JUDGMENT 1. - Petitioner having contested the election for the post of Sarpanch, Gram Panchayat, Kharkada, Panchayat Samiti, Jamwa Ramgarh, District Jaipur, was declared elected to the above post in the elections held in the January, 2000. Subsequently, on some complaint been received, the petitioner was served with a charge sheet dated 7-11-2000, calling upon the petitioner to submit her explanation within fifteen days. The charge-sheet dated 7-11-2000 is under challenge in the present writ petition. 2. The impugned charge-sheet has been assailed mainly on the ground that one having declared elected to the office of Sarpanch, no action can be taken against the petitioner declaring her disqualified for the post on the administrative side and it is only by way of an election petition that the petitioner can be removed from the office after a verdict been given by a competent Court. In the present case, the disquali fiction alleged in the charge-sheet, was already there at the time of filing of the nomination paper and as per contention of learned counsel for the petitioner, once the nomination papers having been accepted by the Returning Officer and the petitioner having been declared elected to the office of Sarpanch, it is only by way of Election Petition that the petitioner can be held disqualified to hold the post. 3. In the charge-sheet dated 7-11-2001, following charges have been levelled against the petitioner : HINDI MATTER 3620203 4. Section 38 of the Rajasthan Panchayatl Raj Act, 1994 provides for removal and suspension of any member including a Chairperson or a Deputy Chairperson of a Panchayat Raj Institution. Section 38 is reproduced here as under: "38. 3. In the charge-sheet dated 7-11-2001, following charges have been levelled against the petitioner : HINDI MATTER 3620203 4. Section 38 of the Rajasthan Panchayatl Raj Act, 1994 provides for removal and suspension of any member including a Chairperson or a Deputy Chairperson of a Panchayat Raj Institution. Section 38 is reproduced here as under: "38. Removal and suspension - (1) The State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a chairperson or a Deputy Chairperson of a Panchayati Raj Institution, who (a) refuses to act or becomes incapable of acting as such; or (b) is guilty of misconduct in the discharge of duties or any disgraceful conduct; Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, it already initiated before such expiry, be continued thereafter and in any such case, the State Government shall, by order in writing, record its findings on the charges levelled. (2) The chairperson or the deputy chairperson removed under sub-section (1) may at the discretion of the State Government also be removed from the membership, if any of the Panchayati Raj Institution concerned. (3) The member or the chairperson or the deputy chairperson removed under sub-Section (1) or against whom findings have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under this Act for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded. (4) The State Government may suspend any member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under sub-Section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension. (5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Section 97, be final and shall not be liable to be questioned in any Court of law." 5. (5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Section 97, be final and shall not be liable to be questioned in any Court of law." 5. Section 39 of the Rajasthan Panchayati Raj Act, 1994 is in regard to cessation of membership. The same is reproduced here as under:- "39. Cessation of membership.- (1) Subject to the provisions of Section 40, a member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he:- (a) is or becomes subject to any of the disqualifications specified in Section 19, or (b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution, or (c) is removed from the membership, or (d) resigns from the membership, or (e) dies, or (f) fails to make the prescribed oath or affirmation of the office of membership within three months from the date of election or appointment. (2) Whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub - Sec. (1), the competent authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member; Section 40 of the Rajasthan Panchayati Raj Act, 1994 provides as under : "40. Judge to decide questions of disqualifications.- (1) Whenever, it is alleged that any member of a Panchayat Raj Institution is or has become disqualified and such member does not admit the allegation or has whenever any member is himself in doubt whether or not he is or has become disqualified for being a member, such member or the competent authority or any member of the Panchayati Raj Institution concerned may apply to the District Judge having jurisdiction for a decision on the allegation or doubt. (2) The application made under sub-Section (1) may, for the reasons to be recorded in writing be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. (2) The application made under sub-Section (1) may, for the reasons to be recorded in writing be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. (3) The Judge after making such enquiry as he considers necessary shall determine whether or not such member is or has become disqualified and his decision shall be final. (4) Pending a decision, the member shall be entitled to act as if he were not disqualified." 6. The procedure for enquiry has been provided in Rule 22 of the Rajasthan Panchayati Raj Rules of 1996, Rule 22 of the above Rules is reproduced here as under : "22. Procedure of enquiry.- (1) Before taking any action under sub-Section (1) of Section 38, where on its own motion or upon any complaint, the State Government may ask the Chief Executive Officer or any other officer to get a preliminary enquiry done and to send his report to the State Government within one month. (2) If, upon consideration of the report received as aforesaid or otherwise, the State Government is of the opinion that action under sub-Section (1) of Section 38 is necessary, the State Government shall frame definite charges and shall communicate them in writing to the Chairperson. Deputy Chairperson or member of the Panchayati Raj Institution together with such details as may be deemed necessary. He shall be required to submit a written statement within one month admitting or denying the allegations, giving his defence, if any and whether he desires to be heard in person. (3) State Government may after expiry of Prescribed Period and Considering such written statement, appoint an Enquiry Officer and also nominate any person to present the case before enquiry on behalf of the State. (4) Enquiry Officer shall consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. Opportunity of cross-examination of witness shall be provided to the opposite side. (5) Enquiry Officer shall prepare a report on conclusion of enquiry, recording his findings on every charge as proved or not proved or partly proved along with the reasons therefor, and submit it to the State Government for final decision. Opportunity of cross-examination of witness shall be provided to the opposite side. (5) Enquiry Officer shall prepare a report on conclusion of enquiry, recording his findings on every charge as proved or not proved or partly proved along with the reasons therefor, and submit it to the State Government for final decision. (6) The provisions of the Rajasthan Disciplinary Proceedings (Summoning of Witnesses and Production of Documents) Act, 1959 (Rajasthan Act No. 28 of 1959) and the rules made thereunder shall also apply mutatis mutandis to enquiries being conducted against the Panchayati Raj Institution as the case may be, under these rules. (7) State Government shall consider the findings of enquiring officer and after giving him opportunity of hearing, may either exonerate, or remove such Chairperson, Deputy Chairperson or Member from the Office or pass appropriate orders. In case of removal, it shall also be published in Official Gazette. Provided that findings shall be recorded against them if term of election of such Panchayati Raj Institution has already expired.' 