PURSHOTTAM LAL SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a petition for a writ of Quo Warranto under Article 226 of the Constitution directed mainly against respondent No. 4, Shri Bhairon Singh Shekhawat, at present the Chief Minister of Rajasthan. The petitioner prays for some other consequential reliefs as well. In the array of respondents, the petitioner also included the Governor of the State of Rajasthan,

(2.) The petitioner describes himself an elector registered in the Hawa Mahal Assembly Constituency of Jaipur and the General Secretary of the Pradesh Yuvak Congress Committee, Rajasthan. He alleges that the name of the respondent No. 4 stands entered in the electoral roll of the Kishanpole Assembly Constituency of Jaipur right from the year 1966 down to the year 1975-77. However, In the year 1974, he made an application on Feb. 18, 1974, before the Electoral Registration Officer of the Govindpura Constituency. District Bhopal, Madhya Pradesh, for inclusion of his name in the electoral roll of the said Constituency vide Ex. 5. In this application, which was made in the prescribed form under Rules 13 and 28 of the Registration of Electors Rules, 1960, he stated that "my name may have been included in the electoral roll for the Kishanpale Assembly Constituency in Rajasthan State under the address mentioned below and if so, I request that the same may be excluded from the electoral roll." Respondent No. 4 was accordingly entered in the electoral roll for the Assembly Constituency No. 239 Bhopal South for the year 1975 which was finally published on Aug. 16, 1976. On the basis of this registration in Madhya Pradesh, the petitioner contested the election to the Rajya Sabha from Madhya Pradesh and was elected thereto. However, respondent No. 4 came to be appointed the Chief Minister of the Government of Rajasthan on June 22, 1977, without being a member of the Rajasthan State Legislative Assembly. This office the respondent could not hold beyond a period of six months as required by Article 164 (4) of the Constitution without having meanwhile become a member of the State Assembly. This period was due to expire in Dec. 1977. A bye-election was held in the Chabra Assembly Constituency of the State of Rajasthan in Nov. 1977. The name of the petitioner appears not to have been deleted from the Kishanpole Constituency and it appeared in the electoral roll of 1975 at serial number 242, Ex. 4. It is alleged that having been registered as an elector in a Constituency in Madhya Pradesh, his name could not have appeared in the electoral roll of any constituency in Rajasthan, in violation of Section 17 of the Representation of the People Act, 1950. Yet knowing fully well that he already stood registered as an elector in Madhya Pradesh, the respondent No. 4 contested the said bye-election as an elector in Rajasthan. An objection was raised against his nomination, that he could not be an elector in two places simultaneously. The Returning Officer rejected the objection holding that according to Section 36 (7) of the Representation of the People Act, 1951, the electoral roll for the time being in force was conclusive evidence of his being an elector and, therefore, his nomination could not be rejected though a violation of Section 17 of the Representation of the People Act, 1950 had taken place. The petitioner alleges that the respondent No. 4 has played fraud on election law and election authorities by not informing them that he was duly registered elector in a constituency in Madhya Pradesh, and that without having his name deleted from the electoral roll of Bhopal, he took advantage of an illegal entry in the electoral roll of Kishanpole Constituency.

(3.) The return of the election is Ex. 11 of Nov. 28, 1977, in which the Returning Officer declared that Shri Bhairon Singh Shekhawat of Civil Lines, Jaipur, has been elected to fill the seat for the Chhabra Vidhan Sabha Constituency. He must have further obtained a certificate from the Returning Officer stating that he has been elected "to be a member" of the said constituency. According to Article 188 of the Constitution, he was required to make and subscribe oath as prescribed in the III Schedule before taking his seat in the Assembly. Meanwhile, on Nov. 16, 1977, the Secretary to the State Government had put up a memo to the Governor of Rajasthan submitting that in case of the persons who had not taken the prescribed oath on July 18, 1977, and those who may hereinafter be elected, the Chief Minister (i.e. respondent No. 4) recommends that Shri Laxman Singh, who had by then been elected as the Speaker, may be appointed as the person before whom the members of the Legislative Assembly shall in future make and subscribe oath or affirmation, as the case may be. The Governor, Shri Raghukul Tilak, on Nov. 17, 1977, approved the said recommendation. In pursuance of this approval, it appears that the Secretary to the Government in the Department of Parliamentary Affairs, issued an order on Nov. 23, 1977, a copy of which was sent to the Secretary, Legislative Assembly, and which was also published in the Rajasthan Gazette, Extraordinary of November 24, 1977. This order was issued in supersession of the notification dated July 13, 1977, by which Major Fateh Singh had been appointed under Article 188 of the Constitution. It further appears that this order was issued on the same lines on which such orders were issued in the year 1967 and in the year 1972 as shown by Ex. R/2 and R/3. This order does only say that the Governor has been pleased to appoint Shri Laxman Singh to be the person before whom the members of Legislative Assembly shall make oath or affirmation but significantly enough it omits to say that he shall be the person before whom the members shall also subscribe the oath. Shri Bhairon Singh Shekhawat made oath and also subscribed it before Shri Laxman Singh on Dec. 19, 1977. The contention in this regard is that there was no valid authority conferred on Shri Laxman Singh as far as subscription of the oath is concerned. Even the identity of Shri Laxman Singh was not shown in the said notification. The respondent has thus failed to acquire the membership of the State Assembly, in terms of Article 188 of the Constitution and he could no more continue to be a minister after the expiry of six months. He is thus an usurper of public office.