S.S. Saron, J. - (1.) THIS Writ Petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India for issuance of a writ especially in the nature of certiorari for setting aside the order dated 27.2.2007 (Annexure P5) passed by the Financial Commissioner, Development and Panchayats Department, Haryana (respondent No. 1) and order dated 14.11.2006 (Annexure P4) passed by the Deputy Commissioner, Jhajjar (respondent No. 2). In terms of the said orders, the petitioner has been removed from the office of Sarpanch, Gram Panchayat Village Gochhi, Block Beri, Distt. Jhajjar.
(2.) CASE FIR No. 167 dated 19.10.1995 for the offences under Sections 148, 149, 323 and 302 IPC was registered against the petitioner. The learned Additional Sessions Judge, Jhajjar, in terms of his order dated 18/19.2.1999 convicted the petitioner for the offence under Section 302 IPC and sentenced him to undergo life imprisonment and a fine of Rs. 2,000/ - was also imposed. Besides, the petitioner was also sentenced to rigorous imprisonment for two years and one year respectively for the offences under Sections 148 and 323 IPC. Against the said order of conviction and sentence passed by the learned Additional Sessions Judge, Jhajjar on 18/19.2.1999, the petitioner filed Criminal Appeal No. 164 -DB of 1999 in this Court, which is pending. On an application under Section 389 Cr.P.C. filed by the petitioner, he was granted bail by this Court vide order dated 27.8.1999 (Annexure P3). Elections of the Gram Panchayat, village Gochhi, Block Beri, District Jhajjar were held in April, 2005. The petitioner contested the election and he was elected to the office of Sarpanch and since then he has been performing his duties as such. During the tenure of the petitioner as Sarpanch, a complaint dated 31.8.2006 was made, which was to the effect that the petitioner has been convicted in a criminal case. Accordingly, a show cause notice dated 31.8.2006 (Annexure P1) was issued by the Deputy Commissioner, Jhajjar (respondent No. 2) to the petitioner inter alia mentioning that his conviction for the offences under Sections 302/323 and 148 IPC come within the definition of moral turpitude. It was also submitted that the petitioner was ineligible for contesting the election for the office of Sarpanch in view of the provisions of Section 175(l)(a) of the Haryana Panchayati Raj Act, 1994 (for short - the Act). Therefore, his holding the post of Sarpanch was not in public interest. Before taking any action against the petitioner under Section 177 of the Act, he was given an opportunity in terms of the show cause notice to submit his reply within seven days. The petitioner filed his reply dated 5.9.2006 (Annexure P2) in which he submitted that he had got bail from this Court six years prior to the holding of the elections. It is submitted that Section 175(1)(a) of the Act is applicable only where an appeal etc. against the conviction has been dismissed. The appeal, it is submitted, is a continuation of the original case and therefore, since the appeal of the petitioner is still pending, no action was liable to be taken against him. It is also submitted that a compromise had been effected between him and the opposite party. The Deputy Commissioner, Jhajjar, vide impugned order dated 14.11.2006 (Annexure P4) held that the petitioner had incurred disqualification under Section 175(1)(a) of the Act. As such, his continuation as Sarpanch would be against public interest as well as against the provisions of the Act. Accordingly, it was ordered that the post of Sarpanch is declared vacant and that the petitioner should immediately hand over the entire movable and immovable property/record of the Gram Panchayat to the Panch having majority. The petitioner aggrieved against the said order, filed an appeal under Section 51(5) of the Act which has been dismissed by the Financial Commissioner -cum -Principal Secretary to Government, Haryana (respondent No. 1) vide order dated 27.2.2007 (Annexure P -5). It was observed that the conviction of the petitioner had not been stayed by the Appellate Court and that he had been convicted for life. Therefore, it could not be said that after his release on bail, a period of time of five years had lapsed and he is entitled to the benefit of Section 175(1)(a)(ii) of the Act. The petitioner aggrieved against the said orders has filed the present petition seeking quashing of the orders dated 14.11.2006 (Annexure P4) passed by the Deputy Commissioner, Jhajjar (respondent No. 2) and 27.2.2007 (Annexure P5) passed by the Financial Commissioner, Development and Panchayat Haryana (respondent No. 1).
(3.) REPLY has been filed on behalf of respondents No. 1 and 2. It is submitted that the petitioner had incurred disqualification under Section 175(1)(a)(ii) of the Act. Therefore, he is not entitled to continue as Sarpanch of the Gram Panchayat Gochhi. It is further submitted that the petitioner had contested elections despite the disqualification which he incurred and the complaint against him on the criminal side was held to be proved. It is also submitted that this Court had only granted bail to the petitioner and his conviction was never stayed.;