- (1.) The present appeal arises from order dated 05.08.2014 dismissing S.B. Civil Writ Petition No. 8546/2014. The learned Single Judge declined to interfere with the order dated 25.07.2014 passed by the Divisional Commissioner holding the appellant ineligible to continue on the post of Sarpanch under Section 19(l) read with 39(2) of the Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act').
(2.) Learned counsel for the appellant submitted that he was elected as a Sarpanch pursuant to elections held in the year 2010 for a period of five years. Any pre-election disqualification under Section 19(l) of the Act had to be the subject matter of an election petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. The Divisional Commissioner could not have unseated the appellant on the ground of a pre-election disqualification in his capacity as competent authority under Section 39(2) of the Act. Reliance was placed on a Full Bench decision reported in 2007(2) Western Law Cases(Raj.) 526, Smt. Sameera Bano v. State of Rajasthan and Ors . It was next submitted that the enquiry conducted by the Sub Divisional Officer was without jurisdiction. The competent authority under Section 39(2) of the Act issued notice on 19.11.2014 and without holding any enquiry himself relying on the report of the Sub Divisional Officer, has held the appellant to be disqualified drawing adverse inference without granting adjournment to file reply.
(3.) Learned Advocate General appearing on behalf of the respondents submitted that the order of the learned Single Judge called for no interference. The pleadings in the writ petition were woefully inadequate and no challenge was laid out to the order of the Divisional Commissioner dated 25.07.2014 as being without jurisdiction urging that the disqualification can be the subject matter of an election petition only. The order of the Divisional Commissioner is based on an enquiry conducted by the Sub Divisional Officer. If the appellant despite notice did not participate and the authority relied upon certain documents obtained from the school in question to arrive at a finding of fact that the fourth child was born to the appellant after the cut off date of 27.11.1995 rendering the appellant disqualified under Section 19(l), it calls for no interference. The order of the learned Single Judge may not be tested on grounds not urged before him.;