Madhya Pradesh High Court
Nihal Singh vs The State Of Madhya Pradesh on 17 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 23051 of 2023
NIHAL SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri Ajay Singh Rathore - Advocate for the petitioner.
Shri K.S. Tomar - Govt. Advocate for the respondents/State.
Shri Lokendra Singh Tomar - Advocate for the respondent
No.6.
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Reserved on : 07/04/2025
Delivered on : 17/04/2025
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This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition under Article 226 of the Constitution of
India is in the nature of writ of quo-warranto challenging the very
election of present respondent No.6 as a Sarpanch of Gram Panchayat
Manpur, Tehsil Joura, District Morena, on account of respondent no.6
incurring disqualifications to hold the office of the Sarpanch as
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prescribed under Section 36(1) (a)(ii) of the M.P. Panchayat Raj Avam
Gram Swaraj Adhiniyam, 1993, as while contesting the election he
had falsely stated that no case was pending against him, nor he had
been convicted in any case, whereas, a criminal case bearing number
480/2008 was registered against respondent number 6 in the Court of
Judicial Magistrate First Class, Joura, which was decided on
07.08.2015.
2. Short facts leading to the controversy are that in the year, 2022
an election to the post of Sarpanch of Gram Panchayat Manpur, Tehsil
Joura, District Morena took place, in which respondent no.6 contested
the election, however, while submitting his form he did not disclose
the fact that a criminal case being registered against him, nor he had
been convicted in any case, whereas, a criminal case bearing number
480/2008 was tried against him in the Court of Judicial Magistrate
First Class, Joura, which was decided on 07.08.2015, wherein he was
convicted and sentenced to undergo 02 years of incarceration.
3. Against the said judgment of conviction a Criminal Appeal
No.194/2015 was preferred before the Additional Sessions Judge,
Joura, which was dismissed vide order dated 17.02.2023. Thereafter,
Respondent number 6 had filed a Revision Petition bearing number
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1504/2023 before this Court against the order of the Appellate Court,
which was also dismissed by this Court vide order dated 26.06.2023.
In the midst, an application dated 05.06.2023 was submitted by the
petitioner to the Respondents mentioning that respondent No.6 is
disqualified for the post of Sarpanch, as he has concealed this fact in
his affidavit. However, no order or action has been taken on the
application submitted by the Petitioner till date. It is further submitted
that Respondent No. 6, while absconding, continued to hold the
position of Sarpanch and thus, is causing financial losses.
4. Since the respondent no.6 was convicted as aforesaid under the
provisions of Section 36(1)(a)(ii) of the Adhiniyam, 1993 he was
disqualified to be appointed/elected for the post of Sarpanch which is a
public post/office and his nomination was liable to be rejected on the
ground of said disqualification. This fact was suppressed while filling
up the nomination form, declaration form as well as in the affidavit
and such concealment/suppression had resulted in an illegal result as
he was disqualified and had no right to contest the elections and hold
the post.
5. Alleging the said election/appointment of respondent no.6 on
the post of Sarpanch in violation of statutory provisions as he had no
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right to contest the election and to be elected as a Sarpanch, his very
appointment/election is challenged under the present writ petition.
ARGUMENTS
6. Learned counsel for the petitioner while placing reliance in the
matter of Suresh Choudhary vs Atarlal Verma And Ors reported in
2006 (3) MPLJ 506, had argued before this Court that a writ of quo-
warranto can be issued to declare a Member of Panchayat disqualified
to continue in the post to which he had been elected by suppressing
the factum of disqualification as he had played fraud on the statute
and, therefore, is not entitled to hold the office as he was not eligible
to contest the elections and the present writ petition would be
maintainable and as such a person cannot be allowed to participate in
the proceedings of Panchayat as a Member and his election has to be
declared as illegal, ergo, a writ of quo-warranto would be maintainable
and relief can be granted.
7. Further while placing reliance in the matter of Virendra Tyagi v.
State of M.P and Ors. reported in 2011(1) MPLJ 245, it is argued that
a writ of quo-warranto can be issued by the Court when a person in a
public office has been appointed in violation of statutory provisions
and since the respondent therein i.e. Sarpanch was sentenced and
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convicted, the election of said person on the post of Sarpanch was set
aside.
