1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.1642/2009. (Vishnu Kanwar (Jam) Vs. State of Rajasthan & Others) DATE OF ORDER : March 03, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. P.S. Bhati for the petitioner. BY THE COURT : In this writ petition, the petitioner is challenging notice Annex.-2, whereby, programme of election to the post of Zila Pramukh is notified for conducting the election to the said post on 03.03.2009. According to the facts of the case, the petitioner is elected member of Zila Parishad, Jaisalmer. She was elected as independent candidate. As per the petitioner, the total number of members in the Zila Parishad, Jaisalmer is 15, out of whom, 7 members belong to the BJP and 7 members belong to the Congress party, therefore, the petitioner's vote is of crucial value, she being an independent member. It is the case of the petitioner that the offices of Zila Pramukh and Up-Pramukh in the Zila Parishad are filled in by election from amongst 2 members. Since there was tie in the Zila Parishad, Jaisalmer, the petitioner cast her crucial vote in favour of Congress candidate Sale Mohammed, who was elected member to the Zila Parishad, Jaisalmer from Sam Panchayat Samiti, and, accordingly, Sale Mohammed was elected Zila Pramukh, Zila Parishad, Jaisalmer. The petitioner was elected Up Zila Pramukh in the Zila Parishad, Jaisalmer. According to the facts of the case, subsequently, Shri Sale Mohammed contested election for the Member of State Legislative Assembly from Pokaran constituency and he was elected MLA from that constituency. As such Shri Sale Mohammed resigned the office of Zila Pramukh, Zila Parishad, Jaisalmer and, in his stead, the petitioner who was Up Zila Pramukh was given the charge of Zila Pramukh, Zila Parishad, Jaisalmer. Now, vide Annex.-2, the Returning Officer (District Collector), Jaisalmer has notified the programme of election for the post of Zila Pramukh, Zila Parishad, Jaisalmer. The petitioner is assailing the validity of Annex.-2 on the ground that without conducting election of the Ward from which Shri Sale Mohammed was elected as member of the Zila Parishad, no election for the post of Zila Pramukh can be conducted. According to the petitioner, by-election for the post of Member from Sam Panchayat Samiti is required to be held first and, thereafter, election for the post of Zila Pramukh can be conducted. But, without conducting election of the Ward 3 Member in the Zila Parishad from the Sam Panchayat Samiti the respondents are conducting election for the post of Zila Pramukh which is arbitrary, unconstitutional and illegal. Learned counsel for the petitioner invited attention of the Court towards Section 42 of the Act of 1994, under which, by-election can be held for filling up the vacancy occurred due to resignation of a sitting Ward Member in the Zila Parishad; but, without holding by- election for the Ward Member of Sam Panchayat Samiti (Ramgarh), the respondents are conducting election amongst existing 14 members which is contrary to law and illegal. Learned counsel for the petitioner vehemently argued that without complete election of all the Members of the Zila Pramukh, no election for the post of Zila Pramukh can be conducted. According to learned counsel for the petitioner it is obligatory duty of the respondents to first conduct the election for Member of the Zila Parishad which has fallen vacant due to resignation of Shri Sale Mohammed who was earlier elected member from the Sam Panchayat Samiti and further elected as Zila Pramukh, Zila Parishad, Jaisalmer; but, he left the post after his election as Member of the State Legislative Assembly. According to learned counsel for the petitioner, the action of the respondents is totally illegal and no election can be conducted for the post of Zila Pramukh without holding election for the Member from the Sam Panchayat Samiti. I have perused the writ petition and heard learned counsel for the petitioner. 4 The petitioner is admittedly holding the charge of Zila Pramukh and admittedly she is elected member of Zila Parishad, Jaisalmer. A writ under Article 226 of the Constitution of India can be invoked by citizen for enforcement of fundamental right. Here, in this case, admittedly the petitioner was holding the post of Up Zila Pramukh and, after resignation of the Zila Pramukh Sale Mohammed, she was given charge of Zila Pramukh. I am unable to understand how the petitioner is aggrieved by any election being conducted for the post of Zila Pramukh. Being member of the Zila Parishad, Jaisalmer, the petitioner can contest election for the post of Zila Pramukh. Otherwise, she has no locus to assail the notification Annex.