JUDGMENT : Dinesh Mehta, J. 1. Petitioner, an elected member of ward No. 24 of Jodhpur Municipal Corporation, has invoked the writ jurisdiction of this Court assailing the order dated 08.12.2021, whereby the Director cum Special Secretary, Directorate, Local Self Government - respondent No. 1 has sought petitioner's explanation in terms of Section 39(3) of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as the 'Act of 2009') as to why judicial enquiry not be conducted against him. 2. Simultaneously with issuance of show cause notice aforesaid, the petitioner has also been placed under suspension. 3. Mr. Kotwani, learned counsel for the petitioner, has challenged the impugned order on two premises: (i) the disqualification alleged against the petitioner (he has more than two children) relates to pre-election disqualification and thus, no proceedings against him can be initiated. (ii) Preliminary enquiry which was got conducted by the respondent and which has been the basis of issuance of the impugned order dated 08.12.2021 has been conducted by an incompetent authority and hence, the order is illegal. 4. In support of his first contention, it was informed by learned counsel for the petitioner that the very same candidate has already filed an election petition which is pending before the competent Court on the allegation that petitioner was disqualified for having three children. 5. In support of his second contention, learned counsel has relied upon the judgment of Division Bench dated 12.11.2008 passed in State of Rajasthan & Anr. v. Ashok Kumar Machi & Anr. DB Civil Special Appeal No. 958/2008 and submitted that in almost similar circumstances preliminary enquiry having been conducted by a delegate of the competent authority has been quashed. 6. Mr. Beniwal, learned Additional Advocate General, appearing for the respondent - State on the other hand submitted that petitioner's first contention that the purported disqualification is a pre-election disqualification is absolutely misconceived, inasmuch as birth of the third child has taken place after the petitioner was elected. He argued that since giving birth to third child is a disqualification under Section 24(XVII) of the Act of 2009, and such disqualification has been acquired during his tenure as a Member of the Board, the State Government is competent to take action against him under the powers available to it under section 39 of the Act of 2009. 7. He argued that since giving birth to third child is a disqualification under Section 24(XVII) of the Act of 2009, and such disqualification has been acquired during his tenure as a Member of the Board, the State Government is competent to take action against him under the powers available to it under section 39 of the Act of 2009. 7. In relation to the second argument that was advanced by learned counsel for the petitioner that the preliminary enquiry which has been conducted by an incompetent authority, Mr. Beniwal submitted that the said enquiry cannot be said to be a preliminary enquiry. He asserted that it was only a fact finding enquiry and once the fact that the petitioner has fathered a third child after being elected, has come to the notice of the State, the State has issued a notice on 08.12.2021. He added that once the proceedings against the petitioner have commenced, the State was justified in suspending the petitioner in terms of sub-section (6) of section 39 of the Act of 2009. 8. It was also argued by Mr. Beniwal that maybe, the factual enquiry has been labelled as preliminary enquiry, but it cannot be said to be an enquiry provided under section 39(1) of the Act of 2009, inasmuch as the entire section nowhere uses the expression 'preliminary enquiry'. 9. Heard. 10. So far as the first argument of learned counsel for the petitioner that the respondent - State cannot proceed against the petitioner on the allegation of third child having being fathered by him for it being pre-election disqualification is concerned, this Court does not find any substance in the same. 11. Indisputably, the third child was born on 25.11.2020, after the petitioner was elected as a Member of Municipal Corporation, (03.11.2020), hence it cannot be said that the petitioner was disqualified when he filled up the nomination form or even contested the election. 12. It is the actual delivery and not the very conception of a child, which is a disqualification. The provision under clause (XVII) of section 24 of the Act of 2009 clearly provides that the disqualification to be chosen as a member is, having more than two children. 12. It is the actual delivery and not the very conception of a child, which is a disqualification. The provision under clause (XVII) of section 24 of the Act of 2009 clearly provides that the disqualification to be chosen as a member is, having more than two children. If provision contained in section 39(1)(c) and 24(XVIII) of the Act of 2009 are read together as the occurrence of birth is after the petitioner's election, it cannot be treated to be a pre-election disqualification. 13. Adverting to the second contention, a perusal of the record reveals that vide communication dated 15.03.2021 the State Government had directed the District Collector, Jodhpur to conduct an enquiry and send a report as to whether petitioner has more than two children. 14. In furtherance of the Directorate's communication dated 08.03.2021 followed by another communication dated 15.03.2021, the Additional District Collector vide its communication dated 08.04.2021 required the Commissioner, Municipal Corporation (South), Jodhpur to enquire into the matter and give his opinion. 15. The Commissioner, Municipal Corporation (South), Jodhpur, in turn appointed one Mr. Vivek Vyas, Deputy Commissioner to be an enquiry officer. 16. Said Mr. Vivek Vyas then issued a notice to the petitioner and sought his explanation. 17. Thereafter, the Deputy Commissioner of the Municipal Corporation sent a report on 29.07.2021, which has been placed by the State on record as Annex-R/2. 