Sahi Ram vs State (Panchayati Raj Dep )Ors on 31 May, 2017

[Cites 9, Cited by 1]

Rajasthan High Court - Jaipur

Sahi Ram vs State (Panchayati Raj Dep )Ors on 31 May, 2017

_____________________________________________________ HON'BLE MR. JUSTICE ALOK SHARMA JUDGMENT Date of Judgment:- May 31st, 2017 REPORTABLE The petitioner's case is that the respondent No.5 Smt. Sarita Devi Saini, the returned candidate (hereinafter 'the returned candidate') despite her ineligibility to hold the post of Sarpanch of Gram Panchayat Mawanda R.S., Panchayat Samiti Neem Ka Thana, District Sikar under the Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994') fraudulently contested the election therefor on the basis of a forged mark sheet purporting to her having passed Class VIII. Having won the said election she now (2 of 15) [CW-16717/ 2015] holds the post of Sarpanch as a usurper a public office. Though differently worded the prayer in the petition therefore effectively is that in the circumstances a writ of quo warranto be issued, the returned candidate be restrained from continuing to usurp public office as Sarpanch and the State be directed to remove her from the said post.

The petitioner claims to be a registered voter of the Ward No.3 Gram Panchayat Mawanda R.S., Panchayat Samiti Neem Ka Thana, District Sikar. He submits that the returned candidate despite being ineligible but fraudulently relying upon a forged Class VIII mark-sheet which purportedly made her fulfill the requisite qualification contested the election to the post of Sarpanch and having won it, presently holds the post. It has been submitted that the petitioner not having contested the said election was not entitled in terms of Section 43 of the Act of 1994 and Rule 80 of the Panchayati Raj (Election) Rules, 1994 (hereinafter 'the Rules of 1994') to lay a challenge to the election of the returned candidate by way of an election petition. Yet the petitioner cannot be without a legal remedy as was held in the case of K.Venkatchalam Versus A. Swamickan And Another, (1999) 4 Supreme Court Cases 526, wherein the Apex Court held that if underlying fraud informed the election of a member of legislative assembly, a writ of quo warranto against the elected candidate was maintainable within the extraordinary equitable jurisdiction of a High Court under Article 226 of the Constitution of India. It was submitted that in the instant case the returned candidate purports to have passed her Class VIII Examination (3 of 15) [CW-16717/ 2015] from Vishnu Public School Renwal, Panchayat Samiti Sambhar, District Jaipur in the year 1985-86 when in fact no such school ever existed at the relevant time rendering her mark-sheet of Class VIII palpably forged and fabricated. Consequently, the returned candidate lacking in requisite eligibility statutory under Section 19 (t) of the Act of 1994 to contest election to the post of Sarpanch in terms of her educational qualification, has no right to continue to hold the said public office. Yet so continues to do. It was submitted that the Vishnu Public School Samiti Muldali P.S. Sambhar, District Jaipur which runs the Vishnu Public School Muldali not Renwal was in fact constituted as a Society only in the year 1998-99 as per its registration certificate bearing No.400- Jaipur-1998-99 issued by the Registrar Societies which has been filed as Annexure-2 to the writ petition. It was further submitted that the said Vishnu Public School Muldali was granted provisional recognition only commencing with the Academic Year 2000-2001 as evident from the order dated 27.08.2000 issued by the District Education Officer, Elementary Education (II) Jaipur. And the returned candidate claim of passing Class VIII from the Vishnu Public School, Renwal in 1985-86, is thus evidently false.

Reply to the petition has been filed by the respondent-State as also the Returning Officer, Sikar. Objection to the maintainability of a writ of quo warranto in election matters has been taken on the strength of the judgment of the Apex Court in the case of Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others, (2009) 7 Supreme Court Cases 387, wherein it has been stated to be held that an election under a (4 of 15) [CW-16717/ 2015] statute cannot be called in question except by way of an election petition as provided for under the statute itself in view of Article 243-ZG of the Constitution of India. It was submitted that an election petition against the election of the returned candidate as Sarpanch was indeed filed by one Smt. Nirmala Devi before the District Judge, Sikar on the ground of the returned candidate having contested the election on the basis of a forged mark-sheet of the Class VIII and hence not having the requisite qualification for contesting the election in terms of Section 19 (t) of the Act of 1994. The said election petition was dismissed by the trial court under order dated 14.07.2016 on the ground of limitation. It has also been submitted that the issue of the returned candidate's educational qualification would obviously be a disputed question of fact as she claims to be duly qualified. And this cannot be addressed in a writ of quo warranto. It has however been admitted that under the instruction of SDO on a complaint received, a fact finding enquiry was conducted by the Block Development Officer, Panchayat Samiti Neem Ka Thana, District Sikar in regard to the returned candidate's educational qualification. Therein it was found that no school by the name of Vishnu Public School existed in Renwal in the year 1985-86 at the time the returned candidate claimed to have passed Class VIII therefrom. Against that stand, one Ashok Dhayal on oath by way of an affidavit states that the returned candidate had studied in the Vishnu Public School, Renwal even though the said assertion is not buttressed by any documents as they were allegedly destroyed in a fire. It has been submitted that issue of the (5 of 15) [CW-16717/ 2015] returned candidate being Class VIII pass from the Vishnu Public School Renwal in 1985-86 or not and passing it, is thus not an open and shut case permitting no argument. And an emphatically disputed question of fact, as it would be, cannot be addressed in a writ of quo warranto.

