The challenge to the election of a candidate on the ground of his disqualification under section 16 is not open in an election petition under section 27 of the Zilla Parishads Act.

Headnote:
ELECTION PETITION - DISQUALIFICATION OF CANDIDATE - SCOPE OF CHALLENGE - ZILLA PARISHADS ACT, 1961, SECTIONS 27, 58 - MAHARASHTRA PANCHAYAT SAMITIS (REGISTRATION OF VOTERS AND CONDUCT OF ELECTIONS) RULES, 1962, RULES 19(6), 20(8).
Fact of the Case:

An election petition was filed challenging the election of three candidates to the Panchayat Samiti on the ground that one of the candidates was disqualified due to arrears of hire for an engine taken from the Panchayat Samiti. The Assistant Judge dismissed the petition, holding that the challenge to the election on the ground of disqualification incurred before the nomination could not be entertained.
Finding of the Court:

The court held that the challenge to the election of a candidate on the ground of his disqualification under section 16 is not open in an election petition under section 27 of the Zilla Parishads Act. The court relied on the provisions of section 27(5) of the Zilla Parishads Act, which sets out the grounds on which an election of an elected candidate can be set aside. The court also noted the absence of a provision in the Maharashtra Panchayat Samitis Conduct of Election Rules analogous to the provision in sub-rule (8) of rule 20 of the rules relating to the election of councillors of the Zilla Parishad, which makes the decision of the Returning Officer regarding the acceptance of the nomination paper final and conclusive.
Issues: Whether the challenge to the election of a candidate on the ground of his disqualification under section 16 is open in an election petition under section 27 of the Zilla Parishads Act.
Ratio Decidendi: The court held that the challenge to the election of a candidate on the ground of his disqualification under section 16 is not open in an election petition under section 27 of the Zilla Parishads Act. The court relied on the provisions of section 27(5) of the Zilla Parishads Act, which sets out the grounds on which an election of an elected candidate can be set aside. The court also noted the absence of a provision in the Maharashtra Panchayat Samitis Conduct of Election Rules analogous to the provision in sub-rule (8) of rule 20 of the rules relating to the election of councillors of the Zilla Parishad, which makes the decision of the Returning Officer regarding the acceptance of the nomination paper final and conclusive.
Final Decision: The court dismissed the petition challenging the election of the candidate to the Panchayat Samiti.

JUDGMENT

CHANDURKAR J.-The petitioner in this petition had filed an election petition under section 27 of the Maharasbtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as the "Zilla Parisbads Act") challenging the election to the Panchayat Samiti of North Sholapur from three wards, namely, Mardi-Wadala, Kasbe Sholapur-Bale and Degaon Kumthe from which each of the respondents Nos. 1 to 3 respectively were candidates. The petitioner himself is a voter only from Degaon village and it is not now disputed before us that he would be entitled, if at all, to challenge the election only so far as respondent No.3 is concerned. On other words, it is conceded that the challenge to the election of respondents Nos. 1 and 2 was not maintainable at the instance of the present petitioner.

2. The petitioner's case against respondent No.3 appeared to be that he was in arrears of the amount of hire in respect of engine of the North Sholapur Panchayat Samiti taken by him on hire from the said Panchayat Samiti and be bad so remained in arrears for more than six months despite the service of a demand notice on him. The election petition came to be tried by the Extra Assistant Judge, Sholapur, who had framed several issues for determination on merits but did not think it necessary to give a finding on all the issues. Since the election of respondent No.3 was challenged on the ground that he was initially disqualified to be elected, the learned Judge first took up for consideration the contention of the elected candidates that the petition challenging the election of the candidate was not maintainable under section 27 of the Zilla Parishads Act. The learned Judge relied upon the decision of this Court in Gopikisan Agarwal v. District Judge, Bhandara1 and came to the conclusion that an election petition on the basis of an allegation of a disqualification incurred before the date of the nomination could not be entertained. He, however, seems to have taken the view that the proper remedy of the petitioner was to approach the Commissioner under section 40 of the Zilla Parishads Act. Since the election petition filed by the petitioner came to be rejected, this petition has been filed by him challenging the decision of the learned Assistant Judge.

3. It was contended on behalf of the petitioner by Mr. Kankaria that the learned Judge was in error in applying the decision in Gopikisan Agarwal's case, because according to the learned counsel, the election challenged in the instant proceedings was not. an election as Councillor of the Zilla Parishad, but the election was in respect of the Panchayat Samiti and the relevant rules regulating the scrutiny of the nomination papers did not contain a clause that the decision of the scrutinising authority would be final and conclusive and not open to challenge in an election petition.

4. Now, so far as the elections and election disputes with regard to the election of members of a Panchayat Samiti are concerned, the relevant provision is to be found in section 58 which reads as follows :_

"(1) The provisions of section 16 relating to the disqualifications of Councillors shall apply in relation to the disqualifications of the members of a Panchayat Samiti with the modification that in clause (d) of sub-section (1) of section 16, for the figures 39' the figures 61' shall be substituted.

(2) The provisions of sections 19 to 25 (both inclusive),and 27, 28, 28A to 28D (both inclusive), 29 to 33 (both inclusive), 33A and 34 to 37 (both inclusive) relating to elections and election disputes and any rules made thereunder shall apply mutatis mutandis in relation to election of members under clause (f) of sub-section (1) of section 67."

Thus even where the election of a member of a I)anchayat Samiti is to be challenged, the relevant provision which must be looked into is section 27 of the Zilla Parishads Act, Under section 27 (2) it is provided that after the election petition is filed before the Distr

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