Madhya Pradesh High Court
Sultan Singh Dhakad vs The State Of Madhya Pradesh on 3 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 26948 of 2022
SULTAN SINGH DHAKAD
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Bhupendra Singh Dhakad - Advocate for the petitioner.
Shri M P S Raghuwanshi, Sr. Advocate with Shri Brajesh Tyagi -
Advocate appeared for the respondent.
Shri B M Patel -GA appearing on behalf of State.
------------------------------------------------------------------------------
Reserved on 21/03/2025
Delivered on 03/04/2025
--------------------------------------------------------------------------------
ORDER
1. 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 Semai, Tehsil Kailaras, District Morena on account of
respondent no.6 incurring disqualifications to hold the office of
the Sarpanch as 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 suppressed the fact of his
conviction and sentence under Section 325/34 and 323/34 of IPC
vide Sessions Trial No.307/2014 for a period of two years and one
year respectively and, thus, is illegally holding the office of
Sarpanch which is a public office.
2. Short facts leading to the controversy are that in the year,
2022 an election to the post of Sarpanch of Gram Panchayat
Semai took place in which respondent no.6 contested the election,
however, while submitting his form he did not disclose the fact
that he was convicted with other co-accused persons under
Section 325/34 and 323/34 of IPC for two years RI and one year
RI respectively with fine of Rs.2000/- and 500/- and in lieu of
default he was further directed to under go three months' RI vide
Sessions Trial No.307/2014 dated 28.02.2022. Against the said
judgment of conviction a Criminal Appeal No.2362/2022 was
preferred by respondent no.6 along with other co-accused persons
in which vide order dated 15.03.2022, this Court had suspended
remaining jail sentence and had released him on bail, but the
effect and operation of the judgment has not been stayed till this
day and the conviction still subsists.
3. 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.
4. Alleging the said election/appointment of respondent no.6
on the post of Sarpanch in violation of statutory provisions as he
had no right to contest the election and to be elected as a
Sarpanch, his very appointment/election is challenged under the
present writ petition.
ARGUMENTS
5. 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 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.
6. 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 convicted for offence punishable
under Section 302 of IPC and was sentenced for life
imprisonment, the election of said person on the post of Sarpanch
was set aside.
7. 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.
8. 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 ceases to continue to hold the said post.
9. Lastly, while placing reliance on a Division Bench decision
of this Court in the matter of Nihal Singh 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 in
such matters is maintainable, if the elected candidate is not
eligible to contest the election.
10. 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.
For that a candidate is required to submit declaration in the
prescribed form along with nomination paper 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, if
would have been supplied his nomination form at the very
threshold would have been thrown out/rejected, but since the
aforesaid fact was suppressed, the conviction of the respondent
no.6 for the period of two years and one year respectively in an
offence under Section 325/34 and 323/34 of IPC, went un-noticed.
Thus, in a way respondent no.6 had not only suppressed the
material 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.
11. On the other hand, learned Sr. Counsel for the respondents
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
for election petition.
12. Learned Sr. 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 Semai 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.
13. Learned Sr. 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 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.
14. While referring to the contents of the reply, learned Sr.
counsel has also argued that during the election process nobody
has raised any objection including the petitioner regarding
disqualification of respondent no.6 and now since the elections
has been completed and final result has been declared, whereby
respondent no.6 has been elected as Sarpanch as per the election
rules, his election can only be challenged by way of an election
petition under Section 122 of the Adhiniyam, 1993.
15. Learned Sr. 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 it expedient to deal with the preliminary objection raised
by the learned Sr. 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:-
"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
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.
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
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 issuableout 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 anyofice, 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 toshow bywhat
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 interalia 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
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 offie 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 usurpatiion 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."
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 interalia in the event an appointment is violative of
constitutional or statutory provisions. An election in a democratic
polity 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 he was not eligible to contest the
election even, the fact is absolutely tell-tale and clear as day like a
shine on the sea-shore 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. Now it is required to be seen whether respondent no.6 has
entailed disqualification as provided under Section 36(1)(a)(ii) of
the Adhiniyam, 1993 and by suppressing material fact, he is
holding the post of Sarpanch which is a public office.
