SHETHNA, J. - (1.) HEARD the learned counsel Mr. Choudhary for the petitioner and Mr. R. L. Jangid AAG who was appearing on the advance copy of the petition served upon him by learned counsel Mr. Choudhary.
(2.) THE petitioner has challenged in this petition the impugned order dated 14. 1. 2000 (Annex. P/3) passed by the Returning Officer rejecting the nomination of the petitioner and the consequential order Annex. P/4 accepting the name of the sole candidate Kan Singh. The petitioner was earlier elected as Sarpanch of the Gram Panchayat Kaladeh in January, 1995. During him term, he received a notice from the Chief Executive Officer of the Zila Parishad, Rajsamand to show cause as to who he should not be declared disqualified to continue as Sarpanch in view of the fact that after cut off date of 27. 11. 95, he had more than two children. The petitioner denied the same, therefore, the competent authority applied to the District Judge, Rajsamand for determination of his case under Section 40 of the Rajasthan Panchayati Raj Act, 1994 (for short `the Act') which was registered as case No. 1/99 which is still pending adjudication before the District Judge, Rajsamand. The State Government has declared the elections of Gram Panchayats, Panchayat Samities and Zila Parishads in this month of January, 2000 and the petitioner filed his nomination form the election on the post of Member of Panchayat Samiti on 13. 1. 2000 (Annex. P/2 ). The nomination of the petitioner has been rejected by the Returning Officer by his impugned order dated 14. 1. 2000 (Annex. P/3 ). Consequently, the nomination form of private respondent No. 3 Kan Singh was accepted as Annex. P/4. These Annexs. P/3 and P/4 are challenged by the petitioner by way of this petition which is filed under Article 226 of the Constitution. Learned counsel Mr. Choudhary for the petitioner submitted that the decision/order dated 14. 1. 2000 passed by the Returning Officer is bad in law and illegal and, therefore, the same is liable to be quashed and set aside. He submitted that the case of the petitioner was already pending adjudication regarding the birth of another child after cut off date of 27. 11. 95 before the learned District Judge, Rajsamand and till the same is decided, the nomination form of the petitioner could not have been rejected by the Returning Officer. In support of his submission, Mr. Choudhary has relied upon Section 40 of the Act which provides the competence and power of a Judge to decide the question of disqualification and under Section 40 (4) of the Act, pending such decision, the member shall be entitled to act as if he was not disqualified. He, therefore, submitted that when the matter is actually pending before the learned District Judge for adjudication about one more child born to his place after cut off date i. e. 27. 11. 95, then the Returning Officer was wrong in rejecting him nomination form by his impugned order at Annex. P/3. In addition to this Mr. Choudhary has also relied upon Rule 27 (3) (a) of the Rajasthan Panchayati Raj (Election) Rules, 1994 (`the Rules') and submitted that the Returning Officer can reject any nomination paper only on the ground that the candidate was not qualified or was disqualified for any election. He, therefore, submitted that when the case is already pending before the District Judge about his disqualification as Sarpanch under Section 40 of the Act, then on the ground that the sixth child was born at his place after the cut off date, he could not have rejected the nomination form of the petitioner.
(3.) HOWEVER, learned Mr. Jangid for the State Government places on record a photostat copy of the birth certificate of male child born to the place of the petitioner on 13. 6. 97 which is after the cut off date of 27. 11. 95. He submitted that in the present case, the provisions of Section 40 (4) of the Act will have no application. It applies to a member of Panchayati Raj Institution who is or has become disqualified but it can never apply while considering the nomination form by the Returning Officer. He submitted that there is a totally different procedure for scrutiny of nomination papers as provided under Rule 27 of the Rules and under Rule 27 (3) (a) of the Rules, the Returning Officer has to decide either on his own or on the basis of any objections against the candidature of the candidate and reject any nomination paper on the grounds mentioned in Rule 27 (3) (a) to (d ). He submitted that the impugned order passed by the Returning Officer at Annex. P/3 is more than clear and a bare reading of it shows that the nomination form of the petitioner was found incomplete and deliberately the petitioner avoided to give information about the birth of the child after 28. 11. 95. He submitted that when the Returning Officer after considering the nomination form of the petitioner rejected the same on the ground that it was incomplete and material information was deliberately kept back, then this Court should not interfere with such order in its writ jurisdiction. In my opinion, there is a lot of substance made in the submission of learned counsel Mr. Jangid. It may be that the question regarding disqualification of the petitioner as Sarpanch may be pending adjudication before the learned District Judge, Rajsamand under Section 40 of Act and under Section 40 (4) of the Act pending such decision, the petitioner will be entitled to act as a Sarpanch as if he were not disqualified but a conjoint reading of Section 39 read with Section 40 of the Act makes it clear that it will apply to the elected members and not for future election or candidature. When the petitioner applied for forthcoming Panchayat election in the State, then Rule 27 of the Rules will apply and on proper scrutiny of the nomination paper if the Returning Officer is satisfied that the petitioner was not qualified or disqualified for the election because of the fact that his nomination form was incomplete and deliberately he has kept back information regarding the child born to his place after the cut off date of 27. 11. 95 then it cannot be said that his decision was in any way wrong. Learned counsel Mr. Choudhary for the petitioner submitted on the basis of Vasectonomy certificate (ulcunh izek. k i=k) dated 10. 10. 94 (Annex. P/1) that after undergoing that operation, it was impossible that any more child might have born to his place. It is true that there is such certificate in favour of the petitioner but one can always go for another operation of getting child and this is always possible. It is clear that the petitioner himself has undergone such nasbandi operation on 24. 9. 94 because he had no male issue and he had only four daughters, but it seems that after undergoing another operation of getting child, one more female child was born to his place on 13. 9. 95. That fact is mentioned by the petitioner himself in his nomination form at Annex. P/2. If that is so, then the allegation made against him that when he was Sarpanch, he incurred disqualification on the birth of one more male child on 3. 6. 97 cannot be said to be concocted. In any case, there is a specific column `c (x)' in the nomination form wherein he was required to disclose either any son or daughter born to his place after 28. 11. 95. If yes, whether he or she is alive or not? Instead of supplying that information, an endorsement was made by the petitioner in that column that there was an allegation levelled against him by Zila Parishad that the sixth child has born to his place which was not accepted by him for which the case is pending adjudication before the District Judge under Section 40 of the Act and, therefore, he can not be considered as disqualified as provided in Section 40 (4) of the Act. ;