Candidate Won’t Incur Disqualification Under Maharashtra Village Panchayats Act If Child Born After Cut-Off Date Is No More: Bombay High Court

Justice Arun R. Pedneker of the Aurangabad Bench set aside the authorities’ order disqualifying a woman on the ground that she had more than two children after the cut-off date.

“Thus a child, born after the cut-off date and has passed away before the nomination is not to be counted for the purpose of disqualification…In the instant case, since the authorities below have proceeded on the basis that, whether the child born after the cut-off date is dead as on the date of nomination is a immaterial fact, that the authorities have committed error in law in passing the impugned orders,” the court held.

Section 14(1)(j-i) of the Act provides that a person having more than two children shall not be a member of the panchayat. However, candidates having more than two children before the cut-off date are protected from disqualification by a proviso to the section.

The petitioner was declared elected unopposed as a member Gram Panchayat Nimgaon Khalu in January 2021. A resident of the village filed a complaint before the Additional Collector, Ahmednagar under section 14(1)(j-1) of the Act. He claimed that she had more than two children and one of the children was born after the cut-off date of September 9, 2001.

The Additional Collector disqualified her, and the appellate authority upheld the order of disqualification. 

Advocate Suvarna Zaware for the petitioner contended before the high court that the child born on February 12, 2002 was a premature child and passed away shortly after birth on April 02, 2002.

Advocate Prashant Nangare for the complainant disputed the birth certificate of the petitioner’s fourth child which records the date of birth as June 10, 2001 (before cut-off date). He argued that this child is actually the child who was born on February 12, 2002 (after cut-off date) as it is not possible to have another child within eight months of the birth of earlier child.

The court relied on the full bench judgement in Subhash Sajesingh Gavit v. Returning Officer and said that the death of the child as well as proviso to Section 14(1)(j-1) would protect the petitioner.

“Since the child born after the cut-off date being dead and more than two children born prior to the cut-off date being protected under the proviso to Section 14 (1)(j-1) of the Maharashtra Village Panchayats Act, 1959, the petitioner would not incur disqualification”.

The court however, noted that the claim of death of the petitioner’s child itself is disputed.

The doctor at the High Court Dispensary informed the court that it is medically possible to have a premature child born within the time frame and such a child would be very week. Hence, the petitioner’s contention that a premature child was born and expired is possible.

The court said that the authorities have not considered the Subhash Sajesingh Gavit case which held that that the number of children has to be considered as on the date of nomination.

“The Collector as well as the appellate authority – the Additional Commissioner has proceeded on the basis that if the candidate has more than 2 children and one of them being born beyond the cut-off date of 12.09.2001 the candidate incurres disqualification,” the court noted.

The court further noted that the authorities did not consider the evidence regarding the demise of the child born on February 12, 2002 which is also disputed.

Hence the court set aside the impugned orders and sent the matter back to the Collector for fresh consideration. It permitted the parties to lead the evidence as to whether the child passed away or not.

The court noted that application for registering the death of the child born on 12.02.2002 is pending. The court advised the Magistrate to decide the application expeditiously as it will have a direct bearing on the case.

Case no. – Writ Petition No. 8629 of 2022

Case Title – Vaishali Chaburao Katore v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 81