Rajasthan High Court - Jaipur
Manphool Raigar vs State (Panchayati Raj Dep )Ors on 20 September, 2017
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No.3363/2016
Manphool Raigar S/o Shri Chanda Ram Raigar B/c Raigar, Aged
About 35 Years, Village and Post Badhal, Tehsil Kishangarh
Renwal, District Jaipur.
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayat Raj Department Government of
Rajasthan, Secretariat, Jaipur.
2. Deputy Secretary Rural Development and Panchayati Raj
Department, Government of Rajasthan, Secretariat, Jaipur.
3. Divisional Commissioner, Jaipur Division, Jaipur.
4. District Collector, Jaipur.
5. Sub Divisional Magistrate, Sambharlake, District Jaipur.
6. Development Officer, Panchayat Samiti Sambharlake, District
Jaipur.
7. Sumitra Devi W/o Shri Ramdev D/o Shri Mukha Ram Jat B/c
Jat, Aged About 30 Years, Village Post Badhal, Tehsil Kishangarh
Renwal, Panchayat Samiti Sambharlake, District Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Ramavtar Bochalya.
For Respondent(s) : Mr.Anurag Sharma, AAG assisted by
Mr.Krishnaveer Singh.
Mr.Naveen Dhuwan.
_____________________________________________________
HON'BLE MR. JUSTICE ALOK SHARMA
Order
20/09/2017
This petition for a writ of quo warranto has been filed by the
petitioner against the respondent-Sumitra Devi, elected Sarpanch
of Gram Panchayat Badhal, Panchayat Samiti Sambharlake,
District Jaipur in the election held on 24.01.2015.
The foundation of this petition is that in an administrative
enquiry held against the respondent-Sumitra Devi by the SDO,
District Jaipur leading to the report dated 15.07.2015 it was found
that she did not have the requisite minimum educational
qualification of Class-VIII pass required under Section 19(t) of the
Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994')
to contest the election on the post of Sarpanch. And for this
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[CW-3363/2016]
conclusion reliance placed by respondent-Sumitra Devi on a
purported transfer certificate issued by the Principal of the
Government Upper Primary School Bhopatpura, Srimadhopur,
Sikar purportedly on 15.07.1995 was held to be no avail as the
said transfer certificate was found to be forged and fabricated.
Counsel for the petitioner submitted that in this view of the
matter, the respondent-Sumitra Devi is an usurper of the public
office of Sarpanch and has no authority to continue holding the
said post. Resutlatntly, appropriate writ of quo warranto be issued
directing that she ceases to hold the aforesaid office of Sarpanch
of Gram Panchayat Badhal, Panchayat Samiti Sambharlake,
District Jaipur. For this reliance has been placed on (1.) Sameera
Bano (Smt.) vs State Of Rajasthan And Ors. reported in
RLW 2007 (2) Raj 1674, (2.) K.Venkatchalam Vs. A.
Swamickan And Another, (1999) 4 SCC 526, (3.) Sahi Ram
Vs. The State of Rajasthan & Others reported in SBCWP
No.16717/2015.
Per Contra, Mr.Anurag Sharma, AAG appearing with
Mr.Krishnaveer Singh counsel for the respondent-State submitted
that indeed an inquiry was held by the SDO, District Jaipur
wherein it was found that the transfer certificate dated 15.07.1995
obtained by the respondent-Sumitra Devi purporting to her having
passed Class-VIII from the Government Upper Primary School
Bhopatpura, Srimadhopur, Sikar was false and fabricated. Mr.
Anurag Sharma, AAG however submitted that the hands of the
State Government are tied from taking any adverse action thereon
against the respondent and removing her from the part of
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[CW-3363/2016]
Sarpanch of Gram Panchayat Badhal, Panchayat Samiti
Sambharlake, District Jaipur in view of the judgment of this Court
in the case of Sameera Bano (Smt.) vs State Of Rajasthan
And Ors. reported in RLW 2007 (2) Raj 1674 where it has
been held that in respect of a pre-election disqualification a duly
elected Sarpanch can be removed only by resort to an election
petition under Section 43 of the Act of 1994 and Rule 80 of the
Rajasthan Panchayati Raj (Election) Rules, 1996 or otherwise by
way of writ of quo warranto issued by the Court. Mr. Anurag
Sharma, submitted that however a writ of quo warranto cannot
address disputed question/s of fact. The respondent disputes the
conclusions of the administrative enquiry against her in this
petition. Hence despite the inquiry report dated 15.07.2015 under
the hands of the SDO, Jaipur forwarded to the District Election
Officer, she cannot be peremptorily removed by the State
Government without the Court's direction. It was submitted that it
is also indeed true that a First Information Report had been filed
against the respondent-Sumitra Devi with regard to her
fraudulently contesting the election on the basis of a forged and
fabricated transfer certificate, and on investigation thereon the
police have challaned her for offences under Sections 420, 467,
468, 471, 193, 198, 200 and 120-B IPC before the jurisdictional
criminal court. Yet charges have not been framed against the
accused for which reason the State Government is not empowered
even to suspend her under its powers with reference to Section
38(4) of the Act of 1994.
On a query by the court, Mr.Anurag Sharma submitted that
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[CW-3363/2016]
subsequent to the filing of a challan by the Police, the Panchayati
Raj Department has little role to play in the criminal proceedings
as the matter then rests between the court, the public prosecutor
and the accused. He hastened to add that in the event of charges being framed against the respondent-Sumitra Devi and the fact being brought to the notice of the State Government, requisite steps as warranted in law will be considered and appropriate orders thereafter passed.
