CHAUHAN, J. - (1.) -
(2.) THE instant writ petition has been filed for setting-aside the election of respondent No.2 as the Sarpanch of Gram Panchayat, Panchu, Tehsil Nokha, district Bikaner, as he stood disqualified even prior to the contest of the election under Section 19 (gg) of the Panchayati Raj Act, 1994 inserted by the Ordinance issued on 25.12.1997. The facts and circumstances giving rise to this case are that the election of Gram Panchayat, Panchu was held on 31.1.2000 and respondent No.2 Mr. Jetha Ram was elected as the Sarpanch. The instant writ petition has been filed on the ground that under Section 19 (gg) of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act"), as respondent No.2 stood disqualified to become a candidate in the election for the reason that cognizance of the offences had been taken and the same is punishable with imprisonment for five years or more, therefore, this Court must declare him disqualified and restrain him to work as Sarpanch. Mr. I.R. Choudhary, learned counsel for contesting respondent has raised a preliminary objection that the petition is not maintainable and if any person is aggrieved, he ought to have filed an election petition under Section 43 of the Act read with rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short, "the Rules"), according to which election may be called in question by any candidate at such election only by presenting an election petition to the District Judge, having jurisdiction, within a period of thirty days from the declaration of result of the election on any or more of the grounds mentioned therein. The preliminary objection is liable to be rejected on the ground that such an issue can be directly raised before the Writ Court in view of the judgment of the Hon'ble Supreme Court in K. Venkatachalam vs. A. Swamichan & Anr. (1), and a Full Bench judgment of Punjab & Haryana High Court in Lal Chand vs. State of Haryana (2), observing that entertaining such a petition even in election matter is permissible. In K. Venkatachalam (supra), the Hon'ble Supreme Court has held that "Article 226 of the Constitution is couched in widest possible term and unless there is a clear bar to jurisdiction of the High Court, its power under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of Constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In the circumstances like the present one, bar of Article 329 (b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over."
(3.) SIMILARLY, in Dwarka Nath vs. Income Tax Officer (3), the Hon'ble Supreme Court placed reliance upon the earlier judgments of the Constitution Bench in T.C. Basappa vs. T. Nagappa (4) and P.J. Irani vs. State of Madras (5), and observed as under:- "This Article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of power, the purpose for which and the person or Authority against whom it can be exercised." Similar view has been reiterated in Shri Vallabh Glass Works Ltd. vs. Union of India & Ors. (6) and Mewa Singh & Ors. vs. Shiromani Gurdwara Prabandhak Committee (7). Section 39 of the Act reads as under:- "Cessation of Membership.-(1) Subject to the provision of Section 40. a Member of a Panchayat Raj institution shall not be eligible to continue to be such member if he: (a) is or become subject to any of the disqualifications fortified in Section 19; or ................................................................................................................" ;