ORDER : 1. Petitioner has filed this writ petition aggrieved with the order dated 02.12.2020 passed by respondent No.9/Collector in Revenue Case No./134/B-121/2019-20 whereby the Collector allowed the application filed by respondents No.2 to 8 under Section 41 (1) (a) of the Chhattisgarh Municipalities Act, 1961 (hereinafter referred to as “the Act of 1961”) removing the petitioner from the post of Councillor. 2. Facts of the case in nutshell are that the petitioner was elected as Councillor of Nagar Panchayat - Keshkal in the year 2019. He became successful and got elected as Councillor of Ward No.6 (Mahavir Ward) Keshkal. One Jitendra Rajak has filed election petition under Section 20 of the Act of 1961 in accordance with law which is pending. During pendency of the said election petition, respondents No. 2 to 8 submitted an application before the District Collector under Section 41 (1) (a) of the Act of 1961 seeking a relief of removal of petitioner from the post of Councillor of Ward No.6, Mahavir Ward, Keshkal. The Collector while considering the application submitted by respondents No. 2 to 8 and also reply submitted by the petitioner, allowed the application on the ground that the petitioner suffered disqualification under Section 35 (hh) of the Act of 1961 on account of he being convicted for a period of 2 years by the Court of competent jurisdiction. It is this order of the Collector against which the petitioner has filed this writ petition seeking following reliefs:- “10.1. That this Hon'ble Court may kindly please to issue writ of mandamus/direction and set aside the order dated 02.12.2020 passed by respondent No.9 (Annexure P/1) between Roshan Jamir Khan & Ors. Vs. Sageer Khan and any consequential order i.e. notification for removal from the post of Councillor. 10.2. The Hon'ble Court may kindly be pleased to grant any other relief, as it may deem fit and just. 10.3. Cost of the petition may also be awarded.” 3. Mr. Siddharth Dubey, learned counsel for the petitioner submitted that the application filed by private respondents No. 2 to 8 under Section 41 (1) (a) of the Act of 1961 and the order passed by the Collector on the application filed under Section 41 (1) (a) of the Act of 1961 taking note of Section 35 (hh), disqualification suffered by the petitioner is per se illegal and arbitrary. The Collector ought not to have considered the application under Section 41 (1) (a) of the Act of 1961 in view of the ground raised by the applicants therein for removal. One of the unsuccessful candidate has already filed an application under the provision of law which is stated to be pending consideration and therefore on the same ground, second application is not maintainable. It is next contended that the ground on which the petitioner has been removed is not available in the proceedings under Section 41 (1) (a) of the Act of 1961. Respondent No.9 has not recorded the satisfaction as required for removing any Councillor in the proceedings under Section 41 (1)(a) of the Act of 1961. It is contention of learned counsel for the petitioner that the ground raised in the application is with regard to disqualification of petitioner on the ground of conviction for a period of 2 years. Ground for removal under Section 41 (1)(a) of the Act of 1961 and for the disqualification on the date of election or subsequent disqualification, different provisions are provided under the Act of 1961. Under Section 41 (1)(a) of the Act of 1961, the Collector may at any time remove the elected Councillor only on the ground mentioned therein and assigning the reason. For removing the Councillor on account of subsequent disqualification, specific provision is provided under Section 38 of the Act of 1961 which is not invoked and further in the impugned order, the Collector has not assigned reason as provided under Section 41 (1) (a) of the Act of 1961. Passing of order without forming an opinion as provided under Section 41 (1)(a) of the Act of 1961, Collector has committed gross illegality. Reason recorded for removing is of disqualification and therefore if any of the elected Member comes to conclusion that any of the elected Member suffered disqualification then it can be requested for removal under Section 38 of the Act of 1961. In support of his contention, he places reliance upon the decision of Hon’ble Supreme Court in the case of Sharda Kailash Mittal Vs. State of Madhya Pradesh and Ors., (2010) 2 SCC 319 . 4. Mr. In support of his contention, he places reliance upon the decision of Hon’ble Supreme Court in the case of Sharda Kailash Mittal Vs. State of Madhya Pradesh and Ors., (2010) 2 SCC 319 . 