Judgment:
R.P. Sethi, C.J.
1. Invoking writ jurisdiction of this Court under Article 226 of the Constitution of India the respondents prayed for the issuance of writ of quo-warranto against appellants restraining them from functioning as the Adhyaksha of the Shimoga District Zilla Panchayath and Kulugatte Gram Panchayath. Writ Petitions were allowed vide orders passed by the learned Single Judge, which have been impugned in these appeals. As the questions of law involved are common, these appeals are being disposed of by a common judgment.
2. Writ petitioners in W.P.Nos. 12797/97 c/w W.P.Nos. 12386; 12723; 12757-60; and 12607/1997 are the residents of Zillia Panchayat, Shimoga. They submitted that Shimoga District Zilla Panchayat comprised of 41 elected members from the specified constituencies in the district of Shimoga. Out of the said 41 elected members, 8 belong to the Scheduled Castes including 3 women members elected for the Constituencies reserved for the Schedule Caste women. Two seats are reserved for Scheduled Tribe including one for Scheduled Tribe women. Reservation was also alleged to have been provided for the office of Adhyaksha and Upadhyaksha of the Zilla Panchayat. It was alleged that vide amended Section 177 of the Karnataka Panchayath Raj Act, the term of the office of Adhyaksha and Upadhyaksha is restricted to 20 months from the date of election. Pursuant to the amended provisions the State Government was alleged to have passed an order bearing No. RDP.315 ZPS.96 dated 7.3.1997 reserving the office of the Adhyaksha to the Scheduled Castes and the Upadhyaksha to the women. Out of 8 members who belonged to Scheduled Castes in the Zilla Panchayath Shimoga, only five members were elected from the Constituencies reserved for the Scheduled Castes and other three Scheduled Caste members included in the category were elected from the Constituencies reserved for Scheduled Caste women. The Divisional Commissioner, Bangalore, issued a meeting notice dated 20.3.97 convening the Meeting of the Zilla Panchayath for the election of the Adhyaksha and Upadhyaksha. It was submitted that according to the Government Notification only members elected from the Constituencies reserved for the Scheduled Castes were entitled to contest for the office of Adhyaksha. The appellant was alleged to be not belonging to that category as she was elected from the category of Scheduled Caste women. The Divisional Commissioner, however, permitted the appellant to contest the election. She was declared elected as President of the Zilla Panchayat and thereafter resumed the office. It was alleged the appellant being a usurper of public office was not eligible to hold the office of the Adhyaksha.
3. In Writ Petition No. 1999/97, the election of the appellant was challenged by the other elected members of Kulugatte Grama Panchayath on almost similar grounds. It was submitted that the post of Adhyaksha of Kulugatte Grama Panchayat was reserved for Scheduled Caste women as per notification issued by State Government but the appellant was elected on the ground that she belong to Scheduled Tribe. It was submitted that as the appellant had been elected from the General Constituency for women, she had no right to contest the election to the post of Adhyaksha which was reserved for Scheduled Tribe Women.
4. Writ Petitions were allowed vide the orders impugned in these appeals and the appellants were restrained from acting as Adhyaksha of the Panchayaths to which they were elected. The orders of the learned Single Judge are alleged to be against the provisions of law and contrary to the pronouncements made by the Apex Court and various High Courts.
5. It is submitted on behalf of the appellants that in view of the provisions of Article 243-O of the Constitution and Rule-7 of the Rules framed under the Karnataka Panchayat Raj Act, the Writ Petitions were not maintainable. Article 243-O of the Constitution provides:
'(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any court;
(b) 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.'
'7. Election Petition : (1) Any member of the Panchayat may challenge the validity of the election of Adhyaksha or Upadhyaksha, as the case may be within seven days from the date of declaration of the result of election under Rule 3, by filing an election petition, together with a deposit of two thousand rupees as security for costs, before the District Judge within whose territorial jurisdiction the Zilla Panchayat is situated.'
6. Article 243-O bars the jurisdiction of the Court in relation to the election of the Panchayat which can be challenged only by way of election petition presented to the competent authority in the manner as may be provided for by or under any law made by the Legislature of a State. The learned Counsel appearing for the respondents has submitted that the bar of Article 243-O(b) would not be applicable in the case of election of Adhyaksha and Upadhyaksha admittedly held after the constitution of the Panchayat. The provisions of Article 243-O are analogous to the provisions of Article 329 of the Constitution which creates a bar of interference by the Courts in election to either House of Parliament or the house or either Houses of Legislature of a State. The matters pertaining to the office-bearers of the Houses of Parliament, State Legislature or Panchayats apparently are not within the ambit of either Article 329 or Article 243-O. In other words the election to the posts of Speaker, Deputy Speaker, Chairman or Vice-Chairman of the Parliament or the Houses of Legislatures or Adhyaksha or Upadhyaksha of the Panchayats cannot be brought within the purview of the aforesaid two Articles and thus the jurisdiction of the High Court cannot be excluded on the basis of such bar imposed by the Constitutional Provisions.
