- (1.) Though the facts of all the petitions are different, the common question of law that arises before this Court is, whether the petitioners, who had allegedly incurred disqualification prior to the election of Sarpanch held in their respective Panchayat Samitis, could be permitted to plead bar against holding of lawful inquiry by the competent authority on the ground that the only remedy available to the aggrieved person is the filing of election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the said Act').
(2.) The short facts of each of the petitions may be stated as under :-- "2(I) S.B. Civil Writ Petition No. 7573/2015: The present petition has been filed by the petitioner challenging the proceedings initiated by the respondent Nos. 4 and 5 under the provisions contained in the said Act, by issuing the notice dated 6/4/2015(Annex.3), and the notice dated 4/5/2015(Annexure-4). As per the case of the petitioner, she was elected as the Sarpanch, Gram Panchayat Pagara, Panchayat Samiti Hindoli, District Bundi in the election conducted on 24/1/2015. The said election was challenged by one Shri Durgalal by filing an election petition under Section 43 of the said Act alleging that the petitioner had suppressed material fact while filing the nomination form that she had only two children though she had three children, and that her second and third children were born after the crucial date 27/11/1995. The said Durgalal also made the complaint in the office of the respondent No. 4, who issued the notice dated 6/4/2015 to the petitioner calling upon her to produce the relevant documents with regard to the allegations made against her. The respondent No. 5 also issued the notice dated 4/5/2015 calling upon her to appear on 8/5/2015 to explain the allegations made against her. It appears that said Durgalal had also filed the criminal complaint in the Court of Judicial Magistrate against the petitioner for the offence under Sections 420, 467, 468 and 471 of IPC in respect of which the FIR being No. 194/2015 has been registered against her. The respondents have resisted the petition by filing the reply contending inter alia that the inquiry being at the preliminary stage and no effective order having been passed against the petitioner, the petition was premature. It is further contended that the petitioner had suppressed the material facts from the returning officer at the time of filing the nomination form, as she did not possess the requisite educational qualification and had more than two children after the date 27/11/1995. 2(II) S.B. Civil Writ Petition No. 10410/2015 The petitioner has filed the present petition challenging the notices dated 1/5/2015, and 28/5/2015(Annexure-3 and 4) issued by the respondent Nos. 3 and 4 respectively. As per the case of the petitioner, she having contested the election for the post of Sarpanch, Gram Panchayat Bijari, Panchayat Samiti Chouth Ka Barwada conducted on 20/1/2015, she was elected as such, defeating one candidate, named, Smt. Beena. The said defeated candidate filed election petition under Section 43 of the said Act before the District Judge, Sawai Madhopur, which was transferred to the Additional Civil Judge, Sawai Madhopur. The said election petition was filed on the ground that the petitioner had submitted forged and fabricated mark sheet at the time of filing the nomination form and that she was not educationally qualified. It appears that thereafter the respondent No. 3 issued the notice dated 1/5/2015, calling upon the petitioner to produce the evidence in the inquiry fixed on 6/5/2015. It appears that the respondent No. 4 also vide the letter dated 28/5/2015, called upon the petitioner to produce the mark sheet before the Additional District Education Officer Cum Block Primary Education Officer, Sawai Madhopur. The said notices have been challenged by the petitioner in the present petition. The respondents have filed the reply contending inter alia that there was no effective order passed by the respondents against the petitioner and that she was called upon to produce the documents only with regard to the allegation of her being not educationally qualified vide the impugned notices, and therefore, the petition was premature. It is also contended inter alia that the State Government has power to initiate the inquiry under Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the said Rules). 