SBCWP NO.3074/2006. { 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R Dharam Singh Versus State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO.3074/2006. Date of Order : 19 November, 2007. PRESENT HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.M. Mehta, Senior Advocate with Shri Rajendra Prasad for the petitioner. Shri R.N. Mathur with Shri Ashvini Jaiman for respondent No.2. Shri B.K. Sharma, Deputy Government Advocate for the State. ****** Reportable This writ petition has been filed with the prayer that a mandamus be issued quashing the order dated 13/4/2006 whereby the government decided to keep its earlier order dated 19/9/2005 in abeyance. Order dated 19/9/2005 was passed by the government in exercise of its powers under Section 39 of the Rajasthan Panchayati Raj Act, 1994 (in short, “the Act of 1994”) vide which, respondent No.2 SBCWP NO.3074/2006. { 2 } was declared disqualified to continue to hold the office of Member, Panchayat Samiti Buhana, District Jhunjhunu and consequentially, as Pradhan thereof on account of his pre-election disqualification contained in Section 19(gg) of the Act of 1994. Order dated 13/4/2006 was passed on a review petition filed by respondent No.2 before the government wherein he raised a grievance that the same was passed without giving him opportunity of hearing. Apart from the aforesaid prayer, two more prayers have been made in the writ petition, one, for issuing a writ of prohibition and another, for a writ of quo warranto. Writ of prohibition is sought against the State Government restraining it from proceeding further in the review petition filed by the respondent No.2 on the premise that the government having once passed the order dated 19/9/2005 under Section 39 of the Act of 1994, did not thereafter wield any power to review it. Writ of quo warranto is prayed to be issued on the ground that respondent No.2 being disqualified in view of the provisions of Section 19(gg) of the Act of 1994, is not eligible to continue as Member and Pradhan of SBCWP NO.3074/2006. { 3 } the Panchayat Samiti Buhana and therefore, his election being void ab initio and invalid, he should be declared disentitled to continue as such and may be ordered to be removed as member as well as Pradhan of Panchayat Samiti Buhana. 2) During the pendency of the writ petition, one of the questions involved in this petition on which depended the decision of the first prayer was referred to the Larger Bench of this Court. The Larger Bench by majority decision in Smt. Sameera Bano Vs. State of Raj. & Ors. : 2007 (2) WLC (Raj.) 526 held that a pre-election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the Act read with rule 80 of the Election Rules and cannot be determined by the competent authority under rule 23 of the Rajasthan Panchayati Raj (Election) Rules, 1994. Shri Sagar Mal Mehta, learned senior counsel for the petitioner while making his arguments in the present matter in view of the aforesaid judgment of the Larger Bench, did not press the first prayer of writ of mandamus and in my view, rightly, though even SBCWP NO.3074/2006. { 4 } otherwise, the aforesaid judgment being of the Larger Bench, sitting singally, I would be bound by law enunciated therein. That prayer therefore should be taken to have been rejected in terms of the judgment of the Larger Bench referred to hereinabove. Since the acceptance of second prayer would be depended on the petition being allowed on the first prayer, the first prayer having thus been taken as given up and/or rejected, as a necessary corollary thereto, second prayer for issuance of writ of prohibition restraining the respondents from proceeding further in the review petition filed by respondent No.2 is also therefore rejected. The writ petition therefore survives only in respect of third prayer of writ of quo warranto declaring the election of respondent No.2 as member as well as Pradhan of the Panchayat Samiti Buhana as void ab initio and respondent No.2 as usurper of those offices directing his removal therefrom. Learned counsel for the contesting parties have thus confined their arguments on third prayer of this writ petition for issuing a writ of quo warranto and it is on that basis that the present writ petition is being SBCWP NO.3074/2006. { 5 } decided. SBCWP NO.3074/2006. { 6 } 3) Factual scenario which in this petition is required to be noticed first is that the respondent No.2 Harpal Singh filed his nomination paper for election of Ward No.25 of the office of Pradhan of Panchayat Samiti Buhana on 13/1/2005 accompanied by his affidavit attested on the same date by Shri J.P. Sharma, Notary Public, in which he declared that no criminal case was pending against him inasmuch as, no