7. It has therefore, to be seen as to whether in the absence of Constitutional bar the election of Adhyaksha or Upadhyaksha could be challenged by way of Writ Petition invoking the jurisdiction of this Court under Article 226 of the Constitution or not. It is further to be seen whether despite a specific provision for election petition, this Court can issue the writ as prayed for.
8. Before adverting to the rival contentions raised by the learned Counsel for the parties notice has to be taken regarding the nature of the right alleged to have been violated. On the basis of the judgments in N.P. PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM DISTRICT AND ORS., : [1952]1SCR218 & JAGANNATH. V. v. JASWANT SINGH AND OTHERS, : [1954]1SCR892 , RAMKANTH PANDEY v. UNION OF INDIA, : [1993]1SCR786 and MOHAN LAL TRIPATHI v. DISTRICT MAGISTRATE, RAE BAREILLY AND ORS., : [1992]3SCR338 a Division Bench of this Court in M.G. ACHAPPA v. THE PRESCRIBED OFFICER, MADIKERI, 1996(5) Kar.L.J. 555 held that a right to elect, or to be elected is neither a fundamental right nor a common law right. It is a pure and simple, a statutory right. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory remedies can be avail of subject to statutory limitations. An election petition is not an action at common law, nor in equity. Electing representatives is a political right or a privilege and not a natural, absolute or vested right. Concepts familiar to common law and equity cannot be invoked to election law unless statutorily recognised.
9. A writ of quo-warranto is a judicial remedy against a occupier or an usurper of a public office, franchise or liberty. By such a writ the alleged usurper is called upon to show as to by what authority he was holding the office or franchise. If the answer is not found to be satisfactory by the Court, the usurper can be ousted by a command in the nature of quo-warranto. After referring to the observations of Halsbury's Laws of England, 3rd Edition, Vol.11, P.145, the Supreme Court in UNIVERSITY OF MYSORE v. C.D. GOVINDA RAO AND ANR., : [1964]4SCR575 observed :
'Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointments of the said alleged usurper has been made in accordance with law ho? not.'
10. Quo warranto is a remedy given by law at the discretion of the Court. The powers under Article 226 of the Constitution are of discretionary nature though the discretion has to be exercised in accordance with judicial principles. Mere irregularity in the matter of appointment can not be a ground for the issuance of writ of quo warranto. The Kerala High Court in ALEX BEETS, v. M.A. URMESE AND ANR., : AIR1970Ker312 and Delhi High Court in S.C. MALIK v. P.P. SHARMA, AIR 1982 Delhi 83 refused the motion for writ of quo-warranto where order of appointment though violating Article 16 was shown by the respondents. It was observed that the ground under Article 16 may be heard in a motion of Certiorari or prohibition but cannot be heard in a quo warranto. As Quo warranto is a discretionary remedy, the existence of alternative remedy will, therefore, be taken into consideration in determining whether quo warranto should be issued or not. The Court would generally refuse to issue such a writ where there is equally an efficacious alternative remedy available. Speaking for the Court CHAGLA C.J. in BHAIRULAL CHUNILAL v. STATE OF BOMBAY, : AIR1954Bom116 held:
'It is well settled that where you have statutory provisions dealing with the conduct of an election, the writ of 'quo warranto' is displaced. An election then can only be challenged in the manner laid down by the statute.'
It was further held:
'Now, the writ of 'quo warranto' is not issued as a matter of right. It is a discretionary relief and the Court has always to ask itself whether under the circumstances of each case the petitioner should be given the relief in the nature of 'quo warranto' which he seeks. In this particular case every factor which can be taken into consideration weights against the petitioner being entitled to this relief. The public notice, as already pointed out, was issued by the Municipality on 20.1.1953. Therefore, the petitioner had knowledge that the elections were going to take place under that notification and that the 'de facto' President was going to act as the President of the Municipality under the Election Rules. He takes no action whatever till after the elections are held, which is on 2.3.1953. He allows voters to go and cast their votes, elect their representatives, incur expenditure, and then comes to this Court and challenges the election on a pure technicality. It is not suggested that the result of the election has in any way been affected by what took place in the course of the election. The Courts must always be reluctant to interfere with elections except on the clearest and strongest of grounds. An election is a luxury which a democracy cannot be expected to indulge in too frequently, and once the people have recorded their votes and expressed their confidence in their representatives, the Court should be loath to interfere with the decision of the people merely because some technically has not been observed or some irregularity has been committed. The matter would be entirely different if the irregularity has resulted in the people not being able to express their views properly, or if there was any corrupt practice which has materially affected the result of the election. It might have also been different if the election itself was held without any authority of law. But once it is conceded that the Collector had the authority to fix the dates of the general election and the general election took place according to law, any irregularity committed in the course of the election cannot be a ground for the issue of a writ of 'quo warranto'.
