^^stel.^ mw tt. "'f^-1' cA^^o IN THE HIGH COURT OF CHHATTISGARH. AT - BILASPUR WRIT PETITIO ^o. ^^1 ^ OF 2007 .<>,..' PETITIONER : KHAMHAN PRASAD TIWARI, AGED - 47 YEARS, ,,-^t^ SON OF SHRI RADHE MOHAN TIWARI, ^b\ .^^^ ,. R/0 VILLAGE - AMORA, %^Vfc^\.^'''""f TEHSIL - NAVAGARH, DISTRICT - JANJGIR - CHAMPA (C. G.) t^'... ^•••" RE£PONDENTS VERSUS .2. ^^ ^; ^. ^y -:»>" ¥- ^ STATE OF CHHATTISGARH, THROUGH - THE SECRETARY, WATER RESOURCES DEPARTMENT D. K. S. BHAWAN, RAIPUR THE COLLECTOR / DISTRICT ELECTION OFFICER, DISTT.- JANJGIR CHAMPA (C. G.) EXECUTIVE ENGINEER / NODAL OFFICER, HASDEO CANAL MANAGEMENT DIVISION, JANJGIR, DISTT.- JANJGIR CHAMPA (C. G.) TEHSILDAR / ELECTION OFFICER, WATER CONSUMER PANCHAYAT ELECTION, NAVAGARH, DISTT.- JANJGIR CHAMPA (C. G.) PREM RAM KASHYAP S/0 RAM BISHAL KASHYAP R/0 VILLAGE - CHAURABHATHA, P. O. - AMORA, TEHSIL - NAVAGARH, DISTT.- JANJGIR CHAMPA (C. G.) MANOJ KUMAR SINGH S/0 DEV PRAYAG SINGH R/0 VILLAGE & P. O. - SEMRA, ^^ESS^ ^^ <'&. 7. TEHSIL - NAVAGARH, DISTT.- JANJGIR CHAMPA (C. G.) RAM GOPAL YADAV, S/0 SHANKER DAYAL YADAV, R/0 VILLAGE & P. O. -AMORA, TEHSIL - NAVAGARH, DISTT.- JANJGIR CHAMPA (C. G.) RAM SHANKER SHRIWAS, S/0 NET RAM SHRIWAS, R/0 VILLAGE - CHORBHATTI, P. O. - AWARID, TEHSIL - NAVAGARH, DISTT.- JANJGIR CHAMPA (C. G.) WRIT PETITION U/A - 226 OF CONSTITUTION OF INDIA y 8, ^ HIGH COURT OFCHHATTISGARH : BILASPUR WRIT PETITION (C) N0.2514 OF 2007 PETITIONER Khamhan Prasad Tiwari RESPONDENTS Versus State of Chhattisgarh & Others (Writ Petition under Article 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri R.K. Kesharwani, Advocate for the petitioner. Shri A.S.Kachhwaha, Deputy Advocate General for the State. Shri SomnathVerma, Advocate forthe respondent No.5. Shri P.M. Srivas, Advocate for the respondent No.8. ORDER (ORAU (Passed on this 10th day ofAugust, 2010) 1. Heard learned counsel appearing for the parties. 2. By this petition, the petitioner is impugning the election process for the post of Panchas and President of the Management Committee, . Water Consumer Panchayat, Awarid, Tahsil-Navagarh, District- Janjgir-Champa and the election thereof, held on 11/02/2007. The elections are held under the provisions of the Chhattisgarh Sinchai Prabandhan Me Krishkon Ki Bhagidari Nirvachan Niyam, 2006 (for short "the Niyam, 2006") »• framed in exercise of the power conferred by Section 55 of the Niyam, 2006. 3. There is a clear provision with regard to questioning of validity of • election enshrined under the Rule59 of the Niyam, 2006 that if any question arises to the validity of an election, the question shall be referred to the Government whose decision thereon shall be final. 4. Rule 59 of the Niyam, 2006 reads as under ; "59. Power of government in certain cases.- If any question arises to the interpretation of these Rutes otherwise, than in connection with an enquiry held under these Rules, for the decision of disputes as, to the validity of an election or in removing any difficulty in giving effect to the provisions of the act, the question shall be referred to the Government whose decision thereon shall be final" 5. In N.P. Ponnuswami v. The Returning Officer, Namakkal Constitutency, Manakkal, Salem Dist., and others , a six judges Bench of the Supreme Court, observed as under: "12. It is now well-recognized that where a right or liability iscreated by a statute which gives a special remedy for enforcing it, the remedy provided by that stafutory only must be avaited of. This rute was stated with great clarity by Willes J. in 1/1/o/i/er 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 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 statufory 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 applicabte to cases of the second class. The form given by the statute must be adopted and adhered to." ¥- 1AIR(39) 1952 SC 64 ^^\ The rule laid down in this passage was approved by the House of Lords in Nevile v. London Express Newspaper Ltd., (1919) A.C. 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tabago v. Gordon Grant & Co., 1935 A.C. 532 and Secretary of State 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, atp. 349. That being so, 1 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." 6. In Mohindar Singh Gill and another v. The Chief Election Commissioner, New Delhi and others2, the Sapreme Court held that High Court has no Jurisdiction to entertain a writ petition under Article 226 of the Constifution when appropriate forum of filing election petition is provided under the statute as the election petition requires a full trial. In Indrajit Barua and others v. Election Commission of India and others3 and Manda Jagannath v. K.S. Rathnam and others , the Supreme Court reaffirmed the view taken in the matter of 7. 8. N.P.Ponnuswami (supra). Subsequently, in Avtar Singh Hit v. Delhi Sikh Gurudwara Management Committee and others , wherein the Supreme Court relying on the ratio laid down in the case of N.P. Ponnuswami (supra) observed as under: "19. 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 2 (1978) 1 SCC405 3AIR1986SC103 4 (2004) 7 SCC 492 5.(.wnfivoSCC 487 Gowri 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......." 9. The dicta laid down as above was reiterated in Gurdeep Singh Dhillon v. Satpal and others . 10. This Court, relying on the ratio laid down by the Supreme Court in the cases cited above, directed the petitioner to take recourse to election petition in other identical matters i.e. Sewa Sahakari Samiti Jhironi & another v. State of Chhattisgarh & Others and Surya Prakash v. Ramratan & Others . 11. In view of availability of provisions under Rule 59 of the Niyam, . 2006, no writ is maintainable. Thus, the writ petition fails and is hereby dismissed. However, Jiberty is reserved to the petitioner to take appropriate steps, if so advised, under the provisions of law. It '.' ^,.,...SdA „ Satish K.Agnihotri .. Judge , ^^ c/ f' 6 (2006) 10 SCC 616 7W.P.(C) No. 7324/2007 decided on 17.11.2008 8 W.P. No 2607/2006, decided on 26.11.2008