Kabutri Devi (Smt.) vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—By this petition, the petitioner seeks a writ to quash the Panchayat Election of Gram Panchayat Chindkalo, Post Darima, Tehsil Ambikapur, District Surguja, held on 3-2-2010, wherein the respondent No. 5 was declared as elected Sarpanch in the election.

It is well settled that validity of the election can be challenged only in election petition and not by way of writ petition under Article 226 of the Constitution of India, when there is a specific provision u/s 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 to question the election of Gram Panchayat.

In the matter of N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, a six Judges Bench of the Hon''ble Supreme Court, observed as under:

It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statutory only must be availed of. This rule was stated with great clarity by Willes J. in Wolver Hampton New Water Works Co. v. Hawkesford (1859) 6 CB (NS) 336, at p. 336 in the following passage:

There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it...The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.

The rule laid down in this passage was approved by the House of Lords in Nevile v. London Express Newspaper Ltd. (1919) AC 368, and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tabago v. Gordon Grant & Co. 1935 AC 532 and Secretary of State v. Mask & Co. 44 Cal. WN 709; and it has also been held to be equally applicable to enforcement or rights (See Hurdutrai v. Off. Assignee of Calcutta 52 Cal. WN 343 at p. 349. That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.

In the matter of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , the Hon''ble Supreme Court held that High Court has no jurisdiction to entertain a writ petition under Artical 226 of the Constitution when appropriate forum of filing election petition is provided under the statute as the election petition requires a full trial.

In the matter of Indrajit Barua and Others Vs. Election Commission of India and Others, and Manda Jaganath Vs. K.S. Rathnam and Others, , the Hon''ble Supreme Court reaffirmed the view taken in the matter of N.P. Ponnuswami (supra).

Subsequently, in the matter of Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee and Others, , wherein the Hon''ble Supreme Court relying on the ratio laid down in the case of N.P. Ponnuswami (supra), observed as under:

It is well-settled principle that where elections are conducted in accordance with the provisions of a statute and the statute also provides a remedy of settlement of election disputes by filing an election petition before a Tribunal, it is that remedy alone which should be availed of and recourse cannot be taken to proceedings under Article 226 of the Constitution. This view has been taken in a series of decisions rendered by this Court...

The dicta laid down as above was reiterated in the matter of Gurdeep Singh Dhillon v. Satpal and Ors. (2006) 10 SCC 616.

This Court, relying on the ratio laid down by the Supreme Court in the aforestated cases, took the same view in other identical matters, i.e., Sewa Sahakari Samiti Jhironi and Anr. v. State of Chhattisgarh and Ors. W.P. (C) No. 7324/2007, decided on 17-11-2008 and Surya Prakash v. Ramratan and Ors. W.P. No. 2607/2006, decided on 26-11-2008, reported in 2009 (1) M.P.H.T. 60 (CG).

In view of the foregoing, the writ petition is dismissed as not maintainable. However, liberty is reserved to the petitioner to take recourse to the alternative statutory forum that may be available to the petitioner under the provisions of law.