court has ever taken cognizance against him in a criminal case. No objection at the relevant point of time was raised by any of the candidates. Nomination paper of the respondent No.2 was accepted as correct in scrutiny which too was held on 13/01/2005. Voting took place on 29/01/2005 and counting of votes took place on 08/02/2005 and result of the election was declared on 08/02/2005 itself on which date, respondent No.2 was declared as Member of Ward No.25 of Panchayat Samiti Buhana. Respondent No.2 thereafter submitted his nomination paper for contesting election to the office of Pradhan, Panchayat Samiti, Buhana on 10/2/2005 which was scrutinized on the same day and upon being found valid, he was allowed to contest SBCWP NO.3074/2006. { 7 } the election held on 10/2/2005 itself. Result of the election was declared on very same day in which respondent No.2 was declared elected as Pradhan of Panchayat Samiti Buhana. Petitioner submitted an application to the respondents on 02/07/2005 alleging therein that respondent No.2 could not be legally allowed to contest the aforesaid election/s since he was disqualified to contest such election in view of Section 19(gg) of the Act of 1994 because FIR No.407/1995 for offences under Section 420, 467, 468 and 471 IPC was registered against him on 20/10/1995 with Police Station Kotwali, District Jhunjhunu. Upon completion of investigation, challan was filed against him before the court of competent jurisdiction on 07/04/1997 and the aforesaid matter was registered as Criminal Case No.62/1997 in the court of learned Civil Judge (Senior Division)-cum-Chief Judicial Magistrate Jhunjhunu. The said court had taken cognizance against the petitioner for the aforementioned offences on 28/06/1997 and has in fact framed charges against him for those offences on 01/10/1999 and the matter was presently pending for evidence of the SBCWP NO.3074/2006. { 8 } prosecution. It is in the backdrop of the aforesaid facts that the present petition has been filed. 4) I have heard Shri Sagar Mal Mehta, learned senior counsel assisted by Shri Rajendra Prasad, Advocate, Shri Rajendra Narain Mathur assisted by Shri Ashvini Jaiman and Shri B.K. Sharma, learned Deputy Government Advocate for the State of Rajasthan. 5) Shri Sagar Mal Mehta, learned senior counsel for the petitioner argued that larger bench of this court in Smt.Sameera Bano while relying on the judgment of the Supreme Court in K.Venkatachalam Vs. A. Swamickan : AIR 1999 SC 1723 : 1999(4) SCC 526 has held that any person can approach the High Court under Article 226 of the Constitution and seek ouster of the successful candidate from the office by a writ of quo warranto and argued further that for seeking writ of quo warranto, the present writ petition would be maintainable, the petitioner having contested the election and not filed election petition notwithstanding. It was argued that though respondent No.2 was fully aware of the SBCWP NO.3074/2006. { 9 } aforesaid disqualification but he deliberately did not disclose the same and submitted a false affidavit. The petitioner came to known about the same when he applied for obtaining certified copy of the court proceedings on 21/05/2005 and thereafter received certified copy on 24/05/2005, information of which was given by him to the respondent No.2 on 25/05/2005. Since such information was received by the petitioner after expiry of period of limitation for filing election petition challenging his election as Member, Panchayat Samiti, Buhana held on 08/02/2005 and Pradhan thereof on 10/02/2005, the petitioner could not file the election petition. Shri Sagar Mal Mehta, learned senior counsel further argued that mere non filing of the election petition by the petitioner would not debar the petitioner from approaching this Court in a writ of quo warranto particularly when the larger bench in Smt.Sameera Bano supra in paras 33 and 34 of the report has conclusively held that any person can approach the High Court under Article 226 of the Constitution of India and seek ouster of the successful candidate from the office by a writ SBCWP NO.3074/2006. { 10 } of quo warranto. Shri Sagar Mal Mehta, learned senior counsel for the petitioner in this connection heavily relied on the judgment of Supreme Court in K.Venkatachalam supra and argued that in that case too, the original writ petitioner was the candidate who had contested the election against the elected candidate and lost and yet did not file election petition. It was argued that this factor would not in any manner restrict or otherwise limit the power of this Court for issuing of a writ of quo warranto. Learned senior counsel further relied on the full bench judgment of the Punjab & Haryana