SUMERCHAND JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner, an elected President of Modasa Nagar Palika, Modasa, Dist Sabarkantha, by this Special Civil Application under Art. 226 of the Constitution challenges the notice issued by the respondent No. 2 bearing No. 673/A/99 dated 26th March, 1999, Annexure "A" to this petition, under which the petitioner was called upon to show cause as to why he should not be declared disqualified under the provisions of Secs. 11 and 38 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act, 1963") (1) 4 to hold the office of the Councillor of the Municipality. Prayer is made for quashing and setting aside of this notice.

(2.) The facts of the case, in brief, are that the petitioner was convicted for the offence punishable under the Prevention of Food Adulteration Act, 1955 by the J.M.F.C., Modasa in Criminal Case No. 2632 of 1988 decided on 28th January, 1999. He was sentenced to two years rigorous imprisonment and a fine of Rs. 5,000/-. In case of default in payment of fine, he has ordered to undergo imprisonment of one month. Against this judgment of J.M.F.C., Modasa, the petitioner preferred Criminal Appeal No. 8 of 1997 in the Court of Assistant Judge, Himmatnagar. The appeal has been admitted on 10th February, 1999 and the petitioner was ordered to be enlarged on bail pending the decision of the appeal. In Para 11 of the Special Civil Application, if we go by the facts averred therein, the year of the criminal case appears to be 1988 and not 1998 as what the petitioner has stated in other paragraphs. The petitioner has not replied this show-cause notice and straightaway has rushed to this Court challenging the same.

(3.) Challenge to this show-cause notice is made by the learned Counsel for the petitioner on the grounds namely, that it is a politically-motivated action on the part of the respondents. It is next contended that the notice vitiates on account of legal and factual mala fides. Earlier the petitioner was with the ruling party in the State of Gujarat, i.e., B.J.P. but thereafter on account of some difference of opinion, the petitioner was suspended from the said party but he is continued to be the President, Modasa Nagar Palika. Being annoyed of that the persons in power have got the aforesaid notice issued to the petitioner, which could not have been issued on simple appreciation of facts. Otherwise also, this notice could not have been issued under Sec. 11 and Sec. 38 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act, 1963"). It is contended that the conviction of the petitioner has not attained the finality. The appeal is admitted and unless the conviction attains the finality, the question of declaring the petitioner to be disqualified to hold the office of the Councillor of the Municipality does not arise. Mr. Tripathi urges, it is a matter of common knowledge that a person cannot be said to have been convicted unless the proceedings have resulted ultimately in conviction. It is contended further that appeal is continuity of the proceedings and it cannot be said that a person is convicted where the appeal is preferred against the order of the trial Court or subsequent Court and subsequent proceedings have not finally ended. Lastly, it is contended that the appellant has been falsely involved in the criminal cases. It is submitted that the chilly powder was taken from one packet which was packed and bearing Agmark and it was mentioned on the said label - lot No. 42, label No. D/7066717, date of packing 19-3-1989, weight 10 kgs., place of packing Gotaj, Manufacturer : Jay Khodiyar Industries. It also bears signature of the supervising officer. In this factual matrix, the learned Counsel for the petitioner, contended that the authority-respondent No. 2 should have restrained itself from issuing such show-cause notice to the petitioner.