Rajasthan High Court - Jaipur
Bahadur Nath vs State Of Rajasthan And Ors. on 22 February, 2001
Equivalent citations: 2001(4)WLC289, 2007(3)WLN37
Author: N.P. Gupta
Bench: B.S. Chauhan, N.P. Gupta
JUDGMENT N.P. Gupta, J.
1. The instant writ petition has been filed for quashing the impugned order dated 24.10.2000 (Annx. 4), by which an enquiry under the provisions of Section 39(1)(a) read with Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter called "the Act, 1994") has been ordered; and also for quashing any action or order passed in pursuance thereof.
2. The facts and circumstances giving rise to this case are that petitioner had contested the Gram Panchayat election held on 4.2.2000 and was elected as Sarpanch of village Likhmadesar, Tehsil Sri Dungargarh, district Churu. One Mukun Nath, who had lost the election against the petitioner, filed an election petition on 28.2.2000, Inter alia, on the ground that the petitioner had more than two children and as the third child was born on 10.2.1999, i.e. after 27.11.1995, he was disqualified to contest the election Under Clause (1) of Section 19 of the Act, 1994. The said election petition No. 7/2000 (Annex. 1) is still pending in the Court of learned Civil Judge (Senior Division), Churu. The respondents issued a notice dated 1.9.2000 asking the petitioner to show cause as why action Under Section 39(1) (a) read of with Section 19(1) of the Act, 1994 be not taken against him on account of incurring the disqualification by having third child after the cut off date 27.11.1995, i.e. on 10.2.1999. Petitioner submitted his reply dated 26.9.2000 (Annx. 9), wherein he also contended that because of pendency of the election petition on the same ground, holding such as enquiry was not permissible. It has further been stated in the reply that he had three daughters and the same were born on 2.8.1992, 7.3.1994 and 15.10.1995, respectively. However, the respondents were not satisfied with the explanation furnished by the petitioner and vide impugned order dated 24.10.2000 (Annx. 4), the Enquiry Officer has been appointed. Hence this petition.
3. Mr. Manish Shishodia, learned Counsel for the petitioner, has mainly contended that in view of the provisions of Article 243-O(b) of the Constitution, the election of the petitioner can be questioned only by filing an election petition and by no other means and in case the election petition is pending before the competent Election Tribunal, the enquiry is without jurisdiction. Ms. Kusum Rao, learned Counsel for respondents and Mr. D.S. Rajvi, learned Counsel appearing for the intervenor, have vehemently opposed the aforesaid plea contending that there can be no bar to hold an enquiry even if the election petition is pending.
4. Thus, the controversy involved in this case lies in a very narrow compass as to whether it is open to the State Government to hold an enquiry on these issues during pendency of election petition.
5. Article 243-O(b) of the Constitution provides that the election of a duly elected member or Sarpanch of a Panchayat shall not be called in question except by an election petition presented to such Authority and in such a manner as is provided for by and under any law made by the Legislature of the State. Section 39(1)(a) of the Act, 1994 reads as under:
Cessation of Membership-Subject to the provisions of Section 40, a member of the Panchayati Raj Institution shall not be eligible to continue to be such member, if he:
(a) is or becomes subject to any of the disqualifications specified in Section 19; or....
6. Section 40 provides for a mode and forum for determining the disqualfications. Clause (1) of Section 19 provides for qualifications for election as a Panch or a Member and declares a person disqualified to contest election if he has more than two children. Proviso (iv) to Section 19 clearly contemplates that the third child should be born after 27.11.1995.
7. Thus, it is clear from the aforesaid Scheme of the Act that the election of a person can be challenged before the competent Election Tribunal as provided Under Section 43 on the prescribed ground available to him and within the prescribed period which includes the ground of disqualification on the date of filing the nomination paper. There may be possibility that the person might have incurred disqualification but election petition could not be filed within the limitation or a person incurs disqualification after expiry of the limitation for filing the election petition or he might have become disqualified to continue in office by incurring disqualification which he had not incurred on the date of election.
