JUDGMENT - R.M. LODHA, J. :--By this petition, the petitioner is seeking to challenge the legality and correctness of judgement passed by Civil Judge, Jr. Dn. Sakoli on 14-12-1993, whereby the said Court has allowed election petition filed by respondent Nos. 2 and 3 herein and has declared the election of the petitioner from reserved seat of Ward No. 1 of village Nilaj illegal and set aside his election.

2. Shorn of unnecessary details, the brief facts giving rise to the present controversy are that gram panchayat election for village Nilaj, Ward No. 1, which was a reserved seat for Scheduled Tribe, was notified and the last date for filing nomination was 6-10-1992. On 15-10-1992, the nominations were scrutinised and the present respondents 1 and 2 raised objections about the nominations filed by the petitioner on the ground that he was not Scheduled Tribe. It may be stated here that the objection was over-ruled by the Returning Officer and a writ petition was filed by the respondents 1 and 2 (for short 'Election Petitioners before this Court') and this Court by order dated 20-10-1992 held that the question can only be examined by way of election petition which was adequate alternative and efficacious remedy and the petition filed by the election petitioner was dismissed. On 1-11-1992, the elections took place and on 3-11-1992 after counting, the petitioner (for short 'returned candidate') was declared elected from Ward No. 1 reserved constituency of village Nilaj. The returned candidate's election was challenged by the election petitioner on 16-11-1992 under section 15 of Bombay Village Panchayat Act, 1958 by filing election petition. The Principal contention raised in the election petition was that the Returning Officer committed serious error in accepting nomination of returned candidate, since he was not a scheduled tribe and was disqualified from contesting election from reserved constituency.

3. The Election Petition was resisted by the returned candidate and he set up a defence that he was scheduled tribe and was entitled to contest the election and the Returning Officer did not commit any error in accepting his nomination. Various other objections were raised by the returned candidate.

4. The Election Petitioners led oral evidence and examined P.W. 1, Kashinath, P.W. 2, Markand and P.W. 3, Raut to show that the returned candidate was not 'Gond Gowari' under Item 18, Part 9 of Second Schedule appended to Scheduled Caste and Scheduled Tribe Order, 1976.

5. On the other hand, returned candidate placed on record, caste certificate showing him as 'Gond Gowari' issued by Taluka Magistrate.

6. After holding enquiry and hearing parties, Civil Judge, Jr. Dn. Sakoli concluded that the election petitioners have proved that Returning Officer committed error in accepting nomination of the returned candidate, as he was disqualified being not Scheduled Tribe. The Civil Judge, Jr. Dn. by judgment dated 14-12-1993 allowed the Election Petition and set aside the election.

7. Mr. Madkholkar, learned Counsel for the petitioner strenuously urged that it was not open to C.J.J.D. in the election petition filed under section 15 of Bombay Village Panchayat Act to examine whether Returning Officer rightly accepted nomination of the returned candidate or not. According to him, the question of acceptance of nomination of returned candidate, is beyond the purview of election petition filed under section 15 of Bombay Village Panchayat Act. Shri Madkholkar also submitted that C.J.J.D. seriously erred in holding that the returned candidate was not 'Gond Gowari' covered in Item 18, Chapter 9 of Schedule II of Scheduled Caste and Scheduled Tribes Order, 1976. In support of his contention, he relied on 1965 Maharashtra Law Journal, Note 45.

8. In opposition to the submissions made by the learned Counsel for petitioner, on the other hand, Mr. Deshpande, learned Counsel for election petitioners submitted that the enquiry under section 15 of Bombay Village P

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