4. Mr. Raghavendra Pradhan, learned Additional Advocate General for the State opposed the submission of learned counsel for the petitioner and submitted that six elected Councillors submitted an application under Section 41 (1)(a) of the Act of 1961 specifically pleading that petitioner was convicted by the Court of competent jurisdiction for commission of offence under Sections 294, 332, 451 of IPC and sentenced for 1 month RI and fine of Rs.200, RI for 2 years and fine of Rs.500/-, RI for 1 year and fine of Rs.500/- respectively. Order of conviction is passed by learned Judicial Magistrate First Class, Keshkal on 08.04.2019, against which petitioner preferred an appeal before the District and Sessions Judge Kondagaon which also came to be dismissed on 27.02.2020 and further pleaded that petitioner is of criminal mentality and therefore he is disqualified to hold the post of Councillor in view of provision under Section 35 (hh) of the Act of 1961. Referring to provision under Section 41 (1) (a) and Section 41-A of the Act of 1961, it is submitted that power for removal of the Councillor is with the Collector and power to remove President or Chairman of Committee is with State Government. Petitioner is having alternate efficacious remedy under Section 41 (4) of the Act of 1961, hence, the writ petition is not maintainable. Election petition is filed by some other person and therefore it will not operate as res judicata and the proceedings under Section 41(1)(a) of the Act of 1961 is entirely different proceeding. In view of aforementioned ground, it is submitted that writ petition be dismissed. 5. Mr. Rajeev Shrivastava, learned Senior Advocate along with Mr. Vikas Shrivastava appearing for the private respondents, vehemently opposing the submission of learned counsel for the petitioner, submitted that petitioner suppressed material fact of his conviction while submitting his Nomination Paper and has intentionally not disclosed the fact of his conviction. Second highest vote taker has filed election petition which is pending consideration. Vikas Shrivastava appearing for the private respondents, vehemently opposing the submission of learned counsel for the petitioner, submitted that petitioner suppressed material fact of his conviction while submitting his Nomination Paper and has intentionally not disclosed the fact of his conviction. Second highest vote taker has filed election petition which is pending consideration. During pendency of proceedings filed by answering respondents under Section 41 (1)(a) of the Act of 1961, the petitioner has initially filed writ petition bearing WPC No.2893 of 2020, however, the said petition was withdrawn upon bringing to the notice that the final order is passed by the Collector. Nature of Section 41 of the Act of 1961 is an intent to preserve the rights of public, in general, and safeguard from any misconduct by the elected representative. There is no specific bar on the Collector of not using the ground as mentioned under Section 35 (hh) of the Act of 1961. As the petitioner by playing fraud has submitted his nomination and got elected, petitioner is estopped to raise the ground as raised in this writ petition. Safeguard as provided under Article 243-ZG of the Constitution of India is not available to the petitioner in the facts of the case. Petitioner is having alternate efficacious remedy of appeal under Section 41 (4) of the Act of 1961 and therefore writ petition be dismissed. 6. I have heard learned counsel for the parties as also perused the documents annexed along with writ petition. 7. Undisputedly the petitioner is an elected Councillor of Ward No.16 (Mahavir Ward) Keshkal. Election of petitioner is put to challenge by one Jitendra Rajak (unsuccessful candidate) by filing election petition as provided under Section 20 of the Act of 1961. In the election petition, one of the ground taken is the same ground, which is subject matter of application filed under Section 41 (1)(a) of the Act of 1961. Respondents No. 2 to 8 who are the elected Councillors have filed an application under Section 41 (1)(a) of the Act of 1961 before the Collector. Provision of Section 41 which is relevant is extracted below for ready reference:- “41. Respondents No. 2 to 8 who are the elected Councillors have filed an application under Section 41 (1)(a) of the Act of 1961 before the Collector. Provision of Section 41 which is relevant is extracted below for ready reference:- “41. Removal of Councillor.-[(1) The Collector may, at any time remove an elected Councillor- (a) if his continuance as a Councillor, is not, in the opinion of the Collector, desirable in the interest of the Public or of the Council; or [(a- 1) if it is found that he does not belong to the reserved category for which the seat was reserved; or] (b) if the Council has, by a resolution supported by atleast two-third of the total number of Councillors, recommended that the Councillor is not fit to continue as a Councillor on account of misconduct in the discharge of his duties or disgraceful conduct. (2) The Collector may at any time, remove any elected Councillor if he, being a legal practitioner, acts or appears on behalf of any other person against the Council in any legal proceedings or against the State Government in any such proceeding relating to any matter in which the Council is or has