Rakesh Ghatiwal Vs. State of Raj. and anr. - Court Judgment

Excerpt:
[a] rajasthan municipalities act. 1959 - sections 26(xiv), 63 --suspension of elected member on allegation that fourth child was born which was a disqualification under section 26(xiv) for the election--suspension of member--enquiry--writ against an order of suspension and enquiry dismissed--single bench not committed any error in dismissing the writ--respondents directed to complete enquiry.;[b]rajasthan municipalties act, 1959 - section 26(xiv) & 63--constitution of india, 1950--articale 243zg--suspension of member disqualified under section 26(xiv)--initiation of inquiry under municipalities act--plea of petitioners that no proceeding can be taken under municipalities act not sustainable--in such type of cases, no need to proceed by way of separate election petititon ;special appeal dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - similar complaint was filed by the defeated candidate before the sdo, jodhpur, to which also the petitioner had filed objection on 10.6.2000 at annex.ordershethna, j.(1). the appellant-original petitioner has challenged in this special appeal the judgment and order dated 26.5.2000 passed by the learned single judge in s.b. civil writ petition no. 1544/2000 whereby the learned single judge dismissed the writ petition of the appellant petitioner challenging the impugned order of suspension dated 8.5.2000 (annex. 6) and enquiry initiated against him.(2). the appellant-petitioner was elected as member of the municipal corporation, jodhpur in the election held on 26.11.99. a complaint was made against him by shri rajesh borana that 4th child was born at the place of the petitioner on 20.10.99, therefore, he incurred disqualification under section 26 of the rajasthan municipalities act, 1959 (hereinafter referred to as 'the act'). thereupon, respondent no.1 issued a notice dated 15.3.2000 (annex. 2) against the petitioner calling upon him to explain within seven days. reply dated 29.3.2000 at annex. 3 was submitted wherein, it was contended that the notice was without jurisdiction as by virtue of article 243zg of the constitution, no election to any municipality shall be called in question to any municipality shall be called in question except by an election petition, therefore, the impugned notice is vitiated. similar complaint was filed by the defeated candidate before the sdo, jodhpur, to which also the petitioner had filed objection on 10.6.2000 at annex. 4. the notice issued by the sdo is at annex. 5. by the impugned order dated 8.5.2000, the petitioner was placed under suspension. the said order of suspension and enquiry were challenged by the petitioner by way of writ petition which was dismissed by the learned single judge. hence, this special appeal.(3). the only submission raised by mr. vineet kothari in the special appeal was that it was not open to the respondents to proceed against the appellant-petitioner under the provisions of rajasthan municipalities act. he submitted that if the appellant-petitioner had incurred any disqualification prior to his election, then the only remedy available to them was to proceed against him u/art. 243zg of the constitution by way of election petition and not under the provisions of rajasthan municipalities act. it was submitted by the learned counsel mr. kothari for the appellant-petitioner that the allegation against the petitioner is that fourth child was born at his place on 20.10.99, whereas he was elected on 26.11.99, therefore, disqualification if any incurred by the petitioner was not after his election, but before that, therefore, the respondents could not proceed against him under the provisions of rajasthan municipalities act.(4). the general disqualification for the members is under section 26 of the act. under section 26(xiv), a person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as (or for being) a member of a board who has more than two children. the cut off date for 3rd child is 27.11.95 as per proviso (e) to section 26 of the act.(5). section 63 provides for removal of members. under section 63(1) of the act, the state government may, subject to the provisions of sub-section (2) & (3) remove a member of a board on any of the following grounds.'(a).............(b)....................(c) that after his election he has incurred any of the disqualification mentioned in section 18 or section 26.............'(6). under sec. 63(4) of the act, the state government may place under suspension a member against whom proceedings have been commenced under the section.(7). on the basis of section 63(1)(c) of the act, it was vehemently submitted by the learned counsel mr. kothari that even assuming for the sake of argument that 4th child was born at his place then it was born on 20.10.99 before his election on 26.11.99, therefore, it was not open to the respondents to proceed against the appellant under the provisions of municipalities act. at the first look, this submission of mr. kothari is found to be attracting, but on closure scrutiny of it found without substance. if he had already 3rd or 4th child after cut off date of 27.11.95, then he had already incurred disqualification and after fourth child was born at his place on 20.10.99, undertion 26(xiv) of the act, he was otherwise disqualified from contensting election. merely because he was elected on 26.11.99 and the 4th child was born at his place on 20.10.99, it is not proper to the appellant to plead that respondents cannot proceed against him under the municipalities act. in our considered opinion, section 63(1)(c) of the act has to be construed as having already incurred disqualification mentioned in section 18 or section 26. in such type of cases, in our considered opinion, there was no need to proceed against the appellant by way of separate election petition.(8). in the enquiry, it is always open to the petitioner to urge that he had not incurred disqualification under section 26(xiv) of the act. we may also make it clear that we have not considered the facts of the case and decided the matter on merits.(9). in view of above discussions, this special appeal fails and is hereby dismissed. at this stage, it was submitted by the learned counsel mr. kothari that the proposed enquiry was proceeded against the appellant-petitioner exparte, therefore, the enquiry officer should give sufficient opportunity to the appellant- petitioner and then only decide the matter in accordance with law. while dismissing the writ petition, the respondents were directed to complete the judicial enquiry preferably within 6 weeks from the date of filing of certified copy of the order before the respondent no. 1 with an undertaking from the petitioner to cooperate in the enquiry. however, it seems that because of pendency of special appeal, the appellant- petitioner has refrained himself from participating in the enquiry, therefore, in the interest of justice, we direct respondent no.1 to proceed with the enquiry and complete the same after extending an opportunity to the appellant-petitioner as early as possible preferably within 8 weeks from today provided that the appellant cooperates with the enquiry.(10). the interim relief granted earlier stands vacated.

