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2015 DIGILAW 1286 (JHR)

Abdul Samad Khan v. State of Jharkhand

2015-10-14

SHREE CHANDRASHEKHAR

body2015
ORDER : Seeking issuance of Writ of Quo-Warranto to respondent no. 2 who was elected as Member of the State Legislative Assembly from 76 Daltonganj Assembly Constituency, the present writ petition has been filed. 2. The petitioner claiming himself public spirited person and a social worker came to know about Election Petition No. 11 of 2015 filed by one Krishna Nand Tripathi. The petitioner obtained photocopy of the said election petition. The documents annexed with the said election petition disclose that the respondent no. 2 was not eligible in terms of Article 173 of the Constitution of India. At the time of filing nomination for 2014 Assembly Election, the respondent no. 2 was below 25 years. The certificates and undertaking of respondent no. 2 annexed along with the Election Petition No. 11 of 2015 would disclose the date of birth of the respondent no. 2 as 15.02.1995. Alleging fraud committed by respondent no. 2, the petitioner seeks Writ of Quo-Warranto to respondent no. 2. 3. Heard the learned counsel for the parties. 4. The learned counsel for the petitioner submits that the certificate of Jharkhand Academic Council, Ranchi which conducted Annual Secondary Examination 2010 is a conclusive proof of the age of the candidate i.e. respondent no. 2. The said certificate would disclose that as on 05.11.2014, the respondent no. 2 had not attained the age of 25 years and thus, he was not eligible to contest 2014 Assembly Election. It is further submitted that mere pendency of election petition filed by an unsuccessful candidate would not bar the writ petition. A candidate who is not eligible in terms of Article 173 of the Constitution of India cannot be permitted to hold a public office and therefore, Writ of Quo-Warranto may be issued to the respondent no. 2. 5. Opposing the writ petition, the learned counsel for the respondent no. 3 raises a preliminary objection to the maintainability of the writ petition. It is submitted that in view of Section 80 of the Representation of the People Act, 1951, no election can be called in question except, by filing an election petition. Referring to averments in paragraph no. 5 of the writ petition, the learned counsel submits that petitioner is aware of the pendency of Election Petition No. 11/2015 filed by Krishna Nand Triparthi still, he has chosen to file the present writ petition. Referring to averments in paragraph no. 5 of the writ petition, the learned counsel submits that petitioner is aware of the pendency of Election Petition No. 11/2015 filed by Krishna Nand Triparthi still, he has chosen to file the present writ petition. In these facts, it is contended that parallel proceeding cannot be permitted to be continued. 6. The learned counsel for the respondent-State of Jharkhand has also opposed the writ petition. 7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 8. Notification for the Jharkhand Assembly Election2014 was issued on 29.10.2014 and the last date for filing nomination papers was 05.11.2014. The date of polling was 25.11.2014 and the result was declared on 23.12.2014. In the Assembly Election for 76 Daltonganj Assembly Constituency, the respondent no. 2 was declared elected. The petitioner has averred that he obtained copies of the certificates issued by the Jharkhand Academic Council, G.L.A. College, Medninagar which was annexed along with Election Petition No. 11 of 2015. Whether the documents filed in the Election Petition are in dispute in the proceeding of Election Petition No. 11 of 2015 or not, has not been averred by the petitioner. The documents which have been filed by the said Krishna Nand Tripathi have to be proved by examining witnesses. The petitioner has not produced certified copies of the certificates issued by different authorities. The contention that certificate of the Jharkhand Academic Council is a conclusive proof of the age of the candidate may be true however, in view of the fact that the certificates, the copies of which have been filed vide Annexure 3 series are neither the certified copies nor these documents have been obtained from the office of the authorities who have issued those documents, the same cannot be considered as conclusive proof of the age of respondent no. 2. It is stated that besides Election Petition No. 11 of 2015, one Arvind Manji has filed Election Petition No. 10 of 2015 and both the petitions are pending before this Court. In paragraph no. 5 of the writ petition, the petitioner has disclosed that he has knowledge of pendency of Election Petition No. 11 of 2015. 9. 2. It is stated that besides Election Petition No. 11 of 2015, one Arvind Manji has filed Election Petition No. 10 of 2015 and both the petitions are pending before this Court. In paragraph no. 5 of the writ petition, the petitioner has disclosed that he has knowledge of pendency of Election Petition No. 11 of 2015. 9. Considering the aforesaid facts, I am of the opinion that in view of the pendency of the Election Petition No. 11 of 2015, the present writ petition cannot be proceeded. Any decision in the present proceeding would seriously effect the proceeding in Election Petition No. 11 of 2015. As rightly contended by the learned counsel for the respondent no. 3 the petitioner cannot initiate a parallel proceeding which would effect the proceeding of Election Petition No. 11 of 2015. The learned counsel for the petitioner refers to decision in “K. Venkatachalam vs. A Swamickan and another” (1999) 4 SCC 526 . The facts in the said case are entirely different from the facts in the present case. In “K. Venkatachlam” case no election petition was filed. 10. In the result, the writ petition is dismissed.