ORDER :

MANGESH S. PATIL, J.

In spite of the immunity under Article 361 of the Constitution of India, the petitioner has impleaded the Hon’ble Governor as the respondent no. 3. We had directed the petitioner to forthwith delete the respondent no. 3. We had also not issued any notice to the respondents but they have appeared suo motu.

2. We have heard the learned advocate for the petitioner, learned Government Pleader, learned advocate Mr. Kadethankar and Mr. Sharma who appears for the respondent no. 5 - Election Commission of India and Mr. Deshmukh who appears for the intervenor.

3. By invoking the powers of this Court under Article 226 of the Constitution of India, the petitioner is seeking a declaration about the intervenor who has been elected as a member of the State Legislative Assembly from 10 - Chopda (ST) constituency in the elections held in 2019, was not qualified to file her nomination from the reserved category when her scheduled tribe certificate has been cancelled and the decision has reached finality up to the Supreme Court.

4. Learned advocate Mr. Bolkar would submit that since it has now finally been concluded that the intervenor was not qualified to file nomination to a seat which was reserved for scheduled tribe category, it is not a disqualification which she can be said to have incurred after she was elected. She was basically not eligible to contest the election in view of the provisions of section 5 of the Representation of the People Act, 1951 (R.P. Act). He would submit that though the petitioner has filed an election petition as contemplated under section 80-A of the R.P. Act, independently, the respondents ought to have taken immediate steps but are sitting over and not taking any decision and thereby have tacitly permitted the intervenor to occupy the seat to which she was never qualified.

5. Mr. Bolkar relies upon the decision in the matter of K. Venkatachalam Vs. A. Swamickan and another; (1999) 4 SCC 526, to submit that the High Court in an appropriate case like the present one, in exercise of the powers under Article 226 of the Constitution of India, can declare election of the intervenor as void and can declare the seat to be vacant even without resorting to the election petition under section 80-A of the R.P. Act.

6. Mr. Bolkar would also refer to the following decisions :-

i) Sujit Vasant Patil Vs. State of Maharashtra and others; 2004(3) Mh.L.J. 1109

ii) Ramesh Suresh Kamble V. State of Maharashtra & others; 2007(1) Mh.L.J.423

iii) Chairman and Managing Director, Food Corporation of India and others; (2017) 8 Supreme Court Cases 670

iv) Brudaban Nayak Vs. Election Commission of India & anr.; AIR 1965 SC 1892

7. Learned Government Pleader and Mr. Deshmukh for the intervenor at the outset, strongly object to the attempt being made by the petitioner to simultaneously resort to the election petition filed by him under section 80-A of the R.P. Act and filing present petition invoking the powers under Article 226 of the Constitution on same set of facts. They would submit that once having instituted the election petition, he ought not to have resorted to a separate proceeding in the form of present writ petition.

8. They would further submit that though the intervenor’s scheduled tribe certificate has been conclusively cancelled that would not result in automatic disqualification. They would submit that in view of section 5 of the R.P. Act, definition of “disqualified” contained in clause (b) of section 7 read with section 100 of the R.P. Act clearly demonstrate that even in respect of a ground for declaring the election to be void because the returning candidate was not qualified to be elected to fill the seat can be only by way of an election petition. They would submit that Articles 190(3) and 192(1) of the Constitution of India and the procedure prescribed thereunder would be applicable to post election disqualification incurred by a returned candidate. To buttress their such submission, they would rely up