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. 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 1. 170/80 457, 380 IPC 2. 223/80 457, 380 IPC 3. 227/80 390 IPC 4. 230/80 454, 380 IPC 5. 231/80 25 Arms Act 6. 411/80 454, 380 IPC 7. 188/80 307, 34 IPC 8. 117/81 336 IPC 9. 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 18. 263/86 307 IPC, 25, 27 Arms Act 19. 99/87 294, 506B IPC 20. 148/87 341, 307, 34 IPC 21. 440/87 147, 506-B IPC 22. 0/87 110 Cr.P.C. 23. 499/89 392 IPC 24. 500/89 392 IPC 25. 36/90 392 IPC 26. 70/90 399, 400, 407 IPC 27. 211/92 307, 34 IPC 28. 237/85 380 IPC 18. 263/86 307 IPC, 25, 27 Arms Act 19. 99/87 294, 506B IPC 20. 148/87 341, 307, 34 IPC 21. 440/87 147, 506-B IPC 22. 0/87 110 Cr.P.C. 23. 499/89 392 IPC 24. 500/89 392 IPC 25. 36/90 392 IPC 26. 70/90 399, 400, 407 IPC 27. 211/92 307, 34 IPC 28. 203/97 224, 225, 120-B IPC 8. The State Government has framed rules namely the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 in exercise of powers conferred by Sub-section (1) of Section 95 read with Section 43 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993. Rule 31-A prescribes the eligibility for a candidate to be appointed on the post of Sarpanch. It is provided that a candidate shall submit a declaration in a prescribed form along with nomination paper including information about criminal cases pending/decided against him. The relevant provisions read 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. Section 36 of the Adhiniyam of 1993 prescribes disqualification for being an office-bearer of Panchayat. The relevant portion of Section 36 read as under: 36. Its copy shall be made available to any citizen on demand on payment of prescribed fee. Section 36 of the Adhiniyam of 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 officebearer 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. 9. 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 under Section 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. 10. The Hon'ble Supreme Court after considering the various judgments in the case of (2009) 7 SCC 01 N. Kannadasan v. Ajoy Khose and Ors. has held 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". 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. 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. 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. 11. It is clear from the aforesaid judgment of Hon'ble 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. It is also well settled principle of law that for issuance of writ of quo warranto, availability of an alternative remedy is not a bar. 12. 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. It is declared that respondent No. 4 is not entitled to hold the post of Sarpanch of the Gram Panchayat, Gaheli, Tehsil Mehgaon, District Bhind. 13. Looking to the facts of the case, the respondent No. 4 is also directed to pay a cost of Rs. 5000/- to the petitioner.