JUDGMENT 1. The instant special appeal is directed against the order of the learned 1 Single Judge dated 7 4.2000. 2. Briefly stated the facts of the case are that the 4th respondent Barda filed a writ petition under Article 226 of the Constitution of India, raising the grievance that as per the notification issued by the District Election Officer, the post of the Sarpanch of village Jagpura, Tehsil Ashind, District Bhilwara was reserved for Scheduled Castes candidates, however, the elections on the said post had been conducted as if it were reserved for general women and the., respondent No. 4 namely Smt. Prittam Rana (appellant) has been elected. 3. The learned Single Judge without notice to the other party disposed of -he writ petition by order dated 7.4.2000 giving the direction as follows:- "Thus, the petition is disposed of finally with a direction that if the petitioner filed a proper representation annexing the copy of the letter dated 29.2.2000 (Annexure- 3) issued by the District Election Officer and the copy of Annexure- 1 showing that the seat was reserved for Scheduled Castes candidates within a period of two weeks from today, the respondent No. 2 is requested to consider the case strictly in accordance with law and pass appropriate order within a period of 6 weeks thereafter. If necessary after hearing the respondent No. 4." 4. The say of the appellant is that she was not aware of the said order of the High Court. First time a notice under Section 39 of the Rajasthan Panchayat Raj Act, 1994 (hereinafter referred as the "Act of 1994") from the Divisional .Commissioner, Ajmer, was served on 17.6.2000. From the said notice she came to know that the Divisional Commissioner has initiated the proceedings in compliance of the order of the High Court dated 7.4.2000. It appears that the appellant was elected Sarpanch of 10 Gram Panchayat, Jagpura, reserved for women candidate of general category on 31st January, 2000. The Rajasthan Panchayat Raj Act, 1994 came to be amended by Rajasthan Panchayati Raj (Amendment) Act, 2000 adding Clause (n), (o) and (p) after Clause (m) in Section 19, providing disqualification on a seat reserved for Scheduled Caste by a is member of any other caste or tribe. The said amendment has been made effective from 27.12.1999. Thus. the newly added provision under Section 19 has been made applicable with retrospective effect. The said amendment has been made effective from 27.12.1999. Thus. the newly added provision under Section 19 has been made applicable with retrospective effect. This provision came up tar consideration before the Division Bench of this Court in Bheru Singh Rathore v. State of Rajasthan & Ors., reported in 2003 (3) Western Law Cases (Raj.) 481 , it is held therein that Section 39 (2) of the Act of 1994 covers a case where a member of the Panchayat acquires disqualification after his election. Where a member was disqualified ab initio i.e. to say he was disqualified before the election. The action under Section 39(2) of the Act of 1994 cannot be taken against him. The Cowl held as follows:- "s. 39(2) of the Act of 1994 covers a case where a member of a panchayat acquired disqualification after his election. Where a member was disqualified ab initio i.e. to say he was disqualified before the election, action under section 39(2) of the Act of 1994 cannot be taken against him. He can not be declared to have become ineligible & no direction can be given to him to vacate his office as a member or sarpanch of the panchayat. Since in the instant case, the petitioner's disqualification is deemed to have arisen before the election, inasmuch as he was elected against a seat which was allegedly reserved for a Scheduled Caste candidate he cannot be declared disqualified under Section 39(2) of the Act." 5. In view of the aforesaid, the Divisional Commissioner is not competent to initiate proceedings against the appellant under Section 39(2) of the Act of 1994. Unfortunately, the learned Single Judge has given the direction without notice to the appellant and the other respondents. 6. In view of the aforesaid discussion, the special appeal is allowed. The order of the learned Single Judge dated 7.4.2000 passed in S.B. Civil Writ Petition No. 973/2000 (Barda v. State of Rajasthan & Ors.) is set aside. as The notice issued by the Divisional Commissioner to the appellant on 17.6.2000 is quashed and set aside.Petition Allowed - Order of Commissioner u/s 39(2) Quashed, Order of Single Judge Set Aside as Passed Without Notice.. *******