TARA CHAND Vs. PIARA LAL

JUDGEMENT

(1.) THE election of Gram Panchayat, village Asiaki Gorawas, took place on 6th August, 1988 to elect Ranches and Sarpanch of the Gram Panchayat The relevant rules provided that if the elected panches do not contain one member each of the Scheduled Caste and Backward class, then a person each belonging to these caste, who has secured maximum number of votes amongst themselves, be declared elected. The Presiding Officer declared the result of the election after going through the entire election process, but while preparing the result sheets she Presiding Officer by over sight omitted to write the words 'scheduled caste' against the name of Hari Singh panch, who was also declared successful, having secured )28 votes. One of the successful candidate declared as panch was Pyare Lal plaintiff. Tara Chand, petitioner then filed an application before the Deputy Commissioner, Narnaul, contending that the Presiding Officer has wrongly declared elected Pajre Lal as panch because no person belonging to the Scheduled Caste was declared elected and since he belongs to Scheduled Caste and had secured highest number of votes amongst the scheduled caste members, he may be declared elected as panch. The Deputy Commissioner without providing any opportunity of being heard in exercise of powers conferred under Rule 43 of the Haryana Gram Panchayat Election Rules, 1971 (hereinafter referred to as the Rules), altered the election results by unseating Payre Lal plaintiff and declaring Tara Chand as successful candidate Aggrieved against the order of the Deputy Commissioner dated 31st August, 1988, Payre Lal plaintiff filed a civil suit on 6th September, 1988, challenging the legality of the aforesaid order inter alia, contending that while exercising powers under Rule 43 of the Rules, the Deputy Commissioner had no power to tinker with the result of election of the Gran Panchayat. On the application of Payre Lal plaintiff under the Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. the trial Court also restrained Tara Chand from functioning as panch instead of Payre Lal under the orders of the Deputy Commissioner. Tara Chand defendant then preferred an appeal against the said order, which was also dismissed by the learned Additional District Judge, Narnaul, vide his order dated 3rd March, 1989 Feeliag aggrieved against the same, Tara Chand defendant has come up in this revision petition.

(2.) MR. Nipun Mital, learned counsel for the petitioner, by relying upon a decision of a Division Bench of this Court in Sunder Singh and Ors. v. State of Haryana and Ors. , 1983 P. L. J. 529 D. B. contended that the jurisdiction of Civil Court is barred under the provisions of Section 13-B of the Punjab Gdam Panchayat Act as applicable to the State of Haryana. He also maintained that the impugned order passed by the Deputy Commissioner under Rule 43 could only be challenged through an election petition. Reliance was also placed on another Division Bench authority of this Court in Umrao Singh and Ors. v. Mehar Chand and Ors. , 1981 P. L. J. 504 D. B The decision of the Apex Court in K. K. Shrivastava etc. v. Bhupendra Kumar Jain and Ors. , A I. R. 1977 S. C. 1703. was also relied upon in support of the proposition that no other action is maintainable where alternative remedy is provided by way of election petition.

(3.) MR. G. C. Garg, Senior Advocate learned counsel appearing on behalf of Payre Lal respondent, on the other hand, relying upon the decision of Single Bench of this Court in Smt. Tejinder Kaur v. Municipal Committee, Tarn Taran, 1983 P. L. J. 336. besides an the decision of a Division Bench in Sunder Singh's case (supra), which was also relied upon by the teamed counsel for the petitioner, maintained that once the election process is completed and the Presiding Officer declared the result, the Deputy Commissioner should not linker with such election under Rule 43 of the Rules and only the Prescribed Authority under the Rule can do so on an election petition Thus, he maintained that the Deputy Commissioner having exercised jurisdiction not vested in him, while passing the impagned order the same could be challenged in a Civil Court. He further contended that the ratio of the decision of this Court and of the Apex Court relied upon by the learned counsel for the petitioner is not attracted to the facts of the case in hand, as therein it was held that the writ petition is not maintainable in the face of an alternative and efficacious remedy under some other provisions of the statute.