NASIRKHAN NIVASKHAN PATHAN Vs. DISTRICT DEVELOPMENT

JUDGEMENT

(1.) .Whether, the holder of the public office by election can be suspended for any pending criminal proceedings, which were initiated prior to election and was not a disqualification for being elected to the office, is the heart and substratum of this referential consideration and adjudication emanated out of the order dated March 21, 1996 by the learned single Judge (Coram : Rajesh Balia, J.), in Special Civil Application No. 10979 of 1995, in whose opinion, in view of the divergent views and discordant opinions between two orders of this Court and since the matter is of general public importance, it was directed to be placed for constituting a Larger Bench, and that is the reason why the Hon'ble Chief Justice has constituted this Larger Bench for the resolution of the aforesaid question.

(2.) . In course of hearing of Special Civil Application No. 10979 of 1995 under Art. 226 of the Constitution of India, rival contentions were raised on behalf of the petitioner. Reliance was placed on the observations made by a Division Bench of this Court in Special Civil Application No. 2722 of 1991, decided, on April 23, 1991, while making an interim order, and it was contended that the respondent No. 1. District Development Officer of District Panchayat, Bharuch, was not competent and had no jurisdiction to initiate proceedings for suspension of the petitioner, who was, elected as Sarpanch of Village Palej, Taluka and District Bharuch, on October 17, 1995, on the ground of pendency of a criminal complaint against the petitioner which was filed on 23-3-1991. In that, it was further contended that notwithstanding, the pending criminal proceedings, after the election of the petitioner, respondent No. 1 issued a show- cause notice to the petitioner for the intended action to suspend him on the ground that criminal proceedings have been pending against him. It was pleaded on behalf of the petitioner that what is not a disqualification for contesting the election for holding the office, at the time of contesting the election, cannot be, subsequently, made a ground for suspension, else, it would nullify the very provisions of the Gujarat Panchayats Act, 1993 (Act) regarding qualifications and disqualifications of a candidate and also an electoral popular mandate.

(3.) . On behalf of the petitioner, reliance was placed on the observations made by this Court in an interim order recorded, on April 23, 1991, in Special Civil Application No. 2722 of 1991, as stated above. At the stage of admission, the Division Bench of this Court in that petition had passed interim order, in terms of para 12(B) of the said petition. Para 12(B) of the petition read as under :