CWP-2791/2010 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. SB CIVIL WRIT PETITION NO.2791/2010 Heera Vs. State of Rajasthan & ors. DATE OF ORDER : 19/05/2010 HON'BLE MR. JUSTICE AJAY RASTOGI *** Mr.SK Saksena, for petitioner. Mr.AK Bajpai, for respondent No.4. Application has been filed on behalf of contesting respondent No.4 under Article 226(3) of the Constitution of India for vacation of the ex-parte interim order passed by the court dt.26/02/2010. However, with the consent of counsel for the parties, the matter has been finally heard and being disposed of at this stage. The present petitioner and so also the respondent No.4 contested the election of Sarpanch, Gram Panchayat Shrirampura, Panchayat Samiti Dudu, District Jaipur and both were enrolled as voter in the electoral roll of Ward No. 1 of Panchayat Circle Shrirampura, Panchayat Samiti Dudu, District Jaipur as per the Panchayat Electoral Roll-2009. After the respondent No.4 being elected as Sarpanch, the present petitioner, who is a defeated candidate, has approached this Court by filing the instant writ petition on the premise that CWP-2791/2010 2 the respondent No.4 is not ordinarily resident of Ward or constituency of the Panchayat Raj Institution where he has contested the elections and in such circumstances, he is disqualified to contest the elections and the very process initiated by the respondents in holding elections permitting the respondent No.4 to contest the elections and declaring him elected, is in violation of Section 18 of the Rajasthan Panchayati Raj Act, 1994 and requires interference by the Court. A voter list of Panchayat Voter List-2009 of Ward No. 1 of Panchayat Circle Shrirampura, Panchayat Samiti Dudu, District Jaipur has been placed on record as Anx. 1 in which name of the respondent No.4 finds place at serial No. 104 and at the same time, voter list of Ward No. 14 of the Municipal Board, Pushkar as published on 21/10/2009 has also been placed on record as Anx.2 wherein name of the respondent No.4 finds place. Taking note thereof, counsel submits that the name of the respondent NO.4 is enrolled at two places in the voter list which is contrary to Section 18(b) of the Act, 1994 and the election of the respondent deserves to be set aside. In support of the submissions, counsel has placed reliance on a judgment of Full Bench of Punjab & Haryana High Court, reported in AIR CWP-2791/2010 3 1999 (Punjab & Haryana), Page 1 and submits that the petitioner is justified in invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. Mr.AK Bajpai, counsel for the contesting respondent No.4, on the other hand, submits that there is a bar to interfere by Courts in election matters as provided under Article 243 (O) of the Constitution of India and what has been urged by counsel for petitioner can be examined by filing election petition as provided under the Rajasthan Panchayat Raj (Elections) Rules and Rule 80 of the Rules, 1994 covers all kinds of election disputes in regard to pre-disqualification and in the process of election and what has been contended by counsel for petitioner certainly would be examined under the scheme of the Election Rules, 1994. Counsel submits that the name of respondent No.4 shown in the voter list of Municipal Board, Pushakr is without his consent and no application was submitted by him in this respect and at the same time he has enclosed documents (Anx.R.4/1 to R.4/14) to show that he is resident of Ward No. 1 of Panchayat Circle Shrirampura, Panchayat Samiti, Dudu, District Jaipur. He further submits that the question as to whether the respondent No.4 is ordinarily resident of Pushakar or Panchayat Circle- CWP-2791/2010 4 Shrirampura, Panchayat Samiti- Dudu, is the question of fact, which this Court would not like to examine under its writ jurisdiction particularly when a remedy has been provided to a defeated candidate by a procedure provided under the Election Rules where the parties would be at liberty to lead evidence in support of their respective claims. The petitioner is a defeated candidate and the respondent No.4 has been elected as Sarpanch of Gram Panchayat Shrirampura, Panchayat Samiti Dudu and indisputably the remedy is available to him of filing election petition under the Election Rules, 1994 and whether the respondent No. 4 is ordinarily resident of Gram Panchayat Shrirampura, Panchayat Samiti Dudu, District Jaipur or Pushkar is a disputed question of fact and in such circumstances, the only remedy lies with the petitioner is to invoke election petition as provided under the Rajasthan Panchayati Raj (Election) Rules, 1994. In view of the efficacious & alternative remedy available to the petitioner of filing election petition under the Election Rules, 1994, this Court is not inclined to exercise its extra ordinary writ jurisdiction under Article 226 of the Constitution of India. Consequently, the writ petition fails and CWP-2791/2010 5 it is accordingly dismissed. However, the petitioner will certainly be at liberty to avail remedy available under law. [AJAY RASTOGI], J. Raghu/p.5/ 2791-CW2010-final.doc