JUDGMENT
A.K. Parichha, J.
1. In this Writ Petition the petitioner has assailed the order dated 23.4.2004 passed by the Learned Addl. District Judge, Nayagarh in Election Misc. Appeal No. 1 of 2004 affirming the order dated 16.1.2004 passed by the Learned Civil Judge (Junior Division), Nayagarh allowing the Election Misc. Case No. 17 of 2002 filed by the present Opp. Party No. 1 declaring the election of the petitioner as Sarpanch of Baghuapalli Grama Panchayat null and void.
2. Bereft of unnecessary details the fact leading to the present writ petition is that in the election held for the post of Sarpanch, Baghuapalli Grama Panchayat in the year 2002 the petitioner, Opp. Party No. 1 and others had filed their nomination papers and accordingly contested the election. The petitioner having polled the highest number of votes was declared as elected Sarpanch of the Baghuapalli Grama Panchayat and was allowed to assume the office of Sarpanch. Opp. Party No . 1 who had polled third highest votes filed a petition under Section 31 of the Orissa Grama panchayat Act (hereinafter referred to as ‘the act’) before the learned Civil Judge (Jr. Division), Nayagarh vide Election Misc. Case No. 17 of 2002 with a prayer to declare the election of the petitioner as null and void basically on the plea that the petitioner had more than two children on the date of filing nomination paper for the election and was disqualified under the provision of Section 25(1)(v) of the Act. Opp. Party No. 1 also simultaneously filed a petition under Section 5 of the Limitation Act praying the court to condone the delay in presentation of the petition under Section 31 of the Act with a plea that due to illness and intervening summer vacation, he could not present the petition within the prescribed time. The petitioner appeared and filed written statement refuting the allegation of Opp. party No. 1 and pleading inter alia that the disqualification provided under Section 25(1)(v) of the Act is not applicable to him as twin children were born in the second conception of his wife. He also challenged that the petition of Opp. Party No. 1 filed under Section 31 of the Act is barred by limitation and there is no ground to condone the delay. Considering the pleadings of the parties learned Civil Judge (Jr. Division), Nayagarh framed as many as five issues and received evidences of the parties. The present Opp. Party No. 1 as petitioner in the election petition examined five including himself and produced number of official and private documents which were marked Exts. 1 to 14. The present petitioner as Opp. Party No. 1 examined ten witnesses including himself but did not adduce any documentary evidence. After considering the oral and documentary evidence adduced by the parties learned Civil Judge came to hold that there is good ground for condonation of delay in presentation of the Election Misc. Case. He also held that the present petitioner had three children on the date of nomination and was disqualified under Section 25(1)(v) of the Act. He accordingly declared the election of the petitioner null and void. Aggrieved, the petitioner carried Election Misc. Appeal No. 1 of 2004 before the learned Addl. District Judge, Nayagarh. The said appeal having been dismissed and the order passed by the Learned Civil Judge (J.D.), Nayagarh in Election Misc. Case No. 17 of 2002 confirmed, petitioner has filed the present Writ Petition with a prayer to quash the judgements of Election Misc. Case No. 17 of 2002 and Election Appeal No. 1 of 2004 annexed to the Writ Petition as Annexures 3 & 4.
3. Though several grounds have been taken by the petitioner in the Writ Petition, Mr. S. P. Mishra, Learned Counsel for the petitioner confines his submission only relating to the interpretation of the provision of Section 25(1)(v) of the Act. According to him, disqualification provided in Section 25(1)(v) of the Act does not apply to a candidate who begets twin children in the second conception. According to him, the birth of twin or triplet on the second pregnancy being an act of God and not within the control of the parents, disqualification as provided under Section 25(1)(v) of the Act would not be applicable to such helpless parents.
4. Mr. A.K. Acharya, Learned Counsel for Opp. Party No. 1 while supporting the impugned judgments submitted that the provision of Section 25(1)(v) of the Act being specific and no exception having been provided, any person having more than two children stands disqualified from contesting an election for Ward member or Sarpanch of a Grama Panchayat.
5. In view of the rival submissions of the Learned Counsel for the respective parties, the only point for determination is whether birth of twin in the second pregnancy would save the parents from disqualification provided under Section 25(1)(v) of the Act even though such parents had more than two living children on the date of filing a nomination for the election. Section 25(1)(v) reads thus :
“Section 25. Disqualification for membership of Grama Panchayat: (1) A person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he :
(v) has more than two children :
Provided that the disqualification under Clause (v) shall not apply to any person who has more than two children on the date of commencement of the Orissa Grama Panchayats (Amendment) Act, 1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year.”
