Case Note & Summary
The case involves a writ petition filed by Salma Bi W/o Syed Noor Attar challenging the rejection of her nomination for the Gram Panchayat elections. The elections were held in December 2020-January 2021 for Ward No.1 of Gram Panchayat Dongaon. The petitioner's nomination was rejected on the ground that she did not belong to the Scheduled Caste category for which Seat A was reserved. She filed a writ petition and obtained an interim order allowing her to contest the elections. She contested and was declared elected. Subsequently, the writ petition was dismissed as not maintainable, and the interim order was vacated. The sole candidate left in the fray (the original complainant) sought a declaration of being elected on the principle of restitution. The court considered whether the petitioner could be unseated without an election petition. The court held that the election of a candidate cannot be set aside without an election petition under the Maharashtra Village Panchayats Act, 1959. The principle of restitution does not apply to election results. The writ petition was dismissed, and the petitioner was allowed to continue as the elected member, subject to any election petition that may be filed.
Headnote
A) Election Law - Interim Order - Restitution - Effect of Contesting Elections Under Interim Order - Maharashtra Village Panchayats Act, 1959, Sections 15, 16 - The petitioner's nomination was rejected, she obtained an interim order allowing her to contest, and she was declared elected. The writ petition was later dismissed as not maintainable. The court held that the election of a candidate cannot be set aside without an election petition, and the principle of restitution does not apply to election results. (Paras 1-10)
B) Election Law - Maintainability of Writ Petition - Alternative Remedy - Maharashtra Village Panchayats Act, 1959, Sections 15, 16 - The court held that a writ petition challenging the rejection of nomination is not maintainable as the remedy lies in filing an election petition under the Act. The interim order allowing the petitioner to contest does not confer any right to retain the seat after dismissal of the writ petition. (Paras 5-8)
C) Election Law - Restitution - Principle - Applicability to Elections - The court held that the principle of restitution under Section 144 of the Code of Civil Procedure, 1908 does not apply to election results as elections are governed by statutory provisions. The candidate who was the sole candidate left in the fray cannot be declared elected on the principle of restitution. (Paras 9-10)
Issue of Consideration
What is the effect of contesting elections pursuant to an interim order passed in a writ petition which is subsequently dismissed as not maintainable, and whether the sole candidate left in the fray can be declared elected on the principle of restitution or whether the candidate declared elected can only be unseated by instituting an election petition.
Final Decision
The writ petition is dismissed. The petitioner is not entitled to any relief. The respondent no.4, who was declared elected, shall continue as the elected member, subject to any election petition that may be filed.
Law Points
- Election law
- Interim order
- Restitution
- Election petition
- Maintainability of writ petition
- Principle of restitution
- Consequences of interim order
- Election dispute resolution
Case Details
2022 LawText (BOM) (02) 121
Writ Petition No. 4031/2021
A. S. Chandurkar, Smt. Pushpa V. Ganediwala
Shri R.L. Khapre, Senior Advocate with Shri D.R. Khapre for petitioner; Mrs. K.R. Deshpande, Assistant Government Pleader for respondent nos.1 and 2; Shri J.B. Kasat for respondent no.3; Shri A.M. Ghare for respondent no.4
Salma Bi W/o Syed Noor Attar
The Collector, Buldana; The Returning Officer for the Elections of Grampanchayat, Dongaon and Naib Tahsildar, Mehkar; The State Election Commission (Maharashtra); Gazala Bi Saddam Shah; In-Charge Officer (Gram Panchayat) and District Deputy Election Officer, Buldana; Gauri Sawant; Avinash Sanas
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Nature of Litigation
Writ petition challenging rejection of nomination for Gram Panchayat elections and seeking declaration of being elected on principle of restitution after dismissal of writ petition.
Remedy Sought
Petitioner sought to be declared elected as the sole candidate left in the fray on the principle of restitution; respondent no.4 sought to retain her seat as elected candidate.
Filing Reason
Petitioner's nomination was rejected on ground of not belonging to Scheduled Caste category; she obtained interim order to contest and was declared elected; writ petition later dismissed as not maintainable.
Previous Decisions
The writ petition was dismissed as not maintainable and the interim order was vacated.
Issues
Whether the election of a candidate who contested pursuant to an interim order can be set aside without an election petition?
Whether the principle of restitution applies to election results?
Submissions/Arguments
Petitioner argued that she was the sole candidate left in the fray and should be declared elected on the principle of restitution.
Respondent no.4 argued that she was validly elected and can only be unseated by an election petition.
Ratio Decidendi
The election of a candidate cannot be set aside without an election petition under the Maharashtra Village Panchayats Act, 1959. The principle of restitution under Section 144 of the Code of Civil Procedure, 1908 does not apply to election results as elections are governed by statutory provisions.
Judgment Excerpts
An interesting question as regards the effect of contesting elections pursuant to an interim order passed in a writ petition which is subsequently dismissed as not maintainable by vacating the interim order and directing the consequences of the same to follow arises for consideration in this writ petition.
The sole candidate left in the fray consequent upon dismissal of the writ petition seeks relief of declaration of being elected on the principle of restitution while the candidate who contested the elections on the strength of the interim order and was declared elected contends that she could be unseated only by instituting statutory proceedings in the form of an election petition.
Procedural History
The petitioner filed a writ petition challenging rejection of her nomination. An interim order was granted allowing her to contest. She contested and was declared elected. The writ petition was later dismissed as not maintainable and the interim order was vacated. The petitioner then sought declaration as elected on restitution principle. The court heard the parties and dismissed the writ petition.
Acts & Sections
- Maharashtra Village Panchayats Act, 1959: Sections 15, 16
- Code of Civil Procedure, 1908: Section 144
