RAVINDRA V. GHUGE, J.

1. Heard.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.

4. The petitioner is aggrieved by the judgment and order dated 20.9.2014, delivered by the learned District Judge - 1, Beed by which the Misc. Civil Application filed under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 (in short, “1961 Act”) was partly allowed and though respondent No.3 - the originally elected candidate was unseated, the prayer made by the petitioner for “being declared elected unopposed” is rejected.

5. The petitioner submits that the elections for the Electoral Division No.3 Umapur, Tq. Georai, District Beed was held and the result of the elections were announced on 17.2.2012, by which respondent No.3 – Savita Madan Aher was declared elected.

6. The petitioner herein challenged the said election by preferring Misc. Civil Application No.101 of 2012. Contention was that respondent No.3 belongs to the Maratha caste and the election for the Electoral Division No.3 Umapur was reserved for women belonging to the backward class. The petitioner claims to be from the backward class category.

7. By the impugned judgment, the trial Court, set aside the election of respondent No.3 on the basis of evidence before it, as well as on the basis of the decision of the competent caste scrutiny committee dated 13.1.2014 under the Maharashtra Scheduled Castes, Scheduled Tribes, De Notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No.XXIII of 2001) invalidating the caste claim of respondent No.3. It was, therefore, a foregone conclusion that respondent No.3 did not belong to the caste as claimed by her and hence could not have contested the elections.

8. It is stated that on 18.9.2014, respondent No.3 filed a purshis before the trial Court declaring that the petition filed by the petitioner be allowed and she be declared elected in place of respondent No.3.

9. Shri Deshmukh, learned Advocate for the petitioner submits that the moment the caste claim of respondent No.3 is set aside, her candidature is rendered insignificant and as such, she could not continue as an elected candidate. In this backdrop, as the petitioner was the sole candidate left in the fray, the trial Court had no option but to declare her as the returned candidate. According to him, Sections 27(2) read with 27(5)(a) empower the Judge to declare the petitioner as a returned candidate. Having failed to do so, the impugned judgment calls for interference.

10. Shri Deshmukh has relied upon the judgment of the Apex Court in the case of Madhukar G.E.Pankakar etc. Vs. Jaswant Chobbildas Rajani and others etc. [(1977) 1 SCC 70]. He places reliance upon paragraph Nos.4 and 43 to 45 of the said judgment.

11. Shri M.U.Shelke, learned Advocate appearing on behalf of respondent No.3 submits that the said respondent had filed a purshis on 18.9.2014 and had prayed that the petitioner be declared elected in her place. He further submits that this petition could be allowed as the disqualification of respondent No.3 leaves the petitioner as the sole eligible candidate for the said electoral division.

12. Shri S.T.Shelke, learned Advocate appearing on behalf of respondent Nos.1 and 2 has frankly stated that this is not an adversarial litigation to the Election Commission. Respondent Nos.1 and 2 would only be assisting the court to the extent of the interpretation of Section 27(2) and 27(5)(b) of the 1961 Act.

13. He submits that the impugned judgment cannot be faulted for the reasons that the Act empowers the Judge conducting the enquiry to declare the other candidate elected if the election of the returned candidate is set aside under Section 27(5)(b). No such power flows from Section 27(5)(a) and, therefore, the learned Judge has rightly delivered the impugned judgment.

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