ORDER
Satish K. Agnihotri, J.
1. Challenge to this petition is the order dated 13-2-2006 (Annexure P-l) passed in Election Petition No. 8/A/89 (21)/2004-05 (Ramratan v. Anant Kumar and Ors.) by the Sub Divisional Officer-cum-Prescribed Authority, Bhilaigarh, wherein the election of the petitioner herein to the post of Sarpanch was declared void as per provisions of Rule 23 (1) (b) of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short 'the Rules 1995').
2. The brief facts, in nutshell, for adjudication of the case are, that the respondent No. 1 herein challenged the election of the petitioner, held on 15-1-2005, whereby the petitioner was elected as Sarpanch of Gram Panchayat, Pisid, under Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short 'the Adhiniyam, 1993') read with provisions of Rules, 1995 on the ground of disqualification for encroachment of Government land. In the election petition, after having examined the facts of the case, the Prescribed Authority held that the allegation with regard to filing of wrong affidavits by the petitioner was not found proved, as there were no material to establish the allegation. Other allegation with regard to non-submission of expenses was also not found proved. The allegation with regard to encroachment of the Government land was found proved and on that basis the election of the petitioner to the post of Sarpanch was declared as void under Rule 23 (1) (b) of the Rules, 1995.
3. This Court on 24-5-2006 while issuing notices observed that if any re-election takes place during pendency of this petition that shall be subject to final decision of this petition. During pendency of this petition admittedly election pursuant to the declaration of the post of Sarpanch as vacant was held and the result thereof was declared. After notice the petitioner could not file the process fee within time and as such till date no notice could be issued to the other side.
4. Learned Counsel appearing for the petitioner would submit that since the election to the post of Sarpanch in village had already taken place, this petition has become academic. Learned Counsel would further submit that the subsequent election has not been challenged.
5. Per contra, learned Counsel appearing for the respondent No. 1 would submit that once the election to the post of Sarpanch has been held and the results thereof have been declared, this petition has become academic. Even if the petitioner succeeds in this petition, the subsequent election cannot be set aside without taking recourse to the election petition.
6. I have heard learned Counsel appearing for the parties, perused the pleadings and documents appended thereto. It is apparent that even if the petitioner succeeds in this petition, the petitioner cannot join the office as Sarpanch. During pendency of this petition the election had already taken place and the Sarpanch has been elected, thus, the subsequent election cannot be set aside in this petition. It is well settled principle of law that if there is a provision for election petition, no writ petition is maintainable.
7. In the matter of N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Manakkal, Salem Dist. and Ors. : [1952]1SCR218 , a six Judges Bench of the Hon'ble Supreme Court, observed as under:
12. It is now 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. Hawkesford (1859) 6 CB 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 of remedy 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 enforcing 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 form 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) AC368, and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. 1935 AC 532 and Secretary of State v. Mask & Co. 44 C.W.N. 709; and it has also been held to be equally applicable to enforcement or rights (See Hurdutrai v. Off. Assignee of Calcutta 52 C.W.N. 343, at p. 349. That being so, I think it will be a fair inference from the provisions of the Representation of the 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.
8. In the matter of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 , 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.
9. In the matter of Indrajit Barua and Ors. v. Election Commission of India and Ors. : AIR1986SC103 and Manda Jagannath v. K.S. Rathnam and Ors. (2004) 7 SCC 492, the Hon'ble Supreme Court reaffirmed the view taken in the matter of N.P. Ponnuswami (supra).
10. Subsequently, in the matter of Avtar Singh Hit v. Delhi Sikh Gurudwara Management Committee and Ors. : (2006)8SCC487 , wherein the Hon'ble Supreme Court relying on the ratio laid down in the cases of N.P. Ponnuswami (supra), observed as under:
19. It is well settled principle that where election are conducted in accordance with the provisions of a statute and the statute also provides a remedy of settlement of election disputes by filing an 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 Constitution. This view has been taken in a series of decisions rendered by this Court...
11. The dicta laid down as above was reiterated in the matter of Gurdeep Singh Dhillon v. Satpal and Ors. (2006) 10 SCC 616.
12. Since the election had already taken place, the grievance of the petitioner cannot be considered in this petition and no substantive relief restoring the petitioner on the post of Sarpanch can be granted.
13. In view of the foregoing, the writ petition is disposed of. However, on the request of learned Counsel for the petitioner, liberty is reserved to the petitioner to take recourse to the appropriate statutory forum that may be available to the petitioner under the provisions of law for removal of disqualification of the petitioner from the post of Sarpanch to the effect that the petitioner was encroacher of the Government land. Interim relief granted earlier stands discharged. Consequently, M.(W).P. No. 1953/06, application for interim relief also stands disposed of.