8. This Court considered the aspect in S.B.C.W.P. No. 519/2000, Magna Ram v. State of Rajasthan and Ors. decided on 28.4.2000 and dealt with the provisions of Sections 38 and 39 of the Act, 1994, which empowers State to remove and suspend the Members of the Gram Panchayat including the Chair-Person and repelled the contention that in case of disqualification, election petition was the only mode of challenging the election and it cannot be challenged by any other alternative mode including the writ petition.
9. This Court again considered a similar issue (the provisions analogous to the provisions of the Act, 1994) under the provisions of the Rajasthan Municipalities Act in S.B.C.W.P. No. 1544/2000, Rakesh Ghatiwal v. State of Rajasthan and Ors. decided on 26.6.2000 and after placing reliance upon the judgments of the Hon'ble Supreme Court in K. Venkatachalam v. A. Swamickan and Anr. ; and a Full Bench judgment of Punjab & Haryana High Court in Lal Chand v. State of Haryana , and held that in case of disqualification, election, petition is not the only mode of challening the election and it can be challenged even in writ petition.
10. The judgment of this Court in Rakesh Ghatiwal (supra) was affirmed by the Division Bench in D.B.C.S.A. No. 574/2000, decided on 18.12.2000, by observing that the submission made in such cases on behalf of the petitioner may be attractive but without any substance and a person, who succeeded in election by misrepresentation, cannot be permitted to raise the issue that such an inquiry is not permissible and he can be removed from the office only by way of election petition. In the inquiry, petitioner would have every right to lead evidence and prove his case but such an inquiry does not warrant any interference by the Court. Special Leave Petition against the said Judgment of the Division Bench dated 18.12.2000 has been rejected by the Hon'ble Supreme Court.
11. In Rabindra Kumar Nayak v. Collector, Mayurbhanj and Ors. , the Hon'ble Apex Court held that the remedy of filing election petition can be no bar to file application under the law for inviting a decision on the question of disqualification of a member/officer-bearer.
12. Such a course is permissible for the reason that the election petition could not be filed within the limitation or the person, who could file the election petition, was not interested but the question may arise that a person, who incurred disqualifications, was not competent to be an election petitioner, succeeded not only defrauding the Constitutional provisions and hitting at the foundation of democratic set up of the Government but might have also committed an offence Under Section 171-A of the Indian Penal Code. Clause (b) of Section 171-A, I.P.C. defines "electoral right" as the right of a person to stand or not to stand as, or to withdraw from being a candidate or to vote or refrain from voting at an election. Therefore, a person who, under the law, has incurred disqualification and lost the right to stand in the election, if succeeds by misrepresentation to contest the election and succeeds, commits an offence under the said provision.
13. In a given case, a person may incur disqualification subsequent to being elected, that disqualification may not be, in a particular circumstance, be a ground of election petition but he may not have a right to continue in office.
14. In Rakesh Ghatiwal (supra), this Court has placed reliance upon a large number of the judgments of the Hon'ble Supreme Court, while considering the issue whether a person, who has made a misrepresentation at the time of filing him nomination, can be held entitled to take a technical plea that he can not be removed by any means other than that of election petition, presuming that the allegations made in the complaint are true and in negative.
15. It is settled proposition of law that where an applicant gets an order office by making misrepresentation or playing fraud, such order cannot be sustained in the eyes of law. In Chengalvaraya Naidu v. Jagannath , the Hon'ble Supreme Court placed reliance upon an old judgment of English Court where in it has been held as under:
Fraud avoids all judicial acts ecclesiastical or temporal.
16. In Lazarus Estate Ltd. v. Besalay 1956 All. ER 349, the Court observed without equivocation that "no judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
17. In United India Insurance Co. Ltd. v. Rajendra Singh and Ors. , the Apex Court observed that "fraud and justice never dwell together" (Fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all its centuries.
18. In Andhra Pradesh State Financial Corporation v. M/s. Gar Re-rolling Mills and Anr. ; and State of Maharashtra and Ors. v. Prdbhu , the Hon'ble Supreme Court has observed that "in exercise of its equitable jurisdiction, the Writ Court should not act as to prepetration of legal fraud for the reason that Courts are obliged to do justice by promotion of goods faith. Equity is, also, known to prevent the law from the crafty evasion and subletties invented to evade the law."
