Sayyed Asif Ali Noor Ali Vs the State Election Commission and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION
 Public Interest Litigation No. 71 of 2007
 Sayyed Asif Ali Noor Ali
 Age 51, Indian Inhabitant
 Chairman of Defence of India
 Muslim Organisation, having
 its office at 50, Mangalwar Yard
 Pawar Galli, Malegaon,
 Nasik 428 203 ..Petitioner
 vs.

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 1. The State Election Commission
 having its office at New
 Administrative Building,
 Opp: Mantralaya, Madam Cama
 Road, Mumbai 400 032
 1A.Malegaon Municipal Corporation
 Malegaon, Dist. Nasik.

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2. The state of Maharashtra through its Secretary, Urban Development Department Mantralaya, Mumbai 400 032

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 3. Union of Inmdia through the
 Department of Home Minister

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4. The Election Commission of India, New Delhi ..Respondents

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 Mr.Girish Kulkarni i/b Mrs.Swati Deshpande for
 petitioners.

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 None for respondents.

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 Judgment Reserved on: 20.6.2007
 Judgment Delivered on:19.7.2007

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CORAM: SWATANTER KUMAR C.J.
AND
S.C.DHARMADHIKARI J.

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19th July, 2007

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ORAL ORDER:(Per S.C.DHARMADHIKARI J.)

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 1. The petitioner is a citizen of India and residing at
 Malegaon, District Nashik. He claims to be a social
 worker taking up various issues in the interest of society
 at large with the appropriate authorities.

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 2. In this petition under Article 226 of the Constitution
 of India, the challenge by the petitioner is to the
 decision of respondent nos. 1 and 2 whereunder the
 persons having more than two children are disqualified and
 ineligible to contest the election to the Local Bodies
 within the State of Maharasthra.

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 3. The State Election Commission on 12th July, 2001
 issued a circular bringing to the notice of all concerned
 that the assent of the Governor of the State has been
 obtained to Maharashtra Municipal Corporation and Nagar
 Parishad, Nagar Panchayat and Industrial Township (2nd
 amendment) Act, 1995 so also to the amendment in Bombay
 Village Panchayat Act and Maharashtra Zilla Parishad and

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 Panchayat Samitis (Amendment) Act, 1995. In the light of
 the same, the amendment has come into force and as on the
 date of the amended provisions i.e. from 13th September,
 2000 any person/candidate having two issues and the same
 are surviving, then, he shall not be eligible to contest
 the election to the above bodies. However, if between
 13th September, 2000 till 12th September, 2001 i.e.
 within a period of one year, if one or more issues are
 delivered in a single pregnancy, then, this would not be
 taken into consideration for the purpose of above
 disqualification.

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 4. We are not concerned with the further clarification
 because the only submission that has been made before us
 by Mr.Kulkarni appearing for the petitioner is that no
 such condition or eligibility criteria is prescribed for
 the elections to the Maharashtra Legislative Assembly or
 Parliamentary Elections. Therefore, prescribing such
 qualification only for the election to local bodies is per
 se Arbitrary and Discriminatory. The Circular and
 amendment violates the mandate of Article 14 of the
 Constitution of India.

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 5. The controversy raised in this petition is no longer
 Res Integra. In Javed and others Vs. State of Haryana

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 and others reported in A.I.R.2003 Supreme Court 3057
 identical challenge was raised to the provisions of
 similar nature to be found in Haryana Panchayati Raj Act
 (Act 11 of 1994). While rejecting the challenge this is
 what is observed by the Hon’ble Supreme Court:

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 "12. It was submitted that though the State of
 Haryana has introduced such a provision of
 disqualification by reference to elective offices
 in panchayats, a similar provision is not found to
 have been enacted for disqualifying aspirants or
 holders of elective or public offices in other
 institutions of local self-governance and also not
 in State Legislatures and Parliament. So also all
 the states, i.e. other than Haryana have not
 enacted similar laws and, therefore, it appears
 that people aspiring to participate in Panchayati
 Raj governance in the state of Haryana have been
 singled out and meted out hostile discrimination.
 The submission has been stated only to be rejected.
 Under the constitutional scheme there is a well
 defined distribution of legislative powers
 contained in Part XI of the Constitution. The
 Parliament and every State Legislature has power to
 make laws with respect to any of the matters which

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 fall within its field of legislation under Article
 246 read with Seventh Schedule of the Constitution.
 A legislation by one of the States cannot be held
 to be discriminatory or suffering from the vice of
 hostile discrimination as against its citizens
 simply because the Parliament or the Legislatures
 of other States have not chosen to enact similar
 laws. Such a submission if accepted would be
 violative of the autonomy given to the Centre and
 the States within their respective fields under the
 Constitutional scheme.

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 13. Similarly, legislations referable to different
 organs of local self-government, that is,
 Panchayats, Municipalities and so on may be, rather
 are, different. Many a time they are referable to
 different entries of Lists I, II and III of the
 Seventh Schedule. All such laws need not
 necessarily be identical. So is the case with the
 laws governing legislators and parliamentarians.

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 14. It is not permissible to compare a piece of
 legislation enacted by a State in exercise of its
 own legislative power with the provisions of
 another law, though pari materia it may be, but

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 enacted by Parliament or by another State
 legislature with its own power to legislate. The
 sources of power are different and so do differ
 those who exercise the power. The Constitution
 Bench in the State of Madhya Pradesh
 Vs.G.C.Mandawar, (1995)2 SCR 225, held that the
 power of the Court to declare a law void under
 Article 13 has to be exercised with reference to
 the specific legislation which is impugned. Two
 laws enacted by two different Governments and by
 two different legislatures can be read neither in
 conjunction nor by comparison for the purpose of
 finding out if they are discriminatory. Article 14
 does not authorize the striking down of a law of
 one State of the ground that in contrast with a law
 of another State on the same subject, its
 provisions are discriminatory. When the sources of
 authority for the two statutes are different,
 Article 14 can have no application. So is the view
 taken in The Bar Council of Uttar Pradesh V. The

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 State of U.P. and another (1973) 1 SCC 261; State
 of Tamil Nadu and others v. Ananthi Ammal and
 others, (1995) 1 SCC 519 and Prabhakaran Nair and
 others vs. State of Tamil Nadu and others, (1987)
 4 SCC 238."

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 In our view, in the light of the above observations and
 further clarification issued by the Hon’ble Supreme Court
 in the decision reported in A.I.R.2004 S.C.5100 (Zile
 Singh Vs. State of Haryana and others) the challenge

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 raised before us cannot be sustained.

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 6. No other ground is pressed nor the
 provisions/circulars challenged by raising other
 contentions. The only contention raised being

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 unsustainable in the light of pronouncement of the Hon’ble
 Supreme Court, the writ petition fails and is dismissed
 summarily.

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(CHIEF JUSTICE)

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(S.C.DHARMADHIKARI J.)

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Sayyed Asif Ali Noor Ali v. the State Election Commission and Ors.

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Sayyed Asif Ali Noor Ali v. the State Election Commission and Ors.

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