 03.08.2002. The first child was given in
adoption way back on 10.09.1999. The Honourable
Supreme Court has considered the fact that the
appellant was the biological father of the third
child and looking to the legislative intent of the
concerned proviso of the Orissa Gram Panchayats Act,
1965, it was observed that intent is to restrict the
number of children that a prospective elected member
of the Gram Panchayat should have. Emphasis is on the
number of children that a prospective elected member
has given birth to and not whether under the
provisions of different statutes in force, including

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the Hindu Adoptions and SectionMaintenance Act. Thus, in the
said case, though the third child was given in
adoption, the Honourable Supreme Court has considered
the said adopted child as a child of the concerned
appellant for the purpose of provisions of the Orissa
Gram Panchayats Act.

Thus, in the facts of the present case, the said
decision would not render any assistance to the
petitioner.

14. From the aforesaid decisions rendered by this
Court as well as the Honourable Supreme Court, it can
be said that the moment the third child was born to
the concerned petitioner, provision of the relevant
Act would immediately be attracted. However, in the
present case, as discussed hereinabove, respondent
No.4 was not having three living children at any
point of time. Kalp Sanjaybhai Patel was born on
30.05.2014. The first child of respondent No.4 died
on 28.12.2012. Thus, on the date of the birth of the
so­called third child of respondent No.4, respondent
NO.4 was having only one child, namely, Chaula
Sanjaybhai Patel and Kalp Sanjaybhai Patel was in
fact her second child.

15. In view of the aforesaid facts and circumstances
of the present case, this Court is of the view that
respondent No.4 was not having more than two living
children at any point of time after the SectionAmendment
Act. Thus, respondent authorities have not committed

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any error while not entertaining the application
filed by the petitioner.

16. In light of the above observations, no
interference is required while exercising powers
under SectionArticle 226 of the Constitution of India. The
petition is accordingly dismissed.

(VIPUL M. PANCHOLI, J)
piyush

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