KARMAVEER TULSHIRAM AUTADE Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) A Division Bench of this Court was hearing these Writ Petitions, the subject matters of which pertain to the Gram Panchayat Elections. The orders impugned in these petitions are passed by the Returning Officer for Bhose Gram Panchayat whereby the nomination forms of the petitioners to contest the Gram Panchayat elections stand rejected. The prayers in the petitions are, inter-alia, for issuance of a writ of mandamus for setting aside the orders of the Returning Officer rejecting the nomination forms of the petitioners and for a further direction that the petitioners be allowed to contest the Gram Panchayat elections from their respective wards. There is a further substantive prayer for writ of mandamus to be issued under Article 226 of the Constitution to direct the State Election Commission to cancel the election programme and for issuance of a fresh election programme. A prayer is also made for direction on the official respondents to take appropriate action, civil or criminal, against the respondents 7 to 10 (complainants) for producing false and fabricated certificates leading to the rejection of the petitioners' nomination forms. Pending the hearing of the petitions, a prayer is made for stay of the orders rejecting nominations and for directions to permit the petitioners to contest the elections and/or stay the further election programme of the Gram Panchayat elections.

(2.) When the writ petitions were taken up for admission hearing before the Division Bench, an objection was raised on the maintainability of these petitions, on behalf of the State Election Commission, referring to the Division Bench decision of this Court in Vinod Pandurang Bharsakade Vs. Returning Officer, Akot and Anr. reported in 2003(4) Mh.L.J. 359. It was contended that any grievance that the petitioners may have, in relation to the orders rejecting their nominations, ought to be raised after the elections are over by raising appropriate election dispute. Per contra, relying on two decisions of co-ordinate Benches of this Court in Sudhakar s/o. Vitthal Misal Vs. State of Maharashtra & Ors. reported in 2007(6) All MR 773 and Smt. Mayaraju Ghavghave vs. Returning Officer for Gram Panchayat, Dhamangaon and Anr. reported in 2004(4) ALL MR 258, it was contended on behalf of the petitioners that the writ petitions are maintainable.

(3.) In the above circumstances, the Division Bench passed an order dated 4 January 2021, prima facie, observing that if the petitioners are considered to have called in question the elections to the Gram Panchayat, the writ petitions may not be maintainable having regard to the provisions contained in Article 243-O(b) of the Constitution; if not, and if the relief, they have claimed is to facilitate completion of the election process, it is only then they could claim judicial review of the impugned orders of the Returning Officer. The Court noting the above decisions as relied on behalf of the parties, observed that there was clear conflict of opinion of the two different Division Benches on the point, namely, as to whether writ petitions under Article 226 of the Constitution would be maintainable challenging the orders of rejection of nomination forms. The Division Bench in paragraphs 6 and 7 observed as under:-