PRAKASH DEVI Vs. VISHNU

JUDGEMENT

(1.) Mr. Rajesh Joshi, learned senior counsel appearing for the petitioner while assailing the impugned order dtd. 17/12/2018 has submitted that election of the petitioner as Sarpanch of Gram Panchayat Taswariya, Panchayat Samiti Hurda, District Bhilwara has illegally been set aside. Learned senior counsel submitted that petitioner had contested election for the post of Sarpanch and at the time of scrutiny of nomination paper i.e. on 23/1/2015, her name was included in the voter list of Gram Panchayat Taswariya and as such she was fully qualified to contest the election, as per the requirement of Sec. 19 of the Rajasthan Panchayati Raj Act, 1994.

(2.) Learned senior counsel submitted that the impugned order has been passed on the ground that the petitioner's name was wrongly inserted in the voter list of Gram Panchayat Taswariya. Learned senior counsel submitted that against inclusion of name of the petitioner, an appeal was filed under Rule 21 of the Rajasthan Panchayati Raj. (Election) Rules, 1994 before the District Collector, Bhilwara and as per Rule 21(4) of the Rules of 1994 the decision of the Collector reversing the decision of Electoral Registration Officer was passed in the year 2016 and as per the sub Rule (4) of Rule 21, the said decision was to take effect only from the date of decision of the appeal. Learned senior counsel submitted that the Apex Court in the case of Indrajit Barua and Ors. v. Election Commission of India and Ors. reported in AIR 1986 SC 103 has laid down the law that preparation of Electoral Rolls is a continues process and is not a process of election. Learned senior counsel submitted that the remedy against inclusion of the name of a voter in any voter list or deletion of a voter from a voter list can be the subject matter of challenge before the appropriate forum but the same cannot be a ground to treat a person disqualified for the purpose of contesting election. Learned senior counsel has further placed reliance on the judgment of this Court reported in WLC Raj. 2011 (UC) 107 in the case of Sampat Singh v. Election Commission Rajasthan through Commissioner wherein this Court following the decision of the Apex Court in the case of Indrajit Barua (supra) has held that the orders passed in respect of deletion or inclusion of name by Electoral Registration Officer can be the subject matter of challenge before the competent authority and the same cannot result into disqualification of a candidate to contest the election.

(3.) Learned senior counsel submitted that in the impugned order the Court below has not considered the legal position and further did not consider the factum of filing of the appeal by the respondents challenging the inclusion of the name of the petitioner in the electoral roll and as such the findings recorded are perverse and contrary to record.