19. Similar view has been reiterated in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi ; Union of India and Ors. v. M. Bhaskaran 1995 (Supp) 4 SCC 100, wherein the Apex Court held that dishonesty should not be permitted to bear the fraud and benefit to person who played fraud or made misrepresentation.
20. In Chiman Lal v. State of Rajasthan and Ors. , a Full Bench of this Court has held that party cannot be permitted to advance any argument if it has obtained any order/office in clear violation of statutory provisions and his action is alleged to be against the public policy or to have been obtained by misrepresentation, collusion or fraud because the action shall be void ab-initio. The Court observed as under:
The Common Law doctrine of public policy can be enforced wherever an action affects/offends public interest or where harmful result of permitting the injury to the public at large is evident. In such type of cases... power can be exercised by the Authority at any time either suo motu or as and when such orders are brought to their notice.
21. Moreso, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. "Subla fundamento credit opus"- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. Nullus commodum capere Potest De Injuria Sua Propria. (vide Union of India v. Maj. Gen. Madan Lal Yadav ). The violators of law cannot be permitted to urge that their offences cannot be subject matter of inquiry, trial or investigation. (Vide Lily Thomas v. Union of India and Ors. ).
22. Moreso, if a person not eligible to stand contested the election and for that purpose filed the nomination paper being disqualified under the provisions of the Act and the Rules and if he succeeded in the election by suppressing the material fact, he cannot claim any right arising out of his own wrong. (Juri Ex Injuria Non Oritar). Succeeding in the election petition by making such a misrepresentation may amount to moral turpitude. (Vide Mangali v. Chhakkital AIR 1963 All. 227; Lachuram v. Inderlal 1966 ILR (Raj.) 1168; Buddha Pitai v. Sub-Divisional Officer, Mabihabad, Lucknow ; and Pawan Kumar v. State of Haryana ).
23. In Allahabad Bank and Anr. v. Deepak Kumar Bhola , the Hon'ble Supreme Court placed reliance on a judgment of Allahabad High Court in Baleshwar Singh v. District Magistrate and Ors. , wherein it had been held as under:
The expression 'moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude but it would be so if it discloses vileness or depravity in the doing of any private or social duty which a person owes to his fellowman or to the society in general. If, therefore, the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary Rules or duty between man and man.
24. Thus, in such a case, where a person has made misrepresentation while filing the nomination paper and contested the election and succeeded, he cannot be permitted to hold the post.
25. At this stage, petitioner cannot be heard on veracity of the allegations made against him for the reason that it is a matter of inquiry. If the said legations are taken to be true on its face value, undoubtedly it can be held that he has committed an offence Under Section 171-A I.P.C.
26. Rule 25 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short, "the Rules, 1994") provides for presentation of a nomination paper by any person qualified Under Section 19 for election. Rule 27 further provides for hearing the objection regarding disqualification of a candidate in election, Rule 80 provides for a manner of challenging an election under the Act. The ground which can be taken in the election petition include, Inter alia, the issue of disqualification of the candidate. Rule 81 provides that an election petition can be filed only by a candidate at such election.
27. The aforesaid Scheme of the Rules makes it "clear that a person filing the nomination paper should be qualified as mandatorily required under the provisions of Section 19 of the Act, Further, election petition can be filed only by a person who had been a candidate in the election. An election petitioner can also take the ground that the returned candidate had incurred disqualification prior to contesting of the election. Under Rule 87, the Election Tribunal has power to dismiss the election petition or declare the election of the returned candidate to be void and further to declare the election petitioner or any other candidate to have been duly elected. The aforesaid provisions do not cover the situation where the person has incurred disqualification subsequent to contesting the election and the only enabling provision in such a case is Section 39 of the Act, 1994. Clause (i) of Sub-section (1) of Section 39 provides that a person loses the eligibility to continue to be a member on incurring the disqualification specified in Section 19.
