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Case Number

Misc. Petn. No. 74 of 1970

Attorney(S)

J.P.Srivastava
H.G.Mishra

Judges

S.M.N Raina
N.C Dwivedi, JJ.

Acts

Section 357 of the Panchayats Act, 1962 and Madhya Pradesh Gram Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962.
Section 357 of the M. P. Panchayats Act and Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962,
sub-rule (5) of Rule 30 of Madhya Pradesh Gram Panchayats Election and Co-option Rules, 1963,
provisions of the Madhya Pradesh Panchayats Act, 1962,
Section 357 (1) (2) of the Madhya Pradesh Panchayats Act
Section 357 (2) of the Madhya Pradesh Panchayats Act
Section 357 of the Madhya Pradesh Panchayats Act,
ARTICLE 226 CONSTITUTION OF INDIA
SECTION 35 INCOME TAX ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, Kalka Prasad, and respondent No. 3, Badamsingh, were candidates for the office of Panchas of Devri Kalan Gram Panchayat in an election held on 17-5-1970. The petitioner was allotted the symbol "Bullock" and respondent No. 3 was allotted the symbol "Scale" (Annexure A-1). Sub-rule (5) of Rule 30 of the Madhya Pradesh Gram Panchayats Election and Co-option Rules, 1963, states that allotment of symbol is final. Both candidates campaigned using their allotted symbols; a pamphlet distributed by respondent No. 3 is noted as Annexure A-2.

On counting, the Bullock symbol polled 46 votes and the Scale symbol polled 32 votes. The petitioner contended that the petitioner (Bullock) ought to have been declared elected, but the Election Officer (respondent No. 1) declared respondent No. 3 elected, allegedly treating his symbol as Bullock. The petitioner filed a writ petition under Article 226 seeking certiorari to quash the election of respondent No. 3.

Procedurally: respondent No. 3 did not file a return. Respondents Nos. 1 and 2 (Election Officer and Collector) admitted the original symbol allotments but denied that any change was made or that respondent No. 3 was wrongly declared elected. They contended that the Polling and Presiding Officers were necessary parties and had not been joined, that the petitioner did not object or lodge a complaint with them, and that the petitioner had an alternative statutory remedy by filing an election petition under Section 357 of the Madhya Pradesh Panchayats Act which he did not pursue. The writ petition was filed on 18-7-1970, after the 14-day period for election petitions prescribed by Section 357(2).

Legal Issues Presented

Whether the High Court could entertain a writ petition under Article 226 of the Constitution when the petitioner had not availed the statutory remedy provided under Section 357 of the Madhya Pradesh Panchayats Act (i.e., an election petition within the prescribed time).

Arguments of the Parties

Petitioner's Arguments

The petitioner alleged that he was allotted the symbol of Bullock and polled more votes (46) than the respondent No. 3 (Scale, 32), and therefore should have been declared elected.
The petitioner alleged that the Election Officer illegally and ultra vires declared respondent No. 3 elected by treating his symbol as Bullock, and sought quashing of that election result by writ of certiorari under Article 226.

Respondents' Arguments (Nos. 1 and 2)

