BASANTILAL BHERUJI Vs. THE STATE AND OTHERS

JUDGEMENT

(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 :

(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.