18. A perusal of the above report dated 29.07.2021 reveals that the Deputy Commissioner has relied upon a report given by Sanitary Inspector may be on the basis of record, that the petitioner gave birth of third child on 25.11.2020. 19. A reading of the impugned order reveals that the same has been issued on the basis of a preliminary enquiry and the only preliminary enquiry report available on record is, the one furnished by the Deputy Commissioner on 29.07.2021. 20. In the opinion of this Court, an enquiry in terms of first proviso to section 39 (1) of the Act of 2009 (by whatever name called; may be preliminary enquiry or otherwise) is required to be conducted by an authority prescribed under the proviso i.e. existing or retired officer not below the state service or authority as may be directed. 21. 21. It cannot be disputed that the Director of the Local Self Government had issued the notice dated 08.03.2021 to the District Collector for conducting enquiry, who in turn wrote a letter to the Commissioner, Municipal Corporation (South) and the directions percolated down from the Deputy Commissioner to the level of Sanitary Inspector, who has ultimately reported that the petitioner has three children. 22. True it is that the entire scheme of section does not use the expression 'preliminary enquiry'; but then 'fact finding enquiry' is also alien to section 39 of the Act of 2009. Only two types of enquiry are envisaged under section 39, first being an enquiry conducted in terms of first proviso to section 39(1) and the second being judicial enquiry prescribed in sub-section (3) of section 39 of the Act of 2009. 23. 'Delegatus non potest delegare' is a basic tenet of administrative law and administration of justice. 24. An officer who is authorised to conduct an enquiry in terms of sub-section (1) of section 39 of the Act of 2009 cannot further delegate his power to his subordinate officer. 25. The aforesaid view of the Court is duly fortified by judgment of this Court in the case of Ashok Kumar Machhi (supra) wherein it has been held as infra: "Other aspect of the matter is, that even if it is assumed, that the State Government directed the Collector to hold enquiry, even in that event, from the established legal proposition of delegata potestas non potest delegari, the Collector himself being a delegatee could not have further delegated power of conducting the inquiry. To this contention, it was submitted by Mr. Bhati, that Annex. R/15 is not a forwarding letter, and it should be taken to be inquiry report by the Collector himself, inasmuch as he recapitulated the report of the SDO, and has come to his own conclusion. In our view, there is no basis to say, that he has given his own conclusion, rather he simply forwarded the report of SDO, by reproducing certain paragraphs enumerated in the inquiry report from of the SDO. This is apart from the fact, that even the State Government proceeded on the basis of report of the SDO, and not on the basis of Annex. R1/5. This is apart from the fact, that even the State Government proceeded on the basis of report of the SDO, and not on the basis of Annex. R1/5. Therefore also, it can not be said, that there was any valid inquiry conducted by the competent authority, as required by proviso to Sec. 63(1) of the Act. This is second aspect of the matter." 26. The enquiry got conducted by the State and the enquiry report dated 29.07.2021 is, therefore, clearly void and without jurisdiction. 27. Moving on to the argument of learned Additional Advocate General that the enquiry aforesaid was only a fact finding enquiry, this Court is of the considered view that it is the ingenuity of the learned Additional Advocate General who has portrayed the enquiry to be a fact finding enquiry. Otherwise, in para (e) at page 37 and various other parts of the reply the stand of the respondent - State has been that the report dated 29.07.2021 is 'preliminary enquiry'. Not only this, even the impugned order dated 08.12.2021 uses the expression 'preliminary enquiry' at its opening part. 28. Had the intention of the State been to assimilate facts only, then neither the show cause notice dated 08.12.2021, would have referred to the preliminary enquiry report nor was there any necessity of sending the communication dated 08.03.2021 to the District Collector, Jodhpur. 29. If the State Government wanted the facts to be ascertained, a simple letter to the Municipal Corporation would be enough, because record of birth even as birth registering authority was with it. 30. As noticed above, fact finding enquiry or preliminary enquiry, by whatever name called, the enquiry in question which was ordered to be done by the District Collector has been conducted by Deputy Commissioner if not by the Sanitary Inspector. Hence, the same is void having been conducted by the incompetent authority. 31. The impugned order dated 08.12.2021, which embraces within its fold the order of suspension as well, founded on the so called enquiry report dated 29.07.2021, is also void and a nullity. 32. For the reasons stated above, the writ petition is allowed. 33. The impugned order dated 08.12.2021 soliciting petitioner's explanation so also placing the petitioner under suspension is, hereby, quashed. 34. 32. For the reasons stated above, the writ petition is allowed. 33. The impugned order dated 08.12.2021 soliciting petitioner's explanation so also placing the petitioner under suspension is, hereby, quashed. 34. Needless to observe that mere quashment of the order dated 08.12.2021 shall not preclude the State Government from conducting a de-novo enquiry in accordance with law keeping the mandate and spirit of section 39 (1) of the Act of 2009. 35. It goes without saying that consequent to quashment of order dated 08.12.2021, the petitioner's position as Member of the Ward No. 24 shall stand restored. 36. Stay application too stands disposed of accordingly.