Malti Kumawat vs State Of Rajasthan And Ors

This Court had directed learned counsel for the petitioner to serve copy of the writ petition in the office of Ms.Sheetal Mirdha, AAG vide order dated

6.1.2020. The matter was to be posted on 9.1.2020.

On 9.1.2020, Ms.Sheetal Mirdha, AAG was directed to seek instructions on urgent basis as the learned counsel for the petitioner had made a request

for granting interim relief permitting the petitioner to contest the election on the post of Sarpanch of Gram Panchayat Ajeetgarh, Panchayat Samiti Shri

Madhopur, District Sikar.

This Court had asked the learned counsel for the respondent-State Ms.Sheetal Mirdha, AAG to inform this Court on two specific issues i.e. (i)

whether the orders dated 1.7.2019, 15.7.2019 and 24.12.2019 were served on the petitioner or not (ii) whether the delegation of power to take action

under Sections 39 and 98 of the Rajasthan Panchayati Raj Act, 1994 (hereafter 'the Act of 1994') was published in the official gazette or not.

The matter was taken up today.

Learned counsel for the petitioner submitted that prayer for interim relief may be considered by this court as the petitioner intends to participate in the

election.

Learned counsel for the respondents submitted that election process in the Gram Panchayat Ajeetgarh, District Sikar has already started as

nomination forms have been filled by the contesting candidates on 8.1.2020 and scrutiny of nomination forms has also been completed on 9.1.2020.

Learned Senior Counsel Mr.Rajendra Prasad appearing with Mr.Pradeep Mathur for the petitioner submitted that the impugned orders dated 1.7.2019,

15.7.2019 and 24.12.2019 are prima facie illegal orders which have been passed in gross violation of statutory requirement provided under Section 38

of the Act of 1994.

Learned Senior Counsel submitted that the findings have been recorded against the petitioner making her disqualified to contest the election for a

period of 5 years. The power has been exercised by the Divisional Commissioner without having jurisdiction to pass such order.

Learned counsel submitted that the Divisional Commissioner could not have passed the impugned orders without having obtained prior sanction of the

State Government. Learned counsel further submitted that the enquiry which has been conducted against the petitioner was not completed and

decided by the respondents with ulterior motive, within the stipulated time in order to deprive the petitioner to contest the election which is scheduled in

January, 2020.

Learned counsel further submitted that the objection of the respondents that the election process has been set in motion cannot come in way of the

petitioner to grant relief as the petitioner is only claiming to file her nomination and she is not putting the entire election process in question and as such

if the petitioner is permitted to participate in the election, no prejudice would be caused to any other candidate.

Ms.Sheetal Mirdha, Additional Advocate General appearing on behalf of the resopndent-State sought time to file reply to the writ petition. As far as

answer to the queries put by this Court is concerned, learned counsel submitted that the orders which have been issued making the petitioner ineligible

to contest the election makes reference of order dated 3.7.2014 whereby D.O. letter was written by the Secretary and the Commissioner, Panchayati

Raj Department to the Divisional Commissioner whereby it was intimated that in case persons who are not occupying the post of Sarpanch and if

findings are recorded against them, the Divisional Commissioner is competent to pass such order.

Learned counsel submitted that there is a proper delegation of power in the hands of Divisional Commissioner to pass such order and as such no

illegality can be attached. Learned counsel further informs this Court that as far as service of impugned orders on the petitioner is concerned, learned

counsel has produced before this Court the proof of service, said to be effected on the petitioner of impugned orders.

Learned counsel further submitted that the petitioner may not be granted any interim relief by permitting her to contest the election, as the entire

election process will be disturbed and ineligible candidate would be made eligible by virtue of the interim order of this Court.

Learned counsel further submitted that filing of writ petition by the petitioner on 3.1.2020 in spite of receiving the impugned orders in July, 2019, does

not make her entitled for the interim relief, as the petitioner has not approached the Court at the right time.

Learned counsel further submitted that if the petitioner had any grievance against the order dated 1.7.2019 about competence of the Authority, who

passed the order, the appropriate steps was required to be taken immediately by the petitioner.

Mr.Nikhil Simlote, learned counsel appearing for the respondent No.6--State Election Commission submitted that this Court may not pass any interim

order at this stage, as the entire process of scrutiny of nomination forms, etc. has been completed and permitting the petitioner would not be in the

interest of entire facts and situation of the present case.

I have heard the learned counsel for both the parties and perused the material available on record.

Prima facie, this Court finds that the orders dated 1.7.2019, 15.7.2019 and 24.12.2019 were served on the petitioner and the petitioner knew fully well

that these orders have been passed by the Authorities making her disqualified to contest the election for a period of 5 years.

This Court finds that the petitioner if had any grievance against these orders about competence of the Authority or for any illegality attached to these

orders, the petitioner ought to have come to the Court at the right time.

This Court further finds that legality attached to the orders can be examined by this Court in the present petition, however, permitting the petitioner to

contest the election will be like interfering in the election process which has already been started.

This Court finds that permitting the petitioner to contest the election will not be a proper in the facts of the present case.

Accordingly, the stay application is dismissed. List this case after two weeks. In the meantime, learned counsel for the respondents may file reply to

the writ petition.