IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fCI No. ^SQ^- OF 2010 PETITIONER ^. I-7 -^' fls y ';---\l^-t-" •:s^-'' w^'"' -.A'"t ^<.^ RESPONDENTS ^^ Jyotish Kashyap, aged about 45 years, S/o Shri Radheshyam Kashyap, Chairman District Co-operative Central Bank Ltd., Bilaspur (C.G.) VERSUS 1. State of Chhattisgarh, Through: the Secretary, Co-operative Societies, D.K.S. Bhawan, Mantralaya, Raipur (C.G.) 2. Registrar, Co-operative Societies Government of Chhattisgarh, D.K.S. Bhawan, Raipur (C.G.) 3. Shri D.S. Thakur, Joint Registrar, Co-operative Societies Government of Chhattisgarh, Bilaspur (C.G.) 4. Chief Executive Officer, District Co-operative Central Bank Ltd., Bilaspur, District Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTIQN_QF INDIA liBI <-•? IN^^HIGHGGWRTOE'CHH.&TI^GARH^^^^^ WritPetition(t;tWo. 3227 of 20:10 Jyotish Ka.Sliyap t<::'.;:;^t-<w^^'&"-^^^ i PETITIONER RESPONDENTS INTERVENERS / Sfate 6f GUIiattisgarh 85 others • : , ; 1) Devendra;]i^iTiarPaadey,^sSno^ Ka Prasad ^iidey, aged.aBbfrtj'50^y®aT5,; Resid^t ctf Durpa .Road,.^^!^ ahdDistrict-Korba.(CtifeattisgaFh) •'"•:., 2) Anjordas, soii of Shri.' Gyandas? Mahant, aged about '74 years, iReSident;of. ViUage ,S''-^ r. . I^fa,^ 'DislTict-.^^^^ {Chliattisgarh)' / ..•1-..,.'; ,"'ll"..''''^%l!',:h^ 3) -Lakhan LaL RatliQre^ • son^ of ?!sliri HeeFalaJ. ,'age8^about:63 years^Residenf ctf<,^VilIageu^t-agaon)'';:Di.StriGt-.Jajnjgir- Clia&pa^©UKaitfisgarh)-::;'.^;:',l':'.i,^ 4);=]®inasHaa|caTs;ShaFnia,;.'^SCTO|.::of'iSK ®atiiKurtiar,Sa.g^l.abQufc 44 yearS,:'ResiSent ®f;''\^age-'..'Earnreed,^^DisfEict CliaEBiia. (CKhaftisgarh).: • , .'•l • [ : ? 5) SantosK Kumar 'Xadav^ son ^of^S^ Nokhelail ¥aday, aged' ahc)ut,^53..^yea.rs,i Resident of - Village- Karuihahu,| Janjgir-Champa (Ghhattisga.rfi)' IMstriGt-. 6) Shivnarayan Satrianu,^ soni !of j Sftri^ RaMiu^ S^na^iy'aged' a^^^^ Resident' pf^'ViIlage—:,C;hHapcJra.,!/:Dis|tirict- Janjgir^hanipa (Chhaftisgarh) y1' ,^^^;' ^ 'w :Mnis ::ill.i1; '?..< -!!i t^K^'s :^-'.^^-'"'."'.^' 111 esw iffiii:;:;'!!; Biiii';'i IHM (<1 FT.a<J h ^ TQm 7) Maghram Kashyap, son of Shri Dayanidhi, aged about 45 years, Resident of Village-Ghivra, District-Janjgir-Champa (Chhattisgarh) 8) Manharan Lal Gupta, son of Shri Lalji Gupta, aged about 60 years, Resident of Village - Pipartarai, District- Bilaspur (Chhattisgarh) 9) Smt. Ushadevi Rajput wife of Shri Lakhan Singh Rajput aged about 40 years Resident of Village - Kodwabani, Tahsil- Mungeli, District-Bilaspur (Chhattisgarh) 10) Dubey Singh son of Shir Ved Prakash , Resident of Village-Seepat, District- Bilaspur (Chhattisgarh) 11) Mahendra Dewangan son of Shri Padumanlal Dewangan aged about 35 years , Resident of Village-Kera, District- Janjgir-Champa (Chhattisgarh) APPLICATION FOR INTERVENTION r-E- '•m n mGH COURT OF CHHATTISGARH AT BILASPUR WRJT PETITION CC) No. 3227 of2010 PETITIONER : Jyotish Kashyap. VERSUS RESPONDENTS : State of Chhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri. J. Present: Shri Arvind Dubey, Advocate appearing on behalf of Shri Bhaskar Payasi, Advocate for the petitioner. Shri Y.S.Thakur, Deputy Advocate General for the State/ RespondentNo. 1 to 4. Shri Sanjay K. Agrawal, Advocate for the respondent No. 5 to 16. ORDER(ORAL) (Passed on 22nd day of July, 2010) 1. Leamed counsel appearing for the petitioner submits that certain irregularities have been committed by the Registrar which amounts to violation ofCode ofConduct. 