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Grievance of petitioner must be inquired through recording of evidence only: Bombay High Court

Any inquiry into the grievance raised by the petitioner would necessarily entail finding on facts, which can be arrived at only upon recording of evidence and not otherwise, held, Justice Manish Pitale, while adjudicating the matter in Gazala B Saddam Shah v. The Collector; [WRIT PETITION NO. 85 OF 2021]

The respondent No.3 declared election program for elections to Grampanchayats including Grampanchayat, Dongaon, with which the present petition is concerned. As per the election program, on 14/12/2020, the final voters list was published. The nomination forms were to be filled by candidates between 23/12/2020 to 30/12/2020. The scrutiny of nomination forms was to take place on 31/12/2020 and the nomination forms could be withdrawn on 04/01/2021. The final list of candidates and allotment of symbols was to be done on 04/01/2021 and the polling date was fixed for 15/01/2021 between 07.30a.m. to 05.30p.m. On 18/01/2021, the counting of votes was fixed, followed by the declaration of result. The petitioner claims in the writ petition that she filled her nomination form in the category of Backward Citizen Category – Women (BCC-W) for which one seat was reserved in ward No.1. Upon scrutiny of the nomination forms, the respondent No.2 – the Returning Officer published list of nomination forms found to be valid. The petitioner was shocked and surprise to find her name mentioned in the Backward Citizen Category (BCC). In the category of BCC-W, only the name of respondent No.4 as having filled valid nomination form was found, with the result that there was every chance of her being elected unopposed. Since last date for publishing the final list of candidates and allotment of symbols was dated 04/01/2021, the petitioner was constrained to urgently file the present writ petition on 02/01/2021. The writ petition was taken up for consideration in view of the extreme urgency on 04/01/2021 and upon hearing the learned counsel for the petitioner, this Court found that the petitioner had made out a prima facie case in her favour.

The petitioners contended that in view of the specific questions framed and answered in the said judgment of the Full Bench of this Court, the present writ petition deserves to be dismissed, as not maintainable, in view of the specific bar contemplated under Article 243-O(b) of the Constitution of India and Section 15A of the Maharashtra Village Panchayats Act, 1959 (Act of 1959).

The Court upon considering the aforesaid facts upheld the maintainability of the petition and stated that; “The learned Senior Counsel appearing for respondent No.4 is justified in contending that any inquiry into the grievance raised by the petitioner would necessarily entail finding on facts, which can be arrived at only upon recording of evidence and not otherwise. Such an exercise can be undertaken only by way of an election petition under Section 15 of the Act of 1959. Once, such a finding is reached, the bar contemplated under Article 243-O(b) of the Constitution of India and Section 15A of the Act of 1959, would apply in its full force.”

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