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2018 DIGILAW 272 (RAJ)

Kailash Chand Sharma v. State of Rajasthan

2018-01-22

ALOK SHARMA

body2018
JUDGMENT : Mr. Alok Sharma, J. 1. In this petition for a writ of quo-warranto the right of the respondent no. 5 - Returned Candidate (hereafter 'RC') to hold the post of Sarpanch of Gram Panchayat, Tala, Tehsil Jamva Ramgarh, District Jaipur despite his election on the said post has been challenged on the ground that he was and is statutorily ineligible to hold the said post. Appropriate directions to restrain him from so functioning has been sought. 2. The facts of the case are that on 1.2.2015, election was held for the post of Sarpanch of Gram Panchayat Tala, Tehsil Jamva Ramgarh, District Jaipur. Eight candidates including the petitioner and respondent no.5 contested. The respondent no.5 was elected. 3. The petitioner contends that two of the seven children of the RC were born after the cut off date of 27.11.1995 which fact was wrongly suppressed in the nomination form and instead their birth fraudulently shown prior to the cut off date of 27.11.1995 with the intent to circumvent the RC's statutorily ineligibility under Section 19(l) of the Rajasthan Panchayati Raj Act, 1994 (hereafter 'the Act of 1994') read with the proviso thereto. 4. It has been submitted that Salim Khan a son was born on 8.7.1996 to the RC and another son Shahrukh Khan born to him on 2.7.1999. In support of the contention, reference has been made to the duplicate marks sheets of the Secondary Examination of Salim Khan (Annexure-2) and Shahrukh Khan (Annexure-3) issued by the Board of Secondary Education, Ajmer (hereafter 'BSER'), wherein their date of births have been recorded as 8.7.1996 and 2.7.1999 respectively. It has been submitted that even in the register of Birth & Death, Gram Panchayat Tala, Panchayat Samiti, Jamva Ramgarh, District Jaipur, the same date of births i.e. 8.7.1996 and 2.7.1999 obtain for Salim Khan and Shahrukh Khan respectively, both the RC's sons. It has been submitted that the petitioner complained in this regard to the State Government and SDO, Jamva Ramgarh. On a fact finding enquiry it was concluded by the SDO concerned that Salim Khan and Shahrukh Khan both sons of the RC were born on 8.7.1996 and 2.7.1999 respectively. This is evident from the report submitted by the SDO, Jamva Ramgarh to the Deputy District Election Officer and Addl. District Collector-II, Jaipur on 3rd June, 2015. On a fact finding enquiry it was concluded by the SDO concerned that Salim Khan and Shahrukh Khan both sons of the RC were born on 8.7.1996 and 2.7.1999 respectively. This is evident from the report submitted by the SDO, Jamva Ramgarh to the Deputy District Election Officer and Addl. District Collector-II, Jaipur on 3rd June, 2015. The enquiry report was placed before the Divisional Commissioner, Jaipur who accepted it on his own enquiry and forwarded it to the State Government. 5. Mr. Lokesh Sharma reiterating the aforesaid facts averred in the petition drew the attention of the Court to Section 19 (l) of the Rajasthan Panchayati Raj Act, 1994 (hereafter 'the Act of 1994'), which reads as under: - "19. Qualifications for election as a Panch or a member.- Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person- (a).....: (b) ...... (c) ....... (d) ....... (e)........ (f)...... (g)..... (h)..... (i)..... (j).... (k)..... (l) has more than two children[; and ] (m)....... (n)...... (o).... (p).... Provided that- (i)... (ii)... (iii).... (iv) the birth during the period from the date of commencement of the Act, hereinafter in this proviso referred to as the date of such commencement, to 27th November, 1995, of an additional child shall not be taken into consideration for the purpose of the disqualification mentioned in clause (1) and a person having more than two children (excluding the child if any, born during the period form the date of such commencement to 27th November, 1995) shall not be disqualified under that clause for so long as the number of children he had on the date of commencement of this Act does not increase" 6. Mr. Lokesh Sharma, submitted that in view of the incontrovertible facts based on public records against the RC, he was incontrovertibly ineligible to contest election to the post of Sarpanch yet so did on suppression of material facts and assertion of false hood in his nomination form and supporting affidavit. Having so won, the RC, yet remains an usurper of public office and cannot in the circumstances be allowed to continue as Sarpanch. Mr. Having so won, the RC, yet remains an usurper of public office and cannot in the circumstances be allowed to continue as Sarpanch. Mr. Lokesh Sharma submitted that the election of RC as Sarpanch, Gram Panchayat Tala, Tehsil Jamva Ramgarh, District Jaipur in the circumstances is of no event for reason of his underlying ineligibility and he cannot be permitted to