UDE SINGH Vs. THE STATE OF HARYANA, ETC.

JUDGEMENT

(1.) UDE Singh, the Petitioner, was last elected as Sarpanch of the Gram Panchayat of his village named Gijhi in Tahsil and District Rohtak in the year 1963 -64 and continued to hold that office right up to the 6th of July, 1971. According to a programme issued by the State of Haryana (Respondent No. 1) for holding elections to the various Gram Panchayats under its control, the nomination papers of candidates for election to the Gram Panchayat of village Gijhi were to be filed, scrutinised and accepted or rejected on the 6th of July, 1971, while the polling was scheduled to be held on the next day. The Petitioner and 13 others (including Respondents Nos. 4 to 9) filed their nomination papers before Shri Balbir Singh, Sectional Officer, Department of Public Health, Gohana (Respondent No. 2) who was the returning officer, on the 6th of July, 1971, but on an objection raised by Respondent No. 4 to the effect that the Petitioner was disqualified for contesting the election by reason of the provisions of Clause (g) of Sub -section (5) of Section 6 of the Punjab Gram Panchayat Act (hereinafter referred to as the Panchayat Act) inasmuch as he was salaried manager of the Sampla Co -operative Marketing Society, Limited; Sampla, District Rohtak (hereinafter called the Society), the nomination papers of the Petitioner were rejected by Respondent No. 2 on the same date by means of order which is appended to the petition as Annexure "B" and runs thus:

(2.) THE election was duly held on the 7th of July, 1971, and, as a result thereof, Respondents Nos. 4 to 9 were elected to the Gram Panchayat of village Gijhi.

(3.) TWO preliminary points have been raised on behalf of the Respondents. The first is that the petition deserves dismissal as another appropriate remedy by way of the institution of an election petition was available to the Petitioner who failed to have recourse to it. In the special circumstances which obtain in this case I am of the opinion that the point has no substance. It is not disputed that a petition under Article 226 of the Constitution of India is not barred by any provision thereof if it relates to questions concerning an election to a Gram Panchayat. Normally, however, this Court, in the exercise of its discretion, refuses to entertain such a petition when the alternative remedy of an election petition has not been availed of. But what has happened in the present case is that the petition has not only been entertained but during its pendency the Petitioner has lost his remedy of instituting an election petition, by efflux of time. If the petition is now dismissed on the ground that the Petitioner should have availed of the alternative remedy of an election petition before he came to this Court asking for the exercise by it of its extraordinary powers under Article 226 of the Constitution of India, he would be left without a remedy and it appears to me that this result is a sufficient reason why this Court should not exercise its discretion so as to throw out the petition at this stage. This view is in conformity with that of their Lordships of the Supreme Court in L. Hirday Narain v. Income -tax Officer : A.I.R. 1971 S.C. 33. In that case an order under Section 35 of the Income -tax Act was made by an Income -tax Officer against one Hirday Narain who challenged the order in a petition under Article 226 of the Constitution of India before the High Court of Allahabad. A Single Judge of the High Court entertained the petition and rejected it not only on merits but also for the reason that Hirday Narain had not availed of the alternative remedy which was open to him in the form of a petition for revision of the order of the Income -tax Officer by the Commissioner under Section 33 -A of the Act. The View taken by the learned Single Judge was upheld by a Division Bench in an appeal. A second appeal was taken by Hirday Narain to the Supreme Court in allowing which their Lordships observed: