L.R. Mehta, M. Mridul - Sr. Advocate with R.N. Upadhyaya, Vijay Bishnoi, D.S. Rajvi and Kailash Joshi, for Respondents

Honble ARORA, J.–This writ petition and the other eleven writ petitions mentioned in the Schedule, raise the common controversies, namely, (i) the validity of Section 19(L) read with Section 39 of the Rajasthan Panchayati Raj, Act, 1994; (ii) the legality and correctness of the orders passed by the respective Chief Executive Officer, by which the petitioners were declared disqualified; and (iii) the jurisdiction of the Chief Executive Officer to hold an enquiry in the matter of declaring a Panch or a Member of the Panchayat Raj Institution to continue as the Sarpanch as he has incurred the disqualification on account of birth of an additional child in the family raising the number of the children to more than two.As all these writ petitions involve the common questions of law and facts, therefore , they are being disposed of by this common judgment.

(2). The petitioner was declared elected as the Sarpanch of Gram Panchayat, Banera (district Bhilwara) on 4-2-95. While he was acting as the Sarpanch, a notice dated 9-7-96 issued under Section 39(2) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred as `the Act) was served on the petitioner on 12-7-96 stating therein that on account of increase in the number of the children in the family to more than two after 27- 11-95, the petitioner has rendered himself ineligible to hold the Office of the Sarpanch and, therefore, why he should not be declared `disqualified to hold the Office of the Sarpanch of Gram Panchayat, Banera ?

(3). The petitioner filed reply to this notice challenging the jurisdiction of the Chief Executive Officer to hold the enquiry on the grounds that (i) no notification has been issued declaring the Chief Executive Officer to be the competent authority under Section 2(vii) of the Act; (ii) the enquiry can be conducted only by the Judicial Authority under Section 40 of the Act as the petitioners does not admit the allegations made in the notice; and (iii) copy of the complaint has not been supplied to him.

(4). The Chief Executive Officer passed the order Annexure 3 on 17-7-96 declaring the petitioner as `disqualified to hold the Office of the Sarpanch and further declared the Office of the Sarpanch as becoming vacant. The petitioner has challenged this order Annexure 3 on the grounds that (i) the order has been passed in utter disregard of the principles of natural justice and without dealing with the preliminary objections raised by the petitioner; (ii) since the petitioner has not admitted the allegations made against him in the notice, it was imperative and obligatory on the part of the competent authority to refer the matter for judicial determination on the question of disqualification of the petitioner and the Chief Executive Officer has no authority to determine the disqualification; (iii) the disqualification envisaged under Section 19 of the Act deals with the qualification at the time of election and not any subsequent disqualification; and (iv) the question regarding disqualification can be raised within thirty days by filing an election petition in accordance with Section 43 of the Act read with rule 80 of the Rules and cannot be challenged otherwise. The petitioner has further submitted that Section 19(L) read with Section 39-A is ultra-vires of the Constitution of India and there is no reasonable nexus with the object sought to be achieved in enacting these provisions. In the other writ petitions, also, the legality of the orders has been challenged almost on the identical grounds.

(5). Learned Additional Advocate General as well as the learned counsel appearing on behalf of the Chief Executive Officer and Zila Parishads, on the other hand, have supported the order passed by the Chief Executive Officer and submitted that the Chief Executive Officer was competent to pass the order as there was failure to respond by denial on be

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