S.H. VORA, J.

1. By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction or order quashing and setting aside the impugned decision/order dated 28.01.2013 passed by the respondent No.1 Returning Officer rejecting the nomination form of the petitioner considering Section 11(1)(A) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as Act ) and on the ground that as per the aforesaid provision the petitioner is disqualified to become a Councilor / Member of the Valsad Municipality.

2. Facts leading to the present Special Civil Application in nut-shell are as under:

2.1 That the petitioner is the resident of Valsad City and filled up the nomination form for contesting the election for the post of Councilor of Ward No.6 of Valsad Municipality. That at the time of scrutiny it was found that the petitioner has been convicted for the offences under Sections 452, 352, 323, 506 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ) and sentenced to undergo imprisonment for one year and fine of Rs.2500/- by judgment and order of conviction and sentence dated 03.06.1992 passed by the learned JMFC, Valsad in Criminal Case No.4082 of 1986 and therefore, considering Section 11(1)(A) of the Act, nomination of the petitioner has been rejected.

2.2 Feeling aggrieved and dissatisfied with the impugned decision/order dated 28.01.2013 rejecting the nomination form of the petitioner, the petitioner herein has preferred the present Special Civil Application under Article 226 of the Constitution of India.

3. Shri Mirza, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such against the judgment and order of conviction and sentence dated 03.06.1992 passed by the learned JMFC, Valsad in Criminal Case No.4082 of 2006, the petitioner had preferred an Appeal before the learned Sessions Court, Valsad and the learned Sessions Judge, Valsad, at Navsari vide order dated 09.06.1992 passed in bail application in Criminal Appeal No.15 of 1992 has suspended the implementation and operation of the sentence and imprisonment and the petitioner is ordered to be released on bail and therefore, the Returning Officer has materially erred in rejecting the nomination form of the petitioner. It is submitted that once the sentence and the imprisonment is suspended, it would mean that the petitioner is competent to file his nomination and contest the election as the sentence as on date is not in force.

3.1 It is further submitted that infact the petitioner had also contested the election from Ward No.6 in the year 2008 and at that point of time the petitioner was permitted to contest the election. It is submitted that however, this time the Returning Officer has rejected the nomination form of the petitioner on misinterpretation of Section 11(1)(A) of the Act.

3.2 It is further submitted by Shri Mirza, learned advocate appearing on behalf of the petitioner that even otherwise the Returning Officer has erred in rejecting the nomination form of the petitioner. It is submitted that as such the Returning Officer has misinterpreted Section 11(1)(A) of the Act. It is further submitted (though there are no specific pleadings and/or averments in the petition) that as the conviction and sentence imposed by the learned JMFC, Valsad is dated 03.06.1992, considering even Section 11(1)(A) of the Act, the petitioner can be held to be disqualified for a period of four years from the date of conviction and sentence. Therefore, it is submitted that for the conviction and sentence which was imposed in the year 1992, the petitioner cannot be held disqualified to become the Councilor of the Municipality in the year 2012-13. It is submitted that considering Section 11(1)(A) of the Act no person who has been convicted, by a Court in India, of any other offence and sentenced to undergo imprisonment for not less than six months unless a period of four