been concerned, or acts or appears on behalf of any person in any criminal proceedings instituted by or on behalf of the Council against such person. (3) The Collector may, while ordering the removal under Section 40 or this Section, also order that such Councillor shall not be eligible to become a Councillor of a Municipal Council or Nagar Panchayat, as the case may be, for its next term: Provided that no resolution recommending the removal of any Councillor shall be passed by the Municipal Council or Nagar Panchayat, as the case may be, nor any such order of removal shall be passed by the Collector unless such Councillor has been given a reasonable opportunity of showing cause. (4) An appeal against the order passed under sub-sections (1), (2) or (3) of this Section or Section 40 shall lie to the State Government within thirty days of the date on which the order is conveyed to the aggrieved party: Provided that the State Government may after giving a reasonable opportunity of being heard, pass such order on the appeal as it may think fit.]” 8. Section 41-A of the Act of 1961 which is also necessary is extracted below for ready reference:- “41-A. Removal of President or Chairman of a Committee.-[(1) The State Government may, at any time, remove a President, Vice President or a Chairman of any Committee, if his continuance as such is not, in the opinion of the State Government desirable in public interest or in the interest of the Council or if it is found that he is incapable of performing his duties or is working against the provisions of the Act or any rules made thereunder [or if it is found that he does not belong to the reserved category for which the seat was reserved.] (2) The State Government may, while ordering the removal under sub-section (1), also order that such President, Vice President or Chairman of any Committee shall be disqualified to hold such post for the next term : Provided that no such order under this Section shall be passed unless a reasonable opportunity of being heard is given.” 9. Perusal of the aforementioned two provisions would show that Section 41 of the Act of 1961 talks of removal of Councillor and Section 41-A of the Act of 1961 talks of removal of President or Chairman of the Committee. Perusal of impugned order passed by the Collector would show that petitioner was removed invoking jurisdiction under Section 41 (1)(a) of the Act of 1961 for which the Collector has to record his opinion that continuance of said Councillor is not desirable in the interest of public or the Council. In the impugned order, Collector has not recorded such opinion as provided under Section 41 (1)(a) of the Act of 1961, however, the reason assigned for passing the order is that the petitioner suffered disqualification under Section 35 (hh) of the Act of 1961. For removal of the Councillor, such ground is not available under Section 41 of the Act of 1961 but the provision under Section 35 talks of disqualification of candidate for election or nomination as President or election or nomination as Councillor. Relevant portion of Section 35 is extracted below for ready reference:- “35. For removal of the Councillor, such ground is not available under Section 41 of the Act of 1961 but the provision under Section 35 talks of disqualification of candidate for election or nomination as President or election or nomination as Councillor. Relevant portion of Section 35 is extracted below for ready reference:- “35. Disqualification of candidates: [No person shall be eligible for election or nomination as a President or election or nomination as a Councillor] if he- x x x x x x [(h) has been convicted of an offence punishable under Section 153-A or Section 171-E or Section 171-F or sub-section (2) or sub-section (3) of Section 505 of the Indian Penal Code, 1860 (No. 45 of 1860) or under the Protection of Civil Rights Act, 1955 (No. 22 of 1955) or under Section 125 of the Representation of the People Act, 1951 (No. 43 of 1951), or Sections 3 and 4 of the Dowry Prohibition Act, 1961 (No. 28 of 1961), or Section 10 or Section 11 of the Chhattisgarh Local Authorities (Electoral Offences) Act, 1964 (No. 13 of 1964) unless a further period of six years has elapsed since his release after undergoing the sentence; (hh) has been convicted by a Court in India for any offence not falling under clause (h) and sentenced to imprisonment for a period of not less than two years unless a further period of six years has elapsed since his release after undergoing the sentence;” 10. Section 38 of the Act of 1961 deals with effect of subsequent disabilities. Provision under Section 38 of the Act of 1961 is extracted below for ready reference:- “38. Section 38 of the Act of 1961 deals with effect of subsequent disabilities. Provision under Section 38 of the Act of 1961 is extracted below for ready reference:- “38. Effect of subsequent disabilities.