B.J. Shethna, J.@mdashMr. B.L. Maheshwari appears on caveat for the respondent No. 1 Shri Satya Narain - original complainant, who has filed complaint against the present petition-sarpanch to the effect that after he was elected as Sarpanch 3rd child has born to his place, therefore, under the law he had incurred automatic disqualification. Hence, he should be removed immediately from the post of Sarpanch. Mr. Maheshwari made a grievance that though caveat was entered way back on 27.5.1999 and the copy of the same was served upon the petitioner, Mr. Joshi learned Counsel for the petitioner failed to supply copy of writ petition to him; He, therefore, submitted that this petition should be straightway dismissed only on this ground. If it is not to be dismissed then the petitioner should supply copy of writ petition to him.
2. Once caveat is filed it is the duty of the petitioner to supply copy of petition to the caveator. Mr. Joshi, a senior advocate of this Court, tendered his apology for not supplying the copy due to the circumstances beyond his reach. However, as ordered by this Court Mr. Joshi immediately supplied copy of the writ petition to Mr. B.L. Maheshwari during the course of hearing of this writ petition. Mr. Maheshwari, learned Counsel for the respondent No. 1 caveator has asked for time to file reply to this writ petition and prayed that this writ petition be adjourned for sometime to enable him to file reply to this petition.
3. Admission is privilege of the Court for which respondent is not required to be heard at admission stage. It is only when the Court feels that respondent appearing on caveat is required to be heard for the purpose of assisting the Court then only the respondent or his counsel can be heard. Only right to the counsel for respondent caveator is to oppose the interim relief and nothing more than that. Learned Counsel Shri Maheshwari has prayed for time for opposing the grant of interim stay also. When a caveat is filed, it is expected that counsel should come ready for opposing the stay because caveat is against the order which is likely to be challenged or challenged before the higher forum, therefore, the request of Mr. B.L. Maheshwari to adjourn the matter for the purpose of arguing even stay is refused. Ordinarily, this Court white admitting the petition and granting stay is not required to pass speaking order, but Mr. Maheshwari for respondent No. 1 insisted this upon Court to observe all this, therefore, this has been referred to in this order so that in future all the learned Members of the Bar appearing in such type of cases know that this way the Court time should not be wasted.
4. It is unfortunate that the trial court without understanding the order of this Court (R.R. Yadav, J.) passed in S.B. Civil Writ Petition No. 228/99 decided on 12.3.1999 mechanically and closed the evidence of the petitioner though the petitioner presented a genuine medical certificate showing that he was unable to remain present at the time of hearing of that matter before the trial court. It is true that only one opportunity was granted by this Court in revision while allowing the revision petition of the petitioner, but that does not mean that for any valid and strong reason if the petitioner is unable to remain present then also the court should proceed against him in his absence. It would clearly in violation of principles of natural justice. Thus, when there is a very strong prima facie case made out in favour of the petitioner then there is no other option for this Court, but to admit this petition. Hence this petition is admitted. Notice is ordered to be issued to respondents. Mr. B.L. Maheshwari, learned Counsel appearing for respondent No. 1 on caveat accepts notice. Notice be issued to respondents No. 2 and 3. Mr. Maheshwari may file his reply to the petition within four weeks from today. The respondents may also file their reply.
5. Once the petition is admitted and if the impugned order dated 11.5.1999 (Annex. 6) passed by the trial court is not stayed then this petition would become totally infructuous.
6. At this stage, Mr. Mahshwari pointed out that in pursuance of the trial court''s order dated 11.5.1999 (Annex.6) the charge is already taken over from the petitioner. However, Mr. Joshi states that if the mandatory order is not passed then prejudice will be caused to the petitioner.
7. Having regard to the facts and circumstances of the case and having regard to the reasons assigned by the trial court while passing the impugned order against the petitioner, without expressing any opinion on this, I am of the opinion that the impugned order at Annex.6 is required to be stayed by the mandatory interim order, if the charge for the post of Sarpanch is already taken over from him.
8. Accordingly, by way of interim order, further execution and implementation of the impugned order dated 11.5.1999 (Annex.6) passed by the trial court is stayed till the final disposal of this writ petition. The net result is that the petitioner is required to be reinstated to the post of Sarpanch, therefore, respondent Nos. 2 and 3 are directed to reinstate the petitioner as Sarpanch of Gram Panchayat Baneda, forthwith.
9. At this stage, a request was made by learned Counsel Shri Maheshwari to fix an early date of hearing of this petition as this Court has passed mandatory interim order in favour of the petitioner. There is already a heavy back log of thousands of cases pending before this Court and in my humble opinion there is rto extra ordinary urgency in this matter as the ground on which the petitioner is sought to be dislodged from the elected post of Sarpanch is not that of corruption or other serious charges. The only allegation against the petitioner is that at the petitioner''s place third child was born, therefore, he has incurred disqualification to continue as Sarpanch. There is a very good arguable point in favour of the petitioner namely that such provision came into force with effect from 27.11.1995. and the allegation against the petitioner is that third baby child was born at his place on 15/16.6.1996. Atleast nine months time is required for the birth of a child, if the wife of the petitioner had conceived much prior to 27.11.1995 then how one can say that the petitioner became disqualified from continuing as Sarpanch.
10. Under the circumstances, I am of the opinion that merely because respondent No. 1 wants early hearing of the petition, this Court should not accede to such request, who is after blood of the petitioner. Hence, request for early hearing of petition is rejected.
