DHANESHWAR DEVANGAN Vs. STATE OF CG

JUDGEMENT

(1.) THE petitioner was elected as Panch of Gram Panchayat, Katgi village, Kasdole Tehsil, Raipur District in the year 2005. After his election as Panch, it appears that a complaint was lodged by the fifth respondent herein before the Upper Collector, Baloda Bazar, the fourth respondent herein, alleging that the fourth child of the petitioner was born on 17-02-2001 and therefore, he was disqualified to be elected as a Panch of Gram Panchayat. The fourth respondent having conducted an enquiry on the said allegation by his order dated 24-11 -2005 set aside the election of the petitioner as Panch on the ground that his fourth child was born on 17-02-2001, that is to say, after the cut off date i.e. 26-01-2001. Being aggrieved by the above order, this writ petition is filed under Article 226 of the Constitution of India.

(2.) AT the threshold of the hearing, learned Government Advocate pointed out that the petitioner without exhausting alternative statutory remedy has approached this Court and therefore, he may be directed to first exhaust the alternative remedy and the writ petition be dismissed in limine.

(3.) AT times it becomes necessary for the Court to remind itself about the self-imposed restraints and limitations in exercise of the power granted to the Court by the Constitution under Article 226. The Court can take judicial notice of the fact that large number of writ petitions are filed in this Court by persons without exhausting statutory alternative remedies or other remedies available to them. Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose. It is well settled that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse relief to an applicant in certain circumstances even though a legal right might have been infringed. Availability of an alternative remedy is one of such considerations which the High Court may take into account to refuse to exercise its jurisdiction, but, this principle does not apply to the enforcement of Fundamental Rights either under Article 32 or under 226 of the Constitution. The Supreme Court in Mohd. Yasin Vs. Town Area Committee1 and the cases to follow that case held that an alternative remedy is not a bar to move a writ petition in the High Court to enforce a fundamental right. This is the only exception. In all other cases where no fundamental right is involved, it has been ruled that the High Court would not exercise its jurisdiction under Article 226 when an alternative, adequate and efficacious legal remedy is available and the petitioner has not availed of the same before coming to the High Court. Of course, Article 226 is silent on this point; it does not say in so may words anything about this matter, but the Courts have themselves evolved this rule as a kind of self-imposed restriction on their jurisdiction under Article 226. The rule of exhaustion of a remedy before invoking jurisdiction under Article 226 has been characterized as a rule of policy, convenience and discretion rather than a rule of law, per decisions of the Supreme Court in State of Uttar Pradesh Vs. Md. Nooh2 and Babu Ram Vs. Zilla Parishad3. The above rule has been justified on the ground that persons should not be encouraged to circumvent the provisions made by a statute providing for a mechanism and procedure to challenge administrative or quasi-judicial actions taken thereunder.