8. Further while placing reliance on a Division Bench decision of
this Court in the matter of Shiv Singh Rawat vs State Of Madhya
Pradesh And Ors reported in 2008(2) MPLJ 573, it had been argued
that the citizens in the democratic set up should not be compelled to
suffer criminalization on the ground that they are helpless and a
convict cannot be allowed to occupy an elected post where a statute
clearly prohibits.
9. Learned counsel has also placed reliance in the matter of
Bhagwan Das Choukse vs. State of MP reported in 2016(4) MPLJ
559, wherein in similar circumstances it was held by the Coordinate
Bench of this Court that mere release of a person on bail will not mean
that he has undergone sentence and has been released, therefore, it was
held that the said person is not entitled to contest the election, but as
he has already contested the election and was elected as President of
Janpad Panchayat in view of the settled legal position, he ceased to
continue to hold the said post.
10. Lastly, while placing reliance on a Division Bench decision of
this Court in the matter of the petitioner himself listed as Nihal Singh
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Gurjar vs. The State of M.P and Ors passed in W.A. No.414/2024
dated 07.08.2024, it was argued that relying upon the decision of
Suresh Choudhary (supra), the Division Bench has held that writ of
quo-warranto against the petitioner in such matters is maintainable,
where he was not eligible to contest the election.
11. Learned counsel has referred to Rule 31(a) of M.P. Panchayat
Nirvachan Niyam, 1995, which prescribes the eligibility for a
candidate to be appointed on the post of Sarpanch and as per those
provisions, a candidate is required to submit declaration in the
prescribed form along with nomination papers including information
about criminal cases pending/decided against him and as per Section
36(1)A(ii) of Adhiniyam, 1993 a person would be in-eligible to be an
office bearer of Panchayat, if he had been sentenced to imprisonment
for not less than six months, which was required to be submitted in the
declaration along with the nomination which was suppressed by the
respondent no.6, as if would have been supplied his nomination form
at the very threshold would have been thrown out/rejected, but since
the aforesaid fact was not brought to the knowledge to the election
authorities, the conviction of the respondent no.6, went un-noticed.
Thus, in a way respondent no.6 had not only suppressed the material
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fact, but had played fraud and is holding a public office which in the
light of the judgments as referred above could be interfered with and
while issuing a writ of quo-warranto, his election could be declared as
void and for that the petitioner is not required to challenge the
appointment/election of respondent no.6 by way of election petition.
On the basis of the aforesaid arguments, it was submitted that the
respondent no.6 is illegally holding the office of Sarpanch which by
issuing a writ of quo-warranto could be set right and he be removed
from the post of Sarpanch as disqualified/in-eligible incumbent.
12. On the other hand, learned counsel for the respondent No.6 had
raised a preliminary issue and while placing reliance in the matter of
Jaspal Singh Arora vs. State of M.P and Ors reported in 1998(9)
SCC 594, had argued that an election could not be called in question
except by an election petition as provided under that Act. It was
further held that the bar to interference by courts in electoral matters
contained in Article 243-ZG of the Constitution was apparently
overlooked by the High Court in allowing the writ petition. Apart from
the bar under Article 243- ZG on settled principles interference under
Article 226 of the Constitution for the purpose of setting aside election
to a municipality was not called for because of the statutory provision
8
for election petition.
13. Learned counsel further referring to decision of the Apex Court
in the matter of Bholanath Mukherjee and Ors vs. Ramkrishna
Mission Vivekananda Centenary College and Ors reported in
2011(5) SCC 464, had argued that the petitioner had not prayed for
issuance of a writ of quo warranto before this Court as the relief
claimed in the petition is for setting aside of the election of respondent
no.6 on the post of Sarpanch, Gram Panchayat Manpur, Tehsild Joura
District Morena and when the very relief is not akin to writ of quo-
warranto, the present petition is not maintainable and the only remedy
available to the petitioner is to approach by way of an election
petition.
14. Learned counsel while placing reliance on Article 243 (o) of the
Constitution has argued that notwithstanding anything contained in the
said Article no election to any Panchayat shall be called in question
except by an election petition presented to such authority and in such
manner as is provided for by or under any law made by the Legislature
of a State and as there is a constitutional bar to challenge any election
to a Panchayat, the present petition is not maintainable. Further as per
Section 122 of Adhiniyam, 1993, an election under the Panchayat Act
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shall be called in question only by a petition presented in the
prescribed manner to the authority as specified therein and when the
statute itself has created a forum for challenging the election, the
present writ under Article 226 of the Constitution of India is not
maintainable.
