Pre-election disqualifications cannot lead to post-election suspensions without due process and proper inquiry.

ORDER

1. Registry is directed to connect these matters together.

S.B. Civil Writ Petition No. 14683/2021:-

2. Learned Additional Advocate General, Mr. Anil Mehta, appears as caveator on behalf of the State and he has been supplied copy of the writ petition.

3. Issue notice to the respondent Nos.5 & 6, returnable on 12.01.2022. Notices be given 'dasti', if prayed.

4. Learned AAG submitted that reply in S.B. Civil Writ Petition No. 14885/2021 has been filed during course of the day and copy of the same has been supplied to learned counsel for the petitioner.

S.B. Civil Writ Petition No.14885/2021:-

5. Heard on stay application.

6. Learned counsel for the petitioner submitted that by impugned order dated 13.12.2021, the petitioner has been placed under suspension from the post of Vice Chairman and Member of Ward No.19 of the Municipal Council, Alwar.

7. Learned counsel for the petitioner submitted that prior to suspension, an order dated 07.12.2021 was passed by the District Collector, Alwar, wherein he had referred the matter to the Director cum Special Secretary, Local Self Government in respect of conducting enquiry against the petitioner in respect of having disqualification to be chosen as a member of Municipal Council, Alwar on account of involvement of the petitioner in a criminal case registered under Sections 143, 323, 341 & 325 IPC. The allegation in the said matter was in respect of involvement of the petitioner in a criminal case registered under Section 325 IPC, where the punishment can be up to seven years.

8. Learned counsel for the petitioner submitted that for the same dispute, an election petition has been filed against the petitioner by one of the candidates i.e. Gauri Shankar, where similar allegation about Pre-Election disqualification has been made against the petitioner.

9. Learned counsel for the petitioner submitted that the petitioner has filed reply in the election petition and he has disputed the fact of any charge being framed against him under Section 325 IPC.

10. Learned counsel submitted that once the Pre-Election disqualification is subject-matter of challenge in the election petition, the entire action of the respondent-State is vitiated in the eyes of law.

11. Learned counsel submitted that the power given to the State under Section 39 of the Rajasthan Municipalities Act, 2009 (in short 'the Act of 2009') is in respect of removal of a member and the clause(l)(c) of Section 39 of the Act, 2009 is in respect of any of the disqualification incurred by any candidate after his election, as per Section 14 or Section 24 of the Act of 2009.

12. Learned counsel submitted that after election of the petitioner, he has not incurred any disqualification and as such the State Government on the alleged Pre-Election disqualification cannot remove the petitioner as well as cannot suspend him by invoking power under sub-Section (6) of Section 39 of the Act of 2009.

13. Learned counsel for the petitioner submitted that similar provisions, as contained in the Rajasthan Panchayati Raj Act, 2005 relating to disqualification and removal of a member has been considered by Full Bench while passing the judgment in the case of Sameera Bano Vs. State of Rajasthan & Ors. reported in AIR 2007 Raj. 168.

14. Learned counsel for the petitioner further submitted that as per the earlier Rajasthan Municipalities Act, 1959, the Single Bench of this Court in the case of Julfikar Ali Bhutto Vs. State of Rajasthan & Ors. reported in 2016 (3) WLN 43 (Raj.) has also found that a person, who has Pre-Election disqualification cannot be removed as per Section 63(1) of the Act of 1959.

15. Learned counsel submitted that the entire action of the respondents is to deprive the petitioner to hold the public post without following due procedure of law.

16. Learned Additional Advocate General Mr. Anil Mehta submitted that the petitioner is not entitled for any relief, as action of the respondent-State is fully supported by the sanction of law.

17. Learned counsel