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2007 DIGILAW 2368 (RAJ)

Harpal Singh v. State of Rajasthan

2007-12-11

R.M.LODHA, R.S.CHAUHAN

body2007
JUDGMENT 1. - A writ of quo warranto issued by the Single Judge vide his order dated 19.11.2007 which has resulted in displacing the present appellant from the membership and Pradhan of Panchayat Samiti, Buhana is subject matter of challenge in this appeal. 2. The present appellant filed his nomination paper for election to the membership of Ward No. 25, Panchayat Samiti, Buhana on 13.01.2005. In his declaration, he declared that no Court has ever taken cognizance against him in a criminal case and that no criminal case was pending against him. His nomination paper was accepted by the Returning Officer. The voting took place on 29.01.2005 and after counting of votes, on 08.02.2005, the appellant was declared as a member of ward No. 25, Panchayat Samiti, Buhana. Having been elected as a member of Panchayat Samiti, Buhana, he also contested the election of Pradhan, Panchayat Samiti and he was declared elected. 3. Dharam Singh the present respondent No. 2 who was an unsuccessful candidate from Ward No. 25, after about five months, made an application to the State Government that for the offences punishable under Sections 420, 467, 468 and 471 IPC, a first information report was registered against Harpal Singh the present appellant on 20.10.1995 with Police Station Kotwali, District Jhunjhunu and, thus, he was disqualified to contest such election in view of Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994. That pursuant to the said first information report (407/95), the challan was filed against the present appellant on 07.04.1997 and the said Court took cognizance against the appellant for the aforementioned offences on 28.06.1997 and the charges were framed on 01.10.1999. Bereft of unnecessary details in respect of the proceedings having been taken by the State Government on the said application, suffice it to say, that before the Single Judge, the only aspect that was highlighted by the present respondent No. 2 in support of the writ petition was that the present appellant could not have been elected as a member of the Panchayat Samiti being disqualified and, therefore, he has no authority to hold the office of a Member, Panchayat Samiti and that of Pradhan, Panchayat Samiti, Buhana. 4. The Single Judge considered the matter at quite some length and by over-ruling the various objections raised by the present appellant, the writ of quo warranto. 4. The Single Judge considered the matter at quite some length and by over-ruling the various objections raised by the present appellant, the writ of quo warranto. In this connection, inter-alia, the Single Judge relied upon the decision of the Supreme Court in the case of K. Venkatachalam v. A. Swamickan and Anr., (1999) 2 SCR 857 : AIR 1999 SC 1723 . 5. Mr. R.N. Mathur, the Counsel for the appellant, assailing the judgment of the Single Judge, relied upon the decision of the Supreme Court in the case of State of Himachal Pradesh and Ors. v. Surinder Singh Banolta, (2006) 12 S.C.C. 484 . He vehemently contended that in the light of the constitutional provisions contained in Articles 243-F and 243-O and Section 43 of the Rajasthan Panchayati Raj Act, 1994, the appellant could only have been unseated on the ground of pre-election disqualification save and except by way of a election petition. He would contend that the original writ petitioner (respondent No.2 herein) was a defeated candidate and being personally interested in the matter, could not have invoked the writ jurisdiction of this Court by seeking the writ of quo warranto. Mr. R.N. Mathur, in this connection, relied upon the judgment of the Supreme Court in the case of K.K. Shrivastava and Ors. v. Bhupendra Kumar Jain and Ors., AIR 1977 SC 1703 : (1977) 2 SC 494 . 6. We shall first refer to the two decisions cited by Mr. R.N. Mathur. In the case of K.K. Shrivastava, the subject matter before the Supreme Court related to the validity of election to the Bar Council of Madhya Pradesh of twenty returned candidates. The Supreme Court considered the Rules framed by the Bar Council of Madhya Pradesh, regulating the disputes regarding election. Rule 31(4) of the Election Rules provided that all disputes arising under Sub-rule (4) of Rule 31 shall be decided by a Tribunal known as 'Election Tribunal'. The Supreme Court held that a remedy provided under the Election Rules being equally efficacious, the exercise of power under Article 226 may be mis-exercised. This is what has been held in paragraph 3 of the report: "3. It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. This is what has been held in paragraph 3 of the report: "3. It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore, a writ petition will lie, is a fallacious argument. It is important to notice what the High Court has overlooked that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject matter is actually pending. There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repercussions of entertaining writ petitions are where they should not be, is illustrated by this very case." 7. It is pertinent to notice here that while holding that where there is a appropriate remedy or equally efficacious remedy, the Court should keep its hands off under Article 226, the Supreme Court also observed that where there were exceptional or extraordinary circumstances the Court might exercise its power under Article 226. It is pertinent to notice here that while holding that where there is a appropriate remedy or equally efficacious remedy, the Court should keep its hands off under Article 226, the Supreme Court also observed that where there were exceptional or extraordinary circumstances the Court might exercise its power under Article 226. The precise issue of quo warranto where the candidate has incurred disqualification prior to the election was not under consideration in the case of K.K. Shrivastava. 