11. A Division Bench of Patna High Court in SUKEDEO NARAYAN v. MAHADEVA NANDA, : AIR1961Pat475 declined to issue the writ of quo warranto in the presence of the remedy of election petition though the candidate was found to be not qualified to hold the post. The Court held:
'10. Although the circumstances of the case do indicate that the petitioners have come forward to this Court on the 10th May, 1960, after the dismissal of the two election petitions on the 7th of March, 1960, at the instance of the petitioners in the election petitions, I do not propose to rest my refusal of the exercise of the discretion on that ground. The law for exercise of discretion by the Court for an information in the nature of quo warranto or an injunction in lieu thereof is stated in Article 281 (p. 148) of Halsbury's Laws of England, 3rd Edition, Volume 11 thus: 'An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The Court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective. It is conceived that the Court will follow similar principles in determining whether to grant an injunction in lieu.'
In Bhairulal Chunilal v. State of Bombay, : AIR1954Bom116 Chagla C.J., sitting in Division Bench, has observed at Page 120 Column (2):
'It is well settled that where you have statutory provisions dealing with the conduct of an election the writ of 'quo warranto is displaced. An election then can only be challenged in the manner laid down by the statute.'
In HARI SHANKAR PRASAD v. SUKHDEO PRASAD, : AIR1954All227 a Full Bench of the Allahabad High Court refused to entertain an application under Article 226 of the Constitution of India for grant of information in the nature of quo warranto to invalidate the constitution of the Election Tribunal on the ground that one of the members was not qualified to act as such member at the date of his appointment, as at the date of the hearing of the petition he had become so qualified and there was nothing to bar his reappointment.
Applying the principles stated above to the facts of this case, two things are clear to me - (i) the relief sought for in the present application could be and was sought for by an election petition but was not granted, whatever may be the reason, and (ii) admittedly the respondents name stood included in the electoral roll on the 25th of January, 1960, as is apparent from annexure 'P' to the last affidavit filed on his behalf and referred to above, which fact is not expressly controverted in the last reply affidavit filed on behalf of the petitioners.
To the same effect are the judgment in QURABLI AND ORS. v. GOVERNMENT OF RAJASTHAN AND ORS., BANDI NAIDU v. PAVULURI RAMANUJIAH AND ORS., : AIR1969AP22 and JOGENDRA NATH HAZARIKA v. STATE OF ASSAM AND ORS., AIR 1982 Gau 25
12. It is not disputed that Rule 7 of the Rules referred to herein above provides for the alternative remedy of election petition against the election of Adhyaksha or Upadhyaksha within the time and the manner specified therein. Such an election can be challenged only by a member of the Panchayat and none else. Ever though Article 243-O was no bar to the maintainability of the Writ Petition, yet the existence of the alternative efficacious remedy under Rule 7 of the Rules framed under the Karnataka Panchayat Raj Act was a sufficient ground to dismiss the Writ Petitions and direct the concerned to file an election petition in terms of the aforesaid rule. Eventhough the existence of an alternative remedy was not an absolute bar in entertaining the Writ Petition yet no ground was made out for not having resort to the efficacious, alternative, statutory remedy provided with respect to a right created and continued under a statute. Reliance of the learned Single Judge upon the judgment of the Madhya Pradesh High Court in the case of RAJENDRA SINGH v. SHEJWALKAR, : AIR1971MP248 could not be stretched to assume the jurisdiction for the purposes of issuance of writ of quo warranto. The facts pleaded and point of law raised in the instant case are distinguishable from Rajendra Singh's case supra.
13. In view of what we have held herein above, the writ appeals are allowed by setting-aside the orders of the learned Single Judge. Rule issued against the appellants is discharged.
14. Before parting with the judgment we would observe that the respondents / State may see the desirability of making the provisions of the Limitation Act including Sections 5 & 14 applicable in the matter of filing of election petitions under the Rules already framed. It may further be observed that appropriate remedial measures may be resorted to for giving effect to the rotational elections of Adhyaksha and Upadhyaksha on the basis of the reservations made for various categories. The appellants who have already contested elections in a specified category may not be allowed to contest the election again for the post of adhyaksha on the strength of the category under which they were originally elected. Having resort to such a procedure, the grievances of the other members of the Panchayat who are eligible for election to the post of Adhyaksha and Upadhyaksha under the reserved categories can be protected and safeguarded.
No costs.