High Court in Lal Chand Vs. State of Haryana and others : AIR 1999 P & H 1 in which it was held that election of Panchayat/Municipality can be directly challenged before the High Court under Articles 226 and 227 of the Constitution of India and the bar contained in Articles 243-O and 243-ZG of the Constitution of India would not apply to exercise of power of judicial review by this Court under Articles 226 and 227 of the Constitution of India and Article 32 of the Constitution of India, by the Supreme Court. He also cited the SBCWP NO.3074/2006. { 11 } Single Bench judgment of this Court in Bhiva Ram and others Vs. State of Rajasthan and others : 2000(3) W.L.C. (Raj.) 645 in which also similar view was taken by the court while relying on the authority of Supreme Court in K.Venkatachalam supra and Full Bench judgment of Punjab and Haryana High Court in Lal Chand supra. Learned counsel also relied on the constitutional bench judgment of the Supreme Court in L.Chandra Kumar Vs. Union of India and others (1997) 3 SCC 261 and argued on the basis of that authority the powers of judicial review conferred on this court by Articles 226 and 227 of the Constitution can not be curtailed or restricted in any manner, the same being part of basic structure of the Constitution. 6) Shri Sagar Mal Mehta, learned senior counsel for the petitioner in response to the plea taken by the respondent No.2 in his counter affidavit argued that even if the respondent No.2 has been subsequently acquitted in the aforesaid criminal case, the acquittal would not relate back to the date on which his nomination paper was filed and scrutinized because the question for SBCWP NO.3074/2006. { 12 } determination of the court is whether nomination paper of the respondent No.2 was validly filed and accepted on the date on which he submitted his nomination paper and made a false declaration on oath. Shri Sagar Mal Mehta, learned senior counsel in this connection relied on the judgment of the Constitution Bench of the Supreme Court in K.Prabhakaran Vs. P.Jayarajan : AIR 2005 SC 688 in which it was held that question of disqualification is to be determined only with reference to date of election or date of scrutiny of nomination papers. Subsequent setting aside of conviction and sentence in appeal does not have the effect of wiping out disqualification from back date. It was therefore prayed that writ of quo warranto be issued directing removal of respondent No.2 from the office of Member as well as Pradhan of Panchayat Samiti Buhana. 7) Shri R.N. Mathur, learned counsel appearing for respondent No.2 opposed the writ petition and argued that government vide its order dated 13/4/2006 merely reviewed the order of removal of respondent No.2 dated 19/9/2005 on the limited ground that SBCWP NO.3074/2006. { 13 } opportunity of hearing was not provided to him and therefore held the same in abeyance. The Full Bench decision in Smt.Sameera Bano however does not permit a defeated candidate to file writ of quo warranto, for that judgment in para 33 of the report clearly makes a distinction between a third party approaching this Court and a defeated candidate. It was held by the Full Bench that the mere fact that a third party cannot challenge the election of successful candidate despite his disqualification under Section 43 does not mean that election cannot be challenged at all. Any person can approach the High Court under Article 226 of the Constitution and seek ouster of the successful candidate. It is further argued that those observations were made in the context of the argument that no remedy would be available to a third party and the expression 'any person' has to be construed in that sense. By necessary implication therefore a defeated candidate who had the remedy of filing election petition and did not do so, should be taken to have given up right to challenge the election and writ of quo warranto filed at the SBCWP NO.3074/2006. { 14 } instance of such defeated candidate would not be maintainable. In concluding para 39 of the judgment of Smt.Sameera Bano supra the larger bench has therefore rightly answered the reference in no certain terms that pre- election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the Act read with rule 80 of the Election Rules and cannot be adjudicated by the authority under rule 23 of the Rules. It was argued that since the petitioner had not produced the so-called affidavit dated 13/10/2005 with the writ petition on the basis of which he alleges that respondent No.2 concealed the factum about cognizance having been taken against him by the court for the above referred to offences, nothing stands established whereas in the case of K.Venkatachalam, the court proceeded on