HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION C NO 4064 OF 2008
Rajendra Kumar Sahu
...Petitioners
Versus
The State of Chhattisgarh & Others
...Respondents! Shri Awadh Tripathi Advocate for the petitioner
^ Shri P K Bhaduri Panel Lawyer for the State Shri Shashank Thakur Advocate for respondent No 4
CORAM: Honble Shri Satish K Agnihotri J
Dated: 15/07/2010
: Judgement
ORDER ORAL
Passed on this 15th day of July 2010
Writ Petition under Article 226 of the Constitution of
India
1. Case of the petitioner is that the respondent No.4
was elected to the post of Up-Sarpanch of Gram Panchayat,
Kundel. The respondent No.4 was disqualified to contest
or to get elected on any post of Gram Panchayat under the
provisions of Section 36 (1) (a) (ii) of the Chhattisgarh
Panchayat Raj Adhiniyam, 1993 (for short “the Adhiniyam,
1993”). The Collector dismissed the complaint filed by
the petitioner against the election of respondent No.4 on
the ground that conviction of the respondent No.4 for
offences punishable under sections 363, 366 & 376 (1) of
Indian Penal Code, has been stayed by the High Court in
appeal being criminal appeal No. 699 of 2005 (Ravi Kumar
v. State of Chhattisgarh). Thus, there is no
disqualification under the provisions of Section 36 (1)
(a) (ii) of the Adhiniyam, 1993.
2. Shri Tripathi submits that the disqualification
incurred by the respondent No.4 still subsists, as the
Collector has wrongly interpreted or understood the order
dated 12-1-2006 passed by this Court in Ravi Kumar (Supra)
wherein the conviction of the respondent No.4 was not
stayed, but the execution of substantive sentence of
imprisonment was suspended and he was released on bail.
Thus, the order of the Collector is perverse and vitiated.
3. On the other hand, Shri Thakur, learned counsel
appearing for the respondent No.4, submits that the
petitioner has no locus, though he may be of a voter of
Gram Panchayat, Kundel.
4. Shri Bhaduri, learned counsel appearing for the
State, very fairly submits that the observation of the
Collector while entertaining the complaint filed by the
petitioner and passing the impugned order is not in
consonance with the settled principles of law and contrary
to the catena of judicial pronouncements made by this
Court as well as Supreme Court.
5. I have heard learned counsel appearing for the
parties, perused the pleadings and the documents appended
thereto.
6. It is evident that the Collector has not understood
the facts and law applicable to the case properly. On
perusal of the order 12-1-2006 passed in Ravi Kumar
(supra), it is clear that this Court has not stayed or
suspended the conviction of the respondent No.4. The
sentence imposed upon the respondent No.4 for commission
of offences punishable under Sections 363, 366 & 376 (1)
of the Indian Penal Code was suspended and he was released
on bail.
7. With regard to contention of the learned counsel for
the respondent No.4 that the petitioner has no locus
deserves to be rejected, as it is not the case of election
petition filed by the petitioner herein. It is the
complaint made by a voter of the Gram Panchayat wherein
the respondent No.4 was elected without disclosing the
fact that he has been convicted for the offences
punishable under Sections 363, 366 & 376 (1) of the Indian
Penal Code and has incurred disqualification under the
provisions of Section 36 (1) (a) (ii) of the Adhiniyam,
1993. It was for the authorities to consider his case for
disqualification, if any, to hold any elected post in view
of provisions of Section 36 (1) (a) (ii) of the Adhiniyam,
1993. Thus, I am of the considered view that the Collector
has wrongly observed that the conviction of respondent No.
4 was stayed and as such, he was not disqualified to hold
the post of Up-Sarpanch.
8. For the reasons mentioned herein above, the impugned
order dated 27-11-2006 (Annexure P/1) passed by the
Collector, Dhamtari, is unsustainable and the same is
hereby quashed. The matter is remitted back to the
Collector for consideration of the complaint made by the
petitioner in the light of aforestated observations and
pass the order after examining all the facts of the case.
9. In the result, the writ petition is allowed. No
order as to costs.
J U D G E