- (1.) VIDE order dt. 2.3.2000, notice for final hearing was issued. Notice of the stay application was also issued. Thereafter vide order dt. 29.3.2000, after service of the respondent, the matter was ordered to be listed for final hearing on 10.4.2000. On 10.4.2000, again the matter was ordered to be listed for hearing on 18.4.2000, then arguments were heard, and vide judgment dt. 28.4.2000, the writ petition was allowed. Against that order, a D.B. Special Appeal, being D.B. Civil Special Appeal No. 442/2000, was filed, and vide judgment dt. 13.4.2001, the same was allowed, on the short ground, that in a absence of appearance of appellant (present respondent No. 4), at best, the writ petition ought to have been admitted, and fresh notice ought to have been issued. It was also noticed, that though Vakalatnama is said to have been filed on behalf of respondent No. 4, it could not be placed on record, for certain reasons, which were also noticed, and therefore, the order passed was set aside, on account of non-appearance of effected party, respondent No. 4, being due to sufficient cause, and the matter was remanded, to be decided in accordance with law, after hearing the parties.
(2.) THEREAFTER appearance was put in on the side of the effected respondent, and again the matter was heard, after being adjourned on so many dates, the same Hon'ble Judge directed the record of the case, pertaining to the disqualification of respondent No. 4, to be made available for the perusal of the Court, but some how the matter could not be decided. An application was again moved for early listing of the case, which came up before me on 1.4.2004, and on the request of the learned counsel for the parties, the matter was heard on that date itself, which hearing continued on 6.4.2004, and was concluded on that date. Thus, at the request of the learned counsel for the parties, the matter is being finally decided at this stage itself. The petitioner has filed this writ petition, for quashing the order dt. 2.2.2000, Annexure-3, passed by respondent No. 2, as being without jurisdiction and illegal, and consequential revival of the order dt. 15.12.1997, Annexure-1, With this, prayer has also been made, for the rejection of the nomination form of the respondent No. 4, being Annexure-2, for declaration of election of respondent No. 4, as Sarpanch of Gram Panchayat Narlai, to be void and illegal, and for declaration of respondent No. 4, as ineligible for contesting the election, till completion of five years period from 15.12.1997. The factual matrix, for the above reliefs, according to the petitioner is, that the respondent No. 4 was the Sarpanch of Gram Panchayat Narlai from 1988 to 1991. During this period he is said to have committed irregularities and misconduct, for which, enquiry was held, charge-sheet was given, and the enquiry officer found him guilty of misconduct in discharge of his duties, and therefore, the State Government recorded findings against him, under Section 38(1) (b) of the Rajasthan Panchayati Raj Act, 1994, hereafter to be referred to as `the Act of 1994', being Annexure-1 dt. 15.12.1997. Consequently, according to Section 38(3) of the Act of 1994, the respondent No. 4 was disqualified from contesting the election, under the Act of 1994, for a period of five years. Thus he was not eligible to contest the election, as per Section 19(h) of the Act of 1994, upto 14.12.2002. With this background, it is alleged, that the elections of Panchayati Raj Institutions was announced, and nominations were to be filled on 3.2.2000. The petitioners also filed his nomination, while the respondent No. 4 and other persons also filed their nominations. At the time of scrutiny, objection was raised, about the respondent No. 4 being disqualified, in view of Annexure-1, but then, the objection was rejected by the Returning Officer, on the ground, that the said order has been withdrawn by the State Government on 2.2.2000, (Annexure-3) on the review application of the respondent No. 4. The elections were held on 4.2.2000, and the respondent No. 4 was elected vide Annexure-4. It is pleaded, that the order Annexure-3 is without jurisdiction, illegal, and the State Government has no power to review the orders passed by it, under Section 38 of the Act of 1994. The review being creature of the statute, in absence of any provision for review, the authority cannot entertain any review petition, and pass any order thereon, while the authority, in the present case, had entertained said application for review, and passed the order Annexure-3, withdrawing Annexure-1. It was also contended, that the order is a glaring example of colorable exercise of power, and has been issued malafide. It was pleaded, that on 2.2.2000, there was a complete strike in the Secretariat, the Government work was completely held up on that account, rather it was almost impossible for the executive to move any file in the office, despite that situation, Annexure-3 has been passed, while mentioning special number on the order, the order was faxed to Tehsildar, only with intention to enable the respondent No. 4, to file his nomination form on 3.2.2000. Thus, the order has been issued for extraneous consideration. Another ground taken was, that Annexure-1 was passed by the Director, Rural Development and Panchayati Raj Department, under the orders of the State Government, whereas the order Annexure-3 has been passed by an authority junior to it. Another ground taken is, that Annexure-3 has been passed after a delay of more than 2 years. The allegations for misconduct, on which the respondent No. 4 was found guilty, were also highlighted.
