The principle of restitution and entitlement to reliefs sought based on the consequences of the dismissal of the writ petition.

JUDGMENT

A.S.CHANDURKAR, J.

1. RULE. Rule made returnable forthwith and heard the learned counsel for the parties.

2. On 15/12/2020, a notification was published with a view to hold elections of Members of Gram Panchayat Marda. Seven members were to be elected from three Wards. The petitioner on 29/12/2020 filed her nomination form for the post of Member under the category of Backward Class of Citizens from Ward No.1. The fifth respondent also filed her nomination form under the same category. There were thus two nomination forms that were filed for contesting elections in the category of Backward Class of Citizens from Ward No.1. On scrutiny, the petitioner's nomination form was found to be valid while the nomination form of the fifth respondent came to be rejected. The fifth respondent being aggrieved by the order rejecting her nomination form filed Writ Petition No.116 of 2021. On 4/1/2021 the learned Single Judge while issuing notice in the writ petition granted ad-interim relief and directed the Returning Officer to accept the nomination form of the fifth respondent, the same being made subject to the result of the writ petition. Consequently, the nomination form of the fifth respondent was accepted. In the elections held on 15/1/2021 the fifth respondent was declared elected having secured more votes than the petitioner. Notification dtd. 29/1/2021 indicating the names of elected candidates was published by the Collector.

3. On 9/2/2021, Writ Petition No.116 of 2021 was held to be not maintainable in view of the judgment of the Full Bench of this court in Karmaveer Tulshiram Autade & Others Versus State and Election Commission & Others decided on 13/1/2021. Accordingly, while dismissing the writ petition as not maintainable this Court directed that the consequence of dismissal of the writ petition would follow. In view of dismissal of writ petition, the petitioner on 10/2/2021 issued a communication to the Returning Officer and requested that she be declared as elected unopposed since there was no other candidate besides the fifth respondent who had contested the elections. The petitioner also prayed that she be permitted to participate in the election for the post of Sarpanch. That request was reiterated on 12/2/2021. The petitioner however was not permitted to participate in the election of Sarpanch and consequently the fifth respondent was declared elected on the post of Sarpanch. Being aggrieved the petitioner has challenged the action of the Returning Officer of not declaring her as elected unopposed in the category of Backward Class of Citizens. In support of the reliefs sought in the writ petition, the learned counsel for the petitioner placed reliance on the judgment of the Division Bench of this Court in Salma Bi Syed Noor Attar Versus The Collector, Buldana in Writ Petition No.4031 of 2021 dtd. 8/2/2022 which arose in similar facts as well as the decisions in Baby Samuel Versus Tukaram Laxman Sable & Others [1996(1) Mh.L.J. (SC) 9], Baburao Vishwanath Mathpati & etc. Versus State of Maharashtra & Others [1996(1) Mh.L.J. 366] and Baburao Kalu Koli Versus State of Maharashtra & Others [2008(2) Mh.L.J. 203]. It was prayed that the petitioner be declared elected as Member of the Gram Panchayat.

4. Reply has been filed by the fifth respondent opposing the prayers made in the writ petition. It has been stated that the writ petition was not maintainable as the relief of declaration of being elected unopposed as sought by the petitioner could only be granted in an Election Petition. Under Sec. 15 of the Maharashtra Village Panchayats Act, 1959 (for short, 'the Act of 1959') the remedy of seeking such declaration could be sought. It is further stated that the elections to the Gram Panchayat having been held and the fifth respondent having been declared elected after securing majority of the votes her election was required to be set aside by invoking the statutory remedy and not by approaching this Court under Article 226