Shish Ram, Sarpanch Gram Panchayat vs State of Haryana and Another

G.S. Singhvi, J.—On a preliminary enquiry conducted by the District Development and Panchayat Officer, Bhiwani, the Director, Panchayat suspended the appellant by exercising his powers u/s 102(1-A) of the Punjab Gram Panchayat Act, 1952., as applicable to the State of Haryana. The appellant challenged the legality of order of suspension by filing C.W.P. No. 774 of 1988. On 28.1.1988, a Learned Single Judge passed an exparte order staying the operation of the suspension order dated 7.1.1988. However, after hearing the counsel for the parties, the learned Single Judge passed order dated 19.4.1988 vacating the exparte interim stay order.

Feeling aggrieved by the order dated 19.4.1988 the appellant filed the present appeal on 27.4.1988 under Clause X of the Letters Patent. On 28.4.1988 the Division bench issued notice. Simultaneously, it stayed the operation of the order of learned Single Judge vacating the interim stay granted on 7.1.1988. As a result, the appellant continued in the office of Sarpanch.

As on date a period of more than nine years has elapsed since the passing of the exparte stay order by the Division Bench.

At the hearing, learned counsel for the appellant stated that the appeal has become infructuous because fresh elections have been held in the meantime;

However, we are not inclined to agree with the learned counsel that the appeal should be treated as infructuous and it should be disposed of as such. In our considered opinion, the appeal is wholly without merit and it is liable to be dismissed with costs.

Admittedly, the appellant could avail the remedy of appeal against the order of suspension, but he did not do so. Instead he rushed to the High Court and succeeded in pursuading the Court to pass an exparte interim order on 7.1.1988. Later on, the Learned Single Judge realised that in view of the availability of the alternative remedy of appeal, the writ petition should not have been entertained and on that ground be vacated the exparte stay order.

In Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, , a three-Judges Bench of the Supreme Court ruled that the High Court should refrain from exercising the writ jurisdiction under Article 226 when an alternative and equally efficacious remedy is available to the litigant. The Court held that it will be sound exercise of discretion by the High Court to refuse to entertain a writ petition where the aggrieved party can avail other remedies available to it and this rule can be departed only where the proceedings are taken under a law which is ultra vires or where the action complained of is contrary to the principles of natural justice.

In the present case, the appellant did not challenge the vires of Section 102 (1-A) of the Punjab Gram Panchayat Act under which the order of suspension was passed nor he did complain of the suspension of the principles of natural justice. He merely alleged malafides against the respondent No.3 who was Minister, Panchayats, Haryana. However, when the case came up for hearing, the appellant gave up the allegation of malafide. This is clearly borne out from the order passed by the learned Single Judge. Therefore, there was no occasion for entertaining the writ petition filed by the appellant and the learned Single Judge did not commit any error, when he vacated the exparte interim order passed on 7.1.1988.

It is significant to notice that on the strength of the interim order passed by the Division Bench on 28.4.1988, the appellant not only continued in the office by the enquiry initiated against him on the basis of allegations contained in Annexure P-3 was put in cold storage. This means that the appellant successfully frustrated the enquiry in respect of the allegations that he had failed to discharge his duty as a Sarpanch.

In the background of this, we find no justification to entertain the request of the learned counsel to declare the appeal as infructuous. Instead, we hold that the appeal is mis-conceived and is liable to be dismissed along with C.W.P. No. 774 of 1988. Accordingly, LPA No. 415 of 1988 and CWP No. 774 of 1988 are dismissed with costs of Rs. 5,000/-. The respondents shall recover the amount of costs from the appellant.