One of the objectives of the above enactment is to popularize family welfare/family planning programme. This is consistent with the national population policy. Clause (b) of the Article 243-G of the Constitution of India provides that Grama Panchayats may be entrusted the powers to implement the schemes for economic development and social justice including family welfare, woman and child development. So one of the duties of the Grama Panchayat is implementation of family welfare programme, which includes family planning as well. To carry out the purpose of the Act as well as the mandate of the Constitution, the Legislatures made a provision for making a person having more than two living children by the cut off date ineligible to contest for the post of Ward Member or Sarpanch of a Grama Panchayat. The disqualification provided seeks to achieve the socio-economic welfare and health care of the masses and is also consistent with the national population policy. Considering this purpose the Apex Court have held in the case of Javed and Ors. v. State of Haryana and Ors., that disqualification of a person with more than two living children from holding Panchayat Office is not violative of Article 14 of the Constitution.
6. The contents of Section 25(1)(v) of the Act and the underlying purpose of providing such disqualification propound loud and clear that a person having more than two living children cannot hold the panchayat office. Now the subtle question is whether the words “two children” can be read as two pregnancy and whether twin or triplet born on the second pregnancy can be taken as one child for the purpose of deciding the disqualification provided under Section 25(1)(v) of the Act. In this context some of the case laws of this Court and the Apex Court have come to our notice. In the case of Pravakar Pradhan v. Bhaktabandhu Sahoo and Ors., 1998 (II) OLR 690 the opposite party filed election petition challenging the election on ground that the petitioner was disqualified to be a candidate or, the ground of having more than two children. Petitioner had one child in the first pregnancy, but his wife gave birth to twin on the second pregnancy. Since the petitioner had three children living the Trial Court allowed the election petition and declared the election of the petitioner null and void. The petitioner came up in appeal and prayed for stay of operation of the judgment of the Trial Court. The Appellate Court rejected that prayer. The petitioner then came to this Court. Learned Single Judge inseisin of the matter held that the petitioner having three living children prima facie case of disqualification was there and accordingly refused to grant stay of operation of the judgment of the Trial Court. The issue as to whether the birth of twin children on the second pregnancy would be counted as one child for the purpose of Section 25(1)(v) of the Act was not discussed in the said case. In the case of Jived and Ors. v. State of Haryana and Ors. (supra) the vires of Section 175(1)(q) of Haryana Panchayati Raj Act (which is similar to Section 25(1)(v) of the O.G.P. Act) had been challenged. Amongst several contentions one of the contentions from the side of the petitioner was that there may be cases where twin or triplet are born on the second pregnancy and consequently both the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Their Lordships observed that such are not normal cases and the validity of the law cannot be decided by applying it to abnormal situations as exceptions do not make the rule nor render the rule irrelevant. Such observation of the Apex Court very subtly points out that though the disqualification provided is intra vires and is meant for furtherance of socio-economic cause, there may be genuine, exceptions which can be taken into consideration. The intention of providing the disqualification contained in Section 25(1)(v) of the Act is to prompt the citizens to follow the family welfare/family planning norms and to save the nation from population explosion. The other underlying purpose is that persons holding Panchayat and Local Board offices should act as role models for the society inspiring the people to follow their conduct in the matter of family welfare and family planning. The disqualification provision is thus meant for persons not adhering to the family welfare norms or flouting the family planning programme. In other words, if a person deliberately begets more than two children and flouts the family planning norms and thereby offends socio-economic programme, he is to be disqualified under Section 25(1)(v) of the Act. Birth of twin or triplet on the second pregnancy is not a normal feature, but a freak of divinity. Such birth of twin or triplet not being an intentional act of the person concerned, the person cannot be accused of violating the family welfare/family planning norms or offending the cause of social justice. Disqualifying such a person who had no intention of procuring more than two children and who had no control over the number of children born during second pregnancy could not have been the intention of the law makers when they enacted Section 25(1)(v) of the Act as disqualifying such person would be against equity and fair legal norms.
7. For all these aforesaid reasons, we are of the considered view that if a person has twin children on the first pregnancy, birth of any child or children on second pregnancy would disqualify him; but if a person has one child from the first pregnancy and gets twin or triplet on second pregnancy, he cannot be disqualified under Section 25(1)(v) of the Act.
8. In the present case the oral evidence and the records maintained by the public authority relating to death and birth of the locality clearly show that the petitioner had one daughter from the first pregnancy and twin sons on the second pregnancy of his wife. So, in view of the above noted ratio, he could not be disqualified from holding the office of the Grama Panchayat under Section 25(1)(v) of the Act. We, therefore, quash the impugned judgments under Annexures-3 & 4 and allow the Writ Petition. Taking note of the peculiar circumstances of the case, we direct the parties to bear their own costs.
P.K. Tripathy, J.
9. I agree.