Z.A. Haq, J.

1. Heard.

2. RULE.

3. Considering the nature of controversy, the writ petition is taken up for final hearing.

4. The petitioner has challenged the decision of the respondent No.2-Election Officer by which the nomination form of the respondent No.3 for the post of President-Kurkheda Nagar Panchayat is accepted. According to the petitioner, the post of President Kurkheda Nagar Panchayat is reserved for Scheduled Tribe candidate and the respondent No.3, who originally belonged to Gond Scheduled Tribe accepted Islam after her marriage and therefore, she ceased to belong to Gond Scheduled Tribe, and she is not eligible to contest the election as Scheduled Tribe candidate.

5. It is undisputed that the petitioner belongs to Scheduled Tribe, is a member of Kurkheda Nagar Panchayat and presently Chairman of Health, Sanitation and Nutrition Committee.

It is undisputed that the respondent No.3 originally belonged to Gond Scheduled Tribe and she married Tayar Mugal (a Muslim) on 9th April, 2010. It is undisputed that before marriage, name of the respondent No.3 was “Sharda Deorao Uikey” and the Scheduled Tribe Certificate Scrutiny Committee, Gadchiroli Division issued certificate of validity on 26th March, 2010 to the effect that she belonged to Gond Scheduled Tribe. It is admitted fact that after marriage, the respondent No.3 has changed her name as “Smt. Shahida Tabassum” and for this she followed the prescribed procedure and had submitted an affidavit dated 13th April, 2015 stating that before marriage the caste of the respondent No.3 was Gond, however, after marriage she has become a Muslim (Musalman).

6. The point which arises for consideration is, whether the respondent No.3 is entitled to contest the election as Scheduled Tribe candidate for the post reserved for Scheduled Tribe person.

7. The advocate for the respondent No.3 has raised preliminary objection to the maintainability of the writ petition on the ground that Article 243-ZG( b) of the Constitution of India bars any Court, except the Court/Tribunal having jurisdiction to entertain and decide the election petition, from entertaining any challenge to the election matters. The advocate for the respondent No.3 has relied on the provisions of Section 341-B1 (4) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as “the Act of 1965”) and has argued that appeal is provided before the Regional Director of the Municipal Administration to challenge the decision of the Returning Officer, accepting or rejecting the nomination paper and this appeal is required to be filed within 48 hours from intimation of such decision. Relying on sub-section (6) of Section 341B1 of the Act of 1965, it is submitted that even after the elections are held and if occasion arises, the petitioner can raise dispute regarding election of respondent No.3 as President of Nagar Panchayat, before the State Government.

It is not in dispute that this writ petition is filed within forty eight hours from the intimation of the decision of the respondent No.2-Returning Officer to accept the nomination form of the respondent No.3.

8. The advocate for the petitioner has submitted that the affidavit sworn by the respondent No.3 at the time of changing her name shows unequivocal declaration made by the respondent No.3 that on her marriage with a Muslim man, she ceased to belong to Gond Tribe and has embraced Islam and in view of this admitted fact, this Court should examine the legality of the impugned decision. The learned advocate for the petitioner has relied on the judgment given in the case of K. Venkatachalam Vs. A. Swamickan, reported in (1999)4 SCC 526 to urge that in the circumstances like the present one, this Court would be justified in exercising the extraordinary jurisdiction and prevent the fraud attempted by the respondents on the Constitution.

Considering the facts of the case and the proposition laid down in the judgment given