1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 13650/2010 Daulat Singh Vs The State 2.11.2010 HON'BLE MR. JUSTICE MN BHANDARI Mr PP Singh - for the petitioner BY THE COURT: The matter pertains to panchayat election of the year 2010. Petitioner has made allegation about acceptance of nomination of respondent No.5 despite of her ineligibility to contest the election for the post of Sarpanch as she is having three children after 27.11.1995. Petitioner made a complaint to the Returning Officer soon before scrutiny of nomination papers with a prayer to reject her nomination. Application so submitted on 29.1.2010 was ignored. Petitioner thereafter made a complaint to the Chief Executive Officer on 8.2.2010 with a prayer to declare respondent No.5 as ineligible to retain the post of Sarpanch. On the aforesaid complaint, an enquiry was ordered. After issuing notice to the elected Sarpanch-respondent No.5, when it was not accepted, notice was affixed on the notice board. Petitioner was, thereupon, directed to produce evidence in support of complaint. Statement of the petitioner was thereafter recorded on 19.3.2010 2 and submitted evidence to show that respondent No.5 Sarpanch is having three children out of which Deepa (Duddi) born on 26.1.1997 i.e. after cut off date i.e. 27.11.1995. Vide Annexure-8, favourable report was given by Additional Chief Executive Officer holding respondent No.5 to be ineligible to hold the post and, accordingly, recommendation was made to remove her. After submission of enquiry report, respondent No.5 made an application challenging the enquiry report mainly on the ground that ex part proceedings were held therein. The application aforesaid was accepted and, thereupon, matter was enquired by the Chief Executive Officer, wherein, earlier finding recorded in the enquiry report was reversed. Petitioner is aggrieved by subsequent enquiry report dated 19.7.2010. I have considered submissions made by learned counsel for petitioner and perused the record of the case. It is a case wherein dispute exist regarding pre- election disqualification of respondent No.5. Admittedly, petitioner made an application to the Returning Officer for rejection of nomination papers of respondent No.5 thus disqualification, if any, is prior to the election. Petitioner, thereupon, made a complaint to Chief Executive Officer with 3 prayer for declaring respondent No.5-Sarpanch to be ineligible to hold the post. Enquiry thereon was conducted by the Addl Chief Executive Officer with a finding unfavourable to respondent No.5, however, on her representation before the competent authority and hearing her thereupon, finding aforesaid was reversed. Prayer of petitioner is, accordingly, to direct the official respondents to declare respondent No.5 as disqualified to hold the post of Sarpanch. Para (iii) of prayer clause is quoted thus - “Issue an appropriate writ, order or direction, in the nature thereof thereby,the respondent authorities may kindly be directed to declare the respondent No.5 disqualified from holding the post of Sarpanch, Gram Panchayat, Karai, Panchayat Samiti Nadbai, District Bharatpur and she may be removed from the post of Sarpanch;” Paras 1 and 2 contain prayer for acceptance of earlier enquiry report and declaring subsequent report to be illegal. In the light of the prayer made, it comes out that a direction has been sought on respondents No.1 to 4 to declare elected Sarpanch- respondent No.5 to be disqualified to hold the post. Before averting to the facts of this case, it is necessary to look into legal provisions to find out as to whether official respondents are competent to enquire upon the matter pertaining to pre-election disqualification of a candidate. Aforesaid goes into 4 roots of the case because first enquiry or second report are based on State action to find out disqualification of respondent No.5 prior to election. Full Bench of this court in the case of Sameera Bano Versus State of Rajasthan & ors (2007(2) RLW 1674 held that the issue of pre-election disqualification can be challenged only by way of election petition thereby official respondents are not competent to take up the aforesaid issue. Relevant portion of the aforesaid judgment is quoted thus - “45.In view of the above discussions and for the reasons mentioned hereinbefore, we regret our inability to accept the decision in Mohan Lal or Sushila Devi and other cases taking similar view as correct. We endorse the views expressed in Bheru Singh Rathore and other cases. 46.The question framed at the outset is thus answered in the negative, and it is held that a preelection disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the Act read with rule 80 of the Election Rules and can not be adjudicated by the authority under rule 23 of the Rules. 47.In the result, Special Appeal no.236/2006 preferred by the successful candidate is allowed and the order of the learned Single Judge impugned therein is set aside; while Special Appeal nos.276/2006 and 289/2006 by the complainant and the State are dismissed. The writ petitions may be listed before the Single Bench for disposal in accordance with this judgment. Perusal of above quoted para makes the position very clear. The case in hand has been filed after making complaint and 5 enquiry thereupon by the officers. In reference to the enquiry report prayers have been made, though as per the dictum of the Full Bench of this court no such enquiry can be held by the respondents. Now to place reliance on such enquiry report with consequential relief would mean a direction contrary to the judgment of Full Bench referred to above. The facts further comes alternatively that an enquiry was conducted wherein respondent No.5 was found to be ineligible to hold the post of Sarpanch, however, respondent No.5 made a protest on various grounds amongst the ground that she was not provided an opportunity of hearing. The respondents having powers under rule 22 (7)of the Rajasthan Panchayati Raj Rules, 1996, looked into the matter and passed a detailed order holding respondent No.5 to be eligible to hold the post. It is based on facts which have been disputed by the petitioner. Jurisdiction of this court cannot be invoked for a decision on disputed question of facts. This is moreso when petitioner is having remedy under the Rajasthan Panchayati Raj Act, 1994. Provision of section 97 is quoted thus - “97. Power of revision and review by Government.- (1) The State Government may, either of its own motion or on an application from any person interested, call for and examine the record of a Panchayati Raj Institution or of a Standing Committee or sub-committee thereof in respect of any proceedings to satisfy itself as to the 6 correctness, legality or propriety of any decision or order passed therein or as to the regularity of such proceedings and, if in any case, it appears to the State Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly: Provided that the State Government shall not pass any order prejudicial to any party unless such party has had a reasonable opportunity of being heard in the matter. (2) The State Government may stay the execution of any such decision or order prejudicial to any party, pending the exercise of its powers under sub- section (1) in respect thereof. (3) The State Government may, of its own motion or on an application received from any person interested, at any time, within ninety days of the passing of an order under sub-section (1), review any such order if it was passed by it under any mistake, whether of fact or of law, or in ignorance of any material fact. The provisions contained in the proviso to sub-section (1) and in section (2) shall apply to a proceeding under this sub-section. If the petitioner was aggrieved by the action of the official respondents, he is having remedy as indicated above. For the reasons discussed above, I am not inclined to accept this writ petition. Accordingly, same is dismissed. (MN BHANDARI), J. bnsharma