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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
V.M. PANCHOLI, J.
Priteshbhai Umeshbhai Patel – Appellant
Versus
State of Gujarat – Respondent
R/Special Civil Application No. 12540 of 2019 and Civil Application No. 2 of 2019
Decided On : 24-09-2019
Constitution of India, Article 226 - Challenging the order passed by the Taluka Development Officer, order passed by the District Development Officer and the order passed by the Additional Development Commissioner. It is prayed that the petitioner be restored to the post of Sarpanch of Por Gram Panchayat
Facts of the Case:
It is the case of the petitioner that a criminal case being Criminal Case No. 54026 of 2008 was filed against the petitioner for the offence punishable under the provisions of Food Adulteration Act. After the trial, the Judicial Magistrate, First Class, Vadodara, passed an order by which, the petitioner was convicted and he was ordered to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5,000/-.
Finding of the Court:
As per the provisions contained in Section 30 read with Section 32 of the Act, the petitioner was disqualified at the time of election as a Sarpanch i.e. on 06.02.2018 and, therefore, the order of acquittal passed by the Appellate Court on 08.02.2019 would not be helpful to the petitioner. Thus, on the date on which the election was held, whether the petitioner was disqualified or not, is to be considered and not the order of acquittal passed subsequent to the date of election. Thus, the contention taken by the learned advocate for the petitioner that the petitioner was permitted to contest the election in spite of the fact that the order of conviction was passed against the petitioner and, therefore, now it is not open for the respondent authority to disqualify the petitioner, cannot be accepted. Thus, the said contention is misconceived.
Result: Disposed of
JUDGMENT :
V.M. Pancholi, J.
1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has challenged the order dated 18.08.2018 passed by the Taluka Development Officer, order dated 15.01.2019 passed by the District Development Officer and the order dated 28.01.2019 passed by the Additional Development Commissioner. It is prayed that the petitioner be restored to the post of Sarpanch of Por Gram Panchayat.
2. Looking to the issue involved in the present petition, this petition is taken up for final disposal with the consent of the learned advocates appearing for the parties. Hence, Rule. Mr. K.M. Antani, learned Assistant Government Pleader, waives service of notice of Rule for respondent Nos. 1 and 2, Mr. H.S. Munshaw, learned advocate, waives service of notice of Rule for respondent Nos. 3 and 4 and Mr. C.B. Upadhyay, learned advocate, waives service of notice of Rule for respondent No. 5.
3. The brief facts leading to the filing of the present petition are as under:
3.1 It is the case of the petitioner that a criminal case being Criminal Case No. 54026 of 2008 was filed against the petitioner for the offence punishable under the provisions of Food Adulteration Act. After the trial, the Judicial Magistrate, First Class, Vadodara, passed an order dated 08.05.2017, by which, the petitioner was convicted and he was ordered to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5,000/-. The petitioner preferred Criminal Appeal No. 113 of 2017 before the Additional Sessions Judge, Vadodara, against the order dated 08.05.2017 passed by the trial Court. It is the say of the petitioner that the Appellate Court vide order dated 31.05.2017 granted interim stay against the order of conviction, till the final disposal of the appeal.
3.2 Thereafter, on 15.01.2018, a Notification for election of Sarpanch of Por Gram Panchayat was declared and, therefore, the petitioner filled up the form for contesting the election of Sarpanch. The petitioner disclosed about the order passed by the concerned criminal Court and pendency of the appeal. Thereafter, nomination form of the petitioner was accepted by the Election Officer and pursuant to the result declared on 06.02.2018, the petitioner was elected for the post of Sarpanch.
3.3 It is further stated that the Taluka Development Officer issued a Notice to the petitioner on 13.03.2018 for taking action under Section 32(2) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act" for short) to disqualify the petitioner on the ground that he has been convicted in criminal case. The petitioner, therefore, submitted his reply on 09.05.2018 and pointed out the fact that the appeal is pending against the order of conviction and the conviction is stayed. It was, therefore, requested to drop the proceedings. However, the respondent Taluka Development Officer passed an impugned order dated 18.08.2018 under the provisions of Section 32(2) of the Act, by which, the petitioner is disqualified.
3.4 The petitioner, therefore, preferred an Appeal before the District Development Officer. The District Development Officer rejected the Appeal and, thereby, confirmed the order passed by the Taluka Development Officer. The petitioner, therefore, preferred Revision Application No. 5 of 2019 before the Additional Development Commissioner. However, the said Revision Application is also dismissed vide order dated 28.01.2019.
3.5 The petitioner has also stated in the petition that the Sessions Court, Vadodara, passed an order dated 08.02.2019 in Criminal Appeal No. 113 of 2017 filed by the petitioner and, thereby the order of conviction passed against the petitioner by the concerned trial Court is quashed and set aside and, therefore, it is submitted that when the order of conviction is set aside by the Appellate Court, the impugned orders passed by the respondent authorities be quashed and set aside.
4. Mr. Dilip B. Rana, learned advocate appearing fo
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