IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. fd No. 3S^ 7/2007 PETITIQNER Indrajeet Patel S/o. Sobharam <R/o. Village Amlidih, Distt - Mahasamund (C.G.) i\5 ^^- RESPONDENT VERSUS 1. 2. T'V?'T7T?~\ rvf lUl^lVtj'J—L.;\J^'2 a_3?J-':7 3. CLS'-'t .> .,. •". •CPTTS State of Chhattisgarh Through the Secretary Co-operative Society D.K.S. Bhawanm, Raipur Registrar, Co-operative Society ; Raipur, Distt.- Raipur Deputy Registrar Co-operative Society Mahasamund, Distt.- Mahasamund ; Returning Officer, Co-operating Society Shri Purohit, R/o.- Village Pithora, Distt.- Mahasamund (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR WRIT OF MANDAMUS, CERTIORARI OR ANY ORDERS OR DIRECTIONS The Petitioner humbly submits followingfacts and grounds as under: - ^%^^^^ mGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRIT PETITION (0 No. 3217 of2007 Indrajeet Patel RESPONDENTS VERSUS State ofChhattisgarh & Others. WKtT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF DMDIA SB: Hpn'ble^hri Satish ICAgnihotri, J, Present: Smt. Renu Kochar, Advocate for the petitioner. Shri P.K. Bhadiu-i, Panel Lawyer for the State. ORDER fORAL) (Passed on 5th day of July, 2010) 1. By this petition under Article 226 of the Constitution of India, the petitioner challenges the election of Co-operative Society of Sarkada Co-operation Society, District-Mahasamund held on 28/05/2007. 2. No extraordinary or specific situation arise to invoke writ jurisdiction of this Court, when, there is a clear statutory provision for preferring an election petition of the Co-operative Society under Section 64 (2) (v) of the Chhattisgarh Co-operative Societies Act, 1960 (for short "the Act, 1960"). 3. It is well settled that validity ofthe election can be challenged only in election petition and not by way ofwrit petition under Article 226 ofthe Constitution of India, when there is a specific provision under section 64(2)(v)oftheAct,1960. 4. In fhe matter of N.P.Ponnuswami v. The Retuming Offtcer, Namakkal Constitutency, Manakkal, Salem Dist., and others a six judges Bench ofthe Hon'ble Supreme Court, observed as under: "12. It is riow 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 rule was stated with great clarity by Willes J. in Wolver Hampton New Water Works Co. v. HcMkesford, (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 ofremedy 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 enforeing 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 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 ofState v. Mask & Co. 44 Cal. W.N. 709; and it has also been held to be equally 'AIR (39)19528c 64 ^.^^"^s^s?^-^ T applicable to enforcement or rights (See Hurdutrai v. Off. Assignee ofGalcutta, 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 of Mohindar 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 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. In the matter oflndrajit Barua and others v. Election Commission of India and others and Manda Jagannath v. K.S. Rathnam and others4, the Hon'ble Supreme Court reaffirmed the view taken m the matter of N.P.Ponnuswami (supra). Subsequently, in the matter of Avtar 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 aa 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 2 (1978)18cc 405 3AIR1986SC 103 4 (2004) 7 SCC 492 5 (2006) 8 SCC 487 »'.^%i '^ Arun Constifaition. 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. In view of the foregoing, the writ petition is dismissed as not maintainable. 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 of law, if so advised. Sd/- SatishK.Agnihom ludge 6 (2006) 10 SCC 616 7 W.P.(C) No. 7324/2007 decided on 17.11.2008 8 W.P. No 2607/2006, decided on 26.11.2008