ALOK SHARMA,J. - (1.) 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.
(2.) 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 fulfil 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 v. 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.
(3.) 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 v. 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.;