15. Learned counsel to bolster his submissions has also placed
reliance in the matter of Kurapati Maria Das vs. Dr. Ambedkar Seva
Samajan and Ors reported in 2009(7) SCC 387 and has argued that
the writ of quo-warranto could have been prayed for only on
invalidation or quashing of the election of the respondent no.6 and that
was possible only by way of an election petition and the writ petition
of the present nature is not tenable though apparently the writ petition
has been couched in a safe language and it has been represented as if it
is for the purpose of a writ of quo warranto.
16. It was on the basis of the aforesaid arguments contended that the
present petition being devoid of any merits be dismissed.
17. Heard the counsels for the parties and perused the record.
DISCUSSIONS AND CONCLUSION
18. This Court while dwelling upon the merits of the matter, deems
10
it expedient to deal with the preliminary objection raised by the
learned counsel for the respondent no.6 that of maintainability of
present writ petition on account of availability of remedy of election
petition as provided under Section 122 of Adhiniyam, 1993.
19. In this regard, it is profitable to quote the judgment of the Apex
Court in the matter of N. Kannadasan vs. Ajoy Khose and Ors
reported in 2009(7) SCC 1, which is as under:-
“129. The respondents herein filed the writ petitions inter alia for
issuance of a writ of quo warranto. A writ of quo warranto can be
issued when the holder of a public office has been appointed in
violation of constitutional or statutory provisions.
130. Section 16 of the Act lays down the qualifications inter alia
for appointment of the Chairman of the State Commission. Clause
(a) of Sub-section (1) of Section 16 provides that the candidate
must be “is” or “has” been a Judge”. The proviso appended
thereto, however, mandates consultation by the State Government
with the Chief Justice of the High Court concerned.
131. Concededly, judicial review for the purpose of issuance of
writ of quo warranto in a case of this nature would lie: (A) in the
event the holder of a public office was not eligible for
appointment. (B) processual machinery relating to consultation
was not fully complied. The writ of quo warranto proceedings
affords a judicial remedy by which any person who holds an
independent substantive public office is called 10 upon to show by
what right he holds the same so that his title to it may be duly
determined and in the event it is found that the holder has no title
he would be directed to be removed from the said office by a
judicial order. The proceedings not only give a weapon to control
the executive from making appointments to public office against
law but also tend to protect the public from being deprived of
public office towhich it has a right. It is indisputably a high
prerogative writ which was reserved for the use of the Crown. The
width and ambit of the writ, however, in the course of practice,
have widened and it is permissible to pray for issuance of a writ in
the nature of quo warranto.
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132. In Corpus Juris Secundum [74 C.J.S. Quo Warranto 14],
“Quo Warranto” is defined as under: Quo warranto, or a
proceeding in the nature thereof, is a proper and appropriate
remedy to test the right or title to an office, and to remove or oust
an incumbent. It is prosecuted by the State against a person who
unlawfully usurps, intrudes, or holds a public office. The relator
must establish that the office is 11 being unlawfully held and
exercised by the respondent, and tht relator is entitled to the office.
133. In Law Lexicon by J.J.S.Wharton, Esq., 1987, “Quo
Warranto” has been defined as under: QUO WARRANTO, a writ
issuable out of the Queen”s Bench, in the nature of a writ of right,
for the Crown, against him who claims or usurps nature of a writ
of right, for the Crown, against him who claims or usurps any
office, franchise, or liberty, to enquire by what authority he
supports his claim, in order to determine the right. It lies also in
case of non-user, or long neglect of a franchise, or misuser or
abuse of it; being a writ commanding the defendant to show by
what warrant he exercises such a franchise having never had any
grant of it, or having forfeited it by neglect or abuse.
134. Indisputably, a writ of quo warranto can be issued inter
alia when the appointment is contrary to the statutory rules as has
been held by this Court in High Court of Gujarat v. Gujarat
Kishan mazdoor Panchayat and R.K. Jain v. Union of India. (See
also Mor Modern Coop. Transport Society Ltd. v. Govt of
Haryana.) In Duyodhan Sahu (Dr.) v. Jitendra Kumar Mishra, this
Court has stated that it is not for the court to embark upon an
investigation of its own to ascertain the 12 qualification of the
person concerned.(See also Arun Singh v. State of Bihar) We may
further more notice that while examining if a person holds a public
office under valid authority or not, the court is not concerned with
technical grounds of delay or motive behind the challenge, since it
is necessary to prevent continuance of usurpation of office or
perpetuation of an illegality. [ See Kashinath G. Jalmi (Dr.) v.