Mr.Naveen Dhuwan counsel for the respondent-Sumitra Devi submitted that the writ of quo warranto is completely misdirected inasmuch as the issue as to whether the respondent-Sumitra Devi relied upon a forged and fabricated transfer certificate evidencing her having passed the Class-VIII examination to contest election of the post of Sarpanch is a seriously disputed question of fact. He submitted that the respondent-Sumitra Devi did indeed attend a recognized school and passed the Class-VIII therefrom in the year 1995 as reflected from the transfer certificate dated 15.07.1995. Counsel relied upon the judgment of the Apex Court in the case of Kurapati Maria Das Vs. Dr.Ambedkar Sewa Smajan and Others, (2009) 7 SCC 387 to contend that an election to public office under statute cannot ordinarily be called in question except by way of an election petition as provided for under the statute itself in view of Article 243-O of the Constitution of India. He however admitted that in the case of K.Venkatchalam Vs. A. Swamickan And Another, (1999) 4 SCC 526 a writ of quo- warranto was entertained by the High Court against a returned candidate but submitted that the said case turned on its own (5 of 8) [CW-3363/2016] peculiar facts where the issue of the ineligibility of the returned candidate was beyond question inasmuch as his name did not find place in the voter list of the constituency to which he was elected. And hence there could have not been any dispute of fact whatsoever in that case. This is however not so in this petition where the respondent-Sumitra Devi denies having used a forged and fabricated T.C. to contest the election and asserts its genuineness.
Mr.Dhuwan submitted that the judgment of this court in the case of Sahi Ram Vs. The State of Rajasthan & Others reported in SBCWP No.16717/2015 relied by the counsel for the petitioner does not attract to the facts of the instant case. In that case the school from which the returned candidate claimed to have passed the Class-VIII examination was found on affidavit of an officer of the Department of Education, Government of Rajasthan to be non-existent. Not so in the instant case. Nothing on record of the petition falsifies the returned candidate defences to the extent of rendering it a sham. He submitted that the inquiry report submitted by the SDO to the District Election Officer was on a fact finding exercise in which the respondent--Sumitra Devi was not required to participate. Such ex-parte enquiry is of no consequence and has no conclusiveness capable of being subscribed thereto, counsel submitted. Further even a charge in the criminal case against the respondent Sarpanch has not been framed and in any event her guilt or innocence in respect of offences alleged has to await trial.
Heard. Considered.
(6 of 8) [CW-3363/2016] It is indeed true that there is an inquiry report of the SDO in terms of his letter dated 15.07.2015 to the District Election Officer which states that the transfer certificate dated 15.07.1995 relied upon by the returned candidate as proof of having passed the Class-VIII examination to contest election of Sarpanch was forged and fabricated. That report however has no statutory foundation and cannot entail either conclusiveness binding on the respondent-Sarpanch or entailing the cancellation of the transfer certificate issued to her by the Government Upper Primary School Bhopatpura, Srimadhopur, Sikar. It is also no doubt true that on a First Information Report filed against the respondent, following investigation she has been challaned for offences under Sections 420, 467, 468, 471, 193, 198, 200 and 120-B IPC. But admittedly charges against her have still not been framed. And until she is convicted no conclusion as to forgery and fabrication by her can obtain.
Consequently, there is no definitive material before this court to hold, (no doubt how suspicious might be the respondent's transfer certificate dated 15.07.1995) that the respondent-Sumitra Devi's TC from Government Upper Primary School Bhopatpura, Srimadhopur, Sikar issued on 15.07.1995 evidencing her having Class VIII was forged and fabricated. Her defence cannot be altogether dis-counted at this stage. That has yet to be established by well defined processes of law.
The Apex Court in the case of Kurapati Maria Das Vs. Dr.Ambedkar Sewa Smajan and Others (supra) has held that the jurisdiction of a court to issue a writ of quo warranto cannot (7 of 8) [CW-3363/2016] be exercised on disputed questions of fact. In the case of K.Venkatchalam Vs. A. Swamickan And Another (supra) the Apex Court has indeed held that a writ of quo warranto against a returned candidate could issue. That case however turned on its own peculiar fact inasmuch as the returned candidate therein did not even have his name recorded in the voter list of the constituency wherefrom he was elected. There could not be any dispute of fact in such a case. The case was open and short. Similarly in Sahi Ram Vs. The State of Rajasthan & Others (supra) there was clinching proof of the claim of Class-VIII pass being palpably false inasmuch as the School wherefrom the returned candidate claimed to have passed was non-existent beyond a shadow of doubt. No such conclusive material is available in the instant case.
Consequently, I am of the considered view that in the facts of the case a writ of quo warranto against the respondent-Sumitra Devi, the elected Sarpanch of Gram Panchayat Badhal, Panchayat Samiti Sambharlake, District Jaipur cannot issue. This is however not a finding to the respondent-Sarpanch's benefit in the cirminal trial against her on the issue. The Trial Court will be free to come to its own conclusions on the evidence before it.
However taking into consideration the overall facts of the case and noticing that a challan against the returned candidate has been filed before the Jurisdictional Magistrate for offences under Section 420, 467, 468, 471, 193, 198, 200 and 120-B IPC, I would direct the Trial Court to take a decision one way or the other on framing of charges against the respondent--Sumitra Devi (8 of 8) [CW-3363/2016] within a period of two months from the date of presentation of a certified copy of this order. The Trial be concluded within a period of 12 months. No adjournment without just cause and except in unavoidable circumstances be granted.
The respondent-State Government is directed to ensure that a copy of this order is placed before the concerned trial court (through the public prosecutor) where respondent-Sumitra Devi have been challaned.
The petition is accordingly dismissed.
(ALOK SHARMA) J.
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