NIRBHAY SINGH Vs. MAHESH SINGH AND ANOTHER

JUDGEMENT

(1.) This special appeal is directed against an interim order of the learned Single Judge dated 17.4.2006 in S.B. Civil Writ Petition No. 9964/2005 staying operation of the order of the Election Tribunal dated 2.12.2005. Respondent No. 1 Mahesh Singh was elected as Sarpanch of Basal Panchayat in district Dholpur. The appellant challenged the election on the ground that he had more than two children and, therefore, in terms of section 19(1) of the Rajasthan Panchayati Raj Act, 1994 he was not eligible to seek election. The Election Tribunal on consideration of the evidence on record led by the parties upheld the case of the appellant and holding the respondent to be ineligible, set aside the election. As a consequence of setting aside of the election, the State Election Commission has notified fresh election and the election process has commenced.

(2.) After hearing counsel for the appellant and respondent No. 1 who has appeared on his own, we are of the view that the order is not in accordance with law for more than one reason. Firstly, by an interim order, effect of setting aside of election cannot be nullified. Secondly, the election process having commenced, the order of stay amounts to inference with the election process which is not permissible in view of the provisions of Art. 243-0 of the Constitution of India. Thirdly, it is well settled that the courts should refrain from granting interim order if the effect of interim order is granting the main relief itself. In these premises, we are constrained to set aside the order of the learned Single Judge.

(3.) The impugned order dated 17.4.2006 is accordingly set aside and the appeal is thus allowed. Hearing of the writ petition may be expedited. Appeal allowed - Order of single judge set aside.