Hanuman vs State of Rajasthan and Others

Amitava Roy, C.J.—In challenge is the judgment and order dated 03.10.2013, passed in S.B. Civil Writ Petition No. 7582/2013, rejecting the appellant/writ-petitioner''s impeachment of the election of the respondent No. 6 herein to the Office of Sarpanch, Gram Panchayat Deendwada, Panchayat Samiti Kishangarh, Tehsil Kishangarh, District Ajmer by virtue of his pre-election disqualification as per Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 (for short, hereafter referred to as ''the Act'') on the ground of want of his locus standi.

We have heard Mr. Ashish Saksena, the learned counsel for the appellant/writ-petitioner and Mr. C.S. Sharma, the learned counsel for the respondents.

Avoiding inessential details, the relevant facts are that as claimed by the appellant/writ-petitioner, he is a registered electoral voter of Gram Panchayat Deendwada, Ward No. 2. The election to the post of Sarpanch of Gram Panchayat Deendwada, Panchayat Samiti Kishangarh, District Ajmer was held on 04.02.2010, in connection with which the respondent No. 6 had filed his nomination declaring therein the required particulars of his children as hereunder:-

S. No.

Name

Date of Birth

(i)

Mahendra Dabriya

10.12.1997

(ii)

Nikita Dabriya

04.02.2004

According to the appellant/writ-petitioner, the respondent No. 6 concealed the fact that as on 03.02.2010, the date of filing of his nomination, he had a third child, a son born on 06.02.2009 and thus, as he had more than two children born after 27.11.1995, he was disqualified u/s 19(1) of the Act to contest for the post involved. In the election, the respondent No. 6 was elected to the office, above referred to.

The appellant/writ-petitioner further stated that on 22.05.2012, a complaint to this effect was made to the Divisional Commissioner, Ajmer by one Shri Shaitan with a prayer to declare that the respondent No. 6 was disqualified from holding the post of Sarpanch. Subsequent thereto, the District Election Officer (Collector), Ajmer, pursuant to the communication of the Divisional Commissioner, Ajmer, required the Election Registration Officer(SDM), Kishangarh to hold an enquiry into the said complaint and on the basis of the exercise so undertaken, it was concluded that the respondent No. 6 had submitted wrong information about the birth of his children and had, in fact, concealed the birth of the third child. According to the appellant/writ-petitioner, the respondent No. 6 had participated in the enquiry as well. He has further stated that in course of the enquiry, the Election Registration Officer (SDM), Kishangarh had also sought for necessary informations about the birth of third child of the respondent No. 6 from the Chief Medical Officer, Government Yagya Narain Hospital, Kishangarh. That the Enquiry Officer had also obtained documentary evidence from the Medical Officer of R.D. Mittal Hospital, Madanganj, Kishangarh qua the birth of third child of Smt. Laxmi Regar, the wife of the respondent No. 6 along with JSY Card, admission & discharge records, birth certificate etc. vide communication dated 26.09.2012, was stated as well. The appellant/writ-petitioner has asserted that on the basis of the materials collected in course of the enquiry, the Election Registration Officer (SDM), Kishangarh had concluded in his report that the respondent No. 6 had fathered the children as herein below:-

S. No.

Name

Date of Birth

(i)

Mahendra Dabriya

10.12.1997

(ii)

Nikita Dabriya

02.04.2004

(iii)

Shubham

06.02.2009

According to him, the District Election Officer (Collector), Ajmer, thereafter by his official communication dated 01.11.2012, acting on the report dated 15.10.2012, required the SDM, Kishangarh to initiate action/proceedings under Sections 191 and 193 IPC against the respondent No. 6. However, the District Election Officer (Collector), Ajmer was thereafter communicated by the letter dated 22.11.2012 (Annexure-12 to the writ petition) by the Chief Executive Officer, Zila Parishad, Ajmer that no further action was possible in view of the instructions to the contrary, as contained in the letter dated 18.10.2007 of the Secretary and Commissioner, Rural Development & Panchayati Raj Department, Government of Rajasthan, as was referred to therein. As would be apparent from the record, this was in view of a Special Leave to Appeal filed by the State Government before the Hon''ble Apex Court challenging the judgment and order dated 02.04.2007, rendered by a Full Bench of this Court in D.B. Civil Special Appeal(W) Nos. 236/06, 276/06 & 289/06- Sameera Bano (Smt.) Vs. State of Rajasthan and Others, . Be that as it may, being aggrieved, the appellant/writ-petitioner sought to invoke the writ jurisdiction of this Court for redress. To reiterate, this challenge was negated by the learned Single Judge on the ground of lack of his locus standi.

In the instant appeal, the respondent Nos. 1 to 5 have, in substance, pleaded that the issue of pre-election disqualification can be adjudicated only in an election petition before the jurisdictional District Judge u/s 43 of the Act and Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short, hereafter referred to as ''the Rules'' of 1994''). That the majority opinion of the Full Bench of this Court in Smt. Sameera Bano (supra), is that the issue of pre-election disqualification can be adjudicated in an election petition only u/s 43 of the Act and cannot be examined by the competent authority under Rule 23 of the Rajasthan Panchayati Raj Rules, 1996 (for short, hereafter referred to as ''the Rules of 1996''), has been underlined. According to the answering respondents therefore, the writ petition had been rightly dismissed by the learned Single Judge.