Judgment:
ORDER

Shethna, J.

(1). The appellant-original petitioner has challenged in this special appeal the judgment and order dated 26.5.2000 passed by the learned Single Judge in S.B. Civil Writ Petition No. 1544/2000 whereby the learned Single Judge dismissed the writ petition of the appellant petitioner challenging the impugned order of suspension dated 8.5.2000 (Annex. 6) and enquiry initiated against him.

(2). The appellant-petitioner was elected as Member of the Municipal Corporation, Jodhpur in the election held on 26.11.99. A complaint was made against him by Shri Rajesh Borana that 4th child was born at the place of the petitioner on 20.10.99, therefore, he incurred disqualification under Section 26 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act'). Thereupon, respondent No.1 issued a notice dated 15.3.2000 (Annex. 2) against the petitioner calling upon him to explain within seven days. Reply dated 29.3.2000 at Annex. 3 was submitted wherein, it was contended that the notice was without jurisdiction as by virtue of Article 243ZG of the Constitution, no election to any municipality shall be called in question to any municipality shall be called in question except by an election petition, therefore, the impugned notice is vitiated. Similar complaint was filed by the defeated candidate before the SDO, Jodhpur, to which also the petitioner had filed objection on 10.6.2000 at Annex. 4. The notice issued by the SDO is at Annex. 5. By the impugned order dated 8.5.2000, the petitioner was placed under suspension. The said order of suspension and enquiry were challenged by the petitioner by way of writ petition which was dismissed by the learned Single Judge. Hence, this special appeal.

(3). The only submission raised by Mr. Vineet Kothari in the special appeal was that it was not open to the respondents to proceed against the appellant-petitioner under the provisions of Rajasthan Municipalities Act. He submitted that if the appellant-petitioner had incurred any disqualification prior to his election, then the only remedy available to them was to proceed against him u/Art. 243ZG of the Constitution by way of election petition and not under the provisions of Rajasthan Municipalities Act. It was submitted by the learned counsel Mr. Kothari for the appellant-petitioner that the allegation against the petitioner is that fourth child was born at his place on 20.10.99, whereas he was elected on 26.11.99, therefore, disqualification if any incurred by the petitioner was not after his election, but before that, therefore, the respondents could not proceed against him under the provisions of Rajasthan Municipalities Act.

(4). The general disqualification for the members is under Section 26 of the Act. Under Section 26(xiv), a person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as (or for being) a member of a board who has more than two children. The cut off date for 3rd child is 27.11.95 as per proviso (e) to Section 26 of the Act.

(5). Section 63 provides for removal of members. Under Section 63(1) of the Act, the State Government may, subject to the provisions of sub-section (2) & (3) remove a member of a board on any of the following grounds.

'(a).............

(b)....................

(c) that after his election he has incurred any of the disqualification mentioned in section 18 or section 26.............'

(6). Under Sec. 63(4) of the Act, the State Government may place under suspension a member against whom proceedings have been commenced under the Section.

(7). On the basis of Section 63(1)(c) of the Act, it was vehemently submitted by the learned counsel Mr. Kothari that even assuming for the sake of argument that 4th child was born at his place then it was born on 20.10.99 before his election on 26.11.99, therefore, it was not open to the respondents to proceed against the appellant under the provisions of Municipalities Act. At the first look, this submission of Mr. Kothari is found to be attracting, but on closure scrutiny of it found without substance. If he had already 3rd or 4th child after cut off date of 27.11.95, then he had already incurred disqualification and after fourth child was born at his place on 20.10.99, undertion 26(xiv) of the Act, he was otherwise disqualified from contensting election. Merely because he was elected on 26.11.99 and the 4th child was born at his place on 20.10.99, it is not proper to the appellant to plead that respondents cannot proceed against him under the Municipalities Act. In our considered opinion, Section 63(1)(c) of the Act has to be construed as having already incurred disqualification mentioned in Section 18 or Section 26. In such type of cases, in our considered opinion, there was no need to proceed against the appellant by way of separate election petition.

(8). In the enquiry, it is always open to the petitioner to urge that he had not incurred disqualification under Section 26(xiv) of the Act. We may also make it clear that we have not considered the facts of the case and decided the matter on merits.

(9). In view of above discussions, this special appeal fails and is hereby dismissed. At this stage, it was submitted by the learned counsel Mr. Kothari that the proposed enquiry was proceeded against the appellant-petitioner exparte, therefore, the enquiry officer should give sufficient opportunity to the appellant- petitioner and then only decide the matter in accordance with law. While dismissing the writ petition, the respondents were directed to complete the judicial enquiry preferably within 6 weeks from the date of filing of certified copy of the order before the respondent No. 1 with an undertaking from the petitioner to cooperate in the enquiry. However, it seems that because of pendency of special appeal, the appellant- petitioner has refrained himself from participating in the enquiry, therefore, in the interest of justice, we direct respondent No.1 to proceed with the enquiry and complete the same after extending an opportunity to the appellant-petitioner as early as possible preferably within 8 weeks from today provided that the appellant cooperates with the enquiry.

(10). The interim relief granted earlier stands vacated.