ASHOKKUAMR BHAVSANGBHAI CHAUDHARY Vs. DIRECTOR OF MUNICIPALITIES

JUDGEMENT

(1.) THE present Writ Petition, filed under Article 226 of the Constitution of India, raises an important question of law, namely, whether the petitioner, who is the President of the Mehsana Nagarpalika, ("nagarpalika" for short) incurred the disqualification under Section 11 (1) (h) of the Gujarat Municipalities Act 1963 ("the Act" for short), for having more than two children, after his election to the said post.

(2.) IN order to adjudicate upon this issue, it will be useful to set out the brief facts of the case. As stated in the petition, the petitioner filed his nomination form to be elected as a member (councillor) of the Mehsana Nagarpalika from Ward No. 9. The general elections of Mehsana Nagarpalika took place on 11. 12. 2005. The petitioner was declared elected as a councillor on 13. 12. 2005. After his election as a councillor, a meeting of the elected councillors of the Nagarpalika was held on 25. 12. 2005, for the purpose of electing the President and Vice President of the Nagarpalika. In the election which took place during the said meeting, held on 25. 12. 2005, the petitioner came to be elected as President of the Nagarpalika and began to function as such. As per the averments made in the petition, the respondents No. 3 to 15 submitted an application dated 27. 8. 2007 to the District Collector, Mehsana, stating that the petitioner has become the father of a third child, who was born on 8. 7. 2007 and, therefore, he has incurred disqualification in view of the provisions of Section 11 (1) (h) of the Act, and should not be continued as a councillor of the Nagarpalika. Accordingly, a request was made by the said respondents to disqualify the petitioner, by resorting to proceedings under Section 38, read with the provisions of Section 11 (1) (h) of the Act. A copy of the application submitted by the said respondents is to be found at Annexure-D to the petition. It appears that thereafter, a Writ Petition, being Special Civil Application No. 25701 of 2007, came to be filed in the High Court by one Sagarbhai Kalyanbhai Rayka, and six others, who, as stated in the petition, was a leader of the rival party, seeking a direction against the Collector, Mehsana, to initiate proceedings against the petitioner under Section 38 (2) of the Act. In the said petition, the present petitioner was impleaded as respondent No. 4. During the pendency of this petition, the Collector, Mehsana, exercising powers under Section 38 (1) of the Act, passed an order dated 22. 10. 2007, which is annexed as Annexure `h' to the petition, removing the petitioner as a councillor of the Nagarpalika and declaring the seat of the petitioner as member (councillor) of Ward No. 9, and as President of the said Nagarpalika, to have fallen vacant. As a consequence thereof, Special Civil Application No. 25701 of 2007 was disposed of by the order of this Court dated 23. 10. 2007 (Coram: Ravi R. Tripathi, J.) in the following terms:

(3.) I have heard Mr. A. J. Shastri, learned counsel appearing for Mr. P. K. Jani, learned counsel for the petitioner, at length and in great detail and have considered the entire material on the record of the petition, as well as the arguments advanced by Mr. Shastri at the Bar, which shall be referred to hereafter.