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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH

ORDER

(S.B. Civil Writ Petition No.16669/2016)

Khem Chand Meena S/o Shri Sampatram, aged about 43 years, by caste Meena, R/o Kyampur,

Tehsil Mahuwa, District Dausa (Raj.).

---- Petitioner/ Non-Applicant No.1

Versus

1. Balu Ram Meena S/o Shri Surjan Meena, By caste Meena, Norangwada, Tehsil Mahuwa,

District Dausa (Raj.)

2. District Election Officer, (Panchayat) Dausa District Dausa (Raj.)

3. Returning Officer (Election) Sarpanch Gram Panchayat Norangwada, Tehsil Mahuwa,

District Dausa (Raj.) through District Election Officer (Panchayat) Distt. Dausa.

--- Proforma Respondents/ Non-Appluicant No.2&3

Date of Order:

February 27

th, 2018.

PRESENT

HON'BLE MR. JUSTICE ALOK SHARMA

Mr. Kamlakar Sharma, Senior Advocate with

Mr. M.S. Rajpurohit & P.C. Devanda, for the petitioner.

Mr. R.K. Agrawal, Senior Advocate with

Mr. Mamoon Khalid, for the respondent.

BY THE COURT:

REPORTABLE

A challenge has been made by the petitioner-returned

candidate (hereinafter ‘the RC’) to the impugned judgment dated

22-11-2016 passed by the Senior Civil Judge, Mahuwa, District

Dausa (hereinafter ‘the trial court’) in election petition

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No.16/2015 (47/2015) setting aside his election to the post of

Sarpanch of gram panchayat Naurangwada, Panchayat Samiti

Mahwa, District Dausa.

The facts of the case are that the election petitioner (EP)

filed a petition on 4-2-2015 before the trial court challenging the

election of the RC to the post of Sarpanch of village Naurangwada

on the ground that votes at the said election were wrongly

counted in breach of statutory provisions. Subsequently even

while the earlier election petition was pending he filed another

election petition on 21-2-2015 on the ground that the RC was

charged by the court of Additional Chief Judicial Magistrate

Mahuwa in case No.12/2011 for offences under Sections 452,

323, 325, and 341 IPC, in case No.41/2008 (BT No.651/2014)

and case No.320/2009 (BT No.609/2014) the court of ACJM

Sikarai, and facing trial. He was in terms of Section 19(gg) of the

Rajasthan Panchayati Raj Act, 1994 (hereafter `the Act of 1994')

ineligible as the offences for which he was being tried were

punishable by more than five years imprisonment, to contest the

election. The RC's election to the post of Sarpanch was claimed by

the EP to be liable to be set aside on the said ground. The election

petition first filed on 4-2-2015 was then withdrawn on an

application stating that a second election petition had been filed.

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On service of notice on the petition, the RC filed reply of

denial to the pending election petition and submitted that the EP's

election petition No.2/2015, earlier filed having been was

dismissed as withdrawn on 4-5-2015 without any liberty to

pursue the second election petition, it was liable to be dismissed as

barred by law in view of Order 2 Rule 2 CPC and Order 23 Rule 1

CPC. With regard to pendency of criminal cases, in which the RC

was indeed charged and which were admittedly punishable by

more than five years imprisonment, the RC's defence was that the

charges did not relate to any moral turpitude.

On the basis of pleadings of parties the trial court framed

three issues. Issue No.2 related to maintainability of the election

petition. The other as to the RC's eligibility to contest the election

of 2015.

The EP examined himself as Aw-1 and exhibited 38

documents. The RC examined himself as NAW-1 and exhibited

11 documents.

Considering the evidence of the parties the trial court vide

judgment dated 22-11-2016 held that the second election

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petition in the facts of the case was maintainable and set aside the

election of the RC as Sarpanch of village Naurangwada on the

ground of his ineligibility to contest in view of Section 19(gg) of

the Act of 1994. Hence this petition.

On 20-4-2017, since issue No.2 regarding maintainability

o