Speaker]
135. Issuance of a writ of quo warranto is a discretionary
remedy. Authority of a person to hold a high public office can be
questioned inter alia in the event an appointment is violative of
any statutory provisions. There concededly exists a distinction in
regard to issuance of a writ of quo warranto and issuance of a writ
of certiorari. The scope and ambit of these two writs are different
and distinct. Whereas a writ of quo warranto can be issued on a
limited ground, the considerations for issuance of a writ of
certiorari are wholly different.”
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20. From the aforesaid enunciation it is clear that a writ of quo-
warranto can be issued by the Court when a person in a public office
has been appointed in violation of statutory provisions and the
authority of a person to hold a high public office can be questioned
inter alia in the event an appointment is violative of constitutional or
statutory provisions. An election in a democratic policy has its
sacrosanctity, but respondent no.6 has endeavoured to create a
concavity in the same. Such a thing in a democratic set up is not
permissible and since respondent No. 6 was not eligible to contest the
election even, the fact is absolutely clear and does not require any
inquiry, he is not entitled to hold the office and his continuance cannot
be accepted, therefore, in such cases writ petition would be
maintainable as such a person could not have been allowed to
participate in proceedings of Panchayat as Member and a writ of quo-
warranto, therefore, would be maintainable.
21. That apart, in the case of respondent No.6 himself, Writ
Appellate Court while disposing of the W.A. No.414/2024, preferred
by him, whereby the matter was remanded, it was held that the writ
petition be treated as of quo warranto, which was later concurred in
R.P. No.495/2025 dated 02.04.2025, thus, this aspect is not required to
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be further adjudicated.
22. Now it is required to be seen whether respondent no.6 has
entailed himself disqualification as provided under Section 36(1)(a)(ii)
of the Adhiniyam, 1993, as by suppressing material fact, he is holding
the post of Sarpanch which is a public office.
23. In this regard, this Court deems it proper to appreciate the
provisions of M.P. Panchayat Nirvachan Niyam, 1995 which under
Rule 31(a) prescribes the mode in which information is to be provided
by a candidate to be appointed on the post of Sarpanch. It is provided
therein that a candidate shall submit a declaration in a prescribed form
along with nomination paper including information about criminal
cases pending/decided against him. For reference the relevant
provisions of Rule 31(a) reads as under:
“31-A Information of criminal record, properties, liabilities and
educational qualifications etc. of candidates: (1) Every candidate
for the post of Panch shall submit a declaration in a form as
prescribed by 14 the State Election Commission along with
nomination paper which shall include information about his
educational qualification, criminal cases pending/decided, his/her
assets and liabilities and that of his/her spouse and dependents,
his/her number of living children and information about whether
he/she is an encroacher on Government Land. (2) Every candidate
for the post of Sarpanch, member of Janpad Panchayat and Zila
Panchayat shall submit an affidavit, in a form as prescribed by the
State Election Commission along with nomination paper which
shall include information about educational qualifications,
criminal cases pending/decided, his/her assets and liabilities and
that of his/her spouse and dependents, the number of his/her living
14children and whether he/she is an encroacher on Government
Land. The affidavit shall be sworn before competent Notary,
Magistrate or Oath Commissioner. (3) A copy of
affidavit/declaration of candidates for the post of Panch,
Sarpanch, Member of Janpad Panchayat and Zila Panchayat shall
be exhibited on the notice board in the office of the Returning
Officer. Its copy shall be made available to any citizen on demand
on payment of prescribed fee.”
24. Further, Section 36 of Adhiniyam, 1993 prescribes
disqualification for being an office-bearer of Panchayat. The relevant
portion of Section 36 read as under:
“36. Disqualification for being office bearer of Panchayat: (1) No
person shall be eligible to be an office bearer of Panchayat who-
(a) has, either, before or after the commencement of this Act been
convicted: (i) of an offence under the Protection of Civil Rights
Act, 1955 or under any law in connection with the use,
consumption or sale of narcotics or any law corresponding thereto
in force in any part of the State, unless a period of five years or
such lesser period as the State Government may allow in any
particular case has elapsed since his conviction; or (ii) of any
other offence and had been sentenced to imprisonment for not less
than six months, unless a period of five years or such less period
as the State Government may allow in any particular case has
elapsed since his release.