7. So far as election disputes are concerned, an election under the Act can be challenged by way of an Election Petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, Rule 80 of the above Rule is reproduced here as under : "80. So far as election disputes are concerned, an election under the Act can be challenged by way of an Election Petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, Rule 80 of the above Rule is reproduced here as under : "80. Manner of challenging an election under the Act - An election under the Act or under the Rule may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared, on any one or more of the following grounds : (a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election, or (b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate, or (c) that any nomination was improperly rejected, or (d) that the result of the election in so far as it concern the returned candidate was materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the candidate by a person other than candidate or by a person acting with the consent or connivance of such candidate, or (iii) by improper reception, refusal or rejection of any vote or the reception of any Vote which was void, or (iv) by any non-compliance with the provisions of the Act or of these Rules, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for votes obtained by the returned candidate by corrupt practise, the petitioner or some other candidate would have obtained a majority of the valid votes." 8. It has further been provided under the above Rules of 1994 that a petition under Rule 80 may be presented by any candidate at such an election. 9. Admittedly, no Election Petition has been filed against the petitioner by any of the contesting candidates. A bare reading of the provisions of the Panchayat Raj Laws in the State shows that the provisions in regard to the Election Petition are altogether different and independent of the powers of the State Government taking action against an elected member under Section 38 of the Act of 1994. 10. A bare reading of the provisions of the Panchayat Raj Laws in the State shows that the provisions in regard to the Election Petition are altogether different and independent of the powers of the State Government taking action against an elected member under Section 38 of the Act of 1994. 10. The constitutional validity of Section 19(L), which provides for disqualification of having more than two children, has already been upheld by the Division Bench of this Court in the case of Mukesh Kumar Ajmera v. State of Rajasthan 1997 (2) WLC (Raj) 672 . 11. This Court, under almost similar circumstances, in S.B. Civil Writ Petition No. 4342/2000, Bahadur Nath v. State of Rajasthan decided on 22nd February, 2001 : AIR 2001 Rajasthan 251) , while relying upon the earlier judgment of this Court in S.B. Civil Writ Petition No. 1544/ 2000, Rakesh Ghatiwal v. State of Rajasthan, W.P. No.1544 of 2000, decided on 26-6-2000 , which was affirmed by the Division Bench, held that the person, who succeeded in election by mis-representation, cannot be permitted to raise the issue that an enquiry on the administrative side is not permissible and he can be removed from the office only by way of Election Petition. In the enquiry the petitioner would have every right to lead evidence and prove his case, but such an enquiry does not warrant an interference by the Court. 12. Even otherwise, in a given case there may not be any other contesting candidate in the election and if there is any, he or she may not choose to file an Election Petition. In such circumstances, if anything is brought to the notice of the State Government, proper action under the Rules can always be taken against the person holding the post. 13. The Court further observed that where an applicant gets an order/office by making misrepresentation or playing fraud, such order cannot be sustained in the eyes of law. If a person not eligible to stand contested the election and for that purpose filed the nomination paper being disqualified under the provisions of the Act and the Rules and if he succeeds in the election by suppressing material fact, he cannot claim any right arisen out of his own wrong. If a person not eligible to stand contested the election and for that purpose filed the nomination paper being disqualified under the provisions of the Act and the Rules and if he succeeds in the election by suppressing material fact, he cannot claim any right arisen out of his own wrong. It has also been observed that in case the petitioner was not eligible to contest the election, he cannot be permitted to hold the office for the reason that his entering in the office was in flagrant violation of the statutory requirement which cannot be cured by any means. 14. In the present case, as has come on record, after holding a preliminary enquiry a regular charge sheet has been issued to the petitioner. The petitioner has yet to submit her reply to the charge sheet before the competent authority. As has already been referred above, the competent authority Is required to give proper opportunity of hearing in the enquiry to be held against the petitioner and only after that, necessary orders can be passed. 15. After having considered the entire facts and circumstances of the present case, looking to the nature of charges levelled against the petitioner, in my opinion, no interference is called for by this Court in the present writ petition at this stage. 16. However, in the interest of justice, since the petitioner is holding a public office, I deem it proper to direct the respondents to complete the enquiry in the present case against the petitioner and pass necessary orders within four months from the date of receipt of certified copy of this order. It is also expected from the petitioner to co-operate with the authorities in concluding the enquiry. The time of submitting explanation to the charge sheet before the competent authorities by the petitioner is further extended to 15 days from the date of this order. 17. The writ petition stands disposed of accordingly.Order accordingly. *******