In reply to the petition, the returned candidate has also questioned the maintainability of the petition on the ground that a writ of quo warranto is not maintainable for questioning an election of a returned candidate. He submits that even otherwise the allegation with regard to her contesting the elections on the basis of a forged mark-sheet of Class VIII is absolutely false. The further defence is that in terms of Rule 23 of the Rajasthan Panchayati Raj Rules, 1996 no enquiry into the purported pre- election disqualifications of a returned candidate is permissible and consequently the report dated 09.06.2016 prepared by the BDO Panchayat Samiti Neem Ka Thana, District Sikar finding that there was no school in the name of Vishnu Public School in Renwal in 1985-1986 is of no consequence as the enquiry was without jurisdiction, nonest and even without providing her an opportunity of hearing in gross contravention of principle of natural justice. It has been submitted that the returned candidate studied in Vishnu Public School earlier running in Renwal which subsequently appears to have been shifted to Village Muldali after the returned candidate had passed Class VIII examination therefrom. It has been submitted that provisional recognition to the Vishnu Public School Muldali in the year 2001-2002 was of no event inasmcuh as the school was running prior thereto in Renwal even in 1985- (6 of 15) [CW-16717/ 2015] 1986 where the returned candidate passed it as a regular student. It has been emphatically submitted that prior to the coming into force of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter 'the Act of 2009') there was no necessity of recognition of schools running upto Class VIII. It was finally submitted that if at all the petitioner seeks a declaration that the returned candidate did not pass Class VIII from the Vishnu Public School Renwal in 1985-86 it is for him to file a suit for an appropriate declaration before a competent Civil Court. That relief cannot be granted directly or indirectly in a petition for a writ of quo warranto. It has been prayed that in the circumstances, the petition be dismissed.

On the directions of this Court, one Mr. Hari Prasad Pipraliya, Additional Director, Department of Elementary Education, Bikaner has filed an additional affidavit and stated that following the interim direction on 28.04.2017 issued by this Court, the record pertaining to recognition of elementary/upper primary private schools existing upto 20.06.1987 in District Jaipur was obtained. Thereunder only one private school recognized by the State Government was functioning in District Jaipur which was being run in the name and style of Adarsh Vidya Mandir. It has been submitted that as per the list of recognized elementary/upper primary private schools in District Jaipur, Vishnu Public School, Renwal did not exist in Renwal during the year 1985-86. (Renwal was part of Jaipur District in 1985-1986).

Counsel for the petitioner and the respondents have reiterated the averments in the pleadings in their arguments.

(7 of 15) [CW-16717/ 2015] While Mr. Hanuman Choudhary appearing for the petitioner has relied upon the judgment of the Apex Court in the Case of K.Venkatchalam Versus A. Swamickan And Another (supra) in support of the maintainability of a petition for a writ of a quo warranto against a returned candidate contesting and winning on underlying fraud and without eligibility, Mr. Anurag Sharma, AAG appearing for the State and Mr. J.P. Goayl Senior Counsel assisted by Mr. Rajneesh Gupta appearing for the returned candidate have placed strong reliance on the judgment of the Apex Court in the case of Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra) emphatically submitting that a writ of quo warranto cannot be invoked and is not maintainable for setting aside the election of a returned candidate.

Heard. Considered.

It would be relevant to first address the maintainability of this petition in substance seeking a writ of quo warranto. In Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra), 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 a returned candidate as the remedy of an aggrieved party thereagainst 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 however did not overrule its earlier judgment in the case of K.Venkatchalam Versus A. Swamickan And Another (supra) where a returned candidate who had contested an election by resort to fraud despite not being eligible (8 of 15) [CW-16717/ 2015] therefor was subjected to a writ of quo warranto as the remedy of laying an election petition under the relevant statutory provisions could not availed for limitations of locus standi under the statute governing the election petitions. The Apex Court in the case of K.Venkatchalam Versus 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 in such situation and a candidate elected to public office without requisite eligibility cannot be allowed to continue. In K.Venkatchalam Versus A. Swamickan And Another (supra) the returned candidate was not on the voters list of the constituency and yet contested and won therefrom. The law laid down in K.Venkatchalam Versus A. Swamickan And Another (supra) therefore still holds good despite in Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra). And thus where no bonafide dispute as to the returned candidate's eligibility is made out before the court having jurisdiction under Article 226 of the Constitution of India--a writ of quo warranto against a returned candidate is maintainable. This in my considered view is the obtaining legal position.

