RAJESH BALIA, J. - (1.) THIS is a petition filed by two petitioners; one Asu Ram, a resident of Ward No. 14 Village Palana and other Kheta Ram, who is Ward Panch of Gram Panchayat Palana - a Panchayati Raj Institution, challenging the order dated 7.4.2001 (Annex.5) passed by State Govt. in purported exercise of its power Under Section 97 of the Rajasthan Panchayati Raj Act, 1994 directing stay of the operation of order passed by Divisional Commissioner, Bikaner on 21st March, 2001 declaring the respondent No.3, the Sarpanch of said Gram Panchayat, by holding that he suffers from disqualification Under Section 19(1) and declaring the office of Sarpanch to be vacant in terms of Section 39 of the said Act.
(2.) THE contention of the learned Counsel for the petitioners is that the State Govt. has no jurisdiction to revise or reject the order passed by the Competent Authority Under Section 39 by invoking powers Under Section 97. He contends that the power Under Section 97 be invoked only In respect of proceedings of the Panchayati Raj Institution or Standing Committee or Sub -Committee thereof but the said power do not reach the proceedings before the Competent Authority investigating into the disqualification of the holder of an office of any Panchayati Raj Institution and on finding that any person suffers from any disqualification Under Section 19 of the Act of 1994, he is required to declare the office to be vacant. Learned Counsel for the respondent No.3 joins issue on that ground. He has further submitted that assuming that the State Govt. has no authority to interfere with the order of the Divisional Commissioner, the order of the Divisional Commissioner itself is not sustainable in law inasmuch as the same has been passed in breach of principles of natural justice and is not supported by any reason for reaching his conclusion about the disqualification of the respondent No.3. He submits that extra ordinary jurisdiction Under Article 226 ought not to be invoked to restore an illegal order for the purpose of perpetuating the same. In this connection, he further invited attention of the Court that in his return he has raised a counter claim challenging the validity of order dated 21.3.2001 (Annex. 1) passed by the Divisional Commissioner and prayed for quashing the same. To meet any technical objection for claiming such relief by way of defence it has been submitted that his return may be treated as his petition for which necessary court fees has already been paid and the validity of the order passed by the Divisional Commissioner itself may be examined.
(3.) HEARD learned Counsel for the parties. The record of the proceedings before the Commissioner was also perused which was directed to be made available to the Court and the learned Counsel for the parties were also allowed to have the inspection of the said record.;