8. In the case of Surinder Singh Banolta, the returned candidate had suffered disqualification having been declared as an encroacher in the year 1998 in contesting the election to Zila Parishad. However, he contested the election and was declared elected on 05.01.2001. He was unseated by an order of the Deputy Commissioner. The Division Bench of the Himachal Pradesh High Court held that the order passed by the Deputy Commissioner was not sustainable in law as the disqualification incurred under Section 122 of the Act was one of the grounds upon which an election petition could be filed. It was, thus, held that in terms of provisions of Article 243-O read with Section 163 of Himachal Pradesh Panchayati Raj Act, an election petition was maintainable for setting aside his election. The Supreme Court while dealing with the controversy said: "14. Section 163 of the Act provides for filing of an election petition on one or more grounds specified in Sub-section (1) of Section 175 thereof. Clause (a) of Sub-section (1) of Section 175 of the Act inter alia lays down a ground for setting aside of an election if on the date of the election the elected person was not qualified or disqualified to be elected under the Act. 15. It is no doubt true that Section 122 contemplates both the situations, viz. where a person shall be disqualified for being chosen as also for being an office-bearer of Panchayat inter alia if he has encroached upon any land belonging to any authority mentioned therein. In view of the language of the said provision, we are of the view that whereas an issue falling under Clause (i) of Sub-section (2) of Section 122 of the Act must be determined before the authorised officer, any order of encroachment passed after the election process is over would be determined by the Deputy Commissioner. 16. In view of the language of the said provision, we are of the view that whereas an issue falling under Clause (i) of Sub-section (2) of Section 122 of the Act must be determined before the authorised officer, any order of encroachment passed after the election process is over would be determined by the Deputy Commissioner. 16. The provisions of the Act, as noticed hereinbefore, have been enacted pursuant to or in furtherance of the, constitutional mandate contained in Part IX of the Constitution of India. The provisions of the Act, therefore, are required to be construed strictly in terms thereof. Clause (b) of Article 243-O of the Constitution of India mandates that no election shall be set aside save and except by an order passed by the authorised officer. In our considered opinion, Section 122 of the Act must be read in the light thereof. Section 162 of the Act expressly provides for the exclusive jurisdiction of the authorised officer to determine the existence or otherwise of any ground enumerated in Section 175 of the Act. 17. Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position." 9. The decision of the Supreme Court in the case of Surinder Singh Banolta also does not deal with the power of the High Court in issuing writ of quo warranto where a candidate who was disqualified to contest the election, contested the election and was declared elected. 10. The issue that has been raised before us was directly under consideration before the Supreme Court in the case of K. Venkatachalam. That was a case where the general elections to the legislative assembly in Tamil Nadu were held in December, 1984. Venkatachalam and Swamickan (appellant and the respondent therein) both contested the election; Venkatachalam was elected and Swamickan lost. The issue that has been raised before us was directly under consideration before the Supreme Court in the case of K. Venkatachalam. That was a case where the general elections to the legislative assembly in Tamil Nadu were held in December, 1984. Venkatachalam and Swamickan (appellant and the respondent therein) both contested the election; Venkatachalam was elected and Swamickan lost. A year after the date of election of Venkatachalam, Swamickan approached Madras High Court under Article 226 for declaration that Venkatachalam was not qualified to be a member of Tamil Nadu Legislative Assembly representing the Lalgudi Assembly Constituency since he was not an elector in the electoral roll of Lalgudi Assembly Constituency for the general elections in question. Alternatively, Swamickan prayed for a writ of quo warranto directing the Venkatachalam to show under what authority he was holding the seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi Assembly Constituency. 11. That Swamickan did not present any petition calling in question the election of Venkatachalam under Section 81 of Representation of Peoples Act, 1951 was an admitted position. Swamickan alleged that Venkatachalam impersonated him for another person of the same name in the electoral roll of Lalgudi Assembly Constituency and, thus, sworn a false affidavit that he was an elector of that constituency. It was alleged that the act of Venkatachalam was fraudulent and a criminal act came to be known by him (Swamickan) after scrutinising the entire electoral roll of Lalgudi Assembly Constituency. The Single Judge of the Madras High Court dismissed the writ petition on 03.12.1985 holding that Article 329(b) of the Constitution of India was a complete bar where remedy was available under the Representation of People's Act, 1951. Swamickan, upset thereby, filed appeal before the Division Bench. The Division Bench set-aside the order of the Single Judge and held that it was not powerless