(3.) A reply to this writ petition has been filed on behalf of respondent No. 4, on 10.7.2001, raising certain preliminary objections. First and foremost being, about non-maintainability of the writ petition, in view of the bar enacted by Article 243- O(b) of the Constitution. Another preliminary objection is, that the petitioner has made misstatement of fact, and has also made concealment of material facts, inasmuch as, Section 38(5) read with Section 97 of the Act of 1994, permits review of any order passed under Section 38 of the Act of 1994. The next objection is, that the order dt. 15.12.1997 itself is illegal, rather null and void, and therefore, setting aside the order dt. 2.2.2000 would result in restoration of null and void order, and therefore, the writ petition cannot be entertained. An objection about non-impleadment of Returning Officer was also taken, as he is said to be necessary party. Giving parawise reply, locus of the petitioner has been challenged, on the ground, that the petitioner cannot be said, to be a person aggrieved of the order dt. 2.2.2000, and the present one is not a Public Interest Litigation, and that, since the order dt. 15.12.1997 was null and void, and therefore, it was rightly withdrawn by Annexure-3. The charges leveled against the respondent No. 4 have been contended to be frivolous, and it was a clear case of malafide exercise of power, on the part of the State Government. It is contended that after the charge sheet was issued, the respondent No. 4 submitted the reply on 29.3.1993, denying allegations, thereafter enquiry officer was appointed, in the meanwhile, the Act of 1953 was repealed, likewise the Rajasthan Panchayat (General) Rules, 1961 were also repealed, and on the face of language of Section 124 of Act of 1994, these proceedings were not saved, nor permitted to be continued under Section 38 of the Act, therefore, w.e.f. 23.4.1994, when the Act of 1994 came in force, the proceedings initiated against the respondent No. 4, under Section 17 of the Act of 1953, automatically came to an end, still they were continued. Enquiry officer did not conduct the enquiry in accordance with the principles of natural justice, neither the list of departmental witnesses was given, nor the list of documents, relied upon, was given to the respondent No. 4, rather the enquiry officer simply asked him to attend the enquiry at Pali, and simply asked to give reply to the charge sheet, and whatsoever was done by the enquiry officer, was absolutely secret. Thus, the enquiry was conducted in violation of the principles of natural justice, and in the said enquiry, one charge was found to be proved, and two charges were found to be partly proved, while two charges were found to be not proved. On receipt of the enquiry report, notices were issued on 3.7.1996, which notice was accompanies with partial report of the enquiry officer. However, another notice dt. 5.10.1996 was issued, to which detailed reply was filed, being Annexure R-4/1, and a prayer for opportunity of personal hearing was also made, but then, the respondent No. 4 did not hear anything in the matter. Thereafter, when he came down to Narlai, in the last week of January 2000, he came to know of passing of the order dt. 15.12.1997. Thereafter he immediately submitted a petition for recalling the order, whereupon the order was recalled. It was contended, that the order dt. 15.12.1997 was null, and void, there was no question of his being disqualified from holding the office of Sarpanch, it is only when the answering respondent was declared elected, that a grievance has been raised. It was then contended, that the order Annexure-3 is perfectly valid, and within the jurisdiction of the State Government. Regarding authority of the State Government, reliance is placed on Section 38(5), read with Section 97 of the Act. Allegation about strike in the Secretariat was disputed, and it was pleaded, that no, foundation has been laid by the petitioner, for making the allegation, rather the work of the Secretariat was going on, as usual, and no foundation has been laid for contending the order to be malafide. Regarding the status level of the two authorities, it was contended, that the order Annexure-3, has already been passed by the State Government, and the signing authority, communicating the order is immaterial. Regarding the delay, it was contended, that no limitation has been prescribed for exercising power under Section 97 of the Act of 1994. Apart from the fact, that as the order dt. 15.12.1997 is null and void, it could be recalled at any time, and that, when the respondent No. 4 came down to Narlai, in the month of January, 2000, he came to know of the order dt. 2.2.2000, as such there is no delay. Another objection raised is, that the petitioner cannot be said, to be not having other equally efficacious remedy, rather he had the remedy of filing the election petition. In this reply respondent No. 4 has purportedly filed the counter writ, seeking to assail the order dt. 15.12.1997, interalia on the ground, that with the repeal of 1953 Act, and the proceedings being not saved under Section 124 of the Act of 1994, the order was null and void, the Government has not at all considered the reply given by the respondent No. 4, nor any reasons have been given for rejecting the explanation, and that the State Government did not record its own finding, as required by Rule 22 of the Rules of 1996, read with Section 38 of the Act of 1994, the enquiry being in utter breach of principles of natural justice, and charges leveled against him, being baseless, as the respondent No. 4 did not pass any order on his own, rather all orders were passed on the resolution of the Gram Panchayat. The respondent No. 4 has also challenged the order dt. 15.12.1997 being illegal, as it is non-speaking order. No reply has been filed on behalf of the State Government. Rejoinder has thereafter been filed by the petitioner on 13.7.2001, contending that the provisions of Article 243-O are not attracted in the present case. The petitioner has not concealed any fact from this Court, rather, even on a combined reading, of Section 38(5), and Section 97 of the Act of 1994, it is clear, that the State Government has no power to review any order made by it, under Section 38 of the Act. The other objection raised is, that it is not open to the respondents, to challenge the validity of the order dt. 15.12.1997, at this belated stage. Returning Officer is contended to be not a necessary party, as the petitioner has mainly challenged the order dt. 2.2.2000, passed by the State Government, and other reliefs claimed are consequential to the main relief. Various other paras of the reply have also been controverted in the rejoinder. It was specifically pleaded, that the respondent had not submitted any application for recalling the order dt. 15.12.1997, rather application for review of the order dt. 15.12.1997 was filed, and the order dt. 2.2.2000 is wholly without jurisdiction. It was contended, that the counter writ petition has been filed after more than 3-1/2 years, which cannot be entertained. It was also pleaded, that the proceedings could continue under the Act of 1994, after repeal of 1953 Act. It was maintained, that the order dt. 2.2.2000 is wholly without jurisdiction. It was pleaded, that the order dt. 15.12.1997 was passed by the State Government, after considering the reply of the petitioner, as is evident from the said order, and before passing the order, relevant provisions of law were fully complied with. ;