magi caUR'I‘ OF CHEATHSGAim AT BiLASim’R Writ iietition w) No. 6%}; urzmm §’ETITIONER Utiam 8mgh Jagat, S/o Shri Tul Singh Jagat, aged aboui 55 Chhaitisgarh. 3. Shri Shiv Prasaé, Up Sarpanch, Glam Panchayat, Polmi, Janpad Panchayat, Pali, Distt. Korba, Chhattisgarh. {W RIT ?ET1T£ON UNDER ARTICLE 226 OF THE CONSTITUTION OF INDEA) (SB: Hmfbie Mr. Satish K. Agnihotri, J.) Present : Shri Pankaj Shrivastava, Advocaie for the petitioner. Shri Bha$kar ?yasi, ’r’anel Lawyer for the State. ORAL ORDER (Passeai m 9'” aay of Febmary, 29w} The petitioner has preferred this petition against the order dated 24.11.2(ii)6 (Annexure P/l), passed by the Coiiector, Korba, hy which the v iiiiiziings recorded by the Presi&ing Oii‘icer i.e. Sub Divisional Oiiicer (Revenue) Kaighora. has been reversed and the petitioner has been removed irom the post oi‘Saipaiich Gram Panchayat. Polmi. 2) According to ieamed counsel appearing for the parties, the election was alreaciy held and the resuits have been declared thereof. It is well settled principle ofiaw that it‘there is a provision for election petition, no writ petition is maintainable. 3‘) In the matter oi‘NRPoimuswami v. The Returning Officer, Namakkal Censiémtenq’, Mawgkryl, Satan Dist, and athwsi a six judges Bench of the Hon’hie Supreme Court, observed as under: 1‘ NR (3g) 1§52 SC 64 years, Saipanch, Gram Panchayat, E‘oimi, Janpad Panchayat, Paii, Distt. Korba, ‘Chhattisgarh. VERSUS KESPON§ENTS .State of Chhattisgarh, through Collector, Korba, Chhattisgarh. 2. Sub Divisionai (mica (R), Kathgora: Distt. Korba, a» “i2. it is now weii-recognized that Where a, yig'ht or liability is created by a. statute whim gives a spacial remedy for enforcing it, the remedy provided by that Statutory miy must be avaiEed uf Thie mle was stated with great clarity by Willes J. in Waiver Hampttm New Water Works C0. v. H¢¥wlce$0ni (1859) 6 CB. (NS) 336. at. p. 356 in the fonowing passage: “There are three Classes of cases in which a iiaibiiity may be estabiished founded upon statate. Orie is, where there was a liabiiitv existing at commori law, arid that iiability is aifirmed by a statute which gives a special and pecuiiar form ofremedy ditt’erent trcm the remedy wmen .1 ' I existed at eornmoe iraw; . mere, 1. uniess the statute contains words which expressly or by necessary impiicaticn exclude the common 1aw remedy, the party suing has his election to pursue either thatt or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but orovides no particular form of remedy: there, the party can oniy proceed by action at eonmion law. But there is a third class, viz. Where a liability hot 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 grovided by the statute must be foliowed, and it is not comnetent to the party to pursue the course appiicable to cases of the second ciass. The form given by the statute must be adopted and adhered to.” The ruie laid down in this passage was approved by the House of Lords in .Neviga V. Lorzdrm Express Newspaper Ltd, (1919) A.C. 368 and has been reafl‘irmed by the Privy Council in &ttomey'GehemZ of Trinidad and Tatiago v. Gordon Grant d’z ('30., 1935 A.C. 532 and Seereiaiy QfState v. Mask & C0. 44 Cal. WN. 709; and it has also been heid to be equalty applicable to enforcement or rights (See Hurdatrai v. (2% Assignee ofCalcuz‘ta, 52, Cal. W.N. 343, at p. 349. That being so, Ithink it will be a fair inferenee hon} the provisions 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 ajter the election is over, and there is no remedy provided at any intermediate stage. 4) In the matter ot‘Moiiindar Singh Giii and anather v. The CiriQ‘EJection Commissioner, New Delhi and wharf, the Hon’ble Supreme Court held that High Court has no jurisdiction to entertain a writ petition under Article 226 of the Constitution when appropriate forum of tiiing election petition is provided under the statute as the election petition requires a fuli trial. 2 (i978) 1‘ soc 405 ” Sahu 5) in the matter of fadt'ajit Banal and athers v. Election Cammission of Ltadia am! ether? and Manda Jagasmath v. KS Rathnam and ather", tha Hon’bie Supreme (301111 reaiiirmed the View taken in the matter of NRPonnuswami (supra). Subsequently, in the matter ofAvtar Singh Hit v. Delhi Sikh Gumdwara Management Cgmmiztae and otherss, wherain the Hon’bla Sugtema Cemt reiying on the ratio laid down in the case ofNPtPonnuswami (Supra) observed as under: 6) 7) “19. Ki is well-settied principle that where elections are conducted iii accordance with the provisions of a siatute and the statute also provides a remedy of sememem ef eleeéiors disputes by fiiing m1 eiection petition before a tribunai, it is that remedy aione which shouid be availed of arid recourse camot be taken to proceedirigs under Article 226 of the Comtitutimi. his View has been t$en in a series of decisiom rendered by this Couri .......” The dicta iaid down as above was reiterated in the matter of Gurdeep Siagh Dhiiian v. Sagan! and others? Since the eiection had aiready taken piace, the grievance ofthe petitioner can be considereé only in the eiection petition iited under the provisions Chhattisgarh Panchayat Raj Atthiniyam, 1%3. the foregoing, the writ petition is disposed of. However, jitgerty is reserved to the petitioner to take recourse to the alternative statutory In View of bu)«- mg . AIR 1986 SC 103 . (2004) ’7 SCC 492 (2005) 10 SCC 616 forum that may be availabie to the petitioner under the provisions of law. 10) interim relief gamed earlier stands vacated. Sd/- Satish K. Agnihotri Judge 3) 9) I i i t (2006) 8 soc 487