SANTOSH CHANDANSINGH RAWAT Vs. DIVISIONAL COMMISSIONER

JUDGEMENT

(1.) CHALLENGE in this Letters Patent Appeal is to the judgment dated 29-7-2009 delivered by the learned Single Judge of this High Court in Writ Petition No. 2819/2009 dismissing it. In that Writ Petition, present Appellant had challenged order dated 1-7-2009 passed by respondent no. 1 Divisional Commissioner, Nagpur disqualifying him as a Councillor of the zilla Parishad, Chandrapur under section 16 (1) (i) of the Maharashtra Zilla parishad and Panchayat Samitis Act, 1961, (hereinafter referred to as "the 1961 act" for short ). The challenge raised can be briefly stated here for convenience. According to Appellant when work was already executed and he was only to receive amount therefor from the Zilla Parishad, the fact that such amount due prior to election was paid after election without anything more, was not sufficient to hold that he was having any interest in work done to bar him from continuing as a Councillor. It is further urged in the alternative that such ground of disqualification may at the most be relevant in election petition, but same cannot in these circumstances be viewed as incurred during term of his office as councillor. Lastly locus of Respondent No. 3 to move for declaration of disqualification under section 40, is also assailed.

(2.) IN view of the challenge narrated above, we find it appropriate to mention relevant legal provisions before adverting to facts of the matter.

(3.) APPELLANT has been declared elected on 12-3-2007 as Councillor from 36 kelzar Chinchala constituency of Respondent No. 2 the Zilla Parishad in election held on 12-3-2007. He has been further elected as President of said the Zilla parishad on 21-3-2007. Earlier he was awarded contract of road asphalting by the zilla Parishad on 27-9-2005 and 17-3-2005 and though the contract work was over, payment was not received by him because of lack of funds with Zilla parishad. It is admitted position that, these amounts have been paid to him on 30-3-2007, 31-3-2007 12-6-2007. One Subhash Bukkawar had objected to his nomination on 26-2-2007 on this ground, but, that was rejected by Election officer. Thereafter on 5-4-2007, present Respondent No. 3 approached respondent No. 1 Commissioner seeking declaration of disqualification of appellant on very same ground. His application was rejected on 29-3-2008 and a writ Petition No. 2016/2008 was then filed before this Court. It was dismissed on 16-1-2009 but then Respondent No. 3 was given liberty to file fresh application with direction to Respondent No. 1 to decide the same within 90 days. Fresh application was then moved on 19-1-2009 and in it present Appellant raised preliminary objection and then filed Writ Petition No. 2452/2009 seeking direction to Respondent No. 1 to decide it. He withdrew said writ petition on 15-6-2009. Respondent No. 1 Commissioner then passed order on 1-7-2009 rejecting preliminary objection of Appellant about the locus of Respondent No. 3 and holding Appellant disqualified because of his interest in the work done as per orders of the Zilla Parishad. Appellant then approached this Court in Writ petition No. 2819/2009 and on 9-7-2009, his Petition was directed to be heard finally at admission stage and interim stay came to be granted. Learned Single judge in this background delivered the impugned judgment on 29-7-2009 upholding the order of Commissioner and dismissing Writ Petition. In present lpa initially we have heard respective counsel on 5-8-2009 and order was reserved. However, later on it was found necessary to decide LPA itself on merits finally and accordingly we heard them again, but finally on 21-8-2009.