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2017 DIGILAW 2554 (RAJ)

Krishna Kumar Ahir v. State of Rajasthan

2017-11-21

M.N.BHANDARI

body2017
JUDGMENT : M.N. BHANDARI, J. 1. A writ of quo-warranto has been sought against the election of the non-petitioner No. 2 on the post of Sarpanch of the Gram Panchayat of Jakharana Tehsil Behror, District Alwar. 2. Learned counsel submits that the petitioner contested the election for the post of Sarpanch where non-petitioner No. 2 remained successful, though, he was not eligible to contest the election. It was for the reason that a criminal case was pending against him where charges were framed before submission of nomination form. The fact aforesaid was suppressed by the non-petitioner No. 2 and could reveal to the petitioner recently. In view of the above, he has preferred writ petition of quo-warranto to declare election of the non-petitioner No. 2 to be illegal and void ab-initio. He was not eligible to contest the election in view of Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994 (for short “the Act of 1994”). 3. Learned counsel submits that remedy of election petition was available to him, but, the fact about pendency of criminal case against non-petitioner No. 2 could reveal recently thus an election petition could not be filed due to expiry of limitation. The petitioner has maintained this writ petition in the light of the judgment of this Court in the case of Dharam Singh v. State of Rajasthan in S.B. Civil Writ Petition No. 3074/2006 decided on 19th November, 2007. Therein, various judgments of the Apex Court and other High Court were referred to hold writ of quo-warranto to be maintainable, if a person could not avail remedy of election petition. In view of the above, the writ, petition is maintainable and, accordingly, a writ of quo-warranto be issued. 4. I have considered the submissions made by learned counsel for the petitioner and scanned the matter carefully. 5. The petitioner has sought writ petition of quo-warranto in reference to Section 19(gg) of the Act of 1994. A criminal case was pending against the non-petitioner No. 2 at the time of submission of nomination form to the post of Sarpanch, thus he was not eligible to contest the petition. 6. The first question for my consideration is as to whether a writ of quo-warranto can be issued in the hands of a candidate who was having remedy of election petition. 7. 6. The first question for my consideration is as to whether a writ of quo-warranto can be issued in the hands of a candidate who was having remedy of election petition. 7. Learned counsel for the petitioner has relied on the judgment of this Court in the case of Dharam Singh (supra) where judgments of the Apex Court and other High Courts have been considered to hold writ petition to be maintainable. It is even if the candidate was having remedy of election petition and failed to file it for then reasons. 8. Before referring to the judgments, it would be relevant to quote the constitutional provision relevant to the issue to find out as to what remedy exists to challenge the election of Panchayat. Article 243-O of the Constitution of India is quoted hereunder for ready reference: “243.-O. Bar to interference by courts in electoral matters Notwithstanding anything in this Constitution— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Art. 243K, shall not be called in question in any court; (b) No election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State.” 9. The perusal of the Article, quoted above, shows a specific bar for challenge to the panchayat election other than by way of an election petition. The similar provision exists for elections of Municipalities, Legislative Assemblies and the Parliament. This Court in the case of Kedar Nath Gupta, Harish Sangtani and Dinesh Kumar v. State reported in RLW 2009(2) Raj. 1618 held that a writ petition would not be maintainable, as any dispute pertaining to election can be challenged by maintaining an election petition. Therein, various judgments of the Apex Court were referred. The Constitutional Bench's judgment in the case of N.P. Ponnuswami v. Returning Officer, Namakkal Constituency reported in (1952) 1 SCR 218 was also referred. It was held that extra ordinary jurisdiction of the High Courts under Article 226 of the Constitution of India, having been expressly excluded where rights and liabilities created by the Statues and gives special remedy for enforcing it, remedy provided by the statute alone can be availed. It was held that extra ordinary jurisdiction of the High Courts under Article 226 of the Constitution of India, having been expressly excluded where rights and liabilities created by the Statues and gives special remedy for enforcing it, remedy provided by the statute alone can be availed. The Apex Court subsequently relied said judgment while considering the same issue in the case of Nanhoo Mal v. Heera Mal reported in 1976 (1) SCR 809 . The same view was taken by the Apex Court in the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi reported in 1978 (2) SCR 272 . The Apex Court reiterated the ratio in the case of ST Muthuswami v. Natrajan reported in (1988) 1 SCC 572 : 1988 (2) SCR 759 , though, the issue therein was even as to whether the High Court can interfere in the election process at the intermediate stage. It was, however, held that if any party is aggrieved by the election, it can be challenged by election petition alone. Same view was taken by this Court in the case of Kedar Nath Gupta, Harish Sangtani and Dinesh Kumar (supra). It was reiterated by the Apex Court again in the case of Jaspal Singh Arora v. State of M.P. reported in (1998) 9 SCC 594 and also in the case of Gurdeep Singh Dhillon v. Satpal reported in (2006) 10 SCC 616 . Even the Rajasthan High Court has taken the same view in the case of Shanti Lal v. State of Rajasthan reported in 1995 (3) WLC (Raj.) 580 thus in series of judgments of this Court as well as of the Apex Court, the writ jurisdiction to challenge the election has not been accepted in view of the specific bar in the Constitution of India. 10. The Apex Court decided the same issue in the case of Election Commission of India v. Shivaji reported in (1988) 1 SCC 277 : AIR 1988 SC 61 . Therein, the writ petition was filed during process of election, but, it was held that any dispute pertaining to election on any ground whatsoever cannot be questioned by maintaining a writ petition as Article 329 of the Constitution of India has taken away it and, thereby, the order passed by the High Court was held to be without jurisdiction. 11. Therein, the writ petition was filed during process of election, but, it was held that any dispute pertaining to election on any ground whatsoever cannot be questioned by maintaining a writ petition as Article 329 of the Constitution of India has taken away it and, thereby, the order passed by the High Court was held to be without jurisdiction. 11. The Apex Court in the case of Inderjit Barua v. Election Commissioner of India reported in (1985) 1 SCC 21 held that a writ petition under Article 226 of the Constitution of India to challenge the validity of the election would not be maintainable as it is barred by Article 329(b) of the Constitution of India. The judgment therein was given by the Bench headed by five judges. As against the aforesaid, this Court in its judgment in the case of Dharam Singh (supra) mainly relied on the judgment of the Apex Court in the case of K. Venkatachalam v. A Swamickan reported in 1999 SC 1723. Therein, the writ petition under Article 226 of the Constitution of India was held to be maintainable. It was in the hands of a candidate who failed to file an election petition. The fact about disqualification came to the knowledge of the candidate after the period of limitation for maintaining election petition. 12. The judgment of Punjab and Haryana High Court in the case of Lal Chand v. State of Haryana reported in AIR 1999 P & H 1 has also been relied where even after referring to Article 243-O and 243-ZG of the Constitution of India, Judicial review by the High Court under Article 226 of the Constitution of India was held permissible. In the case of K. Venkatachalam (supra), the earlier judgments of the Supreme Court were referred, but, the judgment in the case of Nanhoo Mal (supra) and also the judgment in the case of ST Muthuswami (supra) were not referred by the Advocates appeared therein. The Apex Court even in the subsequent judgment in the case of Gurdeep Singh Dhillon (supra) reiterated the view as was earlier expressed by the Apex Court holding the writ to be not maintainable for challenge to the election when bar exists under the Constitution of India. Thus two Bench's judgment in the case of K. Venkatachalam (supra) is to be treated as per incurium. 13. Thus two Bench's judgment in the case of K. Venkatachalam (supra) is to be treated as per incurium. 13. It is not that the despite specific bar in the Constitution, it can be subjected to Articles 226 and 227 of the Constitution of India to hold that equitable jurisdiction would still be available. It is moreso when Article 243-O starts with non-obstantive clause. The non-obstantive clause under Article 243-O cannot be ignored and read in conflict. In the case of K. Venkatachalam (supra), the issue of non-obstantive clause was not referred and argued by the counsel appeared therein, whereas, it was considered by this Court in the case of Sameera Bano (Smt.) v. State of Rajasthan reported in 2007 (2) RLW 1674, though, the issue therein was to challenge the pre-election disqualification. It was in the hands of one, who did not contest the election. The fact remains that when constitution cast specific bar on any other remedy and Article starts with non-obstantive clause then no other Article of the Constitution can govern and dilute the provision in reference to Articles 226 and 227 of the Constitution of India. 