Hon'ble BHANDARI, J.— The matter was heard finally with the consent of the parties.

2. The petitioner was elected as "Sarpanch" of Gram Panchayat, Lisadia of Panchayat Samiti Sri Madhopur, District Sikar. He was served with the charge sheet to take action as per Section 38 of the Rajasthan Panchayati Raj Act, 1994 (for short "the Act of 1994"). In the charge sheet, it was alleged that he raised construction of Panchayat Building in a land recorded as "Gair Mumkin Naid", thus proper place was not selected and it may cause damage to the record and building. Respondents conducted enquiry as per the Rule 22 of Rajasthan Panchayati Raj Rules, 1996 (for short "the rules of 1996"). The Enquiry Officer thereafter submitted enquiry report vides Annex. 11 to the writ petition dated 22.04.2008, holding charges as not proved. After recording said finding in the enquiry, it seems that matter travelled to other government authorities and in that respect, firstly order was passed on 20th October 2008 vide Annex. 15. In the aforesaid order, it has been recorded that charge against the petitioner is found to be proved therefore, before passing any order, petitioner should be given opportunity of hearing in view of the Rule 22 (7) of the Rules of 1996. The respondent Divisional Commissioner thereafter passed the impugned order dated 09.02.2009 (Annex. 16) after calling for the report from Collector. Vide impugned order, petitioner is declared to be disqualified to hold the post of "Sarpanch" and accordingly, a direction was given to the petitioner for handing over the charge to "Up-Sarpanch/ Wardpanch."

3. Learned counsel for the petitioner submits that once enquiry report was submitted holding charge as not proved, the Divisional Commissioner was having no authority to refer the matter to call for the report from the District Collector in respect of the issue, which was subject matter of the charge against the petitioner. Referring to the impugned order, it is stated that comment was called from the District Collector behind the back of the petitioner and based on that, the impugned order has been passed. It is urged that there is a clear violation of Rule 22 of the Rules of 1996 inasmuch as the report so submitted by the District Collector and relied by the Divisional commissioner is not the subject matter of the enquiry, wherein the petitioner was exonerated and there is no provision under Rules of 1996 or the Act of 1994, authorizing the Divisional commissioner to call for the report from the District Collector after submission of the enquiry report by the Enquiry Officer. It is further stated that the Divisional commissioner exceeded to his authority while passing the impugned order, thus it is prayed that the impugned order dated 09.02.2009 (Annex. 16) may be quashed.

4. Learned Additional Advocate General, appearing for the State, on the other hand, submits that the order dated 09.02.2009 (Annex. 16) is perfectly legal inasmuch as the petitioner is guilty of raising construction in a land, which is shown to be "Gair Mumkin Nadi". In view of the Section 16 of the Rajasthan Tenancy Act, no construction can be made in such land, thus the petitioner has committed misconduct and taking note of this aspect, the Divisional Commissioner has rightly passed the order.

5. Learned counsel appearing for the private respondent, who was impleaded as respondent on an application submits that charge against the petitioner was found proved and for that purposes, a reference of the order dated 15.10.2008 at Annex. - R5/3 has been made. It is contended that the authority, who has given enquiry report therein passed contrary order then his own order dated 15.10.2008 therefore, the finding recorded in the enquiry report should not be accepted and otherwise, the Divisional Commissioner was having power to exercise its jurisdiction after calling for the report from the District collector. It is stated that the Divisional Commissioner is superior authority t