perpetuate fraud on law and constitution in being allowed to hold public office. And hence this petition for a writ of quo warranto be allowed and direction be issued to the RC to desist to hold and occupy public office/post with the state government being simultaneously directed to restrain him. 7. Mr. Krishan Veer Singh for Mr. Anurag Sharma, AAG submitted that RC was allowed to contest the election to the post of Sarpanch on the basis of information furnished by him in his nomination form. However, with reference to para 4 of the reply to the writ petition by the respondent State it has been admitted that on a complaint as to the RC's ineligibility an administrative enquiry was conducted by the Sub Divisional Officer, Jamva Ramgarh. During the course of enquiry, marks sheets issued to Salim Khan and Shahrukh Khan by Board of Secondary Education, Rajasthan, Ajmer were perused, wherein the date of birth of Salim Khan and Shahrukh Khan was recorded as 8.7.1996 and 2.7.1999, although in the Certificate issued by Kiran Nursing Home, Hatwara, it has been stated that the date of birth of Salim Khan was 20.7.1992 and that of Shahrukh Khan 18.3.1994. The Divisional Commissioner, Jaipur also initiated an inquiry under Section 39 of the Act of 1994 against the RC and found him having contested the election to the post of Sarpanch despite ineligibility of 2 sons being born to him, aside of five other living children subsequent to the cut off date of 27.11.1995 and vide letter dated 5.11.2015 addressed to Secretary, Department of Rural Development & Panchayati Raj Department recommended his removal. Yet the State Government has no power to remove the RC from the said post in respect of a pre election disqualification and it could be so done only in a properly constituted election petition under the Act of 1994 read with the Rajasthan Panchayat (Election) Rules, 1994 (hereafter 'the Rules of 1994') or in a writ of quo warranto. 8. Mr. R.N. Mathur, Sr. Counsel with Mr. 8. Mr. R.N. Mathur, Sr. Counsel with Mr. P.C. Devanda for the RC submitted that a RC in the election under the Act of 1994 cannot be removed except by way of a properly constituted election petition under the Act of 1994 read with Article 243-O of the Constitution of India. Mr. R.N. Mathur submitted that even a writ of quo warranto cannot be entertained where the alleged ineligibility of a returned candidate is a disputed question of fact as it in the instant case where against his DOB of Salim Khan alleged as 8.7.1996 the RC's case is that it is 20.7.1992 and for Shahrukh Khan against the allegation of DOB being 2.7.1999 RC states it to be 18.3.1994 - on basis of the records of the hospital where the two sons were born i.e. Kiran Nursing Home, Shanti Nagar, Jaipur. Such disputed question of DOB could only have been decided by framing issues and taking evidence of the parties in a regular trial by the competent civil court/Election Tribunal in a properly constituted Election Petition under the provisions of the Act of 1994. Mr. RN Mathur further submitted that nothing has been mentioned by the petitioner as to when and from which authority the mark-sheets of Salim Khan and Shahrukh Khan recording their DOB as 8.7.1996 and 2.7.1999 respectively have been obtained. It was submitted that both Salim Khan and Shahrukh Khan sons of RC have also filed suits for declaration and mandatory injunction against the BSER at Ajmer for getting their date of birth corrected in the Secondary School Mark sheet issued on 19.6.2011 and 6.6.2014 respectively and the suit is yet pending. 9. Petitioner in rejoinder submitted that a writ of quo warranto can be issued if the court is satisfied that the RC was not eligible to hold the public office/post when he contested but was a usurper thereof. Reliance was placed on the judgment of the Apex Court in the case of K. Venkatachalam v. A. Swamickan and another (1999) 4 Supreme Court cases 526, Larger Bench judgment of this Court in the case of Sameera Bano v. State of Rajasthan reported in RLW 2007 (2) Raj 1674 as also the judgment in the case of Sahi Ram v. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 16717/2015; decided on 31.5.2017). 10. Heard. Considered. 11. (S.B. Civil Writ Petition No. 16717/2015; decided on 31.5.2017). 10. Heard. Considered. 11. Perusal of duplicate marks sheet of the Secondary School Examination (Annex.-2) of Salim Khan S/o Annu Khan issued by the BSER at Ajmer on 19.6.2011 records his date of birth 8.7.1996 and the duplicate marks sheet of Secondary Examination (Annex.