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Kalka Prasad Lajja Ram Vs. Election Officer, Gwalior - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Revn. No. 74 of 1970
Judge
Reported inAIR1973MP91
ActsConstitution of India - Article 226; Madhya Pradesh Panchayats Act, 1962 - Sections 357(1)(2)
AppellantKalka Prasad Lajja Ram
RespondentElection Officer, Gwalior
Appellant AdvocateH.G. Mishra, Adv.
Respondent AdvocateJ.P. Srivastava, Adv.
DispositionPetition dismissed
Cases ReferredMalam Singh v. Collector
Excerpt:
.....order passed in the process of election, where that remedy is available, it would not be propel for the high court to exercise its undoubted powers under articles 226 and 227 of the constitution for interfering with an interlocutory order passed during the process of election, save in very exceptional circumstances. ' 17. the legal position thus was that there was no constitutional bar to the exercise of the writ jurisdiction in respect of elections to local bodies such as municipalities, panchayats and the like, though it was desirable to resolve the election disputes speedily through the machinery of election petitions. 21. in view of the above, we hold that the petitioner having failed to avail of the special remedy provided for by section 357 (1) (2) of the madhya pradesh..........an election petition and since he did not avail of that remedy, he was not entitled to invoke the writ jurisdiction of this court.5. the point for decision is whether this court could entitle the writ petition under article 226 of the constitution when the petitioner has not availed of the remedy provided under section 357 of the madhya pradesh panchayats act.6. having heard shri h.g. mishra, counsel for the petitioner and shri j. p.shrivastava, counsel for the respondents nos. 1 and 2, we are of the view that the petition must be dismissed.7. section 357 of the madhya pradesh panchayats act runs as under;--'357. election petition:-- (1) no election or co-option notified under sections 20, 113, 170 and 216 shall be called into question except by a petition presented to the prescribed.....
Judgment:

Dwivedi, J.

1. This is a petition under Article 226 of the Constitution ofIndia.

2. The petitioner's case is this:--The petitioner Kalka Prasad and the respondent No. 3 Badamsingh were candidates for the office of the Panchas to Devri Kalan Gram Panchayat. The election was scheduled to take place on 17-5-1970 for which the petitioner was allotted the symbol of Bullock and the respondent No. 3 Badamsingh the symbol of scales (annexure A-1). According to sub-rule (5) of Rule 30 of Madhya Pradesh Gram Panchayats Election and Co-option Rules, 1963, the allotment of symbol is final. The petitioner and the respondent No. 3 Badamsingh canvassed on the basis of these symbols. The pamphlet distributed by the respondent No. 3 Badamsingh was as per Annexure A-2. In the election, the symbol of Bullock polled 46 votes while the symbol of scale 32 votes. The petitioner who was allotted the symbol of bullock ought to have been declared elected but the Election Officer, respondent No. 1 declared respondent No. 3 Badamsingh elected treating his symbol as bullock, which was wholly illegal, unwarranted and ultra vires of the provisions of law. Hence this petition for writ of certiorari for quashing the election of the respondent No. 3 Badamsingh.

3. Badamsingh, respondent No. 3 did not file any return.

4. Election Officer, respondent No. 1 and the Collector, respondent No. 2 admitted that the petitioner and the respondent No. 3 Badamsingh were allotted the symbols of builock and scale respectively but denied that the election officer effected any change or unauthorisedly declared the respondent No. 3 Badamsingh elected treating his symbol as bullock. They contended that the Polling and the Presiding Officers were necessary parties to the petition and since they have not been joined, the petition was incomplete. They contended that the petitioner raised no objection nor lodged any complaint with the Polling or Presiding Officer before or after the election. They asserted that the petitioner had an alternative remedy of filing an election petition and since he did not avail of that remedy, he was not entitled to invoke the writ jurisdiction of this court.

5. The point for decision is whether this Court could entitle the writ petition Under Article 226 of the Constitution when the petitioner has not availed of the remedy provided under Section 357 of the Madhya Pradesh Panchayats Act.

6. Having heard Shri H.G. Mishra, counsel for the petitioner and Shri J. P.Shrivastava, counsel for the respondents Nos. 1 and 2, we are of the view that the petition must be dismissed.

7. Section 357 of the Madhya Pradesh Panchayats Act runs as under;--

'357. Election petition:-- (1) No election or co-option notified under Sections 20, 113, 170 and 216 shall be called into question except by a petition presented to the prescribed authority.

(2) No such petition shall be admitted unless it is presented within fourteen days from the date on which the election or co-option was notified.

(3) Such petition shall be enquired into or disposed of according to such summary procedure as may be prescribed.'

8. _The law relating to the Election Petition in respect of election and co-option of the Gram Panchayats is contained in Section 357 of the Panchayats Act, 1962 and Madhya Pradesh Gram Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962. The election in this case was held on 17-5-1970 and it was not disputed that an election petition before the prescribed authority was not filed within 14 days of the election as required by sub-section (2) of Section 357 of the Act. The writ petition was filed on 18-7-1970 long after the prescribed period of limitation for election petition had expired. It is apparent that the petitioner did not avail of the special remedy provided for in the Act and desired that this Court should exercise its power under Article 226 of the Constitution of India. We will first advert to the law.

9. In Union of India v. T.H. Verma, AIR 1957 SC 882 it was observed: --

'It is well settled that when an alternate and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor.'

10. In Thansingh v. Supdt. of Taxes, AIR 1964 SC 1419 it was observed:---

'Ordinarily the court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which without being unduly onerous provides an equally efficacious remedy'.

