SAGEER KHAN Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Petitioner has filed this writ petition aggrieved with the order dtd. 2/12/2020 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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:-

(3.) Mr. Siddharth Dubey, learned counsel for the petitioner submitted that the application filed by private respondents No. 2 to 8 under Sec. 41 (1) (a) of the Act of 1961 and the order passed by the Collector on the application filed under Sec. 41 (1) (a) of the Act of 1961 taking note of Sec. 35 (hh), disqualification suffered by the petitioner is per se illegal and arbitrary. The Collector ought not to have considered the application under Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 41 (1) (a) of the Act of 1961. Passing of order without forming an opinion as provided under Sec. 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 Sec. 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.