-2 but she can, of course, contest the election if the respondents are going to conduct the election for the post of Zila Pramukh. She cannot raise any voice to object against conducting election for the post of Zila Pramukh; but, apparently, the intention of filing this writ petition seems to enjoy the charge of Zila Pramukh which the petitioner is holding after resignation of Zila Pramukh after resignation of then Zila Pramukh Shri Sale Mohammed, therefore, no fundamental right of the petitioner is infringed to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Learned counsel for the petitioner invited attention of the Court towards order dated 02.03.2009 passed by co-ordinate Bench of this Court at Jaipur Bench in S.B. Civil Writ Petition No.2400/2009 and 4 other writ petitions. I have gone through 5 the said judgment. The facts of those cases are entirely different because those writ petitions were filed by the residents of the Wards where the posts of Member were lying vacant, therefore, they had a right to file writ petitions with the prayer that without conducting election of Member from their Ward, the post of Zila Pramukh shall not be filled in. The co-ordinate Bench of this Court (at Jaipur Bench) passed the following stay order on 02.03.2009 in S.B. Civil Writ Petition No.2400/2009 : “At joint request, instant petitions were taken together. One of basic grievances raised by petitioners is that without first holding election of Ward member, respondents could not have initiated process for making election of Pradhan/Pramukh and very notification dt.24/02/09 issued will defeat their right to participate and become member of ward which is not represented presently. It has been brought to the notice of this Court that in identical petition (CWP- 14289/08) this Court vide order dt.22/12/08 while staying operation of notification dt.12/12/08 & 16/12/08, has granted liberty to respondents to first fill the office of the Ward member and proceed further with election of Pradhan/Pramukh. Shri RB Mathur has entered into a caveat on behalf of respondents State Election Commission and submits that it is on going process and if for any good reasons, they fail to hold election of ward member, that will not withhold election of Pradhan/Pramukh as the case may be, and it is not the intention of S.29 of the Panchayatiraj Act, 1994. Since elections are taking place on 03/03/09, in terms of notification impugned 6 dt.24/02/09, and there being an order of such like nature of this Court, may be an ex parte, this Court considers it proper to maintain same parity in case of present petitioners also. Issue notice to other respondents who are not represented, returnable within four weeks. In the meanwhile this Court considers it proper to stay the operation of notification dt. 24/02/09 for holding elections of Pramukh/Pradhan of Alwar, Karauli, Churu, Laxmangarh (Sikar) and Kishangarh Bas (Alwar) subject to the liberty to the respondents to first fill the office of Ward members in aforesaid Zila Parishad/Panchayat Samiti as the case may be and proceed thereafter with the electiosn of Pradhan/Pramukh. List alongwith CWP-2424/09, 2427/09, 2528/09, 2443/09 & 14289/08 after pleadings are complete.” Bare perusal of the above order reveals that the facts of those writ petitions are entirely different. Here, in this case, the petitioner is holding charge of Zila Pramukh in the event of resignation of Zila Pramukh Sale Mohammed and being member of the Zila Parishad, Jaisalmer she can very well contest the election as per notification issued by the respondents. No fundamental right of the petitioner, however, is infringed in this case for which any interference is required to be made. It is also required to be observed that there is no bar in the Act of 1994 against conducting the election of any office bearer like Zila Pramukh, Pradhan or any other post when any vacancy remains vacant. More so, in the democracy, the 7 elections are required to be conducted within reasonable time; but, at the same time, no restriction can be imposed by the Court for not conducting election if otherwise provided under the provisions of the Act and rules. In this view of the matter, the whole intention of filing the writ petition is to enjoy the charge of Zila Pramukh, Zila Parishad, Jaisalmer and, in fact, the petitioner has no locus standi to file this writ petition because no fundamental right of the petitioner is infringed. Consequently, this writ petition is hereby dismissed in limine. (Gopal Krishan Vyas) J. Ojha, a.