RAKESH GHATIWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant-original petitioner has challenged in this special appeal the judgment and order dated 26. 5. 2000 passed by the learned Single Judge in S. B. Civil Writ Petition No. 1544/2000 whereby the learned Single Judge dismissed the writ petition of the appellant petitioner challenging the impugned order of suspension dated 8. 5. 2000 (Annex. 6) and enquiry initiated against him.

(2.) THE appellant-petitioner was elected as Member of the Municipal Corporation, Jodhpur in the election held on 26. 11. 99. A complaint was made against him by Shri Rajesh Borana that 4th child was born at the place of the petitioner on 20. 10. 99, therefore, he incurred disqualification under Section 26 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as "the Act" ). THEreupon, respondent No. 1 issued a notice dated 15. 3. 2000 (Annex. 2) against the petitioner calling upon him to explain within seven days. Reply dated 29. 3. 2000 at Annex. 3 was submitted wherein, it was contended that the notice was without jurisdiction as by virtue of Article 243 ZG of the Constitution, no election to any municipality shall be called in question to any municipality shall be called in question except by an election petition, therefore, the impugned notice is vitiated. Similar complaint was filed by the defeated candidate before the SDO, Jodhpur, to which also the petitioner had filed objection on 10. 6. 2000 at Annex. 4. THE notice issued by the SDO is at Annex. 5. By the impugned order dated 8. 5. 2000, the petitioner was placed under suspension. THE said order of suspension and enquiry were challenged by the petitioner by way of writ petition which was dismissed by the learned Single Judge. Hence, this special appeal.

(3.) ON the basis of Section 63 (1) (c) of the Act, it was vehemently submitted by the learned counsel Mr. Kothari that even assuming for the sake of argument that 4th child was born at his place then it was born on 20. 10. 99 before his election on 26. 11. 99, therefore, it was not open to the respondents to proceed against the appellant under the provisions of Municipalities Act. At the first look, this submission of Mr. Kothari is found to be attracting, but on closure scrutiny of it found without substance. If he had already 3rd or 4th child after cut off date of 27. 11. 95, then he had already incurred disqualification and after fourth child was born at his place on 20. 10. 99, under Section 26 (xiv) of the Act, he was otherwise disqualified from contensting election. Merely because he was elected on 26. 11. 99 and the 4th child was born at his place on 20. 10. 99, it is not proper to the appellant to plead that respondents cannot proceed against him under the Municipalities Act. In our considered opinion, Section 63 (1) (c) of the Act has to be construed as having already incurred disqualification mentioned in Section 18 or Section 26. In such type of cases, in our considered opinion, there was no need to proceed against the appellant by way of separate election petition.