The issue therefore in the instant petition would necessarily be as to whether the returned candidate's educational qualification of having passed class VIII in the academic year 1985-86 from the Vishnu Public School Renwal is a dispute bonafide made out from the pleading of the parties to the petition.

Before addressing this moot question it would be appropriate to detail the statutory background in which it arises. Section 19 (t) of the Act of 1994 provides that every person registered as a voter (9 of 15) [CW-16717/ 2015] 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, in the case of a Sarpanch of a Panchayat other than in the schedule area has not passed Class VIII from a school (admittedly the Gram Panchayat Mawanda R.S., does not fall in the schedule area). Clause ii of Explanation III to Section 19 aforesaid provides that the word "school" in Section 19(t) shall have the same meaning as assigned to it in Section (n) of Section 2 of the Act of 2009. Section 2 (n) aforesaid defines a school to mean any recognized school imparting elementary education and includes--

"(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;"

Election in issue to the post of Sarpanch was admittedly held in the year 2015 when Section 19 (t) of the Act of 1994 as also Section 2 (n) of the Act of 2009 were in full play. The returned candidate thus had to necessarily have, when she contested, the requisite qualification of Class VIII pass from a school within the meaning of Section 2 (n) of the Act of 2009. That meant Class VIII pass from a school recognized by the State Government.

(10 of 15) [CW-16717/ 2015] Whether the returned candidate has such a qualification ? The petitioner alleges, she at all did not as what of a qualification of Class VIII pass from a school recognized by the State Government. This as Vishnu Public School Renwal was not in fact at all existent in 1985-1986 when the returned candidate claims to have passed therefrom. The returned candidate's case is that as she had passed Class VIII from Vishnu Public School in 1985-1986 when the Act of 2009 was obviously not operating, the necessity of Class VIII pass from a recognized school was not relevant to her.

I am afraid that the defence of the returned candidate is completely misdirected.

This for the reason that candidates to the post of Sarpanch in law are required to be eligible including on prescribed educational qualifications on the date of the Election. In 2015 when the election for Sarpanch was held, the minimum educational qualification therefore was Class VIII pass from a school recognized by the State Government. Assuming that the election petitioner did pass Class VIII from the Vishnu Public School, Renwal his qualification may be valid by itself for being admitted to Class IX but was no so for contesting the election for the post of Sarpanch in the year 2015. Contesting an election is neither a fundamental nor a common law right but a statutory right. 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 thereunder attach with full vigor. No deviation from the (11 of 15) [CW-16717/ 2015] statute under which the election is contested can be visualized. Class VIII pass from a School as required by Section 19(t) of the Act of 1994 read with Section 2(n) of the Act of 2009 necessarily can only mean a school recognized by the State Government no matter which of the four categories set out in Section 2(n) of the Act of 2009 it may fall. The recognition of the School which issued the Class VIII certificate by the State Government is a sine qua non for furnishing the eligibility required under Section 19(t) of the Act of 1994. to contest as election to the post of Sarpanch. And even where a candidate may have passed Class VIII at any time before the coming into force of Section 19 (t) of the Act of 1994, unless the school wherefrom Class VIII was passed was a recognized School, it cannot furnish the eligibility on educational qualification to contest the election to the post of Sarpanch. The intention of Section 19 (t) of the Act of 1994 was not to create a classification between a homogeneous category of Class VIII pass students rendering those who did so before Section 19 (t) came into force eligible despite the concerned school not being recognized by the State Government and rendering those who so did not have Class VIII pass from an un-recognized school after Section 19 (t) coming into force, ineligible. On that interpretation, I am of the considered view that in terms of the returned candidate's own admission that her alleged School (Vishnu Public School) was not recognized by the State Government where she purportedly passed in 1985-86, she was not eligible to contest the election to the post of Sarpanch and having yet contested and won it, a writ of quo warranto is liable to issue against her as a usurper (12 of 15) [CW-16717/ 2015] of public office. She cannot hold the public office without having the mandatorily prescribed statutory eligibility of the requisite educational qualification.

