Rajasthan High Court - Jaipur
Magho Singh vs State Of Raj And Ors on 5 May, 2017
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
(S.B. Civil Writ Petition No.2042/2017)
Magho Singh S/o Shri Raghuvir Singh aged about 51 years, resident of 124, Mohan ka
Adda, Laloni Tehsil Badi, District Dholpur, Rajasthan.
- Petitioner
Versus
1. State of Rajasthan through the Principal Secretary, Panchayati Raj Department,
Secretariat, Jaipur.
2. The Commissioner, Rajasthan State Election Commission, Secretariat, Jaipur.
3. The District Collector, Dholpur.
4. Ms. Anjani Singh Parmar D/o Sh. Bahadur Singh, by caste Thakur, at present
Sarpanch Gram Panchayat Garisukhha, Tehsil Bari, District Dholpur.
--- Respondents.
Date of Order: May 05, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Ravi Chirania, for the petitioner.
Mr. Yash Sharma, for respondent No.4.
Mr. Dharmendra Pareek, Dy.GA for the State.
BY THE COURT:
A writ of quo warrant is sought for removal of respondent No.4 holding the post of Sarpanch of Gram Panchayat Garisukhha, Panchayat Samiti Bari, District Dholpur.
Admittedly the post Sarpanch of Gram Panchayat Garisukhha, 2 Panchayat Samiti Bari District Dholpur was reserved for Other Backward Classes (OBC) in the election held in 2015. The respondent No.4, a Parmar resident of Dholpur district, contested the said election on strength of a OBC certificate dated 16-4-2014 issued by the Tehsildar Bari on the basis of the notification dated 30- 9-2013. The said notification has admittedly been effectively rewritten by the Division Bench of this court in DBCWP No.4707/2015, titled Uda Ram Vs. State of Rajasthan, on 5-1-2017 holding that it was illegal to the extent it included Krashak (Karsa) Rajput and sub-castes thereof (Kharwar, Chandana, Unthad, Parmar, Kadecha, Taladara, Diya, Gul, Dashana) not belonging to the Kumbhalgarh, Rajsamand and Nathdwara Tehsils of Rajsamand District. A Special Leave to Petition, thereagainst was also dismissed by the Apex Court on 20-2-2017.
The petitioner's case is that the respondent No.4, a Parmar is resident of District Dholpur and not of District Rajsamand and thus not an OBC under the notification of 30-9-2013 or otherwise. And hence the caste certificate dated 16-4-2014 declaring her to be so was cancelled on 2-12-2015 by the District Scrutiny Committee headed by the District Collector. A challenge to the said cancellation order dated 2-12-2015 laid by respondent No.4 also came to be dismissed by this court in SBCWP No.667/2017 vide order dated 3 24-1-2017, albeit on ground of alternative remedy and consequently she is now in appeal before the State Level Scrutiny Committee. No stay of the cancellation order dated 2-12-2015 has been granted. It has been submitted that in the circumstances the post of OBC Sarpanch to which respondent No.4 was elected in 2015 cannot be held by her and she presently is only a usurper of public office liable to be removed.
Mr. Ravi Chirania appearing for the petitioner submitted that one Malvi daughter of Satyapal was elected as Sarpanch on a OBC seat on the strength of a OBC certificate issued to her with reference to the notification dated 30-9-2013. On a petition for a writ of quo warranto in SBCWP No.4560/2015, titled Hasnoo Khan Vs. State of Rajasthan, decided on 20-1-2017, this court held that Malvi was not entitled to be considered as OBC on the strength of a certificate issued under the notification dated 30-9-2013 or otherwise. And hence could not hold the post of Sarpanch reserved for OBCs to which she was not entitled. The election was held to be void qua her. A challenge to the aforesaid judgment dated 20-1-2017 by Ms. Malvi in DB Special Appeal Writ No.286/2017 failed on 9-3-2017.
Mr. Ravi Chirania submitted that the case at hand is identical on all fours. The respondent No.4 is only a pretender OBC on the 4 strength of certificate wrongly given to her under the notification dated 30-9-2013 read down by the Division Bench to save it from unconstitutionality. It has to be accordingly construed. The respondent No.4's OBC certificate has now been also cancelled under order dated 2-12-2015. The mere pendency of the appeal by respondent No.4 against the cancellation of her OBC certificate is quite pointless as Krashak (Karsa) Rajput and all other categories thereof including Parmars not resident of District Rajsamand cannot claim OBC status following Uda Ram (supra) as upheld by the Apex Court. Mr. Ravi Chirania submitted that consequently the respondent No.4 not belonging to the notified OBC in the State of Rajasthan does not have any legal authority/ eligibility to hold the elected post of Sarpanch of Gram Panchayat Garisukhha, Panchayat Samiti Bari District Dholpur, reserved at the election of 2015 for OBC. A writ of quo warranto be accordingly issued removing her from the said post.
