- (1.) THE petitioner was suspended from the post of Chairman/vice Chairman/member Municipal Board Dausa on the allegation that number of his children exceeded and he acquired dis-qualification under Section 26 of the Rajasthan Municipalities Act, 1959 (in short, "1959 Act") vide order dated Jan. 8, 2002. As a consequence thereof another order came to be passed on January 8, 2002 whereby Smt. Biban Bano was directed to take charge of the post of Chairman, Municipal Board Dausa. THE petitioner in the instant writ petition seeks to quash the aforequoted orders.
(2.) ACCORDING to the facts averred in the writ petition the elections of Municipal Board Dausa were held on August 20, 2000. The petitioner contested the election from Ward No. 10 and was declared elected. Thereafter, the petitioner was elected as Vice Chairman of the Municipal Board Dausa. The election of the petitioner from Ward No. 10 was challenged by one Laxmi Narain by filing election petition under Section 34 of the 1959 Act. The main ground of challenge of the election of the petitioner was that the petitioner was having more than three living children as such he was ineligible to contest the election of Member Municipal Board Dausa. The petitioner submitted reply to the election petition. During the pendency of the election petition no confidence motion was passed against Smt. Pinky Rajoriya, Chairman Municipal Board Dausa and she was removed from the post of Chairman. Being Vice Chairman of the Municipal Board Dausa, the petitioner was given the charge of the post of Chairman vide order dated January 3, 2002. On a complaint made against the petitioner that his wife gave birth to third child on July 10, 1996 and thereby the petitioner became disqualified under Section 26 (xiv) of the 1959 Act, an enquiry was conducted by the SDO Dausa. On January 8, 2002 the State Government suspended the petitioner from the post of Chairman/vice Chairman/member of the Municipal Board on the ground that he was disqualified under Section 26 (xiv) of the 1959 Act. By another order issued on January 8, 2002 charge of the post of Chairman/vice Chairman was handed over to Smt. Biban Bano. The petitioner assailed the aforequoted orders on the following grounds: (a) The petitioner was suspended on the charge that he has got third child on 10. 7. 96 and thus acquired disqualification under Section 26 of the 1959 Act and election petition on the same ground is already pending before the District Judge Dausa. As the matter is sub-judice before the learned District Judge the respondents were not entitled and competent to pass the aforequoted orders. (b) The petitioner's wife gave birth to the third child on 10. 7. 1996 and he was elected as a member Municipal Board on 20. 8. 2000. It is clear that as per the alleged allegation the third child was born before his election. Section 33 (2) of the 1959 Act provides that no election shall be called in question except by an election petition in accordance with the provisions of the Act. Article 243 ZG (b) provides that no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as provided for by the Legislature of the State. The election of the petitioner has already been challenged by way of election petition, the respondents were not competent to suspend the petitioner on the alleged ground of disqualification prior to his election. (c) The alleged date of getting the third child is prior to his election which cannot be the subject matter under Section 63 of the 1959 Act as the petitioner has not incurred disqualification after the election under Sections 18, 26 and Section 24 of the 1959 Act. (d) The disqualification acquired under Section 26 of the 1959 Act can only be challenged by way of filing election petition and no other remedy is available. As the election petition is already pending against the petitioner the respondents cannot suspend the petitioner on this ground. (e) No charge-sheet has been given to the petitioner and no proceedings under Section 63 of the 1959 Act are commenced against him, thus the State Government cannot place a member under suspension against whom proceedings have not been commenced and no charge sheet has been served. (f) The State Government has power to suspend a member under Section 63 only if he acquires a disqualification after his election. Admittedly the petitioner has not acquired any disqualification after his election as such the State Government was not empowered under law to suspend the petitioner. (g) A member can be suspended only after adopting the procedure as prescribed under Section 63 of the Act. As the petitioner acquired alleged disqualification under Section 26 of 1959 Act before the election and the only remedy available against him is election petition. (h) That the impugned orders have been passed by the State Government without application of mind and without examining the merits of the matter. (i) The petitioner was given notice on 14. 5. 2001 and he filed a reply to the notice. The impugned orders have been passed on January 8, 2002 after a long delay. The respondents 1 and 2 submitted reply to the writ petition denying the allegations mentioned in the writ petition. The respondents averred that petitioner had three living sons namely Yogesh Saini, who was born on 10. 9. 1992, Lokesh @ Nantu who was born on 16. 3. 1995 and Rakesh @ Chhota whose date of birth was 10. 7. 1996. The respondents enclosed the certificate Annexure R/1 which shows that Smt. Kanti Devi w/o Shri Prabhu Dayal Saini delivered a male child at 11. 45 p. m. on 10. 7. 1996, which is registered at Serial No. 59 of the birth register. The certificate further shows that this was the fourth delivery but since first child of the petitioner had expired in the year 1990 itself therefore, the petitioner has got only three sons. After receipt of complaint the SDO submitted his enquiry report to the Collector on 29/31. 3. 2001 which was forwarded to the Government. The SDO in his report prima facie found the affidavit submitted by the petitioner on non-judicial stamp of Rs. 5/- attested by Notary Public that a child was born to his wife on 10. 7. 1996 and he suddenly expired on 15. 6. 1997 to be false. The SDO found that a son was born out of the wedlock of the petitioner and his wife on 10. 7. 1996 which fact was substantiated from school records. In the certificate issued by the Head Master dated 8. 1. 1998 showed that the son of petitioner Yogesh Kumar Saini studying in standard II was shown to have been born on 10. 9. 1992 and another son Nantu of the petitioner is studying in I standard was shown to have been born on 16. 3. 1995. The third son who was young apparently born on 10. 7. 1996. Preliminary enquiry report has also been annexed with the reply. In the reply it was further averred that the petitioner submitted a false affidavit before the Returning Officer that he had no child born to his wife after February, 1994. In the application dated 30. 8. 2000 submitted to the Executive Magistrate the petitioner enclosed an affidavit and stated that his son Bindu Saini was born on 10. 7. 1996 and he expired on 15. 6. 1997. In reply to the notice dated 14. 5. 2001 the petitioner submitted that since already an election petition has been filed against him the enquiry under Section 63 cannot be proceeded against him. The Government did not find the explanation of the petitioner satisfactory and, therefore, decided to place the petitioner under suspension and vide order dated 16. 1. 2002 referred the matter to the Joint Legal Remembrancer for Judicial enquiry.
(3.) IT was further averred in the reply that Smt. Biban Bano had already taken the charge from the petitioner of the post of Chair person Municipal Board Dausa on 8. 1. 2002. IT was submitted that since proceedings under Sec. 63 of 1959 Act was pending against the petitioner and the same has been ordered to be sent to the Joint Legal Remembrancer for Judicial enquiry on 16. 1. 2002, the petitioner's contention is absolutely wrong that no enquiry is pending against him under Sec. 63 of the 1959 Act. The respondent No. 3 also submitted separate reply and raised preliminary objection that the petitioner produced fabricated document Annexure-3. The other facts stated in the reply to the writ petition by the respondents 1 and 2 have been reiterated by the respondent No. 3. I have heard the learned counsel for the parties and scanned the material on record. ;