Admitted the original allotment of symbols to the petitioner (Bullock) and respondent No. 3 (Scale) but denied that any unauthorized change or wrongful declaration in favour of respondent No. 3 took place.
Contended that the Polling and Presiding Officers were necessary parties and that the petition was incomplete for their non-joinder.
Asserted that the petitioner did not raise any objection or lodge any complaint with the Polling or Presiding Officer before or after the election.
Maintained that the petitioner had an alternative statutory remedy (an election petition under Section 357) which he did not pursue within the prescribed 14-day period, and therefore should not invoke writ jurisdiction under Article 226.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union of India v. T.H. Verma, AIR 1957 SC 882	Where an alternate and equally efficacious remedy is open, litigant should pursue that remedy; existence of adequate legal remedy is a factor in granting writs and the court may refuse to interfere absent good grounds.	The court relied on this principle to support the view that the petitioner should have used the election-petition remedy under Section 357 before invoking Article 226 and that the writ jurisdiction ought not to be exercised in the absence of good grounds.
Thansingh v. Supdt. of Taxes, AIR 1964 SC 1419	Ordinarily the court will not entertain a petition under Art. 226 where an alternative remedy exists which provides an equally efficacious remedy.	Cited to reinforce the discretionary rule against entertaining writ petitions when alternate statutory remedies are available.
British India Steam Navigation Co. v. Jasjit Singh, AIR 1964 SC 1451	Applicants should exhaust other remedies before seeking prerogative writs; courts exercise discretion in this regard and should be slow to permit circumvention of statutory appeal/revision machinery.	Used to support the proposition that the High Court's writ jurisdiction is discretionary and should not be used to bypass statutory remedies, particularly in election-related matters.
Sangram Singh v. 1. Election Tribunal, Kotah, (1955) 2 SCR 1 = (AIR 1955 SC 425)	Legislative policy favors speedy resolution of election disputes; High Courts should not entertain prerogative writs lightly in election matters.	Cited to emphasize the policy rationale for requiring election disputes to be pursued through the special statutory machinery (election petitions) rather than by ordinary writs.
Municipal Council, Khurai v. Kamal Kumar, AIR 1965 SC 1321	High Court would not ordinarily entertain Art. 226 petitions where an alternative remedy is open, though it may grant relief in appropriate circumstances.	Recognized that the High Court has discretion but should decline to exercise writ jurisdiction here since alternative remedy existed and circumstances did not justify departure.
Pancham Ramcharan v. Collector, Bhind, 1971 MPLJ 50 = AIR 1971 Madh Pra 97	When a special right is created by special law that provides a corrective machinery, the complainant must resort to that remedy; High Court will not ordinarily interfere by writ except for compelling reasons.	Applied to hold that the petitioner should have resorted to the election petition machinery under Section 357 and that the High Court should not supplant that forum absent compelling reasons.
Associated Cement Co. Ltd. v. Assistant Commissioner of Sales Tax, Jabalpur, 1971 MPLJ 444	Existence of alternate remedy is a factor (not an absolute bar) in discretion under Article 226; in some factual situations (e.g., admitted facts, heavy tax amounts) interference may be appropriate.	Cited to acknowledge that exceptions to non-interference exist, but the court found that the facts of the present case did not warrant such an exception.
Malam Singh v. Collector, Sehore, 1971 MPLJ 531 = AIR 1971 Madh Pra 195 (Full Bench)	No constitutional bar to writ jurisdiction in local-body elections, but courts should generally decline to exercise that jurisdiction where the statutory remedy of an election petition is available; intervention only in very exceptional circumstances.	Treated as especially persuasive (Full Bench) and relied upon to conclude that, absent availing Section 357 within time and absent extraordinary circumstances, the petitioner could not invoke writ jurisdiction.
Hirday Narain v. Income-tax Officer, Bareilly, AIR 1971 SC 33	High Court entertained a petition where revision before the Commissioner was still open; the decision turned on availability of an effective alternative remedy at the relevant time.	The petitioner relied on this case, but the court distinguished it: in Hirday Narain the alternative remedy was still available when the writ was filed, whereas here the statutory period for filing an election petition had already expired, so the precedent did not assist the petitioner.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, strictly following the material in the opinion:

Statutory framework: Section 357 of the Madhya Pradesh Panchayats Act provides that elections or co-options notified under specified sections shall be called into question only by a petition presented to the prescribed authority (an election petition) and prescribes a 14-day limitation for presenting such a petition (Section 357(2)).
Chronology and limitation: The election took place on 17-5-1970. It was undisputed that no election petition was filed in the prescribed authority within 14 days. The writ petition under Article 226 was filed on 18-7-1970, after the limitation period had expired.
Application of precedent and discretionary principle: The court reviewed authorities establishing that where an alternative remedy exists (particularly a specialized statutory remedy), the High Court ordinarily should decline to exercise its prerogative writ jurisdiction under Article 226, unless there are good, compelling or extraordinary reasons to do so. The court cited a line of cases (including the Full Bench decision in Malam Singh) to support this discretionary approach and the policy of having election disputes resolved speedily through election petitions.
Absence of extraordinary circumstances: The court examined whether any compelling or extraordinary circumstances existed to justify departing from the ordinary rule. It found none: the petitioner did not explain why he failed to file the election petition within time, made no averment explaining the delay, and in the petition incorrectly asserted that no efficacious remedy was available despite the special Act providing one.
Distinguishing petitioner’s cited authority: The petitioner relied on Hirday Narain (where the High Court had entertained a petition despite the availability of revision), but the court distinguished that case because in Hirday Narain the alternative remedy (revision to the Commissioner) remained available at the time of the writ; here the statutory period for election petitions had already expired when the writ was filed, so Hirday Narain did not assist the petitioner.
Conclusion from analysis: Given the statutory scheme, the undisputed failure to present an election petition within the 14-day period, the governing precedents emphasizing the discretionary restraint of writ jurisdiction in election matters, and the absence of any compelling justification for relief, the court concluded the petitioner could not invoke extraordinary writ jurisdiction.

Holding and Implications

Holding: The petition fails and is DISMISSED.

Implications and immediate consequences:

The writ petition under Article 226 was dismissed for failure to avail the special statutory remedy under Section 357(1)–(2) of the Madhya Pradesh Panchayats Act and for lack of compelling circumstances to warrant exercise of writ jurisdiction.
The court made no order as to costs.
The security amount deposited by the petitioner was ordered to be refunded.
The opinion applies established precedent; it does not purport to create any new rule of law or to depart from the line of authorities holding that election disputes should ordinarily be pursued by election petition machinery rather than by a High Court writ, absent extraordinary circumstances.

This summary is based exclusively on the content of the provided opinion and does not add or infer information beyond what is stated therein.

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Kalka Prasad Lajja Ram v. Election Officer

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

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 even itself 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. 1. 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.

Kalka Prasad Lajja Ram v. Election Officer

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments (Nos. 1 and 2)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kalka Prasad Lajja Ram v. Election Officer

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