2(III). S.B. Civil Writ Petition No. 10854/2015 The petitioner has filed the present petition challenging the notice dated 26/6/2015-Annexure-1 and the letter dated 28/7/2015-Annexure 2 issued by the respondent No. 2-Divisional Commissioner, Jaipur. As per the case of the petitioner, he was elected as Sarpanch of the Gram Panchayat, Dundlod, for the tenure of 1995-2000 and 2005-2010. The petitioner thereafter filled his nomination form for the post of Sarpanch on 31/1/2015 for contesting the election to be held on 1/2/2015, and he was elected by defeating candidate Shri Sumer Singh. Thereafter a complaint came to be filed against the petitioner to the effect that the petitioner had produced false and fabricated "no due certificate" in respect of the recovery of amount, he was liable to pay as per the audit report for the year 2006-07 in respect of the illegalities committed by him in the construction work during his tenure as Sarpanch in 2005-2010. The copy of the said complaint was also forwarded by the complainant to the Divisional Commissioner, Jaipur and the Awar Sachiv (Inquiry), Rural Development and Panchayati Raj Department, Jaipur and also to the chief Executive Officer, Jhunjhunu. The respondent No. 3-Awar Sachiv wrote a letter dated 21/5/2015 to the respondent No. 2-the Divisional Commissioner for conducting Inquiry into the matter. The respondent No. 5-Block Development Officer also vide letter dated 28/5/2015 issued a letter to the petitioner calling upon him to explain as to why the order dated 3/5/2010 passed by the respondent No. 2 declaring the petitioner as disqualified for five years and directing him to pay the amount as directed in the said order, was not complied with. The petitioner appears to have submitted the explanation as per the letter dated 4/6/2015. According to the petitioner, the respondent No. 2-the Divisional Commissioner without considering the explanation of the petitioner issued the notice dated 26/6/2015 along with the charge sheet. The respondent No. 2 also vide the impugned letter dated 28th July, 2015 recommended the Secretary and Commissioner, Rural Development and Panchayati Raj Department to suspend the petitioner for the alleged fabrication of documents. The petitioner therefore has challenged the said notice dated 26/6/2015 and the letter dated 28/7/2015 of the respondent No. 2. The petition has been resisted by the respondents by filing the reply contending inter alia that the petitioner had committed irregularities in his earlier tenure as Sarpanch as evident from the order dated 3/5/2010 (Annex.3), and that he was found guilty of having violated Section 38(1)(Kha) of the said Act. It is further contended that the petitioner had not deposited the amount as per the order dated 3/5/2010-Annexure-3, in which he was recorded as disqualified to be the Sarpanch, he having committed financial illegalities and irregularities during his earlier tenure as Sarpanch. According to the respondents, the inquiry having been initiated under Rule 22 of the said Rules, the charge sheet was issued. The petitioner in the rejoinder has stated that he had deposited the entire amount as per the said order-Annexure-3, and the charge sheet was issued against him for malafide and malice reasons. 2(IV) S.B. Civil Writ Petition No. 11075/2015 & S.B. Civil Writ Petition No. 11142/2015 Both the petitions have been filed by the same petitioner against the same respondents in respect of the proceedings initiated against him under the said Act read with the said Rules. The writ petition being No. 10075 of 2015 has been filed by the petitioner, challenging the notice dated 17/6/2015 (Annex.7) calling upon him to show cause as to why the post of Sarpanch held by him should not be treated as vacant under Section 39 of the said Act, on he having become disqualified as a Member of the Panchayati Raj Institution. The petition being No. 11142 of 2015 has been filed by the same petitioner, challenging the order dated 28/7/2015 (Annexure-8) placing the petitioner under suspension in exercise of the powers conferred under Section 38(4) of the said Act. As per the case of the petitioner, he having contested the election for the post of Sarpanch from the Gram Panchayat, Chiplata Panchayat Samiti Neem Ka Thana, District Sikar in the election conducted on 18/1/2015, was declared elected as Sarpanch for the said Gram Panchayat. Thereafter some Villagers, namely, Kishan Singh and Chhaju Ram made a complaint to the Divisional Commissioner, Jaipur on 3/3/2015 alleging