CW 5699/07 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.5699/07 Rajveer Versus Returning Officer & Ors. DATE OF ORDER : 05/05/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. S.M. Mehta, Sr. Adv. assisted by Mr. Anil Mehta, for petitioner Mr. G.L. Pareek, Sr. Adv. assisted by Mr. A.N. Sharma, for respondents Mr. Chetan Bairwa, Addl. Govt. Counsel, for State *** Instant petition is directed against the order dt.26th July, 2007 [Ann.5] whereby election of the petitioner as Member of Ward No.14, Zila Parishad, Bharatpur, was set aside and further directed to hold re-elections in accordance with law. Petitioner & respondent No.3 both submitted their nominations for Ward No.14, Zila Parishad Bharatpur. However, nomination of the respondent was rejected by the Returning Officer and the petitioner being only contesting candidate was declared elected as Member of Ward No.14, Zila Parishad on 8th February, 2005 and as a Ward Member, he was further elected as Zila Pramukh. It will be relevant to mention that under Rajasthan Panchayati Raj [Election] Rules, 1994 elections are held for Members of Panchayat Samiti/Zila Parishad in terms of Chapter VI and CW 5699/07 [2] those who are elected as Members of Panchayat Samiti/Zila Parishad, are elected as Pradhan/Pramukh in terms of procedure provided under Chapter VII of the Rules, 1994. Respondent was convicted for offence u/ss.325, 342 & 323 IPC on 9th December, 1998. However, on appeal being preferred by him, the sentence was suspended by the Court of Appeal on 4th January, 1999 and finally the respondent was acquitted by the competent court of jurisdiction on 27th August, 2006. For Member of Ward No.14 Zila Parishad, Bharatpur, the petitioner and the respondent both filled their nominations before the Returning Officer on 13th January, 2005. However, nomination paper of the respondent was rejected by the Returning Officer on the premise that he being a person convicted, is ineligible to contest the election in terms of Sec.19(1)(g) of the Act and accordingly, elections were held on 22nd February, 2005 and petitioner was declared as elected Member of Ward No.14, Zila Parishad, Bharatpur on 8th February, 2005 and as Member was further elected as Pramukh of Zila Parishad, Bharatpur. This rejection of his nomination by the Returning Officer was challenged by the respondent by filing election petition and after adjudication of the dispute, learned Civil Judge [Senior Division] finally observed that period of six CW 5699/07 [3] years will be counted from the date of conviction and indisputably, period of six years expired before the date when the nomination papers were filled with regard to Ward No.14, Zila Parishad, Bharatpur and accordingly, the learned trial Judge observed that once the period of six years was expired on the date when nomination papers were filled, the Returning Officer was not justified in holding the respondent to be ineligible in the light of Sec.19(1)(g) of the Act Proviso (ii) appended thereto and consequently, set aside the election which took place on 8th February, 2005 whereby the petitioner was elected as Member of Ward No.14. So far as legal issues which has been raised for consideration in the instant case is concerned, as to what will be the effect of order of conviction and from which date the period of conviction is to be computed for the purpose of Sec.19(1)(g) of the Act, 1994. In Narendra Kumar Vs. State of Rajasthan [1983 WLN-217] it has been held by the Division Bench of this court that date of conviction starts from the date when one was convicted by trial court and not from the date when it was upheld by any superior court. CW 5699/07 [4] In the instant case, the petitioner was convicted on 9th December, 1998, however sentenced remained suspended and was later on acquitted by the Court of Appeal on 27th September, 2006 and once the period of six years expired from the date of conviction on the date nomination papers were filled in the light of judgment [supra], the Returning Officer was not justified in rejecting the nomination papers of the respondent No.4 and there was no illegality or manifest error committed by learned trial Judge in passing order impugned while setting aside election of writ petitioner as Member of Ward No.14, Zila Parishad, Bharatpur. Counsel for petitioner further submits that since the petitioner after being elected as Member of Ward No.14 was further elected as Pramukh of Zila Parishad and in terms of judgment impugned Ann.5 dt.27th July, 2007 the respondents are under legal obligation to first hold election of Ward Member and by its follow up action may hold further election of Pramukh/Pradhan in terms of Chapter VII of the Rules, 1994. Counsel for contesting respondent No.4 to whom Mr. Pareek is representing he also have no CW 5699/07 [5] objection if elections are first held of Member of Ward No.14 and by follow up action the elections are held of Pramukh, Zila Parishad, Bharatpur in terms of the Rules, 1994. This has not been objected by Counsel for State as well. It appears to be reasonable also that the petitioner who was once elected as Ward Member on 8th February, 2005 and being Member was further elected as Zila Pramukh. If election of Member of Ward No.14 dt.8th February, 2005 stands set aside in view of judgment impugned certainly he cannot be allowed to continue as Zila Pramukh, but at the same time, Member of Ward No.14 also have right of say while elections are held for Pramukh, Zila Parishad, which is to be held in terms of Chapter VII of the Rules, 1994. Consequently, while upholding the order Ann.5 passed in Election Petition No.6/05 by Civil Judge [Senior Division], Bayana, District Bharatpur dt.26th July, 2007 setting aside the election as Member of Ward No.14 of the writ petitioner in the peculiar facts of this case this court considers it proper to direct the respondents to first hold election of Ward No.14 within a reasonable period and thereafter, elections be held of Pramukh, Zila Parishad in CW 5699/07 [6] terms of the Rules, 1994. However, it is made clear that once the election of the petitioner as Member of Ward No.14 which has been set aside in the election petition stands upheld by this court he cannot be allowed to continue as Pramukh, Zila Parishad, Bharatpur any further. With the above observations, writ petition stands disposed of. [AJAY RASTOGI], J. FRBOHRA5699CW07 5-5.doc