25. As per the aforesaid Section 36(1)(a)(ii) of Adhiniyam, 1993, a
person shall be ineligible to be an office-bearer of the Panchayat, if he
had been sentenced to imprisonment for less than six months, unless a
period of five years or such less period as the State Government may
allow in any particular case has elapsed since his release. In the
present case respondent no.6 was convicted and has been sentenced to
15
undergo jail sentence of 02 years and admittedly, he had not
undergone the entire period of sentence of 02 years and had been
released thereafter, rather he had preferred appeal against conviction
and after its dismissal a criminal revision before this Court, which as
per record, in absence of any rebuttal, had also been dismissed for
want of prosecution (though as per the order dated 02.04.2025 passed
in R.P. No.495/2025 placed before this Court on board, preferred at the
instance of respondent No.6, himself, said revision pending on the
period of maintainability, since he had not surrendered before filing of
the revision), thus, goes to show respondent No.6 had incurred
disqualification as per Section 36(1)(a)(ii) of the Adhiniyam, 1993,
therefore, was not eligible to contest the election held in the year,
2022.
26. Ex consequents, it is clear that the respondent No.6 had firstly
suppressed his conviction at the time of submission of his nomination
form as was required under Rule 31(a) of the Niyam, 1995 which was
a disqualification as per Section 36(1)(a)(ii) of the Adhiniyam, 1993
and if that disqualification would have surfaced earlier, respondent
no.6 would not have been allowed to contest the election even,
therefore, this Court has no hesitation to hold respondent no.6 to be
16
disqualified to hold the office of Sarpanch of Gram Panchayat,
Manpur. Thus, the petition stands allowed and by issuing a writ of
quo-warranto, the election of respondent no.6 for the post of Sarpanch,
Manpur is hereby set aside and it is declared that the respondent no.6
is not entitled to hold post of Sarpanch of Gram Panchayat, Manpur.
27. So far as the judgment cited by learned counsel are concerned,
in the matter of Jashpal Singh Arora (supra) the challenge was made
by a defeated candidate to the election of returned candidate by filing
a writ under Article 226 of the Constitution of India. From the facts of
the aforesaid case it is not revealed as on what grounds the challenge
was made and in that context the Hon’ble Apex Court has observed
that since there is availability of alternative remedy of filing election
petition since there is a bar under Article 243 (z)(g), the petition under
Article 226 of the Constitution of India is held to be not maintainable.
28. The judgment in the matter of Bholanath Mukherjee and Ors
(supra) cited by learned counsel dealt with an appointment of
Principal and Honorary Vice-Principal of the college and later on was
amended to challenge the election of respondent no.3 therein to the
post of Principal on the ground that his appointment was invalid since
he was not possessing requisite qualifications and teaching experience.
17
The writ Court had declared the appointment of respondent no.3
therein, as Principal to be invalid which was over-turned by the
Division Bench and it was held that his appointment was not invalid
and the Apex Court without going into the aspect whether a writ of
quo-warranto would lie or not since the appellants therein stood retired
and the issue left was purely academic, did not interfered in the matter
as by that time the respondent no.3 therein had acquired experience of
16 years i.e. more than the requisite experience required for the said
post. The facts of the said cases are altogether different from the facts
of the present case and the analogy laid therein is in consequence of
the facts of those cases which cannot be said to be applicable to the
present case. Apart from that no analogy has been laid down except for
observing that since no writ of quo-warranto has been asked for,
therefore, at that stage there was no point in going into as to whether a
writ of quo-warranto would lie or not.
29. Accordingly, the present petition is hereby allowed and
disposed of in the aforesaid terms.
Certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
neetu
NEETU Digitally signed by NEETU SHASHANK
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH COURT
SHASHA
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2.5.4.20=36b486bb0d381b950e435ec09e066
bc6b58cb947c1474b7dc349a1cf27eaa2ce,
postalCode=474001, st=Madhya Pradesh,
serialNumber=E60A9BBFC39E0EE500EAADE1
NK
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9AE58, cn=NEETU SHASHANK
Date: 2025.04.17 18:38:08 +05'30'
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