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Shibcharan and anr. Vs. the State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Nos. 4030 and 4031 of 1971
Judge
Reported inAIR1972P& H479
ActsIncome-tax Act - Sections 33-A and 35
AppellantShibcharan and anr.
RespondentThe State of Haryana and ors.
Cases ReferredHirday Narain v. Income
Excerpt:
.....to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a..........that remedy was not availed of. the elections were scheduled to be held on july 2, 1971, while the writ petitions were filed on august 24, 1971, after the period of 30 days prescribed for filing an election petition had expired. the petitions were returned to the learned counsel because of some defects. they were refiled on september 1, 1971, but all the defects had not been removed. they were again returned and were refiled on september 29, 1971, but still they were not complete. they were again returned and refiled on october 12, 1971, and were admitted on october 19, 1971. it is thus evident that the petitioners deliberately allowed the period of limitation prescribed for filing an election petition to expire without taking any action in the matter. the writ petitions were filed after.....
Judgment:
ORDER

1. This order will dispose of Civil Writ No. 4031 of 1971, Shibcharan v. State of Haryana and Civil Writ No. 4030 of 1971, Ram Chander v. State of Haryana as common question of law and fact arises in these petitions.

2. The petitioner in each of these petitions has challenged the election of Panches to the Gram Panchayat of his village on the ground that one of the Panches elected was not duly qualified for election. Admittedly the remedy of filing an election petition was available to the petitioner in each case but that remedy was not availed of. The elections were scheduled to be held on July 2, 1971, while the writ petitions were filed on August 24, 1971, after the period of 30 days prescribed for filing an election petition had expired. The petitions were returned to the learned Counsel because of some defects. They were refiled on September 1, 1971, but all the defects had not been removed. They were again returned and were refiled on September 29, 1971, but still they were not complete. They were again returned and refiled on October 12, 1971, and were admitted on October 19, 1971. It is thus evident that the petitioners deliberately allowed the period of limitation prescribed for filing an election petition to expire without taking any action in the matter. The writ petitions were filed after the filing of the election petitions had become barred by time. In these circumstances, I do not consider that these are fit cases which should be entertained and decided on merits.

3. The learned Counsel for the petitioners has relied on various authorities wherein it has been held that the remedy by way of election petition is not equally efficacious as a writ petition. In all those cases writ petitions were filed before the period for filing the election petition had expired. These cases are Ude Singh v. The State of Haryana, 1972 Pun LJ 20; Bhagirath Singh v. The State of Punjab, ILR (1965) 1 Punj 466=(AIR 1965 Punj 170); Des Raj v. S. Gurnam Singh, (1966) 68 Pun LR 224, and Charan Dass Dogra v. Punjab State, 67 Pun LR 1238=(AIR 1966 Punj 274). The learned Counsel has also relied on a judgment of their Lordships of the Supreme Court in Hirday Narain v. Income-Tax Officer, Bareilly, AIR 1971 SC 33, which was followed by Koshal, J., in 1972 Pun LJ 20 (supra). In that case too the writ petition had been filed before the period for filing the revision before the period for filing the revision before the Commissioner, under Section 33-A of the Income-tax Act, had expired and was entertained and heard on merits. On these facts their Lordships of the Supreme Court held:--

'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.'

4. In the present cases the petitioners themselves allowed the period of limitation to expire and no reason has been stated in the petitions as to why they were not able to file the election petitions within time. In my discretion, I refuse to entertain the writ petitions and dismiss the same but without any order as to costs.

5. Petitions dismissed.


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