RATHORE, J. - (1.) BY this writ petition, the petitioner seeks direction to declare the Rule 48-C and 49-B as invalid and void. Besides this, the petitioner also prayed to quash the notification dated 25. 1. 1995 issued by the State Election Commission as being invalid and void and to quash the order dated 1. 2. 2005 issued by the District Election Officer (Panchayat) being without jurisdiction, illegal, improper and void and further seeks direction directing the respondents to count the votes of the poll for office of Sarpanch, Gram Panchayat, Garhajan of the poll held on 31. 1. 2005.
(2.) LEARNED counsel for the petitioner submitted that at about 8 p. m. The Deputy Superintendent of Police, Kaman informed that as per the directions of the District Collector, Bharatpur, counting would not be held at Tehsil Office, Kaman. At about 10. 00 p. m. The SDM, Kaman informed that the Collector, Bharatpur has ordered not to conduct the counting as the re-poll will be held. The order has been passed by the District Election Officer (Panchayat) purporting to act under Rule 48 (B) (2) (1) and 48 (C) the Rajasthan Panchayati Raj (Election) Rules, 1994. The petitioner has challenged the validity of the aforesaid rules on the ground that as per Section 120 of the Panchayat Act, the functions of the State Election Commission under this Act or the rules or orders issued thereunder, subject to such general or special directions, if any, as may be given by the State Election Commission in this behalf, be performed also by a Deputy Election Commissioner, if any, or by the Secretary to the State Election Commission. Whereas, as per Rule 48 of the Rajasthan Panchayati Raj Rules, 1996, the Returning Officer may, in emergencies such as a likely disturbance of the public peace, close the poll and announce and adjournment thereof to a subsequent day to be notified by District Election Officer (Panchayats) or on Officer nominated by him. And as per sub-rule 2 of Rule 48, the circumstances leading to such closure and adjournment shall be reported by the Returning Officer forthwith to the district election officer (Panchayats) or Officer nominated by him. Learned senior counsel submits that Rule 48-C and 49-B provides delegation of powers of Election Commission to District Election Officer (Panchayat) or to any other officer subordinate to the Election Commission whereas Section 120 provides two authorities i. e. , District Election Officer (Panchayat) and Collector to whom the functions of the Election Commission can be delegated, therefore, being contrary to the provisions of Section 120, Rule 48, 48-A, 48-B & 48-C are invalid and void and be declared ultra vires. In support of his submissions, learned senior counsel placed reliance on the judgment rendered in case of Mahendra Singh Gill's vs. Chief Election Commissioner (1), wherein the Hon'ble Supreme Court in para 50 has held "article 324, on the face of it, vests vast functions which may be powers or duties, essentially administrative and marginally even judicative or legislative. We are not fascinated by the logo-machic exercise suggested by Sri P. P. Rao, reading `functions' in contra- distinction to `powers' nor by the trichotomy of diversion of power, fundamentally sound but flawsome in several situations if rigidly applied. These submission merely serve to draw the red- herring across the trial. We will now zero-in on the crucial issue of natural justice vis-a-vis Article 324 where the function is so exercised that a candidate is substantially prejudiced even if he has not acquired a legal right nor suffered `civil consequences', whatever that may mean. "
(3.) MR. B. L. Sharma, learned senior counsel also referred Article 324 (1) & (4) which read as under:- 324. Superintendence, direction and control of elections to be vested in an Election Commission. (1) the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission ). 2 . . . . . . . . . . 3 . . . . . . . . . . (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1 ). Learned counsel further submits that Hon'ble Supreme Court in case of Mahendra Singh (supra), while dealing with Article 324 (1) has observed that Article 324 (1) vests in the Election Commission the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and the elections to the offices of the President and the Vice- President held under the Constitution. Article 329 (b) provides that notwithstanding anything in the Constitution, no election to either House of Parliament or to the House or either of the Houses of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. Learned counsel also submits that polling was more than 80% cannot be a ground for re-poll and as per Section Rule 48-B adjournment of poll or countermanding of election can only be made on the ground of booth capturing and such allegations have not been made by the respondents while taking decision for re- polling. ;