Besides the above, I also do not find from the pleadings of the parties to this petition that there is any real disputed question of fact as to the returned candidate's, lack of Class VIII pass to obstruct the jurisdiction of this Court to issue a writ of quo warranto. From the facts of the case it transpires that the Vishnu Public School Samiti, Muldali (not Renwal) Panchayat Samiti Shambharlake, District Jaipur which runs the Vishnu Public School Muldali was registered by the Registrar societies with No.400- Jaipur-1998-99 only in the year 1998-99. The said school was granted provisional recognition commencing the academic year 2000-2001 for a period of three years under the hand of the District Education Officer Elementary-II on 27.08.2000. The Additional Director, Department of Elementary Education one Hari Prasad Pipraliya in his additional affidavit filed before this Court on 16.05.2017 has categorically stated that from the record of the recognition to elementary/upper primary private schools existing upto 20.06.1987 in District Jaipur, the only recognized elementary and upper primary private school in District Jaipur which included Renwal was run in the name and style of Adarsh Vidya Mandir and as per the record of the department, no school by the name of Vishnu Public School existed in Renwal, District Jaipur during the year 1985-86, wherefrom where the returned candidate claimed to have passed Class VIII in the academic year 1985-86. The mark-sheet of Class VIII from the Vishnu Public School in (13 of 15) [CW-16717/ 2015] academic year 1985-86 relied upon by the returned candidate at her election (Annexure-2 to the petition) is not on a format with School's name printed nor is it dated. The mark-sheet only has a stamp of the purported Vishnu Public School Renwal. As against the aforesaid material/evidence on record impugning the genuineness/authenticity of the returned candidate's mark-sheet of Class VIII from Vishnu Public School, she has not brought on record any defence of any probative worth which is substantial, seemingly genuine or bonafide.

I am of the considered view that from the returned candidate's bald denial of the substantial averments of the petitioner buttressed by the additional affidavit of Hari Prasad Pipraliya no dispute of fact is made out to warrant eschewing of the equitable extraordinary jurisdiction of this Court to issue a writ of quo-warranto. No doubt the Apex Court has held in Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra) that no disputed question of fact can be addressed in a writ of quo-warranto. But 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 founded on bare denial. It is not conceivable that the Apex Court in the case of Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra) intended such an approach in petitions seeking a writ of quo- warranto on substantial material/ evidence in support thereof. Contrarily as earlier held, in Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra), the Apex Court did not overrule or refer to a larger Bench the judgment of a (14 of 15) [CW-16717/ 2015] Coordinate Bench in the case of K.Venkatchalam Versus 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 only in the capacity of a usurper. Even otherwise the Apex Court in the case of M/S Iba Health (I) P. Ltd. Versus M/S Info-Drive Systems Sdn.Bhd, (2010) 10 SCC 553 has held that for a Court to notice of a purported dispute, the dispute should be found to be genuine, bonafide on substantial ground and not merely spurious, illusory, speculative and misconceived. I cannot therefore find any dispute in the present petition as to the returned candidate's lack of Class VIII pass from a school recognized by the Govt.

Consequently I am not inclined to entertain the argument of Mr. Anurag Sharma, AAG for the State and Mr. J.P. Goyal Senior Counsel assisted by Mr. Rajneesh Gupta for the returned candidate that the issue of the returned candidate's educational qualification to contest the election to the post of Sarpanch Gram Panchayat Mawanda R.S., Panchayat Samiti Neem Ka Thana, District Sikar in the year 2015 is a disputed question of fact which cannot be addressed in a writ of quo-warranto and if so done would entail this Court acting in excess of its jurisdiction. I am of the considered view that there is more than sufficient material on the record of this Court to conclusively conclude that the Vishnu Public School, Renwal, from where the returned candidate purports to have passed his Class VIII Examination in 1985-86 did not at all (15 of 15) [CW-16717/ 2015] exist at the relevant time and in any event on the returned candidate's own admission was not recognized by the State Government. The application of the returned candidate to cross examination the Additional Director, Department of Elementary Education, Bikaner, the petitioner, and all others who have issued documents relied upon by the petitioner in this petition is the last desperate attempt to stall the final adjudication of this petition. Besides the prayer in the application i.e. to cross examine the petitioner and several others is general and without specifics of the purpose. In the circumstances, I am inclined to dismiss the said application as vague and frivolous. It is so.

Consequently, I would allow this petition and declare that the returned candidate is a usurper of a public office having contested the election to the post of Sarpanch Gram Panchayat Mawanda R.S., Panchayat Samiti Neem Ka Thana, District Sikar held in 2015 on the strength of a forged and fabricated undated Class VIII mark-sheet allegedly issued in 1985-86 from a non existent school which in any event to her own admission was not a recognized school. The returned candidate does not have the requisite educational qualification under Section 19 (t) of the Act of 1994 read with Section 2 (n) of the Act of 2009. It is declared that the returned candidate is thus not entitled to hold the post of Sarpanch and she be removed therefrom forthwith.

(ALOK SHARMA), J.

R.Vaishnav

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Rajasthan High Court - Jaipur