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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 24 OF 2022

Ravidant s/o Khushal Bopche

Vs.

Election Commission of India, New Delhi and Ors.

__________________________________________________________________________

Office Notes, Office Memoranda of Coram,

appearances, Court'

s orders of directions

Court'

s or Judge'

s orders.

and Registrar'

s Orders.

Ms. Shiba Thakur, Advocate for petitioner.

Shri N.R. Rode, AGP for respondent/State.

CORAM : SUNIL B. SHUKRE AND

ANIL L. PANSARE, JJ

.

DATE : 11.02.2022.

Hearing was conducted through video

conferencing and learned counsel for the parties agreed

that the audio and visual quality was proper.

2.

Heard.

3.

This petition is in the nature of an election

petition, raising a time barred issue of disqualification of

Member of the Legislative Assembly. It is founded on

the ground that not the respondent No.5 but his father

was a beneficiary of a Government Scheme under

which he has received subsidy for construction of a

“Pack House” thereby indicating that the petitioner is an

indirect beneficiary of a Government Project and

therefore, disqualified to vote or to be elected in the

Legislative Assembly Elections.

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4.

Learned counsel for the petitioner fairly

submits that even though an election petition could have

been filed under Section 100(1)(a) of the

Representation of the People Act, 1951, now it cannot

be filed because the limitation period is over. She

submits that this petition has been filed based upon the

provisions made in Article 191(1)(a) of the Constitution

of India. Learned AGP has raised a question of

maintainability of this petition submitting that what

cannot be done directly cannot be permitted to be done

an indirect manner. He submits that at the most an

election petition could have been filed by the petitioner

questioning the election of respondent No.5 to the

Maharashtra Legislative Assembly on the ground that he

was disqualified on the date on which he was elected,

under Section 100(1)(a) of the Representation of the

People Act, 1951, but that has not been done by the

petitioner. He submits that whenever an alternate

remedy is provided and it is effective, as well, this Court

must not entertain such petitions in exercise of its extra

ordinary jurisdiction under Article 226 of the

Constitution of India. He also submits that even Article

191(1)(a) is not applicable to the facts of the present

case.

5.

Since, there is a fair admission given on

behalf of the petitioner that no election petition could be

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filed at this stage as the limitation period for filing of the

same is over, the question of availibility of effective

alternate remedy does not arise. The remedy once

available is now not available. But, this raises an issue

about permissibility of invoking a writ jurisdiction. We

are of the view that the petitioner cannot be permitted

to invoke the writ jurisdiction, or otherwise it would

amount to disrespecting law of limitation. The principle

is, what cannot be done directly cannot be allowed to be

done indirectly.

6.

As regards, the foundation of this petition,

upon the provisions made in Article 191(1)(a), as

contended by the learned counsel for the petitioner, we

may, before any conclusion is made by us, advert to this

provision of law, which reads as under:

“191. Disqualification for membership –

(1) A person shall be disqualified for being chosen

as, and for being, a member of the Legislative

Assembly or Legislative Council of a State -

(a) if he holds any office of profit under the

Government of India or the Government of any

State specified in the First Schedule, other than an

office declared by the Legislature of the State by

law not to disq