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2021 DIGILAW 2388 (RAJ)

Ghanshyam Gurjar v. State of Rajasthan

2021-12-20

ASHOK KUMAR GAUR

body2021
ORDER 1. Registry is directed to connect these matters together. S.B. Civil Writ Petition No. 14683/2021:- 2. Learned Additional Advocate General, Mr. Anil Mehta, appears as caveator on behalf of the State and he has been supplied copy of the writ petition. 3. Issue notice to the respondent Nos.5 & 6, returnable on 12.01.2022. Notices be given 'dasti', if prayed. 4. Learned AAG submitted that reply in S.B. Civil Writ Petition No. 14885/2021 has been filed during course of the day and copy of the same has been supplied to learned counsel for the petitioner. S.B. Civil Writ Petition No.14885/2021:- 5. Heard on stay application. 6. Learned counsel for the petitioner submitted that by impugned order dated 13.12.2021, the petitioner has been placed under suspension from the post of Vice Chairman and Member of Ward No.19 of the Municipal Council, Alwar. 7. Learned counsel for the petitioner submitted that prior to suspension, an order dated 07.12.2021 was passed by the District Collector, Alwar, wherein he had referred the matter to the Director cum Special Secretary, Local Self Government in respect of conducting enquiry against the petitioner in respect of having disqualification to be chosen as a member of Municipal Council, Alwar on account of involvement of the petitioner in a criminal case registered under Sections 143, 323, 341 & 325 IPC. The allegation in the said matter was in respect of involvement of the petitioner in a criminal case registered under Section 325 IPC, where the punishment can be up to seven years. 8. Learned counsel for the petitioner submitted that for the same dispute, an election petition has been filed against the petitioner by one of the candidates i.e. Gauri Shankar, where similar allegation about Pre-Election disqualification has been made against the petitioner. 9. Learned counsel for the petitioner submitted that the petitioner has filed reply in the election petition and he has disputed the fact of any charge being framed against him under Section 325 IPC. 10. Learned counsel submitted that once the Pre-Election disqualification is subject-matter of challenge in the election petition, the entire action of the respondent-State is vitiated in the eyes of law. 11. 10. Learned counsel submitted that once the Pre-Election disqualification is subject-matter of challenge in the election petition, the entire action of the respondent-State is vitiated in the eyes of law. 11. Learned counsel submitted that the power given to the State under Section 39 of the Rajasthan Municipalities Act, 2009 (in short 'the Act of 2009') is in respect of removal of a member and the clause(l)(c) of Section 39 of the Act, 2009 is in respect of any of the disqualification incurred by any candidate after his election, as per Section 14 or Section 24 of the Act of 2009. 12. Learned counsel submitted that after election of the petitioner, he has not incurred any disqualification and as such the State Government on the alleged Pre-Election disqualification cannot remove the petitioner as well as cannot suspend him by invoking power under sub-Section (6) of Section 39 of the Act of 2009. 13. Learned counsel for the petitioner submitted that similar provisions, as contained in the Rajasthan Panchayati Raj Act, 2005 relating to disqualification and removal of a member has been considered by Full Bench while passing the judgment in the case of Sameera Bano Vs. State of Rajasthan & Ors. reported in AIR 2007 Raj. 168 . 14. Learned counsel for the petitioner further submitted that as per the earlier Rajasthan Municipalities Act, 1959, the Single Bench of this Court in the case of Julfikar Ali Bhutto Vs. State of Rajasthan & Ors. reported in 2016 (3) WLN 43 (Raj.) has also found that a person, who has Pre-Election disqualification cannot be removed as per Section 63(1) of the Act of 1959. 15. Learned counsel submitted that the entire action of the respondents is to deprive the petitioner to hold the public post without following due procedure of law. 16. Learned Additional Advocate General Mr. Anil Mehta submitted that the petitioner is not entitled for any relief, as action of the respondent-State is fully supported by the sanction of law. 17. Learned counsel submitted that the reliance placed by learned counsel for the petitioner on the judgment of Sameera Bano Vs. State of Rajasthan & Ors. (supra) is not applicable in the present case as the provisions contained in the Rajasthan Panchayati Raj Act were not para-materia with the provisions contained in the Rajasthan Municipalities Act. 18. Learned counsel submitted that the judgment of Julfikar AM Bhutto Vs. State of Rajasthan & Ors. (supra) is not applicable in the present case as the provisions contained in the Rajasthan Panchayati Raj Act were not para-materia with the provisions contained in the Rajasthan Municipalities Act. 18. Learned counsel submitted that the judgment of Julfikar AM Bhutto Vs. State of Rajasthan & Ors. (supra) is also not applicable in the present facts of the case as the Court has considered, in the said judgment, the earlier provisions of the Act of 1959. 19. Learned counsel submitted that the Act of 2009 has made certain changes in Section 63 of the Act of 1959 and now new provisions has been added as Section 39 (l)(d)(v), where it has been provided that if a person has been disqualified from being chosen as a member under the provisions of the Act of 2009, the same person can be placed under suspension in view of the said provision and regular enquiry is required to be conducted even for Pre-Election disqualification and there is no need to file election petition for declaration of such candidate as disqualified. 20. Learned counsel further submitted that serious charges have been leveled against the petitioner of his involvement in the criminal case and as such public representative should not work having such kind of background and it will be against the norms of holding public office which is of great importance. 21. I have heard the submissions made by learned counsel for the parties. 22. Matter requires consideration. 23. This Court prima-facie finds that the election dispute has been raised about eligibility of the petitioner and further reply of the election petition shows that the petitioner has disputed his involvement in the criminal case as he is said to have been acquitted on the basis of compromise entered into between the parties. 24. This Court further finds that the entire exercise of removal or placing the petitioner under suspension has also been initiated at the behest of a candidate, who has already gone in the election petition. 25. This Court prima-facie finds that the order passed by the State Government of placing the petitioner under suspension, is required to be stayed. 26. This Court, as an interim measure, stays the effect and operation of the order dated 13.12.2021 and further directs that the petitioner would be allowed to function as he was working prior to placing him under suspension. 27. 26. This Court, as an interim measure, stays the effect and operation of the order dated 13.12.2021 and further directs that the petitioner would be allowed to function as he was working prior to placing him under suspension. 27. Learned counsel for the respondent-State would be free to move an application for vacation/modification of the stay order. 28. List the matter on 12.01.2022.