-3) of Shahrukh Khan S/o Annu Khan also so issued on 6.6.2014 records his date of birth 2.7.1999. Suits for declaration and permanent injunction qua the said mark sheets purportedly seeking change in the recorded date of birth in the marks sheets issued by BSER, Ajmer were filed by the Salim Khan and Shahrukh Khan on 30.11.2016 and 25.11.2016 respectively subsequent to the filing of the instant writ petition on 14.3.2016. If indeed the date of birth of RC's sons was incorrectly recorded in their mark-sheets issued by the BSER Ajmer on 19.6.2011 and 6.6.2014 respectively it is extremely odd for them to have filed suits for declaration, correction of their DOB therein after several years and only subsequent to the filing of this petition. There is no plausible explanation for it. The mark-sheets dated 19.6.2011 and 6.6.2014 issued by the BSER at Ajmer recording date of Birth of Salim Khan as 8.7.1996 and of Shahrukh Khan as 2.7.1999 respectively are public documents of longstanding, lawfully obtained and have high probative worth. 12. However, be that as it may, it would be relevant to first address the maintainability of this petition in substance seeking a writ of quo warranto. In Kurapati Maria Das v. Dr. Ambedkar Sewa Samajan And Others (2009) 7 Supreme Court Cases 387, the Apex Court broadly held that the High Court could not exercise its jurisdiction under Article 226 of the Constitution of India and issue a writ of quo warranto against the election of RC as the remedy of an aggrieved party there against is within the statute under which the election in issue was held read with Article 329 (b) of the Constitution of India. The Apex Court yet despite noticing, however did not overrule its earlier judgment in the case of K. Venkatachalam v. A. Swamickan And Another (1999) 4 Supreme Court Cases 526, where a RC who had contested an election, by resort to fraud, despite not being eligible therefor was subjected to a writ of quo warranto. The Apex Court yet despite noticing, however did not overrule its earlier judgment in the case of K. Venkatachalam v. A. Swamickan And Another (1999) 4 Supreme Court Cases 526, where a RC who had contested an election, by resort to fraud, despite not being eligible therefor was subjected to a writ of quo warranto. The Apex Court in the case of K. Venkatachalam v. A. Swamickan And Another (supra) held that resort to the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India cannot be excluded, a candidate elected to public office without requisite eligibility cannot be allowed to continue and perpetuate fraud on law and the Constitution. In K. Venkatachalam v. A. Swamickan And Another (supra) the RC was not on the voters list of the constituency and yet contested and won there from. The law laid down in K. Venkatachalam v. A. Swamickan And Another (supra) expressing the court's anxiety to prevent fraud on the law and Constitution therefore still holds good despite Kurapati Maria Das v. Dr. Ambedkar Sewa Samajan And Others (supra). What the court while exercising its power to issue a writ of quo warranto has to see and ensure is that there is no bonafide dispute as to the RC's eligibility. This in my considered view is the obtaining legal position. 13. On the basis of unassailable documentary evidence available on record (Annexure-2 & 3) mark sheets issued by the BSER, Ajmer recording the date of birth of Salim Khan and Shahrukh Khan obviously as furnished by their parents including the RC, it is evident that RC's two sons Salim Khan and Shahrukh Khan were born after 27.11.1995 i.e. on 8.7.1996 and 2.7.1999 respectively. No ground at all obtains for the court to gloss over and overlook the DOB of two of the RC's seven children as recorded in public documents universally used as proof of date of birth. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 inter-alia provides that matriculation certificate where available, to the exclusion of all other evidences entails primary evidence for the determination of the age of aged child. The Apex Court in the case of Shah Nawaz v. State of UP (2011) 13 SCC 751 has held that an entry relating to the date of birth entered in the mark sheet is perfectly valid for determination of age. The Apex Court in the case of Shah Nawaz v. State of UP (2011) 13 SCC 751 has held that an entry relating to the date of birth entered in the mark sheet is perfectly valid for determination of age. Nor can the constitutional duty of this Court permit usurpation of Public office by an ineligible person on its jurisdiction being derailed in a facile manner on a mere assertion of contrary facts to set up a spectre of dispute. I am of the considered view that for this Court to eschew the exercise of its jurisdiction to issue a writ of quo warranto against a person prima-facie ineligible for holding public office, it has to be satisfied that a real and bonafide dispute as to the alleged ineligibility of the holder of public office obtains before it. The Apex Court in the case of M/S Iba Health (I) P. Ltd. v. M/S Info-Drive Systems Sdn. Bhd, (2010) 10 SCC 553 albeit in another context, has held that for a dispute to be made out, it should be found to be genuine, bonafide on substantial ground and not merely spurious, illusory, speculative and misconceived contra assertion. The principle however