'Where it is open to the aggrieved petitioner to move another tribunal, or evenitself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statute to be by-passed and will leave the party applying to it to seek resort to the machinery so set up.'

11. In British India Steam Navigation Co. v. Jasjit Singh, AIR 1964 SC 1451 it was observed:--

'The rule that a party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, though not one which bars the jurisdiction of the court to entertain the petition or to deal with it, is a rule which courts have laid down for the exercise of their discretion.'

'Besides, the High Court should be slow in encouraging parties to circumvent the special 'provisions made providing for appeal and revisions in respect of orders which they seek to challenge by writ petition under Art. 226.'

12. In Sangram Singh v. Election Tribunal, Kotah, (1955) 2 SCR 1 at p. 2 = (AIR 1955 SC 425) it was held:--

'It is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about special rights, as in election cases, decided as speedily as may be. The High Courts should not, therefore, entertain petitions for prerogative writs lightly in this class of case.'

13. In Municipal Council, Khurai v. Kamal Kumar, AIR 1965 SC 1321 at p. 1324 it was laid down as under:--

'It is true that the High Court would not ordinarily entertain a petition under Art. 226 of the Constitution where an alternative remedy is open to the aggrieved party. Though that is so the High Court has jurisdiction to grant relief to such a party if it thinks proper to do so in the circumstances of the case.'

14. In Pancham Ramcharan v. Collector, Bhind, 1971 MPLJ 50 = (AIR 1971 Madh Pra 97) dealing with Section 357 of the M. P. Panchayats Act and Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962, it was observed:--

'When a special right is created by a Special law and that special law also provides for a machinery for redress, the party complaining that his rights under the special law have been violated must resort to the remedy provided by the special law and the High Court will not interfere in exercise of its writ jurisdiction except for compelling reasons.

Not that the High Court has no jurisdiction to entertain a writ petition because an alternate remedy is provided in the Act but it will not constitute itself into an election tribunal so as to ascertain facts by recording evidence.'

15. In Associated Cement Co. Ltd., Kymore v. Assistant Commissioner of Sales Tax, Jabalpur, 1971 MPLJ 444 at p. 450 = (1971 Tax LR 702) it was held:--

'The existence of alternative remedy is not a bar for interference; it is only a factor to be taken into account in exercising discretion under Article 226. In our opinion when the facts are admitted and the tax amount is heavy, it would not be a sound exercise of discretion to refuse interference on the ground that the petitioner could have gone up in appeal.'

16. In Malam Singh v. Collector, Sehore, 1971 MPLJ 531 = (AIR 1971 Madh Pra 195) (FB). It was laid down as under:---

'There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities. Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the court in the exercise of its discretion should always decline to invoke its writ jurisdiction in election dispute, if the alternative remedy of an election petition, is available. Thus in view of the provisions of the Madhya Pradesh Panchayats Act, 1962, which provides for an adequate remedy, namely, the remedy of an election petition to be presented after the election is over, for all grievances whether founded on the ultimate result of the election or upon any interlocutory order passed in the process of election, where that remedy is available, it would not be propel for the High Court to exercise its undoubted powers under Articles 226 and 227 of the Constitution for interfering with an interlocutory order passed during the process of election, save in very exceptional circumstances.'

17. The legal position thus was that there was no constitutional bar to the exercise of the writ jurisdiction in respect of elections to local bodies such as Municipalities, Panchayats and the like, though it was desirable to resolve the election disputes speedily through the machinery of election petitions. The question, therefore, would arise whether there were extraordinary circumstances or compelling reasons concerning flagrant or manifest violation of law necessitating the exercise of writ jurisdiction. In view of the law as stated above, especially the Full Bench decision in 1971 MPLJ 531 = (AIR 1971 Madh Pra 195) (FB), Malam Singh v. Collector, Sehore, the petitioner having not availed of the remedy under Section 357 of the Madhya Pradesh Panchayats Act, within the prescribed period, he cannot be permitted to invoke the extraordinary writ jurisdiction.

18. We do not find any compelling or extraordinary circumstances in this case. The petitioner did not explain what pre-vented him from filing the election petition within time. There is no averment in the petition on this aspect of the case. On the other hand, the petitioner omitted total reference to the remedy under Section 357 of the Madhya Pradesh Panchayats Act and mentioned that he had no other efficacious, adequate, convenient remedy, an assertion totally against the special Act.

19. The petitioner placed reliance on Hirday Narain, v. Income-tax Officer, Bareilly, AIR 1971 SC 33 in support of his contention that even if an election petition could be not filed, it would not be a bar for the High Court to entertain his writ petition. The relevant paragraph is as under:--

'An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.'

20. The above observations came in the wake of the admission of the writ petition and its hearing on merits on the ground that if tbe High Court had not entertained this petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved, the period prescribed by Section 33-A of the Act had not expired. This case does not help the petitioner because on the date, he filed the writ petition, the limitation for filing the election petition under Section 357 (2) of the Madhya Pradesh Panchayats Act had long expired and the petitioner was not in any way misled in the pursuit of his legal right by admission of the writ petition.

21. In view of the above, we hold that the petitioner having failed to avail of the special remedy provided for by Section 357 (1) (2) of the Madhya Pradesh Panchayats Act and there being no compelling reasons or extraordinary circumstances in his favour, he could not claim the exercise of extraordinary jurisdiction in his favour.

22. For the reasons stated above, the petition fails and is dismissed. In the circumstances, we make no order as to costs. The security amount shall be refunded.


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