MAGNA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) VIDE order dt. 2.3.2000, notice for final hearing was issued. Notice of the stay application was also issued. Thereafter vide order dt. 29.3.2000, after service of the respondent, the matter was ordered to be listed for final hearing on 10.4.2000. On 10.4.2000, again the matter was ordered to be listed for hearing on 18.4.2000, then arguments were heard, and vide judgment dt. 28.4.2000, the writ petition was allowed. Against that order, a D.B. Special Appeal, being D.B. Civil Special Appeal No. 442/2000, was filed, and vide judgment dt. 13.4.2001, the same was allowed, on the short ground, that in a absence of appearance of appellant (present respondent No. 4), at best, the writ petition ought to have been admitted, and fresh notice ought to have been issued. It was also noticed, that though Vakalatnama is said to have been filed on behalf of respondent No. 4, it could not be placed on record, for certain reasons, which were also noticed, and therefore, the order passed was set aside, on account of non-appearance of effected party, respondent No. 4, being due to sufficient cause, and the matter was remanded, to be decided in accordance with law, after hearing the parties.

(2.) THEREAFTER appearance was put in on the side of the effected respondent, and again the matter was heard, after being adjourned on so many dates, the same Hon'ble Judge directed the record of the case, pertaining to the disqualification of respondent No. 4, to be made available for the perusal of the Court, but some how the matter could not be decided.

(3.) A reply to this writ petition has been filed on behalf of respondent No. 4, on 10.7.2001, raising certain preliminary objections. First and foremost being, about non-maintainability of the writ petition, in view of the bar enacted by Article 243- O(b) of the Constitution. Another preliminary objection is, that the petitioner has made misstatement of fact, and has also made concealment of material facts, inasmuch as, Section 38(5) read with Section 97 of the Act of 1994, permits review of any order passed under Section 38 of the Act of 1994. The next objection is, that the order dt. 15.12.1997 itself is illegal, rather null and void, and therefore, setting aside the order dt. 2.2.2000 would result in restoration of null and void order, and therefore, the writ petition cannot be entertained. An objection about non-impleadment of Returning Officer was also taken, as he is said to be necessary party. Giving parawise reply, locus of the petitioner has been challenged, on the ground, that the petitioner cannot be said, to be a person aggrieved of the order dt. 2.2.2000, and the present one is not a Public Interest Litigation, and that, since the order dt. 15.12.1997 was null and void, and therefore, it was rightly withdrawn by Annexure-3. The charges leveled against the respondent No. 4 have been contended to be frivolous, and it was a clear case of malafide exercise of power, on the part of the State Government. It is contended that after the charge sheet was issued, the respondent No. 4 submitted the reply on 29.3.1993, denying allegations, thereafter enquiry officer was appointed, in the meanwhile, the Act of 1953 was repealed, likewise the Rajasthan Panchayat (General) Rules, 1961 were also repealed, and on the face of language of Section 124 of Act of 1994, these proceedings were not saved, nor permitted to be continued under Section 38 of the Act, therefore, w.e.f. 23.4.1994, when the Act of 1994 came in force, the proceedings initiated against the respondent No. 4, under Section 17 of the Act of 1953, automatically came to an end, still they were continued. Enquiry officer did not conduct the enquiry in accordance with the principles of natural justice, neither the list of departmental witnesses was given, nor the list of documents, relied upon, was given to the respondent No. 4, rather the enquiry officer simply asked him to attend the enquiry at Pali, and simply asked to give reply to the charge sheet, and whatsoever was done by the enquiry officer, was absolutely secret. Thus, the enquiry was conducted in violation of the principles of natural justice, and in the said enquiry, one charge was found to be proved, and two charges were found to be partly proved, while two charges were found to be not proved. On receipt of the enquiry report, notices were issued on 3.7.1996, which notice was accompanies with partial report of the enquiry officer. However, another notice dt. 5.10.1996 was issued, to which detailed reply was filed, being Annexure R-4/1, and a prayer for opportunity of personal hearing was also made, but then, the respondent No. 4 did not hear anything in the matter. Thereafter, when he came down to Narlai, in the last week of January 2000, he came to know of passing of the order dt. 15.12.1997. Thereafter he immediately submitted a petition for recalling the order, whereupon the order was recalled. It was contended, that the order dt. 15.12.1997 was null, and void, there was no question of his being disqualified from holding the office of Sarpanch, it is only when the answering respondent was declared elected, that a grievance has been raised. It was then contended, that the order Annexure-3 is perfectly valid, and within the jurisdiction of the State Government. Regarding authority of the State Government, reliance is placed on Section 38(5), read with Section 97 of the Act. Allegation about strike in the Secretariat was disputed, and it was pleaded, that no, foundation has been laid by the petitioner, for making the allegation, rather the work of the Secretariat was going on, as usual, and no foundation has been laid for contending the order to be malafide. Regarding the status level of the two authorities, it was contended, that the order Annexure-3, has already been passed by the State Government, and the signing authority, communicating the order is immaterial. Regarding the delay, it was contended, that no limitation has been prescribed for exercising power under Section 97 of the Act of 1994. Apart from the fact, that as the order dt. 15.12.1997 is null and void, it could be recalled at any time, and that, when the respondent No. 4 came down to Narlai, in the month of January, 2000, he came to know of the order dt. 2.2.2000, as such there is no delay. Another objection raised is, that the petitioner cannot be said, to be not having other equally efficacious remedy, rather he had the remedy of filing the election petition. In this reply respondent No. 4 has purportedly filed the counter writ, seeking to assail the order dt. 15.12.1997, interalia on the ground, that with the repeal of 1953 Act, and the proceedings being not saved under Section 124 of the Act of 1994, the order was null and void, the Government has not at all considered the reply given by the respondent No. 4, nor any reasons have been given for rejecting the explanation, and that the State Government did not record its own finding, as required by Rule 22 of the Rules of 1996, read with Section 38 of the Act of 1994, the enquiry being in utter breach of principles of natural justice, and charges leveled against him, being baseless, as the respondent No. 4 did not pass any order on his own, rather all orders were passed on the resolution of the Gram Panchayat. The respondent No. 4 has also challenged the order dt. 15.12.1997 being illegal, as it is non-speaking order.