PETITiONER : SuryaPrakashS/oKartikramSahu,agedabout40years, R/ovitiage Pisid, Tahsil Kasdoi, District Raipur (CQ). VERSUS RESPONDENTS : 1. Ramratan S/o Firatram Patel, aged about 45 years. 2. Anant Kumar S/o Ganesh Sahu, aged about 60 years. <j 3. Amarnath S/oGangaram Patel, aged about 35 yeare. 4. IshwarS/oShankarPatel.aged about23years. 5. Guial S/o Puniram Sahu.aged about 32 years. 6. Ghanshyam S/o Ramprasad Khandekar, aged about 25 7. Chamaru S/o Bhavdha Kaiwartya, aged abeut 36 years. 8. Daras S/o Mahads Sahu, aged about 40 years. 9. Dukaluram Slo Ganau, aged about 40 vears. lO.Manharan S/Q Balaram, aged a bout 27 years. 11. Rajkumar S/o punidas, aged about 40 years. The respondent No. 1 to 11 are R/o Vitlage Pssid, Tahsi! Kasdol, District Raipur (CG). . 12-Sub Divisional Officer, Bilaigarh, Distt. Ralpur (CG). (WRIT PETiTiON UNDER ARTICLE 2270F THE CONSTITUTION OF iNDIA) (SB: Hon'bleMr.SatishK.Aamhotri.J.S •;° 61 Shri Rakesh Pandey, Advocate for the pstitioner. Shri S.C. Verma, Advocate for the respondeni No. 1. (Passed on 26' day of Novennber, 2008$ Chaltenge to this petition is the orderdated 13-2-2006 (AnnexureP/1) passed in election petition No. 8W89 (21)/2004-05 (Raroratan Vs. Anant Kumar and others) by the Sub Divisional OfRcer-cum-Prescribed Authority, BhiSaigarh, wherein the election of the petitioner herein to the post of Sarpanch was deciarwf void as per provisjons of Section23 (1) (b) of the Ghhattisgarh Pancha^Bts (Eiection Petitions, Corrupt Practices and Disqualification for Membership) Rutes^f 1995fforshort,"theRules1995^. :.m?' :^^^^%%^j ^^^^ U,IUl-^UU^,..l.... rf^2 ^S-Si E5^ ?/ v 2) The brief facts, in nutshsll, for adjudication of ths case are, that the rsspondent No.1 herein chaitenged the eiection of the petitioner, held on 15-1- 2005. wherebv the oetitioner was elected as Saroanch of Gram Panchavat, Pisid, undsr Section 122 of the Chhattisgarh Panehayat Raj Adhiniyam, 1993 (for short, "the Adhiniyam, 1993") read with provislons of Rulqs 1995 on the ground of disquaiification for encroachment of Government iand. In the eiection petition, after having exarriined the facts of the case, the prescribed authority heid that the aliegation Viifh regard to fliing of wrong affidavits by the petitioner was not found proved, as there were no material to establish the aiiegation. Other allegation 'with ^ tegard to non-submission of expenses vi/as also not found proved. The atlegation with rsgard to encroachment of the Government !and was found proved and on that basis the election of the petitioner to tlie post of Saroanch v/as daciared as void under Rule 23 (1''i('o') ofthe RuSes 1995. 3) This court on 24-5-2G<S5 whlle issulng notlces .observsd that if anv re- slertjon takss piace during pendency of this petition that shall be subject to final decision of thls petition. During pendency of this petitron adniitted!y etect'ion pursuant to the declaration of fns post of Sarpanch as vacant was heid and ihe result thereof was deciarea- After. notice the petitionsr could not fl'e the process fee within time and as such tiil date no notics couid be issued to the other side. 4) Learned counsei appearing for the petltioner wouid submit that since the eleetlon te the post of Sarpanch in viSiage had aiready raken piacs, this pstition has become acadsmic. Learned counsei would fuither submit that ths subsequent ,;. slection has not been challenged. ^ 5) Per confra, iearned counsel appearing Tor the respondent No.1 would submit that oncs the election to the oost of Sai'Danch has been held and the resuits thereof have been deciared, this petition has become academic. Even if the petitioner succeeds In this petitlon, ths subsequent electlon cannot fae set aslde v»ithouttaking recourse to the eiection Detition. . 6} I have heard ieamed counsel appearing for ths partjes, perused the pieadings and documents appended thereto. It is apparent that even if the petitioner succeeds in this petition, the pet'rtioner cannot join the office as Sarpanch. During pendency of this petltion the election had aiready taken piace and the Sarpanch has been eiectsd, thus, the subseauent eiection cannot be set -.^ •z- aside in this petitlon. tt is weiS settied principle of Saw that iftfiere is a provision for eiectjon petition, no writ petition is mas'ntainabSs. 