14. The Court cannot otherwise ignore the constitutional bench's judgment in the case of NP Ponnuswami (supra where the effect of non-obstantive clause was taken into consideration. Para Nos. 5, 9, 12, 15 and 27 are quoted hereunder for ready reference: “5. Article 329 is the last article in Part XV of the Constitution, the heading of which is “Elections, and it runs as follows:— “Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or article 328, shall not be called in question in any court; (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by, or under any law made by the appropriate Legislature.” In construing this article, reference was made by both parties in the course of their arguments to the other articles in the same part, namely, articles 324, 325, 326, 327 and 328. Article 324 provides for the constitution and appointment of an Election Commissioner to superintend, direct and control elections to the legislatures; article 325 prohibits discrimination against electors on the ground of religion, race, caste, or sex; article 326 provides for adult suffrage; article 327 empowers Parliament to pass laws making provision with respect to all matters relating to, or in connection with, elections to the legislatures, subject to the provisions of the Constitution; and article 328 is a complementary article giving power to the State Legislature to make provision with respect to all matters relating to, or in connection with, elections to the State Legislature. A notable difference in the language used in article 327 and 328 on the one hand, and article 329 on the other, is that while the first two articles begin with the words “subject to the provisions of this Constitution” the last article begins with the words not with standing anything in this constitution. It was conceded at the bar that the effect of this difference in language is that whereas any law made by Parliament under article 327, or by the State Legislature under article 328, cannot exclude the jurisdiction of the High Court under Article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in article 329. 9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out latter, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, it any, are rectified, there will be no meaning in enacting a provision like Art. 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting view may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an inde-pendent body, at the stage when the matter is brought up before it. 12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolverhampton New Water Works Co. v. Hawkesford, 6 C.B. (N.S.) 336, 356 in the following passage:— “There are three classes of cases in which a liability may be established founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class viz., where a liability not existing at common law is created b a statute which at the same time gives a special and particular remedy for enforcing it… The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to”. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express News Paper Limited, (1919) A.C. 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordons Grant & Co., (1935) A.C. 532 and Secretary of State v. Mask & Co., (1939-40) 44 CWN 709; and it has also been held to be equally applicable to enforcement of rights: see Hurdutrai v. Official Assignee of Calcutta, (1947-48) 52 CWN 343, 349. That being so, I think it will be a fair inference from the provisions of the Representation of the people Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. 15. It may be pointed out that article 329(b) must be read as complimentary to clause (a) of that article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies. It was conceded before us that article 329(b) ousts the jurisdiction of the courts with regard to matters arising between the commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under article 226 of the Constitution. The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under article 226 of the Constitution. If part XV of the constitution is a code by itself, i.e. it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections. The more reasonable view seems to be that article 329 covers all “electoral matters.” 27. We are informed that besides the Madras High Court seven, other State High Court Courts have held that they have no jurisdiction under article 226 of the Constitution of the entertain petitions regarding improper rejection of nomination papers. This view is in my opinion correct and must be affirmed. The appeal must therefore fail and is dismissed. In view of the nature and importance of the points raised in this appeal, there should be no order to costs.” 15. It is, no doubt, true that petition therein was during the process of election, but, the issue as to whether, any process involved therein can be challenged by maintaining a writ petition has been addressed and could not have been ignored. This Court itself has taken a view in the case of Kedar Nath Gupta, Harish Sangtani and Dinesh Kumar (supra). The judgment in the case of Dharam Singh (supra) was given in the year 2007, but, subsequently in the case of Kedar Nath Gupta, Harish Sangtani and Dinesh Kumar (supra), the writ petition was not held maintainable. Para Nos. 9 and 10 of the judgment in the case of Kedar Nath Gupta, Harish Sangtani and Dinesh Kumar (supra) are quoted hereunder for ready reference: “9. Para Nos. 9 and 10 of the judgment in the case of Kedar Nath Gupta, Harish Sangtani and Dinesh Kumar (supra) are quoted hereunder for ready reference: “9. This issue again engaged attention of the Supreme Court in Nanhoo Mal v. Hira Mal, (1976) 1 SCR 809 