GOPAL KRISHAN VYAS, J. - (1.) IN this writ petition, the petitioner is challenging notice of election dated 26.02.2009 (Annex. -3) praying that the respondents may be restrained from conducting election to the post of Pradhan of Panchayat Samiti, Marwar Junction (District Pall).
(2.) ACCORDING to brief facts of the case, the petitioner is elected member of Panchayat Samiti, Marwar Junction from Ward No. 5. In the Panchayat Samiti, he was elected Up Pradhan. At present, however, the petitioner is holding charge of Pradhan since, as per the petitioner, Kesa Ram who was elected as Pradhan of the Panchayat Samiti, subsequently, contested the election for Member of the State Legislative Assembly and he was elected MLA, therefore, Shri Kesa Ram resigned the post of Pradhan, and the petitioner who was Up Pradhan was given charge of Pradhan. The petitioner is assailing the validity of Annex. -3 on the ground that without conducting election of the Ward from which Shri Kesa Ram was elected as member of the Panchayat Samiti, no election for the post of Pradhan can be conducted. According to the petitioner, by -election for the Member of the Panchayat Samiti from Ward No. 1 is required to be held first and, thereafter, election for the post of Pradhan can be conducted. But, without conducting election of the Ward Member of the Panchayat Samiti the respondents are conducting election for the post of Pradhan which is arbitrary, unconstitutional and illegal.
(3.) LEARNED Counsel for the petitioner submitted that according to Section 46 of the Act of 1994, wherein, there is provision for the meeting of the Panchayat Samiti, the respondents were under obligation to give notice of meeting of ten clear days; but, no notice for the meeting of election has been issued before ten days, therefore, no election can be conducted on the basis of impugned notice for the post of Pradhan.;