7) In tha matter of N.P.Ponnuswami v. The Retumi'ng Officer, NamaMtal Constttutency, Menakka!, Salem Dist, Hon'bie Suprsme Court, obssrved as under: 0.1 "12. it is nov» v/eSi-recoanized that 'A'here a riaht or iiabiliU' is created by s statute whteh givss a specja! remedy for enforcing it, the remeay provided by that statutory cmiy must be avaited of. This rute was stated wth great clarity by 'vViBes J. in 1'1,'b'Ver Hampior, IvWt' Waief works Co. v. Hawkesford, (1859) 6 C.B. (N.S.) 336, at p. 356 in the foliowrsg passage: "There are three classes of cases in which a iiabiSitv may be establtehed founded upon statute. One te, wriere mere was a tiabiiity exssting at comrr'.OR ta'av, ana that liabijity is affimned by a statute which glves a specia! and pecuiiar form of remedy dirferent frord S'le rsmedv whteh exssted at common Saw; there, unless the statuts contalns words v.'hich expressty or by necessary impiication exclude the conimon law remedy, the partjf suina has his eiection to pursue either that or ths stelutory remedy. The second ciaas of cases is, where the statuts gives the riaht to sue mere!v. but isrovides no particu'ar forra of remedy: there, tha party can only procaed by action at common iaw. But thers is a third ciass, "'z. where a liabiiity noi existing at coffimon law is created by a stutute whfch at the same time gh/es a speclal and DarticuSar remsdy for snforeing it........The remedy provsded by the statute must be.fo'iov/ed, and it js not competent to tne party to pursue me coursa appilcabie to cases of the second ciass. The form given bv the statute rnust fae acSooted and adhei'ed to." The ruie Said down in this passage was approveri by the House of Lords in Nevile v. London Exprsss Newspaper Lfd, (1819) A.C. 368 and has been reaffirmsd by the Privy Councii m Attorney Generai of TrinicfecS and Tabago v. Gorcton Grant & Co., 1935 A.C. 532 arsd Sea-etary of State v. Mask & Co. 44 Cai. W.N. 709; and it has also been held to bs equally appilcable to enforcemeni or rights (See HunMrai v. Off. Assignse of Catoutsa, 52, Cal. W.N. 343, at p. 349. That bslno so. I th'nk It will bs ^ f^ir Inf'&f^-nc$ ^'oin 1tis provisfons of ihe Representation of 'he Peopis Act to siate that the Act orovides for onlv one ramedv, that remedv being by an etection petitlon to bs prssentsd after the slectlon Is over, and thes'e is no remsdy provided stege." n the mattsr of Mohindar Smgh Gil! and another v. Ths Cfttef Elect -? le Hon'bte Supreme Court hsid t' h Court has no jurisdiction to antertain a writ petition under Article 226 of • A'Rf3y)1Q52SCi ^ Coysstitution v/hen appropriate forum of flilng eiecSion petition is provicied under the statute as ihe election petition requires a full triai. 8) !n She matter of .3 Manda Hon'ble Supreme Court reai N.P.Ponnuswami (supra). the view ts *, the In the matter of 10) Subsequently, in the matter of Avtar Si ffa.na.ffe.menf Committee and ofters3, wh< reiying on ihe ratso iald down in the case of N.P lii Hit v. Deihs Sikh Gunid'wara sm the Hon'bie Su.ore.ms Court 'onnuswamS (Supra) observed as under igh "19. St is weii-ssttied orinciDle that where eiections are conducted in accordance with the provlstons of a statute and ths statuts also proyides a remedy of setSiement of eiection disputes by filing an siection petition before a tribunai, It is that re'nedy alone which should be avalled of and recourse cannot be taken to proceedsngs under ArtlcSe 226 of the Constitution. This vjew has been taken In a series of declsioRs rendered by thls Court......." The dicta iaia dovm as above was reiterated in the matter of ^ jn^s 'iurdeep 12) Since the siectjon had already taken piace. the grievance of the petitioner cannot be considered in this petition and no su&stantjve rei'ief restoring the petitioner on the post of Sarpanch can be granted . 13) In view of the foregoing, the writ petitlon is dlsposed of. However, on the request of learned counsei for the petitioner, ilberty is resarvsd to ths petitioner to take recourse to the approprinie statutorii' forum that may be avaliable to ths petitioner under the orovisions of law for removai of disgua!ification of the Detitioner from the post of Sarpanch to the effect that the petitioner was encroacher of the Govemment land. 14) Interim re!ief granted sarlier stands discharged. Consequentiy, EVl(W)P No. 1953/06, application for interim reiier aiso stands disposed of. 'AiR 1986 SC 103 4 (2004) 7 SCC 492 5 (2006) 8 SCC 487 " {2006) 10 3CC 616 Sd/- Satish K.Agnihotri Judge