Virendra Tyagi vs State of M. P. - 2010 Supreme(MP) 699

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(MP) 699

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
S.K. Gangele, J.
Virendra Tyagi
Vs.
State of MP. and Ors.
W.P. No. 712/2010
Decided On: 21.09.2010

Headnote:(1) Panchayat Raj Adhiniyam, 1993 (M.P.) -- S.36(a)(ii) -- person convicted for murder -- sentenced to life imprisonment -- released from jail after completing jail sentence on 15.8.2009 -- 5 years had not elapsed after release he was disqualified for election as Sarpanch -- elected as Sarpanch by concealing this fact -- his election deserves to be set aside.
       Held: It is clear from the aforesaid judgment of Honble Supreme Court 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. In the present case, the respondent No.4 was disqualified to be elected as a Sarpanch of the Gram Panchayat on account of his conviction under section 302 of IPC. The respondent No.4 has been illegally holding the office of Sarpanch.
       Consequently, the petition of the petitioner is allowed. By way of writ of quo warranto, the election of respondent No.4 to the post of Sarpanch of the Gram Panchayat is hereby set aside. (2009)7 SCC 1 followed. [Paras 12 & 13
       (2) Constitution of India -- Arts.226/227 -- writ of quo warranto -- can be issued under a person is appointed to a public office in violation of statutory provision -- availability of alternative remedy -- not a bar. [Para 12
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JUDGMENT

S.K. Gangele

1. Heard.

2. The petitioner has filed this petition questioning the legality and validity of continuance of respondent No. 4 as a Sarpanch of Gram Panchayat Gaheli, Tahsil Mehgaon, District Bhind on account of disqualification to the post.

3. As per the petitioner, he is a voter of village Gaheli, Tahsil Mehgaon, District Bhind. An election to the post of Sarpanch of Gram Panchayat Gaheli was held in the year 2010 and the voting took place on 21st January, 2010. The respondent No. 4 contested the election to the post of Sarpanch, however, he has not disclosed the fact that he was convicted under Section 302 of IPC and awarded a sentence of life imprisonment. It has further been stated that near about 24 cases were registered against the respondent No. 4 and without disclosing these facts, the respondent No. 4 contested the election and elected as a Sarpanch of Gram Panchayat Gaheli, Tahsil Mehgaon, District Bhind. The petitioner has further submitted that the respondent No. 4 lacks the qualification to be elected as a Sarpanch of the Gram Panchayat.

4. The respondent No. 4 in his return admitted the fact that he has been elected as a Sarpanch of Gram Panchayat Gaheli, Tahsil Mehgaon, District Bhind. However, the respondent No. 4 contended that the petition filed by the petitioner is not maintainable because there is a remedy available to the petitioner to file an election petition questioning the election.

5. The learned Counsel for the petitioner submitted that respondent No. 4 lacks the qualification continuing as a Sarpanch of the Gram Panchayat under the provisions of Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam of 1993'), hence, a writ of quo-warranto can be issued. In support of his contention, he has relied upon on the following judgments

(i) 2009 (1) M.P.J.R. 212 Satya Prakash Agrawal v. State of M.P. and Ors.;

(ii) AIR 1999 SC 1723 K Venkatachalam v. A. Swamickan and Anr.;

(iii) AIR 1966 SC 828 Gadde Venkateswara Rao v. Government of Andra Pradesh and Ors.;

6. Contrary to this, the learned Counsel appearing for the respondent No. 4 raised a preliminary objection about the maintainability of the petition that there is a remedy of election petition available to the petitioner and an election petition is also pending in regard to legality of election of respondent No. 4. Hence, this petition is not maintainable. In support of the aforesaid contentions, he has relied upon the following judgments:

(i) 1995 J.L.J. 651 State Election Commissioner, M.P. v. Ras Bihari Raghuwanshi and Ors.;

(ii) 1998 (2) M.P.L.J. 710 Bhushan Ramlal Kashyap v. S.D.O Janjgir and Ors.; and

(iii) 1999 (1) J.L.J 200 Uday Singh v. Himmat Singh and Ors.

7. In the present case, the undisputed facts of the case are that the respondent No. 4 has been elected as a Sarpanch of the Gram Panchayat in an election held on 21st January, 2010. The respondent No. 4 was convicted and sentenced to life imprisonment by the Second Sessions Judge, Bhind vide judgment dated 30/11/1998 in Sessions Trial Nos. 8/94 and 58/94 and his conviction has not been set aside by any Court. The respondent No. 4 was released from Jail after completion of jail sentence on 15/08/2009, copy of the certificate dated 06/02/2010 issued by the Deputy Jail Superintendent, Central Jail, Jabalpur to this effect has been filed by the petitioner. The petitioner has further submitted that the following criminal cases were registered against the respondent No. 4:

S. No.

Criminal Cases

Sections

170/80

457, 380 IPC

223/80

457, 380 IPC

227/80

390 IPC

230/80

454, 380 IPC

231/80

25 Arms Act

411/80

454, 380 IPC

188/80

307, 34 IPC

117/81

336 IPC

288/81

457, 380 IPC

10.

262/82

147, 148, 149, 506-B of IPC

11.

448/82

380 IPC

12.

554/84

302, 307, 394 IPC

13.

236/83

224 IPC

14.

242/85

224 IPC

15.

88/83

364, 365, 386, 387, 401 IPC and 11,13 of MPDVPK Act

16.

186/83

302, 24, 394 IPC and Section 11, 13 of MPDVPK Act

17.

237/85

380 IPC

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Judicial Analysis

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2010 Supreme(MP) 699

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)S.K. Gangele, J.Virendra TyagiVs.State of MP. and Ors.W.P. No. 712/2010Decided On: 21.09.2010

Cases Referred (6)

Judicial Analysis

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
S.K. Gangele, J.
Virendra Tyagi
Vs.
State of MP. and Ors.
W.P. No. 712/2010
Decided On: 21.09.2010