IN THE HONBLE HIGH COURT OF JUDICATURE AT BILASPUR ic^,../-/, c^ WRIT PETITION ( &) N0. Ll°^ f OF 2008 PETITIONER ^gyendra Kumar Sahu S/o. Shri Bhagirathi Sahu, Aged About 36 years, R/o. Village - Kundel, P. S. Magarload, Tahsil - Kumd, Distt. -Dhamtari (C.G.) » RESPONDENTS :1. ^' /"/c^<^1 -. - ^s^ %S.^5V 4. VERSUS The State of Chhattisgarh, through the Secretary Department of Panchayat, D.K.S. Bhawan Raipur (C.G.) The Collector , Dhamtari, Distt.- Dhamtari ( C.G.) Chief executive officer Zila Panchayat Dhamtari, Distt.- Dhamtari ( C.G.) Ishwer lal Sen @ Ravi Kumar Sen ,S/o. Chetan lal Sen, aged about 26 Years, Up Sarpanch of Gram PanchayatKundel, Tahsil- Kurud, Distt.- Dhamtari ( C.G.) WRIT PETITION UNDER ARTICLES 226 OF THE CONSTITUTION OF INDIA. 4 r^ ^i HIGH COURT OF CHHATTISGARH: BILASPUR WRIT PETITION (C) N0.4064 OF 2008 PET'TIONER Rajendra Kumar Sahu Versus The State of Chhattisgarh & Others RESPONDENTS (Writ Petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Awadh Tripathi, Advocate for the petitioner. Shri P.K. Bhaduri, Panel Lawyer for the State. Shri Shashank Thakur, Advocate for respondent No.4. ORDER (ORAL) (Passed on this 15th day of July, 2010) 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 Adhiniyarfi, 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 .,.,.^—f-^ VI < sentence of imprisonment was suspended and he was released on bail. Thus, the order of the Collector is perverse and vitiated. 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. 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 ofjudicial pronouncements made by this Court as well as Supreme Court. 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 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 convictionof the respondent No.4. The sentence imposed upon the respondent No.4 for commission of offences punishable under Sections 363, 366 & 376 (1) ofthe Indian Penal Code was suspended and he was released on bail. 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) ofthe Indian Penal Code and has incurred disqualification under the provisions of Section 36 (1) (a) (ii) ofthe Adhiniyam, 1993. It was for the authorities to consider his case for disqualification, if /'c,:^\ ^ 1 ll& 8. Gowri any, to hold any elected post in view of provisions of Section 36 (1) (a) (ii) of the Adhiniyam, 1993. Thus, l 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 hotd the post of Up-Sarpanch. 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 ofthe case. In the result, the writ petition is allowed. No order as to costs. Sd/- Satish K. Agnihotri Judge