Rajendra Choudhary @APPELLANT@Hash Senior Civil Judge

Heard learned counsel for the parties. Perused the material available on record.

The petitioner was elected as a Ward Member of the Ward No.3, Panchayat Samiti, Maulasar, Tehsil Deedwana, District Nagaur in the elections held

in the year 2015. The respondent No.4 Shri Rajendra who was a contesting Ward Member, filed an election petition to challenge the election of the

petitioner before the District Judge, Merta City which in due course came to be transferred to the Court of the Sr. Civil Judge, Didwana. The principal

ground of challenge laid to the petitioner’s election was that while filling the nomination form, the petitioner concealed the fact of the charges

framed against him by the criminal court for offences under Sections 323/34, 427/34 and 452/34 of the IPC and thus, he was suffering a

disqualification in terms of Section 19(gg) of the Panchayati Raj Act, 1994. While filing reply to the election petition, the petitioner did not dispute the

fact that when he contested the election, the charges as aforesaid had been framed against him by the competent court. However, the defence of the

petitioner was that the competent court had granted benefit of probation to the petitioner while deciding the case by judgment dated 08.08.2016 and

thus, he was entitled to the umbrella of protection provided by Section 12 of the Probation of Offenders Act, 1958 and the disqualification as aforesaid

would not operate against him. The Election Tribunal, proceeded to hold that the petitioner was disqualified from contesting the election because as on

the date of submitting the nomination form, he was carrying the statutory bar prescribed under Section Section 19(gg) of the Panchayati Raj Act.

Accordingly, the election petition was allowed and the petitioner’s election on the post of Ward Member was set aside vide judgment dated

22.05.2018. The said judgment dated 22.05.2018 passed by the Election Tribunal is assailed by the petitioner in this writ petition filed under Article 226

of the Constitution of India.

Ms. Varsha Bissa, learned counsel representing the petitioner vehemently and fervently urged that, since, by the date when the election petition came

to be decided, the criminal case had been decided in favour of the petitioner, he is unquestionably entitled to continue as a Ward Member. As per Ms.

Bissa, the petitioner was granted benefit of probation by the trial court while deciding the criminal case and thus, the protective umbrella of Section 12

of the Probation of Offenders Act would save the petitioner from the consequence of disqualification. She thus urged that the writ petition should be

accepted and the impugned judgment dated 22.05.2018 passed by the Sr. Civil Judge, Didwana be set aside.

Per contra, Shri R.S. Choudhary, learned counsel representing the respondent Rajendra (election petitioner), vehemently and fervently urged that the

disqualification of the petitioner from the post was inevitable because a subsequent decision by the criminal court would not erase the disqualification

afflicting a person at the time of filing the nomination papers. In support of this contention, Shri Choudhary relied upon a Full Bench decision of this

Court in the case of Narayan Lal vs. State of Rajasthan & Ors., reported in WLC 2004(5) 737 wherein, the Court held as below:-

“21. The disqualification does not refer to conviction but refers to the pendency of trial. The factum of the pendency of trial for a cognizable

offence punishable with imprisonment for five years or more in which a charge has been framed by the Court at the relevant time when the

nomination papers are subjected to scrutiny is by itself a disqualification and such disqualification has nothing to do with the contingent situation of

acquittal or conviction.

We, therefore, do not agree with the view taken by the Division Bench as contained in the order dt.3.4.2002, whereby, reference has been made

and agree with the reasons as given in the judgment and order dt.25.1.2002 in D.B. Civil Writ Petition Nos.2463/2001 and have no hesitation in

answering the question referred to us as under:-

A Sarpanch elected by a democratic process can certainly be ousted from the office on the ground that he was disqualified to contest the election u/S.

19(gg) of the Rajasthan Panchayati Raj Act, 1994 as on the date of filing nomination papers when he was undergoing a trial before the competent

Court which had already taken the cognizance of the offence and had famed the charge against him for the offence punishable with imprisonment for

five years or more and even if he stood acquitted of such charge at the end of the trial, it could not be a ground not to upset his election.

Reference is answered accordingly and both these matters are sent back before the concerned Court for decision in accordance with law.

He further relied upon the Apex Court decision in the case of Ravikant S. Patel vs. Sarvabhouma S. Bagali, reported in (2007)1 SSC 673 and urged

that the writ petition deserves to be dismissed.

I have given my thoughtful consideration to the arguments advanced at bar and have gone through the material available on record.

Ex-facie, the argument advanced by Ms. Bissa learned counsel representing the petitioner that the disqualification stands washed off with the decision

of the criminal case whereby, the petitioner was given benefit of probation is absolutely untenable. Ms. Bissa was not in a position to dispute the fact

that the petitioner was definitely afflicted with the fatal disqualification of facing a criminal trial and being charged of an offence punishable with

imprisonment of five years or above as on the date of submitting the nomination papers. It is also not in dispute that the petitioner concealed the fact

that he was facing a criminal trial as stated above and that charge had been framed by the trial court against him for the offence under Section 452

IPC amongst others which is punishable with imprisonment of 7 years.

In this background, the election of the petitioner was liable to be set aside on both the grounds, (i) that he was disqualified from contesting the election

by virtue of Section 19(gg) of the Rajasthan Panchayati Raj Act and, (ii) that he concealed the fact of the pending trial while filling up the nomination

papers. Had the true facts been revealed in the nomination papers, the petitioner would have been disqualified outright andwould not have beenallowed

to contest the election. The controversy at hand is squarely covered by the Full Bench decision in the case of Narayan Lal (supra). The impugned

judgment dated 22.05.2018 does not suffer from any infirmity, illegality or perversity or error apparent on the face of record whatsoever warranting

interference in exercise of the supervisory or extraordinary writ jurisdiction of this Court.

Hence, the writ petition as well as stay application are dismissed as being devoid of merit.

No order as to costs.