22. 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 eligibility for 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
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 children 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."
23. 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.
24. 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
sentenced and convicted for offence punishable under Section
325/34 and 323/34 of IPC for the period of two years and one year
respectively vide judgment dated 28.02.2022 and though he was
released on bail in Criminal Appeal no.2362/2022 dated
15.03.2022 would not mean that he had undergone the sentence
and was released, therefore, was not eligible to contest the
election held in the year, 2022.
25. The expression "release" has to be understood in the
context of conviction undergone in the entire sentence and can be
understood from the observations made in the matter of Shiv
Singh Rawat (supra):-
"8. In view of the aforesaid, the concept of
'release' that was endeavoured to be scanned by
Mr. Bhati remains in the realm of much ado about
nothing as the said respondent has remained in
custody for a period of three years and was not
released. It is worth noting here that the
respondent No. 9 was convicted by the judgment
dated 28-9-2000. The same is perceptible from the
judgment passed in Criminal Appeal. We would be
failing in our duty if we do not state that, as it was
mentioned before us that the appeal of the
respondent No. 9 was dismissed, we called for the
record and perused the order.
9. The election was held for the post of member in
the year 2004 and that of President in 2005. On a
bare reading of Section 36(1)(a)(ii), it is quite
clear that a person will not be eligible to hold a
post for a period of 5 years if he has been
sentenced for not less than six months. In the case
at hand the respondent No. 9 was sentenced for a
period of three years. He remained in custody, as
is patent, till 2003. He could not have contested
till 2008. Yet, for un-explainable reasons, he was
allowed to contest and also got elected. Thus,
indubitably he is disqualified to be in the office in
question."
26. Similar view has been expressed by the Court in the matter
of Virendra Tyagi (supra):
"10.As per the aforesaid Section 36 (a) (ii), 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. In the
present case, the respondent No. 4 was sentenced
and convicted for offence punishable u/s 302 of
IPC and sentenced for life imprisonment. He has
already undergone the aforesaid sentence. In such
circumstances, the respondent No. 4 is
disqualified to the post of Sarpanch. The
respondent No. 4 has illegally suppressing the fact
has been holding the post of Sarpanch, which is a
public office."
27. 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 disqualified to hold the office of
Sarpanch of Gram Panchayat, Semai. Thus, the petition stands
allowed and by issuing a writ of quo-warranto, the election of
respondent no.6 for the post of Sarpanch, Semai is hereby set
aside and it is declared that the respondent no.6 is not entitled to
hold post of Sarpanch of Gram Panchayat, Semai.
28. So far as the judgment cited by learned Sr. 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.
29. The judgment in the matter of Bholanath Mukherjee and
Ors (supra) cited by learned Sr. counsel dealt with an
appointment of Principal and Honorary Vice-Principal of the
college and later on was amended to challenge the elevation 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.
30. The writ Court had declared the appointment of respondent
no.3 as Principal to be invalid which was over-turned by the
Division Bench and it was held that his appointment was not
invalid and when 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.
31. Accordingly, the present petition is hereby allowed and
disposed of in the aforesaid terms.
(Milind Ramesh Phadke)
Judge
chandni/ 03/04/2025
CHAND Digitally signed by CHANDNI
NARWARIYA
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH AT
NI
GWALIOR,
2.5.4.20=4a0af498d89b2d94b5abcc
1b4614d98feabd8b78228e0ec6eab
9a0bd4e622c09, ou=HIGH COURT
OF MADHYA PRADESH BENCH AT
NARW
GWALIOR,CID - 7022823,
postalCode=474001, st=Madhya
Pradesh,
serialNumber=8c306c586aaa43d19
976f07886865f6fac4a246eee6bccd
ARIYA
256acdfce3dcf944f, cn=CHANDNI
NARWARIYA
Date: 2025.04.03 15:52:57 +05'30'
