JUDGMENT Sandeep Mehta, J. - This writ petition No.4104/2016 under Article 226 has been laid before this Court at the behest of the petitioner Dinesh Kumar seeking a writ of quo-warranto with a prayer for setting aside the election of the respondent Dharma Ram as a Sarpanch, Gram Panchayat Kurdaya, Panchayat Samiti Merta, District Nagaur on the ground that he was disqualified to be the Sarpanch of Gram Panchayat in view of provision contained in Section 19(gg) of the Rajasthan Panchayati Raj Act. 2. Writ Petition No.14447/2015 has been preferred on behalf of the returned candidate Dharma Ram seeking to assail the notice (Annexure-1) dated 01.12.2015 issued to him by the Divisional Commissioner, Ajmer requiring him to show cause to the statement of allegation alleging breach of provisions of the Panchayati Raj Act, 1994. 3. Facts in nutshell are noted herein below for the sake of ready reference: 4. The respondent No.5 Shri Dharma Ram contested election for the post of Sarpanch, Gram Panchayat Kurdaya and submitted his nomination papers on 31.01.2015. The petitioner, who is a resident of the said gram panchayat, claims in reference to Section 19(gg) of the Rajasthan Panchayat Raj Act that while submitting the nomination form, the respondent No.5 made intentional fraudulent concealment of material facts enumerated herein below: ^^esjs fo:} fuEufyf[kr ekeyk ¼ekeys yfEcr gS@gS ftlesa@ftuesa U;k;ky; }kjk laKku fy;k x;k gS & eqŒ uaŒ 567@12 /kkjk 143] 336] 427] 325] 149 nks"keqDr %& ¼1½ vf/kfu;e dh /kkjk vkSj vijk/k dk fooj.k ftlds fy, laKku fy;k x;kA ¼2½ og U;k;ky; ftlesa laKku fy;k & ,ŒlhŒtsŒ,eŒ esMrk flVhA ¼3½ okn la[;k eqŒ uaŒ 567@12A ¼4½ laKku ysus okys U;k;ky; ds vkns'k dh rkjh[k 29-06-2012 fopkj/khuA** 5. In the declaration form annexed with the nomination form, the respondent No.5 made the following declarations which are germane for deciding the controversy: ^^¼1½ dsl@ÁFke lwpuk fjiksVZ la[;k@la[;k,a eqŒ uaŒ 184@9-9-1996 /kkjk 147] 148] 149] 349] 323 vkbZŒihŒlhŒ nks"keqDr gSA eqŒ uaŒ 172@29-6-2012 /kkjk 143] 336] 427] 323@149 fopkjk/khu ljdkj@NksVwjke ,ŒlhŒtsŒ,eŒ esMrkA ¼2½ iqfyl Fkkuk esM+rk ftyk ukxkSj jkT;] jktLFkkuA ¼3½ lacaf/kr vf/kfu;e ¼vf/kfu;eksa½ dh /kkjk ¼/kkjk,sa½ vkSj vijk/k ¼vijk/kksa½ dk laf{kIr fooj.k ftuds fy, vH;FkhZ vkjksfir gS & fopkjk/khuA ¼4½ U;k;ky; ¼U;k;ky;ksa½ ftlus vkjksi ¼vkjksiksa½ dks fojfpr fd;k gS eqŒ uaŒ 184@9-9-1996 /kkjk 147] 148] 149] 349] 323 vkbZŒihŒlhŒ nks"keqDrA ¼5½ rkjh[k ¼rkjh[ksa½ ftudks vkjksi ¼vkjksiksa½ dk fojpu fd;k x;k 29-6-2012 gSA** 6. The petitioner has pleaded at para No.5 of the writ petition that the competent court had framed charge against Dharma Ram on 22.01.2013 for various offences including the offence under Sections 325 IPC in connection with the FIR No.172/2012 and that while making the aforesaid declaration, Shri Dharma Ram intentionally omitted to mention this fact at point No.iv regarding the charge having been framed against him in the aforesaid case. The petitioner has further pleaded that the trial court framed charge against Dharma Ram in the above case on 22.01.2013 and had this fact been revealed in the declaration form referred to supra, Dharma Ram would have been disqualified from contesting the election. Attributing the said disqualification to Shri Dharma Ram, the petitioner has prayed for issuance of a writ of quowarranto to set aside the election of Dharma Ram on the post of Sarpanch, Gram Panchayat Kurdaya, Panchayat Samiti Merta, District Nagaur. 7. The respondent No.5 Dharma Ram has filed a reply to the writ petition and at para No.2, it is claimed that he duly divulged complete information regarding pendency of criminal case against him in the nomination form. It is also pleaded that the defeated candidate Ajeet Singh has filed an election petition under Section 43 of the Rajasthan Panchayati Raj Act and in such election petition, one of the grounds is that of concealment of the pendency of the same criminal case on which the petitioner has based his ground of seeking relief. The respondent has contested the instant writ petition on the ground that the issue which is already sub-judice in an election petition cannot be examined by this Court in a writ of quo-warranto. 