-[(1) If any[President or Councillor]- (a) becomes disqualified under sub-section (1) of Section 31 and his name is struck off from the electoral roll under sub-section (1-A) of that section; or (b) becomes subject to any of the disqualifications specified in Section 35 and such disqualification is not removable or being removable is not removed; or (c) absents himself during six consecutive months from the meetings of the Council, except with the leave of the Council; or [(cc) becomes disqualified for being chosen as and for being a President or Councillor under Section 32-C;] (d) becomes incapable of acting; or (e) acts as [President or Councillor] in any matter- (i) in which he has directly or indirectly, by himself or his partner, any share or interest, as is described in clause (i) of Section 35; or (ii) in which he is professionally interested on behalf of a client, principal or other person; or [(ee) [* * *];] (f) fails to pay any arrears of any kind due by him to the Council on a demand made therefor under Section 53, within the period specified therein; he shall subject to the provisions of sub-section (2), cease to be a [President or Councillor] and his seat shall become vacant with effect from a date to be notified by the State Government, (2) No Councillor shall cease to be Councillor under sub-section (1) until the prescribed authority on its own motion or on an application made to it by any person in this behalf, decides that such a Councillor has incurred the disqualifications on any of the grounds specified therein and communicates the decision in relation thereto to such Councillor : Provided that no order shall be passed by the prescribed authority under this sub-section against any Councillor without giving him a reasonable opportunity of being heard,]” 11. Sub Section (1) (b) of Section 38 of the Act of 1961 mentions one of the effect of disabilities under Section 35 to be ceased as Councillor and his seat shall become vacant subject to provision of sub-Section (2). 12. Sub Section (1) (b) of Section 38 of the Act of 1961 mentions one of the effect of disabilities under Section 35 to be ceased as Councillor and his seat shall become vacant subject to provision of sub-Section (2). 12. From perusal of the order (Annexure P-1) it is appearing that order is passed by the Collector under the provision of Section 41 (1) (a) of the Act of 1961. However, the concluding line of the order would reflect to be an order under the provision of Section 38 of the Act of 1961. 13. Hon’ble Supreme Court in the case of Sharda Kailash Mittal (supra) while dealing with issue of removal of the Vice President of Nagar Panchayat has observed thus:- “12. The above Section 41-A vests the State Government with power to remove the President, Vice-President or a Chairman of any Committee, if his continuance in the office is not found desirable in public interest or in the interest of the Council. A conjoint reading of other provisions such as Sections 20, 22 and 41-A as also the Article 243-ZG of the Constitution of India would make it amply clear that resort to Section 41-A can be had to remove a person from the office only after he/she is duly elected and his/her conduct in office is otherwise found prejudicial to public interest or in the interest of the Council.” 14. So far as argument raised by learned counsel for the respective respondents with regard to maintainability of writ petition in view of provision under Section 41 (4) of the Act of 1961 is concerned, on the first date of hearing, this Court, considering that no opinion was formed /recorded that removal of Councillor is necessary in the interest of public or the Council, has granted interim relief in favour of petitioner on 24.12.2020. The said opinion regarding removal of the Councillor to be in the interest of public or Council is not there and further considering that from the date of filing of this petition, extending the benefit of interim relief, almost three years have already passed and therefore though there is provision of appeal under Section 41 (4) of the Act of 1961, I am not dealing with the said ground raised by respondents and considering the petition filed by the petitioner on merits. Even otherwise, having alternate remedy is not absolute bar for exercising the jurisdiction under Article 226 of the Constitution of India. 15. The reason required for removal of Councillor under Section 41 (1) (a) of the Act of 1961 is not forming part of order and the reason assigned is not available for consideration in the proceedings under Section 41 of the Act of 1961 and therefore in the opinion of this Court, order passed by the Collector is not sustainable. 16. For the aforementioned reasons and discussions, in the opinion of this Court, the order dated 02.12.2020 passed by the Collector under provision of Section 41 (1) (a) of the Act of 1961 is not sustainable. Accordingly, it is set aside. However, this order will not come on the way if any appropriate proceedings is filed by any of the parties or initiated by competent authority. 17. The writ petition is accordingly allowed.