CHAUHAN, J. - (1.) -
(2.) THE instant writ petitioner has been filed challenged the impugned order dated 8.5.2000 (Annx.6), by which the petitioner has been suspended from the Membership of the Municipal Corporation, Jodhpur. The facts and circumstances giving rise to this case are that petitioner was declared elected as a Member of the Municipal Corporation, Jodhpur on 27.11.99. On compliant, preliminary enquiry was held and prima facie the respondents were of the view that petitioner was disqualified for contesting the election by virtue of the provisions of Section 26 of the Rajasthan Municipalities Act, 1959 (for short, "the Act") as the 4th child was born to him after the cut off date. A show cause notice was served upon the petitioner and he submitted his reply to the said notice on 29.3.2000 contending that the notice was without jurisdiction as his election could not be challenged by any means other than by filing an election petition as provided under the provisions of Section 34 of the Act and the provisions of Section 63(4) of the Act were not attracted. After considering his reply, the impugned order dated 8.5.2000 (Annx. 6) has been passed suspending the petitioner from the Membership of the Corporation and a judicial inquiry under Section 63(4) has been initiated as to whether he had incurred the disqualification under Section 26 of the Act. The main contention raised by Mr. Vineet Kothari, learned counsel for the petitioner, has been that once the petitioner stood elected and the statute provides a particular mode of challenging the election by filing an election petition, the proceedings of judicial inquiry and suspension order are null and void being without jurisdiction and the only mode of removing the petitioner from the Membership was by election petition under Section 34 of the Act and no other mode is permissible. The submission made by the petitioner is not worth acceptance in view of the judgment of this Court in Magna Ram vs. State of Rajasthan & ors. (1). The said case was in respect of the analogous provisions under Section 38 of the Rajasthan Panchayati Raj Act, 1994. Petitioner therein had been declared disqualified after holding inquiry under the provisions of the said Act. The Government reviewed its decision and petitioner contested the election and was duly elected. Before the Returning Officer, objection had been raised that petitioner stood declared disqualified after holding a full-fledged inquiry and the Government had reviewed the earlier order declaring him disqualified vide order dated 2.2.2000, was nullity for want of competence and, therefore, he was disqualified to contest the election. The Returning Officer rejected said submission and accepted his nomination. His election was immediately challenged by filing the writ petition and this Court held that as the Government had no competence to review its earlier order declaring him disqualified, the subsequent order was nullity, thus, the petitioner order was nullity, thus, the petitioner was disqualified to contest the election and his election was declared to be inconsequential. In the said case, this Court placed reliance very heavily on the judgments the Hon'ble Supreme Court in K. Venkatachalam vs. Swamichan & Anr. (2) and a Full Bench judgment of Punjab & Haryana High Court in Lal Chand vs. State of Haryana (3) wherein it has been held that in case of disqualification, election petition is not the only mode of challenge the election and it can be challenged by any alternative and available mode including the writ petition. (6). Undoubtedly, suspension of a public representative is a matter of serious concern because the duly elected person loses his status during the suspension period and the loss is of such immense nature that it cannot be compensated it terms of money or the harm cannot be undone by any other means. Therefore, the suspension order should be passed with great care and circumstance. (Vide Prem Prakash vs. State of Rajasthan (4). Moreso, the reply of the petitioner, in response to the show cause notice after preliminary enquiry, should be dealt with properly. (Vide Nauratan Mal Tak vs. State of Rajasthan & ors. (5).
(3.) THERE is a catena of decisions of this Court laying down that an elected representative should not be suspended putting him at par with a Government employee, for the reason that in a democratic set up, the duly elected officer is to be considered entirely on a different pedestal than that of the government employee and gravity of the charges should be of high magnitude warranting suspension of the erring elected officer. (Vide Bajrang Lal vs. State of Rajasthan & ors. (6) and Radhey Shyam Sharma vs. State of Rajasthan & ors. (7). The basic question remains whether a person who has made a misrepresentation at the time of filing his nomination, can be held entitled to take a technical plea that he cannot be removed by any means other than that of election petition presuming that the allegations made in the complaint are true for the time-being till the inquiry is concluded. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (Dead) by LRs. vs. Jagannath (dead) by LRs. & ors. (8). In Lazarus Estate Ltd. vs. Besalay (9), the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything." ;