inter alia that the petitioner had submitted all forged documents at the time of filing the nomination form and had also submitted false details about his children. It was also alleged that the petitioner had more than two children after the cut of date 27/11/1975. It appears that the office of the Divisional Commissioner, Jaipur vide letter dated 16/3/2015 directed the Sub Divisional Officer, Neem Ka Thana, District Sikar to inquire into the matter after providing opportunity of hearing to the petitioner. The complainant had also made complaint in the office of Commissioner, Panchayati Raj. As a result of the said complaints, the Sub Divisional Officer, Neem Ka Thana directed the Additional Block Elementary Education Officer, Neem Ka Thana to conduct the inquiry, who submitted the inquiry report dated 5/5/2015(Annex.4). On the basis of the said report the Divisional Commissioner, Jaipur issued the notice dated 17/6/2015 to the petitioner calling upon him to show cause as to why his post should not be declared as vacant in view of Section 39 of the said Act he having incurred disqualification to continue as the member of Panchayati Raj Institution. The said notice was challenged by filing writ petition being No. 10075 of 2015. It further appears that pursuant to the FIR lodged against the petitioner for the offence under Sections 420, 467, 471, 120B IP being No. 72 of 2015 in respect of the said allegations, he was also arrested by the police, however subsequently was released on bail by the concerned Court. Subsequently, the petitioner was placed under suspension by the respondent No. 2-Additional Secretary (Inquiry), Rural Development and Panchayati Raj Department exercising the powers conferred under Section 38(4) of the said Act. The said order dated 28/7/2015 has been challenged by the petitioner in the petition being No. 11142 of 2015. The said petitions have been resisted by the respondents by filing the replies contending inter alia that the petitioner had suppressed material facts from the Returning Officer at the time of filing the nomination form, as the petitioner had five children, out of whom two were born after the cut of date i.e. 27/11/1995. According to the respondents, the Divisional Commissioner after receiving the report of preliminary inquiry, had called upon the petitioner to submit his explanation vide notice dated 17/6/2015, however the petitioner did not reply to the said show cause notice dated 17/6/2015. Since the inquiry was pending and since the petitioner was arrested in the criminal case, for the offence involving moral turpitude, he was placed under suspension vide the order dated 28/7/2015 in exercise of the powers conferred under Section 38(4) of the said Act."
(3.) The learned counsels for the petitioners placing heavy reliance on the decision of Full Bench (majority view) of this Court in case of Smt. Sameera Bano v. State of Rajasthan & Ors, 2007 AIR(Raj) 168 vehemently submitted that the pre election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the said Act, and cannot be adjudicated by any authority under Rule 22 or Rule 23 of the said Rules. They have also relied upon other decisions of this Court in case of Narayan Lal Birla v. The State of Rajasthan & Ors,1997 3 RajLW 1854, in case of Kana Ram v. State of Rajasthan & Anr, 2002 5 WLN(Raj) 677 & in case of Jagram v. State of Rajasthan, 2002 2 WLN(Raj) 149 to submit that the petitioners could not be placed under suspension on the alleged pre election disqualification nor any action could be taken under Section 39 of the said Act. However, the learned counsel Mr. Manu Bhargava for the respondents has submitted that in all the petitions except Writ Petition No. 11142/2015, the petitioners have challenged the show cause notice or the letter issued by the concerned respondents calling upon them to explain the allegations levelled against them and to produce the necessary documents in that regard, and since no action has been taken so far against them, no cause of action to file the petitions had arisen. Relying upon the decision of this Court in case of Prithvi Raj Meena v. State of Rajasthan,2003 3 CDR 1907, he submitted for the Writ Petition No. 11142/15 that the inquiry under Rule 22 of the said Rules was an inquiry under sub-section (1) of Section 38 of the said Act, and therefore, the concerned respondent had power to suspend the petitioner, as his case fell under sub section (4) of Section 38 of the said Act.;