The respondent No. 6, in his reply in the appeal, while endorsing the dismissal of the writ petition on the ground of want of locus standi of the appellant/writ-petitioner, also questioned the tenability of the finding of the Enquiry Officer that he had been blessed with third child, a son, named Shubham (date of birth-06.02.2009). He instead asserted that his third child, a daughter, named Surgyan was born on 29.03.2009 and that Shubham was the daughter of his brother Kanaram (date of birth-07.08.2006). He also alleged denial of opportunity to him to rebut the allegations made in the complaint. He pleaded as well that disputed questions of facts were involved and that on that count alone, no intervention of this Court was called for.

Mr. Ashish Saksena, the learned counsel for the appellant has argued that Special Leave to Appeal (Civil) No. 16426/2007, preferred by the State Government against the decision of the Full Bench of this Court in Smt. Sameera Bano (supra), having been dismissed on 01.02.2011, the debate involved stands governed by the determination made by the Full Bench of this Court in Smt. Sameera Bano (supra). According to him, the writ petition, as per the decision of the Full Bench of this Court, could not have been dismissed on the ground of want of locus standi of the appellant/writ-petitioner. To further reinforce this contention, Mr. Saksena has also placed reliance on the decision of this Court in Harpal Singh Vs. State of Rajasthan and Others, .

Learned counsel for the respondents has not disputed that the issue involved now stands covered by the decision of the Full Bench of this Court in Smt. Sameera Bano (supra).

We have duly considered the facts pleaded and the documents on record.

The majority view record in Smt. Sameera Bano (supra), referred to herein, qua the aspect of locus standi to raise the issue of pre-election disqualification pertaining to elections under the Act, had been dealt with in paragraph 33 of the judgment of the Full Bench of this Court in the following terms:-

It was submitted on behalf of the respondents that the petition u/s 43 of the Act can be filed only by any unsuccessful candidate, and, therefore a third party cannot question the result of election. According to counsel for the respondents, if the unsuccessful candidate does not challenge the election-in collusion with the successful candidate or otherwise-the election may never be called in question at all even though the person was disqualified for election. The submission is well-founded but does not improve the case of the respondents. The fact that the third party cannot challenge the election of the successful candidate despite his disqualification u/s 43 does not mean that the 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 from the office by a writ of quo warranto. For seeking writ of quo warranto, it is not necessary that person should have locus standi i.e. personal interest in the subject-matter. Writ of quo warranto can be issued if the Court is satisfied that the person was not qualified for the office/post and he is a usurper.

In this regard, the view of the Hon''ble Apex Court in K. Venkatachalam Vs. A Swamickan and Another, , to the effect that where recourse of election petition was not taken within the period prescribed, a petition for a writ of quo warranto was maintainable, was noticed as well.

A co-ordinate Bench of this Court in Harpal Singh (supra) as well drew sustenance from K. Venkatchalam (supra), while endorsing the maintainability of a writ petition for quo warranto vis-a-vis election to a public office in the eventuality where alternative remedy to challenge election was barred by time, or had lost its efficacy, their Lordships, by taking note of the above view recorded in Smt. Sameera Bano (supra), concluded as well that any person under Article 226 of the Constitution can seek ouster of a successful candidate from the office by a writ of quo warranto, if the latter was not qualified therefor and thus, was usurper.

In the teeth of such pronounced and consistent judicial enunciation, we are of the unhesitant opinion that dismissal of the writ petition on the ground of lack of locus standi of the appellant/writ-petitioner, cannot be sustained.

Noticeably, the appellant/writ-petitioner had to approach this Court in view of the decision of the official respondents not to further process the enquiry report by the Election Registration Officer (SDM), Kishangarh on the ground that the State Government had preferred a Special Leave to Appeal before the Hon''ble Apex Court against the decision rendered by the Full Bench of this Court in Smt. Sameera Bano (supra). In view of the intervening developments and the dismissal of the said appeal, it is thus apparent that as on date, the issue with regard to any challenge based on pre-election disqualification vis-a-vis any office under the Act, would be governed by the adjudication made in Smt. Sameera Bano (supra).

In that view of the matter, it is presently open for the concerned State authorities to take appropriate action on the enquiry report, as contemplated in law, qua the respondent No. 6. As already a fact finding enquiry has been conducted by the Election Registration Officer(SDM), Kishangarh, we are not inclined, in the exercise of the writ jurisdiction, to venture into the realm of facts.

The appeal is, thus, disposed of by interfering with the impugned judgment and order and directing the concerned State respondents to take appropriate action on the enquiry report, referred to hereinabove, however strictly in accordance with law. As time is the essence of the exercise, to be undertaken, we hereby order that the process involved should be completed within a period of six weeks from the date of receipt of a certified copy of this order.

The appeal stands disposed of in these terms. There would be no order as to costs.