Sunil
Kumar Rana Vs. State of Haryana & Ors [2002] Insc 570 (19 December 2002)
Doraiswamy
Raju & Shivaraj V. Patil. D. Raju, J.
Special Leave Petition (civil) 2990 of 2002
Special
leave granted.
The
appellant filed his nomination on 7.3.2000 for contesting the election to the
Municipal Council, Karnal, as a member from Ward No.31. After overruling the
objections of another candidate (5th respondent) the Returning Officer accepted
the same. The 5th respondent filed a revision challenging the acceptance of the
nomination before the Deputy Commissioner, Karnal, and by an order dated
11.3.2000, the revision was allowed and the nomination paper of the appellant
was ordered to be rejected. The appellant filed C.W.P. No.3141 of 2000 before
the High Court of Punjab and Haryana on 14.3.2000. While the said Writ Petition
was pending, the elections were held on 2.4.2000 and the 5th respondent was
elected as the member of the Municipal Council from Ward No.31. As a result of
the same, on 7.4.2000 the Haryana State Election Commission notified the
results. In view of the said subsequent development, the relief prayed for in
the Writ Petition was also sought to be modified. Finally, by an order dated
31.10.2001, the Division Bench of the High Court dismissed the Writ Petition
holding that the nomination paper of the appellant was rightly ordered to be
rejected.
The
factual basis, which provided the ground for his disqualification and
consequent rejection of the nomination, is that at the time of filing his
nomination, the respondent had four children and that of the said four
children, two were born after the coming into force of the Haryana Municipal
(Amendment) Act, 1994 (Haryana Act No.15 of 1994) the actual date of birth of
them, twins being 11.5.1995, as per the municipal records. The stand of the
appellant was and even now before us is that the relevant date for determining
the disqualification is the coming into force of the Haryana Municipal
(Amendment) Act, 1994 (Haryana Act No.15 of 1994) viz., 4.10.1994, the date of
publication of the Amendment Act in the Government Gazette and not 5.4.1994,
the date of coming into force of the Haryana Municipal (Amendment) Act, 1994 (Haryana
Act No.3 of 1994). The High Court was of the view that the disqualification
will operate after 5.4.1995 on the expiry of the period of one year from
5.4.94, the date of coming into force of the Amendment Act No.3 of 1994. Per
contra, the claim of the appellant was that the disqualification will be
attracted only after 4.10.95 the expiry of one year from the date of coming
into force of the Amendment Act No.15 of 1994.
Heard
the learned counsel appearing on either side. To have a proper appreciation of
the respective contentions of the parties on either side, it becomes necessary
to refer to the relevant provisions of the Act. The Haryana Municipal, 1973 (Haryana
Act 24 of 1973) as it originally stood prior to the amendments in question did
not provide for any such disqualification. It is only for the first time by the
Haryana Act, 3 of 1994, Section 13A came to be inserted, which so far as is
relevant for this case, reads as follows:
"13A.
Disqualifications for membership. (1) A person shall be disqualified for being
chosen as and for being a member of a municipality (a) .
(b) .
(c) If
he has more than two living children:
Provided
that a person having more than two children on or after the expiry of one year
of the commencement of this Act shall not be deemed to be disqualified"
Thereafter, by Haryana Act No.15 of 1994 clause (c) of Sub Section (1) of
Section 13A was amended, as mentioned below:
"2.
Amendment of Section 13A of Haryana Act 24 of 1973 In the Proviso to Clause (c)
of Sub Section (1) of Section 13A of the Haryana Municipal Act, 1973,
(hereinafter called the Principal Act), for the word "after", the
word "upto" shall be substituted." It is the effect of this
amendment that really calls for consideration, in this appeal.
On a
careful consideration of the relevant statutory provisions and the submissions
of the learned counsel on either side, we are of the view that the High Court
could not be said to have erred in the construction adopted, which not only
accord with the intention of the legislature but avoid uncertainty and friction
as well repugnance, which otherwise would result in accepting the stand of the
appellant. The main part of clause (c) of sub-section (1) of Section 13A in
unmistakable terms introduced a disqualification for being chosen as and for
being a member of the Municipality of a person who has more than two living children.
The mandate of the legislature is clear and specific and purports to be in
public interest. At the same time, in order to protect, apparently cases where
child could have by then conceived a reasonable period to relax from the rigour
of the disqualification seem to have been thought of and keeping in view
perhaps the normal gestation period, a proviso in the form of a deeming clause
also appear to have been enacted enjoining at the same time that "a person
having more than two children on or after the expiry of one year of the
commencement of this Act, shall not be deemed to be disqualified".
[Emphasis supplied] The legislative intent thus to compute the period of one
year from the "commencement of this Act" meaning thereby Haryana Act
No.3 of 1994 is equally explicit and clear. There is, therefore, no rhyme or
reason or justification in the claim on behalf of the appellant that the one
year period has to be calculated from the date of coming into force of the Haryana
Act No.15 of 1994, which merely substituted the word "after" by the
word "upto". The result of substitution, as we could see, was to read
the provision as amended by the word, ordered to be substituted. The
legislature seem to have realized the need for substitution on becoming aware
of the anomalies and absurdities to which the provision without such
substitution may lead to, even resulting, at times, in repugnancy with the main
provision and virtually defeating the intention of the legislature. The
modification of the provision, as carried out by the substitution ordered, when
found to be needed and necessitated to implement effectively the legislative
intention and to prevent a social mischief against which the provision is
directed, a purposive construction is a must and the only inevitable solution.
The
right to contest to an office of member of a municipal body is the creature of
statute and not a constitutional or fundamental right. Viewed, thus also, we
are convinced that the interpretation placed by the High Court on the
provisions concerned is neither arbitrary, or unreasonable or unjust to call
for our interference.
The
appeal consequently fails and shall stand dismissed. No costs.
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