HEERA Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) On having been declined to issue a writ to the respondents to quash the election of respondent No. 4; to restrain the publication of election result; his oath for the post of Sarpanch and the respondents to restrain him from holding and continuing on the said post, by the learned Single Judge on the ground of efficacious and alternative remedy available to the petitioner by way of filing election petition under the Rajasthan Panchayati Raj (Election) Rules, 1994 that the appellant has filed this special appeal. The learned Single Judge had refused, in the facts and circumstances of the case, to exercise its extraordinary jurisdiction on under Article 226 of the Constitution of India and dismissed the petition with liberty to the petitioner appellant to avail remedy under the relevant law. The instant case relates to the election of Mohan Lal -respondent No. 4 on the post of Sarpanch, Gram Panchayat, Shrirampura, Panchayat Samiti Dudu, District Jaipur. Respondent No. 4 is also a voter in the Electoral Roll, at serial No. 104, of Ward No. 1, Gram Panchayat, Shrirampura, Panchayat Samiti Dudu, District Jaipur. The appellant petitioner is enrolled as a voter in Electoral Roll, at Serial No. 84, of Ward No. 1, Gram Panchayat, Shrirampura. The respondent No. 4 had filed the nomination form for the election to the post of Sarpanch, Gram Panchayat, Shrirampura within schedule time i.e. 21.01.2010. Thereafter, the elections were held on 22.01.2010.

(2.) The learned Single observed that the petitioner and respondent No. 4 had contested the election of Sarpanch, Gram Panchayat, Shrirampura and both were enrolled as voters of Ward No. 1, Gram Panchayat, Shrirampura, as per the Electoral Roll of 2009. After the election of respondent No. 4 as Sarpanch, the petitioner who is a defeated candidate had approached the High Court by filing the writ petition on the premise that respondent No. 4 is not ordinarily resident of ward of constituency of Panchayati Raj Institution from where he has contested the election and, as such he was disqualified for the same. The very process initiated by the respondents in holding elections, permitting respondent No. 4 to contest the elections and declaring him elected, is in violation of Sec. 18 of Rajasthan Panchayati Raj Act, 1994.

(3.) The learned counsel for the appellant petitioner has submitted that the learned Single Judge had erred in holding that the appellant petitioner has an efficacious and alternative remedy of filing an election petition under the Rajasthan Panchayati Raj (Election) Rules, 1994. Further, he has submitted that availability of an alternative remedy cannot be a ground for dismissal of the writ petition. He has also submitted that the learned Single Judge has failed to appreciate the facts averred in the writ petition particularly that respondent No. 4 is not ordinarily a resident of Gram Panchayat, Shrirampura, Panchayat Samiti Dudu and as such does not fulfill the eligibility criteria for contesting the election from that place. The learned counsel for the appellant has further submitted that the learned Single Judge did not take into consideration the case law referred before him.