HIGH COXJRT OF CHHATTISGARH AT BILASPUR v. Q^RDER

Sin^e Bench: Hoa'ble Shri Dhirendra Mishra, J W.P.(Cl N0.2742 OF 2008 Writ petltion under Artlcle 226 of the Constitution oy?idla Petitioner Respondents Versus 1.

Bhagwat Sahu Aged about 37 years, S/o Sri Mangal Sahu R/o Ward No< 15, Kamiamata Sarora Nagar Palika Parishad Beergaon, Distt. Raipur (CG) Collector^ Raipiir Disti'ict-Raipur Chhattisgarh Chief Municipal Officer, Miinicipal Council of Beei^aon Beergaon, Distt. Raipur Chhattisgarh Joint Director, Urban Development, Region Bastar Stadium, Raipur, Chhattisgarh. Adminjbstration Raipuur Subhash Present: Shri P. Mishra, leamed counsel for the petitioner. Shri WrS Murthy, Dy. Advocate General for the State. ORDBR (Passcd on^^Tunc, 2008) Dhirendra Mishra, J Heard on admission.

The petitioner, by this petition uuider Article 226 of ttie Constitution of India, has unpugned fhe order dated 31st December 2007 passed by CoUector, Raipur, respondent No. 1 herein, whereby the petitioner, who was elected as Councilor of Ward No.15, Miinicipal Council-Beergaon was declared disqualified under Section 38(1) of the Municipalities Act, 1961 on account of third child having been bome after 26th January,

3. Leamed counsel the petitioner argued that petitioner is the elected ward member of Municipal Council- Beergaon. The competent authority i.e. CoUector/rcspondent No. 1, conducted enquiry behtnd the back of the petitioner and passed the iinpugned order on the basis of enquiry and report submitted behind his back. Referrmg to the order sheets of fhe Collector it was argued that from perusal of the order sheets it woiild be evident fhat no enquiry was conducted in fhe presence of the petitioner and the matter was adjoumed on one pretext or the other. On 24.12.2007 after making som.e oral enquuy from the petitioner, the matter was flxed for order and fhe impugned order was passed on 31st December 2007. The procedure adopted by the Collector is unknown to law and the same violates the petitioner's right of fair hearing.

I have heard learned counsel the petitioner and perused fhe material available on record as also fhe impugned order.

From perusal of fhe documents filed by fhe petitioner with the instant petition it appears fhat a complaint was ffled before the CoUector by some Dr. Peetamber Jangde, resident of ward No.13, Beergaon mentioning therein fhat the third child has been bome ui the family of the petitioner after 26th Januaiy 2001 and thereforc, fhe petitioner should be disqualified to be ward member. Pursuant to tlie above complaint, a case was registered against the petitioner and report was called from fhe Commissioner, Municipal Corporation, Raipur. On 6.6.2007 report was also called from fhe Deputy Director, Town Admuiistration and Development, Raipur. 6.6.2007 and 23.7.2007 were issued to the petitioner directing him to show cause as to why he should not be declared Notices dated disquali&ed to be ward member on account of birth of third child after 26th January, 2001. •J l.^" The complainant

in his appUcation dated 23.7.2007 denied his signature in the complaint. Howe\Rer, the petitioner did not submit any rqpfy and orally stated fhat any other person has lodged fhe complamt using the nanie of the complainant, the birfh certificate is not genuine and ttie c»mplatat is false. The CoUector/respondent No.l on fhe basis of report submitted by the Chlef Municipal Officer/respondent No.2, birth Gertificate issued by Dr. (Smt.) Sarita Sehu, which shows that fhird child was bome on 24.11.2006 ia Sahu Hospital and whlch was also supported by the report of the Chief Municipal Officer, Munlcipal Committee, Birgaon, report of fhe Cominissioner, Municipal Corporation., Raipur and report of fhe Joint Director, Town Adniinistration and Dewelopment, Ralpiir, declared that the petitiaaer has incurred disqiiaUfication under Sectlon 38(1)(ee) and removed him under sub-section (2) of Sectlon 38 of the Municipalities Act, 1961. From perusal of submltted by fhe 7. petitioner it is evldent that the petltioner did not file reply to the show cause notice issued to him by the competent authority nor flie documents he flled any affidavit denying the birth of the third child after 26th January, 2001 except stattng before fhe Collector that false coinplaitit has been filed against hini by some unknown person in fhe name of complainant and the birth certiflcate is incorrect. In the affidavit before this Court also fhe petitioner has not stated that hls wtfe Ishwari Bai did not glvse birth to third child on 24.11.2006 as alleged m various reports and certiflcate of the hospital. Thus, taking into consideration tfae overall conduct of Ihe 8. petitioner fhat he did not subm.it his repfy to the show cause notice issued to hlni and did not specificalty deny eifher before the Collector or before fhis Court that his wife has glven birfh to third child on 24th November, 2006 as aUeged in ^sarious reports, I ani of the opinion that present is not a fit case where ~^€^^^^ ^% interierence is called for in exercise of jurisdiction under Article 226 of the Constitution oflndia.

In the result, fhe petition is wifhout any substance, fhe same deserves to be dismissed and is accordingty, dismissed at the admission stage itself. ____is, Sd/- Dhirendra Mishra Judge ^A