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2004 DIGILAW 787 (RAJ)

Hari Ram v. State of Rajasthan

2004-05-14

K.S.RATHORE

body2004
Judgment K.S. Rathore, J.-The fact of the case are that the respondent No. 6 was the elected Sarpanch of gram Panchayat Gegal, Panchayat Samiti Sri Nagar, District Ajmer in the election held in February 2000. 2. Thepetitioner made a complaint against the respondent No. 6 for the misconduct and concealment of fact that the had his 5th child after the scheduled date of 1995 and he acquired the disqualification to contest the election of Sarpanch. 3. On thebasis of complaint made by the petitioner, the enquiry was conducted under Section 38 of Rajasthan Panchayat Raj Rules, 1996. The SDO recorded the statements of witnesses produced by the parties and submitted its enquiry report to the Divisional Commissioner for further action. 4. TheDivisional Commissioner, Ajmer issued a notice dated 3 8.2001 along-with memorandum of charge sheet to the respondent No. 6. The respondent No. 6 challenged the notice dated 38.2002 by filing the writ petition, which was registered as SB Civil Writ Petition No. 3882/2002 which was later on withdrawn by him on 31.2003. 5. Learned Counsel appearing on behalf of the petitioner submits that in the enquiry, the respondent No. 6 was found guilty of misconduct and vide order dated 30.10.2003, the respondent No. 6 was removed from the office of Sarpanch and the post of Sarpanch was declared vacant and the charge was handed over to Shri Chotu Lal Gujar, Up-Sarpanch on 11.2003. 6. Therespondent No. 6 challenged the order dated 30.10.2003 in SB Civil Writ Petition No. 6705/2003. In the aforesaid writ petition, the petitioner moved an application for impleadiment as party respondents and the same was allowed. The aforesaid writ petition is pending before this court of adjudication. 7. The petitioner further submits that since the respondent No. 6 was not able to get the relief from this Court, he approached to the Government. The Government vide its order dated 28.1.2004 rejected its earlier order dated 30.10.2003. Against the order dated 28.1.2004, the instant writ petition has filed by the petitioner on the ground that the State Government has not properly appreciated the order dated 30.10.2003 which was passed on the basis of the finding given by the SDO. The Government vide its order dated 28.1.2004 rejected its earlier order dated 30.10.2003. Against the order dated 28.1.2004, the instant writ petition has filed by the petitioner on the ground that the State Government has not properly appreciated the order dated 30.10.2003 which was passed on the basis of the finding given by the SDO. On the question whether the petitioner has locus standi or not to file the writ petition, learned counsel for the petitioner referred a judgment in case of Rajendra Kumar vs. State of M.P. & Ors., AIR 57 MP 62, wherein MP High Court has held that for issue of a writ of co-warranto no special kind of interest in the relator is needed nor is it necessary that any of his specific legal right be infringed. It is enough for its issue that the relator is a member of the public and acts bona fide and is not a mere pawn in the game having been set up by others. Relying upon the aforesaid judgment, learned counsel submits that the petitioner being a resident of Gram panchayat Gegal and complainant, he has a right to file this writ petition. 8. Per contra, learned Additional Advocate General Mr. Bharat Vyas submits that it is a third round of litigation. Earlier one Shri Laxman Gurjar has filed SB Civil Writ Petition No. 5406/2000 challenging the election of respondent No. 6. This Court after hearing the submissions made on behalf of the petitioner dismissed the writ petition as not maintainable since it has been filed without exhausting the alternative remedy already provided under the Rajasthan Panchayat Raj Act, 1994. Thereafter, in another writ petition filed by the petitioner which was registered as SB Civil Writ Petition No. 835/2001 raising the similar questions which are raised here in the instant writ petition. At the time of argument, the petitioner submitted that he wants to withdraw the writ petition with liberty to file fresh to challenge the validity of Section 43 of the Act of 1994, In view of the submissions made by the petitioner, the writ petition was allowed to withdraw subject to challenge the validity of Section 43. 9. Mr. At the time of argument, the petitioner submitted that he wants to withdraw the writ petition with liberty to file fresh to challenge the validity of Section 43 of the Act of 1994, In view of the submissions made by the petitioner, the writ petition was allowed to withdraw subject to challenge the validity of Section 43. 9. Mr. Bharat Vyas further submits that this writ petition is filed by the petitioner without challenging the validity of Section 43, The petitioner job was over immediately after filing of the complaint as on the compliant, enquiry was conducted and the order was passed. The Government is competent to review its order and while exercising the power of review, the order dated 30.10.2003 was reviewed vide order dated 28.1.2004 having considered the documents and appreciating the material on the record and it was observed that the order dated 30.10.2003 was passed against the factual aspect of the matter and record of the case. 10. Mr. Bharat Vyas further submits that the petitioner has no locus standl to file this writ petition as the petitioner has already agitated the same issue before this court and earlier writ petition was withdrawn by the petitioner with liberty to challenge the validity of Section 43, but he has not challenged the validity of Section 43, in the instant writ petition, therefore, he is estopped to file this writ petition and principle of promissory estoppel is applicable to the instant case. 11. Learned counsel for the respondent No. 6, Mr. S.N. Kumawat has submitted that since the elections were conducted in the year 2000 and the petitioner due to personal vengeance is filing the writ petition just writ petition just to harass the respondent No. 6 for which the petitioner has no locus standi. In support of his submissions, learned counsel for the respondent No. 6 placed reliance on the judgment reported in 2001(4) SCC 734 (2), wherein the Hon’ble Supreme Court has held as under: “Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests having been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the persons invoking the jurisdiction. The exception to the general rule is only in case where the writ applied for is a writ of habeas corpus or quo warranto or file in public interest. It is a matter of prudence that the court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries are caused to a particular person or his fundamental right are violated, and not to entertain cases of individual wrong or injury at the instance of a third party where there is an effective legal aid organisation which can take care of such case. Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief” 12. Heard submissions made on behalf of the respective parties and perused the material available on record as well as judgments referred before me. 13. It is not disputed that it is third round of litigation challenging the election of respondent No. 6. It is also not disputed that the petitioner had earlier filed the writ petition No. 835/2001 challenging the election of respondent No. 6 which was withdrawn by him with liberty to challenge the validity of Section 43 of the Rajasthan Panchayat Raj Act, 1994. Upon perusal of the contents of the writ petition it reveals that in the instant writ petition, the petitioner has not challenged the validity of Section 43 of the Rajasthan Panchayat Raj Act, 1994, for which the liberty was given by this Court not to reagitate the same issue. In view of this, the petitioner is estopped to file the writ petition on the same issue. 14. In view of this, the petitioner is estopped to file the writ petition on the same issue. 14. So far as validity of order dated 28.1.2004 is concerned, it is not doubt that the Government has power to review its order and which reviewing the earlier order dated 30.10.2003, the State Government has observed that the documents which were filed before the Divisional Commissioner in the enquiry were not properly appreciated and considering the documents and re-appreciating the material available on record, the Slate Government set aside the order dated 30.10.2003 vide order dated 28.1.2004. 15. Considering this fact that number of petitioners and civil suits are filed by the parties before this Court and trial court clearly indicates that this issue cannot be said to be in public interest at large for which this Court is required to issue writ of co-warranto. Hon’ble Supreme Court many times has observed that writ of co-warrnto should not be generally issued and it is the discretion of the Court to do so. In my considered opinion, this not a such case where writ of co-warranto is required to be issued. 16. In view of the observations made hereinabove, I do not find any substance in the writ petition. The writ petition being devoid of merit deserves to be dismissed and the same is hereby dismissed with no order as to costs.