BHUPENDRA SINGH HADA AND ORS. Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) The issue in all the petitions is as to whether the Chairpersons/Members of the Panchayati Raj Institutions can be removed, proceeded against in an enquiry under Sec. 39 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter "the Act of 1994") read with Rule 23 of the Panchayati Raj Rules, 1996 (hereinafter "the Rules of 1996") and/or suspended under Sec. 38(4) of the Act of 1994 in respect of pre -election disqualifications.

(2.) Counsel for the petitioners have submitted that the issue referred to above is covered on all fours by the Full Bench judgment of this Court in the case of Smt. Sameera Bano v/s. State of Rajasthan [ : 2007 (2) RLW 1674] wherein it was held that an elected Sarpanch/Member of the Panchayat, cannot be proceeded against by the government for alleged pre -election disqualification in an administrative enquiry or removal in the exercise of powers under Sec. 39 read with Sec. 19(1) of the Act of 1994. It has been submitted that the same issue was subsequently adjudicated by the Single Bench of this Court, following the Full Bench judgment aforesaid, in the case of Seema Devi Tomar v/s. State & Ors. [ : 2008 (2) RLW 1764 (Raj.)]. It has been submitted that various election petitions against the elected Chairpersons and Members of the Panchayati Raj Department are pending as provided for under the Act of 1994 as also are First Information Reports on allegations of forgery in obtaining qualifications making the candidates eligible for the election, yet the State Government is seeking to initiate parallel statutory enquiry in respect of the same alleged pre -election disqualifications/forgeries and in the course thereof has even suspended the elected Chairpersons and Members of the Panchayati Raj Institutions by resort to Sec. 38(4) of the Act of 1994 in a manner wholly illegal and arbitrary. The very maintainability of enquires under Sec. 39 of the Act of 1994 and Rule 23 of the Rules of 1996 and suspension under Sec. 38(4) of the Act of 1994 for reason of alleged pre -election disqualification has been impugned.

(3.) Mr. Anurag Sharma, AAG appearing for the respondents has relied upon the judgment of the Apex Court in the case of Rabindra Kumar Nayak v/s. Collector, Mayurbhanj, Orissa & Ors. [ : (1999) 2 SCC 627] to contend that the judgment of the Full Bench of this Court in the case of Smt. Sameera Bano (Supra) is per incuriam. He submitted that a similar issue arose before the Apex Court where the question formulated was whether for impugning the election of a returned candidate only an election petition under Sec. 44 -A of the Orissa Panchayat Samiti Act, 1959 (hereinafter "the Act of 1959") was maintainable on ground detailed in Sec. 44 -L or proceedings under Sec. 45 -B of the Act of 1959 for the same purpose would also be maintainable. Ss. 44 -A, 44 -L and 45 -B of the Act of 1959 read as under: