1 D.B. CIVIL SPECIAL APPEAL NO.619/2007 Dhan Singh Vs. The State of Rajasthan & Ors. Date : 03.09.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE SANGEET LODHA Mr. Amara Ram for the appellant. Mr. L.R. Upadhyay, Dy. Government Advocate. ______ This appeal is directed against the order of learned Single Judge dismissing the writ petition filed by the appellant on the ground that the term of Sarpanch has expired and, therefore, merit of the case is not required to be gone into. It appears that the appellant is facing two independent enquiries one relating to sale of panchayat land without adhering to the procedure by making allotment of Abadi plots on fixed price of Rs.200/- and another relating to extra payment made in respect of some construction carried on within the area of the panchayat. In respect of the first inquiry in respect of 2 which report was submitted on 14.1.2002, the Divisional Commissioner, Ajmer had issued a notice under Section 38 of the Panchayat Raj Act, 1994 read with Rule 22(2) of the Rules framed thereunder calling upon the petitioner to furnish his explanation. In respect of another enquiry about the additional payment, on receipt of the enquiry report at the request of the petitioner-appellant, a re-enquiry was ordered by the Collector. However while ordering the re- enquiry at the request of the petitioner-appellant, the case was also registered as an offence by the Panchayat Samiti Degana. The notice under Section 38 of the Act by Divisional Commissioner was issued on 28.6.2003 and the grievance of the petitioner appellant about direction to register a criminal case against him was raised before the Agriculture Minister of State of Rajasthan vide his letter dated 2.6.2003. These incidents led to filing of the petition 3 primarily for quashing the notice issued by the Divisional Commissioner, Ajmer on 28.6.2003 on the ground that enquiry under Section 38 has to be made by the State Government and the Divisional Commissioner cannot be authorised to take action in that regard as per the notification dated 20th Sept., 1999 by which the Divisional Commissioner was authorised to act under Section 38 on behalf of the State Government. When the matter came before the learned Single Judge, the writ petition was dismissed by the following order:- “The term of the Sarpanch having been expired, no purpose will be served in entering into the merits of the case. The writ petition is hereby dismissed.” Having heard learned counsel for the parties we are of the opinion that expiry of the term for which the petitioner-appellant has been elected would not render the petition infructuous inasmuch as the out come of the enquiry may well lead to petitioner's 4 disqualification to contest future election. In that view of the matter, the dismissal of the writ petition on the ground of expiry of the term of Sarpanch, was not justified. However, on the merit of the case, the contention of the petitioner about lack of jurisdiction on the part of the Divisional Commissioner issuing notice under Section 38 must fail on merit. This Court has occasion to consider this aspect of the matter and it was held in D.B. Civil Writ Petition No.5773/2003 - Smt. Mridula Kanwar Vs. State of Rajasthan and 14 other connected matters decided on 15th September, 2004 by the Division Bench of this Court that the State Government acts through one or other of its officer, who has been authorised to act on behalf of the State Government. That is normal methodology of the conduct of its duties by the State and in view thereof, the State Government has necessary authority to designate the Commissioner to take action under Section 38. Exercise of jurisdiction by the Divisional Commissioner under Section 38 therefore cannot be 5 held to be without jurisdiction. No other ground has been raised before us. The appeal fails, though for the reasons other than the one which prevailed with the learned Single Judge. The appeal is accordingly dismissed. No costs. [ SANGEET LODHA ], J. [ RAJESH BALIA ], J. babulal/