- (1.) BY this writ petition, the petitioners have challenged the order dated 20-2-2008 whereby the Distt. Judge, Bharatpur before whom the election petition was filed by the respondent No. 1, while transferring the petition to the Addl. Distt. Judge No. 1, Bharatpur passed order of maintaining status quo by the parties.
(2.) FACTS in brief of the case are that in the month of February, 2005, election was held to the post of Member, Panchayat Samiti Nagar, Distt. Bharatpur in which all the petitioners were elected from their respective Wards by good margin of votes. The respondent No. 1 who was loser filed an eletion petition against the petitioners under S.40 of the Rajasthan Panchayati Raj Act with the averments that the petitioners were not eligible as Ward Member of the Panchayat Samiti because they have more than two children after the cut - off date 27-11-1985, therefore, the petitioners become disqualified. The respondent No. 1 filed a stay petition under S.151, CPC in the election petition with the averments that the petitioners may be restrained from participating in the election process of Panchayat Samiti. On the said application the aforesaid impugned order was passed. Submission of counsel for the petitioners is that as per R.85 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (in short 'the Rules of 1994') the procedure provided in the CPC in regard to suits shall in so far as it relates to can be made applicable be followed in the hearing of the petition and further u/R. 86 the Court hearing the election petition will have the same powers as of a Judge of the Civil Court. A conjoint reading of both the aforesaid rules would reveal that it relates to the procedural part and not for substantive provision. Otherwise also, the provisions have been made applicable so far as it can be made applicable. He further submits that in normal course in election petition no stay petition is filed for the reason that the proviso to R.86 clearly prohibits injunction or stay order restraining a person whose election is questioned from exercising his power and performing the duties can be passed.
(3.) SUBMISSION of Mr. Yadav is that except the proviso part, the Court is competent to pass the status quo order under the provisions of the CPC i.e. under O.39, R.1 and R.2, CPC.;