8. Shri G.R. Punia, learned Senior Counsel assisted by Shri Man Prakash representing the petitioner relies upon this Court's Judgment in the case of Dharm Singh vs. State of Rajasthan & Ors. reported in 2008 (1) DNJ (Raj.) 262 and Full Bench Judgment in the case of Smt. Sameera Bano vs. State of Rajasthan & Ors. 8. Shri G.R. Punia, learned Senior Counsel assisted by Shri Man Prakash representing the petitioner relies upon this Court's Judgment in the case of Dharm Singh vs. State of Rajasthan & Ors. reported in 2008 (1) DNJ (Raj.) 262 and Full Bench Judgment in the case of Smt. Sameera Bano vs. State of Rajasthan & Ors. reported in 2007 (2) WLC (Raj.) 526 wherein, it has been held that pre-election disqualification, as provided in Section 19(gg) of the Panchayati Raj Act, can be examined by the competent authority under Section 39(2) of the Act of 1994 and as regards the election dispute, a candidate at such election can always question the winning candidate's election on the basis of a pre-election disqualification by filing election petition as provided under Section 43 of the Rajasthan Panchayati Raj Act read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. he urges that on the same allegations, a citizen of the Panchayat can file a writ petition to question such election. On the strength of these submissions, Shri Punia craved acceptance of the writ petition and implored the Court to issue a writ of quo-warranto with a direction for cessation of the candidature of respondent No.5 as Sarpanch of the Gram Panchayat Kurdaya. 9. Per contra, Shri Hemant Choudhary, learned counsel representing the respondent No.5 and Shri O.P. Boob, Govt. Counsel and Shri Manish Patel, learned AGC opposed the submissions advanced by Shri Punia and urged that since, the defeated candidate has already challenged the election of the respondent No.5 on the very same grounds, the same issues cannot be examined by this Court in a writ of quo-warranto. They vehemently contended that the petitioner is, as a matter of fact, acting at the behest of the defeated candidate who had filed the election petition and this Court should dismiss the writ petition as being misconceived and filed with a malafide objective. 10. I have given my thoughtful consideration to the arguments advanced at Bar and have gone through the material available on record. 11. 10. I have given my thoughtful consideration to the arguments advanced at Bar and have gone through the material available on record. 11. It is an admitted position emerging from record that the respondent Shri Dharma Ram was suffering from the fatal preelection disqualification in terms to Section 19(gg) of the Rajasthan Panchayati Raj Act inasmuch as, the competent court had framed charges against him for an offence punishable with imprisonment of 7 years i.e. offence under Section 325 read with Section 149 IPC. Furthermore, admittedly, Shri Dharma Ram, while submitting his nomination paper supported by the declaration referred to supra, concealed this material fact regarding the charge having been framed against him. Had he made the correct declaration in this behalf, the Returning Officer would have outrightly rejected his nomination form because he was suffering from the mandatory disqualification as provided in Section 19(gg) of the Act of 1994. 12. Admittedly, the petitioner is not the defeated candidate and as such, he cannot challenge the election of Dharma Ram by filing an election petition. Hon'ble the Supreme Court, in a landmark judgment rendered in the case of Bharati Reddy vs. The State of Karnataka & Ors. (Civil Appeal No.1763 of 2018), decided on 06.03.2018, considered in detail, the issue regarding maintainability of a writ of quo-warranto in almost identical circumstances. The Hon'ble Supreme Court took note of the first round of litigation in which, the judgment rendered by the High Court holding that the voter of the panchayat cannot file an election petition was reversed holding that a voter cannot be rendered remediless and if he is aggrieved by the election of Adhyaksha of the Panchayat, it is open for him to seek the remedy of judicial review under Articles 226/227 of the Constitution of the India. At para No.15 of the said Judgment, Hon'ble the Supreme Court observed as below: "15. As noticed above, though respondent Nos. 6 to 9 are the voters are not the members of the Zilla Panchayat. They are aggrieved by the election of the appellant to the office of the Adhyaksha. They cannot challenge the election of the appellant to the office of Adhyaksha by filing an election petition as they are not the members of the Zilla Panchayat in question. 6 to 9 are the voters are not the members of the Zilla Panchayat. They are aggrieved by the election of the appellant to the office of the Adhyaksha. They cannot challenge the election of the appellant to the office of Adhyaksha by filing an election petition as they are not the members of the Zilla Panchayat in question. In our view, a voter of the Zilla Panchayat who is not a member cannot be denied an opportunity to challenge the election to the office of Adhyaksha under Articles 226/227 of the Constitution. Therefore, we hold that the writ petition filed by respondent Nos. 6 to 9 before the High Court is maintainable." 