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2019 DIGILAW 95 (RAJ)

Prakash Devi v. Vishnu

2019-01-08

ASHOK KUMAR GAUR

body2019
JUDGMENT 1. Mr. Rajesh Joshi, learned senior counsel appearing for the petitioner while assailing the impugned order dated 17.12.2018 has submitted that election of the petitioner as Sarpanch of Gram Panchayat Taswariya, Panchayat Samiti Hurda, District Bhilwara has illegally been set aside. Learned senior counsel submitted that petitioner had contested election for the post of Sarpanch and at the time of scrutiny of nomination paper i.e. on 23.01.2015, her name was included in the voter list of Gram Panchayat Taswariya and as such she was fully qualified to contest the election, as per the requirement of Section 19 of the Rajasthan Panchayati Raj Act, 1994. 2. Learned senior counsel submitted that the impugned order has been passed on the ground that the petitioners name was wrongly inserted in the voter list of Gram Panchayat Taswariya. Learned senior counsel submitted that against inclusion of name of the petitioner, an appeal was filed under Rule 21 of the Rajasthan Panchayati Raj. (Election) Rules, 1994 before the District Collector, Bhilwara and as per Rule 21(4) of the Rules of 1994 the decision of the Collector reversing the decision of Electoral Registration Officer was passed in the year 2016 and as per the sub Rule (4) of Rule 21, the said decision was to take effect only from the date of decision of the appeal. Learned senior counsel submitted that the Apex Court in the case of Indrajit Barua & Ors. v. Election Commission of India & Ors. reported in AIR 1986 SC 103 has laid down the law that preparation of Electoral Rolls is a continues process and is not a process of election. Learned senior counsel submitted that the remedy against inclusion of the name of a voter in any voter list or deletion of a voter from a voter list can be the subject matter of challenge before the appropriate forum but the same cannot be a ground to treat a person disqualified for the purpose of contesting election. Learned senior counsel has further placed reliance on the judgment of this Court reported in WLC Raj. Learned senior counsel has further placed reliance on the judgment of this Court reported in WLC Raj. 2011 (UC) 107 in the case of Sampat Singh v. Election Commission Rajasthan through Commissioner wherein this Court following the decision of the Apex Court in the case of Indrajit Barua (supra) has held that the orders passed in respect of deletion or inclusion of name by Electoral Registration Officer can be the subject matter of challenge before the competent authority and the same cannot result into disqualification of a candidate to contest the election. 3. Learned senior counsel submitted that in the impugned order the Court below has not considered the legal position and further did not consider the factum of filing of the appeal by the respondents challenging the inclusion of the name of the petitioner in the electoral roll and as such the findings recorded are perverse and contrary to record. 4. Mr. Manish Patel, learned counsel appearing for the respondent No. 1 as caveator, submitted that the petitioner is guilty of concealment of fact as complete details have not been given in the memo of the writ petition and further all the documents which were part of record have not been filed along with the writ petition filed before this Court under Article 226 of the Constitution of India. Learned counsel on interim relief submitted that the petitioner has committed fraud and she has contested the election by using the ID number of another person. Learned counsel further submitted that the petitioner had not filled form Nos. I and II i.e. applications for inclusion and exclusion of the name of a person from the electoral roll and she has filled Form No. III and as such the District Collector after enquiry has passed an order where petitioners name was not treated as rightly included in the voter list. Learned counsel submitted that the petitioner does not deserve any indulgence by way of interim relief and as such prayer is made not to grant any interim order. 5. I have heard both the learned counsel. 6. The perusal of the impugned order shows that the Court below while passing the impugned order dated 17.12.2018 has not taken into account the entire facts and, in particular, the order passed under Rule 21 of the Rules 1994. 7. 5. I have heard both the learned counsel. 6. The perusal of the impugned order shows that the Court below while passing the impugned order dated 17.12.2018 has not taken into account the entire facts and, in particular, the order passed under Rule 21 of the Rules 1994. 7. This Court without expressing any opinion on the merits of the case, meanwhile, deems it proper to stay the effect and operation of order dated 17.12.2018 (Annexure-6 of the writ petition). 8. Counsel for the respondent may file reply to the writ petition within a period of four weeks and notice may be issued to other respondents, returnable within a period of four weeks and record of the case from Senior Civil Judge, Bhilwara in case No. 02/2016(76/2015) be requisitioned.