Shibcharan and Another vs The State of Haryana and Others

This order will dispose of Civil Writ No. 4031 of 1971, Shibcharan v. State of Haryana and Civil Writ No. 4030 of 1971, Ram Chander v. State of Haryana as common question of law and fact arises in these petitions.

The petitioner in each of these petitions has challenged the election of Panches to the Gram Panchayat of his village on the ground that one of the Panches elected was not duly qualified for election. Admittedly the remedy of filing an election petition was available to the petitioner in each case but that remedy was not availed of. The elections were scheduled to be held on July 2, 1971, while the writ petitions were filed on August 24, 1971, after the period of 30 days prescribed for filing an election petition had expired. The petitions were returned to the learned Counsel because of some defects. They were refiled on September 1, 1971, but all the defects had not been removed. They were again returned and were refiled on September 29, 1971, but still they were not complete. They were again returned and refiled on October 12, 1971, and were admitted on October 19, 1971. It is thus evident that the petitioners deliberately allowed the period of limitation prescribed for filing an election petition to expire without taking any action in the matter. The writ petitions were filed after the filing of the election petitions had become barred by time. In these circumstances, I do not consider that these are fit cases which should be entertained and decided on merits.

The learned Counsel for the petitioners has relied on various authorities wherein it has been held that the remedy by way of election petition is not equally efficacious as a writ petition. In all those cases writ petitions were filed before the period for filing the election petition had expired. These cases are Ude Singh v. The State of Haryana 1972 P LJ 20 Bhagirath Singh Vs. The State of Punjab and Others, Des Raj v. S. Gurnam Singh (1966) 68 P LR 224 and Charan Dass Dogra and Others Vs. Punjab State and Others, . The learned Counsel has also relied on a judgment of their Lordships of the Supreme Court in L. Hirday Narain Vs. Income Tax Officer, Bareilly, , which was followed by Koshal, J., in 1972 P LJ 20 (supra). In that case too the writ petition had been filed before the period for filing the revision before the period for filing the revision before the Commissioner, u/s 33-A of the Income Tax Act, had expired and was entertained and heard on merits. On these facts their Lordships of the Supreme Court held:--

"An order u/s 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 u/s 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."

In the present cases the petitioners themselves allowed the period of limitation to expire and no reason has been stated in the petitions as to why they were not able to file the election petitions within time. In my discretion, I refuse to entertain the writ petitions and dismiss the same but without any order as to costs.

Petitions dismissed.