FIROZBHAI RASULBHAI RATHOD Vs. SECRETARY

JUDGEMENT

(1.) The petitioner is the elected member of Palitana Nagarpalika. While filling up form for such election, the petitioner had declared that he has three children. Onthe basis of suchdeclaration, his nomination was acceptedand he participatedin the general election for the said Municipality, which took place on 22.11.2015, in which election he was elected. Election Petition filed by his rival was dismissed on the ground of delay. The High Court also upheld the decision of the Election Tribunal.Subsequently, yet another application cameto be filedbefore the Collector, Bhavnagar by the unsuccessful candidate during such elections alleging that the three children the petitioner mentioned in the nomination form werebornprior to 23.03.2005, i.e. the date on which the Gujarat Municipalities Act, 1993 and in particular Section 11 thereofwas amended providing foranadditional disqualification of a person having more thantwo children. Thecomplainantallegedthatsubsequently, fourth child was born on 23.02.2007, thus breaching the said disqualification provision.The Collector, Bhavnagar, on such application, passed the impugned order dated 15.12.2017 declaring thepetitioner to have incurred such disqualification.This order was passed in purported exercise ofpowers under Section 38 of the Gujarat Municipalities Act.

(2.) Counsel for the petitioner submitted that Section 11 of the Act provides for disqualification whereas Section 38 refers to disabilities from continuing as a counsilor. He submitted that a person would be disabled from continuing as a counsilor if as provided under sub-section (1) of Section 38, during the term for which he hasbeen elected or nominated, he becomes subject to any disqualification under Section 11. In the present case, even if the allegations of the complainant are correct, the petitioner has notincurred any disqualification for the term during which he has been elected. NOTICE returnable on 19.02.2018.By way of ad interim relief, impugned order is stayed.

(3.) The petitioner is, however, ambivalent insofar as birth of the fourth child is concerned. He shall make a clear declaration in this respect on affidavit by next date of hearing. Direct service is permitted.