established facts that name of the elected candidate was not included in the electoral roll of the assembly constituency concerned. Learned counsel then made a distinction between a mere disqualification and lack of basic qualification and argued that while K.Venkatachalam was a case of lack of basic SBCWP NO.3074/2006. { 15 } qualification whereas in the present case, the petitioner is alleged to be disqualified in view of Section 19(gg) of the Act of 1994. When in course of time the petitioner has been acquitted in that criminal case vide judgment of the court dated 15/10/2005, that disqualification, if at all there was any, has now ceased to operate. In support of this argument, learned counsel has produced before the court certified copy of the judgment dated 15/10/2005 acquitting the respondent No.2 which was taken on record. It was argued that despite the Supreme Court having taken a view in K.Venkatachalam supra that a writ of quo warranto may be issued to unseat an ineligible elected candidate, the view taken by the Supreme Court in Election Commission Vs. Saka Venkata Rao : AIR 1953 SC 210 has not been overruled thereby which was with regard to the interpretation of Article 329(b) of Constitution of India in respect of a disqualification based on conviction of the elected candidate anterior to the date of his election. In Saka Ventakata Rao, the Hon'ble Supreme Court had taken a view that Articles 190 to 193 are applicable to an elected SBCWP NO.3074/2006. { 16 } member. Neither the Governor nor the Election Commission had the jurisdiction to inquire into his disqualification. Learned counsel cited yet another unreported judgment of Supreme Court in State of Himachal Pradesh and ors. Vs. Surendra Singh (Appeal No. (Civil) 5186/2006 decided on 24/11/2006 and argued that in that case too, it has been held that the argument of pre-election disqualification can be agitated only in an election petition. In that case, referring to the constitutional scheme and Article 243-O of the Constitution of India, it was held that no remedy except the election petition would be available in relation to disqualification of an elected member. In that view of the matter, learned counsel argued that remedy Article under Article 226 of the Constitution of India would not be available because of express bar contained in Article 243-O of the Constitution of India. It was argued that reliance placed on L.Chandra Kumar (1997(3) SCC 261) is misplaced because in that case Parliament by the Administrative Tribunal Act, 1985, had completely excluded the writ jurisdiction of the High Court over the matters falling within SBCWP NO.3074/2006. { 17 } the scope of the Central Administrative Tribunal where the aggrieved person could file special leave petition against the judgment of the Tribunal only before the Supreme Court. There is no such absolute bar in the present scenario where remedy of election petition is always available to the defeated candidate. 8) Lastly, Shri R.N. Mathur, learned counsel argued that though this court possess the power of judicial review under Article 226 of the Constitution but this being a discretionary remedy, writ of quo warranto may not be issued in every case and for that matter, in the present case, firstly for the simple reason that the petitioner inspite of having the remedy of filing election petition within the time specified, did not avail of such remedy. Secondly, the writ petition is grossly delayed as the election to the office of Member was conducted on 29/01/2005 and the writ petition has been filed on 15/04/2006 and thirdly the issuance of such a writ of quo warranto now in the changed scenario would be an exercise in futility because the disqualification, if at all there was any, now stands removed in view of acquittal of the SBCWP NO.3074/2006. { 18 } respondent No.2 by judgment of the trial court dated 15/10/2005 and by application of theory of relation back, the factum of his innocence having been so established would relate back to the date of election as if no criminal case was ever pending against him. In support of his aforesaid argument, Shri R.N. Mathur, learned counsel appearing for respondent No.2 has relied on the judgments of the Andhra Pradesh High Court in Mocherla Venkataraya Sarna Vs. Sivarama Prasad and others : AIR 1961 AP 250 and Orissa High Court in Haladhar Panda Vs. Nisakar Naik and others : AIR 1973 Orissa 132. Learned counsel for respondent No.2 therefore argued that writ petition may be dismissed with costs. 9) I have given my anxious consideration to the rival submissions made at the bar and perused the material forming part of record. 