Sandeep Mehta, J. - (1.) The petitioner herein is elected Sarpanch of the Gram Panchayat Motisara, Panchayat Samiti Siwana, District Barmer. He has approached this Court through this writ petition filed under Article 226 of the Constitution of India for assailing the notice (Annexure-5) dated 20.07.2017 issued by the Development Officer, Panchayat Samiti Siwana, District Barmer seeking his explanation in regard to allegations constituting pre-election disqualifications. Evidently, the foundation of the impugned action is constituted by allegation of pre-election disqualification and such inquiry can only be initiated by filing an election petition. Manifestly, in view of the law laid down by this Court in a series of judgments including the one in S.B. Civil Writ Petition No.16070/2015 "Bhupendra Singh Hada Vs. State of Rajasthan & Ors." decided on 11.02.2016, allegations constituting pre-election disqualification cannot be made the foundation of placing an elected Sarpanch of the Gram Panchayat under suspension or for initiation of inquiry by taking recourse of the powers conferred upon the State Authority by virtue of Section 38 of the Panchayati Raj Act.
(2.) In view of this admitted legal and factual position, the impugned notice (Annexure-5) dated 20.07.2017 passed by the Development Officer seeking initiation of inquiry is hereby quashed and set aside.
(3.) However, it is clarified that in case, the competent criminal court frames charge against the petitioner for an offence punishable with imprisonment of five years and above, the authority shall be free to initiate fresh proceedings against him without being prejudiced by this decision.;