13. The matter was remanded to the High Court which proceeded to consider the challenge given by the voter to the election of the Adhyaksha of the Panchayat on the ground of a pre-election disqualification. The Single Bench accepted the writ petition and set aside the election of the respondent. The returned candidate, challenged the said judgment before the High Court by filing an appeal. The appeal was decided by the Division Bench which affirmed the judgment of the Single Bench. The matter was then carried to the Hon'ble Supreme Court by the Returned candidate and while considering quo-warranto writ jurisdiction of the High Court, the Hon'ble Supreme Court proceeded to hold thus: "This, however, will make no difference to the conclusion which we must reach in this case that the High Court could not have issued a writ of quo warranto until the Income and Caste Certificate issued in favour of the appellant, on the basis of which she participated in the election for the post of Adhyaksha and got elected, was to be declared void or invalidated by the Caste Scrutiny Committee. We do not wish to dilate on other incidental aspects/arguments as the same will not have any bearing on the conclusion noted above." 14. We do not wish to dilate on other incidental aspects/arguments as the same will not have any bearing on the conclusion noted above." 14. Since in the case at hand, this Court has reached to an affirmative conclusion from the admitted factual position emerging from the record that the incumbent Returned Candidate (respondent No.5) suffered from the mandatory and fatal preelection disqualification in terms to Section 19(gg) of the Panchayati Raj Act, the ratio of the Constitution Bench Judgment rendered by the Supreme Court in the case of B.R. Kapur vs. State of Tamil Nadu & Anr, reported in (2001) 7 SCC 231 applies to the present case on all fours. In the said judgment, Hon'ble the Supreme Court held as below: ""79.......A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. So as to have an idea about the nature of action in the proceedings for writ of quo warranto and its original form, as it used to be, it would be beneficial to quote from Words and Phrases, Permanent Edn., Vol. 35-A, p. 648. It reads as follows: "The original common law writ of quo warranto was a civil writ at the suit of the Crown, and not a criminal prosecution. It was in the nature of a writ of right by the King against one who usurped or claimed franchises or liabilities, to inquire by what right he claimed them. This writ, however, fell into disuse in England centuries ago, and its place was supplied by an information in the nature of a quo warranto, which in its origin was a criminal method of prosecution, as well as to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the Crown. Long before our revolution, however, it lost its character as a criminal proceeding in everything except form, and was applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only; and such, without any special legislation to that effect, has always been its character in many of the States of the Union, and it is therefore a civil remedy only." 80. In the same volume of Words and Phrases, Permanent Edn., at p. 647 we find as follows: "The writ of 'quo warranto' is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. State ex inf. McKittrick vs. Murphy. Information in the nature of 'quo warranto' does not command performance of official functions by any officer to whom it may run, since it is not directed to officer as such, but to person holding office or exercising franchise, and not for purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise functions claimed. State ex inf. Walsh vs. Thatcher." (Emphasis supplied) 81. In Halsbury's Laws of England, 4th Edn., Reissue Vol. I, p. 368, para 265 it is found as follows: "265. In general.-An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." 15. In view of these facts, this Court is of the firm opinion that it is a fit case wherein, extraordinary writ jurisdiction conferred upon this Court by Article 226 of the Constitution of India is required to be exercised so as to declare election of the respondent No.5 as the Sarpanch, Gram Panchayat Kurdaya invalid because he was afflicted by the preelection disqualification of having been charged by the competent court for an offence punishable with imprisonment of more than 5 years. Moreover, the respondent intentionally concealed this fact while filing the nomination papers form and thus also, he cannot be allowed to hold the post. 16. The writ petition thus deserves to be and is hereby allowed. 17. Hence, the writ petition No.4104/2016 filed by the petitioner Dinesh Kumar seeking issuance of writ of quo-warranto is accepted and the election of the respondent No.5 Shri Dharma Ram as Sarpanch, Gram Panchayat, Kurdaya is hereby set aside. 18. As a consequence, the writ petition No.14447/2015 preferred by Shri Dharma Ram has become infructuous and is dismissed as such.