10) In any nature of writ petition filed under Article 226, whether mandamus, prohibition, certiorari or quo warranto, scope of examination of the subject matter of the controversy in exercise of power of judicial review by this court would be confined to the facts which are admitted by the contesting SBCWP NO.3074/2006. { 19 } parties and therefore accepted as proved or assumed to be proved on the basis of their pleadings and proof furnished by them. Here, the petitioner categorically asserts about registration of the criminal case against the respondent No.2 being FIR No.407/95 on 20/08/1995 with PS Kotwali, Jhunjhunu for offences under Sections 420, 467, 468, 471 IPC and upon completion of investigation, filing of charge-sheet against him on 07/04/1997 in the court of CJM Jhunjhunu and thereafter cognizance taken against him by the trial court for the aforesaid offences on 28/06/1997 followed by framing of charges for those offences on 01/10/1999. His assertion thus leads to this that the date on which the petitioner filed his nomination papers for election to the office of Ward No.25 of Panchayat Samiti, Buhana on 13/01/2005 and thereafter office of Pradhan, Panchayat Samiti, Buhana on 08/02/2005, though on that day he suffered disqualification in the meaning of Section 19(gg) of the Act. Section 19 enumerates number of disqualifications on account of which a person may be debarred from contesting the election, one of which SBCWP NO.3074/2006. { 20 } contained in its clause (gg) is to the effect that a person registered as a voter in the list of a Panchayati Raj election shall be disqualified for election as a Panch or as the case may be, a member of such Panchayati Raj Institution if such person is under trial in the competent Court which has taken cognizance of the offence and framed charges against him of any offence punishable with imprisonment for five years or more. All the offences of which charges were framed against the petitioner were inevitably punishable with imprisonment for more than five years. 11) Now, defence of the respondent No.2 in his counter affidavit is three fold:- (1) In the first place, he asserts that he was implicated in a false case and after recording evidence trial court has acquitted him. (2) His second assertion is that this fact should not taken as a circumstance against him because the petitioner has not produced copy of the affidavit allegedly submitted by him to the election officer on 13/01/2005. SBCWP NO.3074/2006. { 21 } (3) His third assertion is that now when he has been acquitted of all the charges, the disqualification, if any, with which he allegedly suffered should be taken to have been removed from inception by application of relation back theory. 12) All these defences are evasive in nature and none of them contain a direct denial to the basic fact so specifically pleaded by the petitioner that the petitioner was disqualified to contest election in view of bar contained in Section 19(gg) of the Act of 1994. This court has to therefore proceed on the footing that the petitioner suffered from the disqualification contained in Section 19(gg) of the Act and that, as on the date on which he submitted his nomination paper, he did not disclose this fact in his nomination paper, and that had he disclosed this fact in his nomination papers, the same in all probabilities would have been rejected and then proceed to examine the matter on merits. 13) Before, however, the matter is SBCWP NO.3074/2006. { 22 } examined on merits of the case, let me first deal with the objection raised by the respondent No.2 as to locus of the petitioner in praying for issuance of a writ of quo warranto. Question that primarily arises for consideration of this court on this aspect is whether a candidate having contested the election and defeated can approach this court under Article 226 for issuance of writ of quo warranto inspite of the fact that he had the remedy of election petition but he did not avail of the same. What is sought to be argued on behalf of respondent No.2 is that Full Bench judgment of this Court in para 33 of the report reserved that right to only a third party and observed that any person can approach this court under Article 226 of the Constitution and seek ouster of the successful disqualified candidate from the office by a writ of quo warranto, meaning thereby, such remedy would be available to only a person other than the unsuccessful candidate. The discussion made in para 33 of the Full Bench judgment was founded on the ratio of the Supreme Court judgment in K.Venkatachalam supra but the observations which were made in SBCWP NO.3074/2006. { 23 } para 33 were made in context of the argument raised by the respondent that if unsuccessful candidate does not challenge the election in collusion with the