The rejection of a nomination for a village panchayat election based on statutory qualifications is not remediable through a writ petition due to the bar under Article 243(O)(b) of the Constitution of India, and the petitioner can seek remedy through an election petition under Section 15 of the 1959 Act.

JUDGMENT :

1. By the present writ petition, the petitioner is challenging the rejection of the nomination of the petitioner for the election of the village panchayat of village Nafarwadi, Taluka - Patoda, District – Beed. The petitioner submitted her nomination form from Ward No.2 of village Nafarwadi from BCC(W) category. The nomination is rejected by the Returning Officer on the ground that the petitioner has 3 children and she is not entitled to contest the election by virtue of bar under Section 14(j-1) of the Maharashtra Village Panchayats Act, 1959 (for short ‘1959 Act’).

2. The election program filed alongwith the petition, indicate that the respondent no.1 declared the Election Program for the Election of village panchayat Nafarwadi, Taluka – Patoda, District – Beed on 09.11.2022. As per said election program the date of notification for the election was 18.11.2022. The date for submission for nomination was 28.11.2022 to 02.12.2022, the date for scrutiny of nomination was 05.12.2022, the date for withdrawal of nomination is 07.12.2022 and the date of election is 18.12.2022.

3. The petitioner has pointed out that the petitioner had 3 children and one of them had expired and the death certificate of the child having expired was also placed on record alongwith self declaration filed with the nomination papers, that the petitioner has only 2 children. Further the petitioner submits that on the date of scrutiny of the nomination papers, an application was made by one of the petitioner’s opponent to the Returning Officer that the Petitioner has 3 children and the petitioner be disqualified from contesting the panchayat elections. The Returning Officer without calling upon the petitioner to explain the objection, based on the material produced by the opponent, by order dated 05.12.2022, rejected the nomination of the petitioner. As there is no appellate remedy provided under the 1959 Act qua the rejection of the nomination, the petitioner has filed the present writ petition challenging the order passed by the Returning Officer dated 05.12.2022.

4. The learned counsel for the petitioner submits that the order passed by the Returning Officer is in complete denial of natural justice and that the record available with the Returning Officer filed by the petitioner clearly indicated that the petitioner has only 2 living children at the time of filing of the nomination. However, the Returning Officer has proceeded to pass the impugned order only on the basis of the record produced by the respondent without adverting to the documents filed by the petitioner alongwith the nomination form and also without giving any notice to the petitioner before rejecting his nomination.

5. The learned counsel for the petitioner submits that the Full Bench of this Court in the case of Subhash Sajesingh Gavit Vs. The Returning Officer ZP Nandurbar and others in Writ Petition No.6993 of 2008 dated 17.10.2019 has on the aspect of counting the deceased children for the purpose of disqualification has answered the reference at para 53, while framing the questions at para 2, as under:-

“2. The following three issues have been framed by the learned Single Judge, by way of a reference to this Court:-

(1) Whether, the disqualification clause, introduced in the Maharashtra Zilla Parishad and Panchayat Samities Act, Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and the Maharashtra Village Panchayats Act, and the proviso thereunder, would be applicable from 13.9.2000?

(2) Whether the clause of disqualification can be attracted, considering the number of birth of the children irrespective of whether any of the children have died or whether a child who has died and is not in existence on the date of the filing of the nomination papers, will have to be excluded from the number of children procreated by the candidate?

(3) Whether such demise of the child can be excluded by interpreting the word 'had' appearing in the proviso so as to