in exercise of its jurisdiction under Article 226 of the Constitution from declaring that the election of Venkatachalam was illegal inasmuch as he did not possess the basic constitutional and statutory qualification. It is from this order that Venkatachalam went to the Supreme Court. The Supreme Court noticed Articles 191 and 193 of the Constitution of India and the bar provided in Article 329(b) of the Constitution. The paragraph 25 of the report records the factual position thus: "25. It is from this order that Venkatachalam went to the Supreme Court. The Supreme Court noticed Articles 191 and 193 of the Constitution of India and the bar provided in Article 329(b) of the Constitution. The paragraph 25 of the report records the factual position thus: "25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector from that constituency could represent the constituency? He lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislative Assembly of Tamil Nadu. His election however, was not challenged by filing an election petition under Section 81 of the Act. Appellant knows he is disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law. 12. In the light of the aforesaid factual position, in paragraph 26 of the report the Supreme Court posed the question: whether the High Court could not exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant was not qualified to be a member of the Legislative Assembly from Lalgudi Assembly Constituency. 13. This is what the Supreme Court observed in paragraph 26: "26. The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. 13. This is what the Supreme Court observed in paragraph 26: "26. The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. On the finding recorded by the High Court it is clear that the appellant hi his nomination form impersonated a person known as Venkatachalam S/o Pethu, taking advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the assembly his action would be fraud to the Constitution. 14. Then in paragraphs 27 and 28, the Supreme Court held thus: 27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao, (1953) 4 SCR 939 : AIR 1953 SC 201 , it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution? 28. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution? 28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a member of the Legislative Assembly. The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent No. 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like this the Election Commission should invariably be made a party. 15. The legal position ex-posited by the Supreme Court, as afore-noticed, squarely applies to the present case. It is not even disputed by the appellant that the criminal Court took cognizance of a criminal case against the appellant for the offences punishable under Sections 420, 467, 468 etc. much before the nomination form was filed by the appellant and as a matter of fact on the date the nomination paper was submitted by him, the appellant was facing criminal trial for the aforesaid offences. Apparently, the appellant was disqualified to contest election for the membership of Panchayat Samiti by virtue of provisions contained in Section 19(gg) but also he exposed himself for a criminal action having given false affidavit. 16. That to test the validity of election to a public office, where the alternative remedy to challenge such election has become time barred or such alternative remedy has lost its efficacy, the writ of quo warranto in suitable cases may be issued does not seem to be in doubt. Although the High Court may be reluctant to interfere with the election ordinarily, in a gross case where a candidate despite being disqualified in law gets elected, quo warranto may issue. 17. Although the High Court may be reluctant to interfere with the election ordinarily, in a gross case where a candidate despite being disqualified in law gets elected, quo warranto may issue. 17. Seen thus, the issuance of writ of quo warranto by the Single Judge in the fact situation of the present case cannot be said to be legally flawed. 18. Incidentally, we may notice that the Full Bench of this Court (majority view) in the case of Smt. Sameera Bano v. State of Rajasthan and Ors., 2007 (2) WLN 270 (Raj.) 526 has also held that any person under Article 226 of the Constitution can seek ouster of a successful candidate from the office by a writ of quo warranto, if such person was not qualified for the office and he is found to be usurper. The Full Bench held thus: "33. It was submitted on behalf of the respondents that the petition under Section 43 of the Act can be filed only by any unsuccessful candidate, and, therefore, a third party cannot question the result of election. According to Counsel for the respondents, if the unsuccessful candidate does not challenge the election-in collusion with the successful candidate or otherwise-the election may never be called in question at all even though the person was disqualified for election. The submission is well-founded but does not improve the case of the respondents. The fact that the third party cannot challenge the election of the successful candidate despite his disqualification under Section 43 does not mean that the election cannot be challenged at all. Any person can approach the High Court under Article 226 of the Constitution and seek ouster of the successful candidate from the office by a writ of quo warranto. For seeking writ of quo warranto, it is not necessary that person should have locus standi i.e. personal interest in the subject-matter. Writ of quo warranto can be issued if the Court is satisfied that the person was not qualified for the office/post and he is a usurper. 19. The special appeal, therefore, has to be dismissed and is dismissed. *******