1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.1662/2009. (Trilok Ram 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 ____________________________________ Reportable Mr. Vijay Kumar Vyas for the petitioner. BY THE COURT : 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 Pali). 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 2 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. 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. Learned counsel for the petitioner vehemently 3 argued that without complete election of all the Members of the Panchayat Samiti, no election for the post of Pradhan 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 Panchayat Samiti, Marwar Junction which has fallen vacant due to resignation of Shri Kesa Ram Choudhary who was earlier elected member from Ward No.1 in the Panchayat Samiti, Marwar Junction and further elected as Pradhan; 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 Ward No.1, Panchayat Samiti Marwar Junction. I have perused the writ petition and heard learned counsel for the petitioner. The petitioner is admittedly holding the charge of Pradhan in the Panchayat Samiti and admittedly he is elected member of Panchayat Samiti, Marwar Junction. 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 Pradhan and, after resignation of the 4 Pradhan Shri Kesa Ram Choudhary, he was given charge of Pradhan. I am unable to understand how the petitioner is aggrieved by any election being conducted for the post of Pradhan. Being member of the Panchayat Samiti, the petitioner can contest election for the post of Pradhan. Otherwise, he has no locus to assail the notification Annex.-3 but he can, of course, contest the election if the respondents are going to conduct the election for the post of Pradhan. He cannot raise any voice to object against conducting election for the post of Pradhan; but, apparently, the intention of filing this writ petition seems to enjoy the charge of Pradhan in the Panchayat Samiti which the petitioner is holding after resignation of the then Pradhan Shri Kesa Ram Choudhary after his resignation tendered upon being elected as Member to the State Legislative Assembly, 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 the said judgment. The facts of those 5 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/Pradhan 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 6 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 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 Pradhan in the event of resignation of the then Pradhan Shri Kesa Ram Choudhary and being elected member of the Panchayat 7 Samiti he 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 of member remains vacant. In this case, Section 46 of the Act is not attracted because provisions of Section 46 rivet around routine day to day business of the Panchayat Samiti. More so, in the democracy, the 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 Pradhan 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.