( 1 ) THE petitioner has by way of this petition challenged the order dated 31st march, 2004 passed by the Collector at annexure-D to the petition, which was confirmed by respondent No. 1, Director of municipalities vide order dated llth/18th may, 2004 in Appeal No. 24/2004.

( 2 ) THE short facts of the case are that the petitioner is a duly elected councilor of the respondent Municipality. It is the case of the petitioner that during the previous term as councilor, a complaint being C. R. No. I-85/2000 was registered for the commission of offences punishable under sections 323, 342, 504, 506 (2.) and 114 of the IPC. The petitioner contended that thereafter proceedings under Section 37 (1) of the Gujarat Municipalities Act, 1963 ["the act" for short] were initiated and vide order dated 17th January, 2001, the Director of municipalities respondent No. 1 herein, disqualified the petitioner as councilor of the respondent Municipality. THE petitioner was thereafter, again elected as a councilor, but due to some political rivalry, respondent No. 3 made an application to the Collector, contending that in view of the provisions of Section 11 (2) read with Section 37 of the Act, the petitioner should be disqualified and removed from the post, of councillor, Pursuant to the said application, the Collector issued showcause notice dated 4th March, 2004 to the petitioner as to why he should not be removed from the post of Councillor. The petitioner replied to the said showcause notice vide his reply dated 29th March, 2004. The Collector, Mehsana, vide order dated 31st march, 2004 disqualified the petitioner from the post of councillor for a term of 4 years i. e. from the date of the order passed by respondent No. 1 herein. BEING aggrieved by the aforesaid order, the petitioner preferred an Appeal being Appeal No. 24/2004, before respondent no. 1. Respondent No. 1 vide order dated 11th /18th May, 2004 dismissed the appeal and confirmed the order dated 31st March, 2004 passed by the Collector. Hence, this petition.

( 3 ) MR. Parikh learned advocate for the petitioner, has contended that the collector has wrongly exercised the powers under Section 38 of the Act, inasmuch as the alleged offences were for the previous term. Apart from that even if it is admitted that if any disqualification is there, then also that was not the ground in the notice. He contended that Section 38 of the Act provides that an elected member becomes subject to any disqualification, but it does not relate to any past disqualification. In the circumstances, if at all the petitioners nomination or election was required to be challenged on the ground of disqualification, it was required to be challenged by way of an election petition and power under Section 38 of the Act cannot be utilized, by the respondent No. 2 Collector for setting aside the election of a councillor on the ground that he was disqualified to contest the election. He further-contended that the order passed by the Collector has travelled beyond the order of the Director of Municipalities dated 17th January, 2004 inasmuch as the director has never specified disqualification period and, therefore, stated to be removed as a member for that term. He further submitted that since the Municipality was superseded, the term can be said to be over. MR. Parikh further contended that at the most the case against the petitioner could have arisen at the time of his nomination but not after having elected, therefore, these proceedings are misconceived of fact and law. Mr. Parikh in support of his case has relied upon the decision of the Apex court in the case of ELECTION commission V/s. VENKATA RAO reported IN AIR. 1933 S. C. P. 210 and more particularly para 13, which reads as under :-"15. It was said that on the view that Arts. 190 (3) and 192 CD deal with disqualification incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification afte