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2022 Supreme(Bom) 223
IN THE HIGH COURT OF BOMBAY
A.S. Chandurkar, Pushpa V. Ganediwala, JJ.
Salma Bi W/o Syed Noor Attar – Petitioner
Versus
The Collector, Buldana and Others – Respondents
Writ Petition No. 4031 of 2021
Decided On : 08-02-2022
Advocate Appeared:
For the Appellant :Shri R.L. Khapre, Senior Advocate with Shri D.R. Khapre
For the Respondent: Mrs. K.R. Deshpande, Assistant Government Pleader, Shri J.B. Kasat, Shri A.M. Ghare
Point of Law: Whenever called upon to adjudicate, the court would act in conjunction with what is real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.
Headnote:
Constitution of India, 1950 - Articles 243-O(b) and 226/227 - Code of Civil Procedure, 1908 - Section 144 - Maharashtra Village Panchayats Act, 1958 - Section 15 - Seeks relief of declaration of being elected on principle of restitution - reserved for Backward Class Category - Elections to elect members of Gram Panchayat nomination forms were to be filled and the scrutiny of the same was to take place final list of candidates was to be published - Seat A was reserved for candidates from the Scheduled Castes category. Seat B was reserved for the candidates from the Backward Class Category while Seat C was reserved for Backward Class Category (Women) - fourth respondent that she had filed a nomination form for contesting elections on Seat C which was reserved for Backward Class Category - Accepted her nomination form for Seat B which was reserved for Backward Class Category candidates. Being aggrieved by this decision the fourth respondent filed Writ Petition - Petitioner got herself impleaded in said writ petition as the respondent no. 4 therein - Learned Single Judge on hearing the learned counsel for parties held that in view of the judgment - State Election Commission as regards the course to be followed in matter.
Finding of the Court:
It is with that position in mind that learned Single Judge directed “consequences to follow.” Once that intention was clearly expressed - Fourth respondent having contested the elections from Seat C in view of ad-interim order dated has no right to continue on post as Member of Gram Panchayat, Dongaon in view of dismissal of Writ Petition after vacating interim order and directing the consequences to follow - Respondent Nos. 1 to 3 erred in not gathering the true import of the consequences of dismissal of Writ Petition.
Result: Writ Petition is dismissed.
The ratio decidendi of the case is that the final order vacating the interim relief and the subsequent dismissal of the writ petition effectively nullify any temporary arrangements or declarations made during the interim period. As a result, the legal position prior to the grant of interim relief is restored, which in this case means that the petitioner, who was the sole valid candidate for the reserved seat before the interim order, is entitled to be declared elected unopposed. The court held that the vacating of the interim order and the final dismissal of the writ petition eliminate any legal basis for the election of the respondent, and therefore, the petitioner’s claim to be declared elected is justified. This is grounded in the principles that the final legal position must be respected and that interim orders do not alter the substantive rights once vacated, thus requiring the election to be declared in accordance with the pre-interim status quo (!) (!) (!) (!) (!) .
JUDGMENT :
A.S. Chandurkar, J.
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.
2. With a view to answer the aforesaid question the learned counsel for the parties have been heard at length by issuing RULE and making the same returnable forthwith.
The facts giving rise to the aforesaid question are that elections to elect members of Gram Panchayat Dongaon, Taluka Mehkar, District Buldana were held in December-2020 - January-2021. The nomination forms were to be filled by 30.12.2020 and the scrutiny of the same was to take place on 31.12.2020. The final list of candidates was to be published on 04.01.2021 and the polling was scheduled on 15.01.2021. The votes were to be counted and the results were to be declared on 18.01.2021.
3. The ward in question is Ward No.1 which was divided into three segments. Seat A was reserved for candidates from the Scheduled Castes category. Seat B was reserved for the candidates from the Backward Class Category while Seat C was reserved for Backward Class Category (Women). It is the case of the fourth respondent that she had filed a nomination form for contesting elections on Seat C which was reserved for Backward Class Category (Women). The Returning Officer however accepted her nomination form for Seat B which was reserved for Backward Class Category candidates. Being aggrieved by this decision the fourth respondent filed Writ Petition No.85 of 2021 challenging that decision of the Returning Officer. On 04.01.2021, the learned Judge while issuing notice to the respondents passed an order which reads thus:
“Considering the extreme urgency projected on behalf of the petitioner, the petition was taken up for consideration.
(2) Heard learned counsel for the petitioner.
(3) The petitioner has challenged the order dated 31.12.2020 passed by the respondent No.2 - Returning Officer whereby her nomination form for election to Ward No.1 in Gram Panchayat, Dongaon, Taluka Mehkar, District Buldana, has been accepted for the Backward Class Citizen Category, instead of Backward Class Citizen Women Category.
(4) It is the case of the petitioner she had filled the nomination form for the election wherein she had specifically stated that she was contesting for Backward Class Citizen Women Category and she has answered in the affirmative on the specific question in the nomination for to the effect as to whether the candidate was contesting for a seat reserved for woman. Attention of this Court was also invited to documents filed along with nomination form wherein it was repeatedly stated that she was filing nomination form for election in BCC Women category. It is submitted that despite such explicit statements made on behalf of the petitioner in the nomination form and the supporting documents as per the existing format, the respondent no.2 - returning Officer wrongly accepted her nomination paper for Backward Class Citizen Category only and not for the Backward Class Citizen Women Category.
(5) Having perused the writ petition and the documents filed therewith, the Court is of the opinion that a prima facie case is made out on behalf of the petitioner.
(6) Hence, issue notice to the respondents, returnable in four weeks.
(7) Shri Chutke, learned A.G.P. waives notice on behalf of both the respondents.
(8) In the meanwhile, there shall be ad interim relief in terms of prayer clause (d), subjec
