BASANTILAL BHERUJI Vs. THE STATE AND OTHERS
LAWS(MPH)-1955-4-5
HIGH COURT OF MADHYA PRADESH
Decided on April 06,1955

Basantilal Bheruji Appellant
VERSUS
The State And Others Respondents

JUDGEMENT

Shinde, C.J. - (1.) THIS is a petition under Art. 226 of the Constitution of India for the issue of a writ in the nature of mandamus against non -petitioners. The facts stated in the petition are that Basantilal petitioner, was elected' a councillor along with seven others for the municipal council, Agar; that under S. 20, Madhya Bharat Municipalities Act of 1954 the councillors were asked to elect a president; that the election was conducted on 30 -4 -1954 by the Dy. Collector of Shajapur and non -petitioner No. 3 was elected president; that the said election was conducted in a manner contrary to the procedure laid down by the rules; that the petitioner moved the Inspector General of Municipalities by a petition dated 12 -6 -1954 demanding justice and re -questing him to set aside the aforesaid election of the president; but no reply was given; that there is no other remedy at the disposal of the petitioner to claim his just right. On these facts the petitioner prayed for the issuance of a writ in the nature of mandamus.
(2.) NON -petitioners Nos. 1 and 2 filed a return in which they denied the allegation that the election was conducted with gross irregularity and anal practices. The return also denies the averment that the petitioner has no other suitable remedy. It is specifically stated in the return that the petitioner has a suitable remedy by an election petition under S. 10 of the Madhya Bharat Municipalities Act of 1954. On these averments the first question to consider is whether there is a suitable alternative remedy available to the petitioner or not. Section 10 of the Madhya Bharat Municipalities Act reads as follows : Any voter aggrieved by an election or selection under this Act may within 30 days of the election or selection, submit election petition to the District Judge having jurisdiction, which shall be decided in accordance with the rules framed by the Government in this behalf. It is thus clear that there is a suitable and expeditious statutory remedy available to the petitioner. It is now well established that in granting writs the High Court can consider the availability of a suitable alternative legal remedy. In - - 'Bhagwandas v. State', : AIR 1953 All 630 (A) their Lordships of the Allahabad High Court held that where an application made by the accused under S. 250, Cr. P. C., has not been decided by the Magistrate before whom it is made, the High Court will not exercise any of its powers other under S. 561A. Cr. P. C. or Arts. 226 and 227, Constitution of India. In - - 'Walchandnagar Industries Ltd. v. State of Bombay', : AIR 1953 Bom. 195 (B) their Lordships of the Bombay High Court held as follows: The jurisdiction that the High Court exercises under Art. 228 is exceptional and discretionary and it a citizen can obtain equally adequate, equally efficacious, equally prompt remedy in the ordinary courts of law, ordinarily the High Court would not exercise its discretion in his favour under Art. 226, except under special circumstances. In - - 'Annapoorna Farming and Fishery Ltd. v. State of West Bengal', : AIR 1953 Cal 756 (C) Sinha J. held that it is not right that the High Court should deal with a disputed question of fact in an application under Art. 226 and the petitioner ought to have preferred an appeal before the Tribunal provided for by the West Bengal Food Grains (Intensive Procurement) Order (1952). In - - 'Dineshcharan Muzamdar v. State of Madhya Bharat',, AIR 1953 MP 165 (D) a Division Bench of this court held that the remedy under Art. 226 is intended to supply defects of justice and to the end that justice may be done and is not intended to supersede the ordinary remedies of Law. Ordinarily, therefore, the power under Article 226 should not be exercised by the High Court if the petitioner has other convenient or adequate remedy. In - - 'Rashid Ahmed v. Municipal Board, Kairana'., AIR 1950 SC 103 (E) S. R. Das J. made the following observations: There can be question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this court under Art. 32 are much wider and are not confined to issuing prerogative writs only. In - - 'Veerappa Pillai v. Raman and Raman Ltd.', : AIR 1952 SC 192 (F) Chandrasekhara Aiyar J. observed as follows : The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. In - - 'K. S. Rashid v. Income Tax Investigation Commission, : AIR 1954 SC 207 (G) Mukherjea J. as he then was observed as follows : The remedy provided for in Art. 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. There is thus abundant authority in support of the proposition that the High Court can refuse the grant of a writ under Art. 226 of the Constitution of India if it is satisfied that the aggrieved party can have an adequate relief elsewhere. The learned counsel for the petitioner admits that there is a remedy provided for by S. 10, Madhya Bharat Municipalities Act and that it is equally suitable and expeditious.
(3.) THE learned counsel for the petitioner contended that as rules had not been framed under S. 10, Madhya Bharat Municipalities Act, the District Judge would not have been able to decide the election petition. Consequently he did not resort to the remedy provided for by the Act. This contention is obviously an after thought. In the petition it is clearly stated that there is no other remedy available to the petitioner. The irresistible conclusion, therefore, is that the petitioner had failed to notice the remedy provided by the Act. The contention also has no substance on merits. Section 10 clearly directs that an aggrieved voter has to file an election petition within 30 days of the election before the District Judge and that the District Judge is to decide the petition in accordance with the rules framed by the Government. It is admitted by the counsel for the petitioner that the rules have now been framed. It is possible that on the date of hearing the rules would have been brought in force. Even if there had been no rules, the petition could have been disposed of in accordance with the principles of natural justice. This argument, therefore, is devoid of substance.;


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