wherein the Supreme Court while relying on its earlier judgement in N.P. Ponnuswami, supra, held that challenge to an election through a writ petition before the High Court is not permissible even on the ground of non compliance of statutory provisions, if the Statute provides for exclusive jurisdiction to the District Judge empowered to determine the material effect of such non-compliance. In Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, (1978) 2 SCR 272 , the Supreme Court again reiterated the same view by holding that no litigative enterprise in the High Court or other Court should be allowed to held up the on-going electoral process. It was held that Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. Election in this context is a very wide connotation commencing from the notification calling upon a electoral to elect and culminating into final determination of the returned candidate. 10. The Supreme Court in S.T. Muthusami v. K. Natarajan, (1988) 1 SCC 572 : (1988) 2 SCR 759 while dealing with the question whether it was appropriate for the High Court to interfere with the election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election to the office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayats Act, 1958 on the ground that there was an error in the matter of allotment of symbols to the candidates contesting such election. Reversing the judgment of High Court, the Supreme Court while relying on its Constitution Bench judgement in N.P. Pnnuswami, supra, held that the interference in exercise of its jurisdiction by the High Court under Article 226 of the Constitution was not justified. The parties who are aggrieved by the result of the election, can question validity of election by an election petition, which is an effective alternative remedy. The parties who are aggrieved by the result of the election, can question validity of election by an election petition, which is an effective alternative remedy. It may be noted that the bar similar to the one contained in Article 243ZG regarding election disputes to the Municipalities, is also created in Article 243O of the Constitution for such disputes concerning elections to Panchayati Raj Institutions, which are both in pari materia with the provisions contained in Article 329(b), supra. In subsequent judgment of Jaspal Singh Arora v. State of M.P., (1998) 9 SCC 594 and Gurdeep Singh Dhillon v. Satpal, (2006) 10 SCC 616 and of this Court in Shanti Lal v. State of Rajasthan, 1995 (3) WLC 580 also it was held that the election to the office of President of Municipal Corporation is not open to challenge in the writ petition as the same is barred by Article 243ZG of the Constitution.” 16. The Apex Court in the case of K. Venkatachalam (supra) persuaded itself on the ground that if an election petition cannot be maintained in view of expiry of limitation, a person would be made remediless. Learned counsel appeared therein did not urge as to whether a defaulter can be benefited. 17. The constitutional bar cannot be ignored on the pretext of knowledge about disqualification subsequent to expiry of limitation. No such plea can be accepted to entertain a writ petition, otherwise, the Court would be exercising jurisdiction against the constitutional provision itself. It is a settled law that the constitution cannot be made redundant by judgment of the Courts. If the writ petition is entertained under Article 226 of the Constitution of India being equitable remedy then non-obstantive clause under Article 243-O of the Constitution of India would become redundant. The theory of reading down cannot be applied against the constitutional provision. 18. In view of the above, I do not find writ petition to be maintainable in the hands of a defeated candidate, who was having remedy of election petition. The writ jurisdiction would not be available even if knowledge of disqualification came subsequently. It has been further noted that in the case of K. Venkatachalam (supra), five judges' judgment in the case of Inderjit Barua (supra) was not referred and considered. Therein also, the writ petition was not found maintainable considering the constitutional mandate of Article 329(b) of the Constitution of India. It has been further noted that in the case of K. Venkatachalam (supra), five judges' judgment in the case of Inderjit Barua (supra) was not referred and considered. Therein also, the writ petition was not found maintainable considering the constitutional mandate of Article 329(b) of the Constitution of India. It was taken as complete bar to entertain a writ petition. Accordingly, in the subsequent judgments of the Apex Court in the case of K. Venkatachalam (supra), having been not considered earlier judgment of five Judges, cannot be relied. The non-obstantive clause was not brought to the notice of the court, which has been considered by the Court in other judgments. Accordingly, it is held that a writ petition would not be maintainable to question the election in the hands of a defeated candidate or a candidate who is entitled to challenge it by maintaining an election-petition leaving those who cannot file an election petition. 19. The writ petition is accordingly dismissed.