28. In Gadde Venkateswara Rao v. Government of Andhra Pradesh ; and Maharaja Chintamani Sarannath v. State of Haryana and Ors. , the Hon'ble Supreme Court held that even if the order impugned is found to be bad/without jurisdiction, the Writ Court may not interfere if "setting aside the order amounts to reviving an invalid order." In the election petition pending before the Competent Tribunal, large number of grounds have been taken. Inter alia, that the election petitioner and the present petitioner (returned candidate) had secured equal number of votes, i.e. 734, and the returned candidate was declared elected by draw of lots illegally. Election petitioner has urged that his five votes had illegally been rejected and, therefore, he was also prayed for inspection and recounting of votes. For one reason or the other, if the election petitioner succeeds only on this count or does not press the issue of disqualification and does not lead evidence on this issue or does not press the election petition itself, the consequence will be disasterous and would amount to tarpedoing the democratic system. In the election petition, State is not a party. State represents the collective interest of the society, therefore, it has every right to examine that the person, who is elected, should have been a person qualified to contest the election. Therefore, on the ground that the election petition is pending, the State Government cannot be restrained to hold an inquiry on the issue of alleged disqualification.
29. The case requires consideration from entirely a different angle also. A person having no right in the issue is entitled to maintain the writ of quo warranto before this Court. He may not be an election candidate against the petitioner and may not be a party to the election petition. Can his right to maintain the writ of quo warranto before this Court be defeated merely because an alternative remedy of removing the petitioner by election petition is available? The said writ can be issued in case a person is found to hold the public office as a member of any statutory body illegally or not being qualified for the same. (Vide Shyabuddinsab Mohidinsab Akki v. Gadag-Betgeri Municipal Borough and Ors. ; Baijanath v. State of U.P. AIR 1965 SC 151; Haran v. State of West Bengal. ; and Venkataraya v. Sivarama ).
30. In case the petitioner was not eligible to contest the election, he cannot be permitted to hold the office for the reason that his entering into the office was in flagrant violation of the statutory requirement which cannot be cured by any means. A Constitution Bench of the Hon'ble Supreme Court, in University of Mysore v. CD. Govindarao , observed as under:
Broadly stated, the quo warranto proceedings affording a judicial inquiry in which any person holding an independent substantive public office or franchise or liberty is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of office had no valid title to it issuing a writ of quo warranto ousts him from that office... if the jurisdiction of the Court to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it.
31. Similar view has been reiterated by the Constitution Benches of the Hon'ble Supreme Court in M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. ; and Statesman (Pvl) Ltd. v. H.R. Deb and Ors. ).
32. In a case of quo warranto, even the question of limitation, delay or laches becomes immaterial for the reason that if the appointment/election to an office is illegal, every day the office-bearer acts in that office, a fresh cause of action arises and the petition for quo warranto is maintainable for challenging his very right to act on the post and the same can be questioned. To maintain such a writ, it is not necessary for the petitioner to claim a relief for himself. Any person, by way of writ, can challenge the right of a person to sit as a Member in Gram Panchayat/Municipal Board or State Legislature or Parliament.
33. Writ lies to test the validity of the election to a public office or in a statutory body and in case Court is satisfied that election had been held on the basis of an electoral roll prepared in contravention of the statutory provisions or the electoral roll itself was illegal or the person contesting the election stood disqualified, the Court should not hesitate in asking the person to vacate the office because he cannot be permitted to usurp the public office.
34. Thus, in view of the above, it cannot be held that merely because of pendency of the election petition, the impugned order dated 24.10.2000 (Annx. 4) could not have been issued. The case is squarely covered by the judgment of this Court in Rakesh Ghatiwal (supra) which stood approved by a speaking and reasoned order of the Division Bench in Special Appeal, against which the Hon'ble Supreme Court has rejected the Special Leave Petition. Therefore, I see no reason to take a view contrary to taken therein.
35. Petitioner is devoid of any merit and accordingly dismissed. The respondents are directed to conclude the inquiry expeditiously, preferably within the period of two months from the date of filing the certified copy of the order before respondent No. 1. Petitioner is directed to co-operate with the inquiry and in case he does not do so, the Enquiry Officer may proceed ex-parte after recording the reasons. Ms. Kusum Rao, learned Counsel for respondents, shall place before him within the period of ten days from today. A copy of this judgment and order shall be given to her on usual charges within the period of three days. In the facts and circumstances of the case, there shall be no order as to costs.