^ '"; fc.: /tF^ fcC' HIGH COURT OF CHHATTI8GARH AT BILASPUR PETITIONER RESPONDENTS WKtTPETITIONNo. 2381 of 2006. Gopal Prasad Kaushilc Aged about 37 years, S/o Shri Radhelal Raushik R/o Village Parsada, Tahsil & Distt. Bilaspur (C.G.) VERSUS 1. State of Chhattisgarh, Through fhe Prmcipal Secretary, D.K.S. Bhawan, Mantralaya, Raipur (C.G.) 2. Chief Election Commissioner State Election Conuiiission Raipur (C.G.) 3. District Election Officer, Through: Colleetor, Bilaspur (C.G.) 4. Retuming Officer/Sub Divisional Officer, Maiidi Election, Bilaspur (C.G.) 5. Inda Bai @ Indira Bai D/o Late Devcharan, . w/o Kummat Ram, aged 35 years, Caste Gond, President, Mandi Samiti, Bilaspur R7o Village Pasid, Tahsil Bilha, Distt. Bilaspur (C.G.) 6. Kunimat Ram Jagat S/o Vishambhar, Aged 45 years, R/o Village Kuan, Tahsil Bilha, Distt. Bilaspur (C.G.) At pi-esent R/o Village Pasod, Tahsil Bilha, Distt; Baaspur (C.G.) WRIT PETITIONU/A 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri B.L.Dembra, Advocate for the petitioner. Shri A.S.Kachhwaha,Deputy Advocate General for the State/respondentNo. 1, 3 and 4. Shri Shashank Thakur, Advocate for the respondent No. 2. Shri Ratnesh Kumar Agrawal, Advocate for the respondent No. 5 aiid6. ORALORDER OPassed on 12th day of November, 2008) 1. The facts, in nutshell, are that the respondent No. 5 was duly.elected as President ofthe Krishi Upaj Mandi Samiti, District Bilaspur (for short 'the Mandi Samiti') inthe election held on 20.01.2006 and on 24.01.2006. The petitioner is a permanent resident ofvillage Parsada, District Bilaspur, and ,voter in the Mandi Samiti. The respondent No. 5, despite havin^ disqualification under section 36(m) of the Ghliattisgarh Panchayat Raj Adhiniyam,1993, i.e. the respondentNo. 5 was having five living children ou.t of which two were bom after 26 January, 2001, filed nomination on ^^"^- ^^^£^ -2- X. y' 04.01.2006. The petitioner raised objection at the time of filing of nortunation. The same was rejecfed. Thus, after election, this writ petition for declaring electionofrespondentNo. 5 as void onthe ground ofhaving disqualification at the time of filing nomination. 2. Shri B.L.Dembra, leamed counsel appearing for the petitioner submits that the issue asto whether the respondent No. 5 was disqualified on the date of filing of nomination for election to the post of President, Krishi Upaj Mandi Samiti, District Bilaspur, cannot be examined in the election petition whieh is prescribed under section 66-A of the Chhattisgarh Krishi Upaj Mandi Adhiniyam, 1972. 3. Leamed counsel appearing for the respondents, per contra, submit that the disqualiftcafion of a candidate in the election is one of the prmcipal grQunds to challenge the election petition aad as such, contentioii of fhe petitioner that the question of disqualification a candidate or a rnember wUo has filed nornination paper cannot be decided in election petition, may be rejected. 4. It is well-settled pnttciple of law that if stahite provides fot filing of an election petition, writ petition is not maintainable. The Hon'ble Supreme Court; in the matter of N.P.Ponnuswami v. Th.e Returning Officer, Namctkkal Conslitutency, Manakkal, Salem Dist., andothers by a Bench of Hon'ble sixjudges, observed as imder: "12. 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 mle was stated wifh great clarity by Willes J. in Wolver Hampton New Water Works Co. v. Hawkesford, (1859) 6 C.B. (N.S.) 336, at p. 356 in the following passage: "There are three classes ofcases in which a liability may be established founded upon statute. One is, 'AIR (39)19528c 64 'w. I.- -3- where there was a liability existiug 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 contams 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, whei-e 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 fhe same time gives a special and particular remedy for enforcmg 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 fonn. given by the statute must be adopted and adhered to." The mle laid down m this passage was approved by the House ofLords mNevile v. London Express Newspaper Z,frf., (1919) A.C. 368 and has been reaffirmed by the Privy Council m Attorney General of Trimdad and Tabago v. Gordon Grant & Co., 1935 A.C. 532 and Secretary ofState v. Mask& Co. 44 Cal. W.N. 709; and : it has also been held to be equally applicable to enforcement or rights (See Hurdutrai v. Off Assignee of Calcutta, 52, Cal. W.N. 343, at p. 349. That being so, I . think it will be a fau- inference from the provisibns ofthe 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 Mohindar Singh Gill and another y. The Chief Election Commisswner, New Delhi and others , the Hon'ble Supreme Coifft held that High Court has no jurisdiction to entertain a writ petition under Article 226 ofthe Constitution when appropriate forum of filing el'ection petition is provided under the statute as the election petition requires a full trial. (1978) 1 SCC 405 •SK -4- <-•" Amit 6. tathemsSSec oflndrajit Bariia and othersv. ElectionCommissionofIndia and others and Manda Jagannath v. K.S. Rathnam and others4, ibe Hon'ble Supreme Court reaffirmed fhe view taken in the matter of N.P.Ponnuswami (svpra). . . 7. Subsequently, in tfie matter of Avtar Singh Hit v. Delhi Sikh Gurwhvara Management Committee and athers ,vfberem the Hon'ble Supreme Court relymg 6n the ratio laid down in the case of N.P.Ponnuswami (Supra) observedas under: "19. It is well-settled principle that where elections are conducted in accordance with the provisions of a statute and fhe 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 Consfitution. This view has been taken in a series ofdecisions rendered by this Court......." 8. The dicta laid down as above was reiterated in the matter ofGwdeep Singh 9. Dhillonv. Satpaland others . Reliance of leamed counsel on a decision of Halke Mahale v. H.C.Kamthan, Sub Divisional Officer, Karera and others , is not of any assistance to the petitioner as the issue has been considered time and again in several decisions by the Hon'ble Supreme Court. Even otherwise, the decision in the present case deals with exercise of discretionary power of the High Court under Article 226 ofthe Constitution oflndia. 10.^ As a result and for the reasons mentioned hereinabove, the writ petition is dismissed as not maintainable. No order asto costs. Satts^^T' iud6e » Qfl V 3AIR1986SC103 "(2004) 7 SCC 492 5 (2006)8 SCC 487 6 (2006)108cc 616 7 1969 J.L.J. Shortnotes39 ^.