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1995 Supreme(Pat) 175
HIGH COURT OF PATNA
A.K. Ganguly, J.
Badre Alam, Badar and another - Petitioners
Versus
The State of Bihar and others – Respondents
Civil Writ Jurisdiction Case No. 242 of 1995
Decided On : 24.3.1995
For the Petitioners: M/s S.P. Mukherjee & Gyanand Roy.
For the State Respondents: Mr. D. N. Singh.
For Respondent No. 5: M/s S.R.C. Pandey & Amrendra Prasad
For Respondent no. 6: Mr. K.K. Thakur.
For Respondent nos. 7 & 8: Mr. L.K. Bajla.
In election matters, where a specific statutory remedy is provided, such as an election petition, it must be exhausted before resorting to a writ petition under Article 226 of the Constitution of India.
Headnote:
ELECTION - MAYOR AND DEPUTY MAYOR - ELECTION DISPUTE - STATUTORY REMEDY - ELECTION PETITION - MAINTAINABILITY - WRIT PETITION - NON-EXHAUSTION OF STATUTORY REMEDY - SECTION 544 OF THE PATNA MUNICIPAL CORPORATION ACT - ALTERNATIVE REMEDY - BY-PASSING - JUSTIFICATION - ELECTION IRREGULARITIES - VOID AND ULTRA VIRES RULES - ELECTION TRIBUNAL - JURISDICTION - ELECTION RIGHTS - STATUTORY RIGHTS - ELECTION DISPUTE - APPROPRIATE AUTHORITY - LIMITATION - DISMISSAL OF WRIT PETITION - NO ORDER AS TO COST.
Fact of the Case:
Petitioners, Councillors of Darbhanga Municipal Corporation, challenged the election of Mayor and Deputy Mayor, alleging irregularities and unauthorized conduct of the election. They sought to rely on communications from the Chief Executive Officer highlighting illegalities and an allegedly improper notification recognizing the election.
Finding of the Court:
The court held that the writ petition was not maintainable due to the non-exhaustion of the statutory remedy provided under Section 544 of the Patna Municipal Corporation Act. It emphasized the need to pursue the alternative remedy of filing an election dispute before the District Judge, as prescribed by the Act.
Issues: 1. Whether a writ petition challenging the election of Mayor and Deputy Mayor is maintainable when a specific statutory remedy is available under Section 544 of the Patna Municipal Corporation Act? 2. Whether the statutory remedy can be bypassed due to alleged irregularities or illegalities in the election process?
Ratio Decidendi: 1. The court relied on Section 544 of the Patna Municipal Corporation Act, which provides a specific statutory remedy for challenging the election of Councillors, including the Mayor and Deputy Mayor. 2. The court held that the statutory remedy must be exhausted before resorting to a writ petition under Article 226 of the Constitution of India. 3. The court distinguished the case of Bar Council of Delhi v. Surjeet Singh, where the Supreme Court allowed bypassing the alternative remedy due to the challenge of void and ultra vires rules relating to electoral rolls. 4. The court emphasized that in the present case, no justification was provided for bypassing the statutory remedy and filing a writ petition.
Final Decision: The court dismissed the writ petition on the ground of non-exhaustion of the statutory remedy. However, it clarified that the dismissal did not reflect any opinion on the merits of the controversies raised between the parties.
A.K. Ganguly, J.
Heard learned counsel for the respective parties appearing in this case. Since this is a matter relating to election of Mayor and Deputy Mayor of Darbhanga Municipal Corporation (hereinafter referred to as the said Corporation), this Court feels that this matter should be disposed of at the stage of admission itself without causing any delay and I do so hereby by passing the following order :
2. The grounds of challenge to the election of Mayor and Deputy Mayor to the said Corporation at the instance of the petitioners, who are Councillors of the said Corporation, rest on various allegations including an allegation to the effect that the said election was not initiated by any notification by the Chief Executive Officer. The case of the petitioners, inter alia, is that the election has been held at the instance of some unauthorised persons and in a manner which is wholly untenable in the eye of law. In support of the said submission, the writ petitioners sought to rely upon the two annexures, namely, Annexures 6 and 11 of the writ petition. Those annexures are communications made by the Chief Executive Officer of the said Corporation pointing out the illegalities in the matter of holding of the said election. Learned counsel for the respondent no. 6, another Councillor of the said Corporation, supporting the case of the petitioner also urged that the said election has been held at a point of time when the entire matter is subjudice before this Court. The election, therefore, should not have been held. The learned counsel further contended that the notification issued in Annexure-1 by the State Government under Selection 15 of the Patna Municipal Corporation Act (hereinafter referred to as the said Act) recognising the said election is also improper and illegal.
3. Learned counsel for respondent nos. 7 and 8, the allegedly elected Mayor and Deputy Mayor of the said Corporation have supported the impugned election and have contended that the conduct of the petitioner in filing this writ petition is not above board and by filing this writ petition, the petitioners are trying to restrain the validly elected persons from acting as Mayor and Deputy Mayor.
4. This Court is unable to decide any one of the aforesaid controversies raised by the parties as this Court holds that a writ petition challenging the election of Mayor and Deputy Mayor of the said Corporation, in the facts and circumstances of this case, is not maintainable in view of the clear statutory remedy provided under Section 544 of the said Act. The provisions of Section 544 of the said Act are set out below :
"544. Election petitions to be heard and disposed of by District Judge. - (1) If the qualification of any person declared to be elected for being a Councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection of a nomination or of the improper reception or refusal of a vote, or for any other cause, any person enrolled in the municipal electoral roll may, at any time within fifteen days from the date on which the election of a Councillor is notified under Section 15, apply to the District Judge of Patna. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who, although not declared elected, contested the election from the same ward.
(2) If the District Judge, after making such inquiry as he deems necessary, finds that the election was a valid election and that the person whose election is objected is not disqualified, he shall confirm the declared result of the election, if he finds that the person whose election is objected to is disqualified for being a Councillor, he shall declare such person's election null and void. If he finds that the election is not a valid election, he shall set it aside. In either case, he shall direct that the candidate, if any, in whose favour
