Sahi Ram S/o Hari Ram Jat vs The State of Rajasthan

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 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

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

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

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-

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.

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

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

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.

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

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

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

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

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

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.