BHARATBHAI DHANJIBHAI MODI Vs. COLLECTOR

JUDGEMENT

(1.) WHAT is challenged in this petition under Article 226 of the Constitution of india, is the show-cause-notice dated 14. 5. 2007 issued by the Collector, porbandar under the provisions of clause (h) of sub-section (1) of Section 11 of the gujarat Municipalities Act, 1963 (hereinafter referred to as 'the Act' ). By the said notice, the petitioner is called upon to show-cause why the petitioner should not be removed from the office of Councillor of porbandar Municipality as the petitioner's third child was born on 16. 12. 2006 and thus the petitioner has incurred disqualification under the above clause read with Section 38 which provide that the Councillor who has more than two living children after the period of one year from the date of commencement of the Gujarat Local authorities Laws (Amendment) Act, 2005 (which Amendment Act came into force on 4. 8. 2005) shall be disabled from continuing to be a Councillor and his office shall become vacant. . The petitioner has also challenged the constitutional validity of clause (h) of Section 11 (1) of the Act.

(2.) SECTION 11 (l) (h) of the Act reads as under:

(3.) THE constitutional validity of the above provisions is challenged on the ground that the provisions are violative of the petitioner's fundamental rights under articles 14 and 21 of the Constitution of india, and also on the ground that the said provisions are inconsistent with the provisions of Section 3 (2) of the Medical termination of Pregnancy Act, 1971 which is a Central Act and that by virtue of the provisions of Article 254 of the constitution, the provisions of Section 11 (l) (h) of the Gujarat Municipalities Act, 1963 being inconsistent with the provisions of the Central Act, cannot be permitted to operate.