Per contra, Mr. Yash Sharma, appearing for the respondent No.4 submitted that the issue of the respondent No.4 not belonging to the OBC category is plainly a disputed question of fact, which cannot be addressed in a writ of quo warranto. He relied upon the judgment of the Apex Court in the case of Kurapati Maria Das Vs. M/s.Dr. Ambedkar Seva Samajan [AIR 2009 SC 2475] in support of 5 his contention. Mr. Yash Sharma further submitted that the respondent No.4 was in the first instance admittedly issued without any representation or found attributable to him a OBC certificate by the competent authority i.e. Tehsildar Bari on 16-4-2014. She contested in the election for the post of Sarpanch reserved for OBC on the basis of that certificate and won. The cancellation of the OBC certificate on 2-12-2015 is under challenge in an appeal before the State Level Scrutiny Committee and hence no finality attaches to the cancellation. Mr. Yash Sharma further submitted that the issue of the respondent No.4 allegedly not belonging to OBC caste as a issue of fact, could also have been addressed in an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994') read with Rule 80 of the Rajasthan Panchayati Raj (election) Rules, 1994 (hereinafter `the Rules of 1994') where it would have been put through a regular trial through the sure fire test of examination and cross examination of contesting parties and their witnesses on all matters including the question whether the respondent No.4 was even otherwise an OBC or not. He submitted that in fact such an election petition was filed by one Durgesh Kumari against the election of respondent No.4 but was dismissed albeit on the ground of it not being presented in terms of Rules 81(1) of the Rules of 1994. Mr. Yash Sharma further submitted that the petitioner during the pendency of the election petition remained on 6 the sidelines awaiting its outcome and approached this court by this petition for writ of quo warranto, only subsequently to the dismissal of the election petition. This fact establishes, counsel submitted, that the present petition is malafide and mere proxy litigation for Durgesh Kumari.
In rejoinder Mr. Ravi Chirania, submitted that the dismissal of the election petition filed at the instance of Durgesh Kumari against the respondent NO.4 can be of no event to the right of the petitioner for laying the present petition for a writ of quo warranto in respect of which no issue of limitation or laches is relevant. The writ, a public law remedy, sought is to prevent usurpation of public office by one not statutorily eligible to hold it. On the issue of the respondent No.4's status as OBC candidate allegedly being a disputed question of fact, Mr. Chirania submitted that it is not at all so. The respondent No.4 was indeed issued a caste certificate of OBC on 16-4-2014 under the illegal notification dated 30-9-2013. The said underlying notification dated 30-9-2013 has since been effectively read down and clarified by the Division Bench of this court to save it from unconstitutionality, for reason of gross arbitrariness and non application of mind, in the case of Uda Ram (supra) and SLP thereagainst dismissed by the Apex Court. The respondent No.4 as a Krashak (Karsa) Parmar from outside the 7 Rajsamand, Kumbhalgarh and Nathdwara Tehsils of district Rajsamand was not a OBC and the certificate so issued to her was consequently nonest and void. There is thus no dispute of fact which is sought to be agitated in this petition. It has been further submitted that the issue in this petition for a writ of quo warranto is both on the issue of eligibility of respondent No.4 to contest election as an OBC on the post reserved for OBC on date of election, and also her current eligibility to continue as Sarpanch on a post reserved for OBCs. On both tests, the defence of the respondent No.4 has, in the facts of the case, to fail, Mr. Ravi Chirania submitted.
Heard. Considered.
This court in the case of Uda Ram (supra) has read down the notification dated 30-9-2013, in so far as it has the unintended consequence of conferring OBC status on Krashak (Karsa) Rajputs and sub-castes outside Kumbhalgarh, Rajsamand and Nathdwara Tehsils of District Rajsamand. The said judgment was upheld by the Apex Court. That obviously is not in dispute nor can it be. It is also not in dispute that the respondent No.4 a Parmar is a resident of District Dholpur not Rajsamand District's Kumbhalgarh or Nathdwara Tehsils. Yet she obtained the OBC certificate on the strength of the aforesaid loosely worded notification dated 30-9- 2013 as published. In fact the OBC certificate issued to the 8 respondent No.4 on 16-4-2014 by Tehsildar Bari clearly states it being issued to the notification dated 30-9-2013. It is also not in dispute that the post of Sarpanch of Gram Panchayat Garisukhha, Panchayat Samiti Bari District Dholpur was reserved for the OBC category. It is also not in dispute that the petitioner claiming to belong to the OBC caste on the strength of the caste certificate dated 16-4-2014 contested the said election for the post of Sarpanch of Gram Panchayat Garisukhha, Panchayat Samiti Bari District Dholpur. The said OBC certificate has since been cancelled on 2-12- 2015. The position also so presently conclusively obtains despite a pending appeal for whatever its worth before the State Level Scrutiny Committee which cannot conceivably take a view different from Uda Ram (supra). In the circumstances the respondent No.4 is not a OBC. She cannot thus in law hold the post of Sarpanch reserved in the 2015 election for OBC to which she was illegally allowed to contest and won. In holding the said office she is an usurper of public office--which the post of Sarpanch admittedly is.
Consequently, this court has no option but to allow the petition, and issue a writ of quo warranto as prayed for, holding that the respondent No.4 not a OBC is a usurper of the public office of Sarpanch of Gram Panchayat Garisukhha, Panchayat Samiti Bari District Dholpur reserved for OBC. And consequently she is not 9 entitled to further continue on the post of Sarpanch of Gram Panchayat Garisukhha, Panchayat Samiti Bari District Dholpur with immediate effect. It is so held and directed. It is further directed that the respondent No.4 be forthwith removed from the said post of Sarpanch of Gram Panchayat Garisukhha.
The petition stands allowed accordingly.
(Alok Sharma), J.
arn/ 10 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.