YASHWANT KUMAR SAHU Vs. STATE OF C G

JUDGEMENT

(1.) IN this batch of writ petitions the petitioners have challenged the constitutional validity of the provision of clause (m) of sub-section 1 of Section 36 of Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short the Adhiniyam). The relevant provisions are extracted hereunder:

(2.) THE Act No. 14 of 2000 was enacted with various objects based on the past experience and in view of the shortcomings noticed in the implementation of proceeding laws and also to bring the legislation in conformity with Part IX of the Constitution of India relating to 'the Panchayats' added by the seventy third amendment and the objective behind was to disqualify persons for election of Panchayats having more than two children on or after 26th day of January, 2001, the date of commencement of the Act to popularize family welfare/family planning programme. By insertion of clause (m) of sub-section 1 of section 36 of the Adhiniyam a provision has been made to disqualify a person having more than two children from holding the office of the office bearer of the Panchayat even though the Act got assent of the Governor on 9-5-2000 and published in the M.P. Gazette (extraordinary) dated 23rd May 2000. But the enforcement of the disqualification was postponement upto 26th January 2001. A person having more than two children before 26th January 2001 was not disqualified. This postponement upto 26th January 2001 was with a view to take care of any conception on or around the commencement of the Act. If a woman has conceived before the commencement of the Act then any one of such couples would not be disqualified. Though not disqualified on the date of election if any person holding any of the said offices incurs a disqualification by giving birth to a child on or after 26th January 2001 becomes subject to disqualification and is disabled from continuing to hold the office. The disability is incurred by the birth of the child which resulted in increasing the number of living children including the additional child born on or after 26th January 2001.

(3.) '. Learned counsel for the parties very fairly and frankly admitted that the points raised in these writ petitions are squarely covered by the decision of the Apex Court Javed and Others Vs. State of Haryana and Others1, in which vires of similar provision of section 175(1)(q) of Haryana Panchayati Raj Act, 1994 was challenged. In the said case the Apex Court has held the provision of section 175(1)(q) to be intra vires. Provision of