2. Shri Thakur, leamed counsel appearing for the State/respondent No. 1 to 4 submits that the election schedule was announced earlier and polling is taking place today and the pet tion has become infructuous. Further, the writ petition is not maintainable as there is a provision of filing of election dispute under section 64(2)(v) of the Chhattisgarh Cooperative Societies Act, 1960. The petitioner, if so advised, may take recourse to the said provision after election is over. 3. It is well sett.led that once the election has been set into motion by notification, the Courts should refrain itself from interfering with the election process. 4. In the matter of N.P.Ponnuswami v. The Retwning Officer, Namakka! Constitutency, Manakkal, Salem Dist., andothers a sixjudges Bench of the Hon'ble Supreme Court, observed as under: "12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforeing it, the remedy provided by that statutory only must be availed of. This mle was stated with great clarity by Willes J. in Wolver Hampton New Water Works ~1'AIR (39)19528c 64 F-< 5. 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 statutory 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 applicable to cases of the second class. The form given by the statute must be adopted and adhered to." 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 Priyy Coimcil in Attorney General of Trinidad 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 ofCalcutta, 52, Cal. W.N.343,at p. 349. That being so, I think it will be a fair inference from the provisions of the Representation ofthe 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 ofMohindar Singh Gill and another v. The Chief Election Commissioner, New Delhi and others , the Hon'ble Supreme Court held that High Court has no jurisdiction to entertain a writ petition under (lp—jl SCC 405 ^^ Article 226 of the Constitution when appropriate forum of filing election petition is provided under the statute as the election petition requires a full trial. 6. In the matter of Indrajit Barua and others v. Election Commission of India and others and Manda Jagannath v. K.S. Rathnam and others , the Hon'ble Supreme Court reaffirmed the view taken in the matter of N.P.Ponnuswami (supra). 7. Subsequently, in the matter ofAvtar Singh Hit v. Delhi Sikh Gurudwara Management Committee and others , wherein the Hon'ble 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 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......." & The dicta laid down as above was reiterated in the matter of Gurdeep Singh Dhillon v. Satpal and others . 9. 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 . 10. The Supreme Court, in Shri Sant Sadguru Janardan S-wami (MoingiriMaharaj) Sahakari Dugdha Utpadak Sanstha & Others v. 3AIR1986SC103 4 (2004) 7 SCC 492 5 (2006) 8 SCC 487 li(2006)10SCC616 7W.P.(C)No. 7324/2007decidedon 17.11.2008 8 Wp. No 2607/2006, decided on 26.11.2008 ^H'J 11. State ofMaharashtra & Others , relied on by leamed counsel appearing for the respondent No. 5 to 16, observed as under: "9. Ifthe contention ofthe appellants is that there was a breach of mle or certain mandatory provision of the Rules were not complied with while preparing the electoral roll, the same could be challenged under Rule 81(d)(iv) ofthe Rules by means ofan election petition. In view ofthat the preparation of electoral roll is part of the election process and if fhere is any breach of the Rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the Tribunal." In view of the foregoing, the writ petition is dismissed. However, liberty is reserved to the petitioner to take recourse to the altemative statutory forum that may be available to the petitioner under the provisions oflaw, ifso advised. [- — Satish K. Agnihotri Judge Aniit (2001)8SCC509