BAHADUR NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant writ petition has been filed for quashing the impugned order dated 24-10-2000 (Annex. 4), by which an enquiry under the provisions of Section 39 (1) (a) read with Section 19 (1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter called "the Act, 1994") has been ordered; and also for quashing any action or order passed in pursuance thereof.

(2.) The facts and circumstances giving rise to this case are that petitioner had contested the Gram Panchayat election held on 4-2-2000 and was elected as Sarpanch of village Likhmadesar, tehsil Sri Dungargarh, district Churu. One Mukun Nath, who had lost the election against the petitioner, filed an election petition on 28-2-2000, inter alia, on the ground that the petitioner had more than two children and as the third child was born on 10-2-99, i.e. after 27-11-96, he was disqualified to contest the election under Clause (1) of Section 19 of the Act, 1994. The said Election Petition No. 7/2000 (Annx. 1) is still pending in the Court of learned Civil Judge (Senior Division), Churu. The respondents issued a notice dated 1-9-2000 asking the petitioner to show cause as why action under Section 39 (1) (a) read with Section 19 (1) of the Act, 1994 be not taken against him on account of incurring the disqualification by having third child after the cut-off date 27-11-95, i.e. on 10-2-99. Petitioner submitted his reply dated 26-9-2000 (Annx. 9), wherein he also contended that because of pendency of the election petition on the same ground, holding such an enquiry was not permissible. It has further been stated in the reply that he had three daughters and the same were born on 2-8-92, 7-3-94 and 15-10-95, respectively. However, the respondents were not satisfied with the explanation furnished by the petitioner and vide impugned order dated 24-10-2000 (Annx. 4), the Enquiry Officer has been appointed. Hence this petition.

(3.) Mr. Manish Shishodia, learned counsel for the petitioner, has mainly contended that in view of the provisions of Art. 243-O(b) of the Constitution, the election of the petitioner can be questioned only by filing an election petition and by no other means and in case the election petition is pending before the competent Election Tribunal, the enquiry is without jurisdiction. Ms. Kusum Rao, learned counsel for respondents and Mr. D. S. Rajvi, learned counsel appearing for the intervenor, have vehemently opposed the aforesaid plea contending that there can be no bar to hold an enquiry even if the election petition is pending.