DAYA SHANKAR Vs. STATE OF HARYANA AND ORS.

JUDGEMENT

(1.) CHALLENGE in this writ petition is to the election of respondent No. 6 as Mayor of the Municipal Corporation, Faridabad (for short the Corporation) on the ground that the post was reserved for a backward class candidate and that the said respondent does not belong to that class.

(2.) PETITIONER belongs to Bairagi caste which has been declared as a backward class in the State of Haryana. He contested election to the Corporation held in March/April. 2000 from Ward No. 2 which was reserved for a backward class candidate and was declared elected. After the result of the elections was announced, one Devinder Bhandana was elected Mayor of the Corporation. His election was challenged by the petitioner by filing Civil Writ Petition 11831 of 2000 in this Court which is still pending, During the pendency of that writ petition, Devinder Bhadana was voted out from the office through a motion of no confidence and in his place respondent No. 6 was elected Mayor of the Corporation. It is common case of the parties that by notification dated 1st May, 2000, the Governor of Haryana in exercise of the powers conferred by Sub -section (8) of section II of the Haryana Municipal Corporation Act, 1994 (hereinafter referred to as the Act) read with Sub -rule (6) of Rule 71 of the Haryana Municipal Corporation Election Rules, 1994 (hereinafter called the Rules), specified that the office of Mayor in the Corporation shall be filled up from amongst the members belonging to backward classes elected in she election held in April, 2000. As, already noticed, the only ground on which the election has been challenged before us is that respondent No. 6 does not belong to a backward class. She is ''Goswami" by caste which according to the petitioner, does not fall in the list of backward classes declared by the State Government and that she is a "Brahmin" and, therefore, not eligible to be elected Mayor of the Corporation. In the reply filed by the Corporation, the material facts as alleged by the petitioner have not been controverted. What is stated on behalf of the Corporation is that the election of respondent No. 6 as Mayor of the Corporation was unanimous and that the petitioner was present at the time of the election and he should have then raised an objection in this regard. It is pleaded that the petitioner is estopped by his own conduct from raising this plea in the writ petition. It is also pleaded that the petitioner has not exhausted the remedy of filing an election petition as provided in Rule 78 of the Rules and, therefore, according to the Corporation, the writ petition is liable to be dismissed. Respondent No. 6 has also contested the writ petition and she too, has raised similar objections to the maintainability of the writ petition. She has also alleged that the petitioner does not belong to a backward class and, therefore, his writ petition is liable to be dismissed on this ground as well. The fact that respondent No. 6 does not belong to a backward class has not been seriously disputed though she claims to be belonging to such a class on the basis of a certificate a copy of which is stated to have been appended to the written statement as Annexure R.6/2. Here it may be mentioned that no such certificate has been appended. Respondent Nos. 1, 3 and 5 have not chosen to file any reply.

(3.) WE may now deal with the preliminary objection taken by the respondents that the petitioner should have resorted to the alternative remedy of filing an election petition before the Tribunal under Rule 78 of the Rules. It is true that an election petition is provided but the existence of such a remedy is not an absolute bar to the exercise of jurisdiction under Article 226 of the Constitution particularly when the election of respondent No. 6 is patently contrary to the notification issued by the Governor of Haryana reserving the post of Mayor for a backward class candidate. The action of the respondents in allowing respondent No. 6 to contest for the post when she did not belong to a backward class is clearly illegal and, therefore, in the exercise of our discretion, we have no hesitation to interfere in the matter notwithstanding that, the alternative remedy has not been exhausted.