in my considered view is also apply to ascertain whether a real and bonafide dispute has been set up as to ineligibility alleged in a writ of quo warranto. I cannot however find any real and bonafide dispute in the present petition as to the RC's ineligibility to contest the election for the post of Sarpanch of Gram Panchayat, Tala deducible as the allegation of his ineligibility is from public documents of longstanding which are marks sheets of Salim Khan and Shahrukh Khan issued on 19.6.2011 and 6.6.2014 respectively by the Board of Secondary Education of Rajasthan at Ajmer wherefrom their date of birth is 8.7.1996 and 2.7.1999 after the cut off date (27.11.1995). As against the duplicate mark-sheets dated 19.6.2011 and 6.6.2014 issued by BSER, Ajmer rendering RC's ineligible to contest the election for the post of Sarpanch of Gram Panchayat, Tala, his contrary evidence on record in the form of birth certificates from Kiran Nursing Home is wholly unreliable as amongst other factors. No steps were taken for several years to have DOB of Salim Khan and Shahrukh Khan recorded in their Secondary School mark sheet corrected. No steps were taken for several years to have DOB of Salim Khan and Shahrukh Khan recorded in their Secondary School mark sheet corrected. I am of the considered view that the RC's weak and unreliable contra evidence is of no avail. No real dispute of fact is made out to warrant eschewing of the equitable extraordinary jurisdiction of this Court to issue a writ of quo-warranto. For a dispute of fact to obtain it necessarily has to be based on a substantial and reasonable defence, not sham, or spurious or a mechanical stone walling on assertion of fact contrary to one's own admitted fact recorded in a public document. I am not inclined in the circumstances to entertain the argument of Mr. R.N. Mathur, Senior Counsel assisted by Mr. PC Devanda for RC that the issue of the RC's sons' date of birth is a disputed question of fact and hence a writ of quo warranto cannot be issued. I am of the considered view that there is more than sufficient clinching material on the record of this Court to reasonably conclude that the RC's two sons were born after the cut off date i.e. 27.11.1995 at which time he had five other living children. That rendered him ineligible to contest the election to the post of Sarpanch of Gram Panchayat, Tala held in 2015. Yet he so did on false assertion in his nomination form and supporting affidavit and won. No doubt the Apex Court has held in Kurapati Maria Das v. Dr. Ambedkar Sewa Samajan And Others (supra) that no disputed question of fact can be addressed in a writ of quo-warranto. It is not conceivable that the Apex Court in the case of Kurapati Maria Das v. Dr. Ambedkar Sewa Samajan And Others (supra) intended such an approach in petitions seeking a writ of quowarranto on substantial clinching unquestioned and longstanding evidence. Contrarily as earlier held, in Kurapati Maria Das v. Dr. It is not conceivable that the Apex Court in the case of Kurapati Maria Das v. Dr. Ambedkar Sewa Samajan And Others (supra) intended such an approach in petitions seeking a writ of quowarranto on substantial clinching unquestioned and longstanding evidence. Contrarily as earlier held, in Kurapati Maria Das v. Dr. Ambedkar Sewa Samajan And Others (supra), the Apex Court did not overrule or refer to the judgment of a Coordinate Bench in the case of K. Venkatachalam v. A. Swamickan And Another (supra) holding that where underlying fraud in contesting an election under a statute was made out from un-impeachable evidence of sterling worth, a writ of quo-warranto could issue to the beneficiary of fraud restraining him from holding a public office which he holds only in the capacity of a usurper. 14. Contesting an election is neither a fundamental nor a common law right but a statutory one. To avail such statutory right the conditions of eligibility set out in the governing statute have to be fulfilled and when a right to contest an election under a statute is asserted, the conditions prescribed there under attach with full vigor. No deviation from the statute under which the election is contested can be visualized. In this view of the matter, one cannot hold the public office even if elected if such a person suffers from the very inception from statutorily prescribed eligibility. 15. Consequently, I would allow this petition and declare that the RC is a usurper of a public office having contested the election to the post of Sarpanch Gram Panchayat Tala, Tehsil Jamva Ramgarh, District Jaipur held in 2015 despite his ineligibility on the strength of false assertion and suppression of true facts in his nomination form. It is declared that the RC is thus not entitled to hold the post of Sarpanch of Gram Panchayat Tala, Tehsil Jamva Ramgarh, District Jaipur and he be removed there from forthwith. The respondents are directed to so do forthwith.